Opposition Brief — Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources

Supreme Court, |

FILED

(2) } — AUs - 8 2000

99-1848

CLERK

IN THE ieiaetanaaniaiamnenputiaatennain

SUPREME COURT OF THE UNITED STATES

BUCKHANNON BOARD & CARE HOME, INC.; THE

WEST VIRGINIA RESIDENTIAL BOARD AND CARE

HOME ASSOCIATION; DORSEY PIECE; and on behalf

of all others similarly situated,

Petitioners,

Vv.

WEST VIRGINIA DEPARTMENT OF HEALTH

AND HUMAN RESOURCES, et al.,

Respondents.

RESPONDENT, WEST VIRGINIA DEPARTMENT

OF HEALTH AND HUMAN RESOURCES’ BRIEF

IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

Darrell V. McGraw Jr.

Attorney General

Charlene A. Vaughan

Deputy Attorney General

State Capitol Complex

Building 3; Room 210

Charleston, West Virginia 25305

(304) 558-2131

Counsel for Respondent, West Virginia Department of Health and

Human Resources

.

*

iW

i

QUESTIONS PRESENTED

l. Whether the Fourth Circuit erred in its interpretation

of Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494

(1992), in S-] and S-2 v. State Board of Education, 2\ F.3d 49 (4th

Cir.) (en banc), cert. denied, 513 U.S. 876, 115 S.Ct. 205, 130

L.Ed.2d 135 (1994), in concluding that the "catalyst theory” is no

longer available for civil rights plaintiffs to recover attorneys’ fees.

2. Whether a Plaintiff can prevail through catalyst

theory alone.

3. Whether Petitioners obtained an enforceable

judgment or other comparable relief against Respondents through a

consent decree or settlement which entitles them to attorneys’ fees.

ii

THE PARTIES

The following were parties in the United States Court of

Appeals: Joan E. Ohl, Secretary, West Virginia Department of

Health and Human Resources; Office of Health Facility Licensure

and Certification; John Wilkinson, Director, Office of Health

Facility Licensure and Certification; Sandra L. Daubman,

Residential Programs Manager, Office of Health Facility Licensure

and Certification (Daubman has been replaced by Gloria Pauley);

West Virginia Office of the State Fire Marshal, Walter Smittle, Fire

Marshal; Cecil Underwood, in his official capacity as Governor of

the State of West Virginia; State of West Virginia; West Virginia

State Fire Commission; John Beaty, Il, Commissioner; Joseph J.

Bostar, Ill, Commissioner; Randy Breeden, Commissioner; James

W. Fife, Commissioner; Francis A. Guffey, II, Commissioner;

Daniel Hess, Commissioner; Gregory Alan Lay, Commissioner;

David L. Tolliver, Commissioner, Stephen C. McBee,

Commissioner; Bill L. Spencer, Commissioner; Victor Stallard, Jr.,

Commissioner; J. D. Waggoner, Commissioner, and Kenneth

Morgan, Commissioner.

TABLE OF CONTENTS

PAGE

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ee eke cess eeeeecoececess 2

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SUMMARY OF ARGUMENT ...............0000eeeee 3

REASONS FOR DENYING THE WRIT ................. 3

A. The United States Court of Appeals for the Fourth

Circuit Has Not Misinterpreted this Court’s Ruling

i ee Cece se heeeecoeocoeceses 3

B. Petitioners Did Not Obtain an Enforceable

Judgment or Other Comparable Relief Through a

Consent Decree or Settlement Against Respondents

Which Entitles Them to Attorneys’ Fees. ........... y

Gre che Ge esedecoececcrcccescoccees . 10

iv

APPENDIX

Buckhannon Board and Care, Inc. et al. v. West Virginia

Department of Health and Human Resources, et al.,

Per Curiam Opinion, Unpublished No. 99-1424 ..........

Order on Petition for Rehearing and Rehearing En Banc ....

Vv

TABLE OF AUTHORITIES

CASES

American Council of the Blind v. Romer,

506 U.S. 1075, 113 S. Ct. 1038, 122 L. Ed. 2d 348

(1993), vacating 962 F.2d 1501 (10th Cir. 1992) .......... 7

American Council of the Blind v. Romer, 992 F.2d 249 (10th Cir.

STITUTE sinnerman nll i eipaiiataasia iia aiaiaainigiald 8

Arvinger v. Mayor and City Council of Baltimore,

31 F.3d 196 (4th Cir, 1994) oo. ceeeeeeseseeenenenenenenenenes &

Baumgartner v. Harrisburg Housing Authority,

fk fl. 68 6,8

Beard v. Teska, 31 F.3d 942 (10th Cir. 1994) 000. ccccccceeeeeeeees 7

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

overruled by, S-1 and S-2, 21 F.3d 49

EEL CUED ‘cxistinssstnstarerneenicemnitinddennissinanneibiiiaetmanianniant 9

Citizens Against Tax Waste v. Westerville City School,

Fe a EEE. HUMID scccepncenntnictecntenenatemsinnsanemnaiiens 6,7

Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566,

ae passim

Foreman v. Dallas County, 193 F.3d 314 (Sth Cir. 1999), cert.

denied, US. _,120S.Ct. 1673, 146 L.Ed.2d 482 ................ 6

Friend v. Kolodzieczak, 992 F.2d 243 (9th Cir. 1993) ................ x

vi

Friends of the Earth, Inc. v. Laidlaw Environmental

Services (TOC), Inc., US.

120 S. Ct. 693, 145 L. Ed.2d 610 (2000) EESEDSs eee ee )

Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933,

RE ee ee ee 4

Hewitt v. Helms, 482 U.S. 755, 107 S. Ct. 2672,

ies Mae MEINE wnisisigiiatthtthiniaiescitiiatiainibitanntdasiaiainnads 5,6

Kilgour v. Pasadena, 53 F.3d 1007 (9th Cir. 1995) ...........0...... 7

Klolodzieczak v. Friend, 113 $.Ct. 1038, 506 US 1075,

122 L.Ed. 348 (1993), vacating 965 F.2d 682

RELL CEESES SE SE eee or 7

Little Rock School District v. Pulaski County ”

Special Sch. District #1, 17 F.3d 260

IE: MITE iatericiinnieinidedinacieis neat etinictcitaitipniinaitliaaniaiaie 7,8

Maher v. Gagne, 448 U.S. 122, 100 S. Ct. 2570,

TCE oe em 4

Marbley v. Bane, 57 F.3d 224 (2nd Cir. 1995) ..0.......cccccceeeeeeeeeee 6

Morris v. West Palm Beach, 194 F.3d 1203

I, I iia hae aaa 7

Paris v. United States Dep't of Housing and Urban

Development, 988 F.2d 236 (Ist Cir. 1993) 0.0.0.0... 6,7

Pembroke v. Wood County, 981 F.2d 225 (Sth Cir. 1993),

cert. denied, 508 U.S. 973, 113 S.Ct. 2965,

en 7

Vii

Rhodes v. Stewart, 488 U.S. 1, 109 S. Ct. 202,

A es See 5

S-1 and S-2 v. State Board of Education, 21 F.3d 49

(4th Cir.), cert. denied, 513 U.S. 876,

115 S. Ct. 205, 130 L. Ed. 2d 135 (1994) 0.0.00... passim

Statewide Reapportionment Advisory Committee

v. Beasley, 99 F.2d 134 (4th Cir. 1996),

cert. denied, 520 U.S. 1166 (1997) .........cccecccceeeeeeee 3,8

Texas State Teachers Association v. Garland

Independent School District, 489 U.S. 782,

109 S. Ct. 1486, 103 L. Ed. 2d 866 (1989) .......eee 6

Zinn v. Shalala, 35 F.3d 273 (7th Cir. 1994) .0......cccccccceeeeeees 6

STATUTES

a 0 Se cetrtinsitnictrnteicttccantsnianiscienisitiemnenniinademnninenieston 1

Civil Rights Attorney's Fee Awards Act of 1976,

90 Stat. 2641 (1976) (codified, as amended,

SE oe Se 4,5

PUR. TR. Cow. F. SOGITEITD ccccccsccsiscnseccsensspesvescosseonsevessnsonnees 2, 10

W. Va. Code § 16-SH-2(3) (1996) ..........:cccccsscesesesesseeeceeeseneeennes 3

OTHER

Vill

64 C.S.R. 65-3.14 (Aug. 1, 1997) cocccccccccsssesssseeeen ett ciiesoes

Sup. Ct. R. 24(2)

TERRE TEE EEE EEE EEE OCC OCC eee eee eee eee eee CeCe CeCe C eee eee eee eeees

99-1848

IN THE

SUPREME COURT OF THE UNITED STATES

BUCKHANNON BOARD & CARE HOME, INC.; THE

WEST VIRGINIA RESIDENTIAL BOARD AND CARE

HOME ASSOCIATION; DORSEY PIECE; and on behalf

of all others similarly situated,

Petitioners,

Vv.

WEST VIRGINIA DEPARTMENT OF HEALTH

AND HUMAN RESOURCES, et al.,

Respondents.

RESPONDENT, WEST VIRGINIA DEPARTMENT

OF HEALTH AND HUMAN RESOURCES’ BRIEF

IN OPPOSITION TO PETITION FOR

A WRIT OF CERTIORARI

BASIS FOR JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1254(1) with Petitioners’ filing of a petition for writ of

certiorari on May 12, 2000.

The United States District Court for the Northern District of

West Virginia, Judge Stamp, on January 29, 1999, entered an Order

denying Petitioners’ Motion for Attorneys Fees (JA 320) to which

Petitioners appealed to the United States Court of Appeals for the

2

Fourth Circuit. On January 20, 2000, the Fourth Circuit entered

judgment affirming the District Court’s denial of Petitioners’ Motion

for Attorneys’ Fees. (App. 1). The Fourth Circuit, on February 15,

2000, denied Petitioners’ Petition for Rehearing. (App.7).

OPINIONS BELOW

The unpublished opinion of the United States Court of

Appeals for the Fourth Circuit, Docket No. 99-1424, is dated January

20, 2000.

The unreported opinion of the United States District Court

for the Northern District of West Virginia, Civil Action No.

2:96CV106, is dated January 29, 1999.

By Order entered January 29, 1999, United States District

Court Judge Stamp held this action had been rendered moot by the

passage of House Bill 4200 and Senate Bill 627. (JA 320.) He

further determined that Petitioners were not entitled to attorney fees

and costs as prevailing parties under the "catalyst theory," nor did a

bad-faith exception apply. (JA-327-30.) Pursuant to Fed. R. Civ. P.

11(c)(1)(B), Judge Stamp did determine that Rule 11 sanctions were

warranted based on the State Fire Marshal’s failure to disclose to the

Petitioners earlier on that he was going to propose the deletion of the

self-preservation requirements and ordered payment of fees and costs

to Petitioners in the amount of $3,252.00. (JA 335.)

STATEMENT OF THE CASE

Pursuant to Sup. Ct. R. 24(2), Respondents are satisfied with

the presentation of Petitioners’ Statement of the Case, except for the

allegations that the Fourth Circuit’s opinion that attorneys’ fees are

not available under the "catalyst theory" is contrary to this Court’s

ruling in Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.E.2d

494 (1992), rendered in S-/ and S-2 v. State Bd. of Educ. , 2\ F.3d 49

3

(4th Cir. 1994) (en banc), cert. denied, 513 U.S. 876, 115 S.Ct. 205,

130 L.Ed. 135 (1994).

SUMMARY OF ARGUMENT

The Petitioners have not obtained an enforceable judgment

or other comparable relief through a consent decree or settlement.

This lawsuit cannot be said to be the catalyst for the deletion of the

"self-preservation” requirements from W. Va. Code § 16-5H-2(3)

(1996) or 64 C.S.R. 65-3.14 (Aug. 1, 1997). The catalyst theory

alone cannot serve as the basis for Petitioners’ claim to prevailing

party status. Therefore, Petitioners are not entitled to attorneys’ fees.

REASONS FOR DENYING THE WRIT

A. The United States Court of Appeals for the

Fourth Circuit Has Not Misinterpreted this

Court’s Ruling in Farrar v. Hobby.

Petitioners are asking this Court to reverse the Fourth

Circuit’s interpretation of Farrar v. Hobby, 506 U.S. 103, 113 S.Ct.

566, 121 L.Ed.2d 494 (1992), rendered in S-/ and S-2 v. State Bd. of

Educ., 21 F.3d 49 (4th Cir. 1994) (en banc), cert. denied, 513 U.S.

876, 115 S.Ct. 205, 130 L.Ed.2d 135 (1994), and Statewide

Reapportionment Advisory Committee v. Beaslev, 99 F.2d 134 (4th

Cir. 1996), cert. denied, 520 U.S. 1166 (1997), concluding that the

“catalyst theory” is not available for civil rights plaintiffs to recover

attorneys’ fees and costs. Secondly, Petitioners are asking this Court

to remand this case back to the District Court with instructions to

consider Petitioners’ Motion for Attorney Fees.

In Farrar, this Court announced a distinctly new test: The

plaintiff must obtain an enforceable judgment against the defendant

from whom fees are sought or comparable relief through a consent

decree or settlement. Whatever relief the plaintiff secures must

directly benefit him at the time of the judgment or settlement.

4

Otherwise the judgment or settlement cannot be said to "affec(t} the

behavior of the defendant toward the plaintiff." Only under these

circumstances can civil rights litigation affect "the material alteration

of the legal relationship of the parties” and thereby transform the

plaintiff into a prevailing party. /d. 113 S.Ct. at 573 (alteration in

original) (citations omitted). This Court emphasized that "[n]o

material alteration of the legal relationship between the parties occurs

until the plaintiff becomes entitled to enforce a judgment, consent

decree, or settlement against the defendant." /d. at 574. Under

Farrar, a nominal damages judgment was entered. And this Court

held that the nominal damages judgment, being legally enforceable,

conferred prevailing party status. /d. at 574. This Court cautioned,

however, that sometimes "even a plaintiff who formally ‘prevails’

under Section 1988 should receive no attorney’s fees at all." /d. at

575. In other words, no longer will the prevailing party inquiry turn

on the magnitude of relief. See id. at 574 (noting that "the

‘technical’ nature of anominal damages award or any other judgment

does not affect the prevailing party inquiry"). So, under Farrar, a

technical victory renders a plaintiff a prevailing party, but will not

necessarily entitle the plaintiff to fees.

For years after the passage of the Civil Rights Attorney’s Fee

Awards Act of 1976, 90 Stat. 2641 (1976) (codified, as amended, 42

U.S.C. § 1988), case law held that, although a plaintiff need not

obtain formal relief to recover fees, the plaintiff must enjoy

"substantial or essential" success in obtaining the objective of the

suit, and the suit must be a proximate cause of any relief obtained.

See Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 65 L.Ed.2d

653 (1980). In Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct.

1933, 76 L.Ed.2d 40 (1983), this Court suggested without deciding

that plaintiffs may become prevailing parties for fee purposes by

succeeding on “any significant issue in litigation which achieves

some of the benefit the parties sought in brining suit” (internal

quotation marks omitted), this causation-centered test of prevailing

party statutes became known as the “catalyst theory."

5

The lower federal courts agreed that a plaintiff claiming

prevailing party status through informal success must demonstrate a

casual connection between the lawsuit and the favorable result;

however, the lower courts were split on whether the plaintiff must

also demonstrate some merit to the lawsuits’ claims. The Fourth

Circuit was in the minority with its decision in Bonnes v. Long, 599

F.2d 1316 (4th Cir. 1979), overruled by S-1 and S-2,21 F.3d 49 (4th

Cir. 1994), which held plaintiff's unadjudicated claim had to meet a

substantiality threshold.

This Court then decided a series of cases on prevailing party

status under 42 U.S.C. § 1988. See Hewitt v. Helms, 482 U.S. 755,

107 S.Ct. 2672, 96 L.Ed.2d 654 (1987) (a judicial pronouncement

constitutes relief on the merits only if it settles some dispute which

affects the behavior of the defendant toward the plaintiff); Rhodes v.

Stewart, 488 U.S. 1, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988) (per

curiam) (a declaratory judgment constitutes relief, for purposes of

§ 1988, if, and only if, it affects the behavior of the defendant toward

the plaintiff; however, these plaintiffs received no relief because the

case was moot before judgment); Zexas State Teachers Ass'n v.

Garland Independent School District, 489 U.S. 782, 109 S.Ct. 1486,

103 L.Ed.2d 866 (1989) (to be considered a prevailing party, the

plaintiff must be able to point to a resolution of the dispute which

changes the legal relationship between itself and the defendant).

Then, in 1992, this Court decided Farrar v. Hobby, 506 U.S.

103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). In Farrar, the plaintiff

alleged due process violations and malicious prosecution in

connection with the closing of his school for disabled teens. The

plaintiff sought $17 million in damages, but was awarded only

nominal damages. The District Court awarded the plaintiff $280,000

in fees plus expenses and interest. A divided Fifth Circuit ruled that

the nominal darnages award did not in any meaningful sense change

the legal relationship between the parties. This Court held that the

Fifth Circuit erred in not recognizing the plaintiffs as prevailing

parties under the settled principle that plaintiffs, who obtain only

6

nominal or modest relief, are considered prevailing parties for

fee-award purposes. This Court reaffirmed Garland's "legal

relationship" test and added the language at issue in S-/ and S-2

when it stated, "[nJo material alteration of the legal relationship

between the parties occurs until the plaintiff becomes entitled to

enforce a judgment, consent degree, or settlement against the

defendant." Farrar, 113 S.Ct. at 574. This Court upheld the Fifth

Circuit's reversal of the District Court’s fee award holding that the

amount of the fee award depends on the degree of success achieved.

This Court noted that "[t}his litigation accomplished little beyond

giving petitioners ‘the moral satisfaction of knowing that a federal

court concluded that [their] rights had been violated’ in some

unspecified way." /d. at 574 (quoting Hewitt v. Helms, 482 U.S.

755, 762, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987)).

In Farrar v. Hobby, this Court created a more demanding

test for prevailing party status, which clearly discards catalyst theory

from the prevailing party inquiry. In a five-to-four decision, this

Court affirmed the Fifth Circuit’s denial of fees and noted that the

threshold requirement of prevailing party status serves the

congressional intent to permit fee awards "*only when a party has

prevailed on the merits.”" Farrar, 113 S.Ct. at 569, 572.

Petitioners argue in their reasons for granting their Writ that

the United States Court of Appeals for the Fourth Circuit has

misinterpreted this Court's opinion in Farrar v. Hobby, 506 U.S.

103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Respondents submit

that the Fourth Circuit did not misinterpret Farrar, in spite of all

other United States Court of Appeals decisions to the contrary. See

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

OSS F.2d 236, 238 (1st Cir. 1993); Marblev v. Bane, 57 F.3d 224,

234 (2nd Cir. 1995); Baumgartner v. Harrisburg Housing Authority,

21 F.3d 541, 546-550 (3rd Cir. 1994); Foreman v. Dallas County,

193 F.3d 314 (Sth Cir. 1999), cert. denied, U.S. , 120 S.Ct.

1673, 146 L.Ed.2d 482; Citizens Against Tar Waste v. Westerville

City School, 985 F.2d 255, 257 (6th Cir. 1993); Zinn v. Shalala, 35

ee

7

F.3d 273, 276 (7th Cir. 1994): Little Rock School Dist. v. Pulaski

County Special Sch. Dist. #1, 17 F.3d 260, 263, n.2 (8th Cir. 1994);

Kilgour v. Pasadena, 53 F.3d 1007, 1010 (9th Cir. 1995); Beard v.

Teska, 31 F.3d 942, 951-952 (10th Cir. 1994); Morris v. West Palm

Beach, 194 F.3d 1203, 1207 (11th Cir. 1999).

All Circuit Court of Appeals, but for the Fourth Circuit, have

recognized a conflict between Farrar and catalyst theory, but have

taken pains to invent implausible solutions to the problem. Although

both the United States Court of Appeals for the First Circuit and the

Sixth Circuit applied the catalyst theory to grant prevailing party

status to plaintiffs, each failed to acknowledge the potential impact

of Farrar’s enforceable judgment requirement. See, Paris v. United

States Dep't of Housing and Urban Development, 988 F.2d 236,

240-41 (Ist Cir. 1993); Citizens Against Tax Waste v. Westerville

City Sch., 985 F.2d 255, 257-58, n.3 (6th Cir. 1993). Similarly, the

Fifth Circuit, when confronted with a catalytic fee claim,

circumvented the enforceable judgment standard by limiting Farrar

to "the context of nominal damages." See, Pembroke v. Wood

County, 981 F.2d 225 (Sth Cir. 1993), cert. denied, 508 U.S. 973,

113 S.Ct. 2965, 125 L.Ed.2d 665 (1993) ("Farrar dealt with

prevailing party status and the award of attorney's fees in the context

of nominal damages and is thus distinguishable from the present

case.").

The question of the catalyst theory’s continued survival

emerged more directly when this Court summarily vacated and

remanded two cases that had applied the theory to uphold plaintiffs’

prevailing party status. See, American Council of the Blind v.

Romer, 506 U.S. 1075, 113 S. Ct. 1038, 122 L.Ed.2d 348 (1993),

vacating 962 F.2d 1501 (10th Cir. 1992); Klolodzieczak v. Friend,

113 S.Ct. 1038, 506 US 1075, 122 L.Ed. 348 (1993), vacating 965

F.2d 682 (9th Cir. 1992). The lower courts were directed to

reconsider their decisions and apply Farrar. American Council, 113

S.Ct. at 1038; Kolodzieczak, 113 S.Ct. at 1038. The United States

Court of Appeals for the Tenth Circuit conceded that Farrar might

&

seem to prevent plaintiffs from using catalyst theory to gain

prevailing party status. See American Council of the Blind v. Romer,

992 F.2d 249, 251 (10th Cir. 1993) (alternative holding) ("Perhaps

[under] Farrar the ‘catalyst rule’ should . . . not [apply] to the

prevailing party [inquiry]."). Ultimately, that court determined

otherwise and applied the catalyst theory. See id. ("It does not

appear that the decision in Farrar condemns the use of the ‘catalyst

rule’ in anonjudgment on the merits situation."). The United States

Court of Appeals for the Ninth Circuit simply remanded to the

district court for reconsideration under Farrar. See, Friend v.

Kolodzieczak, 992 F.2d 243 (9th Cir. 1993). The United States

Court of Appeals for the Eighth Circuit declined to apply Farrar

"beyond its context of determining prevailing party status after a

final determination on the merits of litigation." See Little Rock

School District v. Pulaski County Special Sch. Dist #1, 17 F.3d 260,

263, n.2 (8th Cir. 1994). The United States Court of Appeals for the

Third Circuit similarly attempted to resolve the inconsistency

between Farrar and the catalyst theory. See Baumgartner v.

Harrisburg Hous. Auth., 21 F.3d 541, 547 (3rd Cir. 1994). It

reasoned that Farrar involved a fee claim supported by a judgment,

so the "situation" before the Supreme Court did not involve catalyst

theory. See id. "Therefore, any language implicating the ‘catalyst

theory’ was dictum." See id.

The Fourth Circuit addressed the viability of the "catalyst

theory" after Farrar in S-/ and S-2 v. State Bd. of Educ.,2\ F.3d 49

(4th Cir. 1994), and declared that the catalyst theory was no longer

available to litigants in this circuit in fee-shifting cases. See also

Statewide Reapportionment Advisory Committee v. Beasley, 99 F.3d

134 (4th Cir. 1996), cert. denied 520 U.S. 1166 (1997); Arvinger v.

Mayor and City Council of Baltimore, 31 F.3d 196 (4th Cir. 1994).

In S-/ and S-2, the Fourth Circuit adopted the dissenting opinion of

9

Judge Wilkinson from its previous S-/ and S-2' and ruled that "({a]

person may not be a ‘prevailing party’ plaintiff under 42 U.S.C.

§ 1988 except by virtue of having obtained an enforceable judgment,

consent decree, or settlement giving some of the legal relief sought

in § 1983 action. S-/ and S-2,21 F.3d at 50, citing Farrar, 506 U.S.

103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). That Court also ruled

"([t}he fact that a lawsuit may operate as a catalyst for post-litigation

changes in a defendant's conduct cannot suffice to establish plaintiff

as a prevailing party." Catalyst theory, "allowing that result, is no

longer available for the purpose. See Farrar, 506 U.S. at __, and

cases such as Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979), which

applied that theory, are overruled.” S-/ and S-2, 21 F.3d at 51.

B. Petitioners Did Not Obtain an Enforceable

Judgment or Other Comparable Relief Through

a Consent Decree or Settlement Against

Respondents Which Entitles Them to Attorneys’

Fees.

Petitioners clearly did not obtain an enforceable judgment or

other comparable relief through a consent decree or settlement

against Respondents which entitles them to attorneys’ fees.

Petitioners’ reliance upon Friends of the Earth, Inc. v.

Laidlaw Environmental Services (TOC), Inc., ___ U.S. ___, 120

S.Ct. 693, 145 L.Ed.2d 610 (2000) is a misplaced attempt to

circumvent the unequivocal Farrar requirement that prevailing party

Status requires a fee claimant to be entitled to enforce a judgment,

consent decree, or settlement. All nine of the Justices applied the

enforceable judgment requirement in Farrar. See Farrar, 113 S.Ct.

at 576 (O’Connor, J., concurring) (noting that Farrar met the

"minimum condition for prevailing party status because he obtained

'S-] and S-2 v. State Bd of Educ., 6 F.3d 160 (4th Cir. 1993), vacated 21 F.3d

49 (4th Cir. 1994) (en banc).

10

an enforceable judgment”) id. at 579 (White, J., concurring in part

and dissenting in part). ("Because Farrar won an enforceable

judgement . . . he is a ‘prevailing party’ under the statue." (Citation

omitted)). Farrar was awarded nominal damages. Petitioners in the

instant matter have been awarded no damages. Petitioners have won

no enforceable judgment against the West Virginia Department of

Health and Human Resources. Even the Fed. R. Civ. P. 11 sanction

award was against the State Fire Marshal, not the Department.

Respondents submit that the list of ways to earn prevailing

party status is exclusive, and that a plaintiff can no longer prevail

through catalyst theory alone. Respondents submit that there has

been no enforceable judgment or comparable relief through a consent

decree or settlement which would quality Petitioners as a prevailing

party. Farrar v. Hobby, 113 S.Ct. at 573. Whatever relief the

Petitioners secured must directly benefit them at the time of the

judgment. Otherwise, the judgment cannot be said to "affec[t] the

behavior of the defendant toward the plaintiff." /d. at 111 (internal

citations omitted). The present case was dismissed as moot.

Petitioners obtained no judgment. There was no settlement. Their

suit cannot still be a catalyst for change and for the recovery of

attorneys’ fees. It is further submitted that Respondent’s voluntary

change in conduct should not be "a license to shake down

government officials." S-/ and S-2, 6 F.3d at 172, citing Farrar,

506 U.S. at 122.

The Fourth Circuit correctly interpreted that Farrar prevents

a plaintiff from prevailing through the catalyst theory alone, but must

also meet the enforceable judgment requirement. Petitioners in this

case have never met the enforceable judgement requirement.

CONCLUSION

The Court should deny the Petition for Writ of Certiorari,

and affirming the holding of the Fourth Circuit in S-/ and S-2.

1]

Respectfully submitted,

WEST VIRGINIA DEPARTMENT OF

HEALTH AND HUMAN RESOURCES/

OFFICE OF HEALTH FACILITY

LICENSURE AND CERTIFICATION

Respondents,

By Counsel

DARRELL V. McGRAW JR.

ATTORNEY GENERAL

OQ Wrearbone A.

CHARLENE A. VAUGHAN

DEPUTY ATTORNEY GENERAL

State Capitol Complex

Building 3, Room 210

Charleston, West Virginia 25305

(304) 558-2131

(WV Bar ID No. 3855)

August 8, 2000

Al

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BUCKHANNON BOARD AND CARE HOME,

INCORPORATED; THE WEST VIRGINIA RESIDENTIAL

BOARD AND CARE HOME ASSOCIATION; DORSEY PIERCE, -

by her next friend, Lockie J. Marple, and on behalf of all others

similarly situated,

Plaintiffs-Appellants,

and

ALMOST HOME, INCORPORATED; DAISY

LAYMAN, by her next friend, Faye

Byers,

Plaintiffs,

v. No. 99-1424

WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN

RESOURCES; GRETCHEN O. LEWIS, Secretary, West Virginia

Department of Health and Human Resources; OFFICE OF HEALTH

FACILITY LICENSURE AND CERTIFICATION; NANCY

TYLER, Director, Office of Health Facility Licensure and

Certification; SANDRA L. DAUBMAN, Program Manager, Office

of Health Facility Licensure and Certification, WEST VIRGINIA

OFFICE OF THE STATE FIRE MARSHAL; WALTER SMITTLE,

Fire Marshal; GASTON CAPERTON, in his official capacity as

Governor of the State of West Virginia, STATE OF WEST

VIRGINIA; WEST VIRGINIA STATE FIRE COMMISSION;

JOHN BEATY, II, Commissioner, JOSEPH J. BOSTAR, III,

Commissioner, RANDY BREEDON, Commissioner JAMES W.

A2

FIFE, Commissioner, FRANCIS A. GUFFEY, Il, Commissioner;

DANIEL HESS, Commissioner, GREGORY ALAN LAY,

Commissioner; DAVID L. TOLLIVER, Commissioner; STEPHEN

C. McBEE, Commissioner; BILL L. SPENCER, Commissioner;

VICTOR STALLARD, JR., Commissioner; J. D. WAGGONER,

Commissioner, KENNETH MORGAN, Commissioner; JOAN E.

OHL, Secretary, Department of Health and Human Resources; JOHN

WILKENSON, Director, Office of Health Facility Licensure and

Certification, CECIL H. UNDERWOOD, Governor, State of West

Virginia,

Defendants-Appellees,

and

WEST VIRGINIA STATE BOARD OF EXAMINERS FOR

REGISTERED PROFESSIONAL NURSES; LAURA S. RHODES,

Executive Director, West Virginia State Board of Examiners for

Registered Professional Nurses,

Defendants.

Appeal from the United States District Court

for the Northern District of West Virginia, at Elkins.

Frederick P. Stamp, Jr., Chief District Judge.

(CA-96-106-2)

Argued: December 2, 1999

Decided: January 20, 2000

Before NIEMEYER and MOTZ, Circuit Judges,

and BUTZNER, Senior Circuit Judge.

A3

Affirmed by unpublished per curiam opinion.

COUNSEL

ARGUED: Webster J. Arceneaux, III, LEWIS, FRIEDBERG,

GLASSER, CASEY & ROLLINS, L.L.P., Charleston, West

Virginia, for Appellants. David Paul Cleek, OFFICE OF THE

ATTORNEY GENERAL, Charleston, West Virginia; Charlene Ann

Vaughan, Deputy Attorney General, WEST VIRGINIA

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Charleston, West Virginia, for Appellees. ON BRIEF: Sandra K.

Henson, LEWIS, FRIEDBERG, GLASSER, CASEY & ROLLINS,

L.L.P., Charleston, West Virginia, for Appellants. Darrell V.

McGraw, Jr., Attorney General, Chad M. Cardinal, Assistant

Attorney General, Charleston, West Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

A4

OPINION

PER CURIAM:

The appellants in this case ask us to reexamine our holding

in S-1 and S-2 v. State Board of Education of North Carolina, 21

F.3d 49 (4th Cir. 1994) (en banc), which rejected the catalyst theory

when determining whether to award attorneys fees under federal

Statutes making fees awardable to prevailing parties. As a three-

judge panel of the court, however, we are bound by our precedent.

See Joseph v. Angelone, 184 F.3d 320, 324-25 (4th Cir. 1999).

Accordingly, we affirm the judgment of the district court that relied

on S-/ and S-2 in denying appellants’ motion for attorneys fees.

Buckhannon Board and Care Home, Inc. ("Buckhannon"),

which operates residential care homes for elderly people who require

some assistance in the activities of daily living, failed an inspection

by the West Virginia Office of the State Fire Marshal because it

housed residents incapable of self-preservation, in violation of West

Virginia law. See W. Va. Code § 16-SH-2 (1998) (requiring that all

residents of residential board and care homes -be capable of

self-preservation). Buckhannon and other plaintiffs commenced this

action for a declaratory judgment that the state law violated the Fair

Housing Amendments Act ("FHAA"), 42 U.S.C. § 3601 ef seq., and

the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101

et Seq.

While the action was pending, West Virginia amended state

law to delete the self-preservation requirement. None of the

defendants, however, informed the plaintiffs or the court of the

pending amendments. Indeed, the district court noted that the

defendants did not even inform their own attorney, who was

representing them in this action. As a result of the amendments, this

action became moot, and the district court dismissed it.

8) tt nian:

AS

Although Buckhannon did not obtain the change in state law

through an enforceable judgment, consent decree, or settlement, it

claimed nevertheless that it was the prevailing party entitled to

attorneys fees under the FHAA and the ADA. See 42 U.S.C.

§ 3613(c)(2) 42 U.S.C. § 12205. Buckhannon argued that under a

catalyst theory it obtained the relief it sought through the defendants’

voluntary conduct because it filed this action and brought to the

state's attention the flaws in its law. The district court observed that

if the catalyst theory were available in this circuit, the plaintiffs

"might prevail." However, because this circuit had rejected the

catalyst theory in S-/ and S-2, the district court denied the plaintiffs’

motion for attorneys fees.

On this appeal, the appellants challenge "only the district

court's ruling on the disallowance of attorneys fees and costs under

the ‘catalyst theory."' They urge us to reexamine our decision in S-/

and S-2, which, they acknowledge, would, if applied, require

rejection of their appeal.

The Fourth Circuit has determined that panels of the court

are bound by the prior decisions of the court, en banc or in panel,

and that binding precedent can be reversed only by the court en banc.

See Joseph, 184 F.3d at 325 ("As a panel, we are not authorized to

reconsider an en banc holding even if we happen to be so inclined,

which we are not"); Busby v. Crown Supply, Inc., 896 F.2d 833,

840-41 (4th Cir. 1990) ("[A] panel considers itself bound by the prior

decision of another panel, absent an in banc overruling or a

superseding contrary decision of the Supreme Court").

In S-] and S-2, we held that in order to qualify as a

"prevailing party" in litigation, the plaintiff must, through the

litigation, "obtain an enforceable judgment . . . or comparable relief

through a consent decree or settlement." S-/ and S-2 v. State Board

of Education of North Carolina, 6 F.3d 160, 168 (4th Cir. 1993)

(Wilkinson, J., dissenting) (quoting Farrar v. Hobby, 506 U.S. 103,

111 (1992)), vacated, 21 F.3d 49 (1994) (en banc) (adopting Judge

A6é

Wilkinson's dissent as the majority opinion). Because the plaintiffs

did not bring about the change in West Virginia law through any

judgment, decree, or settlement, we conclude that the district court

properly applied S-/ and S-2 to this case. Accordingly, the judgment

of the district court

AFFIRMED.

Oe OE OP Oe

A7

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

February 15, 2000

NO. 99-1424

CA-96-106-2

BUCKHANNON BOARD AND CARE HOME, INC; THE WEST

VIRGINIA RESIDENTIAL BOARD AND CARE HOME

ASSOCIATION; DORSEY PIERCE, by her next friend, Lockie J.

Marple, and on behalf of all others similarly situated, |

Plaintiffs - Appellants,

and

ALMOST HOME, INCORPORATED; DAISY LAYMAN, by her

next friend, Faye Byers

Plaintiffs

v.

WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN

RESOURCES; GRETCHEN O. LEWIS, Secretary, West Virginia

Department of Health and Human Resources; OFFICE OF HEALTH

FACILITY LICENSURE AND CERTIFICATION; NANCY

TYLER, Director, Office of Health Facility Licensure and

Certification, SANDRA L. DAUBMAN, Program Manager, Office

of Health Facility Licensure and Certification; WEST VIRGINIA

OFFICE OF THE STATE FIRE MARSHAL; WALTER SMITTLE,

Fire Marshal, GASTON CAPERTON, in his ofiicial capacity as

Governor of the State of West Virginia, STATE OF WEST

VIRGINIA, WEST VIRGINIA STATE FIRE COMMISSION;

AS

JOHN BEATY, Il, Commissioner; JOSEPH J. BOSTAR, III,

Commissioner, RANDY BREEDEN, Commissioner, JAMES W.

FIFE, Commissioner, FRANCIS A. GUFFEY, II, Commissioner;

DANIEL HESS, Commissioner, GREGORY ALAN LAY,

Commissioner; DAVID L. TOLLIVER, Commissioner; STEPHEN

C. MCBEE, Commissioner; BILL L. SPENCER, Commissioner;

VICTOR STALLARD, JR., Commissioner; J. D. WAGGONER,

Commissioner, KENNETH MORGAN, Commissioner; JOAN E.

OIL, Secretary Department of Health and Human Resources; JOHN

WILKINSON, Director, Office of Health Facility Licensure and

Certification, CECIL H. UNDERWOOD, Governor, State of West

Virginia

Defendants - Appellees

WEST VIRGINIA STATE BOARD OF EXAMINERS FOR

REGISTERED PROFESSIONAL NURSES; LAURA S. RHODES,

Executive Director, West Virginia State Board of Examiners for

Registered Professional Nurses

Defendants

On Petition for Rehearing and Rehearing En Banc

Appellants’ petition for rehearing and rehearing on en banc

was submitted to this Court. As no member of this Court or the panel

requested a poll on the petition for rehearing en banc, and

As the panel considered the petition for rehearing and is of

the opinion that it should be denied.

IT IS ORDERED that the petition for rehearing and

rehearing en banc is denied

ae

AY

For the Court,

/s/ Patricia S. Conner

Clerk