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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A17

## Record

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

## Text

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

ii
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

IV

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]

Vv

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

vi
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.

2

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

3

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.

4

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

5

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

6

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...)

7

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

9

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...)

10

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).

12

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."

13

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

14

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

15

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,

16

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

17

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.

18

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

19

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,

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0244%3A17. Public record. Not legal advice.