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Bone Shirt v. Hazeltine: VOTE - no expert fees retroactively under Voting Rights Act for redistricting win

United States Court of Appeals
No. 07-2145
Alfred Bone Shirt; Belva Black Lance; *
Bonni High Bull; Germaine Moves *
Camp, *
Appellants, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Joyce Hazeltine, in her official capacity *
as Secretary of State of the State of * [PUBLISHED]
South Dakota; Scott Eccarius, in his *
official capacity as Speaker of the *
South Dakota House of *
Representatives; South Dakota House *
of Representatives; Arnold Brown, in *
his official capacity as President of the *
South Dakota Senate; South Dakota *
Senate, *
Appellees. *
Submitted: April 23, 2008
Filed: May 5, 2008
Before BYE, SMITH, and BENTON, Circuit Judges.
1The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.
Alfred Bone Shirt, Belva Black Lance, Bonni High Bull, and Germaine Moves
Camp (plaintiffs) challenge the district courts1 order denying their motion for
expert witness fees under section 6 of the Fannie Lou Hamer, Rosa Parks, and
Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006,
42 U.S.C. 1973l(e) (the VRARA). We affirm.
In November 2001, the South Dakota legislature enacted a statewide legislative
redistricting plan. Thereafter plaintiffs filed suit, alleging that the redistricting plan
violated the Voting Rights Act of 1965. Plaintiffs prevailed in the district court, and
defendants appealed.
While the appeal was pending, President Bush signed the VRARA into law.
Section 6 of the VRARA amended the Voting Rights Act of 1965 to allow a
prevailing party to recover reasonable expert fees. This court subsequently affirmed
the district courts decision, see Bone Shirt v. Hazeltine, 461 F.3d 1011, 1024 (8th Cir.
2006), and granted plaintiffs motion to remand the case for an award of attorneys
fees and expenses. On remand, the parties stipulated that the amount of requested
expert fees (,261.80) was reasonable, but disputed whether expert fees were
recoverable. Plaintiffs then filed a motion in the district court seeking recovery of
expert fees pursuant to section 6 of the VRARA.
The district court denied the motion, applying the analytical framework
described in Martin v. Hadix, 527 U.S. 343 (1999), and Landgraf v. USI Film Prods.,
511 U.S. 244 (1994). Specifically, the court concluded that Congress had not
expressly delineated the temporal reach of section 6, and that an award of expert fees
under the new statute would have an impermissible retroactive effect. The court
explained that because the expert fees were incurred prior to the VRARAs passage
when such fees were not recoverable in Voting Rights Act cases, applying the statute
would upset the parties reasonable expectations and would create new legal
consequences for services that were provided before the adoption of section 6. The
court rejected plaintiffs reliance on Bradley v. Sch. Bd. of Richmond, 416 U.S. 696,
706-11, 724 (1974) (statute allowing award of reasonable attorneys fees in school
desegregation cases applied to case pending on appeal when statute was enacted). The
court reasoned that retroactive application of the statute in Bradley did not upset the
parties reasonable expectations, because attorneys fees were already available under
alternative theories and the district court had, in fact, awarded the fees based on those
On appeal, plaintiffs insist that Bradley controls because defendants knew or
should have known at the outset that they could have been required to pay expert fees
under any one of several possible theories, such as acting in bad faith. Alternatively,
plaintiffs assert that the Supreme Courts other decisions concerning retroactivity
especially those dealing with attorneys fees and litigation expenses support their
argument that application of section 6 would not have an impermissible retroactive
We review de novo the legal issues relating to fee awards. See Cody v. Hillard,
304 F.3d 767, 772 (8th Cir. 2002). Because plaintiffs do not challenge the district
courts conclusion that Congress did not expressly delineate the temporal reach of the
VRARA, our analysis is limited to determining whether application of the statutes
expert fees provision would have retroactive effect. See Gonzalez v. Chertoff, 454
F.3d 813, 816 (8th Cir. 2006) (when statute does not expressly address whether it
should apply retroactively, court must determine whether applying new statute would
have retroactive effect). If the statute would have retroactive effect, we presume it
does not govern. See Chertoff, 454 F.3d at 816; see also Landgraf, 511 U.S. at 270
(presumption against statutory retroactivity has consistently been explained by
reference to unfairness of imposing new burdens on persons after fact).
To begin, we disagree with plaintiffs assertion that Bradley controls the
outcome of this case. Retroactive application of the statute at issue in Bradley merely
confirmed that the district courts decision to award attorneys fees in that case was
legally correct, despite the lack of explicit statutory authorization for the award at the
time, and therefore did not result in a brand new fee award. See Martin, 527 U.S. at
359-60 (applying statute retroactively in Bradley did not result in manifest injustice
because fees were available under different principles prior to passage of statute and
district court had already awarded fees invoking these different principles). In this
case, however, there is no indication that plaintiffs sought to recover in the district
court, let alone were awarded, their expert fees under any of the alternative theories
that they describe on appeal.
We determine whether section 6 of the VRARA operates retroactively by
asking whether it attaches new legal consequences to events completed before its
enactment. Landgraf, 511 U.S. at 269-70. This inquiry demands common sense
judgment, and is to be guided by considerations of fair notice, reasonable reliance, and
settled expectations. See Martin, 527 U.S. at 357-58; Landgraf, 511 U.S. at 270. As
the district court noted, expert witness fees were generally not recoverable in Voting
Rights Act cases prior to the VRARAs passage. See Emery v. Hunt, 272 F.3d 1042,
1048-49 (8th Cir. 2001) (affirming denial of reimbursement for paralegal tasks in
Voting Rights Act case, where district court believed plaintiffs were attempting to
obtain compensation for expert witness expenses by relabeling expert work as
paralegal work); Leroy v. City of Houston, 831 F.2d 576, 584 (5th Cir. 1987)
(reversing award of expert witness fees in excess of standard per diem and mileage
costs because Voting Rights Act did not specifically allow recovery of expert witness
fees). Applying section 6 in this case and awarding plaintiffs their expert witness fees,
which were incurred before the VRARA was enacted, would attach new legal
consequences to events completed before its enactment. Landgraf, 511 U.S. at 269-
70. Although other courts have allowed the award of expert witness fees when the
district court determined that the losing party acted in bad faith, see, e.g., Simi Inv. Co.
v. Harris County, Tex., 236 F.3d 240, 256 n.22 (5th Cir. 2000) (district court may
award expert fees in excess of statutory authorization when losing party has acted in
bad faith), there is no indication that the district court made such a finding in this case.
This Court holds that applying section 6 of the VRARA would have retroactive
effect in this case, and thus in accordance with Supreme Court precedent, we presume
it does not govern.
The decision of the district court is affirmed.


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