[00:00:03] Speaker 00: Case number 14-5151, State of Texas appellant versus United States of America at L. Mr. Frederick for the appellant, Mr. Smith for the appellees. [00:00:17] Speaker 01: Good morning. [00:00:17] Speaker 04: Good morning. [00:00:19] Speaker 04: May it please the Court. [00:00:21] Speaker 04: The interveners are not prevailing parties because they did not win this lawsuit. [00:00:27] Speaker 04: The only favorable judicial order they obtained in this case was vacated by the Supreme Court on appeal, and the District Court's order was illegitimate in the first place because it was based on an unconstitutional pre-clearance regime. [00:00:40] Speaker 04: Even if they could qualify as prevailing parties, which they cannot, the special circumstances of this case would make any award of fees unjust. [00:00:49] Speaker 04: I want to start with an issue that appears in the appellee's briefs, and that's the question of timing. [00:00:57] Speaker 04: When did the orders come down? [00:00:58] Speaker 04: When were the new maps enacted? [00:01:00] Speaker 04: That issue is a distraction. [00:01:04] Speaker 04: The question of when and how a case becomes moot on appeal is relevant under Munson Ware and Bancorp to determine whether vacator is justified. [00:01:15] Speaker 04: We're already past that point here because the Supreme Court vacated the District Court's opinion. [00:01:21] Speaker 04: They did so despite the intervener's argument that it was not moot and that they should leave the District Court's order in [00:01:28] Speaker 01: So they didn't vacate it vacated as moot under Munsingware. [00:01:32] Speaker 01: They vacated it for reconsideration in light of Shelby County and the legislative development. [00:01:39] Speaker 01: So that's very different from a Munsingware vacature by the Supreme Court. [00:01:44] Speaker 04: That's true. [00:01:45] Speaker 04: However, in this case, that weighs even more strongly against an award of fees because we expressly asked the court to vacate the lower court's judgment in light of Shelby County, not because of our newly enacted plans. [00:02:00] Speaker 04: The other side argued that our plans made the appeal moot, but that's not what the Supreme Court did. [00:02:05] Speaker 01: Right. [00:02:05] Speaker 01: The Supreme Court sent it back to the three-judge court to figure out whether it was moot, and if so, on what basis. [00:02:15] Speaker 01: Do you dispute that? [00:02:18] Speaker 04: All we know from the Supreme Court's order is that they vacated it and they remanded for further consideration in light of Shelby County and the suggestion of moodiness by the interviewers. [00:02:28] Speaker 04: But the act of granting vacator is the critical fact because Bancorp says that vacator is an extraordinary remedy. [00:02:37] Speaker 04: And by granting vacator, as requested by Texas, the Supreme Court made a determination that we were equitably entitled to that relief against the District Court's order. [00:02:46] Speaker 01: Well, the Supreme Court many, many times in a term will grant vacate and remand for reconsideration in light of a decision that they issue or in light of some submission by the parties. [00:03:00] Speaker 01: But it's pretty well settled that that does not mean that they thought the lower court was wrong, that the lower court is actually bound by whatever they say to reconsider, and they have to reconsider, but it doesn't dictate the outcome of that proceeding. [00:03:15] Speaker 01: And so it was very much a determination here [00:03:18] Speaker 01: not that it was mooted under Shelby County as of the date of that order or as of the date of Shelby County, but that it was remanded for the three-judge court to sort of sort out what happened when. [00:03:31] Speaker 04: I would disagree with that because they vacated the order, period. [00:03:36] Speaker 04: And that leaves us in the position we're in. [00:03:38] Speaker 04: Under Buchanan, they have no judgment in their favor. [00:03:42] Speaker 04: And even if the now vacated judgment could satisfy that first element of the Buchanan test for when a defendant seeks fees, they couldn't possibly satisfy the third element, which is a judicial pronouncement accompanied by judicial relief. [00:03:57] Speaker 04: the favorable. [00:03:58] Speaker 00: They got relief indeed isn't it their position that they got it's precisely the relief that they obtained that you know incited the Texas legislature to act and we have that the black police officer's case that has a very similar fact pattern where the case is mooted with a favorable final judgment in the [00:04:22] Speaker 00: in this case, defendant-intervenors favor, and the fact that it's mooted means we can't hypothesize what might have, would have happened thereafter, but they prevailed for purposes of Buchanan, and at least they would argue they're entitled to fees. [00:04:41] Speaker 04: Well, I don't disagree with that statement of what happened in the National Black Police Officer's case. [00:04:49] Speaker 04: But I don't think it's quite accurate to say that they were deemed prevailing under Buchanan, because that case was before Buchanan. [00:04:56] Speaker 04: Right. [00:04:57] Speaker 04: But this case, the only, to the extent the intervenors achieved any objective, [00:05:03] Speaker 04: They did so only because the legislature and the governor voluntarily acted. [00:05:08] Speaker 04: And as the district court... Well, no. [00:05:10] Speaker 00: They got a final judgment from the three-judge court, and then the legislature acted. [00:05:17] Speaker 00: So they did get a final... I mean, that's really pretty important under Buckhannon, that they got a final court-awarded ruling. [00:05:26] Speaker 04: They did, but it was vacated. [00:05:28] Speaker 04: And the reason that this is different from national black police officers is that first that was before Buchanan, but besides that, [00:05:37] Speaker 04: The plaintiffs in that case secured a favorable judgment and an injunction that required the defendants to change their behavior. [00:05:45] Speaker 04: That's not the case here. [00:05:46] Speaker 01: Well, that's because they were defendants, not plaintiffs. [00:05:50] Speaker 01: That's true. [00:05:50] Speaker 01: In this litigation, they got the defense that they wanted. [00:05:53] Speaker 01: They denied Texas what it wanted. [00:05:55] Speaker 01: That's true. [00:05:56] Speaker 01: So it can't be that you have to have relief in that form when you're intervening as a defendant. [00:06:02] Speaker 04: Perhaps not, but in this case, [00:06:05] Speaker 00: that highlights how different they are from the plaintiffs in national black police because... Let me ask you, Mr. Ferrer, do you think anything about Buckhannon affects the presidential weight of our national black police officer's case on its own terms? [00:06:23] Speaker 00: In other words, would national black police officers come out any differently post-Buckhannon? [00:06:31] Speaker 04: I think it might, but it doesn't have to. [00:06:34] Speaker 04: And this court does not have to decide that question. [00:06:37] Speaker 00: No, but when you say it might, what are you thinking? [00:06:40] Speaker 04: Well, the court just didn't have occasion to consider Buchanan in that case. [00:06:44] Speaker 00: Right, but you don't have any particular conflict or tension in mind. [00:06:50] Speaker 04: The fact that the judgment was vacated, I think, is a significant development that before Buchanan did not have to be confronted. [00:06:58] Speaker 04: But here, we have to deal with it. [00:07:01] Speaker 01: Can I actually question that? [00:07:04] Speaker 01: Do we have to deal with it? [00:07:05] Speaker 01: Because your filing in district court did not argue that they were not a prevailing party on any of the grounds we've been talking about. [00:07:12] Speaker 01: You simply said that Shelby County, as of the moment of its issuance, made you a prevailing party, or made them that prevailing party, made you the one that prevailed, and constitutionally barred an award of fees. [00:07:27] Speaker 04: Well, we absolutely argue that they are not private parties. [00:07:30] Speaker 01: That's actually all you are. [00:07:31] Speaker 04: Based on Shelby County. [00:07:32] Speaker 04: But you had argued that they're not private. [00:07:34] Speaker 02: Absolutely, yes. [00:07:35] Speaker 02: And we do have authority that says we review decisions, not necessarily arguments. [00:07:39] Speaker 04: Absolutely. [00:07:40] Speaker 04: We did make that argument. [00:07:42] Speaker 04: And to get back to your point, the other distinction between this case and national black police officers, Texas had to prove a negative here. [00:07:50] Speaker 04: The defendants, the interveners, had to prove nothing. [00:07:53] Speaker 04: That makes this very different because they did not secure affirmative relief on the merits. [00:08:00] Speaker 04: All they did was preserve the status quo. [00:08:04] Speaker 00: But that's always the case for a defendant. [00:08:05] Speaker 00: Like in green, you know, we truncated the analysis for a prevailing defendant, you know, prevailing parties, warding something off as distinct from proving an affirmative right to relief. [00:08:15] Speaker 00: And that's, so that [00:08:18] Speaker 00: really just describes how the analysis would be different for a defending versus a plaintiff party. [00:08:26] Speaker 04: It is, but I think that that is a reason that the vacator based on Shelby County [00:08:33] Speaker 04: eliminates any basis for a fee award here because they did not hang on to their judgment. [00:08:37] Speaker 04: It was reversed. [00:08:39] Speaker 04: It was vacated in the Supreme Court because of Shelby County. [00:08:42] Speaker 04: That's exactly why we asked. [00:08:44] Speaker 01: So the only thing there, I'm sorry, go ahead and finish your time. [00:08:48] Speaker 04: The only thing they're left with is voluntary conduct by the state that was not required by any order issued by the district court. [00:08:56] Speaker 04: It was required by the automatic injunction with [00:08:59] Speaker 04: The status quo was preserved from the outset by the automatic injunction under Section 5. [00:09:04] Speaker 04: The district court's decision did not obligate the state to do anything. [00:09:08] Speaker 04: It was only voluntary action that gave them any relief. [00:09:12] Speaker 01: If I may... I just want to clarify one thing, and that is you do not, you have not in your brief, and so I take it you do not here challenge the district court's application of Rule 7B? [00:09:22] Speaker 01: You didn't do that at all in your opening brief, so that's waived? [00:09:26] Speaker 04: No, it's not waived, because the way that the... We don't challenge how she applied it, because the way she applied it was, I will consider the arguments Texas made and not consider the arguments that they don't. [00:09:37] Speaker 04: And we have no complaint about that. [00:09:40] Speaker 04: And I'll reserve the rest of my time. [00:09:52] Speaker 05: Did it please the court? [00:09:54] Speaker 05: The question of whether the defendant intervenes here or prevailing parties in this case is an interesting one. [00:10:00] Speaker 05: I think we have the better. [00:10:02] Speaker 03: You're an intervener on behalf of the defendant. [00:10:05] Speaker 03: Yes. [00:10:06] Speaker 03: The defendant never got a favorable judgment. [00:10:08] Speaker 03: The defendant did get a favorable judgment. [00:10:12] Speaker 03: How are you a prevailing party? [00:10:13] Speaker 05: The rule in the circuit under the National Black Police Officers Association is that if you get a favorable district court judgment, and then while the appeal is pending and while that judgment is still in full force in effect, the defendant moots the case by repealing the law at issue, then you are a prevailing party. [00:10:32] Speaker 05: That is the procedural posture that this case had. [00:10:35] Speaker 05: Admittedly, it's different because Shelby County came down the day before. [00:10:40] Speaker 03: The question and I understand that there are cases that say interminers can be prevented [00:10:55] Speaker 03: You could certainly say that the actions of the plaintiff caused the result. [00:11:02] Speaker 05: We did a tremendous amount, Your Honor. [00:11:04] Speaker 05: Indeed, there were whole claims in this case that the United States didn't even contest on which we prevailed. [00:11:09] Speaker 05: No, you never prevailed on anything. [00:11:11] Speaker 05: We did in the District Court. [00:11:12] Speaker 05: In the end, you never prevailed. [00:11:13] Speaker 05: Well, actually, the question of the prevailing party status is really, when was our prevailing party status determined? [00:11:20] Speaker 05: Is it locked in when they repeal it, or do we look at the subsequent events after the repeal? [00:11:25] Speaker 05: The point I want to make this morning, I think, to begin with, is that issue wasn't properly before this Court. [00:11:30] Speaker 05: The whole question of whether we were right or wrong about relying on national black police officers was waived twice. [00:11:35] Speaker 05: not just in the district court when they failed even to respond to that argument, and the district court relied entirely on Rule 7B, but then it was waived again in this court. [00:11:45] Speaker 05: You can look in their appellate brief and you find not a single reference to the fact that they lost on the basis of waiver. [00:11:51] Speaker 05: The word waiver doesn't appear in their brief. [00:11:53] Speaker 05: They do not refer to anything about the reasoning of the court about Rule 7B. [00:11:57] Speaker 05: They simply didn't appeal the decision of the district court on which they lost. [00:12:02] Speaker 00: It's difficult in this case, Mr. Smith, to put much stock in waiver, given the nature of the Shelby County decision. [00:12:15] Speaker 00: I don't take you to be arguing that had the litigation proceeded under Shelby County, you would have been able to have that case reversed or distinguish it, although I hesitate on distinguish it, you were arguing for bail-in obligations for pre-clearance. [00:12:34] Speaker 00: But the case could not have continued in DC on any kind of Section 2 or constitutional claims. [00:12:42] Speaker 05: Not on those claims, Your Honor. [00:12:43] Speaker 05: There might have been an argument at the time, and certainly people spend a great deal of time trying to figure this out, the day Shelby County came down and thereafter, about whether or not Shelby County in fact governed pending cases like this one involving conduct. [00:12:54] Speaker 05: from several years earlier. [00:12:56] Speaker 05: It says at the end that the coverage formula can no longer be used, and there was some question about that. [00:13:03] Speaker 05: We didn't end up litigating that issue here because they repealed the map, so it was irrelevant. [00:13:08] Speaker 05: There was a double mootness. [00:13:10] Speaker 00: But it matters, I think, to our fee jurisprudence that one of the premises, as I take it, of the National Black Police Officers' case and other mutinous cases are that it makes sense, as you put it, to freeze the prevailing party status as of the time of the conduct rendering. [00:13:29] Speaker 00: the case moot, because had your opposing party not rendered it moot, you would have lived to fight another day. [00:13:36] Speaker 00: But in a case in which there's sort of nothing more to fight about, that reasoning is weaker. [00:13:42] Speaker 00: So I'm interested in what it is that [00:13:46] Speaker 00: you could have done to defend that judgment had Texas not rendered it in light of Shelby County and the GDR. [00:13:56] Speaker 05: The issue would have been what doesn't apply to pending cases involving earlier conduct. [00:14:00] Speaker 05: This was a constitutional violation that was temporal. [00:14:02] Speaker 05: At some point in time, the coverage formula was too stale. [00:14:05] Speaker 05: The court did not tell us when. [00:14:07] Speaker 05: It turns out, I think, that most people have decided it was 2006, but that was far from obvious, and we could have made arguments about that, except they, they pretermitted all of that. [00:14:15] Speaker 05: They, they mooted the case based on repeal. [00:14:20] Speaker 01: How did Shelby County work? [00:14:22] Speaker 01: Did it instantaneously strip courts of power to adjudicate cases, or is it, like most constitutional claims, something subject to waiver? [00:14:31] Speaker 05: Well, it was subject to waiver in the sense that it is, in fact, true that they did not present a constitutional claim here. [00:14:37] Speaker 05: And Judge Collier asked them, do you want to present a constitutional claim? [00:14:40] Speaker 05: They said, can we come back next week and let you know? [00:14:42] Speaker 05: And they said, no, we're not going to amend our complaint to present a constitutional claim. [00:14:46] Speaker 05: But since they were the plaintiffs, [00:14:48] Speaker 05: They can still argue, I think, that the case, we don't have to pursue the case anymore because the statute's been facially held unconstitutional. [00:14:54] Speaker 05: But there was the second question then of does it in fact govern events in 2011? [00:14:59] Speaker 05: These maps were passed two years before Shelby County. [00:15:02] Speaker 05: There could have been an issue about that. [00:15:05] Speaker 05: And the fact that they hadn't preserved the claim might have been relevant to that as well. [00:15:09] Speaker 01: When did the San Antonio litigation conclude? [00:15:13] Speaker 05: When did it? [00:15:13] Speaker 01: When did it conclude? [00:15:14] Speaker 01: It's still going on, actually. [00:15:17] Speaker 01: So might they have wanted to... [00:15:21] Speaker 01: press forward or to have this thing mooted? [00:15:24] Speaker 01: Might there have been arguments about their desire to have the issue cleared up about whether these were valid lines to begin with just to help in the San Antonio litigation? [00:15:33] Speaker 05: Well, I think it's pretty clear the reason that they repealed these maps, snatched defeat from the Jaws of Victory the day after Shelby County is because they knew that once the Section 2 claims in San Antonio became right, [00:15:45] Speaker 05: Once the Section 5 claims, which was keeping those from being right, went away, that court had already pre-tried the case. [00:15:52] Speaker 05: And they were going to be held again to be intentional violators of the rights of African-Americans and Latinos. [00:15:57] Speaker 05: And if that happened, they knew they could then be subject to pre-clearance again under 3C. [00:16:01] Speaker 05: So the last thing they wanted to do was have these maps reviewed by that three-judge court in San Antonio. [00:16:08] Speaker 05: That's why they repealed the maps the day after Shelby County. [00:16:11] Speaker 05: Knowing that they had this great new law that had just been made by the Supreme Court, knowing that our judgment was still in effect, they went ahead and repealed it post-haste to preclude that kind of outcome in San Antonio. [00:16:23] Speaker 05: And they took the risk. [00:16:24] Speaker 05: That was their decision. [00:16:26] Speaker 05: The governor could have been told to wait till it's vacated. [00:16:29] Speaker 05: He didn't. [00:16:30] Speaker 00: Under your theory, isn't it the case that the Supreme Court actually didn't have jurisdiction to DVR the case because it had already been mooted by the action of the Texas legislature? [00:16:43] Speaker 05: I think that the court always has a jurisdiction to vacate something as moot, even after it's moot. [00:16:49] Speaker 05: That has to be something that courts can do. [00:16:50] Speaker 05: I think there's actually quite a bit of law on that. [00:16:52] Speaker 05: They were allowed to send it back to vacate it and say, make sure it's moot. [00:16:56] Speaker 05: And if it's moot, vacate it for sure down in the lower court. [00:16:59] Speaker 05: I don't think there's anything really problematic. [00:17:01] Speaker 00: So vacate and then tell them to vacate for sure. [00:17:03] Speaker 00: So there's this kind of rough draft provisional quality of the GPR. [00:17:07] Speaker 05: Well, that's sort of what it was. [00:17:08] Speaker 05: It was a GVR, except that it's not a G, since it's an appeal instead of a cert petition. [00:17:12] Speaker 05: But it's essentially the same thing. [00:17:13] Speaker 01: But when they vacate a smoot, if they decide it's smoot, they say, they revend with instructions to dismiss a smoot. [00:17:21] Speaker 01: Right. [00:17:21] Speaker 05: That's a fairly common thing that's discussed, actually, in the Lewis case, which Judge Collier cited. [00:17:25] Speaker 05: There's a whole distinction that they draw between the two kinds of vacatur. [00:17:27] Speaker 05: And this is clearly the kind that said, we don't know how Shelby County applies. [00:17:31] Speaker 05: We don't know whether the repeal boots everything, but we'll send it back for you to figure that out. [00:17:35] Speaker 01: And can I ask, did you seek attorney's fees under 1988 as well as the Voting Rights Act? [00:17:40] Speaker 05: We've cited both of them, but I'm pretty sure that the 1973 C is the correct provision. [00:17:45] Speaker 05: I think they're viewed as fungible, frankly, and most of the time in Section 5 cases people cite both. [00:17:50] Speaker 01: Well, I ask because in addition to the preclearance determination, the three-judge court found intentional [00:17:57] Speaker 01: discrimination in this case. [00:18:01] Speaker 05: It did only under Section 5, though, Your Honor. [00:18:03] Speaker 05: It didn't have jurisdiction to adjudicate any other issue. [00:18:06] Speaker 05: And the burden of proof was on the state of Texas. [00:18:08] Speaker 05: So I don't think you can treat that as anything other than a Section 5 ruling up here, which is why those issues are being, they were afraid those issues were going to be relitigated in Stanter down in the San Antonio, because the evidence was already in. [00:18:19] Speaker 05: And the evidence was pretty compelling about intent, frankly, in this case. [00:18:22] Speaker 01: Well, what I was going to ask is how, when you have [00:18:25] Speaker 01: and because it's a different burden of proof and everything too, but when you have such an intentional determination in a pre-clearance proceeding, does it have any collateral estoppel effect in a Section 2 case? [00:18:40] Speaker 01: Because it's a different burden of proof, so maybe not. [00:18:41] Speaker 01: I'm just trying to figure out whether it would if that was part of [00:18:45] Speaker 05: I'm not entirely sure what anybody's made such an argument in San Antonio, but I don't think it would work that way. [00:18:50] Speaker 00: I mean the way they relied on it in San Antonio was to say if there was a, I can't remember the formulation, but you know a reasonable chance of success in section five [00:19:02] Speaker 00: Pre-clearance, they would grant... Intro maps that were drawn while this case was still pending, sure, absolutely. [00:19:08] Speaker 00: In the Section 2 case. [00:19:10] Speaker 00: Right. [00:19:10] Speaker 00: And in fact, fees were denied by the Fifth Circuit in the San Antonio case because most of the work on that was done in [00:19:19] Speaker 00: this case in the DC? [00:19:21] Speaker 05: Yes, and because what the court reasoned, and I think this was incorrect, was that all we got was these interim decisions about interim maps pending this case, and that wasn't enough of a merits decision. [00:19:32] Speaker 05: That's what the Fifth Circuit's reasoning was, which was kind of odd, because that's all you could get from the San Antonio case. [00:19:37] Speaker 05: At the time, we got those... And then it was moated. [00:19:40] Speaker 05: And then it was moated with the same repeals. [00:19:44] Speaker 00: Right, so at least under our precedent, had the Fifth Circuit followed it, it would seem that they should have awarded peace. [00:19:50] Speaker 05: Right, well, certainly, even aside from what the Fifth Circuit, here we got a final merits judgment. [00:19:55] Speaker 05: They then didn't even appeal the waiver decision of the District Court. [00:20:00] Speaker 05: It seems to me the [00:20:02] Speaker 05: The remarkable sort of failure to play by the rules in this case is not just that what they did with Judge Collier, giving her this advisory that didn't even make the argument, but then to not even acknowledge that that's how she ruled in their first brief makes this a case where these are really interesting and complicated and vexing issues, but they really don't need to be addressed. [00:20:24] Speaker 05: You should just say, look, they waived this claim twice. [00:20:27] Speaker 05: It's not just the waiver in the district court about failure to respond on national black police officers, but when you have a waiver decision, and Judge Collier was very clear, she was waiving it. [00:20:37] Speaker 00: What are you referring to, the waiver in San Antonio? [00:20:40] Speaker 05: No, no, no, two waivers, one in the district court here, one in this court by failure to appeal the decision of Judge Collier. [00:20:49] Speaker 05: The fact that they filed an appeal and then filed in their brief, all they talk about is the merits of the prevailing party issue without even acknowledging that Judge Collier didn't reach those merits. [00:20:59] Speaker 05: She relied on 7b. [00:21:00] Speaker 05: It seems to me that that's all you need to know. [00:21:03] Speaker 05: This court has never reversed the 7b ruling of a district court in a case involving represented parties in the district court. [00:21:10] Speaker 05: You honor those decisions because it's an important rule [00:21:13] Speaker 05: one that the court needs to let the district courts enforce. [00:21:17] Speaker 05: And here, the impertinence, frankly, of the state of Texas was rather quite remarkable to the district court, and then again to this court. [00:21:24] Speaker 05: They couldn't even give you a response on, I mean, an argument on 7b, and it's not in their statement of issues, it's not in their description of the events in the district court, it's not in their argument, it's simply not there. [00:21:37] Speaker 05: I just wanted to mention, Your Honor, before I sit down. [00:21:40] Speaker 05: Council mentioned something about special circumstances as an additional argument that he wanted to make if he got to it beyond the prevailing party issue. [00:21:48] Speaker 05: Judge Collier was very clear that any argument based on special circumstances had been waived by the district court. [00:21:54] Speaker 05: That's on page 833 of the joint appendix. [00:21:57] Speaker 05: He says they didn't make any argument. [00:21:59] Speaker 05: They conceded that there are no special circumstances that would render an award of attorney's fees to the applicants unjust. [00:22:06] Speaker 05: The extent that there was some effort to raise special circumstances in this case, that's been waived as well. [00:22:13] Speaker 05: Thank you, Your Honor. [00:22:15] Speaker 01: How much time does Mr. Frederick have? [00:22:20] Speaker 01: We'll round up and give you a couple minutes. [00:22:22] Speaker 03: Thank you. [00:22:26] Speaker 03: The waiver question, I'm sorry. [00:22:29] Speaker 04: Yes, Your Honor. [00:22:31] Speaker 04: We did not waive the special circumstances issued because we... When did you respond to the motion for the plea for a third thing? [00:22:39] Speaker 04: We filed what was called an advisory that said... Have you ever heard that triggered as a pleading? [00:22:46] Speaker 03: Yeah, I've never seen an advisory. [00:22:48] Speaker 04: Not before this case, your honor, but but in this case in this case and in San Antonio, I had never seen it before, but they were all over the place. [00:22:58] Speaker 04: So it was new to me. [00:23:00] Speaker 04: But by the time we filed this, it was no longer new. [00:23:04] Speaker 03: But you didn't file a response as such to the plea or the motion for peace, right? [00:23:09] Speaker 03: Well, we responded on the merits. [00:23:11] Speaker 03: Yes, right. [00:23:15] Speaker 04: I think it did raise most of what we're arguing today because only because most of what we're arguing... Yes, we said they are not prevailing parties and they cannot be under... I know you said Texas is the prevailing party. [00:23:33] Speaker 01: That's what the advisor says. [00:23:35] Speaker 04: Okay, well I think by negative inference that would mean that they are not the prevailing party. [00:23:41] Speaker 04: I think that was the point of saying that. [00:23:44] Speaker 01: I think you meant that Texas was a prevailing party as of that day, but didn't sort of engage in any of the sophisticated, I mean, you essentially just didn't treat it as a sophisticated or complicated question, and you abandoned all those arguments about, if you don't just get an outright win by the mere fact of Shelby County's decision, it seems like, to me at least, everything else was waived. [00:24:05] Speaker 04: Two responses. [00:24:06] Speaker 04: One, on special circumstances. [00:24:07] Speaker 04: I think this goes directly to that, because we argued the most special circumstance imaginable. [00:24:13] Speaker 04: That is a constitutional invalidation of the law that required us to sue in the first place. [00:24:18] Speaker 04: Second, I'm not sure that it's good for them to rely on waiver, because they waived the mootness based on legislative repeal, JA 418. [00:24:27] Speaker 04: They say it's not moot. [00:24:29] Speaker 04: And waiver can't help Gonzales and NAACP interveners because Gonzales relied on the catalyst theory in the district court and the NAACP never cited Buchanan. [00:24:40] Speaker 04: So if we're going to hold everyone strictly to waiver, then that should cut the fee award in half. [00:24:46] Speaker 01: We've cited Buchanan post, I'm sorry, we cited the National Black Police Officers Association and applied its holding post Buchanan. [00:24:55] Speaker 01: So Buchanan doesn't change that holding. [00:24:59] Speaker 04: The reason that doesn't apply is because the order vacating the judgment on appeal in that case did not call into question the merits of the underlying decision. [00:25:09] Speaker 04: And here it did. [00:25:11] Speaker 04: And that's why the fact that they once had a judgment does not weigh into prevailing party status. [00:25:22] Speaker 01: Thank you. [00:25:22] Speaker 01: The case is submitted.