     Case: 15-51241      Document: 00513957694         Page: 1    Date Filed: 04/18/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                FILED
                                                                             April 18, 2017
                                      No. 15-51241
                                                                             Lyle W. Cayce
                                                                                  Clerk
CLEOPATRA DELEON; NICOLE DIMETMAN; VICTOR HOLMES; MARK
PHARISS,

               Plaintiffs - Appellees

v.

GREG ABBOTT, in his official capacity as Governor of the State of Texas;
KEN PAXTON, in his official capacity as Texas Attorney General; JOHN
HELLERSTEDT, in his official capacity as Commissioner of the Texas
Department of State Health Services,

               Defendants - Appellants




                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CV-982


Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Cleopatra DeLeon, Nicole Dimetman, Victor Holmes, and Mark Phariss
were awarded $585,470.30 in attorneys’ fees and $20,202.90 in costs arising
from their successful challenge to Texas’s constitutional and statutory



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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provisions limiting marriage to opposite-sex couples. On appeal, Texas argues
that the fees and costs awarded are excessive and are composed of non-
compensable amounts. We find no abuse of discretion and AFFIRM.
                                       I.
       The plaintiffs were successful in obtaining a judgment invalidating
Article I, § 32 of the Texas Constitution and Texas Family Code §§ 2.001(b) and
6.204(b), which limited marriage in Texas to opposite-sex couples. Following
the Supreme Court’s decision in Obergefell v. Hodges, 135 S.Ct. 2584 (2015),
recognizing a constitutional right to same sex marriage, this court affirmed the
district court’s preliminary injunction and directed the judgment be entered in
plaintiffs’ favor.
       After judgment was entered, plaintiffs sought to recover their attorney’s
fees under 42 U.S.C. § 1988 and costs under Federal Rule of Civil Procedure
54.
                                       II.
       We review awards of attorney’s fees “for abuse of discretion, reviewing
factual findings for clear error and legal conclusions de novo.” Davis v. Abbott,
781 F.3d 207, 213 (5th Cir.), cert. denied, 136 S. Ct. 534 (2015).           The
reasonableness of attorney rates and hours expended are questions of fact
reviewed for clear error. La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324
(5th Cir. 1995). A district court abuses its discretion if its award is “based on
an erroneous view of the law or a clearly erroneous assessment of the
evidence.” Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th Cir. 1999)
(internal quotation marks omitted).
       As we have said before, “[w]e cannot overemphasize the concept that a
district court has broad discretion in determining the amount of a fee award.”
Associated Builders & Contractors of La., Inc. v. Orleans Par. Sch. Bd., 919


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                                  No. 15-51241

F.2d 374, 379 (5th Cir. 1990). Our deferential review is “‘appropriate in view
of the district court’s superior understanding of the litigation and the
desirability of avoiding frequent appellate review of what essentially are
factual matters.’” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983));
see also Cantu Servs., Inc. v. Frazier, et al., No. 16-31035, 2017 WL 1089508,
at *2 (5th Cir. Mar. 22, 2017) (“‘Due to the district court’s superior knowledge
of the facts and the desire to avoid appellate review of factual matters, the
district court has broad discretion in setting the appropriate award of
attorney[’s] fees.’”) (quoting Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993);
Hopwood v. Texas, 236 F.3d 256, 277 (5th Cir. 2000) (“Appellate courts have
only a limited opportunity to appreciate the complexity of trying any given case
and the level of professional skill needed to prosecute it.”). However, this
deferential review is appropriate only if the district court “‘provide[s] a concise
but clear explanation for its reasons for the fee award.’” Associated Builders,
919 F.2d at 379 (quoting Hensley, 461 U.S. at 437) (alteration in original).
      Under Federal Rule of Civil Procedure 54, a prevailing party may recover
its costs. See Fed. R. Civ. P. 54(d)(1); 28 U.S.C. § 1920 (delineating recoverable
costs). Moreover, under 42 U.S.C. § 1988, a prevailing party may also recover
“[a]ll reasonable out-of-pocket expenses, including charges for photocopying,
paralegal assistance, travel, and telephone . . . because they are part of the
costs normally charged to a fee-paying client.” Associated Builders, 919 F.2d at
380. The award and calculation of costs and expenses are committed to the
district court’s discretion, though expenses that “are extravagant or
unnecessary” must be disallowed. Curtis v. Bill Hanna Ford, Inc., 822 F.2d
549, 553 (5th Cir. 1987).




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                                        III.
      The district court’s order reflects that it carefully reviewed the plaintiffs’
claim for attorney’s fees and costs under the proper legal standards. It also
carefully considered the state’s many objections to the plaintiffs’ claimed fees
and costs. After considering those objections, the district court accepted a
substantial 35 percent reduction in the total hours expended to account for
non-compensable time and determined that the remaining hours were both
reasonable and reasonably expended. See Kellstrom, 50 F.3d at 324. We
recently reiterated that, “[i]n determining reasonable attorney’s fees, the
district court is not required ‘to achieve auditing perfection,’ as ‘[t]he essential
goal in shifting fees (to either party) is to do rough justice.’” Cantu, 2017 WL
1089508, at *4 (quoting Fox v. Vice, 563 U.S. 826, 838 (2011)) (second alteration
in original). Instead, “[d]istrict courts may ‘take into account their overall
sense of a suit, and may use estimates in calculating and allocating an
attorney’s time.’” Id. (quoting Fox, 563 U.S. at 838). As the Supreme Court has
warned, “trial courts need not, and indeed should not, become green-eyeshade
accountants.” Fox, 563 U.S. at 838.
      Here, we find that the district court acted well within its broad discretion
in making the appropriate reductions and reasonableness determinations. See
id. (“We can hardly think of a sphere of judicial decisionmaking in which
appellate micromanagement has less to recommend it.”).            In sum, after a
careful review of the record, we are satisfied that the district court acted well
within its discretion in its award of fees and costs.
      AFFIRMED.




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                                  No. 15-51241

JENNIFER WALKER ELROD, Circuit Judge, concurring in part and
dissenting in part:
      I agree that the bulk of the fee award should be affirmed. However, the
district court awarded fees for tasks that are not, in my view, compensable.
The majority opinion erroneously affirms the award for these non-compensable
tasks, and in so doing it ignores our precedent and creates at least one, and
arguably more, circuit splits. Because I would remand for the district court to
exclude fees based on non-compensable tasks, I respectfully dissent.
                                         I.
      Section 1988 authorizes district courts to award a “prevailing party” its
“reasonable attorney’s fee[s].” 42 U.S.C. § 1988(b). Plaintiffs sought recovery
for 1706.8 hours of attorney time. Though they voluntarily excluded roughly
35 percent of the time expended on the litigation, a portion of their fee request
was composed of time expended in relation to: (1) a failed motion to intervene;
(2) Plaintiffs’ counsels’ interactions with the media; and (3) Plaintiffs’ counsels’
interactions with amici. Despite Texas’s objections, the district court awarded
fees for all requested time. Simply put, Section 1988 does not authorize
recovery for any of these categories of tasks and they should have been
excluded.
                                        A.
      First, the district court awarded compensation for time expended in
relation to a failed third-party motion to intervene. The majority opinion
affirms this award, but violates our rule of orderliness by failing to follow, or
even address, our precedent prohibiting recovery for intervention-related time
and simultaneously creates a circuit split on this issue.
      In Hopwood v. Texas, 236 F.3d 256 (5th Cir. 2000), we considered the
prevailing plaintiffs’ argument that it was entitled to recover fees for time

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                                       No. 15-51241

expended opposing a motion to intervene. Id. at 280. In affirming the district
court’s exclusion of these fees, we noted that Texas (the defendant in that case)
had “remained neutral on the intervention issue,” and so it was not adverse to
the plaintiff on this issue. Id. Given this, we concluded that “the Plaintiffs did
not ‘prevail’ on [the intervention] issue vis-à-vis Texas.” Id. (“Plaintiffs elected
to oppose intervention and they were successful—but not against Texas: They
succeeded against the putative intervenors in a case instituted by Plaintiffs,
not by Texas.”). 1 Id. Of course, whether a plaintiff “prevails” is not simply a
factor relevant to the district court’s discretion; it is a statutory prerequisite to
obtaining a fee award. See 42 U.S.C. § 1988(b). And so, having concluded that
the plaintiffs were not “prevailing parties” on this issue, we affirmed the
district court’s exclusion.
       Hopwood prohibits awarding intervention-related fees in this case. As in
Hopwood, Texas took no position on the motion to intervene, and so Plaintiffs
did not “prevail on this issue vis-à-vis Texas.” Hopwood, 236 F.3d at 280. Thus,
the same basis for affirming the district court’s exclusion of such fees in
Hopwood—absence of prevailing-party status—prohibits an award of
intervention-related fees in this case. As was true in Hopwood, “[n]either logic
nor equity supports taxing Texas under these circumstances.” Id. This is all



       1 In Hopwood, we recognized that two other circuits have extended the Supreme
Court’s decision in Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754, 761
(1989)—holding that recovery of fees from an intervenor are not permitted unless the
intervention is frivolous, unreasonable, or without foundation—to prohibit “the award of fees
to prevailing plaintiffs from the pockets of losing defendants when the fees are based on
interventions by third-parties.” Hopwood, 236 F.3d at 280; see Rum Creek Coal Sales, Inc. v.
Caperton, 31 F.3d 169, 176–78 (4th Cir. 1994) (“Under the Supreme Court decision in Zipes,
we are required to hold that the intervention-related fees and expenses in question here are
not recoverable under 42 U.S.C. § 1988 by a prevailing plaintiff against a losing defendant.”);
Bigby v. City of Chicago, 927 F.3d 1426, 1428–29 (7th Cir. 1991). Hopwood did not reach this
issue. See 236 F.3d at 280.
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the more true here given that Plaintiffs have not argued that intervention-
related fees are recoverable. Despite this, the majority opinion affirms the
award with nary a mention of Hopwood. Cf. United States v. Fields, 777 F.3d
799, 807 (5th Cir. 2015) (“Under our rule of orderliness, one panel may not
overrule the decision of a prior panel absent an intervening change in the
law . . . .”).
       Not only does the majority opinion depart from our precedent, it creates
a split with at least one other circuit. In Rum Creek Coal Sales, Inc. v.
Caperton, 31 F.3d 169 (4th Cir. 1994), the Fourth Circuit considered a district
court’s exclusion of attorneys’ fees “incurred in opposing [a third-party’s]
intervention.” 2 Id. at 176. Affirming this exclusion, the Fourth Circuit held
that “intervention-related fees and expenses . . . are not recoverable . . . by a
prevailing plaintiff against a losing defendant.” Id. at 178. The majority
opinion is at odds with Rum Creek. Yet despite our normal hesitation to
contradict one of our sister circuits, the majority opinion does so without
explanation. See Home Port Rentals, Inc. v. Int’l Yachting Grp., Inc., 252 F.3d
399, 407 (5th Cir. 2001) (“Moreover, we are reluctant to create a circuit split
by holding differently . . . .”).
       Because our precedent prohibits recovery for these fees, I would reverse
the district court’s award for intervention-related time.
                                               B.
       Second, the district court awarded fees for time expended interacting
with the media, and the majority opinion affirms. Because time spent
interacting with the media is not compensable under Section 1988, I would
hold that the district court abused its discretion.



       2   Rum Creek based its holding on its interpretation of Zipes. See 31 F.3d at 176–78.
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      It is well-established that § 1988 allows a prevailing party to recover
their reasonable attorneys’ fees, composed of a reasonable rate and “the
number of hours reasonably expended on the litigation.” Hensley v. Eckerhart,
461 U.S. 424, 433 (1983) (emphasis added). Though we have never expressly
disallowed fees for time spent interacting with the media, we have noted before
that we are “chary about granting requests for media fees,” Hopwood, 236 F.3d
at 280, and have affirmed exclusions of media-related time precisely because
time interacting with the media is not, in the mine-run of cases, “expended on
the litigation.” Hensley, 461 U.S. at 433; accord Watkins v. Fordice, 7 F.3d 453,
458 (5th Cir. 1993) (affirming district court exclusion of “time spent holding
press conferences”); Hopwood, 236 F.3d at 280.
      Our chariness in awarding fees for media-related activities is not unique.
Two of our sister circuits have disallowed fees for such tasks. In Davis v. San
Francisco, 976 F.2d 1536 (9th Cir. 1992), reh’g denied, vacated in part, and
remanded, 984 F.2d 345 (9th Cir. 1993), the Ninth Circuit held that time
expended on “press conferences and public relations” was compensable only
when it “is directly and intimately related to the successful representation of a
client.” Id. at 1545; see id. (media-related time compensable only when
prevailing   party   demonstrated     that   it   “contribute[d],   directly   and
substantially, to the attainment of [its] litigation goal”). Similarly, in Rum
Creek, the Fourth Circuit (though declining to adopt the Ninth Circuit’s rule)
concluded that “[t]he legitimate goals of litigation are almost always attained
in the courtroom, not in the media.” 31 F.3d at 176. And so the court disallowed
the media-related fees at issue there because they were not “aimed . . . at
achieving litigation goals.” Id.
      Under any standard, the awarding of media-related fees in this case is
improper: Plaintiffs have offered no explanation for how the media-related

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tasks included in the fee award were “directly and intimately related to [their]
successful representation,” Davis, 976 F.2d 1545, or were “aimed at achieving
[their] litigation goals.” Rum Creek, 31 F.3d at 176 (alteration omitted). I would
therefore hold that because Plaintiffs have failed to demonstrate how the
media-related time included in the fee award was “expended on the litigation”
Hensley, 461 U.S. at 433, they should not recover fees for that time. Accord
Watkins, 7 F.3d at 458 (affirming exclusion of media-related time where the
district court’s opinion stated that time spent on press conferences is not spent
on the litigation and where “[prevailing party] did not present any evidence
regarding the efficacy of the press conferences”).
       The Plaintiffs have not argued that media-related time is compensable;
in fact, they concede that it is not. Instead, they defend the district court’s
award of these fees because: (1) the media-related activities are a small portion
of the tasks included in the relevant entries; and (2) Plaintiffs excluded 35
percent of time expended from their fee request.
       Neither argument justifies affirmance. First, it may well be true that the
relevant time entries “contain much more detailed information on legal work
performed by the attorney(s) during that time”; but the fact that most of the
time is compensable is not a license to award non-compensable time as well,
even if a small amount. Second, it is irrelevant that Plaintiffs chose to exclude
numerous entries containing non-compensable time from their fee request. The
district court’s task is not only to ensure that “the total hours claimed are
reasonable,” but also that the “particular hours claimed were reasonably
expended.” La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 325 (5th Cir. 1995)
(emphasis added). 3 Non-compensable tasks do not somehow become


       3To the extent the majority opinion states that the district court reduced the fee
request by 35 percent, that assertion is inaccurate. As noted, it was Plaintiffs that chose to
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compensable simply because a plaintiff voluntarily elects to exclude
compensable, along with non-compensable, hours from its fee request. 4
                                              C.
       Finally, the district court included in its fee award time spent in
connection with supporting amici. Contrary to the majority opinion, I would
hold that a prevailing party may not recover fees for time expended soliciting
or coordinating with supporting amici, or reviewing amicus briefs before they
are filed.
       In Glassroth v. Moore, 347 F.3d 916 (11th Cir. 2003), the Eleventh
Circuit considered whether a party could recover under Section 1988 for work
done “in relation to a number of amicus briefs filed in support of plaintiffs’
position,” including time enlisting organizations to appear as amici, suggesting



withhold 35 percent of the fees incurred from their request. Despite this, the fact remains
that intervention-related, media-related, and amici-related time were included in the fee
request that was ultimately submitted to the district court. Neither the Plaintiffs nor the
district court deducted these improperly submitted items from the total fees awarded.
       4 The ability to assess the reasonableness of a fee request is greatly undermined by
the practice of billing multiple discrete tasks under a single time designation—so-called
“block-billing.” This practice was heavily utilized by Plaintiffs’ counsel in this case. We have
held that a party seeking an attorneys’ fee award must produce documentation that is
“sufficient for the court to verify that the applicant has met its burden of establishing an
entitlement to a specific award.” Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1044
(5th Cir. 2010); La. Power & Light Co., 50 F.3d at 325 (supporting documentation must be
“adequate to determine reasonable hours”). At first blush, block-billing appears to be in
tension with this standard, as district courts must not only assess whether the total amount
of time spent is reasonable, but also “whether the particular hours claimed were reasonably
expended.” La. Power & Light Co., 50 F.3d at 325 (emphasis added). Nevertheless, we have
stated that “failing to provide contemporaneous billing statements does not preclude an
award of fees per se, as long as the evidence produced is adequate to determine reasonable
hours.” Gagnon, 607 F.3d at 1044.
        The upshot of this jurisprudence is that litigants take their chances in submitting fee
requests containing block-billed entries and will have no cause to complain if a district court
reduces the amount requested on this basis. See, e.g., Welch v. Metro. Life Ins. Co., 480 F.3d
942, 948 (9th Cir. 2007) (“We do not quarrel with the district court’s authority to reduce hours
that are billed in block format.”); Lahiri v. Univ. Music & Video Dist. Corp., 606 F.3d 1216,
1223 (9th Cir. 2010) (affirming reduction of 30 percent for block-billed entries).
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potential signatories for the briefs, working on, supervising, and reviewing the
amicus briefs, and seeing that they were mailed on time. Id. at 918–19. The
Eleventh Circuit reasoned that because amici are not entitled to attorneys’ fees
as a “prevailing party,” it would not allow this result to be changed “by the
simple expedient of having counsel for a party do some or all of the amicus
work.” Id. Consequently, the court held that district courts “should not award
plaintiffs any attorney’s fees or expenses for work done in connection with
supporting amicus briefs.” Id.
       I agree with the approach taken by our sister circuit. Only prevailing
parties may recover under Section 1988, and amici are not parties. See 42
U.S.C. § 1988(b). To allow a party to recover for soliciting and coordinating
with amici would facilitate easy circumvention of this rule. 5 See Glassroth, 347
F.3d at 919; see also Bishop v. Smith, 112 F. Supp. 3d 1231, 1246 (N.D. Okla.
2015) (“[P]re-filing activities must be carefully scrutinized and are not
compensable if they constitute brainstorming potential amici, strategizing
regarding potential amici, coordinating potential amici, soliciting potential
amici, or drafting/editing an amicus brief.”). Accordingly, I would hold that
prevailing parties may not recover fees for time expended soliciting or
coordinating with supporting amici, or reviewing amicus briefs before they are
filed. This restriction ensures the integrity of Section 1988’s limitation, while



       5  Plaintiffs rely on two district court opinions from other jurisdictions which allowed
recovery under § 1988 for time spent soliciting and coordinating with amici. See EEOC v.
Freeman, 126 F. Supp. 3d 560, 577–78 (D. Md. 2015); Bourke v. Beshear, No. 3:13-cv-750,
2016 WL 164626, at *6 (W.D. Ky. Jan. 13, 2016) (allowing recovery for time expended “for
the solicitation of amicus briefs”). Other district court opinions have likewise permitted such
recovery. See Riter v. Moss & Bloomberg, Ltd., No. 96 C 2001, 2000 WL 1433867, at *5 (N.D.
Ill. Sept. 26, 2000) (allowing recovery for working with amici under fee-shifting provision in
15 U.S.C. § 1692k(a)(3)); Watson v. E.S. Sutton, Inc., No. 02 CV 2739, 2007 WL 2245432, at
*4 (S.D.N.Y. Aug. 3, 2007). None of these decisions are binding or persuasive.
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allowing for recovery in those instances where amici-related work is necessary
to the adequate representation of a client. 6
       The attorneys’ fee award in this case undoubtedly contains time that is
non-compensable under the Eleventh Circuit’s approach. The majority opinion,
however, offers no explanation for its affirmance of these fees, nor does it
attempt to justify the circuit split it creates with the Eleventh Circuit. 7
                                               II.
       I am no more interested in nickel and diming attorneys’ fee awards than
is the majority opinion. We defer to the district court in this context precisely
because it is better positioned to assess the reasonableness of a fee request and
to avoid converting requests for attorneys’ fees into “a second major litigation.”
Hensley, 461 U.S. at 437. For this reason, I agree that the bulk of the fee award
should be affirmed. But deference is not a blank check: where the district court


       6 For example, I agree that a prevailing party should be permitted to recover fees for
time spent reviewing and responding to opposing amicus briefs, a point the parties do not
dispute. See Glassroth, 347 F.3d at 919; see also Sharpe Holdings, Inc. v. U.S. Dep’t of Health
& Human Servs., No. 2:12-cv-92, 2015 WL 3773426, at *6 (E.D. Mo. June 17, 2015) (allowing
recovery for time spent responding to opposing amicus brief); North Dakota v. Heydinger, No.
11-cv-3232, 2016 WL 5661926, at *24 (D. Minn. Sept. 29, 2016) (“Plaintiffs are entitled to a
reasonable amount of fees for time spent responding to those opposing amicus briefs.”).
Unlike awarding fees for coordinating with supporting amici, awarding fees for responding
to opposing amici does not undermine Section 1988’s limitation that only prevailing parties
may recover their fees. The same is true as to time spent reviewing supporting amicus briefs
after they have been filed. See Bishop, 112 F.3d at 1246. “Supporting amicus briefs often raise
new arguments or policy considerations, and review may be necessary to prepare for oral
argument.” Id. at 1245. So, too, a prevailing party should be permitted to recover fees for time
spent in connection with amicus briefs required by federal rule or otherwise. For example,
Federal Rule of Appellate Procedure 29 provides that prospective amici may file a brief only
“by leave or court or if the brief states that all parties have consented to its filing.” Fed. R.
App. P. 29(a)(2).
       7 Under the federal rules, an amici must indicate whether “a party’s counsel authored
the brief in whole or in part.” Fed. R. App. P. 29(a). The vast majority, if not all, of supporting
amici indicated in their briefs that Plaintiffs’ counsel did not author any portion of their brief.
Nonetheless, Plaintiffs now seek recovery for time expended coordinating with supporting
amici.
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has awarded fees for non-compensable tasks, we should correct the error. The
majority opinion unfortunately declines to do so, and in the process it ignores
our binding precedent and generates at least one circuit split, and arguably
more—all without explanation. I respectfully dissent. 8




       8  Texas also challenged the award of pro hac vice fees as “costs” under Fed. R. Civ. P.
54 and 28 U.S.C. § 1920. We have not yet decided whether pro hac vice fees are recoverable.
See, e.g., Obey v. Frisco Medical Ctr. LLP, No. 4:13-cv-656, 2015 WL 1951581, at *2 (E.D. Tex.
Apr. 29, 2015). Moreover, some of our sister circuits are divided on this issue. Compare
Kalitta Air LLC v. Central Tex. Airbore Sys. Inc., 741 F.3d 955, 957–58 (9th Cir. 2013)
(holding that pro hac vice fees are not recoverable as costs), with Craftsman Limousine, Inc.
v. Ford Motor Co., 579 F.3d 894, 898 (10th Cir. 2009) (holding that pro hac vice fees are
recoverable as costs). I agree with Texas that pro hac vice fees are not recoverable as costs.
However, because Texas did not adequately brief this issue, I agree that the award should be
affirmed in this respect.
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