Johnson v. State of FL

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

No. 02-13499 October 29, 2003

________________________ THOMAS K. KAHN

CLERK

D. C. Docket No. 87-00369-CV-T-24

MILLER FRANK JOHNSON, LLOYD KOGER, et al.,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA,

Intervenor-Plaintiff-Appellee,

versus

STATE OF FLORIDA, et al.,

Intervenor-Defendants,

KATHLEEN KEARNEY, Secretary,

Department of Children and Families,

Intervenor-Defendant-Appellant.

________________________

No. 02-14670

________________________

D. C. Docket No. 87-00369-CV-T-24

MILLER FRANK JOHNSON, LLOYD KOGER, et al.,

Plaintiffs-Appellees,

UNITED STATES OF AMERICA

Intervenor-Plaintiff-Appellee,

versus

DICK BRADLEY, G. PIERCE WOOD MEMOR, et al.,

Defendants-Appellants,

STATE OF FLORIDA, JEB BUSH, Governor of

the State of Florida, et al.,

Intervenor-Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Middle District of Florida

_________________________

(October 29, 2003)

Before ANDERSON and COX, Circuit Judges, and NANGLE*, District Judge.

ANDERSON, Circuit Judge:

These consolidated cases arise out of litigation against the State of Florida

(“the State”) over conditions at a former state-run mental health facility, G. Pierce

Wood Memorial Hospital (“GPW”), which closed in February 2002. In the first

case, #02-13499 (“the Consent Decree case”), the State1 challenges the district

*

Honorable John F. Nangle, United States District Judge for the Eastern District of

Missouri, sitting by designation.

1

The principal named Defendant, Bradley, is the former Superintendent of GPW.

Because the suit is in substance one against the State of Florida, “the State” will be used to refer

2

court's refusal to lift all conditions of a Consent Decree under which GPW was

subject to court-supervised monitoring. The Consent Decree was entered to settle

litigation between a plaintiff class of patients and the State regarding conditions of

confinement, treatment and release at the hospital. In the second case, #02-14670

(“the attorney fee case”), the State challenges the district court's order refusing to

award attorneys' fees incurred in defending claims brought by the Justice

Department as Intervenor on behalf of the patients. The State won on all counts at

a bench trial, and claims it is statutorily entitled to attorney fees as the prevailing

party.

I. BACKGROUND

Until its closure, GPW was a state-run hospital for the mentally ill, at which

approximately 85 percent of the patients were involuntarily committed by court

order under a Florida statute known as the “Baker Act.” A group of patients at

GPW brought a class action in the Middle District of Florida in November 1987,

alleging that the State was violating their constitutional rights by providing

substandard care and housing, and by failing to release them when they were

“discharge ready.” Specifically, the complaint alleged that the State: (1) violated

their rights under the Fourteenth Amendment by failing to discharge them into less

to the Defendants in the aggregate.

3

restrictive settings; (2) denied them procedural due process in violation of the

Fourteenth Amendment by arbitrarily revoking privileges without formal standards

and with no opportunity for challenge; (3) abridged their First, Ninth and

Fourteenth Amendment rights by arbitrarily restricting visitation privileges; (4)

infringed their right to counsel in violation of the First, Fifth, Sixth and Fourteenth

Amendments by failing to provide legal assistance or an adequate law library, and

(5) violated their Fourteenth Amendment rights by providing inadequate medical

staffing, recreation, vocational training, security and nutrition.

The court certified a class of “all persons who are now or will in the future

be committed” to GPW, and a subclass of present and future patients “who have

been determined by their treatment team to be <discharge ready' for a period of 15

days or longer, but who have not been discharged.” Significantly, the court later

expanded the class to include “former patients at GPW even after they are

discharged into community treatment facilities.”

In June 1989, the parties entered into a Consent Decree, under which the

State agreed to make various changes in operations at GPW. A preamble to the

decree, entitled “Scope of Agreement,” stated that the decree was binding upon

“[d]efendants and their successors, agents, servants and employees.” The only

portion of the order at issue is the district court's refusal to terminate court

4

supervision as it relates to three paragraphs of the Consent Decree: ¶¶ 2, 35, and

37. In Paragraph 2, the State agreed to begin assigning clients to living units and

programs according to their individual functional levels and therapeutic needs. The

State further agreed that:

As community facilities become available ... this shall include

moving residents from (1) more to less structured living; (2) larger to

small living facilities; (3) group to individual residence; (4) segregated

from the community to integrated into community living; (5)

dependent to independent living, according to their needs and as more

specifically set forth in the Comprehensive Services Plan for the

Alcohol and Mental Health Program ... attached hereto and

incorporated by reference.

Id. at ¶ 2. Paragraph 35 requires the parties to agree on the selection of a monitor

to oversee compliance with the agreement, and Paragraph 37, which is similar to

Paragraph 2, deals with the state's obligation to evaluate when patients are

“discharge ready” and, subject to the availability of funding, to place them in

appropriate community settings.

The decree expressly provided that it was subject to court approval, and that

“[c]ompliance/non-compliance with this Agreement shall be determined by the

Court.” In other words, the parties clearly contemplated a continuing oversight

role for the court. The Consent Decree was filed with the district court as a

settlement agreement. After conducting a fairness hearing, the court approved the

5

decree by order of August 14, 1989, reserving jurisdiction to oversee its

implementation.

Because the State's obligations under the decree were somewhat general, the

parties agreed after several years of oversight by the monitor to develop criteria by

which the state's compliance could be measured. Accordingly, they entered into

two additional agreements (the “Exit Criteria”). There were two sets of Exit

Criteria – one governing the provision of legal services and one regarding the

adequacy and timeliness of placement in community treatment – but only the latter

is at issue here. The parties reduced their agreement to an “Exit Criteria

Stipulation,” which they agreed to submit to court approval. In the stipulation, the

parties agreed that the Exit Criteria would be “the sole and exclusive method for

assessing Defendants' performance and determining completion of his remaining

obligations and the termination under the consent decree except as otherwise

accepted by the parties and approved by the Monitors and the Court.” Among

other specifications, the stipulation provided that reports of the monitor evaluating

the State's compliance with the exit criteria would be appealable to the district

6

court and subject to de novo judicial review. Notably, the Exit Criteria purported

in several instances to modify obligations imposed by the Consent Decree.2

In December 1994, the State moved for the first time to withdraw from the

Exit Criteria. The State, evidently having concluded that it entered into an

unfavorable bargain, argued that the stipulation exceeded the scope of the case as

defined by the Complaint and the Consent Decree. It further argued that the

executive branch officials who entered into the Exit Criteria overstepped their

authority by purporting to bind legislative policymakers into the future. The

motion was summarily rejected and the Exit Criteria remained in force.

In June 1996, the Justice Department moved to intervene in the case on the

Plaintiffs' side under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. §

1997 et seq. (“CRIPA”). CRIPA empowers the Attorney General to bring or join

litigation seeking injunctive relief on behalf of persons confined in state or

municipal institutions, if there is reasonable cause to believe that the confinees are

being subjected to “egregious or flagrant conditions which deprive such persons of

any rights, privileges, or immunities secured or protected by the Constitution or

laws of the United States causing such persons to suffer grievous harm, and that

2

To cite but one example, one provision of the Exit Criteria, regarding the Defendants'

obligation to install an elevator, stated: “Delete consent decree requirement pursuant to

agreement of Plaintiffs and Office of the Monitor.”

7

such deprivation is pursuant to a pattern or practice (of violations).” See 42 U.S.C.

§ 1997(a). The DOJ Complaint accused the State of violating the Fourteenth

Amendment and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131

et seq., by failing to protect patients from harm, failing to provide the level of care

appropriate to meet the patients' liberty interests, and failing to ensure that each

patient was placed in the most appropriate setting for his needs.

The State denied all of the DOJ allegations, and the case went to a five-week

bench trial during August and September of 2000. At the start of the trial, the State

announced that it had decided to close GPW (although the State contends that its

intentions were known before the trial). However, because the parties had agreed

in the pretrial order to limit the evidence presented at trial to that developed before

September 30, 1999, the planned closure was not part of the record at trial. The

original class Plaintiffs actively participated in the trial and sought affirmative

relief beyond that provided under the Consent Decree.

Following the trial, the district court issued an opinion on June 28, 2001,

ruling for the State on all counts of the DOJ complaint. The court concluded that

as of September 30, 1999, the State was providing a constitutionally adequate level

of care under the standard set forth in Youngberg v. Romeo, 457 U.S. 307, 102

S.Ct. 2452 (1982). Youngberg recognized that patients involuntarily committed to

8

state custody enjoy a substantive due process right to “reasonable care and safety,

reasonably nonrestrictive confinement conditions, and such training as may be

required by these interests.” Id. at 324, 102 S.Ct. at 2462. To determine what is a

reasonable level of care, courts were instructed only to “make certain that

professional judgment in fact was exercised,” id. at 321, 102 S.Ct. at 2461, not to

second-guess the outcome of that judgment. Applying Youngberg, the district

court reviewed each category of services and conditions at GPW and found all of

them to comply with accepted standards of professional judgment. As to the

particular services at issue here, the court found that “[c]urrent and former GPW

patients are provided adequate community mental health services to meet their

assessed functional and clinical needs in an integrated setting that is appropriate to

those needs.” It further found that the State was “providing an appropriate array

and intensity of community services,” and that “all aspects of the defendants'

provision of community services comply with accepted professional standards of

care.”

As the prevailing party, the State moved for an award of attorney fees and

costs against the DOJ pursuant to CRIPA, 42 U.S.C. § 1997c(d). The request was

referred to a Magistrate Judge, who recommended granting the petition for

$351,139.45 in costs but denying the request for attorneys' fees on the grounds that

9

CRIPA did not mandate an award of fees to prevailing defendants. The district

court adopted the Magistrate's Report and Recommendation and denied attorney

fees. The State appealed, giving rise to Case No. 02-14670.

On July 20, 2001, the State filed a Supplemental Motion to Terminate

Consent Decree, based on the district court's findings after the DOJ trial that the

State was providing a constitutionally adequate level of care. Before that motion

could be decided, GPW officially closed as of February 11, 2002. The State

followed up on February 21, 2002, with a Supplemental Motion to terminate the

decree, arguing that closure of GPW mooted any outstanding issues. The district

court granted the State's motion to vacate in large part, but denied it as to three

provisions of the Consent Decree that are at issue here. In the Order, discussed in

detail in Section II.A., which follows, the court found that the State was not entitled

to relief from those provisions – which concern the placement of former patients in

community programs – because it had not shown that the violations of federal law

proscribed by the Consent Decree and Exit Criteria would not recur. The State

appealed, giving rise to Case No. 02-13499.

II. DECISIONS BELOW

A. The Consent Decree – Case # 02-13499

10

The district court heard argument on May 23, 2002, on the State's Motion to

Terminate Consent Decree and Exit Criteria Stipulation and its Supplemental

Motion to Terminate Consent Decree. The court did not take evidence at the

hearing. The court issued its order on June 3, 2002, granting in part and denying in

part the State's two motions.

The district court found that the parties were in agreement that closure of

GPW mooted most provisions of the Consent Decree and exit criteria regarding

conditions of hospitalization, and therefore granted the motions to vacate regarding

those provisions. The court then turned to the three provisions disputed here. The

court decided that the proper legal framework for analyzing a motion to vacate a

consent decree was set forth in United States v. City of Miami, 2 F.3d 1497, 1508

(11th Cir. 1993), and Allen v. Alabama State Bd. of Educ., 164 F.3d 1347, 1350

(11th Cir. 1999).3 City of Miami and Allen employ a two-prong inquiry, under

which the court first looks to whether “the basic purposes of the decree have been

fully achieved.” Allen, 164 F.3d at 1350. If so, the court then must find that “there

is no significant likelihood of recurring violations of federal law once the decree

has been lifted.” Id. The court rejected the State's suggestion that the standard of

3

The court recognized that Allen was vacated as a result of a settlement between the

parties, see 216 F.3d 1263 (11th Cir. 2000), but still found its approach useful as persuasive

authority for how the Circuit would treat a motion to vacate.

11

Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748 (1992), should

govern, because Rufo dealt with a motion to modify a decree, not a motion to

vacate. Applying the City of Miami framework, the court looked first to whether

the basic purposes of the decree had been achieved. The court focused on the

State's argument that the order of June 28, 2001, following the DOJ trial

(hereinafter, the “Bench Trial Order”) was conclusive as to the State's compliance

with the Consent Decree and exit standards. The court noted that the Bench Trial

Order expressly stated that the purpose of the trial was not to evaluate the State's

obligations under the Consent Decree. However, the court acknowledged that its

findings of fact – that the State was making appropriate community placements as

of the time of the trial – suggested that basic purpose of the decree was being

achieved with respect to the patients hospitalized as of September 1999, and with

respect to patients discharged as of that date.

The court further found, however, that even if the Bench Trial Order

indicated that the basic purposes of the decree were being achieved as of the time

of the DOJ trial, that finding was not conclusive as to the “great number” of

patients discharged between the trial and GPW's shutdown in February 2002.

Because there was no evidence that those remaining patients had been discharged

in compliance with the Community Compliance Exit Criteria, the court could not

12

conclude that there was no significant likelihood of a recurring violation of federal

law if the decree were lifted. Consequently, the court denied the State's motion to

vacate the three disputed paragraphs of the decree.

B. Attorney Fees – Case # 02-14670

The district court issued its Order denying the State's request for attorney

fees on August 5, 2002. In its Order, the district court agreed with the Magistrate

Judge that Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694

(1978), provided the proper legal standard by which to evaluate the petition. Under

Christiansburg, a prevailing defendant in a civil-rights action may be awarded

attorneys' fees when it is shown that the plaintiff's case was “frivolous,

unreasonable, or without foundation,” but the defendant need not show that the

case was actually brought in bad faith.

The court rejected the State's suggestion that the more lenient standard of

Geier v. Richardson, 871 F.2d 1310 (6th Cir. 1989) – under which the prevailing

party is presumptively entitled to attorneys' fees regardless of whether the case is

shown to be frivolous – was appropriate when attorneys' fees are sought against the

Government in a CRIPA action. Instead, the court held that Christiansburg should

provide the standard because: (1) the legislative history of CRIPA indicates that

Congress intended for prevailing legal standards under other civil-rights statutes to

13

apply, which meant Christiansburg; (2) CRIPA's fee-shifting language is similar to

that in other civil-rights statutes to which Christiansburg applies, and (3) the policy

considerations behind Christiansburg – to provide an incentive for aggrieved

parties to enforce civil-rights laws and to punish wrongdoing defendants – were

similarly applicable to CRIPA, thus indicating that attorney fee awards were

principally intended for prevailing plaintiffs and not defendants.

Applying Christiansburg, the court agreed with the Magistrate Judge that the

State had not shown that the DOJ's case was frivolous. The court noted that the

State did not even move for summary judgment, that the trial was substantive –

lasting for 23 days and involving the testimony of numerous experts – and that the

DOJ's case was supported by allegations of death or serious injury to many

patients. The court rejected the State's contention that DOJ should have scaled

back its claims upon learning of the imminent closure of GPW, because the

hospital in fact remained open for two more years, during which time the allegedly

unconstitutional conditions could have continued to harm patients.4

III. DISCUSSION

A. The Consent Decree – Case # 02-13499

4

The court agreed with the Magistrate Judge that the State was entitled to its court costs

and litigation expenses. That part of the Order is not challenged on appeal.

14

A consent decree is a judgment, and thus subject to Rule 60(b), which

provides in part that a party may obtain relief from a final judgment if “the

judgment has been satisfied, released, or discharged, or a prior judgment upon

which it is based has been reversed or otherwise vacated, or it is no longer

equitable that the judgment should have prospective application.” Fed. R. Civ. P.

60(b)(5). A party seeking modification of a consent decree bears a heavy burden of

persuasion. See Sierra Club v. Meiburg, 296 F.3d 1021, 1034 (11th Cir. 2002) (“A

party seeking to modify a consent decree has a high hurdle to clear and the wind in

its face.”). Generally, however, indefinite federal court oversight of state

institutions is disfavored, and a federal court should terminate supervision once the

defendant comes into compliance with the law. See Ensley Branch, NAACP v.

Seibels, 31 F.3d 1548, 1574-75 (11th Cir. 1994) (“Remedial decrees should require

the responsible officials to end their unconstitutional action posthaste. Remedial

decrees should not foster prolonged oversight and management by the least

representative branch.”). A district court's decision to modify, or not modify, a

consent decree is reviewed for abuse of discretion. Jacksonville Branch, NAACP

v. Duval County Sch. Bd., 978 F.2d 1574, 1578 (11th Cir. 1992). We review for

clear error the findings of fact on which a modification decision is based. Id.

15

The thrust of the State's argument on appeal is that the district court should

have vacated the Consent Decree because of changes of fact and law. With respect

to the former, the State argues that the DOJ Bench Trial established that there are

no longer constitutional violations, and that fact coupled with the closure of GPW,

under a proper application of the Rufo standard, warranted vacation of the Decree.

The State also argues that D.W. v. Rogers, 113 F.3d 1214 (11th Cir. 1997)

constitutes a change of law and that, as a result of that decision, states have no

constitutional duty to provide mental health services after patients have been

discharged from state custody. 5 Finally, the State suggests that, in the absence of a

violation of federal law, the district court may have lacked jurisdiction to continue

enforcing the decree. Specifically, the State contends that, in order to apply the

narrow exception to state Eleventh Amendment immunity for prospective

injunctive relief recognized by Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908),

the court must find that the defendant is engaged in an ongoing violation of

federally protected rights.

5

D.W. involved a substantive due process challenge to the state of Alabama's practice of

“wait-listing” mentally ill children who had been civilly committed to state custody for treatment

of mental illness. The court held that, because the state had not yet assumed physical custody of

the child plaintiffs – at most, it had legal custody – the plaintiffs had no due process right to any

particular level of treatment. See id. at 1218, 1220.

16

We first address the district court's formulation of the City of Miami

standard under which it assessed the State's petition for relief. We then turn to the

court's application of that standard to the facts.

1. The Rufo and City of Miami standards

Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748 (1992),

involved a long-running class action by pretrial detainees challenging the

conditions of their confinement, including overcrowding, poor sanitation, and

cramped cells. The district court found that conditions at the jail were so onerous

as to constitute punishment without benefit of trial, in violation of the Fourteenth

Amendment. The court set a deadline for the county to cease using the substandard

facility, and ordered that replacement facilities be readied. In response to that

order, the parties entered into a consent decree that obligated the county to provide

modernized housing with specified amenities and living space. But during the

pendency of the consent decree, two things happened: first, jail population grew

faster than expected, and second, the Supreme Court clarified the amount of inmate

living space that was constitutionally required. These developments prompted the

county to move to modify the consent decree on the basis of changed

circumstances.

17

The Court held that the rigorous showing required by United States v. Swift

& Co., 286 U.S. 106, 52 S.Ct. 460 (1932) for relief from a court-approved

settlement agreement – “[n]othing less than a clear showing of grievous wrong

evoked by new and unforeseen conditions” – was impractically rigid in dealing

with institutional reform litigation, because of the strong public interests at stake.

Rather, the Rufo Court held, a decree can be modified if the party seeking

modification shows “a significant change in circumstances” – either of fact or of

law – warranting revision. Rufo, 502 U.S. at 383, 112 S.Ct. at 760. If such

showing is made, “the court should consider whether the proposed modification is

suitably tailored to the changed circumstance.” Id. The Court elaborated on

possible changed circumstances: (a) “changed factual conditions make compliance

with the decree substantially more onerous” than was contemplated; (b) the decree

“proves to be unworkable because of unforeseen obstacles,” or (c) “enforcement of

the decree without modification would be detrimental to the public interest.” Id. at

384-85, 112 S.Ct. at 760.

In United States v. City of Miami, 2 F.3d 1497, 1508 (11th Cir. 1993), we

applied Rufo in the context of a motion to modify or vacate a consent decree in a

class-action discrimination case. In that case, the Justice Department sued the City

of Miami, alleging that minorities and women suffered widespread employment

18

discrimination in the fire department and other city agencies. The parties averted

trial by entering into a consent decree calling for reforms in the hiring and

promotion process, which the district court entered as its judgment. Some years

later, a firefighters' union – which was granted intervenor status – sought to modify

or vacate the decree on the grounds that the decree had achieved its purpose of

diversifying the fire department's ranks.

In considering whether to modify the decree, we observed – citing Rufo –

that the first step was to determine the “basic purpose” of the agreement. Id. at

1504. If the modification was directed to that basic purpose, it would likely

frustrate that purpose and was therefore impermissible; if it was directed only to

“one of several means of accomplishing the purpose ... or one of several means of

measuring compliance,” then it might be permitted. Id. at 1505.

We then evaluated whether the decree could be lifted rather than merely

modified. We again began with the first prong of Rufo: determine the “basic

purpose.” Then – citing Bd. of Educ. of Okla. City Pub. Sch. v. Dowell, 498 U.S.

237, 111 S.Ct. 630 (1991),6 which preceded Rufo by a year – we said:

6

Dowell, like Rufo, was an “institutional reform” case, in that instance a desegregation

case against the Oklahoma City school system. The district court had entered an injunction

directing the school district to adopt a busing plan designed to integrate schools in single-race

neighborhoods. After several years of active court supervision, the court granted the school

system's motion to close the case, but did not vacate the injunction. When the school system

later sought to adopt a new school assignment system, a group of parents moved to reactivate

19

[O]n remand, the district court must determine whether the

decree's basic purpose of eliminating the effects of past discrimination

has been achieved ... In determining whether the decree's purpose has

been fulfilled, the district court should consider whether the City has

complied in good faith with the decree and whether the vestiges of

past discrimination have been eliminated to the extent practicable. ...

In sum, termination of the consent decree would be appropriate if the

district court finds that the decree is clearly no longer necessary either

to prevent discrimination in the future or to remedy the effects of past

discrimination.

Id. at 1508 (internal quotes omitted).

In the case at bar, the district court treated Rufo and City of Miami as

mutually exclusive standards – the former applicable only to requests to modify a

decree, and the latter appropriate where a party seeks to be relieved from the decree

entirely. Accordingly, it applied only City of Miami. While we disagree with the

district court's characterization of these cases, its approach did not constitute

reversible error, particularly in light of the nature of these Defendants' petition for

relief.

court supervision under the injunction, alleging that the system was out of compliance. The

district court denied the parents' motion and vacated the injunction, but the Tenth Circuit

reversed, relying on the Swift “grievous wrong” standard. The Supreme Court, presaging Rufo,

held that Swift was too inflexible a yardstick for assessing the continued usefulness of a consent

decree involving school desegregation, because such decrees are necessarily temporary and

require leeway for local innovation. Rather, the Court – in phrasing we adapted in City of Miami

– formulated the proper inquiry as “whether the [school system] had complied in good faith with

the desegregation decree since it was entered, and whether the vestiges of past discrimination had

been eliminated to the extent practicable.” Dowell, 498 U.S. at 249-50, 111 S.Ct. at 638.

20

In our view, the City of Miami formulation is merely a gloss or a method of

applying Rufo, not a distinct standard. See Bldg. & Constr. Trades Council v.

NLRB, 64 F.3d 880, 888 (3rd Cir. 1995) (applying Rufo to a request to modify or

terminate injunction, but enumerating flexible list of factors similar to those in City

of Miami, including “whether the party subject to its terms has complied or

attempted to comply in good faith with the injunction; and the likelihood that the

conduct or conditions sought to be prevented will recur absent the injunction”).

City of Miami itself made no attempt to limit the application of Rufo or to

distinguish it. The City of Miami court did not treat the requests to modify and to

vacate the consent decree as two analytically distinct matters; rather, it discussed

them together. See id., 2 F.3d at 1505 (“We find that the principles articulated in

Rufo and Dowell are applicable to requests to modify or terminate decrees in

employment discrimination class actions, like the one before us.”) (emphasis

added).

To put it another way, we do not read City of Miami as indicating that a

district court is without authority to terminate a consent decree (as opposed to

merely modifying it) if – to use Rufo's formulation – changed circumstances have

caused compliance with the decree to become substantially more onerous, or have

rendered the decree impracticable, or its continued enforcement inimical to the

21

public interest. Nor do we understand the district court to have believed its

discretion was so constrained.7 We therefore discern no prejudicial error in the

district court's method of analysis.

The State petitioned for relief from the decree principally based on the

court's findings at the DOJ Bench Trial that GPW was providing a constitutionally

adequate level of care. That development could be considered a change in law or

fact (what the State would call a “Rufo case”), but it could just as easily be

considered a finding of substantial compliance with the decree (what the State

concedes would be a “City of Miami” case). This substantial overlap is one reason

that we think it was inappropriate for the district court to attempt to draw a bright

line between Rufo and City of Miami where none exists.

The situation is similar with respect to the closure of GPW. Again, while

this claim could be viewed as one of changed factual circumstances, it could also

be treated as a claim of substantial compliance (in that all of the patients had been

7

That the court fully understood the breadth of its discretion is evident in the fact that it

did selectively vacate most strictures of the Consent Decree, as the State requested, leaving in

place only those substantive provisions governing discharges into community placement, as to

which it was not satisfied the State had shown compliance.

22

successfully discharged). Again, there is nothing inconsistent between City of

Miami and Rufo, and we find no reversible error in the district court's analysis.8

2. Substantive claims

We turn then to the State's substantive arguments. It argues that three post-

decree developments of law and fact required the district court to vacate the

remaining portions of the decree: (1) our decision in D.W. v. Rogers, 113 F.3d

1214 (11th Cir. 1997), addressing a state's obligation to provide mental health

treatment to persons in legal but not physical custody; (2) the Bench Trial Order,

which found no ongoing violations of substantive due process in the provision of

care at GPW; and (3) the closure of the hospital. The State argues that these

developments make it inequitable to continue enforcing the Decree (what the State

labels a Rufo argument) and make it unlikely that constitutional violations, if they

occurred at all, will recur (its City of Miami argument). The State variously

phrases its argument that the Decree should be vacated, sometimes arguing for

lifting the Decree because there are no constitutional violations (and none likely),

and sometimes arguing in quasi-jurisdictional terms (that the exception to Eleventh

8

Rufo, by its terms, applies where compliance with the terms of a decree becomes

substantially more onerous or impracticable because of changed circumstances. Here, the State's

claim is just the opposite – that later developments in effect lowered the burden of compliance so

that there was nothing left for the decree to accomplish.

23

Amendment immunity recognized in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441

(1908), requires an ongoing violation of a federally protected right).

Before turning to the substance of this argument, we address the threshold

matter of the burden of proof. We reject the State's suggestion that the burden of

proof should be placed on the Class Plaintiffs. To the contrary, the Supreme Court

in Rufo clearly held that the burden of proof is on the party seeking modification of

a consent decree. Rufo, 502 U.S. at 393, 112 S.Ct. at 765 (“[A] party seeking

modification of a consent decree must establish that a significant change in facts or

law warrants revision of the decree and that the proposed modification is suitably

tailored to the changed circumstance.”); accord City of Miami, 2 F.3d at 1504

(quoting Rufo); see also Hodge v. Dep't of Housing & Urban Dev., 862 F.2d 859,

862 (11th Cir. 1989) (holding that burden is on party seeking relief from final

judgment under Rule 60(b) to establish grounds for relief). The State's conclusory

assertions of lack of jurisdiction are unpersuasive.

Even the Seventh Circuit cases on which the State relies hold that, in the

context of a Rule 60(b) motion for relief from a consent decree, the burden is on

the party seeking relief to establish that changed circumstances warrant relief from

the decree. See David B. v. McDonald, 116 F.3d 1146, 1149 (7th Cir. 1997)

(quoting Rufo: “a party seeking modification of a consent decree bears the burden

24

of establishing that a significant change in circumstances warrants revision of the

decree”); accord United States v. Krilich, 303 F.3d 784, 789-90 (7th Cir. 2002);

United States v. Rueth Dev. Co., 335 F.3d 598 (7th Cir. 2003). The district court

properly placed the burden of proof on the State..

(a) The D.W. decision

The State argues that D.W. v. Rogers, 113 F.3d 1214 (11th Cir. 1997),

constituted a change in the governing law which warrants termination of the

Consent Decree. The State argues that it was completely absolved of all

constitutional duty and all responsibility once GPW was closed and the patients

discharged from that hospital. For several reasons, we decline the State’s invitation

to order a termination of the Consent Decree on this ground at this stage of the

litigation.

The district court noted that the D.W. decision was distinguishable in that it

did not involve a consent decree. The State’s initial brief responds simply by

asserting in conclusory fashion that that distinction is irrelevant. Because the State

offers no analysis or authority to guide our review, and because the matter has not

been addressed by the district court, we decline to address the issue further.9

9

Similarly, the State asserts in conclusory fashion that the Exit Criteria are unenforceable.

Again, we decline to address this argument which has also not been addressed by the district

court. To the extent that the State is asserting as a factual matter that the Exit Criteria were not

25

In any event, even if the State could persuade us that it is completely

absolved of any and all responsibility the moment a patient is released from its

physical custody (which of course we do not address and do not decide), the State

would still not be entitled to a termination of the Consent Decree at this stage. The

State has acknowledged that, as to some undetermined subset of patients, their

release from GPW did not end their stay in the State’s physical custody. For

example, counsel for the State conceded at oral argument that approximately 90

patients were considered too ill to be discharged when the time came to leave

GPW, and were transferred to custodial settings in other state hospitals.10

Consequently, because there was insufficient factual evidence that all discharged

GPW patients were out of the State’s physical custody – and indeed, a strong

contrary indication that some were not – the State did not carry its burden of

showing that none of the released patients had a continuing due process right to

adopted by the district court as an amendment or supplement to the Consent Decree, we prefer

that the district court interpret its own order in the first instance. To the extent that the State is

asserting some unspecified legal argument, we would insist that the State articulate any such

argument clearly, and support same with analysis and authorities; and in any event, we would

prefer for any such argument to be addressed in the first instance by the district court.

10

Aside from this comment at oral argument, the record is absolutely silent with respect to

the placement of the patients discharged since the September 1999 cut-off date for the DOJ

litigation, and with respect to the placement of other patients as to which there is some record

evidence, the district court has not addressed whether any or all of such placements constitute

physical custody in the state vel non. See, e.g., Taylor v. Ledbetter, 818 F.2d 791, 795-96 (11th

Cir. 1987) (en banc).

26

adequate care, even under the State’s reading of D.W. As a result, the State has not

established that no live controversy existed among the parties, or that further

constitutional violations could not occur.

Finally, the State has failed to address the fact that the D.W. decision did not

address the issue which the State apparently wants to raise in the instant case.

D.W. merely stands for the narrow proposition that a State’s duty to provide

treatment does not begin until a state assumes physical custody of the person as

well as legal custody. By contrast, in the instant case, the state clearly assumed

constitutional duties with respect to the patients by assuming physical custody.

The issue here is the point at which such duty ends. We decline to address that

novel and difficult issue for several reasons. The issue has been inadequately

addressed in the briefs on appeal, and was not addressed at all by the district court.

Moreover, whether or not a release from physical custody relieves a state of the

duty it had assumed may depend upon the circumstances surrounding the release.

See Wakefield v. Thompson, 177 F.3d 1160 (9th Cir. 1999); Davis v. Brady, 143

F.3d 1021 (6th Cir. 1998); see also Marsh v. Butler County, Ala., 268 F.3d 1014,

1039 n.19 & 20 (11th Cir. 2001) (en banc). There is no record evidence at all with

respect to the discharge of patients from GPW from and after September 1999; it

27

would be unwise to attempt resolution of the legal issue in the absence of concrete

facts.

(b) Closure of GPW

Our foregoing discussion applies equally to the State's argument that the

closure of GPW and release of all its patients terminates any live federal interest in

continued enforcement of the decree. For the reasons above mentioned, the State

has failed to establish that there are not ongoing constitutional violations and that

none are likely to recur; at this stage of the litigation the State has failed to carry its

burden of proving that the alleged changes of fact and law warrant vacation or

further revision of the Consent Decree.

(c) The Bench Trial Order

The State argues that the DOJ Bench Trial established that there are no

ongoing constitutional violations and none likely to recur. We do not believe that

the court's findings in the Bench Trial Order that conditions at GPW met

substantive due process standards were conclusive as to the separate proceeding

challenged here.

The issue before the district court during the DOJ bench trial was a relatively

discrete one: whether, as of September of 1999, the State was violating the

Fourteenth Amendment and the ADA by failing to protect patients from harm,

28

failing to provide the level of care appropriate to meet the patients' liberty interests,

and failing to ensure that each patient was placed in the most appropriate setting for

his needs upon release from the hospital. In ruling on the instant motion, the

district court acknowledged that, although the bench trial findings were not phrased

in terms of compliance with the Consent Decree, the findings were tantamount to a

declaration that conditions at GPW met the basic requirements of the decree with

respect to the patients still hospitalized as of September 1999 and with respect to

patients discharged to less restrictive settings as of that date. However, the court

further found that its observations about the level of care as of the bench trial did

not conclusively establish that the level of care was constitutionally adequate as of

June 2002 or that violations could not recur. In particular, the district court noted

that the Bench Trial Order did not address at all the circumstances surrounding the

discharge of patients from GPW after September 1999. We agree.

In order for the findings at the bench trial to be preclusive in the separate

proceeding at issue here, the State would have to show that: (1) the issue was

identical in both the prior and current action; (2) the issue was actually litigated;

(3) the determination of the issue was critical and necessary to the judgment in the

prior action; and (4) the burden of persuasion in the subsequent action is not

significantly heavier than in the prior proceeding. Agripost, Inc. v. Miami-Dade

29

County, 195 F.3d 1225, 1230 n.11 (11th Cir. 1999); In re Bilzerian, 153 F.3d 1278,

1281 (11th Cir. 1998). The State has failed to show that all prerequisites for the

application of collateral estoppel were met here.

The DOJ was required at the bench trial to prove its claims of ADA and

Fourteenth Amendment violations by a preponderance of the evidence. Here,

however, the State bore the burden of establishing grounds for relief in moving to

vacate the Consent Decree. Because of the differential burdens, a finding that the

DOJ could not demonstrate that the State was violating substantive due process or

the ADA was not the same thing as saying that the State could demonstrate

affirmatively its satisfaction of its constitutional obligations. See Young & Co. v.

Shea, 397 F.2d 185, 188 (5th Cir. 1958)11 (refusing to apply collateral estoppel to

jury verdict in administrative proceeding before Commissioner of Labor over

entitlement to workers’ compensation benefits because “the fact that a worker

could not convince a jury that he had suffered an injury should not estop him from

attempting to convince a Commissioner that he was injured inasmuch as the

standard of persuasion is less before the Commissioner than before the court”);

accord In re St. Laurent, 991 F.2d 672, 677 (11th Cir. 1993).

11

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), this Circuit

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the

close of business on September 30, 1981.

30

Even more important, the issues in the DOJ bench trial and in this Rule 60(b)

proceeding were not identical. In the latter proceeding, the court was properly

concerned not merely with whether the State had achieved compliance with

constitutional standards at one point, but whether it was presently in compliance.

See Dowell, 498 U.S. at 248, 111 S.Ct. at 637 (stating that court, in deference to

local control of schools, should dissolve desegregation decree “after the local

authorities have operated in compliance with it for a reasonable period of time”).

Also, and significantly, the placement of patients recently discharged from GPW is

a factual development subsequent to, and distinct from, the events at issue in the

DOJ trial. The Bench Trial Order therefore cannot be decisive as to whether the

State was violating the constitutional rights of later-discharged patients.12

For the foregoing reasons, the State has not yet established the absence of

ongoing constitutional violations, e.g., with respect to those patients discharged

since September 1999, and has not established that constitutional violations will

12

In addition, the constitutional violations alleged by the original class plaintiffs and those

alleged by DOJ were not coextensive; for instance, the class plaintiffs alleged both procedural

and substantive due process violations, while the DOJ complaint in intervention alleged only that

substantive due process was violated. When the district court held in the Bench Trial Order that

no constitutional violations were occurring, its holding was necessarily limited to substantive due

process; anything further would be beyond the DOJ complaint and thus not “critical and

necessary” to the judgment. Therefore, the State has not shown that the court's finding in the

DOJ case that the State was providing a constitutionally adequate level of care addressed every

constitutional violation to which the Consent Decree was directed.

31

not recur. Because of this failure, the State’s reliance upon Evans v. City of

Chicago, 10 F.3d 474 (7th Cir. 1998) (en banc), and David B. v. McDonald, 116

F.3d 1146 (7th Cir. 1997), is misplaced. In Evans the Seventh Circuit held that a

consent decree should be vacated because of a subsequent change in the law; it was

determined that the alleged equal protection violation and the alleged due process

violation, which comprised the federal claim upon which the consent decree was

based, were wholly without merit, thus leaving no substantial claim under federal

law to sustain the consent decree. The decisive opinion in that case by Judge

Ripple concluded that that change of law made “further enforcement of the consent

decree by the district court inappropriate under the standards set forth by the

Supreme Court in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct.

748, 762-64 (1992).” Evans, 10 F.3d at 483. In David B. the Seventh Circuit held

that a subsequent change of law, the enactment of a state statute relieving the

defendant agency of its authority over certain juvenile treatment programs that

were the subject of the consent decree, warranted either modification or vacation of

the consent decree. In remanding to the district court, the Seventh Circuit

instructed that the court should “determine whether a substantial federal claim

supports the decree as a whole; if not, the entire decree must be lifted.” David B.,

116 F.3d at 1150. Unlike Evans and David B., the State in the instant case has

32

failed to demonstrate the absence of a substantial federal claim13; the State has

failed to demonstrate the absence of an ongoing constitutional violation, and has

failed to demonstrate that there is no likelihood that constitutional violation will

recur.14

13

Moreover, the State has not argued in its brief on appeal that the “substantial federal

claim” referred to in Evans and David B. should be strictly construed to embrace only direct and

proven constitutional violations as opposed to related provisions of the Consent Decree. In other

words, the State has not argued that there is tension between Evans and David B., on the one

hand, and the Supreme Court’s decision in Rufo:

Federal courts may not order States or local governments, over their objection, to

undertake a course of conduct not tailored to curing a constitutional violation that

has been adjudicated. ... But we have no doubt that, to <save themselves the time,

expense, and inevitable risk of litigation,' ... petitioners could settle the dispute

over the proper remedy for the constitutional violations that had been found by

undertaking to do more than the Constitution itself requires ... [so long as the

same] was related to the conditions found to offend the Constitution.”

502 U.S. at 389, 112 S.Ct. at 762-63. Because no such argument was raised by the State, and any

possibly related argument was inadequately briefed, we do not address it. If raised on remand,

we prefer for the district court to address the issue in the first instance.

14

Because we reject the State's contention that the Bench Trial Order conclusively

determined that the State had met all of its obligations to provide a constitutionally appropriate

level of care, we do not reach the State's succeeding argument – which was entirely dependent on

the faulty premise – that a court loses jurisdiction to enforce compliance with a consent decree

settling constitutional claims as soon as the defendant crosses the threshold of constitutionally

acceptable performance, regardless of whether the decree purports to require more. We note that

the Supreme Court has recently heard arguments in a case on the closely related issue of whether

the Eleventh Amendment is waived when a state enters into a consent decree to settle an

unlitigated case in which prospective injunctive relief is sought under the doctrine of Ex parte

Young, supra. See Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002), cert. granted sub nom, Frew

v. Hawkins, 123 S.Ct. 1481 (Mar. 10, 2003). Frazar is not our case, because it arose in the

setting of a motion by the plaintiff class members to enforce the terms of the decree. The case

was therefore not evaluated under Rufo; rather, the burden was properly placed upon the

plaintiffs to demonstrate the violation of a federally protected right justifying relief. See Frazar,

300 F.3d at 543. Nevertheless, the Court's answer to the Eleventh Amendment question posed in

Frazar could provide guidance in our related inquiry. We therefore are especially hesitant to

33

(d) Substantive Claims – Summary

In sum, we conclude that the State bears the burden of establishing that

changed circumstances warrant modification or vacation of the Consent Decree.

The State has failed at this stage of the litigation to establish that any of the after-

occurring developments of law or fact on which the State relies would compel a

district court to grant more than the considerable measure of relief from the Decree

that the court below extended. The State has failed to establish that no live

controversy existed, or that changed circumstances warrant vacation of the Decree,

or that no violations of federally protected rights were occurring or likely to occur.

Consequently, the district court did not abuse its discretion in declining to

terminate the remaining provisions of the Consent Decree.

B. Attorney Fees – Case # 02-14670

The State appeals the district court's order of August 5, 2002, denying its

motion for an award of attorneys' fees. The district court found that the State failed

to make the showing required by Christiansburg Garment Co. v. EEOC, 434 U.S.

412, 98 S.Ct. 694 (1978), which provides that a prevailing defendant in a civil-

rights action may be awarded attorneys' fees when it is shown that the plaintiff's

case was “frivolous, unreasonable, or without foundation.”

venture a gratuitous interpretation.

34

The State contends that, pursuant to the fee-shifting provision of CRIPA, 42

U.S.C. § 1997c(d), it was entitled as the prevailing party to recover its legal fees

from DOJ. The State raises three lines of argument: (1) the plain language of

Section 1997c(d) indicates that the “prevailing party” is entitled to fees, regardless

of whether the party is plaintiff or defendant; (2) the district court erred in applying

Christiansburg because the history and purpose of Section 1997c(d) are unlike

those of other fee-shifting provisions for which Christiansburg was coined, and (3)

even if Christiansburg supplies the standard, the district court employed it

erroneously, by too literally applying the “frivolity” requirement and by failing to

recognize the DOJ's vexatious litigation conduct.

We review a district court's decision to award or not to award attorney fees

for abuse of discretion. Sayers v. Stewart Sleep Ctr., 140 F.3d 1351, 1353 (11th

Cir. 1998); EEOC v. Reichhold Chemicals, 988 F.2d 1564, 1568 (11th Cir. 1993).

Under the “American Rule,” the default assumption is that each party is responsible

for its own legal fees, and thus fees ordinarily will not be awarded to the prevailing

party without express statutory authority. Buckhannon Bd. & Care Home v. West

Virginia Dep't of Health & Human Res., 532 U.S. 598, 602, 121 S.Ct. 1835, 1839

(2001) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247,

95 S.Ct. 1612 (1975)). Congress has chosen to modify the American Rule in

35

numerous statutes, including the Civil Rights Act of 1964 and the Voting Rights

Act Amendments of 1975, so as to provide for the prevailing party to recover its

reasonable attorney fees from the loser.

Section 1997c(d) is one such statute. It provides, in its entirety:

In any action in which the United States joins as an intervenor

under this section, the court may allow the prevailing party, other than

the United States, a reasonable attorney's fee against the United States

as part of the costs. Nothing in this subsection precludes the award of

attorneys fees available under any other provisions of the United

States Code.

In Christiansburg, the Supreme Court held that, even where a statute is

facially neutral as to which party can receive attorney fees, two equitable

considerations weigh in favor of a more lenient standard when awarding fees to the

plaintiff as opposed to the defendant: first, the prevailing plaintiff is serving to

vindicate important federal rights as Congress' designated instrument of

enforcement (the “private attorney general” rationale), and second, “when a district

court awards counsel fees to a prevailing plaintiff, it is awarding them against a

violator of federal law.” Id. at 418-19, 98 S.Ct. at 699.

1. The State's Section 1997c(d) Argument

The State first argues that the CRIPA statute itself makes an award of

attorneys' fees to a prevailing defendant presumptively appropriate. This argument

36

overlaps with the following argument and will be dealt with principally in

subsection (2), infra. It is enough to observe here that, because Section 1997c(d) is

permissive and not mandatory – it says the court “may allow” attorneys' fees – a fee

award is not automatic. See Christiansburg, 434 U.S. at 418, 98 S.Ct. at 699

(interpreting same statutory term – “may allow” – in Title VII fee statute, and

rejecting a similar argument that prevailing defendant is presumptively entitled to

award). Consequently, there must be standards to guide the district court's exercise

of discretion. Thus the only real question is what legal standard governs, and

whether the district court applied it properly. 15

(2) Applicability of Christiansburg Standard

The State's principal point is that Section 1997c(d) is simply different from

other fee-shifting statutes in wording and in intent, and thus the rules of

interpretation governing those other statutes do not apply. Its argument begins

with the wording of the statute itself. Since the statute excludes the United States

from receiving a fee award, and since it speaks in terms of recovery of fees “against

15

As the State acknowledges, courts have routinely read standards into similar

discretionary fee-shifting statutes even where none appears. See, e.g., Bruce v. City of

Gainesville, 177 F.3d 949 (11th Cir. 1999) (applying Christiansburg dual standard to Americans

with Disabilities Act fee-shifting provision, 42 U.S.C. § 12205, which speaks neutrally in terms

of allowing a reasonable attorney's fee to the “prevailing party”). Therefore, the fact that the

statute contains no “frivolity” language does not mean that a court cannot impose such a standard

consistent with the statute.

37

the United States,” the provision appears – unlike other civil-rights statutes – to be

intended solely for the benefit of prevailing defendants. Thus, the State argues, the

analysis applied to other fee-shifting statutes, which are principally intended to

benefit prevailing plaintiffs, is irrelevant. The State then argues that the purpose of

fee-shifting provisions – to encourage private plaintiffs who may lack financing to

take the lead in enforcing anti-discrimination laws as “private attorneys general” –

does not apply to CRIPA, since it does not involve a private plaintiff of limited

means. Therefore, the State contends, the caselaw based on that policy should not

control.

We do not entirely accept the State’s logic. It does not necessarily follow

that, because it is harder (or in this case, impossible) for a prevailing plaintiff to get

attorneys' fees, it should be easier for a prevailing defendant to obtain fees. In

enacting CRIPA, Congress weighted the equities in favor of prevailing defendants

by disqualifying the Government from receiving fees even if it prevails. There is

thus no compelling equitable reason for courts to make the system even more

favorable to defendants.16

16

Congress has already built an extra measure of protection into CRIPA for defendants by

empowering DOJ to intervene only in cases where there are “egregious or flagrant conditions”

causing “grievous harm.” 42 U.S.C. § 1997(a).

38

As discussed infra, the state of the law when Congress enacted CRIPA was

that prevailing defendants could qualify for attorneys' fees only by showing that the

plaintiff's case was frivolous, unreasonable or without foundation. “The normal

rule of statutory construction is that if Congress intends for legislation to change

the interpretation of a judicially created concept, it makes that intent specific.” In

re Colortex Indus., Inc., 19 F.3d 1371, 1375 n.2 (11th Cir. 1994) (quoting

Midlantic Nat'l Bank v. New Jersey Dep't of Envtl. Prot., 474 U.S. 494, 501, 106

S.Ct. 755, 759 (1986)). If Congress wanted to lower the bar for a prevailing

defendant under CRIPA, it could and should have said so. We can infer no such

intent from its silence.

It is probably true that the risk of having to pay the opponents' legal fees

would be a greater deterrent to a private plaintiff than to the Justice Department,

thus reducing the public-policy concerns that normally mitigate against making

plaintiffs pay attorneys' fees. However, since only a government entity can be sued

under CRIPA, the equities on the defendant's side are also weaker, as we need not

worry that the expense of this litigation will put the State of Florida out of

business.

Outside of the intellectual property arena, which we find readily

distinguishable – see n.17, infra – the State has not identified any federal statute

39

similar to ours that presumptively entitles the prevailing defendant to attorney fees.

To the extent that the standard varies from Christiansburg at all, it varies in the

other direction, making it harder for defendants to obtain fees. See, e.g.,

Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1427 (11th Cir. 1998)

(rejecting Christiansburg and applying “bad faith” requirement of Fair Labor

Standards Act to defendant's request for attorney fees under Age Discrimination in

Employment Act, 292 U.S.C. § 626(b)). In light of this background of attorneys'

fee law, we cannot infer from Congress' silence in CRIPA an intent to lower the

established bar and carve out a uniquely favorable standard for government

defendants. Further, the other equitable factor in Christiansburg – that an award

against a losing defendant, unlike a losing plaintiff, is an award against a federal

lawbreaker – still applies in the context of CRIPA. We therefore see no compelling

equitable argument that requires altering the normal legal standard by which fees

are awarded.

Significantly, Christiansburg itself involved an award against a federal

agency – the EEOC – and this Circuit has continued to apply the established

standard in discrimination cases brought by the EEOC, with no indication that a

different standard should apply because the Government was the losing plaintiff.

See Reichhold Chemicals, 988 F.3d at 1571-72 (overturning district court's fee

40

award because EEOC succeeded in presenting a prima facie case of discrimination,

indicating that its claims were not frivolous); EEOC v. Pet, Inc., 719 F.2d 383,

384-85 (11th Cir. 1983) (stating that even though EEOC failed to establish prima

facie case, its litigation strategy was not unreasonable and could have succeeded

under different circumstances; thus, under Christiansburg, case was not so

frivolous as to support fee award).

The principal purpose of CRIPA was to promote the involvement of the

Justice Department in institutional reform litigation; the legislative history

indicates that Congress recognized that the participation of DOJ in disability

discrimination cases was invaluable. See S. REP. NO. 96-416 (1979) at 19-22,

reprinted at 1980 U.S.C.C.A.N. 787, 801-03 (discussing barriers to litigation faced

by mentally disabled plaintiffs, and “unique and invaluable” role of Attorney

General in bringing class actions on their behalf). It thus is logical to interpret

Section 1997c(d) in para materia with fee-shifting provisions in other

discrimination statutes that were, similarly, designed to promote and reward the

involvement of plaintiffs in furthering the statutes' intent.

Although Christiansburg arose in a Title VII discrimination case, courts have

applied its standard to other fee-shifting statutes, particularly those in the civil-

rights arena (such as the ADA and the Voting Rights Act), which are worded

41

similarly to the Title VII standard and to the Section 1997c(d) standard at issue

here. The statute applied in Christiansburg, 42 U.S.C. § 2000e-5(k), states that “the

court, in its discretion, may allow the prevailing party, other than the [EEOC] or the

United States, a reasonable attorney's fee ... and the [EEOC] and the United States

shall be liable for costs the same as a private person.” Almost identical wording

appears in Section 1997c(d). Use of the same or similar language in two fee-

shifting statutes “is a strong indication that they are to be interpreted alike.”

Independent Fed'n of Flight Attendants v. Zipes, 491 U.S. 754, 759 n.2, 109 S.Ct.

2732, 2735 n.2 (1989) (internal quotes omitted).17

The published legislative history on Section 1997c(d) is extremely sparse.

The Senate report states only: “An amendment was accepted ... which would allow

the prevailing party other than the United States a reasonable attorney's fee at the

discretion of the court.” See S. REP. 96-416, at 31 (1979), reprinted at 1980

17

The State argues that courts sometimes have declined to apply the Christiansburg

standard to fee-shifting statutes worded similarly to Section 1997c(d). However, its principal

example is the copyright statute, 17 U.S.C. § 505, which is unlike CRIPA in purpose or history.

In Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023 (1994), the Supreme Court found that

frivolity was not a prerequisite to an award of attorney fees to a prevailing defendant in a

Copyright Act suit because: (1) the Copyright Act language was enacted in 1976, before

Christiansburg became the accepted legal standard; (2) all other intellectual property statutes

have “loser pays” regimes which are party-neutral; (3) the goal of the Copyright Act was not to

promote or reward public-interest litigation, and (4) unlike in civil-rights suits, it is unlikely that

plaintiffs in copyright suits will be indigent. Only the fourth concern arguably applies in our

case, because of the Justice Department's financial resources.

42

U.S.C.C.A.N. 787, 813. A footnote adds: “This provision is similar to that found in

Title VII of the Civil Rights Act of 1964. See Christiansburg Garment Co. v.

EEOC, 434 U.S. 412.” See id. at 68, n.86, 1980 U.S.C.C.A.N. at 832. The House

conference report, H. CONFC. REP. NO. 96-897 (1980), reprinted at 1980

U.S.C.C.A.N. 832, says in explaining the fee-shifting provision: “The award is

discretionary with the court, and it is intended that the present standards used by

courts under the civil rights laws will apply.” See id. at 12, 1980 U.S.C.C.A.N. at

837.

The DOJ argues that the reference to “present standards” in the House report,

and the explicit citation to Christiansburg in the Senate report, leave no doubt that

Congress contemplated application of Christiansburg, which was decided just two

years earlier. The State contends, however, that the reference to “present

standards” could just as easily refer to the Supreme Court's decision in Newman v.

Piggie Park Enter., Inc., 390 U.S. 400, 88 S.Ct. 984 (1968), which makes an award

of fees the default assumption unless it is shown that an award would be “unjust.”

Piggie Park, however, was a case in which a prevailing plaintiff sought

attorneys' fees under Title II of the Civil Rights Act. By its own terms, the case

applies where the applicant for attorneys' fees has been successful in obtaining an

injunction, see id. at 402, 88 S.Ct. at 966, which obviously refers to plaintiffs. That

43

distinction was made abundantly clear in Christiansburg, which cited and

distinguished Piggie Park. See Christiansburg, 434 U.S. at 418-19, 98 S.Ct. at 699

(“[A]s emphasized so forcefully in Piggie Park, the plaintiff is the chosen

instrument of Congress to vindicate a policy that Congress considered of the

highest priority.”) (internal quotes and citation omitted). Thus, it is apparent that

by 1980, when Congress enacted CRIPA, the prevailing legal standard for the

award of attorneys' fees to a prevailing defendant was Christiansburg, not Piggie

Park.

The State offers as an alternative standard to Christiansburg the Sixth

Circuit's decision in Geier v. Richardson, 871 F.2d 1310 (6th Cir. 1989).18 We

decline the State's invitation to adopt the reasoning of Geier, which found

Christiansburg inapplicable in the context of an unsuccessful complaint in

intervention by the Government in a Title IX desegregation case. Geier is factually

18

The State also suggests in its briefs on appeal that the Court look for guidance to the

Equal Access to Justice Act, 28 U.S.C. § 2412(d), which presumptively entitles the prevailing

party to an award of fees unless the opponent's position is “substantially justified” or “special

circumstances” make an award unjust – a standard the State describes as more favorable The

State concedes, however, that the EAJA by its terms does not apply to this case and is of

instructive value only. The State did not argue for application of the EAJA standard below.

Indeed, its brief to the Magistrate Judge mentioned the EAJA only fleetingly and by way of

distinction, in arguing that the State should automatically recover its fees without surmounting

any additional barrier. Because the EAJA argument presented here was not properly raised

below and was not addressed by the district court, we decline to address it here in the first

instance.

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unlike our case. There, the Government opposed a consent decree agreed upon

between the private plaintiffs and the state. The Government lost its case against a

state government and the private plaintiffs. The private plaintiffs were suing to

enforce their civil rights in a Title IX desegregation case, and therefore were the

private attorneys general seeking to enforce the statute, i.e., the parties whom the

case law is reluctant to chill. Geier, 871 F.2d at 1314. Moreover, the Geier court

saw the Government's litigation conduct as unusually egregious; the Government

switched sides and attacked the parties' consent decree after having supported it,

thus forcing the original opposing parties to unite in defending it. Thus, even

though the Sixth Circuit did not use the words “frivolous” or “bad faith,” attorneys'

fees might well have been justified under Christiansburg.

In sum, we hold that Christiansburg is applicable to a claim for attorney fees

under CRIPA. The same policy arguments the State mounts here were applicable

to Christiansburg, yet the Supreme Court obviously was not persuaded that a

different set of standards should apply when the Government is the unsuccessful

plaintiff.

(3) The District Court Correctly Applied the Christiansburg

Analysis

45

As a fallback, the State argues that it was entitled to attorney fees even if

Christiansburg applies. The State contends that the district court erred in analyzing

the Christiansburg factors by failing to take account of DOJ's unreasonable

litigation conduct, in particular its refusal to settle any claims even after learning of

GPW's imminent shutdown.

That the DOC lost on all counts does not, of course, establish frivolity by

itself. Christiansburg cautioned against such hindsight bias:

[T]he term meritless is to be understood as meaning groundless

or without foundation, rather than simply that the plaintiff has

ultimately lost his case ... [I]t is important that a district court resist the

understandable temptation to engage in post hoc reasoning by

concluding that, because a plaintiff did not ultimately prevail, his

action must have been unreasonable or without foundation.

Id. at 421-22, 98 S.Ct. at 700. In EEOC v. Pet Inc., 719 F.2d 383, 384 (11th Cir.

1983), we interpreted Christiansburg's caution against second-guessing to require

that, when determining whether a claim was or became frivolous, we view the

evidence in the light most favorable to the non-prevailing plaintiff. We have

recognized that the showing required to support a finding of frivolity is a

“stringent” one, see Walker v. NationsBank of Fla., 53 F.3d 1548, 1558 (11th Cir.

1995).

46

There is no dispute that our decision in Sullivan v. School Bd. of Pinellas

County, 773 F.2d 1182 (11th Cir. 1985) provides the framework to assess whether

a plaintiff's claim was frivolous for purposes of an attorney fee award. In Sullivan,

a Title VII discrimination case, we set down “general guidelines” for analyzing the

strength of the plaintiff's case against the Christiansburg standard: “(1) whether the

plaintiff established a prima facie case; (2) whether the defendant offered to settle;

and (3) whether the trial court dismissed the case prior to trial or held a full-blown

trial on the merits.” Id. at 1189. The Sullivan court reversed the district court's

award of legal fees, concluding that the plaintiff's case was not “patently devoid of

merit” based on the facts that: the case survived a Rule 41(b) motion to dismiss;

the defendant never moved for summary judgment; the plaintiff produced anecdotal

evidence that her supervisors were biased against women and Jews; and the

plaintiff's own testimony, if believed, would have supported a reasonable jury

finding that she suffered from gender and religious discrimination.

The Sullivan factors here point, if anything, against an award of fees. The

case was not dismissed before trial, and the Magistrate Judge found (and the

district court agreed) that DOJ established a prima facie case. That conclusion of

fact is not clearly erroneous, for the reasons set forth in the district court's decision:

DOJ put forth expert testimony and documentation that, if believed, could have

47

supported a reasonable trier of fact's finding that the State was providing

constitutionally inadequate care, and thus if the state had moved for summary

judgment, it would have been denied. There is no evidence that the State made a

settlement offer that DOJ rejected, and the State does not so allege.

The State's only real evidence that the DOJ pursued an unreasonable

litigation strategy is the fact that DOJ did not drop or amend claims in light of the

planned closure of GPW. The trial court, however, found that DOJ's conduct was

reasonable given the lengthy period (two years) between the announcement and

shutdown, and the concern for patient safety during the interim. Consequently, the

district court's application of the Christiansburg/Sullivan factors was not clearly

erroneous.

IV. CONCLUSION

For the foregoing reasons, and in light of the instant record or lack thereof,

we cannot conclude that the district court abused its discretion in denying the

State's Rule 60(b) motion for relief from the Consent Decree (Case No. 02-

13499),19 and we cannot conclude that the district court erred in its decision not to

19

We sympathize with the State's desire to be freed from the court supervision inherent in

the Consent Decree. We fully expect the State will renew its motion for relief after marshaling

evidence as to the patients discharged from GPW since September 1999, and we are confident

that the district court will entertain such a motion, conduct appropriate evidentiary hearings, and

render its decision after receiving the guidance of adequate briefing.

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award attorneys' fees to the State after the DOJ Bench Trial (Case No. 02-14670).

Accordingly, the decisions below are

AFFIRMED.

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