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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 167

## Text

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

2

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

i
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

iv

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

Vv

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.

2

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

3

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

4

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

5

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). |

6

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

7

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.

9

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

10

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

11

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

12

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,

13

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.

Respectfully submitted,

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 Public Citizen

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A07. Public record. Not legal advice.