Amicus Curiae Brief — Hewitt v. Helms

No. 85-1630

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

LOWELL D. HEWITT, et al.,

Petitioners,

V.

AARON HELMS,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF THE

NATIONAL GOVERNORS’ ASSOCIATION,

INTERNATIONAL CITY MANAGEMENT ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL LEAGUE OF CITIES, AND

U.S. CONFERENCE OF MAYORS

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

PETER J. KALIS BENNA RUTH SOLOMON *

KIRKPATRICK & Chief Counsel

LOCKHART JOYCE HOLMES BENJAMIN

1500 Oliver Building STATE AND LOCAL LEGAL CENTER

Pittsburgh, PA 15222 444 North Capitol St., N.W.

(412) 355-6562 Suite 349

Of Counsel Washington, D.C. 20001

(202) 638-1445

* Counsel of Record for

Amici Curiae

WILSON - EPES PRINTING Co., INC. - 789-O096 - WASHINGTON, D.C. 20001

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QUESTIONS PRESENTED

1. Whether a civil rights plaintiff is entitled to an

award of attorney’s fees under the Civil Rights Attor-

ney’s Fees Awards Act of 1976 when the litigation for

which he seeks fees has resulted in no relief for him.

2. Whether a civil rights plaintiff may base a claim

for attorney’s fees, or augment an attorney’s fee award,

on a “catalyst” theory because of the promulgation, dur-

ing the pendency of the litigation, of a revision of an

administrative directive that was neither sought by nor

of benefit to the plaintiff.

(i)

————— -_— yn

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 5 ee i

TABLE OF AUTHORITIES iv

INTEREST OF AMICI CURIAE l

STATEMENT OF THE CASE .....................-.... a 3

SUMMARY OF ARGUMENT 65

ARGUMENT ; g

lL. HELMS IS NOT A PREVAILING PARTY EN-

TITLED TO AN AWARD OF FEES y

A. Helms Won Nothing By His Litigation 10

B. The Revision of Administrative Directive

801 Did Not Benefit Helms So As to Make

Him a Prevailing Party . aon Sid 15

Il. THE HELMS LITIGATION WAS NOT THE

CATALYST BEHIND THE REVISION OF

ADMINISTRATIVE DIRECTIVE 801 18

lil. IF HELMS IS DETERMINED TO BE A PRE-

VAILING PARTY, HIS ATTORNEY’S FEE

AWARD MUST BE NARROWLY LIMITED

TO THE MINIMAL SUCCESS THAT HE

ACHIEVED SS SAAT 26

SE he 30

APPENDIX A-1

(iii)

iv

TABLE OF AUTHORITIES

CASES: Page

Addington v. Texas, 441 U.S. 418 (1979) ............. 26

Alyeska Pipeline Service Co. v. Wilderness So-

ciety, 421 U.S. 240 (19758) ..........cccceceeces-cecseee 9, 10

American Constitutional Party v. Munro, 650 F.2d

T'S, f+ SS) } x _eee h UDLlUD

Blue Chip Stamps v. Manor Drug Stores, 421 U.S

a a er eee Seen 9

Blum v. Stenson, 104 S.Ct. 1541 (1984) ed aciaerianie 29

Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979) 18, 19

Carbalan v. Vaughn, 760 F.2d 662 (5th Cir.), cert.

dented, 106 S.Ct. 529 (1965) ............................. 12

Carey v. Piphus, 135 is S 2)... | oem 13

City of Riverside v. Rivera, 106 S.Ct. 2686

I ; 15, 29, 30

Dover v. Rose, 709 F.2d 436 “(6th Cir. 1983) see 12

Wrnst & Ernst v. Hochfelder, 425 U.S. 185

fs TO La ERE SNe OME SOE I g

Hanrahan v. Hampton, 446 U. Ss. 754 (1980) ........ 14

Helms v. Hewitt, 780 F.2d 367 (3d Cir. 1986) ..5, 6, 20, 21

Heims v. Hewitt, 745 F.2d 46 (3d Cir. 1984) .......... 5

Helms v. Hewitt, 712 F.2d 48 (3d Cir. 1983) -........ : 4

Helms v. Hewitt, 655 F.2d 487 (3d Cir. 1981)........3, 4, 11

Hensley v. Eckerhart, 461 U.S. 424 (1983) passim

Hewitt v. Helms, 459 U.S. 460 (1983) —............-...... 4

Institutionalized Juveniles v. Secretary of Public

Welfare, 758 F.2d 897 (3d Cir. 1985) — 5

Maher v. Gagne, 448 U.S. 122 (1980) ..................... 14,18

Mathews v. Eldridge, 424 U.S. 319 (1976) ............. 26

Memphis Community School District v. Stachura,

t 2 t+ 3 lo. | a eee 13

N.A.A.C.P. v. Wilmington Me dical C ender, pay 689

F.2d 1161 (3d Cir. 1982), cert. denied, 460 U.S

8 a ee See nee Ce a 17

Nadeau v. Helgemoe, 581 F. 2d 2 275 (1st Cir. 1978). 23

Newman v. Piggie Park Enterprises, Inc., 390

I 17

Othen v. Ann Arbor School Board, 699 F.2d 309

I RRs, LEER eae enero a Rae .. 17,18

TABLE OF AUTHORITIES—Continued

Page

Parham v. Southwestern Bell Tel. Co., 433 F.2d

121 (8th Cir. 1970) ceawen 16

Pennsylvania v. Delaware Vailey Citizens’ Coun-

cil For Clean Air, 106 S.Ct. 3088 (1986).... 14

Pulliam v. Allen, 466 U.S. 522 (1984) ....00000.. 13

Robinson v. Kimbrough, 652 F.2d 458 (5th Cir.

1981) oa . an 18

Ross v. Horn, 598 F.2d 1312 (3d Cir. 1979), cert.

denied, 448 U.S. 906 (1980) 19, 22, 2

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1988). 12

Speiser v. Randall, 357 U.S. 513 (1958) ; a 26

Taylor v. Sterrett, 640 F.2d 663 (5th Cir. 1981) 12

In re Winship, 397 U.S. 358 (1970) 26

zarcone v. Perry, 581 F.2d 1039 (2d Cir. 1978),

cert. denied, 439 U.S. 1072 (1979) ...... 17

STATUTES AND REGULATIONS:

42 U.S.C. § 1983 ..... is " 3,13

Civil Rights Attorney’s Fees Awards Act of 1976,

12 U.S.C. § 1988 passim

Pa. Administrative Directive BC-ADM_ 801

(1984) ... passim

CONGRESSIONAL MATERIALS:

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976)

Page 1 : 10

Page 3 aCe 17

Page 5 10, 14, 18

MISCELLANEOUS AUTHORITIES:

F. Harper, F. James & O. Gray, The Law of Torts

(2d ed. 1986)

Vol. 3 § 17.3 at 589 aed ee 25

the Attorney’s Fees Awards Act of 1976, 59

Notre Dame L. Rev. 1298 (1984) _. 9

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-1630

LOWELL D. HEWITT, et al.,

Petationers.

Vv.

AARON HELMS,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF OF THE

NATIONAL GOVERNORS’ ASSOCIATION,

INTERNATIONAL CITY MANAGEMENT ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

NATIONAL LEAGUE OF CITIES, AND

U.S. CONFERENCE OF MAYORS

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

The amici, organizations whose members include state,

county, and municipal governments and officials through-

out the United States, have a compelling interest in legal

issues that affect state and local governments.

2

This case requires further definition of the circum-

stances under which a plaintiff is a “prevailing party”

within the meaning of 42 U.S.C. § 1988. Amici are con-

cerned that the increasing frequency and amount of at-

torney’s fee awards in civil rights cases threaten the

solvency of state and local governments and that the

court of appeals’ expansive view of the “catalyst” theory

as a basis for awarding attorney’s fees will inhibit state

and local governments in the adoption of needed reforms.

Respondent Helms, a prison inmate, filed suit in 1979

challenging, inter alia, his conviction of prison miscon-

duct on the unsupported testimony of an unidentified in-

formant. In the course of several judicial decisions re-

counted below, the court of appeals ultimately determined

that Helms had prevailed in his litigation and thus de-

served an award of attorney’s fees. The court of appeals

held that a mere declaration of Helms’ rights, even where

no damages were available and no injunctive relief could

be awarded, along with the possibility that he served as

the catalyst for certain administrative reform, made him

a prevailing party.

Under the circumstances of this case, which are

elaborated below, an award of attorney’s fees to Helms

is not justified by Section 1988 and is inimical to the con-

tinuing vitality of state and local governments. Amici

suggest that a plaintiff who has not recovered any sub-

stantive relief cannot be said to be a prevailing party in

any meaningful sense of the word. Amici also suggest

that any attorney’s fees awarded on a catalyst theory

must be justified by a rigorous standard of proof of

causation. If an award of attorney’s fees is appropriate

at all, it must be limited to only that amount fairly al-

locable to the exceedingly minimal success achieved in the

declaration of Helms’ rights. Accordingly, amici submit

this brief to assist the Court in its resolution of this case.*

* Pursuant to Rule 36 of the Rules of this Court, the parties have

consented to the filing of this brief. Their letters of consent have

been filed with the Clerk of the Court.

3

STATEMENT OF THE CASE

On December 3, 1978, Aaron Helms (‘Helms’) was

a prison inmate at the State Correctional Institution at

Huntingdon, Pennsylvania, when several guards were in-

jured during a general disturbance. Following the inci-

dent, Helms was taken from his cell, escorted to an inter-

view with Pennsylvania State Police, and then placed in

restrictive custody. Subsequently, Helms—charged with

the assault of corrections officers and the disruption of

institutional routine—appeared before a Hearing Com-

mittee, an institutional adjudicatory body authorized to

resolve misconduct charges. At that time, the Commit-

tee did not specifically address the issue of Helms’ guilt,

but did order that he remain in a restrictive housing

unit, in “administrative custody.” ! On January 22, 1979,

a second Committee, finding that Helms had assaulted

a prison official and had participated in a prison riot,

sentenced Helms to six months in “Disciplinary Close

Custody.” The finding of guilt apparently rested on an

uncorroborated report of an unidentified informant.?

From this modest beginning has sprung seemingly end-

less litigation between Helms and officials of the Common

wealth of Pennsylvania. On July 26, 1979, Helms filed

a suit pursuant to 42 U.S.C. § 1983 against certain prison

officials in which he challenged (1) his detention in ad-

ministrative custody and (2) his conviction of prison

misconduct. In support of his first challenge, Helms

claimed that his Fourteenth Amendment due process

rights had been infringed by a violation of Pennsylvania’s

Bureau of Corrections regulations governing administra-

tive segregation because the regulations created a liberty

‘The Commonwealth subsequently filed criminal charges against

Helms which were dropped on February 6, 1979.

* This truncated version of the factual predicate to this litigation

may be supplemented by a reading of Helms v. Hewitt. 655 F.2d

487, 489-92 (3d Cir. 1981).

4

interest of which he could be deprived only if he were

afforded due process. In support of his second challenge,

Helms alleged that his conviction was based on an un-

corroborated hearsay account which was constitutionally

insufficient. The complaint sought the customary array

of remedial optiotis with respect to Helms’ restrictive con-

finement, i.e., declaratory and injunctive relief, damages,

costs and attorney’s fees, and added the usual prayer for

other “necessary and proper” relief.

While the case was pending before the United States

District Court for the Middle District of Pennsylvania,

and before any decision, Helms was released from prison

on parole. His litigation juggernaut, however, which was

just gathering steam, rolled on unchecked. When the dis-

trict court granted summary judgment to the defendants,

Helms appealed. The United States Court of Appeals for

the Third Circuit ruled that Helms indeed had a liberty

interest against his transfer to administrative custody,

and that Helms’ due process rights had been violated by

his conviction of prison misconduct on the uncorroborated

hearsay evidence of an unidentified informant. 655 F.2d

487 (1981). The Commonwealth’s officials then petitioned

this Court for a writ of certiorari. The Court granted

the petition, agreed with the court of appeals that Helms

had a liberty interest against his transfer to administra-

tive custody, but concluded that Helms had been afforded

due process with respect to that liberty interest. The de-

fendants did not seek review in this Court of the court of

appeals’ holding with respect to the hearsay issue. 459

U.S. 460 (1983).

On remand, the Third Circuit in turn remanded to the

district court for further proceedings on the hearsay

issue. 712 F.2d 48 (1983). The district court found that

the prison officials were entitled to qualified immunity and

thus refused any award of damages on this claim. Joint

Appendix (“J.A.”) 22a-47a (unpublished). While an

appeal to the Third Circuit was pending, the Pennsylvania

5

Department of Corrections issued a comprehensive revi-

sion of Administrative Directive 801, which governs

prison disciplinary proceedings. The revised Directive

included a new section on the use of confidential source

materials in hearings on charges of prison misconduct.

The Third Circuit later affirmed, without opinion, the dis-

trict court’s judgment against Helms based on defendants’

immunity from damages. 745 F.2d 46 (1984).

Thereafter, Helms filed an application for attorney’s fees

pursuant to the Civil Rights Attorney’s Fees Awards Act

of 1976, 42 U.S.C. § 1988 (“the Fees Act” or “the Act’’).

The district court denied the application, finding that

Helms was not a “prevailing party” within the meaning

of the Act because he had lost his claim for damages; his

claim for injunctive relief had been mooted by his release

from prison; and he had neither sought nor benefitted

from the change in administrative procedure. Appendix

to the Petition for Certiorari (“Pet. App.”) 27a-39a.

The litigation once again proceeded to the Third Circuit,

which reversed the district court. Pet. App. 3a-26a, 780

F.2d 367 (1986). According to the court of appeals, Helms

was a prevailing party because of its ruling on Helms’

first appeal (at which time Helms had already been re-

leased from prison on parole) that his due process rights

had been violated by the prison officials’ unconstitutioral

reliance on the testimony of an unidentified informant.

The court of appeals directed the district court to award

attorney’s fees “for professional services relating to this

issue.” Pet. App. 20a, 780 F.2d at 371.

The court of appeals also considered Helms’ claim that

he was a prevailing party because his suit acted as a

catalyst for the promulgation of the revision of Adminis-

trative Directive 801.* The court stated that it reached

* The court of appeals first referred to the relief allegedly ob-

tained by Helms as the promulgation of Administrative Directive

801 (Pet. App. 13a-14a, 780 F.2d at 369), but subsequently cor-

6

this issue, notwithstanding that it had already found

Helms to be a prevailing party, because “one factor in the

computation of the amount of the fee award is the extent

of relief actually obtained by the prevailing party,” citing

Hensley v. Eckerhart, 461 U.S. 424 (1983). Pet. App.

21a, 780 F.2d at 371. The court of appeals held that if

Helms “can establish causation between his suit and ‘some

of the benefit sought,’ he [would be] a prevailing party

on this issue.” Pet. App. 24a, 780 F.2d at 371. Accord-

ingly, the court of appeals directed the district court to

award Helms attorney’s fees on the first ground and to

hold a hearing on the second ground.

SUMMARY OF ARGUMENT

I. The Civil Rights Attorney’s Fees Awards Act of

1976 provides for the award of a reasonable attorney’s

fee only to a prevailing party. While Congress intended

to reward successful litigants who serve as private at-

torneys general in the civil rights area, it did so within

the framework of our adversary system of justice, and

legislated that only winners may recover attorney’s fees.

As the Court has observed, “the most critical factor” in

ruling on a fee application “is the degree of success

obtained” (Hensley v. Eckerhart, 461 U.S. 424, 436

(1983) ).

Helms did not prevail in his litigation in any mean-

ingful sense. In several years of litigation, at all three

levels of our federal courts, he succeeded only in obtain-

ing a ruling that he should not have been convicted of

prison misconduct solely on the uncorroborated hearsay

rectly noted that what had been issued was a revision of the Direc-

tive. Pet. App. 2la-25a, 780 F.2d at 371, 372. What the court of

appeals did not explain was that Administrative Directive 801 is

a comprehensive regulatory statement of prisoners’ rights and re-

sponsibilities; that it was completely reorganized and revised in

1984 (compare J.A. 58a-84a with J.A. 85a-116a); and that only one

section of the revision (14% of 31 record pages) pertains to the

use of confidential source information (J.A. 10la-102a).

7

evidence of an unidentified informant. At the time that

he obtained this ruling, his earlier request for injunctive

relief had been mooted by his release from prison on

parole; and, on remand, his claim for damages was de-

feated by defendants’ good faith immunity. The result-

ing judgment in favor of defendants was affirmed. Thus,

Helms achieved no tangible success. Defendants, having

achieved a complete victory in terms of the outcome of the

lawsuit, should not now be saddled with Helms’ attor-

ney’s fees.

Even if Helms’ litigation was a catalyst for the revi-

sion of Administrative Directive 801, that would not

make him a prevailing party in his lawsuit, for he ob-

tained none of the individual relief he sought. Helms

did not seek any relief for persons other than himself,

and received no personal benefit from the revision.

II. A civil rights plaintiff may be a prevailing party

eligible for an award of fees even in the absence of a

formal judgment in his favor. For example, a fee award

may be justified if the litigation serves as a catalyst

causing defendants to alter unlawful behavior. However,

an award of fees on a catalyst theory requires a show-

ing of causation which is entirely absent from this record.

The bases for the court of appeals’ direction to the

district court to hold a hearing to determine whether

Helms’ lawsuit served as a catalyst for the revision of

Administrative Directive 801 were (1) an expansive

reading of Helms’ complaint; and (2) the timing of the

the revision. The first ground was contrary to the dis-

trict court’s specific finding that Helms did not “seek

relief in the form of corrective procedures.” The second

ground reflected only the coincidence that Helms’ appeal

from the final judgment against him was still pending

when the revision was issued; the court apparently dis-

counted the fact that the revision was not promulgated

until nearly three years after its ruling that Helms’

rights had been violated.

8

These factors, even buttressed by the fact that a part

of the revision related to the subject matter of Helms’

suit, are insufficient, as a matter of law, to warrant a

formal hearing on Helms’ claim that his lawsuit served

as a catalyst for the revision.

Public policy concerns militate against the facile con-

clusion that individual litigation—particularly unsuccess-

ful litigation—-serves as a catalyst for far-ranging legis-

lative or administrative reforms. The effect of crediting

Helms’ catalyst theory under the circumstances of this

case would be to penalize defendants for action volun-

tarily taken after they had successfully defended the

lawsuit. Moreover, if litigants are not held to a rigid

standard of proof in claiming fees on such a theory, the

result could be to paralyze reforms that are in any way

related to pending or even completed litigation.

Should this Court agree with the court of appeals that

there is sufficient basis in this record to require a hear-

ing to determine whether Helms’ litigation materially

contributed to the revision of Administrative Directive

801, it should make clear that recovery of attorney’s fees

on a catalyst theory requires proof by clear and con-

vincing evidence (1) that “but for” the litigation, the

revision would not have occurred; and (2) that the liti-

gation was the proximate cause of the revision.

III. If the Court concludes that Helms may properly

be considered a “prevailing party” within the meaning

of the Fees Act, any award of attorney’s fees should be

restricted to those services that led to the court of ap-

peals’ ruling that his conviction of prison misconduct was

improperly grounded on the uncorroborated hearsay tes-

timony of an unidentified informant. This declaration

was the only “success” that Helms obtained in the law-

suit; and that ruling provides the only foundation for

his claim that he caused a revision of Administrative

Directive 801.

9

ARGUMENT

I. HELMS IS NOT A PREVAILING PARTY ENTITLED

TO AN AWARD OF FEES

Few statutory provisions have generated as many judi-

cial opinions in the first decade of their existence as has

the Civil Rights Attorney’s Fees Awards Act of 1976. In

the swirling proliferation of litigation, judicial prose, as

a basis for interpreting the Act, is seductive; but reliance

on it, at least in the first instance, is misplaced. As this

Court has consistently observed, “ ‘[t]he starting point in

every case involving con*truction of a statute is the lan-

guage itself.’” Ernst & Ernst v. Hochfelder, 425 U.S.

185, 197 (1976), quoting Blue Chip Stamps v. Manor

Drug Stores, 421 U.S. 723, 756 (1975) (Powell, J., con-

curring).

The language at issue is deceptively simple. The Act

provides, in relevant part, that a district court has discre-

tion, in certain specified federal civil rights actions, to

allow the “prevailing party . . . a reasonable attorney’s

fee as part of the costs.” 42 U.S.C. § 1988, set forth in

Appendix A-1. The Act’s legislative history makes clear

that Congress sought to alter the law as announced in

Alyeska Pipeline Service Co. v. Wilderness Society, 421

U.S. 240 (1975), which had repudiated the judicially

created “private attorney general” exception to the Amer-

ican Rule that prevailing parties cannot recover their at-

torney’s fees from the losing party absent a statutory

authorization or a case falling into preexisting exceptions.‘

As stated in the Senate Report,

[t]he purpose of this amendment is to remedy anoma-

lous gaps in our civil rights laws created by the

United States Supreme Court’s recent decision in

Alyeska Pipeline Service Co. v. Wilderness Society,

* See Note, Surveying the Law of Fee Awards under the Attor-

ney’s Fees Awards Act of 1976, 59 Notre Dame L. Rev. 1293, 1293

n.1 (1984) (describing preexisting exceptions).

10

421 U.S. 240 (1975), and to achieve consistency in

our civil rights laws.

S. Rep. No. 1011, 94th Cong., 2d Sess. 1 (1976), reprinted

in 1976 U.S. Code Cong. & Ad. News 5908, 5909.

Although Congress clearly sought to respond to the

holding in Alyeska, it is crucial to bear in mind the lan-

guage that it chose te accomplish the task. Thus, a fee

applicant must be a “party” who “prevail|s],” and his

fee award must be “reasonable.” This language reflects

at once an intention to reward private attorneys general

in the civil rights area and to observe a measure of fidel-

ity to our adversary system of justice while doing so. By

linking the terms “party” and “prevail,” Congress

acknowledged and acquiesced in an adversary system of

justice that declares winners and losers, and legislated

that only winners are to be awarded attorney’s fees.° And,

as any novice litigator understands, since wins (and

losses) can at times result from fortuity as much as

finesse, from apathy as much as advocacy, the award of

fees must be “reasonable.” Congress sought to reward

successful private attorneys general within the context of

an adversary system of justice, not to compel state and

local governments to subsidize quixotic journeys across the

legal landscape.

A. Helms Won Nothing By His Litigation

In light of this understanding of the Act, it is clear

that in no meaningful sense did Helms prevail in this

litigation. Notwithstanding Helms’ continuing legal as-

asault on the Commonwealth’s officials named as defend-

ants in this suit, the court of appeals could point only to

its earlier ruling that Helms had been denied due process

by the prison officials’ unconstitutional reliance on the

° To be sure, the win would not have to be registered in a final

judgment, but it nonetheless would have to exist. S. Rep. No. 1011,

94th Cong., 2d Sess. 5 (1976), reprinted in 1976 U.S. Code Cong. &

Ad. News 5912.

11

informant’s testimony and to the possibility that Helms’

litigation may have been the catalyst behind the revision

of Administrative Directive 801.

The Third Circuit’s narrow focus ignores the fact that

this case actually involves several years of litigation and

eight decisions at three levels of our federal courts. Helms’

entire achievement was a ruling that he had a due process

right not to have a finding of guilt grounded exclusively

on the testimony of an unidentified informant." And, on

the basis of that ruling, the court of appeals directed the

district court to enter summary judgment for Helms on

that issue unless the defendants established their official!

immunity. 655 F.2d at 502-08. The district court, how-

ever, held that the defendants were entitled to qualified

immunity and accordingly entered summary judgment

for defendants. J.A. 48a. Moreover, Helms’ resounding

“victory’’—the ruling that he had been improperly placed

in disciplinary custody—was achieved after he had been

released from prison on parole.” At the risk of over-

simplication, and with great respect, amici submit that

common sense would seem to present a formidable ob-

stacle to the conclusion that Helms “prevailed.”* Put

® The court of appeals’ holding, on Helms’ first appeal—‘“that he

had a liberty interest in certain prison regulations”—did not make

him a “prevailing party” because this Court held that the require-

ments of due process had been properly observed with respect to

that interest.

7 In fact, Helms was released on parole before the district court’s

first decision in favor of the defendants. The complaint had not

even been filed until after Helms’ release from disciplinary custody.

His six-month sentence to disciplinary custody began on December 3,

1978, and thus ended on June 3, 1979. J.A. 16a. The amended

complaint in this action was not filed until July 26, 1979. J.A. la.

® Helms notes that he is once again incarcerated, presumably to

show that he may benefit from his litigation. Memorandum in

Opposition n.1. It is respectfully submitted that courts must look

to adjudicative, i.e., historical, facts in determining the success of

civil rights litigation. Congress could not have intended to justify

past fees on the basis of future legal infractions by the plaintiff.

12

another way, “[t]lo prevail [under the Act], a plaintiff

must obtain ‘the primary relief sought.’” Carbalan v.

Vaughn, 760 F.2d 662, 666 (5th Cir.), cert. denied, 106

S.Ct. 529 (1985), quoting Taylor v. Sterrett, 640 F.2d

663, 669 (5th Cir. 1981). Helms obtained no such re-

lief.®

Congress did not enact the Fees Act to launch academic

careers or to reward moral victories. See, e.g., Dover

v. Rose, 709 F.2d 436, 489 (6th Cir. 1983) (“Thus,

while the plaintiff may claim a ‘moral victory’ in this

lawsuit, he has failed to prove that he is entitled to any

relief whatsoever” and thus is not a prevailing party

under the Act). The legislative history of the Act con-

tains no shred of evidence that Congress intended to di-

vorce the process of vindication of civil rights, insofar

as that process leads to awards of fees under the Act,

from the adversary system of justice. That system en-

tails winners and losers, and sometimes yields inconclu-

sive results when there are neither winners nor losers.

To secure a fee award under the Act, however, one

must in some real sense be a winner. As this Court has

observed, “Congress has not authorized an award of fees

whenever it was reasonable for a plaintiff to bring a

lawsuit or whenever conscientious counsel tried the case

with devotion and skill. Again, the most critical factor

is the degree of success obtained.” Hensley v. Eckerhart,

461 U.S. 424, 436 (1983) (emphasis added). (Cf.

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) (to

ground a fee award under § 307 of the Clean Air Act,

® Helms puts much store in his achievement of declaratory relief.

See Memorandum in Opposition {| 4. No declaratory judgment was

entered for Helms; he relies on the court of appeals’ declaration of

his due process rights. Moreover, a claim for declaratory relief

is routinely included in many civil complaints; yet, as any litigator

understands, such relief is typically meaningless absent a corre-

sponding award of damages or injunctive relief. Thus, the absence

of a request for declaratory relief in Carbalan in no way distin-

guishes that case from the present one.

13

some success on the merits is required; merely contribut-

ing to the goals of the Act is insufficient).

In contrast to Congress’s focus on successful plaintiffs,

Helms achieved no tangible success. Indeed, it is clear

upon even the most charitable view that Helms’ “success”

amounts at best to a moral victory. First, Helms’ release

from prison mooted his claim to injunctive relief concern-

ing his confinement.'® Second, Helms lost his claim for

damages when the court of appeals affirmed the district

court’s decision that the prison officials whom he sued

vere shielded by qualified immunity. Third, Helms never

sought and could not benefit from the reform provided by

the revision of Administrative Directive 801. Under

these circumstances, Helms simply did not prevail in fact.

In a related context, this Court recently reiterated that

damages awarded pursuant to 42 U.S.C. § 1983 are not

to be based on the abstract value or importance of con-

stitutional rights but rather must be confined to the basic

purpose of Section 1983 damages, 7.e., to compensate per-

sons for injuries caused by the deprivation of constitu-

tional rights. Memphis Community School District v.

Stachura, 106 S.Ct. 2537, 2543-45 (1986); see Carey v.

Piphus, 435 U.S. 247, 254 (1978). It would be strikingly

anomalous, at the very least, to permit a plaintiff to

recover fees for his attorney for abstract “victories”

when that plaintiff may recover nothing for himself.

Such an extension of the Act is simply not warranted.

Cf. Pulliam v. Allen, 466 U.S. 522 (1984) (where dam-

ages are precluded by official immunity, a fee award was

nonetheless possibly appropriate but only because injunc-

tive relief was in fact granted).

10 Although Helms also sought injunctive relief requiring that

his conviction be expunged from his prison records (J.A. 20a), the

district court noted that Helms did not receive any injunctive relief.

Pet. App. 30a. Apparently, this claim was abandoned in the district

court on the remand for trial on the immunity issue.

14

The arguments relied on by Helms and accepted by

the Third Circuit suffer from a basic confusion concern-

ing the Act and this Court’s decisions under the Act.

Helms seems to contend (without opposition) that one

need not return from court with a judgment in hand in

order to be a successful civil rights litigant; other forms

of success are also cognizable under the Act. See S. Rep.

No. 1011, supra, at 5, reprinted in 1976 U.S. Code Cong.

& Ad. News 5912. Amici do not dispute this proposition.

However, this is not a case in which the plaintiff achieved

tangible benefit for himself short of judicial decision.

See, e.g., Maher v. Gagne, 448 U.S. 122 (1980) (consent

decree).!! This litigation is replete with judicial decisions

at all three levels of our federal court system. What this

litigation lacks is not decisions but any tangible benefit

in those decisions for the plaintiff.

Raising a myriad of claims and arguments, Helms

achieved from the Third Circuit an abstract declaration

of a substantive right that possibly could have grounded

a claim for damages if the defendants were legally sus-

ceptible to such a claim, which they were not. This is not

the stuff of “success.” Such a declaration is little more

than interlocutory success that may ultimately, and in

this case did, evaporate for all practical purposes. See

Hanrahan v. Hampton, 446 U.S. 754, 757 (1980) (find-

ing that “it seems clearly to have been the intent of Con-

gress to permit such an interlocutory award only to a

party who has established his entitlement to some relief

on the merits of his claims’). When evaluating an ap-

plication for fees in the absence of a formal judicial deci-

sion granting tangible relief, courts must focus unwaver-

ingly on the substance and cause of the outcome upon

which the litigant rests his claim to have prevailed. See

American Constitutional Party v. Munro, 650 F.2d 184

11 Nor is this a case where plaintiff’s counsel sought remedial

relief in an administrative forum to vindicate rights gained earlier

in a consent decree. See Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air, 106 S.Ct. 3088, 8094-96 (1986).

15

(9th Cir. 1981); cf. Hensley v. Eckerhart, 461 U.S. 424

(1983). The outcome of Helms’ litigation simply does

not withstand this scrutiny.

The Fees Act should not be interpreted in such a way

as to discourage governmental] defendants from interpos-

ing meritorious defenses in civil rights suits, even though

a defense effort might generate significant legal expenses.

Governmental defendants have an obligation to resist

litigation claims that would result in inappropriate pay-

ments from the public treasury. In this case, the defend-

ants’ successful efforts resulted in rejection of all of

Helms’ monetary claims; his remaining claims were ei-

ther moot or abandoned. Having achieved a complete

victory, in terms of the outcome of the lawsuit, defend-

ants are now faced with an attorney’s fee claim in an

amount which might exceed any damages that Helms

would have recovered had the judgment on the issue of

defendants’ official immunity been in his favor. Cf. City

of Riverside v. Rivera, 106 8.Ct. 2686 (1986) ($33,350

damages and more than $245,000 attorney’s fees).

If this Court affirms the court of appeals’ judgment,

governmental defendants will not be able to afford to de-

fend a civil rights suit that presents even a single meri-

torious abstract legal principle. This result would reverse

the usual burden of proof in civil litigation by requiring

defendants not only to resist successfully the plaintiff’s

claims to affirmative relief, but also to demonstrate that

none of his arguments has theoretical validity. Defend-

ants would be placed in an impossible position by an inter-

pretation of Section 1988 that would expose them to lia-

bility for attorney’s fees even if they successfully defend

a lawsuit.

B. The Revision of Administrative Directive 801 Did

Not Benefit Helms So As to Make Him a Prevailing

Party

Helms attempts to claim “success” by relying on a

“catalyst” theory and citing the revision of Administra-

16

tive Directive 801. Even if Helms could establish that

he was the catalyst for the revision (which he cannot,

as we show in Part II, infra), it would not make him

a prevailing party because he received no personal bene-

fit from the Directive, and he sought no relief for anyone

other than himself.2 Helms had been released from dis-

ciplinary custody even before his complaint was filed, and

he was released from prison long before the court of

appeals’ determination that his rights had been violated

through use of the informant’s hearsay testimony. Thus,

the revision of Administrative Directive 801 could not

benefit Helms and could not make him a prevailing party

on his claim for individual relief.”

The legislative history of the Fees Act and the caselaw

make clear that, although Congress intended that the

availability of attorney’s fees in civil rights cases would

enable individual plaintiffs to act as “private attorneys

general,” it nevertheless imposed the requirement that the

plaintiff must be a prevailing party. The only reasonable

conclusion is that Congress must have thought the re-

quirement not inconsistent with the goal. Thus, in the

absence of success on the plaintiff’s individual claim,

vindicating the rights of others will make a plaintiff a

prevailing party only if he specifically pursues and suc-

ceeds in satisfying the claims of others. If the plaintiff

does not advance claims on behalf of others, whatever

benefit may redound to them is not credited to him and

cannot make him a prevailing party.

12 The complaint’s added prayer for “necessary and proper” fur-

ther relief cannot reasonably be stretched so far as to encompass

claims on behalf of other persons because the facts and allegations

of the complaint and the more specific requests for relief relate ex-

clusively to Helms’ own situation. See J.A. 20a-21a.

18 Helms did not bring a class action, in which a plaintiff seeking

relief for others might claim to be a prevailing party because he

had vindicated the rights of others in the class. See, e.g., Parham

vy. Southwestern Bell Tel. Co., 433 F.2d 421 (8th Cir. 1970).

17

In legislating the Fees Act, Congress took cognizance

of the existing caselaw. In particular, the legislative his-

tory cites with approval this Court’s interpretation in

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400

(1968), of the term “prevailing” as used in the Civil

Rights Act of 1964. See S. Rep. No. 1011, supra, at 38,

reprinted in 1976 U.S. Code Cong. & Ad. News 5910.

In Newman, this Court concluded that fees were appro-

priate where the party had succeeded “not for himself

alone but also as a ‘private attorney general.’” 390 U.S.

at 402 (emphasis added). See also Zarcone v. Perry,

581 F.2d 1039, 1042 (2d Cir. 1978), cert. denied, 439 U.S.

1072 (1979) (“Congress was concerned with enforcement

not only of the civil rights of the public at large and of

identifiable groups but also with the rights of individual

plaintiffs”). Other courts have accordingly held that, in

order to support an attorney’s fee award, relief obtained

for others must be in addition to the plaintiff’s personal

success or must have been sought by, and therefore

creditable to, the plaintiff. Compare Institutionalized

Juveniles v. Secretary of Public Welfare, 758 F.2d 897,

910-12 (3d Cir. 1985) (class action), with Othen v. Ann

Arbor School Board, 699 F.2d 309, 313-14 (6th Cir.

1983) (claim for individual relief) ; see also N.A.A.C.P.

v. Wilmington Medical Center, Inc., 689 F.2d 1161, 1167

(3d Cir. 1982), cert. denied, 460 U.S. 1052 (1983)

(plaintiffs “have prevailed for purposes of Section 1988”

if “they can establish causation between their litigation

and ‘some of the benefits’ they sought’) (emphasis

added ; citation omitted).

Thus, even if Helms’ litigation were the catalyst for

the revision of Administrative Directive 801, this would

not make him a prevailing party. As we show below, how-

ever, Helms cannot successfully claim to be the catalyst.

18

Il. THE HELMS LITIGATION WAS NOT THE CATA-

LYST BEHIND THE REVISION OF ADMINISTRA-

TIVE DIRECTIVE 801

As noted earlier, a plaintiff need not obtain formal

relief in order to recover fees under the Act. See, ¢.g.,

Maher v. Gagne, 448 U.S. 122 (1980); S. Rep. No. 1011,

supra, at 5, reprinted in 1976 U.S. Code Cong. & Ad.

News 5912. Thus, a party who vindicates his rights

through a consent judgment or prevails on an important

matter in the course of litigation, even though he does

not ultimately prevail on all the issues, may yet remain

eligible to be awarded fees. One type of success, short

of a formal judicial judgment, for which the plaintiff

may be entitled to a fee award, is achieved when litiga-

tion acts as a “catalyst” for defendants to alter unlawful

conduct.'* In this ease, however, Helms is not entitled to

an award of fees because he has not shown, and cannot

show, that he was the catalyst behind the revision of

Administrative Directive 801.

In determining whether a plaintiff can receive an

award of attorney’s fees on such a “catalyst” theory, the

courts examine the factual and legal environment of the

case presented. As the court explained in Bonnes v. Long,

599 F.2d 1316, 1319 (4th Cir. 1979), in reviewing such

a fee application the district court must evaluate

whether as a quite practical matter the outcome, in

whatever form it is realized, is one to which the

plaintiff [’s] . . . efforts contributed in a significant

way, and which does involve an actual conferral of

benefit or relief from burden when measured against

the benchmark condition. |

14 See, e.g., Robinson v. Kimbrough, 652 F.2d 458, 465 (5th Cir.

1981); see also Othen v. Ann Arbor School Bd., 699 F.2d 309, 313

(6th Cir. 1983) (dictum) ; American Constitutional Party v. Munro,

650 F.2d 184, 187 (9th Cir. 1981) (dictum); cf. Hensley v.

Eckerhart, 461 U.S. 424, 439 n.15 (1983).

sss

19

In this case, as we discuss in Part I, it is clear from the

record that the litigation’s outcome conferred no benefit

on Helms, who had long since been released on parole,

and who had sought relief for no one other than himself.

Moreover, even if revised Administrative Directive 801

is deemed to “involve an actual conferral of benefit or

relief from burden” (Bonnes, supra), Helms has fallen

woefully short of establishing on the record that his ef-

forts contributed to the revision “in a significant way”

(ibid.). See American Constitutional Party v. Munro,

650 F.2d 184, 188 (9th Cir. 1981) (plaintiff must show

“some sort of clear, causal relationship between the litiga-

tion brought and the practical outcome realized”) (em-

phasis in original).

In Ross v. Horn, 598 F.2d 1312 (3d Cir. 1979). cert.

denied, 448 U.S. 906 (1980), the plaintiffs filed a class

action for injunctive relief in district court, challenging

New Jersey’s procedure for handling suspected fraud in

unemployment benefits. After the suit was filed, New

Jersey made changes that cured the alleged faults in its

benefit processing system. This administrative action

then led to the entry of judgment against the plaintiff.

Nevertheless, the court ruled that the plaintiffs might

still be entitled to attorney’s fees. It added that, in as-

sessing whether the plaintiff is “a prevailing party.” a

court must look to the substance of the litigation’s out-

come. If the new procedures, which provided much of

the relief that the plaintiffs had initially sought, were

implemented as a result of the lawsuit, then they were

prevailing parties with respect to a portion of their

claims (which were thereby effectively mooted) irrespec-

tive of the judgment entered against them on the bal-

ance of their claims. /d. at 1322.

Cases such as Ross underscore the importance of the

causal relationship between the lawsuit and the relief

claimed as the basis for the fee award. Although th:

catalyst theory may have a place in the determination

20

whether a plaintiff is a prevailing party, that plaintiff

must do more than identify administrative reform that

took place, fortuitously, after his complaint was filed

and before the decision on his appeal from an adverse

final judgment.’* The coincidence in time is particularly

suspect as evidence of causation in a case like this one

that has now been in the courts for more than seven

years. Helms would depict a scenario in which he with-

stood great efforts at dissuasion and finally prevailed in

a battle waged over prisoners’ civil rights. However, his

mere assertion of causation should be insufficient as a

matter of law to require a formal hearing of his claim

that his lawsuit was the catalyst for revision of the

Administrative Directive.

The two factors relied upon by the court of appeals in

this case—an imaginative rendering of the complaint, and

a telescopic view of the timing of the administrative re-

form in relation to the litigation—must also be insuffi-

cient. as a matter of law, to create an issue regarding

causation. First, the court noted (Pet. App. 22a, 780

F.2d at 371) “that the plaintiff specifically requested a

change in the defendants’ practice so far as it was ap-

plied to him.” The complaint, however, was not couched

in terms of “defendants’ practice.” Helms did not chal-

lenge any existing procedural rules, or even the absence

of such rules. He simply sought relief from his own con-

viction of misconduct and confinement in restricted cus-

tody. Not content with the expansion of the plain terms

of the complaint, the court then inferred that it “con-

templated a modification in the treatment of all prisoners

subject to disciplinary actions based on information ob-

tained from confidential informants.” Pet. App. 22a-23a,

780 F.2d at 371. The court of appeals plainly erred in

its speculation concerning the relief “contemplated” by

15 Helms’ petition for attorney’s fees contains three paragraphs

that simply announce that he is a prevailing party without even

alluding to the catalyst theory or the administrative reform that

Helms claims to have caused. J.A. 49a-50a.

21

Helms.** His complaint was clearly, specifically, and ex-

clusively concerned with his own situation; and the rec-

ord of the case does not contain a single factual allega-

tion tending to demonstrate a nexus between this law-

suit and the revision of Administrative Directive 801.

The touchstone in determining whether a fee award is

appropriate, as this Court has made clear, is the relation-

ship between the relief that the plaintiff has sought and

the relief obtained. See Hensley v. Eckerhart, 461 U.S.

at 434, 440. This Court has never suggested an inquiry

into what relief the plaintiff may have “contemplated.”

Second, the court of appeals found that the “timing of

the promulgation of the revised regulations in relation to

the course of this suit is sufficient to suggest that the dis-

trict court should review carefully the causation issue.”

Pet. App. 24a-25a, 780 F.2d at 371. The suit, however, re-

mained pending only in a technical sense at the time of

the administrative revision. Helms had lost his case.

The only remaining trace of his litigation was the pend-

ency of his appeal on the issue of defendants’ immunity

from damages—an appeal that resulted in affirmance of

the summary judgment that had been entered against

him. The timing of the revision in relation to the single

favorable ruling that Helms received undercuts any reli-

ance on a catalyst theory. The court of appeals had ruled

on June 30, 1981, that Helms’ rights had been violated.

Revised Administrative Directive 801 was not promul-

gated until May 1, 1984. The wheels of government may

turn slowly, but the delay of nearly three years appears

conclusive that Helms’ lawsuit was not the motivating

factor of the revision.

Under these circumstances, amici submit that the court

of appeals erred when it directed a hearing on Helms’

‘6 Indeed, the court’s speculation is directly contrary to the spe-

cific finding of the district court, that Helms did not “seek relief in

the form of corrective procedures ... in the use of undisclosed

informants.” Pet. App. 38a.

22

contention that he served as a catalyst for the revision

of Administrative Directive 801."

Compelling public policy reasons also militate against

permitting Helms to seek attorney’s fees on a catalyst

theory on this record. State and local governments are

often the targets of suits like Helms’. Such entities con-

stantly have procedures and substantive rules under re-

view, and frequently make changes in the rules to benefit

their citizens. Such changes typically occur as one might

expect in a democracy: as a result of the interplay of

such numerous and complex variables that one cannot,

except at the most superficial level, attribute the result

to any single event. This truism is common knowledge to

public policy analysts. Yet the court of appeals, on a

record devoid of any evidence of a connection, would re-

quire a hearing to determine whether Helms’ lawsuit was

a material cause of the revision of Administrative Di-

rective 801. Among other vices, it defies common sense

to posit a catalyst theory on no more than general simi-

larity of subject matter and a coincidence of timing.”

The Administrative Directive in effect at the time of

Helms’ confinement in disciplinary custody was com-

pletely revised. The revisions, extending throughout the

comprehensive regulation, included three new paragraphs

relating to the use of confidential source information

(J.A. 10la-102a).'* Simple logic compels the conclusion

17 This Court has cautioned that “[a] request for attorney’s fees

should not result in a second major litigation.” Hensley v. Ecker-

hart, 461 U.S. 424, 437 (1983).

18 Compare the finding of the district court in this case, that

Helms did not “seek relief in the form of corrective procedures’”’

with the recognition by the district court in Ross v. Horn, “that this

litigation was ‘at least . . . a contributing factor’ in the bringing

about of these procedural changes” (quoted in 598 F.2d at 1322).

19 Helms’ current assertion of his catalyst theory is stated so

broadly that he appears to claim credit for the entire revision;

obviously, his lawsuit, which led to the court of appeals’ ruling that

Helms’ due process rights had been violated by his conviction on

23

that these paragraphs were added as a part of the com-

prehensive revision process, for reasons having little or

nothing to do with Helms.

Crediting Helms’ “catalyst” theory would penalize de-

fendants for an action that was taken after they had

successfully defended his lawsuit. This fact plainly

serves to distinguish those cases which allowed an attor-

ney’s fee on the basis of governmental action for the

benefit of a plaintiff (or a plaintiff class) that was

undertaken before judgment, or after a preliminary deci-

sion favorable to the plaintiff. The revision of the Ad-

ministrative Directive, even as it related to confidential

sources, was not required by any court order, nor taken

in order to forestall a court order.”

uncorroborated hearsay evidence, could not possibly have precipi-

tated revision of the entire Directive, of which only three para-

graphs were remotely relevant to that ruling.

* In Nadeau v. Helgemoe, 581 F.2d 275, 281 (1st Cir. 1978), the

court held that if the “defendants’ conduct . . . is not required by law,

then [they] must be held to have acted gratuitously and plaintiffs

have not prevailed in a legal sense.” Nadeau involved administrative

reform agreed to in a consent decree without any adjudication that

the prior practice was unconstitutional. The case aptly discloses

the difficulty in identifying a catalyst of actions which, as in this

case, are not taken in response to and are not compelled by any

pending litigation. Although the Third Circuit ruled that Helms’

due process rights had been violated, the section in the revised

Directive relating to confidential sources not only went beyond any

relief requested by Helms (who was concerned exclusively with his

Own conviction), but also beyond anything required by the Third

Circuit’s decision. That decision did not prescribe conditions for the

admissibility of confidential hearsay testimony, as the revised Direc-

tive does, but ruled only that prison officials could not base a convic-

tion on such testimony in the absence of corroboration or some

evidence permitting an evaluation of the informant’s credibility.

Because the revision of Administrative Directive 801 was neither

responsive to nor compelled by the court of appeals’ opinion, this

Court could hold, as a matter of law, that Helms’ litigation was not

the cause of the revision. Cf. Jnstitutionalized Juveniles v. Secretary

of Public Welfare, 758 F.2d 897, 915, 920 (3d Cir. 1985) (“gra-

tuitous judicial endorsement” does not make plaintiff a prevailing

party).

24

Moreover, if Helms is permitted to seek an attorney’s

fee merely by claiming credit for the revision, the result

could be to paralyze legislative or administrative reforms

that are in any way related to pending or completed

litigation. The revision of Administrative Directive 801

can undoubtedly be manipulated in such a fashion as to

give rise to attorney’s fee claims by other prison inmates

who have obtained a judicial declaration of their rights

concerning the conditions of their confinement.*' Plainly,

legislators and administrators cannot be presumed, by

their good faith attempts to institute reforms, to be re-

sponding to every minimally meritorious prison complaint

litigated within their State; a reform measure should

not be regarded as such a response in the absence of

specific evidence identified by the plaintiff seeking an

attorney’s fee, linking the reform, in a clear and signifi-

cant way, to a particular lawsuit.

At most, the section on “Confidential Source of In-

formation” may have been suggested by the court of ap-

peals ruling on Helms’ first appeal. Correction officials,

as a part of the process of revising the Administrative

Directive, would undoubtedly have sought to achieve the

greatest currency and constitutional consistency possible.

Therefore, the identification by the Third Circuit in

Helms’ suit of a constitutional flaw in the disciplinary

hearing process may have led them to seek to correct that

flaw.2? But Helms’ litigation was, in this respect, no more

21 The affidavit submitted in support of Helms’ fee application

advises that, as of September 1980, the legal services organization

that represented him had three attorneys working full time on

prison matters. J.A. 57a.

22We note that in suits based on actions taken after the

Third Circuit’s opinion, prison officials might have been unable

to sustain a good faith immunity defense to a damages action.

That kind of a “catalyst” derives from compulsion of a different

sort, and serves far different interests. For one thing, such actions

are taken to protect defendants and not plaintiffs. There is no

reason to credit a plaintiff with causing reforms which benefit

defendants.

25

a catalyst than a lawsuit brought in another jurisdiction

would have been.

Should this Court nevertheless conclude that the tenu-

ous connection between this lawsuit and the revision of

Administrative Directive 801 suffices to warrant a hear-

ing on Helms’ contention that he played a causative role

justifying an award of attorney’s fees, we urge the Court

to set specific guidelines for resolving such claims. Those

guidelines, we submit, should acknowledge the weighty

public policy reasons for the close scrutiny of any catalyst

claim. The burden should be placed on Helms to show by

clear and convincing evidence, that but for his litigation

the Directive would not have been adopted and that his

litigation was the proximate cause of the Directive.

The use of “but for” or sine qua non analysis is ap-

propriate where, as here, the delineation of causal rela-

tionships is difficult, the interest against compelled sub-

sidization of unproductive litigation is substantial, and

the lower courts and litigants need to be guided by a

legal standard that benefits from the evolutionary in-

fluences of the common law. State and local governments

must feel free to adopt beneficial changes to their sub-

stantive and procedural rules as a matter of sound gov-

ernmental policy and without concern that, by so doing,

they will be required to pay large legal fees generated in

litigation that, although contemporaneous with a policy

change, bears little or no relationship to its causal

origins.’ “It is probably safe to say that whenever this

(‘but for’] test is met, the cause in fact relation does

*3 It is instructive to note, by way of analogy to the law of torts,

that the common law has long tended to exclude from evidence the

adoption of post-accident precautions because “to admit the evi-

dence wouid be a great deterrent against taking the precaution, and

the law chooses to encourage the precaution.” F. Harper, F. James

& O. Gray, 3 The Law of Torts, § 17.3, at 589 (2d ed. 1986). Simi-

larly, sound public policy reasons suggest that adoption of legisla-

tive and regulatory reforms not be discouraged by any concomitant

obligation to pay legal fees unless the litigation for which fees are

sought actually caused the reform.

26

exist.” F. Harper, F. James & O. Gray, 4 The Law of

Torts, § 20.2, at 91 (2d ed. 1986).

In addition, the Court should require that the cause-

in-fact be the proximate (or legal) cause, so that there

will be no question that the factual event is “causally

relevant.” Jd. at 92 n.3. For example, litigation may in

fact cause an administrative body to convene a meeting,

and therefore satisfy the “but for” test; but if the ad-

ministrative body then adopts a new rule that is not

directly related to the litigation, the requirement of

proximate (or legal) cause is not met.

Finally, the Court should require the plaintiff to satisfy

his burden by “clear and convincing” evidence. “The

function of a standard of proof... is to ‘instruct the

factfinder concerning the degree of confidence our so-

ciety thinks he should have in the correctness of factual

conclusions for a particular type of adjudication.’ ”’

(Addington v. Texas, 441 U.S. 418, 423 (1979), quoting

In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J.,

eoneurring). As this Court has repeatedly observed, “we

must be mindful that the function of legal process is to

minimize the risk of erroneous decisions.” Addington v.

Texas, 441 U.S. at 425; Mathews v. Eldridge, 424 U.S.

319, 335 (1976); Speiser v. Randall, 357 U.S. 518, 525-

26 (1958). In this area of crucial importance both to

civil rights plaintiffs and to state and local governments,

adoption of the “but for” rule, the proximate cause re-

quirement, and the “clear and convincing” evidence stand-

ard will help ensure that only those litigants who are

truly catalysts are compensated under the Act.

Ill. IF HELMS IS DETERMINED TO BE A PREVAIL-

ING PARTY, HIS ATTORNEY’S FEE AWARD

MUST BE NARROWLY LIMITED TO THE MINI-

MAL SUCCESS THAT HE ACHIEVED

If Helms may properly be considered a “prevailing

party” within the meaning of the Fees Act, this Court

should make it clear that any award of attorney’s fees

27

must be restricted to those services that contributed di-

rectly to his minimal success. Hensley v. Eckerhart, 461

U.S. 424 (1983).

This is not a case in which “the plaintiff’s claims for

relief ... involve a common core of facts or [are] based

on related legal theories” (Hensley, 461 U.S. at 435).

As detailed in the Statement of the Case (pp. 3-5,

supra), Helms pursued two distinct claims, factually re-

lated only in that they both arose from defendants’ ac-

tions taken in response to the prison riot on December 3,

1978. Two distinct actions were challenged, however, and

they were challenged on distinct legal theories. It is thus

not difficult to separate Helms’ claims one from the other.

This Court has made clear that when the plaintiff pre-

sents “distinctly different claims for relief that are based

on different facts and legal theories,” even if those claims

are raised in a single lawsuit against the same defend-

ants, “counsel’s work on one claim will be unr-lated to

his work on another claim.” Hensley, 461 U.S. at 434-35.

The Court concluded that “[t]he congressional intent to

limit awards to prevailing parties requires that these

unrelated claims be treated as if they had been raised in

separate lawsuits, and therefore no fee may be awarded

for services on the unsuccessful claim.” Jd. at 435 (foot-

note omitted).

Helms’ first claim, in which he contended that his

detention in administrative custody violated his due

process rights, was ultimately rejected by this Court.

459 U.S. 460 (1983). Helms thus achieved no success

on this claim, and is not entitled to any fee for counsel’s

efforts pertaining to it.

If Helms succeeded at all, it could only have been on

his second claim, which related to his conviction of prison

misconduct and his sentence to disciplinary custody. This

second claim led to the court of appeals’ ruling that

Helms’ constitutional rights had been violated by defend-

28

ants’ reliance on the uncorroborated hearsay testimony

of an unidentified informant. That ruling came after

the end of Helms’ imprisonment, so that injunctive relief

was no longer available.** After remand, Helms’ claim

for damages was defeated by reason of defendants’ qual-

ified immunity.

Thus, the only “success” achieved by Helms on his

second claim was the declaration of his rights on his first

appeal to the Third Circuit, and, possibly, being the cata-

lyst for the inclusion in revised Administrative Directive

801 of the provisions relating to the use of confidential

sources. Under Hensley, only the time reasonably spent

on successful claims is compensable. We consider both

aspects of Helms’ “success” below.

If the Court finds that Helms is a prevailing party

because of the court of appeals’ declaration of his rights,

the award of attorney’s fees must be restricted to the

time actually spent in obtaining that ruling. Any time

spent on his first claim or after the court of appeals’ first

decision is not compensable. See Institutionalized Juve-

niles v. Secretary of Public Welfare, 758 F.2d 897, 920

(3d Cir. 1985) (district court directed to “disallow en-

tirely all hours spent litigating [the] case after the date

on which plaintiffs received their last benefit from de-

fendants’’).

We note that if the Court accepts Helms’ view that he

is a prevailing party because he achieved this declaration

of his rights, the Court need not address his contention

that, in addition, he caused a revision of the Administra-

tive Directive. Assuming, arguendo, that Helms could

establish that he had some effect on the process of revis-

ing the Directive, that effect would be limited to its inclu-

sion of provisions relating to the use of confidential

sources. Because he did not seek any administrative re-

24 Helms’ claim was mooted by the passage of time alone, not, as

in Ross v. Horn, 598 F.2d 1312 (3d Cir. 1979), because of action

taken by defendants in response to his lawsuit.

29

form, he can claim causative effect on the Directive only

because of the court of appeals’ declaration that his due

process rights were violated by the use of the hearsay

evidence against him. Thus, the time spent with the

alleged result of triggering the administrative reform

corresponds exactly with the time reasonably spent to

convince the court of appeals that Helms’ conviction vio-

lated his procedural rights.*®

If the Court finds that the mere declaration of Helms’

rights is not sufficient to make him a prevailing party,

but does not reject, as a matter of law, his contention

that he was a catalyst for administrative reform, then

amici submit that the instructions on remand to the dis-

trict court should make clear that causation can be de-

rived solely from the court of appeals’ declaration of a

due process violation. Thus, even if the district court

ultimately finds that Helms was a catalyst, the most

that he could obtain as attorney’s fees would be compen-

sation for the time reasonably spent in obtaining that

court of appeals ruling.

It should be noted that amici do not attempt to resur-

rect a wooden rule of proportionality between fees and

damages. In City of Riverside ». Rivera, 106 S.Ct. 2686

(1986), the Court rejected the view that fees and dam-

ages must bear an ideal mathematical relationship to one

another. Riverside involved plaintiffs who had unques-

tionably succeeded on the merits and had received sub-

stantial damages. This Court upheld an award of attor-

ney’s fees, many times larger than the damages, on the

basis that the district court’s findings in favor of the

plaintiffs were not clearly erroneous. Riverside does not

affect Hensley’s holding that an attorney’s fee may be

awarded only to compensate work reasonably performed

to achieve success. In holding that the hours reasonably

2° Cf. Blum v. Stenson, 104 S.Ct. 1541, 1549 (1984) (“ ‘results

obtained’ generally will be subsumed within other factors used to

calculate a reasonable fee’’) (citation omitted).

30

expended in obtaining substantial success should be fully

compensated, even if the resulting fee appears dispre-

portionate to the damages, Riverside does not retreat

from Hensley’s teaching that the Act affords no compen-

sation for services performed in pursuit of severable un-

successful claims.

In the present case, the district court ruled that no

fee award was appropriate because Helms was not a pre-

vailing party, only to be reversed on legal grounds by the

court of appeals. Amici contend that the district court

properly denied any fee award, as Helms simply did not

prevail in fact. Should this Court disagree, and conclude

that Helms should be rewarded for achieving a modicum

of success, the fee award should be restricted, in accord-

ance with Hensley, to the effort required to obtain that

hollow victory.

Should the case be remanded to the district court, we

urge this Court to emphasize clearly the continued vital-

ity of Hensley—results matter.

CONCLUSION

For the foregoing reasons, the judgment of the Court

of Appeals should be reversed.

Respectfully submitted,

PETER J. KALIS BENNA RUTH SOLOMON *

KIRKPATRICK & Chief Counsel

LOCKHART JOYCE HOLMES BENJAMIN

1500 Oliver Building STATE AND LOCAL LEGAL CENTER

Pittsburgh, PA 15222 444 North Capitol St., N.W.

(412) 355-6562 Suite 349

Of Counsel Washington, D.C. 20001

(202) 638-1445

* Counsel of Record for

Amici Curiae

August 29, 1986

A-1

APPENDIX

The Civil Rights Attorneys Fees Awards Act of 1976,

42 U.S.C. § 1988, provides:

The jurisdiction in civil and criminal matters conferred

on the district courts by the provisions of this Title, and

of Title “CIVIL RIGHTS,” and of Title “CRIMES,” for

the protection of all persons in the United States in their

civil rights, and for their vindication, shall be exercised

and enforced in conformity with the laws of the United

States, so far as such laws are suitable to carry the same

into effect; but in all cases where they are not adapted

to the object, or are deficient in the provisions necessary

to furnish suitable remedies and punish offenses against

law, the common law, as modified and changed by the

constitution and statutes of the State wherein the court

having jurisdiction of such civil or criminal cause is

held, so far as the same is not inconsistent with the

Constitution and laws of the United States, shall be

extended to and govern the said courts in the trial and

disposition of the cause, and, if itis of a criminal nature,

in the infliction of punishment on the party found guilty.

In any action or proceeding to enforce a provision of sec-

tions 1981, 1982, 1983, 1985, and 1986 of this title, title

IX of Public Law 92-318, or title VI of the Civil Rights

Act of 1964, the court, in its discretion, may allow the

prevailing party, other than the United States, a reason-

able attorney’s fee as part of the costs.

R.S. § 722; Pub. L. 94-559, § 2, Oct. 19, 1976, 90 Stat.

2641; Pub. L. 96-481, Title II, § 205(c), Oct. 21, 1980,

94 Stat. 2330.