Amicus Curiae Brief — Friends of Earth v. Laidlaw Environmental Services

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MOTION FILED

JAN 15 1999 a

No. 98-822

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

FRIENDS OF THE EARTH, et al.,

Petitioners,

Vv.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

AND BRIEF OF AMICUS CURIAE PUBLIC CITIZEN IN

SUPPORT OF PETITION FOR A WRIT OF CERTIORARI

COLETTE G. MATZZIE

BRIAN WOLFMAN

(Counsel of Record)

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW

Washington, DC 20009

(202) 588-1000

Counsel for amicus curiae Public Citizen

January 15, 1999

_— —

]

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE IN SUPPORT OF PETITION FOR A WRIT

OF CERTIORARI

Public Citizen seeks leave to file the attached brief

amicus curiae in support of the petition for a writ of certiorari.

The petition seeks review of a decision of the Fourth Circuit

which, based on its interpretation of this Court's decision in

Steel Co. v Citizens for a Better Environment, 118 S. Ct. 1003

(1998), dismissed as moot an appeal of a civil penalty awarded

in a citizen suit arising under the Clean Water Act. The Fourth

Circuit also set aside an award of attorneys’ fees, even though

plaintiffs had indisputedly caused respondent Laidlaw to halt its

continuing violations of the Clean Water Act through successful

prosecution of the lawsuit. In direct conflict with ten other

federal courts of appeals, the Fourth Circuit forbids an award of

attorneys’ fees in statutory fee-shifting cases on a "catalyst"

theory. The Fourth Circuit's rule is also out of line with this

Court's attorneys’ fees jurisprudence.

Public Citizen is a non-profit, consumer advocacy

organization with nearly 150,000 members nationwide. Since

1971, Public Citizen has been active in the courts, in Congress,

and before regulatory agencies concerning the enforcement of

a wide-range of health and safety, environmental, and other

consumer legislation. Public Citizen has represented plaintiffs

in litigation over federal fee-shifting statutes in environmental

and other cases. See Melkonyan v. Sullivan, 501 U.S. 89

(1991); Jones v. Brown, 41 F.3d 634 (Fed. Cir. 1994);

Chesapeake Bay Foundation v. United States Dep't of

Agriculture, 11 F.3d 211 (D.C. Cir. 1993), cert denied, 115 S.

Ct. 315 (1994); Dunn v. Florida Bar, 889 F.2d 1010 (1 Ith Cir.

1989), cert. denied, 498 U.S. 811 (1990). Public Citizen also

served as counsel on the petition for certiorari from the en banc

Fourth Circuit decision holding that a fee award under a catalyst

theory is never permissible. See S-/ & S-2 v. State Bd. of Educ.,

21 F.3d 49, 51 (4th Cir.), cert. denied, 513 U.S. 876 (1994). In

all of these cases, Public Citizen has sought to further the

policies behind federal fee-shifting legislation: providing a

means for ordinary citizens, who otherwise could not afford

counsel, to enforce the mandates of federal law.

The petition presents three questions for review: two on

the merits and the third concerning attorneys’ fees. Amicus

agrees with petitioners that review should be granted on all of

the questions presented. However, Public Citizen confines this

brief to why, even if certiorari is not granted on the first two

questions, the Court should grant certiorari on the third question

concerning attorneys’ fees. First, the Fourth Circuit's rule

against catalyst fee awards is inconsistent with decisions of this

Court defining "prevailing party" status. See Texas State

Teacher's Ass'n v. Garland Indep. School Dist., 489 U.S. 782

(1989); Hewitt v. Helms, 482 U.S. 755, 761 (1986); Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983); Maher v. Gagne, 448

U.S. 122, 129 (1980). Second, the Fourth Circuit's rule is in

direct conflict with decisions of ten courts of appeals holding

that statutory fees may be awarded under a "catalyst" theory.

Third, certiorari should be granted to ensure the uniform and

just application of federal law. The Fourth Circuit's rule against

catalyst fee awards places a significant obstacle to citizens living

in Maryland, Virginia, North Carolina, and South Carolina

seeking to use the "private attorney general" fee provisions to

enforce federal laws as Congress intended. Because the

accompanying amicus brief focuses on the question of why

certiorari should be granted on the third question, and no other

party or amici is likely to emphasize that issue, we ask that

Public Citizen be granted leave to file the accompanying brief.

Petitioners consent to the filing of this brief but respondent

Laidlaw opposes.

Respectfully submitted,

Colette G. Matzzie

Brian Wolfman

(Couns.l of record)

Public Citizen Litigation Group

1600 2( th Street, NW

Washin ston, DC 20009

(202) 5 :8-1000

Counse for amicus Public Citizen

TABLE OF CONTENTS

TABLE OF ALUTROURITEES ... 1... cece eee e eee li

EUs OF ARMIOCUS .. ccc cece ec wees l

STATUTORY BACKGROUND .................... l

STATEMENT OF THE CASE ............... 22 ee, l

REASONS FOR GRANTING THE WRIT ............ 4

L THE FOURTH CIRCUIT'S "NO CATALYST"

RULE CONTRAVENES THE DECISIONS OF

DE, dacvetewdsessdeeneeradens « 5

Il. THE FOURTH CIRCUIT'S "NO CATALYST"

RULE CONFLICTS WITH DECISIONS OF TEN

OTHER COURTS OF APPEALS.............. 9

Il. THE FOURTH CIRCUIT'S "NO CATALYST"

RULE IMPAIRS ENFORCEMENT OF FEDERAL

CIVIL RIGHTS, ENVIRONMENTAL AND

CONSUMER STATUTES. ................ 12

i Cadisie cnadeaweess daweeadhes sas 13

TABLE OF AUTHORITIES

CASES

American Council for the Blind of Colorado, Inc. v. Romer,

992 F.2d 249 (10th Cir.),

cert. denied, 510 U.S. 864 (1993) 0000.00 occceee. 10

Atlantic States Legal Foundation, Inc. v. Eastman Kodak

Co., 933 F.2d 124 (2d Cir. 1991) 000s. 5, 11

Baumgartner v. Harrisburg Housing Authority,

Be ee I, I erttsitiectnctidistntinseanireninineinns 9, 10

Beard v. Tedska, 3\ F.3d 942 (10th Cir. 1994) 200000000... 10

Citizens Against Tax Waste v. Westerville City School,

RT 10

Clark v. Sims, 28 F.3d 420 (4th Cir. 1994) 20000000. 4

Collins v. Romer, 962 F.2d 1508 (10th Cir. 1992) ............ ll

Comfort Lake Association, Inc. v. Dresel Contracting, Inc.,

ot Ee ee 9

Craig v. Gregg County, Texas, 988 F.2d 18

I aa 10

Environmental Defense Fund v. Reilly,

too, 4k eee 1]

Evans v. Jeff D., 475 U.S. 717 (1986) 000. cccccccceees 5

Farrar v. Hobby, 506 U.S. 103 (1992) ..............000000... 4,8,9

Friends of the Earth, Inc., et al., v. Laidlaw Enviro.

Services, 890 F. Supp. 470 (D.S.C. 1995) ..000... 2

Friends of the Earth, Inc., et al., v. Laidlaw Enviro. Services,

956 F. Supp. 588 (D.S.C. 1997) oon... 2,3

Hanrahan v. Hampton, 446 U.S. 754 (1979)... 6

Hensley v. Eckerhart, 461 U.S. 424 (1983) o..0.....-ccccccccoooe 7

Hewitt v. Helms, 482 U.S. 755 (1987) .000.000..ooococccceeees 6

Jean v. Nelson, 863 F.2d 759, aff'd, 496 U.S. 154 (1988) . 11

Kilgour v. Ci, $3 F.3d 1007 (9th Cir. 1995) 000000... 9

Little Rock School District v. Pulaski County Special Sch.

District No. 1, \7 F.3d 260 (8th Cir. 1994) «00.00.0000... 11

Maduka v. Meissner, 114 F.3d 1240 (D.C. Cir. 1997) ........ 9

Maher v. Gagne, 448 U.S. 122 (1980) 22.000. 6

Marbley v. Bane, 57 F.3d 224 (2d Cir. 1994) 00000000... 9

Marek v. Chesney, 473 U.S. 1 (1985) ...........cccccccceeeeeeeeeeeees 5

Morscott, Inc. v. City of Cleveland,

Be IY GIO eccccccsccncsscccssececsscocnsncccsens ll

Nadeau v. Helgemoe, 581 F.2d 275 (ist Cir. 1978) .......... 10

Newman v. Piggie Park Enterprises, Inc.,

es I iicccnseinicssnihttianicnnienieicnsemnaniniinniainiiinini 5

Paris v. United States Department of Housing and Urban

Development, 988 F.2d 236 (ist Cir. 1993) ................ 10

Pembroke v. Wood County, Texas, 981 F.2d 225 (Sth Cir.),

cert. denied, 508 U.S. 973 (1993) ..............c0cccsceees 10

Pennsylvania, et al., v. Delaware Valley Citizens Council

for Clean Air, et al., 478 U.S. 546 (1986)... 12

Public Citizen Health Research Group v. Young,

909 F.2d 546 (D.C. Cir, 1990) ooo... ceceees 10

Ramos v. Lamm, 539 F. Supp. 730 (D. Colo. 1982) ........... 5

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) .......... 5,8

S-1 and S-2 v. State Board of Educ., 2\ F.3d 49

(en banc), cert. denied, 513 U.S. 876 (1994) ............ 4,9

Texas State Teachers Association v. Garland Independent

Sch. Dist., 489 U.S. 782 (V9B9) ooo. eeetees 8

Wilderness Society v. Babbitt, 5 F.3d 383 (9th Cir. 1993) . 11

Zinn by Blankenship v. Shalala, 35 F 34 273

(7th Cir, 1994) ooocccccccccccssssessssssesssessesneesavveveee 9,10, 11

STATUTES & LEGISLATIVE HISTORY

Clean Water Act, 33 U.S.C. §§ 1251, ef seq .....

33 U.S.C. § 1342(a) .............

33 U.S.C. § 1365(a) ............

H.R. Rep. No. 1558, 94th Cong. 2d Sess. 1-3 (1976) ...... 5,8

S. Rep. No. 1011, 94" Cong., 2d Sess. 5 (1976) ....0.00000..... 7

S. Rep. No. 233, 98th Cong., Ist Sess. 24-25 (1983) .......... 8

S. Rep. No. 50, 99th Cong., Ist Sess 33 (1985) 0000000000000... 7

]

BRIEF OF AMICUS CURIAE IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

INTEREST OF AMICUS

The interest of amicus Public Citizen is set out in the

foregoing motion for leave to file this brief amicus curiae.'

STATUTORY BACKGROUND

The relevant provisions of the Clean Water Act, 33

U.S.C. §§ 1251, ef seq., are set forth in the petition at pages 2-3

and in the petition's appendix at 10a. Section 505(a) of the

Clean Water Act, 33 U.S.C. § 1365(a), authorizes any citizen to

bring suit to enforce certain violations of the Act. That section

specifically empowers the courts to issue injunctive relief and

impose civil penalties. The Clean Water Act provides that the

court may award attorneys’ fees and costs "to any prevailing or

substantially prevailing party." 33 U.S.C. § 1365S(d). The

attorneys’ fee provision in the Act is similar to that in dozens of

other federal environmental, consumer, and civil rights statutes.

STATEMENT OF THE CASE

This case involves the successful efforts of three citizen

groups to force respondent Laidlaw, operator of a hazardous

waste incinerator, into compliance with the limits for discharge

' Pursuant to Supreme Court Rule 37.6, Public Citizen

states that no counsel for a party has authored this brief in whole

or in part, and that no person or entity other than Public Citizen

has made a monetary contribution to the preparation or

submission of this brief.

of specified pollutants in its Natural Pollutant Discharge

Elimination System ("NPDES") permit. The Clean Water Act

prohibits the discharge of any pollutant by any person unless

discharge is in compliance with a permit issued pursuant to one

of the permit programs established by the Act. Section 402(a)

of the Clean Water Act, 33 U.S.C. § 1342(a), provides for the

issuance of NPDES permits to allow the discharge of

wastewater. Each permit includes limits on discharge and

requires that the permittee monitor and report its compliance

with these limits. Jd In this case, Laidlaw violated its permit

hundreds of times before plaintiffs filed suit, discharging

mercury, lead, nickel, arsenic, cadmium, chromium, and zinc

into the North Tyger River. Friends of the Earth, Inc., et al.,

v. Laidlaw Enviro. Services, 956 F. Supp. 588, 593 (D.S.C.

1997). The cause of the discharge violations was an inadequate

wastewater treatment system and Laidlaw’s failure to adequately

control mercury in its operations. Friends of the Earth, Inc., et

al, v. Laidlaw Enviro. Services, 890 F. Supp. 470, 478 (D.S.C.

1995).

The procedural history of the case is set forth in detail in

the Petition for a Writ of Certiorari at pages 3-7. For the

purposes of this brief, only a few key facts are relevant.

First, Laidlaw continually violated its permits for a six-

year period preceding, and for many months following, plaintiffs’

initiation of this action. 956 F. Supp. at 613-21. During the six-

month period prior to the suit, Laidlaw violated its mercury

limits 103 times, including violations as much as 13 times over

its permit limit. 890 F. Supp. at 619-21.

Second, only after plaintiffs filed suit did Laidlaw take

steps to install the proper filters and equipment to control its

illegal discharges. In July 1992, a month after plaintiffs filed

suit, Laidlaw installed new carbon absorption equipment. 890

F. Supp. at 483. Six months later, Laidlaw installed additional

equipment that aided the performance of the carbon filters in

removing mercury. /d. As a result, the number and severity of

its mercury violations dropped though there were still 13

violations after the complaint was filed. 956 F. Supp. at 621.

Third, after numerous pre-trial proceedings, the district

court conducted a three-day trial in July and August 1995 on

liability and relief. 956 F. Supp. at 592. In January 1997, the

district court entered judgment for plaintiffs, assessing a penalty

of $405,800 (payable to the U.S. Treasury) against Laidlaw, and

awarding plaintiffs their attorneys’ fees and costs. /d. at 610-11.

The district court concluded that, since Laidlaw had by that time

achieved substantial compliance with its permit, there was no

need for an injunction, but that Laidlaw's penalties and payment

of costs would be sufficient deterrents to prevent Laidlaw from

violating its permit in the future. /d.

Fourth, the Fourth Circuit dismissed the appeal and

remanded with directions to dismiss the case as moot based on

this Court's decision in Steel! Co. See Petition at App. 8a-9a.

The court of appeals held that, because plaintiffs had not

appealed the denial of injunctive relief, and the penalty award

could not redress any injury suffered by plaintiffs, plaintiffs no

longer had standing. /d at 7a. Significantly, the court of

appeals held that it could not award plaintiffs their attorneys’

fees and costs because the law of the Fourth Circuit specifically

forbids an award of fees under a "catalyst" theory. Jd. at 9a

n.5.

Thus, although plaintiffs were successful in forcing

Laidlaw to comply with its Clean Water Act permit after years

of violations and performed precisely the role Congress intended

citizens to serve under the Clean Water Act, in the end no

penalties were assessed, and plaintiffs were denied their fees and

costs incurred over six years of vigorous litigation, including

numerous pre-trial motions, a three-day trial, and appeals.

REASONS FOR GRANTING THE WRIT

The Fourth Circuit's categorical rejection of the well-

established and widely-accepted "catalyst" theory misreads the

language and history of the statutes awarding fees to "prevailing

parties," contravenes this Court's endorsement of "catalyst"

theory in a series of cases, and conflicts with the interpretation

of the "prevailing party" language adopted by every other court

of appeals to consider the issue. The Fourth Circuit's narrow

interpretation of the “prevailing party" language was first

announced in S-/ and S-2 v. State Board of Educ., 2\ F.3d 49

(en banc) (interpreting the Civil Rights Attorney's Fees Awards

Act, 42 U.S.C. § 1988 ("Section 1988")), cert. denied, 513 U.S.

876 (1994). Later that same year, the "no catalyst" rule was

applied in another Section 1988 case, Clark v. Sims, 28 F.3d

420 (4th Cir. 1994), and most recently was extended to this case

arising under the Clean Water Act. The Fourth Circuit's rule

dramatically narrows the grounds for fee awards to plaintiffs

seeking to vindicate federal civil rights or enforce federal

environmental or consumer statutes. There is nothing in this

Court's cases, including its decision in Farrar v. Hobby, 506

U.S. 103 (1992), that warrants the Fourth Circuit's restrictive

view of the term "prevailing party."

The divergence between the Fourth Circuit and the

decisions of this Court, and the split between the Fourth Circuit

and the ten other courts of appeals, are sufficient reasons to

warrant a grant of certiorari, but there is an additional reason

why certiorari should be granted. This case is exceptionally

important to the just and uniform administration of federal law.

The Fourth Circuit's application of its "no catalyst" rule for

attorney's fees places an enormous obstacle to ordinary citizens

seeking access to justice and enforcing federal statutory rights.

There are over 100 federal fee shifting statutes, all of which

predicate an award of fees on some degree of success by the

plaintiffs. See Marek v. Chesney, 473 U.S. 1, 43-51 (1985)

(appendix listing federal statutes authorizing award of attorneys’

fees); Ruckelshaus v. Sierra Club, 463 U.S. 680, 684 (1983)

(Clean Air Act); see also Ramos v. Lamm, 539 F. Supp. 730,

755-57 (D. Colo. 1982) (table). The rationale underlying these

"citizen suit" statutes is essentially the same -- to enable those

who have been wronged to seek redress and to encourage the

vindication of federal policy by authorizing “private attorney

generals." See Evans v. Jeff D., 475 U.S. 717, 741 (1986)

(Section 1988 gives "victims of civil rights violations a powerful

weapon that improves their ability to employ counsel, to obtain

access to the courts and therefore to vindicate their rights");

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402

(1968) (Title II of 1964 Civil Rights Act); see also Atlantic

States Legal Foundation, Inc. v. Eastman Kodak Co., 933 F.2d

124, 127 (2d Cir. 1991) (Clean Water Act). Without the

possibility of a fee award after a successful suit, citizens seeking

to enforce their statutory rights will have a difficult time

retaining counsel and these rights will exist in name only -- out

of reach to citizens. See H.R. Rep. No. 1558, 94th Cong. 2d

Sess. 1-3 (1976) (report accompanying enactment of Section

1988). |

I. THE FOURTH CIRCUIT'S "NO CATALYST"

RULE CONTRAVENES THE DECISIONS OF

THIS COURT.

This Court has in a number of cases endorsed the

"catalyst" theory of attorneys’ fee awards by recognizing that a

final judgment on the merits is not a necessary prerequisite to

achieving the status of a “prevailing party." For instance, in

Hewitt v. Helms, 482 U.S. 755 (1987), the Court expressly

acknowledged a "catalyst" theory under Section 1988. "It is

settled law, of course, that relief need not be judicially decreed

in order to justify a fee award under section 1988." /d. at 761.

As if to reject the very theory later adopted by the Fourth

Circuit, the Court further noted that, "[a] lawsuit sometimes

produces voluntary action by the defendant that affords the

plaintiff all or some of the relief he sought through a judgment --

e.g., a monetary settlement or a change in conduct that redresses

the plaintiffs grievances. When that occurs, the plaintiff is

deemed to have prevailed despite the absence of a formal

judgment in his favor." /d. at 760-61. After all, what one seeks

in a lawsuit is not a judicial pronouncement for its own sake but

to change the behavior of the defendant in some way. /d. Thus,

"if a defendant, under pressure of the lawsuit, alters his conduct

(or threatened conduct) towards the plaintiff that was the basis

for the suit, the plaintiff will have prevailed." Jd.

Similarly, in Maher v. Gagne, 448 U.S. 122 (1980), the

Court stated that "[nJothing in the language of section 1988

conditions the district court's power to award fees on full

litigation of the issues or on a judicial determination that the

plaintiff's rights have been violated." /d. at 129. Rejecting the

argument that a settlement -- without a judgment on the merits

-- cannot afford "prevailing party" status under section 1988,

Maher quoted a passage of the Senate Report accompanying the

enactment of section 1988. See id. ("(Flor purposes of the

award of counsel fees, parties may be considered to have

prevailed when they vindicate rights through a consent judgment

or without formally obtaining relief.") (quoting S. Rep. No.

1011, 94th Cong., 2d Sess. 5 (1976)). See also Hanrahan v.

Hampton, 446 U.S. 754, 756-57 (1979) (per curiam)

(recognizing, in reliance on the legislative reports, that a person

may “in some circumstances be a ‘prevailing party’ " if his rights

are vindicated "without formally obtaining relief"); Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983) (prevailing party if "she

succeeds on any significant issue in litigation which achieved

some of the benefit the parties sought in bringing suit").”

* The House Report accompanying Section 1988

explicitly endorses treating cases in which a defendant's

"voluntary compliance” affords plaintiffs the requested remedy

no differently than cases in which the plaintiffs obtain relief

through a favorable judgment on the merits, a settlement, or a

consent decree.

The phrase "prevailing party" is not intended to be

limited to the victor only after entry of a final judgment

following a full trial on the merits . . . . If the litigation

terminated by consent decree, for example, it would be

proper to award counsel fees [citations omitted]. A

"prevailing party” should not be penalized for seeking an

out-of-court settlement, thus helping to lessen docket

congestion. Similarly, after a complaint is filed a

A court should still award fees even though it might

conclude, as a matter of equity that no formal relief.

such as an injunction, is needed.

(continued...)

Despite this Court's decisions on “prevailing party"

status, all of which endorse the "catalyst" theory, the Fourth

Circuit derives a contrary rule from this Court's decision in

Farrar v. Hobby, 506 U.S. 103 (1992). But Farrar is not to the

contrary. In fact, the Court in Farrar did not consider or rule

on the validity of the "catalyst" theory. Rather, the issue in

Farrar was whether a fee award of $280,000 was reasonable,

assuming the plaintiff had technically prevailed through an

award of $1 in a suit seeking $17 million. In the course of a

general discussion on fee awards under Section 1988, the Court

stated that, to be a prevailing party, a “plaintiff must obtain at

least some relief on the merits of his claim," an “enforceable

judgment against the defendant," or “comparable relief through

a consent decree or settlement." /d. at 111. Citing to the test

articulated in Texas State Teachers Ass'n v. Garland Indep. Sch.

Dist., 489 U.S. 782, 792 (1989), the Court explained that a

“plaintiff prevails when actual relief on the merits of his claim

materially alters the legal relationship between the parties by

modifying the defendant's behavior in a way that directly

benefits the plaintiff." 506 U.S. at 111.

The Fourth Circuit incorrectly construed the comments

?(...continued)

H.R. Rep. No. 1558, 94th Cong., 2d Sess. 7 (1976). The

legislative materials accompanying the 1987 amendments to the

Clean Water Act similarly support the view that a "prevailing

party” is one who settles the case as surely as one who litigates

to judgment. See Petition for Certiorari at 22 (citing S. Rep.

No. 50, 99th Cong., Ist Sess 33 (1985); S. Rep. No. 233, 98th

Cong., Ist Sess. 24-25 (1983)). Congress's only concern was

that parties who lost not receive fee awards. /d; see also

Ruckelshaus, 463 U.S. at 682.

in Farrar about obtaining relief through an enforceable

judgment, consent decree, or settlement as an exhaustive list,

foreclosing the possibility of a fee award where the plaintiff

achieves relief through voluntary compliance by the defendant.

Writing for a one-vote en banc majority in S-/ and S-2, Judge

Wilkinson held that a “prevailing party" must achieve success by

virtue of “a court's authority," and not by any other means. 21

F.3d at 51. Nothing in Farrar’s holding suggests that prevailing

party status may not be achieved in other ways and, in fact, the

context makes clear that the list in Farrar is not exclusive and

that the core inquiry remains the one articulated in Jexas State

Teachers, Hewitt, and Hensley -- alteraiion of the legal

relationship between a plaintiff and a defendant in a way that

directly benefits the plaintiff. 506 U.S. at 111. As the Third and

Seventh Circuit have noted, "it is not likely that the Supreme

Court would overturn such a widespread theory without even

once mentioning it, particularly when it was inapplicable to the

case at hand." Baumgartner v. Harrisburg Housing Authority,

21 F.3d 541, 546-50 (3d Cir. 1994); see also Zinn by

Blankenship v. Shalala, 35 F.3d 273, 274-76 (7th Cir. 1994).

In sum, the decision in Farrar cannot be read to foreclose a

catalyst theory of fee recovery.

IL. THE FOURTH CIRCUIT'S "NO CATALYST"

RULE CONFLICTS WITH DECISIONS OF TEN

OTHER COURTS OF APPEALS.

Ten other courts of appeals have, post-Farrar,

confirmed the vitality of the “catalyst" theory of recovery.

Compare S-1 and S-2, 21 F.3d at 51 with Comfort Lake Ass'n,

Inc. v. Dresel Contracting, Inc., 138 F.3d 351, 357-58 (8th Cir.

1998) (Clean Water Act); Maduka v. Meissner, 114 F.3d 1240,

1241 (D.C. Cir. 1997) (Equal Access to Justice Act ("EAJA"));

Marbley v. Bane, 57 F.3d 224, 233-35 (2d Cir. 1994) (Section

1988); Kilgour v. City of Pasadena, 53 F.3d 1007, 1010-11 (9th

Cir. 1995) (Section 1988); Zinn by Blankenship v. Shalala, 35

F.3d 273, 274-76 (7th Cir. 1994) (Section 1988); Beard v.

Tedska, 31 F.3d 942, 950-52 (10th Cir. 1994) (Individuals with

Disabilities Educational Act); Baumgartner v. Harrisburg

Housing Authority, 21 F.3d 541, 546-50 (3d Cir. 1994) (Section

1988); American Council for the Blind of Colorado, Inc. v.

Romer, 992 F.2d 249, 250-51 (10th Cir. (Section 1988), cert.

denied, 510 U.S. 864 (1993); Craig v. Gregg County, Texas,

988 F.2d 18, 20-21 (Sth Cir. 1993) (Voting Rights Act); Paris

v. United States Dep't of Housing and Urban Development, 988

F.2d 236, 238 (Ist Cir. 1993) (EAJA and Fair Housing Act);

Citizens Against Tax Waste v. Westerville City School, 985 F.2d

255, 257-58 (6th Cir. 1993) (Section 1988); Pembroke v. Wood

County, Texas, 981 F.2d 225, 231 n.27 (Sth Cir.) (Section

1988), cert. denied, 508 U.S. 973 (1993). Most of these cases

explicitly reject the argument accepted by the Fourth Circuit in

S-/ and S-2, and the decision below, that Farrar overruled sub

silentio the prior decisions of this Court and the law of the

circuits that embrace the catalyst theory of recovery.

These cases all emphasize that the key question is one of

causation, i.e. whether the suit caused the defendant to change

its conduct to the plaintiffs benefit, rather than the form by

which defendant's compliance takes place. See, e.g., Public

Citizen Health Research Group v. Young, 909 F.2d 546, 550

(D.C. Cir. 1990); Nadeau v. Helgemoe, 581 F.2d 275 (ist Cir.

1978). Once the conditions of causation and substantial benefit

to the plaintiff are satisfied, there is no need for the additional

requirement that there be a favorable judgment, or that the

change in conduct or law be judicially mandated or formalized

by judicial decree. Thus, in Baumgartner, the Third Circuit

explained that "if a plaintiff already has achieved what is sought

through litigation, there is no need for a judgment to enforce

that which has been achieved, particularly when there is no

possibility that there will be any need for enforcement in the

future." 21 F.3d at 547. "[I}f defendants could deprive plaintiffs

of attorneys’ fees by unilaterally mooting the underlying case by

conceding to plaintiffs’ demands, attorneys might be more

hesitant about bringing ... these civil rights suits, a result

inconsistent with Congress's intent in enacting section 1988."

Id; accord Zinn, 35 F.3d at 274-76. Courts award statutory

fees in cases even where the merits of the claims are moot. See

Jean v. Nelson, 863 F.2d 759, 766, aff'd, 496 U.S. 154 (1988)

(EAJA); Little Rock School Dist. v. Pulaski County Special Sch.

Dist. No. 1, 17 F.3d 260, 262 (8th Cir. 1994) (Section 1988);

Collins v. Romer, 962 F.2d 1508, 1513 (10th Cir. 1992)

(Section 1988); Morscott, Inc. v. City of Cleveland, 936 F.2d

271, 272-73 (6th Cir. 1991) (same). Environmental fee-shifting

cases have typically followed this approach. See, e.g.,

Environmental Defense Fund v. Reilly, | F.3d 1254, 1257-58

(D.C. Cir. 1993) (Resource Conservation and Recovery Act).

Thus, a plaintiff may be a prevailing party in the absence of a

judicial determination on the merits. See, e.g., Wilderness

Society v. Babbitt, 5 F.3d 383, 386 (9th Cir. 1993) (EAJA);

Atlantic States Legal Foundation, 933 F 2d at 128 (Clean Water

Act).

Under the Fourth Circuit's prohibition on "catalyst" fee

awards, however, plaintiffs are deprived of any award of

attorneys’ fees even though they would be entitled to such a fee

award virtually everywhere else in the country. Thus, citizens of -

the four states within the Fourth Circuit are significantly

circumscribed in their ability to take advantage of the fee

shifting provisions under federal civil nghts, environmental, and

consumer statutes by comparison with citizens of the other

states. In the context of the Clean Water Act, the conflict

becomes even more striking and unfair: Pennsylvania citizens

living along a river that crosses from Pennsylvania into

Maryland may recover the costs incurred for suing to abate

water pollution although Maryland citizens, perhaps only a few

miles away, may not. Assuring uniformity on the standard for

awarding statutory fees in lawsuits that are brought across the

country is critical to guaranteeing equal application of the law.

iil. THE FOURTH CIRCUIT'S "NO CATALYST"

RULE IMPAIRS ENFORCEMENT OF FEDERAL

CIVIL RIGHTS, ENVIRONMENTAL, AND

CONSUMER STATUTES.

The Fourth Circuit's rule that attorneys’ fees may never

be awarded under a catalyst theory makes more difficult

enforcement of federal environmental, consumer and civil rights

statutes using the "private attorney general" provisions. Time

and time again, Congress has recognized that, without the

means to retain counsel and mount a successful prosecution of

a citizen suit, there will likely be substantial underenforcement

of federal statutory mandates. The fee-shifting provisions in

civil rights and environmental statutes serve similar purposes.

"Section 1988 was enacted to insure that private citizens have

a meaningful opportunity to vindicate their rights protected by

the Civil Rights Acts." Pennsylvania, et al., v. Delaware Valley

Citizens Council for Clean Air, et al., 478 U.S. 546, 559 (1986)

(citing Hensley, 461 U.S. at 429). Unless reasonable attorney's

fees can be awarded for bring civil rights actions, many

legitimate claims will not be redressed. /d at 560. Citizens who

bring actions to abate pollution perform a public service and "in

such instances the courts should award costs of litigation to

such party." /d.

The Fourth Circuit's rule significantly circumscribes the

availability of attorneys’ fees under federal fee shifting statutes,

and contravenes Congress's intent by depriving many deserving

litigants of fees despite their success in vindicating federal

statutes. If the Fourth Circuit's rule is allowed to stand, it will

virtually assure that fewer citizen suits -- either under the civil

rights statutes or the environmental statutes -- will be brought

in that circuit. Combined with the Fourth Circuit's holding that

a defendant may moot out the entire complaint, including an

assessment of civil penalties, by dragging out the case until it

brings itself into compliance, and the enormous expense

involved in litigating these cases to a successful resolution,

citizen groups will not be able to find attorneys able to muster

the financial resources to bring these cases contrary to

Congress's manifest intent..

CONCLUSION

The petition for a writ of certiorari should be granted.

Although granting certiorari on all three questions presented by

petitioner would be appropriate, even if the Court is not inclined

to grant certioran on the first two merits question, amicus urges

the Court to grant certiorari on the third question to settle the

conflict in the circuits over the award of attorneys’ fees under a

“catalyst” theory.