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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0372%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 598

## Text

VeV 20 28e0
No. 99-1848

In the Supreme Court of the Cinited States

BUCKHANNON BOoARDAND CARE HOME,
INC. ETAL. PETITIONERS

r.

Wrest VInGintA DEPARTMENT OF
HEALTHAND HeMAN RESOURCES, ET AL.

ON WRIT OR CERTIORARI
LOTHRE UNITED STAVES COURT OF APTE ALS
POR THE FOURTITOIRG U1]

BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING PETITIONERS

Siri PL WANMAN

Naliciloy Creve if

' , ;
( crstaine aot Record

Pitt. LANN Led

Ass shart Uae Gaewe al
BARBARA DL UNE Woop

lh praty Nol colo Cpeate var!
JEPEREY PL MINEAR

| Siwhatasl for blia Nol clon

Py hie al
JESSICA DUENSAY SEVER
KEVIN WK. RtsSshit

VMiorneys

Lhe fortaul of Jiisxt

Warsdy vipton, Ld Ma Attn t

ss

, ; ,
VY Ss P

QUESTION PRESENTED

Whether a plaintiff may recover attorney's fees under
federal statutes making attorney’s fees available to a
prevailing party, when, as a result of the plaintiffs suit, the
defendant voluntarily provides the plaintiff with requested
relief.

TABLE OF CONTENTS

Interest of the United States ......cc.ccccsosecsosscsesevsosevscsecsessssessossess
Statement

Summary of argument

Argument:

A plaintiff may recover attorney's fees under
the prevailing party standard if, as a result of
the plaintiff's suit, the defendant voluntarily

provides the plaintiff with requested relief
A.

C,

Cases:

Alden vy. Maine, 527 U.S. 706 (1999)

This Court's decisions prior to Farrar v.
Hobby manifested the understanding that a
plaintiff may recover fees if the defendant

has voluntarily provided requested relief ..........

This Court's decision in Farrar v. Hobby
does not repudiate the principle that a
plaintiff may recover fees if the defendant

voluntarily provides requested relief .................

The court of appeals’ ruling is inconsistent
with the language, legislative history, and pur-
poses of federal legislation authorizing awards

of attorney's fees to prevailing parties ...............

This Court should remand the case for a deter-
mination of whether, under the facts of this

case, an award of fees is appropriate ..................
IIIT ceesisntnsnsisanetsreneseesencsenneseccsseessesnssseosersencseeseascssesescsses

TABLE OF AUTHORITIES

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,

421 US. 240 (1975)

American Constitutional Party v. Munvo, 650

F.2d 184 (9th Cir. 1981)

(IIT)

Pee e eee eee eee

Pee eee ee eee eee)

EERE EERE EEE EEE EEE EEE E EEE EEE EEE EEE EES

eeeeenee

eee eeeee

on =

9

16

20

'
IV Vv
Cases—Continued: Page — Page
oe w.5. Grant Cn, S87 S8608¢em 29 Hennigan v. Ouachita Parish Sch. Bd., 749 F 2d
Baumgartner v. Harrisburg Housing Auth, SEenes Sae =
21 Pek SAD (Bd Cir, 196) ceccsencenconeoereonneoeeseesennesenee 16, 28 eS.
Beard v. Teska, 31 F 3d 942 (10th Cir, 1994) cccccsnsoseen 16 South <. Eine, GSCD, EG we
Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979) coco... 4,12 Hichen v. King & Spalding, GUS. @ (1886)... ad
Brecht v. Abrahamson, 307 U.S. 619 (1998) cocccceceeeeee 19 Inatitutionalized Fuventnes - Reentry Fw
Brown v. Gaston County Dyeing Mach. Co., 457 Welfare, TSB F 2d 887 (Ad Cir. — =
. _— * ; J & J Anderson, Inc. v. Town of Erie, 767 F.2d
F.2d 1377 (4th Cir.), cert. denied, 409 U.S. 982 1469 (10th Cir, 1985) 12
GEIST screncnsnssensnsecnsrescsnnsnnnnmasetademniatmatatiabiaaasatiaaaaasasctaidaas 22 shaver ty aac
City of Riverside ¥. Rivera, 477 U.S. 561 (1986) cccccsseses 24, 25 gerry cn a. a sechaiancweaate 93
Craig v. Gregg County, 988 F 2d 18 (5th Cir. 1998) ........ 16 Kes v. Ehrier, 499 US. 432 (1991) 23
DeMier v. Gondles, 676 F.2d 92 (4th Cir. 1982) ............... 15 Seu v. City of Pasadena, 53 F.3d 1007 (9th
Doe v. Bushee, 634 F.2d 1375 (11th Cir. 1982) oo. 12 Cir. 1995) ras 16
Evans v. Sheraton Park Hotel, 503 F.2d 177 Kimel v. Florida Bd. of Regents, 528 U.S. 62
(D.C. Cit, 1974) ....ceccccseee pepeneusiasanncenaiadepesitennteanestemntants 22 (2000) 25
E.veter-West Greenwich Regional Sch. Dist. v. Kopet v. Esquire Realty Co., 523 F.2d 1005 (2d
Pontarelli, 788 F.2d 47 (st Cir. 1986) ooo. eceececeeceseeeees 12 Cir. 1975) ..... os 2”
Farrar v. Hobby, 306 U.S. 108 (1992) ...cccccccceseeeeseeees passim Little Rock Sch. Dist. v. Pulaski County Special
Foreman v. Dallas County, 193 F.3d 314 (5th Sch. Dist. 1, 17 F.3d 260 (Sth Cir. 1994) -_ » ee
Cir. 1999), cert. denied, 120 S. Ct. 1673 (2000) ....ccccccsc 16 Long v. Bonnes, cert. denied, 455 U.S. 961 (1982) css. 8, 27
Foremaster v. City of St. George, 882 F.2d 1485 Maher v. Gagne, 448 U.S. 122 (1980) 11
(10th Cir. 1989), cert. denied, 495 U.S. 910 (19990) ........... 2s Marbley v. Bane, 57 F.3d 224 (2d Cir. 1995) . 16,29
Friends of the Earth, Inc. v. Laidlaw Envtl. Milton v. Shalala, 17 F.3d 812 (5th Cir. 1994) 20.0.0... 29
Servs. (TOC), Ine., 1208. Ct. 698 See 18, 20 Morris v. City of West Palm Beach, 194 F 3d
Gerena-Valentin v. Koch, 739 F.2d 755 (2d Cir. 1203 (11th Cir. 1999) .. ss 16
ED cise muaneinapianahisibinnanaiiiaaeainiats 12 Nadeau v. Helgemoe, 581 F.2d 275 (Ist Cir, 1978) cecco 10, 27
Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986) 00... 12 New Hampshire v. Adams, 159 F.3d 680 (1st Cir.
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay 1998) 16
Found., Inc., 484 U.S. 49 (1987) ...cccecccsecececseseeeeeees 5, 14, 15, 19 Newman v. Piggie Park Enters., Inc., 390 US.
Hanrahan vy. Hampton, 446 US. 754 (980) oe. 10,11 400 (1968) 23
Mendricks v. Bowen, 867 ¥ 2a 1256 (7th Cir. | Parham v. Southwestern Bell Tel. Co., 433 F.2d
SUED cconsecnummnssasenesommentecsanttitiescsimntamniattettiasiatsitdtemtiidaaaaaiias 29 421 (Xth Cir. 1970) : 2»

Paris v. United States Dep't of Hous. and Urban Der.,
YRS F.2d 236 (Ist Cir. 1993)

Vi

Cases—Continued: Page

Payne v. Board of Educ., Cleveland City Schs.,

co 16
Peltier v. City of Fargo, 533 F.2d 374 (sth Cir.

ne - 22
Pembroke v. Wood County, 981 F.2d 225 (5th

Cir.), cert. denied, 508 U.S. 973 (1993) ......cccccesecceeeeeeseeenees 27
Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188

(6th Cir, 1974), cert. denied, 422 U.S. 1048 (1975) ........... 22-23
Rhodes v. Stewart, 488 U.S. 1 (1988) . 13, 14, 28
Rice v. Gates Rubber Co., 521 F.2d 782 (6th Cir.

SEPEIEED cesensnninciontssnnnieninsessemmanees seeuneteeenseeninndtetainimemannteesanissanen 22
Richards v. Griffith Rubber Mills, 300 F. Supp.

SIR Ga BI ccnnsnnnsesseccosrennsccannscncesemenmntiiapesinmatiatatestenssenin 22
Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) 2.0.0.0... 14

S-1 and S-2 v. State Bd. of Educ., 21 F.3d 49

(4th Cir.), cert. denied, 513 U.S. 876 (1994) .. 4,5, 8, 16, 18, 21
S-1 by and through P-1 v. State Bd. of Educ.,

6 F.3d 160 (4th Cir. 1998), rev'd, 21 F.3d 49, cert.

ea IID sncrterintttnsnittienattiinsaitmmenette 15, 18
Sosna v. Towa, 419 U.S. 398 (1975) cocccccccccccccccececcceeeceeeeeee 26
Spencer v. General Elec. Co., 894 F.2d 651 (4th Cir.

UUETETE sehcsieretenehnsitsibceesiriieinaeiarttaaiiiainitaaiiaaiis _ 15
Stewart v. Hannon, 675 F.2d 846 (7th Cir. 1982) ............. 12
Stewart v. McGinnis, 5 F.3d 1031 (7th Cir. 1993), cert.

ee I IID aenieceiceietnhiicnteeeciteecsanniannnnncierinsn 27
Texas Teachers Ass'n v. Garland Sch. Dist., 489

U.S. 782 (1989) ............. Renton " 9, 13, 14, 20, 21
Thomas v. Honeybrook Mines, Inc., 428 F.2d 981

(3d Cir. 1970), cert. denied, 401 U.S. 911 (1971) .0. 22
Truar v. Bowen, 842 F.2d 995 (8th Cir. 1988)... 29
United States v. Concentrated Phosphate Export

P| RR SE RC eT ee 20
United States v. L.A. Tucker Truck Lines, Inc.,

Ia a EIT critica itrernnsnccarecsiinttabeceideameematinidinsedatstianaass 19
University of Tex. v. Camenisch, 451 U.S. 390

TUTTE -ceeihdpernechtaaieeatetestienitesietteieeetecteinetieietmmmmatatiiinsanatniaaniiiindiainn 26

Vil
Cases—Continued: Page
Webster v. Fall, 266 U.S. 507 (1925) ...... 19
Wheeler v. Towanda Area Sch. Dist., 950 F.2d 128
(3d Cir. 1991) mb 28
Williams v. Miller, 620 F.2d 199 (8th Cir. 1980) ............. 12
Wooldridge v. Marlene Indus. Corp., 898 F.2d
1169 (6th Cir. 1990) . 15
Young, Er parte, 209 U.S. 123 (1908) - " 25
Zinn v. Shalala, 35 F.3d 273 (7th Cir. 199A) ....ccccceceseeeeees 16, 27

Statutes and rules:

Americans with Disabilities Act of 1990, 42 U.S.C.

SIGS 66 OIG, cccennsserssnesemsnsnssseerssnssesneeenrnenen 1
GB UBC. BERIT cccccsecsessesscee: " 1
GB USB. GERBEEB cccccensczsscsssszssncesscsscccssnsssncessnsssnmssssssesseneeste 3
de 1
GB EE. CERIN ccccenersemnetesseeneentiiemmamegess 25
4 ee pen 4,9, 21

Civil Rights Act of 1964, 42 U.S.C. 2000a et seq.:
Ta BE, GB Ua SD cnsncnsereessscsenseteemsneeeen 2, 25
Tit. VIL, 42 U.S.C. 200D]-HK) .........cccscsssvscsssnseserseneeseeeees 2
Civil Rights Attorney's Fees Awards Act of 1976,
GURL. GOR cen %, 10, 17, 21-22
42 U.S.C. 1988(b) (1994 & Supp. IV 1998) .............. 1-2,4,9
Clean Water Act, 33 U.S.C. 1251 ef seq.:
SD BA. CD cece crrrrnsccnscnssnscesenenernsrnsserqneeseessesterestnnnes 14
SB UBC. SUBBED (BDI) ececccsecescesecnssssesscsnsnsssssensssssssnssssessses 14
Equal Access to Justice Act, 28 U.S.C, 2412

(BUDS G Gamma. TV GOURD cccececczscsnscscscsnssscsnsssssssssssvcssesesvsssmnsssee 2
eS i)
0 A)

Fair Housing Amendments Act of 1988, 42 U.S.C.

BEDE C0 BBG. .occccececeres-c2sesscssecesoccnssscesossenssconesssnscsesessonessesssacneceess l
GB U BRC. SEBO) cceceecscesenscensnsczssesnssesssesscsnssssensnsssssesesuscnsess 3
GRUB. GRAD cceecsrnsnececssssesenseemnmnnn 21
GB UBL. SERBIA ccccccccccscsstesseressrnenmnenemesntimnmenee 13,9

BULA. SRG ccccccccesvecscecescssnssnnnsnsrscscessnsnsscsssssssemene |

Vill Jn the Supreme Court of the United States

Statutes and rules: Page
Voting Rights Act of 1965, 42 U.S.C. 1973 No. 99-1848
et seq.
BUA, GE OD ccrsscccerrnsnsensessennpeamenennemennesnesmnnes 2 BUCKHANNON BOARD AND CARE HOME,
42 U.S.C. 1983 (1994 & Supp. TV 1998) one eeeeees 4 INC., ET AL., PETITIONERS
W. Va. Code §§ 16-5C-1 ef seq. (1966) .o.ccsecsesseesesnenneeneens 3 .
PIT ite Ga Ge IUD cxcncessnscnncniennasszenssnseessenssepesesmemenmecsemnennn 27 ;
eee , WEST VIRGINIA DEPARTMENT OF
it. 4, 83 > b¢ BOY. rercevccccerccccesccceccccccccocccsococcoocccooosccooses HEALTH AND HUMAN RESOURCES, ET AL.
Wa eB BGR cnnreesemeeensenneene 3
Miscellaneous:
H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976) ........... 2,9, 10, ON WRIT OF CERTIORARI
22, 25 TO THE UNITED STATES COURT OF APPEALS
H.R. Rep. No. 711, 100th Cong., 2d Sess. (1988)... cee i) FOR THE FOURTH CIRCUIT
H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 2
GEIEED consnsssensssvnstirevesssssncessesensseeesesnienenmesemenee 9

Model Rules of Professional Conduct, reprinted in

ABA/BNA Lawyers’ Manual on Professional Conduct BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONERS

ee 24
Note, Civil Rights Attorney's Fees Awards in Moot

Cases, 49 U. Chi. L. Rev. 819 (1982) .........cccsccccssssesesseseneees 28
5. Rep. No. 1011, 94th Cong., 2d Sess. (1976)... 10, 11, 22, 28, 25 INTEREST OF THE UNITED STATES
Webster's Third New International Dictionary (1976) ..... 21

Congress has authorized both the United States and pri-
vate parties to enforce various anti-discrimination laws,
including the Fair Housing Amendments Act of 1988, 42
U.S.C. 3601 et seq. (FHAA), and the Americans with Dis-
abilities Act of 1990, 42 U.S.C. 12101 et seg. (ADA). As an
incentive to private enforcement efforts, Congress has
authorized the award of attorney’s fees to private plaintiffs
who prevail under those and other civil rights laws. See 42
U.S.C. 3613(¢)(2), 3614(d)(2) (FHAA); 42 U.S.C. 12117(a),
12188 (ADA); see also, e.g., Civil Rights Attorney's Fees
Awards Act of 1976, 42 U.S.C. 1988(b) (1994 & Supp. IV

(1)

1998); Voting Rights Act of 1965, 42 U.S.C. 1973/(e); Title II
of the Civil Rights Act of 1964, 42 U.S.C. 2000a-3(b); Title
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(k).
Because meritorious private enforcement actions provide an
important complement to government civil rights enforce-
ment efforts, see, e.g., H.R. Rep. No. 1558, 94th Cong., 2d
Sess. 1 (1976), the United States has a significant interest in
the construction of the attorney’s fees provisions in a manner
that fully effectuates that purpose. At the same time,
because the United States itself is subject to claims for
attorney's fees by private plaintiffs who prevail under other
federal statutes, see, e.g., Equal Access to Justice Act, 28
U.S.C. 2412 (1994 & Supp. IV 1998), the United States has
an interest in ensuring that statutes providing for attorney’s
fees are not construed more broadly than Congress intended
and that fees are awarded only where Congress has
deliberately departed from the traditional “American” rule
that each party bears its own litigation expenses. See
Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240
(1975). Although this case directly concerns the availability
of attorney’s fees only under the FHAA and the ADA, it will
likely provide guidance on the availability of fees under a
wide variety of federal fee-shifting statutes. See Hensley v.
Eckerhart, 461 U.S. 424, 433 n.7 (1983).
STATEMENT

Petitioners are the operators of residential board and care
homes (RBCHs) in West Virginia. Pet. App. A7. RBCHs
provide a group home environment—and an alternative to
institutionalization—for persons who need assisted living
but do not need specialized care, such as nursing services.
Ibid. In 1996, state officials ordered petitioner Buckhannon
Board and Care Home to close its RBCHs because those
officials determined that some residents, such as 102-year-
old Dorsey Pierce, could not satisfy the state fire safety

_——>_

code’s “self-preservation” requirement for RBCH residents.
Ibid. That provision required that, in the event of a fire, all
residents of a RBCH must be able to evacuate the building
without prompting or assistance. Jbid. See W. Va. Code
$$ 16-5C-1 et seg. (1996); W. Va. St. R. tit. 64, §§ 65-1 et seq.
(1996); id. tit. 87, § 1-14.7 (1996).

Petitioners filed this action, which challenged both the
self-preservation requirement and the specific order to
remove residents from the RBCHs. They contended that
the “self-preservation” provision was not required for fire
safety in a group home that afforded other means of safe
evacuation and that the rule conflicted with provisions of the
FHAA and the ADA that prohibit discrimination against
persons with disabilities. See 42 U.S.C. 3604(f) (FHAA); 42
U.S.C. 12132 (ADA). Pet. App. A7. On March 14, 1998,
while the litigation was pending, the West Virginia
legislature repealed the self-preservation requirement. Id.
at A7, All. On respondents’ motion, the district court dis-
missed the case as moot. Jd. at A7, All, A16-A17.

Petitioners moved for attorney's fees under the fee pro-
visions of the FHAA and the ADA. Pet. App. A7. The
FHAA provides, in relevant part:

In a civil action under subsection (a) of this section, the
court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee.
42 U.S.C. 3613(c)(2). Similarly, the ADA provides in rele-
vant part:
In any action or administrative proceeding commenced
pursuant to this chapter, the court or agency, in its dis-
cretion, may allow the prevailing party, other than the
United States, a reasonable attorney's fee.

42 U.S.C. 12205. Petitioners argued that, even though their
case was dismissed, they nonetheless were prevailing par-
ties, within the meaning of those statutes, because their
lawsuit prompted the change in policy that mooted the case.
Pet. App. A7-A8.

The district court denied the motion. Pet. App. A1l7-A19.
The court stated that petitioners “might prevail on this
theory” if it were available. Jd. at A17. The court concluded,
however, that the court of appeals’ decision in S-1 and S-2 v.
State Board of Education, 21 F.3d 49, 51 (4th Cir.) (en bane),
cert. denied, 513 U.S. 876 (1994), prohibited the award of
attorney's fees under the circumstances presented here
because the plaintiffs did not qualify as “prevailing parties”
within the meaning of federal fee shifting statutes, which are
construed in pari materia. See Pet. App. A17-A18.' The en
bane court of appeals had ruled in S-7 and S-2 that:

1. A person may not be a “prevailing party” plaintiff
under 42 U.S.C. § 1988 except by virtue of having ob-
tained an enforceable judgment, consent decree, or
settlement giving some of the legal relief sought in a
§$ 1985 action. Farrar v. Hobby, [506] U.S. [103] (1992).

' The S-1 and S-2 litigation had involved a private suit under 42

U.S.C, 1983 (1994 & Supp. 1V 1998), against state and city officials,
seeking tuition reimbursement for handicapped students. The private
plaintiffs obtained summary judgment and, while the case was on appeal,
they reached a settlement with the city officials. The court of appeals
concluded that the settlement mooted the case against the state officials,
and the state legislature later enacted changes benefitting the private
plaintiffs. The private plaintiffs then sought attorney's fees from the state
defendants under 42 U.S.C. 1988(b) (1994 & Supp. [V 1998), which allows a
“prevailing party” to recover its fees. The district court granted the fee
request, and a court of appeals panel affirmed, relying on its prior decision
in Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979). The en bane court of
appeals reversed the fee award and overruled Bonnes, citing Farrar vy.
Hobby, 506 US. 108 (1992). See S-1 and S-2, 21 F.3d at 50-51.

~~ -

————— ee eee

——

2. The fact that a lawsuit may operate as a catalyst
for post-litigation changes in a defendant’s conduct can-
not suffice to establish plaintiff as a prevailing party.
“Catalyst theory,” allowing that result, is no longer
available for that purpose, see Farrar, [506] U.S. at
[113], and cases such as Bonnes v. Long, 599 F.2d 1316
(4th Cir. 1979), which applied that theory, are overruled.

3. Here, the dismissal on appeal of an action under
42 U.S.C. § 1983 for prudential reasons as moot operates
to vacate the judgment below, see United States v.
Munsingwear, Inc., 340 U.S. 36 (1950), and prevents the
plaintiffs from being found prevailing parties by virtue
of post-dismissal events. The plaintiffs therefore are not
entitled to an award of attorney fees under 42 U.S.C. §
1988.

21 F.3d at 51 (parallel citations omitted). The district court
concluded that the S-1 and S-2 decision controlled the out-
come of this case. Pet. App. A17-A18.

Petitioners appealed, and the court of appeals affirmed the
district court’s decision. Pet. App. A4-A8. The three-judge
panel concluded that it was bound by the S-1 and S-2
decision, id. at A7, and that, “[bJecause the plaintiffs did not
bring about the change in West Virginia law through any
judgment, decree, or settlement, * * * the district court
properly applied S-1 and S-2 to this case,” id. at A&’. The
court of appeals denied petitioners’ request for rehearing en
bane. /d. at Al-A3.

SUMMARY OF ARGUMENT

The court of appeals has erroneously concluded that a
plaintiff cannot qualify as a “prevailing party,” for purposes
of awarding attorney's fees under federal civil rights legis-
lation, unless the plaintiff obtains redress through a judicial
judgment, consent decree, or out-of-court settlement.

Contrary to the views of every other court of appeals, that
court has specifically rejected the possibility that a plaintiff
may be entitled to an award of attorney’s fees when the
plaintiff obtains the relief it seeks through the defendant’s
voluntary, post-complaint compliance. The court of appeals
reached that mistaken conclusion through a misunder-
standing of this Court’s decision in Farrar v. Hobby, 506
U.S. 103 (1992).

Prior to Farrar, this Court had expressed the under-
standing that a plaintiff “prevails,” and is accordingly eligible
for an award of attorney’s fees, if the plaintiff succeeds
through an enforceable judgment, a consent decree, an out-
of-court settlement, or the defendant’s voluntary, post-
complaint change in conduct that redresses the plaintiff's
grievances. See Hewitt v. Helms, 482 U.S. 755, 760-761
(1987). The courts of appeals, including the Fourth Circuit,
had uniformly expressed that understanding as well. Indeed,
the Court described that principle as “settled law.” Jbid.; see
also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found.,
Inc., 484 U.S. 49, 67 n.6 (1987).

The Court’s decision in Farrar did not manifest any inten-
tion to change that principle. Indeed, Farrar did not ad-
dress, explicitly or implicitly, the question whether a
plaintiff may qualify as a “prevailing party” if the plaintiff
obtains the relief it seeks through the defendant's post-
complaint compliance. Farrar held that a piaintiff that liti-
gates to judgment, but receives only nominal damages, quali-
fies as a “prevailing party” because the plaintiff receives
actual relief that materially alters the relationship between
the parties in a way that benefits the plaintiff. 506 U.S. at
111-112. If anything, Farrar’s rationale supports, rather
than repudiates, the Court’s prior endorsement of the prin-
ciple at issue here. Like a plaintiff that receives nominal
damages, a plaintiff that achieves the aim of its suit through
the defendant’s voluntary compliance receives actual relief

that resolves the legal dispute in a way that benefits the
plaintiff.

The court of appeals’ contrary ruling is inconsistent with
the accepted meaning of a “prevailing party,” is contrary to
the unambiguous legislative history of relevant federal legis-
lation, and would produce results that are irrational and con-
trary to the purposes of federal fee-shifting statutes. A
plaintiff whose lawsuit induces voluntary compliance has no
less need for or entitlement to an attorney’s fee award than a
plaintiff who achieves the same objective by litigating to
judgment or reaching a settlement. Denying a fee award
when the plaintiff obtains voluntary compliance would pro-
duce powerful disincentives for victims of discrimination to
bring meritorious suits and would encourage attorneys to
engage in gamesmanship that is far removed from the merits
of the underlying dispute.

This Court should accordingly reject the court of appeals’

categorical rule, reverse the judgment, and remand the case
for a determination of whether petitioners qualify as “pre-
‘ailing parties” under the specific facts of this case. The
district court’s determination should be guided by three
central considerations: (1) whether petitioners’ complaint
had legal merit; (2) whether petitioners received actual relief
that redressed their grievances; and (3) whether petitioners’
lawsuit played a substantial role in inducing respondents to
change their ways.

ARGUMENT

A PLAINTIFF MAY RECOVER ATTORNEY’S FEES
UNDER THE PREVAILING PARTY STANDARD IF, AS A
RESULT OF THE PLAINTIFF’S SUIT, THE DEFEN-
DANT VOLUNTARILY PROVIDES THE PLAINTIFF
WITH REQUESTED RELIEF

The Fourth Circuit, alone among the courts of appeals, has
ruled that a person does not qualify as a “prevailing party,”
for purposes of federal attorney’s fee statutes, “except by
virtue of having obtained an enforceable judgment, consent
decree, or settlement giving some of the legal relief sought.”
S-1 and S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir.
1994) (en banc). That court erroneously concluded that this
Court’s decision in Farrar v. Hobby, 506 U.S. 103 (1992),
required that result. This Court’s pre-Farrar decisions had
accepted the proposition that a plaintiff may receive an
award of attorney's fees if, as a result of the plaintiffs suit,
the defendant voluntarily provided the requested relief. The
Court’s decision in Farrar did not call that practice into
question. To the contrary, the practice is consistent with the
language, legislative history, and purposes of fee-shifting
statutes. This Court should accordingly reverse the judg-
ment of the court of appeals and remand the case for
determination of whether, under the facts of this case, an
award of fees is warranted.”

- Courts and litigants frequently describe a court’s award of attorney's
fees in the absence of a formal judgment as resting on the “catalyst
theory.” See, eg., Pet. App. A7, Al7. Because that shorthand phrase
embraces several different approaches to the question presented here,
see, ¢.y., Long v. Bonnes, cert. denied, 455 U.S. 961 (1982) (Rehnquist, J.,
dissenting from denial of certiorari), we do not employ that terminology.

9

A. This Court's Decisions Prior To Farrar v. Hobby
Manifested The Understanding That A Plaintiff May
Recover Fees If The Defendant Has Voluntarily Pro-
vided Requested Relief

Under traditional practice in American courts, a party
that seeks relief through the judicial process must pay its
own attorney's fees. See Alyeska Pipeline Serv. Co. vy.
Wilderness Society, 421 U.S. 240 (1975). Congress, however,
has modified that rule by statute in a number of important
contexts. See, e.g., Equal Access to Justice Act, 28 U.S.C.
2412(b) and (d); Civil Rights Attorney's Fees Awards Act
of 1976, 42 U.S.C. 1988(b) (1994 & Supp. IV 1998). For
example, many federal anti-discrimination laws, including
the FHAA and the ADA, provide that a “prevailing party,”
other than the United States, may recover a “reasonable
attorney's fee.” See 42 U.S.C. 3613(¢)2) (FHAA); 42 U.S.C.
12205 (ADA). Congress has enacted those fee-shifting pro-
visions “to ensure ‘effective access to the judicial process’ for
persons with civil rights grievances.” Hensley v. Eckerhart,
461 U.S. 424, 429 (1983) (quoting H.R. Rep. No. 1558, 94th
Cong., 2d Sess. 1 (1976) (supporting passage of 42 U.S.C.
1988)).”

This Court stated in Hensley—and explicitly reiterated in
Texas Teachers Ass'n v. Garland School District, 489 U.S.
782, 791-792 (1989)—that “plaintiffs may be considered ‘pre-
vailing parties’ for attorney’s fees purposes if they succeed
on any significant issue in litigation which achieves some of

* In accordance with Congress's intent, this Court has given the term
“prevailing party” a consistent interpretation for all of the attorney's fees
statutes in which that term appears. See Hensley, 461 U.S. at 4283 n.7;
H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 2, at 140 (ADA) ("It is in-
tended that the term ‘prevailing party’ be interpreted consistently with
other civil rights laws.”); H.R. Rep. No. 711, 100th Cong., 2d Sess. 16 &
n.20 (1988) (fee provision of FHAA modeled on 42 U.S.C. 1988).

10

the benefit the parties sought in bringing suit.” Hensley, 461
U.S. at 433 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-
279 ((1st Cir. 1978)). The Court has since recognized, based
in part on the legislative reports that accompanied 42 U.S.C.
1988, that a plaintiff may qualify as a prevailing party even
though the plaintiff has not litigated the issue to judgment.
See S. Rep. No. 1011, 94th Cong., 2d Sess. 5 (1976) (“parties
may be considered to have prevailed when they vindicate
rights through a consent judgment or without formally
obtaining relief”); H.R. Rep. No. 1558, supra, at 6-7 (accord).
The Court’s decisions indicate, in accordance with those
reports, that a plaintiff may “succeed on [a] significant issue
in litigation” through: (1) a consent decree; (2) an out-of-
court settlement agreement; or (3) the defendant’s voluntary
cessation of the challenged practice. See id. at 7.*

The Court’s decision in Hanrahan v. Hampton, 446 U.S.
754 (1980), noted that a plaintiff may qualify as a “prevailing
party” on the basis of a consent judgment. The Court stated:

The legislative history of the Civil Rights Attorney’s
Fees Awards Act of 1976 indicates that a person may in
some circumstances be a “prevailing party” without hav-
ing obtained a favorable “final judgment following a full
trial on the merits.” H.R. Rep. No. 94-1558, p. 7 (1976).
See also S. Rep. No. 94-1011, p. 5 (1976). Thus, for

4 The House Report specifically states that “|t|he 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.” H.R. Rep. No. 1558, supra,
at 7. “If the litigation terminates by consent decree, for example, it would
be proper to award counsel fees.” Jbid. (emphasis added). “A ‘prevailing’
party should not be penalized for seeking an out-of-court settlement, thus
helping to lessen docket congestion.” /b/d. (emphasis added). “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.” Jbid. (emphasis added).

11

example, “parties may be considered to have prevailed
when they vindicate rights through a consent judgment
or without formally obtaining relief,” ibid. See also H.R.
Rep. No. 94-1558, supra, at 7, and cases cited; Dawson v.
Pastrick, 600 F.2d 70, 78 (CA7 1979); Nadeau v.
Helgemoe, 581 F.2d 275, 279-281 (CA1 1978).

Id. at 756-757. The Court's decision in Maher v. Gagne, 448
U.S. 122 (1980), reached a similar conclusion with respect to
settlements. The Court stated:

The fact that respondent prevailed through a settlement
rather than through litigation does not weaken her claim
to fees. Nothing in the language of § 1988 conditions the
District Court’s power to award fees on full litigation of
the issues or on a judicial determination that the plain-
tiff’s rights have been violated. Moreover, the Senate
Report expressly stated that “for purposes of the award
of counsel fees, parties may be considered to have
prevailed when they vindicate rights through a consent
judgment or without formally obtaining relief.”

Id. at 129 (quoting S. Rep. No. 1011, supra, at 5).

The Court’s decision in Hewitt v. Helms, 482 U.S. 755
(1987), addressed, albeit indirectly, the consequences of a de-
fendant’s voluntary cessation of a challenged practice. The
central issue in Hewitt was “the peculiar-sounding question
whether a party who litigates to judgment and loses on all of
his claims can nonetheless be a ‘prevailing party’ for pur-
poses of an award of attorney's fees.” Jd. at 757. Helms had
alleged that prison officials mistreated him, and a lower
court rendered a favorable interlocutory ruling, but ulti-
mately denied him any form of judicial relief. Jd. at 760. This
Court concluded that Helms was not entitled to an award of
attorney's fees. /d. at 760-763. The Court explained:

eabDiating

It is settled law, of course, that relief need not be judi-
cially decreed in order to justify a fee award under §
1988. 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. See Maher, supra, at 129.

Id. at 760-761 (emphasis added).

As the quoted language makes clear, the Court’s decision
in Hewitt explicitly accepted, as “settled law,” that a plaintiff
“prevails,” for purposes of an award of attorney’s fees if: (a)
the plaintiff's lawsuit seeks specific relief to address
particular grievances; and (b) the defendant responds by
taking voluntary action—including either a settlement or “a
change in conduct”—that provides some or all of that relief.”
The Court contrasted that situation with the one before it
and concluded that “a favorable judicial statement of law in
the course of litigation that results in judgment against the

° The Court had good reason to characterize this principle as “settled
law.” By 1987, numerous courts of appeals had recognized that a plaintiff
may be entitled to an award of attorney's fees if the plaintiff received
requested relief through the defendant's voluntary compliance. See
Eveter-West Greenwich Reg'l Sch. Dist. v. Pontarelli, 788 F.2d 47, 53 Ust
Cir. 1986); Gerena-Valentin v. Koch, 739 F.2d 755, 758-759 (2d Cir. 1984);
Iustitutionalized Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897,
911-912 (3d Cir. 1985); Bonnes v. Long, 599 F.2d 1316, 1319 (4th Cir. 1979);
Hennigan v. Ouachita Parish Sch. Bd., 749 F.2d 1148, 1150-1151 (Sth Cir.
1985); Stewart v. Hannon, 675 F.2d 846, 851 (7th Cir. 1982); Williams v.
Miller, 620 F.2d 199, 202 (8th Cir. 1980); American Constitutional Party
v. Munro, 650 F.2d 184, 187-188 (9th Cir. 1981); J & J Anderson, Inc. v.
Town of Erie, 767 F.2d 1469, 1474-1475 (0th Cir. 1985); Doe v. Bushee, 684
F.2d 1375, 1379 (11th Cir.1982); Grano v. Barry, 733 F.2d 1104, 1108 (D.C.
Cir. 1986).

13

9

plaintiff does not suffice to render him a ‘prevailing party.’
482 U.S. at 763. The Court thus made clear that the “pre-
vailing party” requirement focuses on whether, and to what
extent, the plaintiffs lawsuit produces the tangible “end”
result that the plaintiff sought. Accord Texas Teachers
Ass'n, 489 U.S. at 792 (“the plaintiff must be able to point to
a resolution of the dispute which changes the legal relation-
ship between itself and the defendant”).°

The Court’s decision in Hewitt also rejected Helms’ “alter-
native” argument that he might be entitled to attorney’s fees
because his lawsuit prompted prison officials to amend
prison regulations. The Court concluded that it “need not

® The Court specifically made that point in the course of rejecting
Helms’ argument that the lower court’s favorable, but inconsequential,
interlocutory ruling was the equivalent of declaratory relief. 482 U.S. at
761. The Court explained, “To suggest such an equivalency is to lose sight
of the nature of the judicial process. In all civil litigation, the judicial
decree is not the end but the means. At the end of the rainbow lies not a
judgment, but some action (or cessation of action) by the defendant that
the judgment produces—the payment of damages, or some specific
performance, or the termination of some conduct. Redress is sought
through the courts, but from the defendant.” Jbid. The Court specifically
observed:

The real value of the judicial pronouncement * * * is in the settling
of some dispute which affects the behavior of the defendant towards
the plaintiff. * * * If the defendant, under the pressure of the
lawsuit, pays over a money claim before the judicial judgment is
pronounced, the plaintiff has “prevailed” in his suit because he has
obtained the substance of what he sought. Likewise in a declaratory
judgment action: if the 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.

Ibid. Accord Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam) (“A
declaratory judgment, in this respect, is no different from any other judg-
ment. It will constitute relief, for purposes of § 1988, if, and only if, it
affects the behavior of the defendant toward the plaintiff.”).

14

decide the circumstances, if any, under which this ‘catalyst’
theory could justify a fee award under § 1988” because
Helms was not in prison at the time the prison officials
amended the regulations and therefore could not have re-
ceived “redress” through those regulations. Hewitt, 482 U.S.
at 763. The Court also suggested that, even in the absence of
that obstacle, Helms would additionally have had to show
that his complaint requested the change in the regulations
and that there was a “clear causal link between his lawsuit
and the State’s amendment of its regulations.” /bid.'

This Court addressed the issue of voluntary cessation
again, shortly after the Court decided Hewitt, in Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484
U.S. 49 (1987). That case arose from a private plaintiffs
attempt to abate, through the citizen suit provisions of the
Clean Water Act, 33 U.S.C. 1365, unlawful water pollution
discharges. Those provisions allow citizens to bring private
enforcement actions against polluters and authorize the
courts to award attorney's fees to successful plaintiffs.” In
the course of addressing the legal standards for determining

7 See also Rhodes, 488 U.S. at 4 (“This case is thus controlled by our
holding in Hewitt, where the fact that the respondent had ‘long since been
released from prisea-and ‘could not get redress’ from any changes in
prison policy caused by his lawsuit compelled the conclusion that he was
ineligible for an award of fees.”).

* At that time, the Clean Water Act authorized attorney's fees
“whenever the court determines such award is appropriate.” 33 U.S.C.
1365(d) (1982). Nevertheless, this Court interpreted the Clean Water Act
to require that the plaintiff achieve at least “some degree of success on the
merits.” See Ruckelshaus v. Sierra Club, 468 U.S. 680, 684-694 (1985).
Thus, the Clean Water Act's attorney's fee provisions effectively imposed
a “prevailing party” requirement like those contained in the civil rights
laws. See Teras Teachers Ass'n, 489 U.S. at 791 (Under Section 1988, a
plaintiff is a prevailing party if it “succeeded on any significant claim
affording it some of the relief sought.”). The current version of the Clean
Water Act expressly limits fees to a “prevailing” party. 38 U.S.C. 1365(d).

OS er en Oe re er ee —_i—O

15

when a citizen suit becomes moot, the Court noted that the
Clean Water Act allows a court to award attorney’s fees to a
citizen plaintiff if, “as a result of a citizen proceeding and
before a verdict is issued, a defendant abated a violation.”
484 U.S. at 67 n.6. In Gwaltney, as in Hewitt, the Court
envisioned that a plaintiff would be eligible to recover
attorney’s fees if, as a result of the plaintiff's suit, the
defendant elected to forego litigation and to comply volun-
tarily with the plaintiff's demand for cessation of the unlaw-
ful practice. /bid.

Taken collectively, the Court’s pre-Farrar decisions mani-
fest the Court’s understanding that a plaintiff may recover
attorney’s fees under the “prevailing party” standard if, as a
result of the plaintiff's suit, the defendant voluntarily pro-
vides the plaintiff with requested relief. To be sure, the
Court has never had occasion, until now, to rule squarely on
that specific issue in a discrete factual context. Neverthe-
less, the Court’s decisions express the understanding that a
plaintiff may be entitled to fees when the defendant takes
post-complaint action “that affords the plaintiff all or some of
the relief he sought” through “a change in conduct that
redresses the plaintiff's grievances.” Hewitt, 482 U.S. at 760-
761. The Court’s acceptance of that “settled” principle
clearly contributed to the Court’s ratio decidendi in Hewitt,
and it informed the Court’s decision in Gwaltney. Until this
Court’s decision in Farrar v. Hobby, supra, the Fourth Cir-
cuit, like all of the other courts of appeals, shared that under-
standing and applied it in specific cases. See, e.g., S-1 by and
through P-1 v. State Bd. of Educ., 6 F.3d 160, 164-165 (4th
Cir. 1993), rev’d, 21 F.3d 49 (en bane), cert. denied, 513 U.S.
876 (1994); see also Spencer v. General Elec. Co., 894 F.2d
651, 662 (4th Cir. 1990); DeMier v. Gondles, 676 F.2d 92, 93
(4th Cir. 1982); Wooldridge v. Marlene Indus. Corp., 898
F.2d 1169, 1173-1174 (6th Cir. 1990), and cases cited at note
5, supra.

16

B. This Court’s Decision In Farrar v. Hobby Does Not
Repudiate The Principle That A Plaintiff May Recover
Fees If The Defendant Voluntarily Provides Re-
quested Relief

The Fourth Circuit stands alone among the courts of
appeals in holding that this Court’s decision in Farrar v.
Hobby, 506 U.S. 103 (1992), precludes a plaintiff from quali-
fying as a “prevailing party” if the plaintiff's lawsuit induces
the defendant to provide the requested relief voluntarily
through a unilateral, post-complaint change in the defen-
dant’s conduct.” The Fourth Circuit’s counter-intuitive
holding rests on a misunderstanding of Farrar, which does
not address that question. If anything, Farrar supports,
rather than repudiates, the widely accepted principle that
plaintiff may be a “prevailing party” if the plaintiff succeeds
on its claims through means other than “an enforceable
judgment, consent decree, or settlement” (S-1 and S-2, 21
F.3d at 51).

This Court’s decision in Farrar addressed “whether a civil
rights plaintiff who receives a nominal damages award is a
‘prevailing party’ eligible to receive attorney’s fees under 42
U.S.C. § 1988.” 506 U.S. at 105. Farrar had brought a civil
rights suit against Hobby and other Texas officials under 42

” See, eg.. New Hampshire v. Adams, 159 F.3d 680, 685 (st Cir.
1998); Marbley v. Bane, 57 F.3d 224, 234 (2d Cir. 1995); Banmgartner vy.
Harrisburg Housing Auth., 21 F.3d 541, 546-550 (8d Cir. 1994); Craig v.
Greag County, 988 F.2d 18, 21 (5th Cir. 1993); Payne v. Board of Educ., 88
F.3d 392, 397 (6th Cir. 1996); Zinn v. Shalala, 35 F.3d 273, 274-275 (7th
Cir. 1994); Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. 1,17
F.3d 260, 262-263 & n.3 (8th Cir. 1994); Kilgour v. City of Pasadena, 53
F.3d 1007, 1010 (9th Cir. 1995); Beard v. Teska, 31 F.3d 942, 951-952 (0th
Cir. 1994); Morris v. City of West Palm Beach, 194 F.3d 1208, 1207 (11th
Cir. 1999); but see Foreman v. Dallas County, 193 F.3d 314, 320 (Sth Cir.
1999) (stating, in dicta, that, after Farrar, “the continuing validity of the
catalyst theory is in serious doubt”), cert. denied, 120 S. Ct. 1678 (2000).

17

U.S.C. 1983, seeking $17 million in compensation for an
alleged violation of constitutional rights. 506 U.S. at 105-106.
A jury found that Hobby had violated Farrar’s rights, and
the district court ultimately entered a judgment for nominal
damages. /d. at 106-107. The district court awarded Farrar
substantial attorney’s fees, but the court of appeals reversed
that award on the basis that Farrar was not a “prevailing
party.” Jd. at 107-109. This Court determined that Farrar
was a “prevailing party” for purposes of 42 U.S.C. 1988, but
it affirmed the judgment on the ground that an award of any
fees in that case was unreasonable. See 506 U.S. at 109-116.

In reaching its decision, the Court repeated its general
formulation that “plaintiffs may be considered ‘prevailing
parties’ for attorney’s fees purposes if they succeed on any
significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit.” Farrar, 506 U.S.
at 109 (quoting Hensley, 461 U.S. at 432). The Court then
reviewed its decisions in “three recent cases”—Hewitt,
Rhodes, and Texas Teachers Ass’n—in which the Court had
“elaborated on the definition of prevailing party.” Jbid. As
the Court noted, in each of those cases—as in the case before
it—the plaintiff had litigated its claim to “judgment.” Id. at
109 (Hewitt), 110 (Rhodes), 111 (Texas Teachers Ass’n). The
Court distilled the following principles from those fully
litigated cases:

(T]o qualify as a prevailing party, a civil rights plaintiff
must obtain at least some relief on the merits of his
claim. The plaintiff must obtain an enforceable judgment
against the defendant from whom fees are sought,
Hewitt, supra, at 760, or comparable relief through a con-
sent decree or settlement. Maher v. Gagne, 448 U.S. 122,
129 (1980). Whatever relief the plaintiff secures must
directly benefit him at the time of the judgment or
settlement. See Hewitt, supra, at 764. Otherwise the

18

judgment or settlement cannot be said to “affec[t] the
behavior of the defendant toward the plaintiff.” Rhodes,
supra, at 4. Only under these circumstances can civil
rights litigation effect “the material alteration of the
legal relationship of the parties” and thereby transform
the plaintiff into a prevailing party. [Texas Teachers
Ass'n], supra, at 792-793. In short, 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.

Id. at 111-112. Applying that test, the Court concluded that a
plaintiff who wins nominal damages is a prevailing party
because “[a] judgment for damages in any amount, whether
compensatory or nominal, modifies the defendant’s behavior
for the plaintiff's benefit by forcing the defendant to pay an
amount of money he otherwise would not pay.” /d. at 113.

The Fourth Circuit reasoned that, because the passages of
Farrar quoted above do not indicate that a plaintiff may pre-
vail through the defendant’s voluntary cessation of the chal-
lenged conduct, the Court intended to foreclose that basis for
an attorney's fee award. See S-1 and S-2, 21 F.3d at 51; S-/
by and through P-1, 6 F.3d at 168-169 (Wilkinson, J., dis-
senting) (opinion adopted by the en bane court). That rea-
soning is flawed at the threshold. The Court did not discuss
the question of voluntary cessation because that issue was
not before it. See Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 120 S. Ct. 693, 711 (2000) (noting
that question whether a plaintiff may obtain fees based on
the defendant’s voluntary cessation of the challenged action
“was not presented for this Court’s decision in Farrar” and
that “several Courts of Appeals have expressly concluded
that Farrar did not repudiate [that] theory”). The Court’s
decision in Farrar accordingly cannot be viewed as having

19

decided that matter. See, e.g., Brecht v. Abrahamson, 507
U.S. 619, 631 (1993); United States v. L.A. Tucker Truck
Lines, Inc., 344 U.S. 33, 38 (1952); Webster v. Fall, 266 U.S.
507, 511 (1925).

Furthermore, the court of appeals had no basis for infer-
ring from Farrar that a plaintiff can never obtain attorney’s
fees if the lawsuit induces voluntary compliance. Farrar
resolved an attorney’s fee dispute involving a judgment, and
it did not repudiate, expressly or by implication, the Court’s
past observations that a plaintiff may “prevail,” for purposes
of an award of attorney’s fees, if the plaintiff's lawsuit
produces “a change in conduct that redresses the plaintiff's
grievances.” Hewitt, 482 U.S. at 760-761; see also Gwaltney,
484 U.S. at 67 n.6. The passages in Farrar that the court of
appeals cited provide clear guidance for cases involving a
judgment, which was the only factual context before the
Court. Those passages, however, should not be mechanically
applied to other contexts or employed without regard to this
Court’s statements respecting the availability of attorney’s
fees when a plaintiff obtains redress “despite the absence of
a formal judgment in his favor.” Hewitt, 482 U.S. at 761. See
pp. 10-15, supra

Moreover, even if the Court decided to extend Farrar’s
verbal formulation beyond the context of judgments, see 506
U.S. at 111-112, that formulation would support the con-
clusion that a plaintiff whose lawsuit induces voluntary post-
complaint compliance is a “prevailing party.” First, a
plaintiff who obtains the objective of his suit through the
defendant’s voluntary post-complaint compliance receives
“actual relief on the merits of his claim.” Farrar, 506 U.S. at
111. Indeed, that plaintiff obtains far more meaningful
redress—despite the absence of a formal judgment—than a
party who receives nominal damages, like the plaintiff in
Farrar. See Hewitt, 482 U.S. at 761. Second, that relief
“materially alters the legal relationship between the par-

20)

ties.” Farrar, 506 U.S. at 111. The defendant who volun-
tarily complies with the plaintiff's demand for relief elimi-
nates the basis for the plaintiffs legal challenge, moots the
plaintiffs legal action, and relieves the parties of their
obligation to litigate the suit. Plainly, the plaintiff is “able to
point to a resolution of the dispute which changes the legal
relationship between itself and the defendant.” Texas
Teachers Ass'n, 489 U.S. at 792. Third, that change in the
legal relationship “modiflies] the defendant’s behavior in a
way that directly benefits the plaintiff.” Farrar, 506 U.S. at
111-112. The plaintiff receives the actual relief it has re-
quested. Furthermore, if the court determines that the
defendant’s actions have mooted the case, the plaintiff has
received a benefit that is concrete and effectively per-
manent. See Friends of the Earth, 120 S. Ct. at 708 (a
defendant is entitled to dismissal only if it is “absolutely
clear that the allegedly wrongful behavior could not reason-
ably be expected to recur”) (quoting United States v. Con-
centrated Phosphate Export Ass'n, 393 U.S. 199, 203 (1968));
Pet. App. A13-A17.

In sum, Farrar supports, rather than undermines, the
principle that a plaintiff may recover fees if the defendant
voluntarily provides the requested relief. As we next show,
the principle finds solid support in the language, legislative
history, and purpose of the relevant federal legislation. The
court of appeals’ ruling does not.

C. The Court Of Appeals’ Ruling Is Inconsistent
With The Language, Legislative History, And Pur-
poses Of Federal Legislation Authorizing Awards Of
Attorney's Fees To Prevailing Parties

A plaintiff that has obtained the redress that it seeks
through the defendant’s voluntary compliance with the
plaintiff's demand for relief is a “prevailing party” within the
plain meaning of the FHAA, the ADA, and other attorney's

21

fee statutes. The ordinary meaning of the verb “to prevail”
is “to be or become effective or effectual; be successful.”
See, e.g., Webster’s Third New International Dictionary
(1976) (def. 3). The Court has accordingly stated that a
plaintiff has “prevailed” if he has “succeed[ed] on any
significant issue in litigation which achieves some of the
benefit [he] sought in bringing suit.” Farrar, 506 U.S. at 109
(interpreting the term “prevailing party” in 42 U.S.C. 1988);
Texas Teachers Ass’n, 489 U.S. at 791-792 (same); Hensley,
461 U.S. at 433 (same). A plaintiff whose lawsuit induces
voluntary, post-complaint compliance plainly qualifies as a
prevailing party under that standard because “because he
has obtained the substance of what he sought.” Hewitt, 482
U.S. at 761. See ibid. (“if the 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”).””

That construction is consistent with the legislative history
of the FHAA and ADA attorney’s fee provisions. The legis-
lative reports that accompanied the FHAA and the ADA
state that the term “prevailing party” has the same meaning
in those statutes as in other civil rights laws, including 42

The court of appeals’ contrary ruling depends on a limitation—the

requirement that the party obtain relief through “an enforceable judg-
ment, consent decree, or settlement” (S-/ and S-2, 21 F.3d at 51)—that
appears nowhere in the statutes at issue. See 42 U.S.C. 3613(¢); 42 U.S.C.
12205. Furthermore, that limitation creates a stark anomaly: A plaintiff
may “prevail” through an out-of-court settlement, where the plaintiff and
the defendant agree to a compromise of the plaintiffs claims; but the
plaintiff cannot “prevail” through the defendant's voluntary post-com-
plaint compliance, where the defendant unilaterally capitulates to the
plaintiff's request for relief. See S-1 and S-2, 21 F.3d at 51; ef. Hewitt, 482
U.S. at 760-761 (a plaintiff may prevail through “a monetary settlement or
a change in conduct that redresses the plaintiff's grievances”) (emphasis
added).

22

U.S.C. 1988 (1994 & Supp. IV 1998). See note 3, supra. The
House report accompanying 42 U.S.C. 1988 unambiguously
states:

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 defen-
dant might voluntarily cease the unlawful practice. A
court should still award fees even though it might con-
clude, as a matter of equity, that no formal relief, such as
an injunction, is needed.

H.R. Rep. No. 1558, supra, at 7. The House and Senate re-

ports cite numerous examples of such cases. See ibid.; S.
1]
Rep. No. 1011, supra, at 5.

'! The cited cases include the frequently followed decision, Parham vy.
Southwestern Bell Tel. Co., 483 F.2d 421, 429-430 (Sth Cir. 1970) (awarding
fees despite the lack of need for equitable relief), as well as others. See
Kopet v. Esquire Realty Co., 528 F.2d 1005, 1007-1008 (2d Cir. 1975)
(awarding fees under “common fund” doctrine and noting that fees may be
awarded “even where adjudication on the merits is never reached, ¢.9.,
after a settlement”); Brown v. Gaston County Dyeing Mach. Co,, 457 F.2d

377, 1883 (4th Cir.) (awarding fees despite the lack of need for equitable
relief), cert. denied, 409 U.S. 982 (1972); Thomas v. Honeybrook Mines,
Inec., 428 F.2d 981, 986 (3d Cir. 1970) (awarding fees under “common fund”
doctrine where plaintiffs lawsuit caused defendants to take the action
requested in the lawsuit), cert. denied, 401 U.S. 911 (1971); Richards v.
Griffith Rubber Mills, 300 F. Supp. 388 (D. Or. 1969) (awarding fees even
though injunctive relief was made inappropriate by, among other things,
the fact that the defendant had provided the plaintiff the job assignment
she requested). The cases cited in the legislative reports are merely
illustrative of decisions from that era. See also, ¢.qg., Peltier v. City of
Fargo, 583 F.2d 374, 380 (sth Cir. 1976) (denial of equitable relief); Rice v.
Gates Rubber Co., 521 F.2d 782, 785 (6th Cir. 1975) (same); Barnett v. W-T.
Grant Co., 518 F.2d 548, 550 (Ath Cir. 1975) (same); Evans v. Sheraton
Park Hotel, 502 F.2d 177, 189 (D.C. Cir. 1974) (same); see also Ramey vy.

Cincinnati Enquire r, Tne. 508 F.2d 1188, 11796 (6th Cir. 1074) (derivative

suit mooted by defendant's voluntary compliance with plaintiff's

23

That interpretation is also consistent with the central
purpose of federal fee-shifting statutes. Congress sought to
ensure that persons who have legitimate civil rights griev-
ances have effective access to the judicial process, Hensley,
461 U.S. at 429, and can participate in the vindication of
important civil rights principles, Newman v. Piggie Park
Enters., Inc., 390 U.S. 400, 402 (1968). See Kay v. Ehrler,
499 U.S. 482, 436 n.2 (1991) (“If private citizens are to be able
to assert their civil rights, . . . then citizens must have the
opportunity to recover what it costs them to vindicate these
rights in court.” (quoting S. Rep. No. 1011, supra, at 2)).
Congress had no reason to deny the benefits of those
statutes to the plaintiff that brings a meritorious suit and
induces compliance without formal judgment.

A plaintiff whose lawsuit induces voluntary and unilateral
compliance with the civil rights laws has no less need or
entitlement to recover attorney’s fees than the plaintiff
who achieves that objective by litigating to judgment or by
reaching an out-of-court settlement. With respect to need, a
plaintiff will likely require costly professional services to
bring a meritorious lawsuit, regardless of whether that suit
is ultimately resolved by judgment, settlement, or voluntary
compliance. And with respect to entitlement, Congress
surely sought to encourage plaintiffs to bring suit in the
most meritorious cases, where the defendant stands in clear
violation of the law. Those are precisely the cases in which a
plaintiffs suit is likely to induce voluntary compliance.
Indeed, the court of appeals’ rule would have the perverse
effect of selectively denying plaintiffs fees in precisely those

demands), cert. denied, 422 U.S. 1048 (1975); Kahan v. Rosenstiel, 424
F.2d 161, (3d Cir) (same), cert. denied, 398 U.S. 950 (1970).

24

situations in which a lawsuit promptly and effectively in-
duces compliance with the law.’

Furthermore, the court of appeals’ categorical rule that a
plaintiff cannot obtain attorney's fees if the plaintiffs suit is
mooted by the defendant’s voluntary compliance would affir-
matively discourage plaintiffs from bringing meritorious
claims for fear that the defendant could take unilateral
action, at any time before judgment, that would extinguish
the plaintiff's right to receive otherwise recoverable litiga-
tion expenses. A plaintiff considering a suit for equitable
relief may be understandably deterred from vindicating its
rights by the prospect that the defendant can freely termi-
nate the action through voluntary compliance and leave the
plaintiff to bear all the costs of the litigation, even if the
plaintiff clearly would have prevailed had the case proceeded
to judgment. That deterrent effect is greatest for cases that
are expensive to litigate and lack any prospect of a large
damage award for financing the litigation, such as many
meritorious civil rights cases. See City of Riverside v.
Rivera, 477 U.S. 561, 577 (1986) (plurality opinion) (“Con-
gress enacted § 1988 specifically to enable plaintiffs to
enforce the civil rights laws even where the amount of

2 The court of appeals’ contrary rule is also anomalous in light of the
legal profession's role in the resolution of disputes. Parties in litigation
are normally interested in achieving some tangible result, see Hewitt, 482
U.S. at 760-761, but they must rely on their attorneys’ advice in deter-
mining the best means to the desired end. See generally ABA Model
Rules of Professional Conduct, reprinted in ABA/BNA Lawyers’ Manual
on Professional Conduct (2000), Congress surely did not intend to deny a
plaintiff a fee award in those situations in which the attorney has
accomplished what the plaintiff, the judiciary, and the public should view
as the most efficacious result—the resolution of a meritorious lawsuit, and
the achievement of the plaintiff's desired outcome, through the defen-
dant’s voluntary action.

25

damages at stake would not otherwise make it feasible for
them to do so.” )."

The court of appeals’ rule may also encourage some
defendants to disregard the law unless and until they are
sued, particularly where private enforcement under the law
is limited to suits for injunctive relief. For example, under
the court of appeals’ approach, a business that is obligated
under the ADA to make its facility accessible to those with
disabilities may well conclude that it is cost-effective to
disregard the law until sued and then make the required
accommodations to moot the case. Indeed, that business
may be justified in concluding that a lawsuit will never
materialize in light of the low probability that disabled
citizens injured by that violation of the ADA would
unde-take the risk of financing an easily mooted lawsuit.
See Riverside, 477 U.S. at 577-578 (“Fee awards have proved
an essential remedy if private citizens are to have a
meaningful opportunity to vindicate the important Con-
gressional policies which these laws contain.”) (quoting S.
Rep. No. 1011, supra, at 2).

Finally, the court of appeals’ rule could encourage the liti-
gants to engage in strategic behavior directed at the avail-

'S A number of important civil rights statutes allow only injunctive
relief. See, e.g., 42 U.S.C. 12188(a) (public accommodations provisions of
the ADA); 42 U.S.C. 2000a-3 (Title II of the Civil Rights Act of 1964); see
also H.R. Rep. No. 1558, supra, at 9 (“[I)n a large number of cases brought
under the provisions covered by |Section 1988], only injunctive relief is
sought.”). Additionally, even where damages are available, “it should be
observed that, in some cases, immunity doctrines and special defenses,
available only to public officials, preclude or severely limit the damage
remedy.” See ‘bid. For example, a plaintiff may bring an age diseri-
mination action against a public official under the doctrine of Ev parte
Young, 209 U.S. 123 (1908), but the plaintiff is entitled to only equitable
relief. See AKimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); Alden v.
Maine, 527 U.S. 706, 755-757 (1999).

26

ability of attorney's fees rather than the merits of the case.
The court’s rule could encourage plaintiffs to include claims
for damages, even when they would otherwise be satisfied
with injunctive relief, to make the case more difficult to
moot. See, e.g., University of Tex. v. Camenisch, 451 U.S.
390, 393-394 (1981) (claim for damages prevented mootness).
Similarly, the rule could encourage plaintiffs to expand the
number of litigants or bring class-action claims to make the
claim more difficult to moot. See, e.g., Sosna v. lowa, 419
U.S. 393, 399-402 (1975) (class action claims prevented moot-
ness). At the same time, the court of appeals’ rule could give
defendants a strong incentive to coerce the plaintiff, through
protracted litigation, to settle a meritorious claim on un-
favorable terms, with provision for attorney’s fees, rather
than run the risk that the defendant will comply without
settlement and moot the case. Congress plainly did not
intend to draw distinctions between settlement and volun-
tary compliance that would skew the litigants’ incentives in

this way and produce unwarranted results.
D. This Court Should Remand The Case For A Deter-
mination Of Whether, Under The Facts Of This Case,

An Award Of Fees Is Appropriate

The Court should reverse the court of appeals’ ruling that
a plaintiff can qualify as a “prevailing party” only through a
“judgment, decree, or settlement” (Pet. App. A&). There is
no oceasion, however, for the Court to resolve the question
whether an award of attorney's fees is warranted under the
fact of this case. Neither the court of appeals nor the district
court reached that question. See id. at A7-A8, A17-Al18.
Furthermore, petitioners acknowledge that the Court should
remand the case so that the district court can “make ap-
propriate findings of fact and conclusions of law” on peti-
tioners’ motion for attorney's fees. Pet. 27. In making those
determinations, the district court should be guided by

27

several principles that can readily be discerned from the
decisions of this Court and the courts of appeals.

First, a plaintiff that claims that its lawsuit induced volun-
tary compliance is entitled to an award of attorney’s fees
only if that suit had legal merit. “It is clear beyond per-
adventure that unless an action brought by a private litigant
contains some basis in law for the benefits ultimately re-
ceived by that litigant, the litigant cannot be said to have
‘enforced’ the civil rights laws or to have promoted
their policies for the benefit of the public at large.” Long v.
Bonnes, cert. denied, 455 U.S. 961, 966-967 (1982) (Rehn-
quist, J., dissenting from denial of certiorari). The district
court need not determine that the plaintiff would have
prevailed had the plaintiff litigated the suit to judgment. See
id. at 966 n.3.'° Rather, the court should determine whether
the plaintiff's complaint had sufficient merit to withstand a
motion to dismiss for lack of jurisdiction or failure to state a
claim on which relief may be granted. See Fed. R. Civ. P.
12(b). The standards for dismissal on those grounds are
familiar, are relatively easy to apply, and ensure that the
plaintiff's claims are within the jurisdiction of the court and
grounded in law."

4 See, eg., Zinn v. Shalala, 35 F.3d at 274 (“the plaintiffs’ claims, if
pressed, cannot have been frivolous, unreasonable, or groundless” (quot-
ing Stewart v. McGinnis, 5 F.3d 1081, 1089 (7th Cir. 1993), cert. denied,
510 U.S. 1121 (1994)); Little Rock Sch. Dist. v. Pulaski County Special
Sch. Dist. 1, 17 F.3d at 262 (same); Pembroke v. Wood County, 981 F.2d.
225, 230-251 (5th Cir.) (same), cert. denied, 508 U.S. 973 (1993); Nadeau v.
Helgemoe, 581 F.2d at 279 (same); see also Hennigan v. Ouachita Parish
Sch. Bd., 749 F.2d at 1158 (the plaintiff's lawsuit “lacked colorable merit”).

' That approach would effectively require the parties to litigate the
mooted claims. See Hensley, 461 U.S. at 437 (“A request for attorney's
fees should not result in a second major litigation.”).

" See, eg., Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (a
motion to dismiss may be granted “only if it is clear that no relief could be

28

Second, the plaintiff must be able to demonstrate that it
obtained redress of a grievance that motivated the suit. See
Hewitt, 482 U.S. at 760-761 (the defendant’s actions must
“afford[{] 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”).
The Court suggested in Hewitt that the plaintiff needs to
show that the complaint encompassed the relief that the
defendant provided and that the plaintiff personally bene-
fitted from the defendant's actions. See id. at 763; see also
Rhodes, 488 US. at 4. At a minimum, the plaintiff must have
received “some of the benefit sought in the lawsuit, even
though the plaintiff does not ultimately succeed in securing a
favorable judgment.” Baumgartner v. Harrisburg Hous.
Auth., 21 F.3d 541, 546 (3d Cir. 1994) (quoting Wheeler vy.
Towanda Area Sch. Dist., 950 F.2d 128, 131 (3d Cir. 1991)).

Third, the plaintiff must demonstrate “a clear causal link”
between the plaintiff's suit and the defendant’s actions.
Hewitt, 482 U.S. at 763. See, e.g., Baumgartner, 21 F.5d at
546 (the plaintiff must show “a causal connection between
the litigation and the relief from the defendant” (quoting
Wheeler, 950 F.2d at 131)); Foremaster v. City of St. George,
882 F.2d 1485, 1488 (10th Cir. 1989) (same), cert. denied, 495
U.S. 910 (1990). In a situation in which the defendant has
undertaken voluntary action, the court’s analysis of the
defendant's motivations will likely depend on a highly
factbound inquiry and may turn on reasonable inferences
from the nature and timing of the defendant’s change in
conduct. At bottom, the plaintiff must be able to show that
the lawsuit, as a matter of fact, played a substantial role in

granted under any set of facts that could be proved consistent with the
allegations”). See also Note, Civil Rights Attorney's Fees Awards in Moot
Cases, 49 U. Chi. L. Rev. 819, 837-838 (1982).

29

inducing the defendant to change its ways. See Marbley v.
Bane, 57 F.3d 224, 234 (2d Cir. 1995)."”

'’ Where the defendant is a governmental entity and the plaintiff
asserts that its lawsuit prompted a governmental change in policy, the
plaintiff may confront particular problems of proof because the govern-
ment acts through collective consensus and may elect to change laws and
regulations for policy reasons unrelated to pending litigation. The legis-
lative and regulatory history of laws and regulations often provides
guidance in determining the basis for statutory and regulatory
amendments. Compare Paris v. United States Dep't of Hous. & Urban
Dev, 988 F.2d 236, 241 (ist Cir. 1993) (Where legislative history makes
clear that the plaintiff's individual suit prompted a statutory amendment
the lawsuit may be “fairly characterized as a catalyst of Congress’
amendment.”), with Milton v. Shalala, 17 F.3d 812, 815 (5th Cir. 1994)
(“The mere possibility that Congress acted because of an individual
claimant's suit (or reacted to a large number of similar suits) is too
speculative in our view considering the many influences upon members of
Congress in casting their votes.”), and Truas v. Bowen, 842 F.2d 995, VOT
(Sth Cir. 1988) (Where enactment of reform legislation was partly the
result of thousands of lawsuits, “the causal link between |the [plaintiff's
lawsuit and Congress's action is too tenuous to satisfy the calalyst test.”);
see also Hendricks v. Bowen, 847 F.2d 1255, 1259 (7th Cir, LUA)
(Easterbrook, J. concurring) (A plaintiff is not entitled to attorney's fees if
it is merely the “fortuitous beneficiary” of new legal standards.). .

30

CONCLUSION

The judgment of the court of appeals should be reversed
and the case remanded for further proceedings.

SETH P. WAXMAN
Solicitor General
BILL LANN LEE
Assistant Attorne y General
BARBARA D. UNDERWOOD
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General

JESSICA DUNSAY SILVER
KEVIN K. RUSSELL
Attorneys

NOVEMBER 2OOO

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0372%3A09. Public record. Not legal advice.