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

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Supreme Gourt, U. 9%

FIEEQOD

MAY 17 1999

No. 98-822 asia

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 Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF FOR PUBLIC CITIZEN AND THE AMERICAN

CIVIL LIBERTIES UNION AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

COLETTE G. MATZZIE STEVEN R. SHAPIRO

BRIAN WOLFMAN AMERICAN CIVIL LIBERTIES

(Counsel of Record) UNION FOUNDATION

PUBLIC CITIZEN LITIGATION 125 Broad Street

GROUP New York, NY 10004

1600 20th Street, NW (212) 549-2500

Washington, DC 20009

(202) 588-1000

Counsel for amicus curiae Public Citizen and

the American Civil Liberties Union

May 14, 1999

* Se rrr > ae . a —— eee oes ile a

TABLE OF CONTENTS

TABLE OF ALTTEOUREE MD 0. ccc ccc cere ee nees il

POS WF GE 9 6 6 oi csscnevusdensceeeeeeey l

SLATERGENE OF Thee CASE... 2... cece ees: 3

SUMMARY OF ARGUMENT ..................... 5

re Pee re 7

L. A CITIZEN SUIT IS NOT MOOT WHERE THE

ONLY REMAINING REMEDY IS_— CIVIL

PENALTIES AND WHERE CONTINUING

VIOLATIONS ARE ALLEGED AND PROVED. . 7

II. PLAINTIFFS MAY BE "PREVAILING PARTIES"

EVEN IF POST-COMPLAINT CESSATION OF

ILLEGAL CONDUCT MOOTS THE

ROUEN 6 64 cd ee vane snabeeanes —_

ORD x0 2 00:46.02545400 4000840 bee ae eaees 19

TABLE OF AUTHORITIES

CASES

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

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

Nee ie ainsi cus sappeniitelnianeneesonsees 11

Arvinger v. Mayor and City Council of Baltimore,

Be e P, BO OD coccesccsnvssscansscevesesececeseconees 12

Atlantic States Legal Foundation, Inc. v. Pan American

Tanning Corp., 993 F.2d 1017 (2d Cir. 1993) 0000000... 9

Atlantic States Legal Foundation, Inc., v. Stroh Die

Casting Co., 116 F.3d 814 (7th Cir.), cert. denied,

Lo) Bee Le ee eee

Atlantic States Legal Foundation, Inc. v. Tysen Foods, Inc.,

897 F.2d 1128 (11th Cir. 1990) 0... SE

Baumgartner v. Harrisburg Housing Authonty,

21 F.3d 541 (3d Cir. 1994) 0... poe OU OG

Beard v. Tedska, 3\ F.3d 942 (10th Cir. 1994) 0... di

(hesapeake Bay Foundation v. United States Department

of Agric., 11 F.3d 211 (OC. Cir. 1993),

cert. denied, 513 U.S. 927 (1994) ... 2

(itizens Against Tax Waste v. Westerville City School,

985 F.2d 285 (6th Cir. 1993) nnn, 1]

Clark v. Sims, 28 F.3d 420 (4th Cir. 1994) oo, 12

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

138 F.3d 351 (8th Cir. 1998) ons. 9,11

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

SI, TO ia iaciiitat tainted ai ee i. 11

Dunn v. Florida Bar, 889 F.2d 1010 (1 1th Cir. 1989),

cert. denied, 498 U.S. 811 (1990) ooooooooooccccccens, 2

Ellis v. Brotherhood of Railway, Airline & SS. Clerks,

Ce a caechanedainaoonenan 9

Evans v. Jeff D., 475 U.S. 717 (1986) ................ oan 10

Farrar v. Hobby, 506 U.S. 103 (1992) ............. 6, 14, 15, 16

Friends of the Earth v. Laidlaw, 149 F.3d 303 (1998) .. 4, 17

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

Servs., 890 F. Supp. 470 (D.S.C. 1995) 20... 3,4

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

Servs., 956 F. Supp. 588 (D.S.C. 1997) 200... 3,4

Gwaltney of Smithfield Lid. v. Chesapeake Bay Foundation,

a te. - 7,10,17

Hanrahan v. Hampton, 446 U.S. 754 (1979) 0000. WB

Hensley v. Eckerhart, 461 U.S. 424 (1983) 0... 1, 13

Hewitt v. Helms, 482 U.S. 755 (1986) 2000000000 1, 12

Hudson v. United States, 118 S. Ct. 488 (1997) ............. 8

Jean v. Nelson, 863 F.2d 759 (11th Cir.),

I OI CI cette 18

Jones v. Brown, 41 F.3d 634 (Fed. Cir. 1994) 00... 2

Kilgour v. City of Pasadena, 53 F.3d 1007

EET eS) Ae eR ee 1]

Little Rock School District v. Pulaski County Special School

District #1, 17 F.3d 260, 262 (8 Cir. 1994) ........... 18

Maduka v. Meissner, 114 F.3d 1240 (D.C. Cir. 1997) ...... 1]

Maher v. Gagne, 448 U.S. 122 (1980) 0.00... 1, 13,17

Marbley v. Bane, 57 F.3d 224 (2d Cir. 1994) ....... 11, 16

Marek v. Chesney, 473 U.S. 1 (1985S) .............:cccccceseeeeeeees 10

Melkonyan v. Sullivan, 501 U.S. 89 (1991) 0. 2

Nadeau v. Helgemoe, 581 F.2d 275 (ist Cir. 1978) | ....... 16

Natural Resources Defense Council, Inc. v. Texaco Refining

and Marketing, Inc., 2 F.3d 493 (3d Cir. 1993) ............ )

Newman v. Piggie Park Enterprises, Inc.,

ey Fe iia aathibsiclisiiidmtsentpinilonsmaianiinth 10

Paris v. United States Department of Housing and Urban

Development, 988 F.2d 236 (ist Cir. 1993) 0000... 11

Pembroke v. Wood County, Texas, 981 F.2d 225

(Sth Cir.), cert. denied, 508 U.S. 973 (1993) ............. 1]

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

for Clean Air, et al., , 478 U.S. 546 (1986) ..00............ 10

Rhodes v. Stewart, 488 U.S. 1 (1988) .........000000. 16

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) ...... 10, 17

S-1 & S-2 v. State Board of Education, 2\ F.3d 49 (4th Cir),

cert. denied, 513 U.S. 876 (1994) ....... i a 6, 11, 15

Statewide Reapportionment Advisory Cmte. v. Beasley,

Pf ee 12

Steel Co. v Citizens for a Better Environment,

A ESEE EST Ets eas ec eee 1,4, 7,8

Texas State Teacher's Association v. Garland Independent

School Dist., 489 U.S. 782 (1989) ..000......... 1, 14, 15, 16

Tull v. United States, 481 U.S. 412 (1987) 000000... 8

University of Texas v. Camenisch, 451 U.S. 390 (1981) ..... 9

Watkins v. Fordice, 7 F.3d 453 (Sth Cir. 1993) .......0......... 18

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ....... x

Zinn by Blankenship v. Shalala, 35 F.3d 273

I ani nadia eatieinidiieniialnenieaernene 11, 15, 18

STATUTES

I 8

CE ATA CT 3

33 U.S.C. § 1365(a) oo cccccccccccccsvesscoseesseeseosseesevsvevsessveseee 8

ke TT) 7

I i al 17

LEGISLATIVE MATERIALS

H.R. Rep. No 1558, 94th Cong. 2d Sess. 1-3 (1976) . 11, 14

S Rep. No. 233, 98th Cong., Ist Sess. 24-25 (1983) ........ 14

S. Rep. No. 50, 99th Cong., Ist Sess 33 (1985) 0000000000000... 14

S. Rep. No. 1011, 94th Cong., 2d Sess. 5 (1976) .............. 13

A Legislative History of the Water Quality Act of 1987,

100th Cong, 2d Sess. Sen. Print 144 (Nov. 1988) ...... 17

BRIEF AMICUS CURIAE IN SUPPORT OF

PETITIONERS

INTEREST OF AMICI

Based on its interpretation of this Court's decision in

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

(1998), the Fourth Circuit dismissed as moot cross appeals in a

Clean Water Act citizen suit awarding civil penalties. The

Fourth Circuit also held that petitioners could not be awarded

attorney's fees, even though petitioners had caused respondent

Laidlaw to halt its continuing violations of the Clean Water Act

through successful prosecution of the lawsuit.

Because other amici with experience in environmental

litigation will discuss ihe merits in detail, this brief primarily

addresses the third question on which certiorari was granted:

whether defendant may avoid payment of attorney's fees because

the case was dismissed for mootness, even though the litigation

was, as a factual matter, responsible for bringing the defendant

into compliance with the Clean Water Act.' As we discuss

below, the Fourth Circuit's rule against "catalyst" fee awards is

inconsistent with decisions of this Court defining "prevailing

party" status, see 7exas State Teacher's Ass'n v. Garland Indep.

' Counsel for the parties have consented to the filing of

this amicus curiae brief, and the letters of consent are being

filed with the Court simultaneously with the filing of this brief

Pursuant to Supreme Court Rule 37.6, amici state 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 and the

ACLU has made a monetary contribution to the preparation or

submission of this brief.

School Dist., 489 U.S. 782, 792 (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), as well as

the rule in every other circuit.

Public Citizen is a non-profit, consumer advocacy

organization with approximately 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 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 Found. v. United States

Dep't of Agric., \\ F.3d 211 (DC. Cir. 1993), cert. denied, 513

U.S. 927 (1994), Dunn v. Florida Bar, 889 F.2d 1010 (11th

Cir. 1989), cert. denied, 498 U.S. 811 (1990). 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

federal law.

The American Civil Liberties Union is a nationwide,

nonprofit, nonpartisan organization with nearly 300,000

members dedicated to the principles of liberty and equality

embodied in the Constitution and this nation's civil rights laws.

In pursuit of those goals, the ACLU maintains an active

litigation program in all fifty states and frequently seeks

recovery of court-awarded fees. The ACLU therefore has a

direct interest in the outcome of this case and a more general

concern that the Fourth Circuit's restrictive interpretation of the

fee-shifting statutes will hamper enforcement of the civil rights

laws contrary to congressional intent. Since its founding in

1920, the ACLU has appeared before this Court on numerous

occasions, both as counsel for parties and as amicus curiae.

STATEMENT OF THE CASE

This case involves the successful efforts of three citizen

groups to force respondent Laidlaw, the operator of a hazardous

waste incinerator, to comply with the limits for discharges of

specified pollutants in its National Pollutant Discharge

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

prohibits the discharge of any pollutant by any person unless the

discharge complies 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 for the discharge of wastewater Each

permit includes limits on discharge and requires that the

permittee monitor and report its compliance with these limits.

Id.

Before petitioners filed this suit, Laidlaw had violated its

permit hundreds of times, discharging mercury, lead, nickel,

arsenic, cadmium, chromium, and zinc into the North Tyger

River. Friends of the Earth, Inc., et al., v. Laidlaw Envil.

Servs., 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 adequately to control mercury in its

operations. Friends of the Earth, Inc., et al., v. Laidlaw Envil.

Servs., 890 F. Supp. 470, 478 (D.S.C. 1995).

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

petitioners’ brief. For the purposes of this brief, only the

following key facts are relevant.

Laidlaw continually violated its permits for a six-year

period preceding, and for many months after, petitioners filed

this suit in June 1992. 956 F. Supp. at 613-21. During the six-

month period prior to the filing of 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. After

petitioners filed suit Laidlaw took steps to install the proper

filters and to control the feed rate of mercury-containing waste

into its incinerator to abate its illegal discharges. As a result, the

number and severity of its mercury violations dropped sharply,

although there were still 13 violations after the complaint was

filed. 956 F. Supp. at 621.

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 against Laidlaw payable to the U.S. Treasury, and

stating that defendant would be responsible for plaintiffs’

attorney's 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 litigation

costs would be sufficient to deter Laidlaw from violating its

permit in the future. /d.

On appeal, the Fourth Circuit remanded with directions

to dismiss the case as moot based on this Court's decision in

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

1003 (1998). See 149 F.3d 303, 306-07 (1998). 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.

Id. Accordingly, the penalty was vacated. /d. In addition, the

court of appeals held that it could not award plaintiffs their

attorney's fees and costs because Fourth Circuit precedent

forbids an award of fees under a "catalyst" theory. /d. at 307

n.5.

Thus, plaintiffs were successful in forcing Laidlaw to

comply with its Clean Water Act permit after years of violations.

Nonetheless, because the claim for injunctive relief was moot,

Laidlaw avoided payment of all civil penalties. Moreover, even

though plaintiffs performed precisely the role Congress intended

citizens to serve under the Clean Water Act, plaintiffs were

denied all fees and costs incurred over six years of vigorous and

successful litigation, including numerous pre-trial motions, a

three-day trial, and appeal.

SUMMARY OF ARGUMENT

Amici submit this brief principally to address the

question whether attorney's fees may be awarded where

plaintiffs achieve post-complaint compliance without a litigated

judgment, consent decree, or formal settlement. Nevertheless,

amici strongly believe that the Fourth Circuit erred on the merits

and, for that reason, they briefly address the merits issues in Part

I. In our view, this Court's decision in Steel Company does not

mandate that an environmental citizen suit be dismissed as moot

when, because of post-complaint compliance by the defendant,

the only available remedy is civil penalties payable to the United

States.

In Part Il, we turn to the attorney's fees question. The

Fourth Circuit's rule that plaintiffs may not recover attorney's

fees under federal fee-shifting statutes, unless they litigate to

final judgment or otherwise obtain an enforceable court order,

misreads the language of the statutory fee-shifting statutes and

misunderstands this Court's "prevailing party" jurisprudence.

The critical issue in determining whether a plaintiff is a

"prevailing party” is whether there has been a material alteration

of the legal relationship between plaintiff and defendant as a

result of the suit, not the particular form that such alteration

takes (voluntary compliance, settlement, or litigated judgment).

Thus, to receive an award of fees under a "catalyst" theory,

plaintiffs must demonstrate that, as a result of their lawsuit, they

achieved the objectives of the case through settlement, final

judgment, or because the defendant "voluntarily" complied with

the law.

The Fourth Circuit stands alone in its view that, under

Farrar v. Hobby, 506 U.S. 103 (1992), a prevailing party must —

have achieved success by virtue of “a court's authority" and not

by any other means. See S-/ & S-2 v. State Bd. of Educ., 21

F.3d 49, 51 (4th Cir. )(en banc), cert. denied, 513 U.S. 876

(1994). Every other federal circuit permits recovery of

attorney's fees under a "catalyst" theory.”

? This Court need only reach the attorney's fees issue if

it affirms the Fourth Circuit on the merits. If the Court reverses

the Fourth Circuit on the merits, as amici believe it should, it

may remand for further proceedings without reaching the

attorney's fees issue at this time. Nonetheless, since the

attorney's fees issue could be at issue in this suit on remand, and

since it is an important issue that affects numerous litigants in

civil rights and other statutory fee-shifting cases, it would be

appropriate for this Court to reach the attorney's fees question

even with a remand on the merits to resolve the split in the

(continued...)

ARGUMENT

I. A CITIZEN SUIT IS NOT MOOT WHERE THE

ONLY REMAINING REMEDY IS_ CIVIL

PENALTIES AND WHERE CONTINUING

VIOLATIONS ARE ALLEGED AND PROVED.

Unlike in Steel Company v. Citizens for a Better

Environment, 118 S. Ct. 1003 (1998), where the plaintiffs did

not, and could not, allege continuing violations at the time they

filed their complaint, here petitioners not only alleged, but also

proved, continuing violations of the limits in respondent

Laidlaw's NPDES permit for mercury discharges. Because

Laidlaw appeared to be complying with its permit limits by the

time the case reached its remedial phase, the district court

declined to issue an injunction in the exercise of its equitable

discretion. It did, however, impose substantial civil penalties, in

part to deter future violations. The district court also stated that

plaintiffs would be entitled to recover their attorney's fees and

costs. See 33 U.S.C. § 1365(d).

On appeal, the Fourth Circuit's concern about the

continuing vitality of the lawsuit once the claim for injunctive

relief had been denied should have been analyzed under this

‘Court's decision in Gwaltney of Smithfield Ltd. v. Chesapeake

Bay Foundation, 484 U.S. 49, 66 (1987). Applying Gwaltney

and the well-settled principles that it reaffirmed, the Fourth

Circuit should have placed a “heavy" burden on respondent

Laidlaw to demonstrate that there was "no reasonable

expectation" that the violations would recur before dismissing

?(...continued)

courts of appeals.

the complaint as moot and vacating the civil penalties. /d.

(citing United States v. W.T. Grant Co., 345 U.S. 629, 633

(1953)). See also Steel Co., 118 S. Ct. at 1019-20. In fact, no

such burden was placed on respondent Laidlaw; for this reason

alone the Fourth Circuit's decision should be reversed.

In addition, even though citizen plaintiffs do not have

standing to bring an action for penalties where they can neither

allege ongoing violations when the complaint is filed nor prove

continuing violations at trial, see Steel Company and Gwaltney,

nothing in Article III precludes these plaintiffs from litigating the

remedial penalty phase of a case that involved continuing

violations at the time of filing, even if there no longer is a claim

for an injunction. As explained in greater detail in petitioners’

brief and the briefs of the other amici, an award of civil penalties

and entry of a declaratory judgment redress injuries suffered by

these citizen plaintiffs through deterrence of future violations in

those cases where plaintiffs have proved post-complaint

violations. See Tull v. United States, 481 U.S. 412, 422 (1987);

Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982); see

also Hudson v. United States, 118 S. Ct. 488, 494 (1997) (“all

civil penalties have some deterrent effect").

Thus, in cases in which citizen plaintiffs have alleged

(and proved) continuing violations of the defendant's NPDES

permit, the interest of those plaintiffs in an award of civil

penalties as a deterrent to future violations is enough of an

interest to sustain Article III standing through the remedial

phase. Otherwise, Congress's intent that citizen suit plaintiffs

may recover both civil penalties and injunctive relief will be

frustrated. See 33 U.S.C. §§ 1319(d), 1365(a). Moreover, even

if a citizen plaintiff's interest in an award of civil penalties is a

minimal one, which amici believe it is not, a minimal interest in

deterring future violations through civil penalties is as significant

as the interest in a nominal damages award which this Court has

recognized can keep a case alive where an injunctive relief

claim is moot. See Ellis v. Brotherhood of Ry., Airline & S.S.

Clerks, 466 U.S. 435, 442 (1983) ("[A]s long as the parties

have a concrete interest, however small, in the outcome of the

litigation, the case is not moot"); see also University of Texas v.

Camenisch, 451 U.S. 390, 394 (1981).

By comparison, the contrary rule endorsed by the Fourth

Circuit would create perverse incentives. If mooting injunctive

relief eliminates all relief, plaintiffs will be forced to argue that

an injunction is needed and the courts will be required to decide

difficult claims for injunctive relief where the real dispute is over

an award of civil penalties. Indeed, the United States will be

forced to intervene to protect its right to the civil penalties.

Defendants, on the other hand, will seek to delay determinations

on the merits until they comply and thereby avoid all penalties

no matter how significant the violations. See Natural Resources

Defense Council, Inc. v. Texaco Ref. and Mktg., Inc., 2 F.3d

493, 503-04 (3d Cir. 1993). On the merits, therefore, amici

respectfully urge the Court to reverse and adopt the views of

five federal circuits that post-complaint compliance does not

moot a claim for civil penalties under the Clean Water Act.

* See Comfort Lake Ass'n, Inc., v. Dresel Contracting,

Inc., 138 F.3d 351, 356 (8th Cir. 1998); Atlantic States Legal

Found., Inc., v. Stroh Die Casting Co., 116 F.3d 814, 820 (7th

Cir.), cert. denied, 118 S. Ct. 442 (1997); Natural Resources

Defense Council, Inc. v. Texaco Ref. and Mktg,. Inc., 2 F.3d

493, 502-03 (3d Cir. 1993); Atlantic States Legal Found., Inc.

v. Pan Am.Tanning Corp., 993 F.2d 1017, 1020-21 (2d Cir.

1993); Atlantic States Legal Found., Inc. v. Tyson Foods, Inc.,

(continued...)

II. PLAINTIFFS MAY BE "PREVAILING PARTIES"

EVEN IF POST-COMPLAINT CESSATION OF

ILLEGAL CONDUCT MOOTS THE

LITIGATION.

Over 100 federal fee shifting statutes 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 attorney's fees); Ruckelshaus v.

Sierra Club, 463 U.S. 680, 684 (1983) (Clean Air Act). The fee

provision of the Clean Water Act, like many fee-shifting

statutes, requires that plaintiffs demonstrate that they are

"prevailing" or "substantially prevailing" parties. See 42 U.S.C.

§ 1365(d). The court may award such fees and costs "in issuing

any final order." /d.

The rationale underlying all of these "citizen suit" and

"private attorney general" statutes is essentially the same -- to

enable those who have been wronged to seek redress and to

encourage the vindication of federal policy by private parties.

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 Enters., Inc., 390 U.S. 400, 402 (1968) (Title II of

1964 Civil Rights Act). The purpose of the citizen suit

provision under the Clean Water Act is to abate violations of the

law by both deterring future harm and punishing past, illegal

conduct. See Gwaltney, 484 U.S. at 61; see also Pennsylvania,

et al., v. Delaware Valley Citizens Council for Clean Air, et al.,

‘(...continued)

897 F.2d 1128, 1135-36 (11th Cir. 1990).

478 U.S. 546, 559 (1986). Without the possibility of a fee

award after a successful suit, citizens seeking to enforce these

statutes will all too often have a difficult time retaining counsel.

As a result, these rights will exist in name only -- out of reach to

ordinary citizens. See H.R. Rep. No. 1558, 94th Cong. 2d Sess.

1-3 (1976) (report accompanying enactment of Section 1988).

Alone among the courts of appeals,‘ the Fourth Circuit

interprets the “prevailing party" language and this Court's

jurisprudence to preclude recovery under the well-established

"catalyst" theory. That catalyst theory recognizes that a party

may achieve the objectives of litigation by causing a change in

the defendant's behavior even without an enforceable judgment

on the merits. The Fourth Circuit's contrary rule, rejecting the

catalyst theory, was first announced in S-/ and S-2, 21 F.3d at

* See Comfort Lake Ass'n, Inc. v. Dresel Contracting,

Inc., 138 F.3d 351, 357-58 (8th Cir. 1998); Maduka v.

Meissner, 114 F.3d 1240, 1241 (D.C. Cir. 1997); Marbley v.

Bane, 57 F 3d 224, 233-35 (2d Cir. 1994); Kilgour v. City of

Pasadena, 53 F.3d 1007, 1010-11 (9th Cir. 1995); Zinn by

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

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

Baumgartner v. Harrisburg Housing Authority, 2\ F.3d 541,

546-50 (3d Cir. 1994), American Council for the Blind of

Colorado, Inc. v. Romer, 992 F.2d 249, 250-51 (10th Cir.),

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

Texas, 988 F.2d 18, 20-21 (Sth Cir. 1993); Paris v. United

States Dep't of Housing and Urban Development, 988 F.2d

236, 238 (ist Cir. 1993); Citizens Against Tax Waste v.

Westerville City School, 985 F.2d 255, 257-58 (6th Cir. 1993),

Pembroke v. Wood County, Texas, 981 F.2d 225, 231 n.27 (Sth

Cir.), cert. denied, 508 U.S. 973 (1993).

51 (interpreting the Civil Rights Attorney's Fees Awards Act, 42

U.S.C. § 1988 ("section 1988")). Later that same year, the "no

catalyst" rule was applied to preclude fees in two other section

1988 cases, Clark v. Sims, 28 F.3d 420 (4th Cir. 1994), and

Arvinger v. Mayor and City Council of Baltimore, 3\ F.3d 196,

202-03 (4th Cir. 1994). Two years later it was applied to a

Voting Rights Act case. See Statewide Reapportionment

Advisory Cmte. v. Beasley, 99 F.3d 134, 136-37 (4th Cir. 1996).

Most recently, it was applied to this case arising under the Clean

Water Act. Both in theory and in practice, therefore, 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.

This Court has repeatedly endorsed the catalyst theory

of attorney's fee awards, recognizing that a final judgment on

the merits is not a necessary prerequisite to achieving “prevailing

party” status. For instance, in Hewitt v. Helms, 482 U.S. 755

(1987), the Court 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 plaintiff's 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."

Id.

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 provide "prevailing party” status under section 1988,"

Maher quoted a passage of the Senate Report accompanying the

enactment of section 1988. See id "[F]jor purposes of the

award of counsel fees, parties may be considered to have

prevailed when they vindicate nghts through a consent judgment

or without formally obtaining relief.") (quoting S. Rep. No. 94-

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

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

(recognizing that a person may "in some circumstances be a

‘prevailing party’ " if his rights are vindicated “without formally

obtaining relief"); cf Hensley v. Eckerhart, 461 U.S. 424, 433

(1983) (prevailing party is one who “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 is 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 defendant might

voluntarily cease the unlawful practice. 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.

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

legislative matenals 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 S. Rep. No. 50, 99th Cong., Ist Sess 33

(1985) ("The Committee recognizes that a party may ‘prevail’ by

achieving a successful settlement."); see also S. Rep. No. 233,

98th Cong., Ist Ses 24-25 (1983).

In the Fourt:. Circuit's view, however, this Court's

endorsement of the catalyst theory over the course of a decade

was overruled sub silentio by this Court's decision in Farrar v.

Hobby, 506 U.S. 103 (1992). No other circuit has adopted that

interpretation of Farrar and for very good reason: 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

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, the

court 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. In fact, the

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

that the core inquiry remains the one articulated in 7exas State

Teachers, Maher, Hewitt, and Hensley -- alteration of the

relationship between a plaintiff and a defendant in a way that

benefits the plaintiff. 506 U.S. at 111. As the Third Circuit has

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 Hous. Auth., 2\ F.3d 541, 546-50

(3d Cir. 1994); accord Zinn by Blankenship v. Shalala, 35 F.3d

273, 274-76 (7th Cir. 1994).

The language in 7exas State Teachers and Farrar that

a prevailing party must demonstrate a "material alteration of the

legal relationship" was meant to clarify that mere technical

victories might be too insignificant to meet the prevailing party

threshold. See 489 U.S. at 792-93. Once the defendant's

behavior has changed to moot the factual basis of the complaint,

the legal relationship has likewise been altered because the

defendant can no longer be said to be in violation of legal rights

held by the plaintiff. This language cannot be fairly read to

require, contrary to the explicit views of the Court in Maher and

Hewitt, that there be an enforceable judgment before a litigant

may be a “prevailing party."

To the contrary, 7exas State Teachers and Farrar

reaffirmed the by then well-established jurisprudence that the

threshold test for prevailing party status is whether the plaintiff

"succeed[ed] on any significant issue in litigation which achieves

some of the benefit the parties sought in bringing suit." Farrar,

506 U.S. at 109 (citing Hensley, 461 U.S. at 433); Texas State

Teachers, 489 U.S. at 789 (citing Hensley, 461 U.S. at 433).

As Justice O'Connor's concurrence in Farrar made clear, the

inquiry remains one of causation: whether the plaintiffs

succeeded, through the vehicle of the lawsuit, in achieving at

least some of the practical relief that they sought by changing

the "behavior of the defendant towards the plaintiffs." See

Farrar, 506 U.S. at 116 (O'Connor, J. concurring) (citing

Hewitt, 482 U.S. at 761). Once the conditions of causation and

substantial benefit to the plaintiff are satisfied, there is no need

for the additional requirement that the change in conduct or law

be judicially mandated or formalized by judicial decree. See,

e.g., Marbley v. Bane, 57 F.3d at 234; Baumgartner, 21 F.3d at

547, see also Nadeau v. Helgemoe, 581 F.2d 275 (ist Cir.

1978).

In some cases, like 7exas State Teachers and Farrar,

success in the litigation will take the form of a judgment in

plaintiffs’ favor. See also Rhodes v. Stewart, 488 U.S. 1, 4

(1988) (party who wins a declaratory judgment prevails if

judgment affects "behavior of the defendant toward the

plaintiff"). But even if there is no such legal judgment to

enforce, a change in defendant's behavior that has the practical

effect of redressing plaintiff's alleged injuries, and the legal effect

of mooting out their complaint, means that plaintiffs have

"prevailed" as surely as obtaining a declaratory judgment or

securing nominal relief. See Maher, 448 U.S. at 129. In this

case, the alteration in defendant's conduct actually conferred a

greater benefit on plaintiffs who otherwise could not catch or

eat fish from the North Tyger River because of mercury

contamination, than in a case like Farrar where plaintiff

obtained only nominal relief that, nonetheless, was embodied in

a court judgment. In sum, the decision in Farrar does not

foreclose a catalyst theory of fee recovery and the Fourth

Circuit erred in so holding contrary to the language, history, and

purpose of the fee-shifting statutes. °

* The court of appeals acknowledged that its decision

on fees was inconsistent with the decision in Gwaltney. See 149

F.3d at 307 n.5. Nonetheless, in addition to its reliance on

Farrar, the court of appeals suggested that the 1987 amendment

to the Clean Water Act adding the "prevailing party" language,

accounted for the difference. The pre-amendment language had

provided that fees might be awarded "whenever the court

determines such award is appropriate." Gwaltney, 484 U.S. at

67 n.6. Congress amended this language solely to eliminate

confusion over whether fee awards could be made to plaintiffs

who had not prevailed at all, see Ruckelshaus, 463 U.S. at 682,

and to clarify that at least some degree of success in the

litigation must be achieved, as had been the standard in civil

rights case under 42 U.S.C. § 1988. See A Legislative History

of the Water Quality Act of 1987, 100th Cong., 2d Sess. Sen.

Print 144 (Nov. 1988), vol. 2, pp. 1311-1312.

Indeed, a case such as this one, in which relief on the

merits has arguably become moot because of post-complaint

compliance by the defendant, provides the classic situation in

which an award under a catalyst theory is appropriate. See

Zinn by Blankenship, 35 F.3d at 274 ("a plaintiff may be a

prevailing party for purposes of section 1988 even if the

defendant voluntarily provides the relief sought rather than

litigating the suit to judgment"); Little Rock School Dist.v.

Pulaski County Special School Dist. #1, 17 F.3d 260, 262 (8"

Cir. 1994) ("[w]here a defendant voluntarily complies with a

plaintiffs requested relief, thereby rendering the plaintiff's

lawsuit moot, the plaintiff is a ‘prevailing party’ under section

1988 if his suit is a catalyst for the defendant's voluntary

compliance and the defendant's compliance was not

gratuitous"); Jean v. Nelson, 863 F.2d 759, 766 (11th Cir.),

affd, 496 U.S. 154 (1988) ("mooting of a lawsuit by a

defendant's favorable remedial action does not necessarily

deprive a plaintiff of ‘prevailing party’ status"); see also Watkins

v. Fordice, 7 F.3d 453, 456 (Sth Cir. 1993). Otherwise, "if

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." Baumgartner, 21

F.3d at 548; accord Zinn, 35 F.3d at 274-76.

Under the Fourth Circuit's prohibition on catalyst fee

awards, however, plaintiffs are deprived of any award of

attorney's fees despite their success in vindicating federal rights.

If the Fourth Circuit's rule precluding catalyst fee awards is

allowed to stand, it will virtually assure that fewer citizen suits --

under both the civil rights statutes and the environmental

statutes -- will be brought. Combined with the Fourth Circuit's

holding on the merits that a defendant may avoid 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 with the financial resources to bring these

cases. Such a result is contrary to Congress's intent to provide

a means for ordinary citizens harmed by violations of federal

civil rights, environmental, and other statutes to serve as

adjuncts to law enforcement by state and federal officials.

CONCLUSION

For the reasons given, this Court should reverse and

remand the Fourth Circuit's decision on the merits. In that case,

this Court need not reach the attorney's fees issue. However, if

this Court affirms on the merits, the attorney's fees issue will be

squarely presented and this Court should reverse the Fourth

Circuit's "no catalyst" rule. In any event, amici believe that this

Court may reach the attorney's fees issue, to give guidance both

in this case on remand and to the lower courts more generally.

Respectfully submitted,