Case 2:16-cv-01538-NVW Document 140 Filed 10/07/19 Page 1 of 9 1 2 3 4 5 Andrew S. Jacob (SBN: 022516) GORDON REES SCULLY MANSUKHANI, LLP 2 N. Central Avenue, Suite 2200 Phoenix, AZ 85004 Telephone: (602) 794-2495 Facsimile: (602) 265-4716 ajacob@grsm.com Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 Michael Pierce; Plaintiff, 9 2 N. Central Avenue, Suite 2200 Phoenix, AZ 85004 Gordon & Rees Scully Mansukhani, LLP 10 11 ) CASE No. CV-16-01538-PHX-NVW ) ) PLAINTIFF’S APPLICATION FOR ) AWARD OF TAXABLE AND NON) TAXABLE COSTS AND ) REASONABLE ATTORNEY’S FEES ) ) ) vs. Douglas A. Ducey, et al., 12 Defendants. 13 14 Plaintiff Michael Pierce moves, pursuant to Federal Rule of Civil Procedure 54(d) 15 and 28 U.S.C. § 1920, for an order awarding him costs and reasonable attorney’s fees as 16 prevailing party and on the basis that he obtained a judgment that confers a substantial 17 benefit on the citizens of Arizona. MEMORANDUM OF POINTS AND AUTHORITIES 18 19 I. Plaintiff is the prevailing party. 20 “[A] party must have a judgment or something similar formally delivered in its 21 favor to be considered ‘prevailing.’” Carbonell v. INS, 429 F.3d 894, 900 (9th Cir. 2005). 22 “If the defendant, under pressure of the lawsuit, alters his conduct . . . towards the plaintiff 23 that was the basis for the suit, the plaintiff will have prevailed.” Hewitt v. Helms, 482 U.S. 24 755, 761 (1987). 25 Mr. Pierce sought “a permanent injunction enjoining the State of Arizona from 26 implementing the Proposition 123 changes to … its Constitution unless Congress amends 27 the Enabling Act to authorize or consent to such changes.” (Doc. 42, at 7.) Before the 28 Court could grant such relief, Congress – at the request of Governor Ducey – amended the 1 Case 2:16-cv-01538-NVW Document 140 Filed 10/07/19 Page 2 of 9 1 Arizona Statehood and Enabling Act to provide such consent. (Doc. 112.) Nonetheless, on 2 September 30, 2019, the Court entered a declaratory judgment adopting Mr. Pierce’s 3 position on the merits because the conduct at issue – changing the formula for distribution 4 from the School Trust Fund without Congressional authorization – is likely to recur. (See 5 Doc. 138 at 13:7 to 13:17.) See also Ruiz v. City of Santa Maria, 160 F.3d 543, 549 (9th 6 Cir. 1998) ( “Claims for injunctive relief become moot when the challenged activity ceases 7 [only] if subsequent events have made it clear that the alleged violations could not 8 reasonably be expected to recur.”) The declaratory judgment stated: that the Arizona Statehood and Enabling Act Amendments of 1999, Pub.L. No. 106- 133, 113 Stat. 1682 (1999), do not repeal or impair the Enabling Act requirement of congressional consent to any changes to the Arizona State Constitution that affect the investment or distribution of the assets in the School Land Trust fund established by the Arizona Statehood and Enabling Act until and unless Congress provides consent to such changes, by way of amendment to the Arizona Statehood and Enabling Act or otherwise. 9 11 2 N. Central Avenue, Suite 2200 Phoenix, AZ 85004 Gordon & Rees Scully Mansukhani, LLP 10 12 13 14 (Doc. 139.) Entry of this declaratory judgment satisfies the criteria stated in Carbonell and 15 16 Hewitt and, therefore, establishes that Mr. Pierce is the prevailing party in this litigation. 17 II. 18 19 20 The Court should award Mr. Pierce reasonable attorney’s fees. As prevailing party, the Court should award Mr. Pierce reasonable attorney’s fees totaling $45,045.00. This request is supported by both state and federal law. Arizona law 21 Arizona law allows a court to award attorney’s fees against a state official in favor 22 of a litigant who, in bringing the action, conferred a substantial benefit on the citizens of 23 Arizona by “vindicating an important public policy” – what has been called “private 24 attorney general doctrine.” See Arnold v. Dept. of Health Services, 160 Ariz. 593, 609, 775 25 P. 2d 521, 537 (1989); see also id. (“Given the eroded status of the ‘American Rule’ and 26 the benefit to Arizona citizens from public interest litigation, we adopt and apply the 27 private attorney general doctrine here.”) 28 2 Case 2:16-cv-01538-NVW Document 140 Filed 10/07/19 Page 3 of 9 1 Two years prior to Arnold, the Arizona Supreme Court considered awarding fees 2 in a matter wherein the plaintiff enforced another land trust provision of the Statehood and 3 Enabling Act, on the basis that by vindicating rights under the Act, Kadish “conferred a 4 substantial benefit on the citizens of Arizona.” Kadish v. Arizona State Land Department, 5 155 Ariz. 484, 497-98, 747 P.2d 1183, 1196-97 (1987). Although the Court acknowledged 6 the theory of private attorney general fee awards, it neither rejected the theory nor 7 explained why it was not applied in that case. Id. at 498. But, in a subsequent decision in 8 the same matter, the Court of Appeals awarded attorney’s fees to Kadish based on such 9 doctrine. Kadish v. Arizona State Land Department, 177 Ariz. 322, 334, 868 P.2d 335, 2 N. Central Avenue, Suite 2200 Phoenix, AZ 85004 Gordon & Rees Scully Mansukhani, LLP 10 347 (App. 1987). 11 Thereafter, Arizona courts have consistently awarded attorney’s fees against the 12 State of Arizona or the Governor pursuant to private attorney general doctrine in matters 13 where the plaintiff conferred a substantial benefit to the citizens of Arizona. See, e.g., 14 Dobson v. State, 233 Ariz. 119, 124, ¶¶ 18-20, 309 P.3d 1289, 1294 529 (2013) (awarding 15 fees against State after finding that H.B. 2600, concerning appointments to Commission 16 on Appellate Court Appointments, was unconstitutional); Defenders of Wildlife v. Hull, 17 199 Ariz. 411, 428, ¶¶ 65-66, 18 P.3d 722, 739 (App. 2001) (awarding fees against 18 Governor Hull after finding that S.B. 1126, disclaiming state interest in certain river bed 19 lands, was unconstitutional). 20 Mr. Pierce enforced a section of the Arizona Statehood and Enabling Act, which 21 provided that Congress take responsibility for authorizing any changes made to the 22 Arizona Constitution that affect the investment or of distributions of assets in the School 23 Trust Fund. In so doing, he vindicated an important public interest because the judgment 24 obtained limits the discretion of the State to again take excess funds from the School Trust 25 Fund, which could adversely impact future generations, and it settles the question of “the 26 legality of the Governor’s behavior.” (Doc. 138 at 11:26 to 11:28.) Mr. Pierce, therefore, 27 conferred a substantial benefit on the citizens of Arizona. On that basis, Plaintiff asks the 28 3 Case 2:16-cv-01538-NVW Document 140 Filed 10/07/19 Page 4 of 9 1 Court to exercise its discretion to award him reasonable attorney’s fees for the legal 2 services provided by undersigned counsel. Federal law 2 N. Central Avenue, Suite 2200 Phoenix, AZ 85004 Gordon & Rees Scully Mansukhani, LLP 3 4 Federal law also allows a court to award attorney’s fees against a state official “in 5 cases in which the plaintiff's successful litigation confers ‘a substantial benefit on the 6 members of an ascertainable class, and where the court’s jurisdiction over the subject 7 matter of the suit makes possible an award that will operate to spread the costs 8 proportionately among them.’” Hall v. Cole, 412 U.S. 1,5 (1973) (quoting Mills v. Electric 9 Auto-Lite Co., 396 U. S. 375, 393-94 (1970); accord Wininger v. SI Management LP, 301 10 F. 3d 1115, 1120 (9th Cir. 2002). “‘Fee shifting’ is justified in these cases, not because of 11 any ‘bad faith’ of the defendant but, rather, because ‘[t]o allow the others to obtain full 12 benefit from the plaintiff's efforts without contributing equally to the litigation expenses 13 would be to enrich the others unjustly at the plaintiff's expense.’" Hall, 412 U.S. at 6 14 (quoting Mills, 296 U.S. at 392). 15 As the Court recognized in its Order, the outcome of this action benefits “the 16 citizens of Arizona—both present and future—[by] having the legality of the Governor’s 17 behavior settled.” (Doc. 138 at 11:26 to 11:28.) Thus, this litigation has conferred a 18 substantial benefit on an ascertainable class – the citizens of Arizona. In addition, because 19 a fee award against Governor Ducey in his official capacity could be paid out of the State 20 treasury, it would spread the costs of bringing this litigation proportionately among that 21 class. 22 III. The Court should award Mr. Pierce taxable costs. 23 As prevailing party, Mr. Pierce is entitled to be awarded his taxable costs. Fed. R. 24 Civ. P. 54(d)(1). As set out below, his total costs add up to $360.63. To the extent that 25 some of these costs might not regarded as taxable pursuant to 28 U.S.C. § 1920, they 26 should be awarded on the same common-benefit basis as attorney’s fees. See Mills, 396 27 U.S. at 392) (awarding attorney’s fees and other “litigation expenses”). 28 4 Case 2:16-cv-01538-NVW Document 140 Filed 10/07/19 Page 5 of 9 2 N. Central Avenue, Suite 2200 Phoenix, AZ 85004 Gordon & Rees Scully Mansukhani, LLP 1 IV. The Eleventh Amendment does not preclude awarding attorney’s fees. 2 The United States Supreme Court has long held that “the substantive protections of 3 the Eleventh Amendment do not prevent an award of attorney’s fees against [State] 4 officers in their official capacities.” Hutto v. Finney, 437 US 678, 691-92 (1978) (awarding 5 fees against state officers to compensate a plaintiff for bad faith litigation tactics, as 6 “ancillary to the federal court’s power to impose injunctive relief”). Hence, the Eleventh 7 Amendment does not bar making a fee award here against Governor Ducey in his official 8 capacity. 9 V. It is irrelevant that counsel provided pro bono representation. 10 Courts have long recognized that attorney’s fees can be awarded to counsel who 11 represent litigants on a pro bono basis – as happened here. See Cuellar v. Joyce, 603 F. 3d 12 1142, 1143 (9th Cir. 2010) (“The fact that Cuellar’s lawyers provided their services pro 13 bono does not make a fee award inappropriate.”); Dennis v. Chang, 611 F. 2d 1302. 1306, 14 n.11 (9th Cir. 1980) (“The award of fees to legal aid offices and other groups furnishing 15 pro bono publico representation promotes the enforcement of the underlying statutes as 16 much as an award to privately retained counsel.”). Hence, Mr. Pierce is entitled to the 17 same fee award that would be made if he had paid for legal representation. 18 VI. The fees requested are reasonable. 19 Undersigned counsel personally reviewed all billing entries, which were entered 20 into a computerized billing database contemporaneously with the provision of services. 21 (Jacob Declaration (“Jacob”), at ¶¶ 3-4, filed concurrently.) 22 No attorney’s fees invoices were prepared in this matter because, under the terms 23 of the engagement, counsel provided his services pro bono but with an agreement that he 24 would seek a fee award if Mr. Pierce was the prevailing party. (Jacob, at ¶ 5.) 25 Guidelines for determining the amount of reasonable attorney’s fees are stated in 26 Schweiger v. China Doll Restaurant, Inc., 138 Ariz. 183, 673 P.2d 927 (App. 1983) and 27 Arizona Rule of Professional Conduct E.R. 1.5. Under China Doll, “[t]he beginning point 28 in a development of a reasonable fee is the determination of the actual billing rate which 5 Case 2:16-cv-01538-NVW Document 140 Filed 10/07/19 Page 6 of 9 1 the lawyer charged in the particular matter.” China Doll, 138 Ariz. at 187, 673 P.2d at 2 931. But, because there is no fee-paying client here, there were no charges and there should 3 be no presumption that the hourly rate used in this application – $350 – is reasonable. 4 Arizona E.R. 1.5, however, provides guidelines for a court to consider when 5 determining if an hourly rate is reasonable. These guidelines consider a number of factors 6 as follows: 7 a. involved, and the skills requisite to perform the legal service properly; 8 9 b. 2 N. Central Avenue, Suite 2200 Phoenix, AZ 85004 The likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; 10 Gordon & Rees Scully Mansukhani, LLP The time and labor required, the novelty and difficulty of the questions 11 c. The fee customarily charged in the locality for similar legal services; 12 d. The amount involved and the results obtained; 13 e. The time limitations imposed; 14 f. The nature and length of the professional relationship with the client; 15 g. The experience, reputation and ability of the attorney performing the services; and 16 17 h. Whether the fee is fixed or contingent. 18 This matter involved an esoteric area of law requiring considerable research and 19 analysis. Mr. Pierce was opposed by multiple counsel including a former Solicitor general 20 of the United States, who appeared to have substantial resources at their disposal. Despite 21 such opposition, Mr. Pierce was able to prevail. In so doing, undersigned counsel 22 expended a modest amount of time given the number of motions that were filed and the 23 number of issues that were contested. Consequently, an hourly rate of $350 is very 24 reasonable. 25 Undersigned counsel was the only timekeeper who worked on this matter. (Jacob, 26 at ¶ 8.) Thus, there was no potential for duplication of effort. I was also responsible for 27 editing his time in this matter. (Jacob, at ¶ 9.) In so doing, I exercised billing discretion in 28 several respects. For example, if I spent more time on a task than was necessary, or if a 6 Case 2:16-cv-01538-NVW Document 140 Filed 10/07/19 Page 7 of 9 1 task did not result in useful work-product for the case, I reduced or eliminated the time 2 entry. (Jacob, at ¶ 10.) 3 China Doll suggests that a brief recitation of undersigned counsel’s experience is 4 necessary. I have practiced law in Arizona since 2004, after spending a year clerking for 5 Judge Barry Silverman on the Ninth Circuit Court of Appeals. (Jacob, at ¶ 11.) My practice 6 has almost entirely involved commercial litigation with an emphasis on appeals. (Jacob, 7 at ¶ 12.) My time standard billing rate in similar matters is $350 per hour. (Jacob, at ¶ 13.) 8 In my experience, an hourly rate of $350 is consistent with the fees customarily 9 charged in Phoenix, Arizona, by attorneys with my experience for similar legal services at 2 N. Central Avenue, Suite 2200 Phoenix, AZ 85004 Gordon & Rees Scully Mansukhani, LLP 10 the times incurred. (Jacob, at ¶ 14.) 11 The time expended and hourly rate charged here are also reasonable in light of the 12 length and nature of this litigation, which began in 2016 and included the following tasks: 13 a. Researching the underlying subject matter and body of law. 14 b. Drafting the Second Amended Complaint and motion for leave to file same. 15 16 c. Supervising service on Defendants. 17 d. Responding to Defendants’ efforts at discovery. 18 e. Drafting an Application for Injunctive Relief with associated statement of fact, exhibits, and declarations. 19 20 f. Responding to Defendants’ motion to dismiss. 21 g. Responding to several requests to file amicus briefs. 22 h. Participation in hearing on the merits of substantive motions where in opposing counsel was former United States Solicitor General. 23 24 i. Drafting notices of supplemental authority. 25 j. Drafting a motion for entry of final judgment after Defendant asserted that the action was mooted. 26 27 k. Engaging in settlement negotiations with opposing counsel. 28 l. Drafting this application for costs and fees. 7 Case 2:16-cv-01538-NVW Document 140 Filed 10/07/19 Page 8 of 9 1 2 The fees requested do not include any charges for using services such as Westlaw 3 or Lexis because undersigned counsel exclusively used free web services such as Google 4 and Google Scholar for research. (Jacob, at ¶ 16.) In so doing, I avoided substantial 5 expenses that could have been included in this fee application. See Ahwatukee Custom 6 Estates Mgmt. Ass’n v. Bach, 193 Ariz. 401, 973 P.2d 106, ¶10 (1999). 7 The fees here also do not include any time for travel. (Jacob, at ¶ 17.) 8 Lastly, I did not include any fees in this application for which I am seeking or may 9 10 11 2 N. Central Avenue, Suite 2200 Phoenix, AZ 85004 Gordon & Rees Scully Mansukhani, LLP (Jacob, at ¶ 15.) 12 seek a fee award in the related State court action. (Jacob, at ¶ 18.) The total amount of reasonable attorneys’ fee herein requested is $45,045.00. (Jacob, at ¶ 19.) The costs incurred were $360.63, which are broken down in the following categories: 13 a. Filing Fees: $0.00 14 b. Copies and messenger fees to deliver copies to chambers and clerk: $123.63. 15 16 b. Transcripts: $0.00 17 c. Process server fees: $237.00. 18 (Jacob, at ¶ 20.) 19 The total of Plaintiff’s attorneys’ fees and costs is $45,405.63. (Jacob, at ¶ 21.) 20 Undersigned counsel believes that these fees and taxable costs are reasonable for 21 the reasons explained above. (Jacob, at ¶ 22) 22 VII. Conclusion 23 Plaintiff Michael Pierce respectfully asks the Court to enter an award in his favor 24 and against Defendant for fees and costs totaling $45,405.63, incurring post-judgment 25 interest at the statutory rate set by 28 U.S.C. § 1961 until paid. 26 RESPECTFULLY SUBMITTED this 7th day of October 2019. 27 28 8 Case 2:16-cv-01538-NVW Document 140 Filed 10/07/19 Page 9 of 9 GORDON REES SCULLY MANSUKHANI, LLP 1 2 By: s/ Andrew S. Jacob Andrew S. Jacob 2 North Central Avenue, Suite 2200 Phoenix, AZ 85004 Attorneys for Plaintiff 3 4 5 CERTIFICATE OF SERVICE 6 7 8 9 11 2 N. Central Avenue, Suite 2200 Phoenix, AZ 85004 Gordon & Rees Scully Mansukhani, LLP 10 12 13 14 I hereby certify that on October 7, 2019, I electronically transmitted the foregoing Application for Award of Taxable and Non-Taxable Costs and Reasonable Attorney’s Fees with the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Dominic E. Draye Keith J. Miller Joseph LaRue Arizona Attorney General Office Dominic.Draye@azag.gov Keith.Miller@azag.gov Joseph.LaRue@azag.gov Attorneys for the State of Arizona 17 Timothy Berg Emily Ward Bret Gilmoren FENNEMORE CRAIG, P.C. tberg@fclaw.com eward@fclaw.com bgilmore@fclaw.com 18 and 19 Anni Lori Foster OFFICE OF GOVERNOR DOUGLAS A. DUCEY afoster@az.gov and 15 16 20 21 22 23 24 25 26 27 Theodore B. Olson Matthew D. McGill GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036-5306 tolson@gibsondunn.com mmcgill@gibsondunn.com Attorneys for Defendant Governor Douglas A. Ducey s/ Angelina Chavez 28 9