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

No. 99-1848 boii! ;

IN THE CUE:

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SUPREME COURT OF THE UNITED STATES Any [> 2000

BUCKHANNON BOARD AND CARE HOME, INC; THE WEST

VIRGINIA RESIDENTIAL BOARD AND CARE HOME

ASSOCIATION; DORSEY PIERCE; and on behalf of all others

similarly situated,

Petitioners,

Vv.

WEST VIRGINIA DEPARTMENT OF HEALTH

AND HUMAN RESOURCES, et ai.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF OF FRIENDS OF THE EARTH, SIERRA CLUB,

CITIZENS LOCAL ENVIRONMENTAL ACTION

NETWORK, and AMERICAN CANOE ASSOCIATION, INC.

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Bruce J. Terris (Counsel of Record)

Carolyn Smith Pravlik

Sarah A. Adams

TERRIS, PRAVLIK & MILLIAN, LLP

1121 12th Street, N.W.

Washington, D.C. 20005

(202) 682-2100

Counsel ~ Amici Curiae

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TABLE OF CONTENTS

Page

OCS GE GEE Soc nccnédedecasaueseesseuaee l

SUMMARY OF ARGUMENT .....ccccccccccccccees 2

SE 6-8. 8 0609603050800 NR eee 4

I. DECISIONS OF THE COURT DIRECTLY

SUPPORT THE APPLICABILITY OF THE

ee |) reer er eee 4

Il. THE LEGISLATIVE HISTORY OF SEVERAL

FEE-SHIFTING STATUTES SUPPORTS THE

APPLICABILITY OF THE CATALYST RULE ... 13

It]. PUBLIC POLICY SUPPORTS THE

APPLICABILITY OF THE CATALYST RULE .. 15

IV. THE CASE SHOULD BE REMANDED BACK TO

THE DISTRICT COURT TO ADDRESS THE

FACTUAL ISSUE OF WHETHER PETITIONERS

HAVE SATISFIED THE REQUIREMENTS OF

Woes GUUS CUE CED ec cbedoenescteceensuns 20

GUY oc vccccicnvianvescccesnéeeusecion 21

APPENDIX

Brief for the United States Amicus

Curiae Supporting Petitioners ............0...005. la

i

TABLE OF CASES AND AUTHORITIES

Cases Page

American Council of the Blind v. Romer, 992 F.2d 249

(10th Cir.), certiorari denied, 510 U.S. 864 (1993) ..... 11

Baumgartner v. Harrisburg Housing Authority,

Ce Ee 8,10, 18

Beard v. Teska, 31 F.3d 942 (10th Cir. 1994) .......... 1]

Board of Education of Downers Grove Grade Sch.

District No. 58 v. Steven L., 89 F.3d 464

(7th Cir. 1996), certiorari denied, 520 U.S. 1198 (1997). 10

Citizens Against Tax Waste v. Westerville City Sch.,

i ED cvs cewcecestccaveveses 10

Craig v. Gregg County, Texas,

i Esk oc ec eq eecusesseeses 10

Evans v. Jeff D., 475 U.S. 717 (1986) ©... 0.6... 16

Friends of the Earth v. Laidlaw Environmental Services

(TOC), Inc., 528 U.S. 167, 120 S.Ct. 693 (2000) ... passim

Farrar v. Hobby, 506 U.S. 103 (1992) ........... passim

Gwaltney v. Smithfield, Ltd. v. Chesapeake Bay

Foundation, 484 U.S. 49 (1987) 2.0.0.0. eee 2,6

Hanrahan v. Hampton, 446 U.S. 754 (1980) ........ 2,4,7

Hewitt v. Helms, 482 U.S. 755 (1987) ........... 2,5,7,9

Institutionalized Juveniles v. Secretary of Public

Welfare, 758 F.2d 897 (3d Cir. 1985) ............... 12

Kilgour v. City of Pasadena,

I, UD og ccc cccccccccccccecse 10

Laidlaw v. Friends of the Earth,

IE UD oo cbs ec cccscvccecveccec 6

Little Rock Sch. District v. Pulaski County Special

Sch. District, #1, 17 F.3d 260 (8th Cir. 1994) ......... 10

Maduka v. Meissner, 114 F.3d 1240 (D.C. Cir. 1997) ... 11

Maher v. Gagne, 448 U.S. 122 (1980) ........... 2,4,5,7

Marbley v. Bane, 57 F.3d 224 (2d Cir. 1995) .......... 10

Marek v. Chesney, 473 U.S. 1 (1985) «2.6... cee 4

Morris v. City of West Palm Beach, 194 F.3d

i Mins ocepecesenterescosacs 10,11, 18

Newman v. Piggie Park Enterprises, Inc.,

tM cocenedduccénecesucceseescese 16

Paris v. U.S. Department of Housing and Urban

Development, 988 F.2d 236 (ist Cir. 1993) ........ 9,12

Pennsylvania v. Delaware Valley Citizens' Council

for Clean Air, 478 U.S. 546 (1986) «2... 6. ccc, 6

Rhodes v. Stewart, 488 U.S. 1 (1988) .............44.. z)

S-] & S-2 v. State Board of Education,

21 F.3d 49 (4th Cir.), certiorari denied,

Es atc cceneensechadeudees 1, 7, 8, 20

Student Public Interest Research Group of New Jersey

v. AT&T Bell Laboratories,

Se EE CUED cccccevececevcecececes 16

Zinn by Blankenship v. Shalala,

EL SUUED céccecccccccceececces 8, 10

STATUTES

DE ciGheeeosedtoceccesccesevesees 14, 16

PS ci bb 6e4eeneseoeecaceesececees 2, 6, 13

ee cdeceeneeseeesecesesescesens 4,13

PT itstngenyeeeccoocnesceeoseeeevesces |

ea aii tse6hoegnneeneneseseoesuannse 2

i cp ¢édeteednouevesconenesesesess 2, 13

PE ccuceceenncnceseveseceuczesessees I

TE och tceeueseneeseseeveceseceessecs l

LEGISLATIVE HISTORY

S. Rep. No. 50, 99th Cong., Ist Sess. (1985) ........... 6

iV

S. Rep. No. 233, 98th Cong., Ist Sess. (1983) .......... 6

S. Rep. No. 414, 92d Cong., Ist Sess. (1971) ..... 6, 13, 16

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976) .. 3, 5, 13, 15

S. Rep. No. 1196, 91st Cong., 2d Sess. (1970) ......... 13

H.R. Rep. No. 1418, 96th Cong., 2d Sess. (1980) .... 14, 16

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

INTEREST OF AMICI ¥

This is an action brought under the Fair Housing

Amendments Act of 1988, 42 U.S.C. 3601, et seq., and Titles

II and III of the Americans with Disabilities Act of 1990, 42

U.S.C. 12132 and 12182, challenging self-preservation

regulations of the respondents. These regulations required

that all residents of Residential Board and Care Homes be

capable of evacuating the home, without prompting, in the

event of an imminent danger. The action became moot

when the West Virginia legislature repealed the self-

preservation regulations at issue. Petitioners filed a request

for attorneys’ fees under the "catalyst rule,"» which was

denied based on the Court of Appeals for the Fourth Circuit's

en banc decision in S-] & S-2 v. State Board of Education,

21 F.3d 49 (4th Cir.), certiorari denied, 513 U.S. 876 (1994).

Petitioners argue that even though they did not receive a

judicial judgment they are entitled to attorneys’ fees if they

are found to be the "catalyst" that led the West Virginia

legislature to take the action to repeal the regulations that

they challenged. Numerous courts of appeals have

recognized this theory as a basis for plaintiffs to obtain

attorneys’ fees in cases under fee- shifting statutes when a

defendants’ voluntary action gives the plaintiffs the remedy

they sought prior to a judgment or a settlement. However,

the Court of Appeals for the Fourth Circuit has interpreted a

ruling of this Court, Farrar v. Hobby, 506 U.S. 103 (1992),

. Pursuant to Supreme Court Rule 37.6, amici state that no counsel for a

party has authored this brief in whole or in part, and that no person or entity

other than amici and their counsel has made a monetary contribution to the

preparation or submission of this brief.

2 The petitioners also sought attorneys’ fees under the bad faith exception

to the American Rule. The district court denied this request, finding that the

defendants had not acted in bad faith. Petitioners did not appeal this ruling.

2

to hold that this theory for recovery of attorneys’ fees no

longer exists.

Most of the federal environmental laws enacted since

1970 have citizen suit provisions. See, e.g., Clean Air Act,

42 U.S.C. 7604; Clean Water Act, 33 U.S.C. 1365; Resource

Conservation and Recovery Act (RCRA), 42 U.S.C. 6972.

Since the enactment of citizen suit provisions, the fee-

shifting provisions in these statutes have been the basis for

bringing thousands of environmental cases. Amici are

public interest environmental organizations who have

brought many of these cases and they intend to bring similar

cases in the future. Amici include the petitioners in Friends

of the Earth v. Laidlaw

Environmental Services (TOC), Inc., 528 U.S.167, 120 S. Ct.

693 (2000), where this Court granted certiorari on the very

same issue but did not resolve it in its decision. Since the

Laidlaw case is still pending, and since amici continue to

litigate similar environmental cases, this issue is of great

importance to them.

SUMMARY OF ARGUMENT

1. This Court has repeatedly stated that plaintiffs who

obtain relief under fee-shifting statutes because of the actions

of the defendant without a judgment or settlement are

entitled to attorneys’ fees. Hanrahan v. Hampton, 446 U.S.

754 (1980); Maher v. Gagne, 448 U.S. 122 (1980); Hewitt v.

Helms, 482 U.S. 755 (1987); Gwaltney v. Smithfield, Lid. v.

Chesapeake Bay Foundation, 484 U.S. 49 (1987). In Hewitt,

the Court stated that, "[i]t is settled law, of course, that relief

need not be judicially decreed in order to justify a fee award

***" Id. at 760.

The Court below held that Farrar v. Hobby, 506 U.S.

3

103 (1992), overruled the catalyst rule. In Farrar, this Court

stated that the "plaintiff must obtain an enforceable judgment

against the defendant from whom fees are sought or

comparable relief through a consent decree or settlement."

Id. at 111. However, the Court gave no indication that it was

overruling its earlier decisions. On the contrary, it cited and

relied on its earlier decisions. ‘Subsequently, in Friends of

the Earth v. Laidlaw Environmental Services (TOC), Inc.,

528 U.S. 167, 120 S. Ct. 693, 711 (2000), the Court

expressly stated that the catalyst rule "was not presented for

this Court’s decision in Farrar." All the other courts of

appeals which have considered the effect of Farrar on the

catalyst rule have held that the catalyst rule continues to

apply.

2. Congress has made clear in the legislative history of

several fee-shifting statutes that plaintiffs can obtain

attorneys’ fees under the catalyst rule. Thus, the Senate

Report concerning the Civil Rights Attorney’s Fees Awards

Act of 1976, 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" (emphasis added). S. Rep.

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

3. The abolition of the catalyst rule would seriously

undermine Congress’ intent in passing fee-shifting statutes to

encourage litigation to enforce these statutes. Plaintiffs’

attorneys are accustomed to evaluating the strengths of their

cases before bringing litigation to determine their likelihood

of success. Therefore, plaintiffs’ attorneys can choose to

take the risk that the courts will decide against them and

therefore no fees will be paid them. However, it is entirely a

different matter for fees to be denied because plaintiffs’

4

arguments are so strong that the defendant provides the relief

without even the need for a judgment. Litigants will have

great difficulty in obtaining counsel if attorneys can be

denied fees precisely because of the success of the litigation.

This is particularly true if this can occur after the litigation

has run for years and the attorneys have expended a large

number of hours of work and incurred substantial expenses.

ARGUMENT

The question before this Court is a relatively simple one

that has been addressed many times by numerous federal

courts under the more than 100 fee-shifting statutes found in

federal law. See Marek v. Chesney, 473 U.S. 1, 43-51 (1985)

(appendix listing federal statutes authorizing the award of

attorney's fees). The issue is whether a plaintiff is a

“prevailing party" where it has obtained a favorable result

not through a judgment of the court or a settlement but

because the defendant takes action, at least in part; because

of the litigation. This issue is what is commonly referred to

as the "catalyst rule" or "catalyst theory."

l

DECISIONS OF THE COURT DIRECTLY

SUPPORT THE APPLICABILITY OF

THE CATALYST RULE

This Court has addressed this question on numerous

occasions. In Hanrahan v. Hampton, 446 U.S. 754, 756-757

(1980), the Court held that civil rights plaintiffs who had

prevailed on appeal and thereby won the right to a new trial

but had not yet received any relief from the district court

were not "prevailing parties" under 42 U.S.C 1988 for the

purpose of obtaining attorneys’ fees. However, the Court,

after reviewing the legislative history of 42 U.S.C. 1988,

explained that "a person may in some circumstances be a

5

‘prevailing party’ without having obtained a favorable ‘final

judgment following a full trial on the merits.’"

The Court further articulated the catalyst rule in Maher

v. Gagne, 448 U.S. 122, 129 (1980). In holding that a

settlement was adequate to confer prevailing party status, the

Court quoted a Senate report that stated that, "for purposes of

the award of counsel fees, parties may be considered to have

prevailed when they vindicate rights * * * without formally

obtaining relief." See S. Rep. No. 1011, 94th Cong, 2d Sess.

5 (1976).

Later, in Hewitt v. Helms, 482 U.S. 755, 760-761

(1987), this Court, in addressing the definition of a

prevailing party, issued its clearest statement of the catalyst

rule:

It is settled law, of course, that relief need not be

judicially decreed in order to justify a fee award under §

1988. A lawsuit sometimes produces voluntary action

by the defer:dant that affords the plaintiff all or some of

the relief he sought through a judgment -e.g.,* * * 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, 448 U.S., at 129 * * *.

The Court went on to say that "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.

That is the proper equivalent of a judicial judgment which

would produce the same effect * * *" (emphasis in original).

Id. at 761.%

This Court again addressed this issue in Gwaltney v.

Smithfield, Ltd. v. Chesapeake Bay Foundation, 484 U.S. 49,

67, n. 6 (1987):*

Under the Act, plaintiffs are also protected from the

suddenly repentant defendant by the authority of the

district courts to award litigation costs "whenever the

court determines such award is appropriate." 33 U.S.C.

1365(d). The legislative history of this provision states

explicitly that the award of costs "should extend to

plaintiffs in actions which result in successful abatement

but do not reach a verdict. For instance, if as a result of

a citizen proceeding and before a verdict is issued, a

defendant abated a violation, the court may award

litigation expenses borne by the plaintiffs in prosecuting

such actions." S. Rep. No. 414, p. 81 (1971), 2 Leg.

Hist. 1499.*

~ The plaintiff in Hewitt was denied fees because the changes in prison

policies did not benefit him since he was no longer in custody. 482 U.S. at

763. However, here, since plaintiffs continue to operate and reside in the

residential care facilities, they benefit from the amended regulation. In any

event, the question before this Court is whether plaintiffs can be prevailing

parties without having obtained an enforceable judgment or settlement, not

whether they actually are prevailing parties. The issue of whether plaintiffs

can satisfy the requirements of the catalyst rule is properly a question for

the district court in the first instance on remand. See Friends of the Earth,

Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S.167, 120 S.

Ct. 693, 712 (2000).

+ In Pennsylvania v. Delaware Valley Citizens ' Council for Clean Air, 478

U.S. 546, 559-560 (1986), the Court stated that the principles to be followed

in awarding attorneys’ fees and expenses are the same for environmental

and civil rights cases. |

» In Laidlaw v. Friends of the Earth, \49 F.3d 303 (4th Cir. 1998), the”

Court of Appeals for the Fourth Circuit indicated that it believed that this

Statement was erroneous because the Gwaltney decision discussed the prior

7

In short, prior to Farrar, according to this Court, it was

"settled law" that a plaintiff has prevailed for the purposes of

fees when, in the absence of a court order or a settlement, a

voluntary change in a defendant’s conduct as a result of a

lawsuit has provided relief. Hewitt v. Helms, supra, 482 U.S.

at 760-761.

In S-/ & S-2 v. State Board of Education, upon which

the decision of the court of appeals in this case was based,

the Court of Appeals for the Fourth Circuit held that this

Court’s decision in Farrar overruled the catalyst rule. In

Farrar, the Court considered the issue of "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. The Court said that, "to

qualify as a prevailing party, a civil rights plaintiff must

obtain at least some relief on the merits of his claim." /d. at

111.2 However, the Court went on to say (ibid.):

language of Section 505(d) of the Clean Water Act which authorized a court

to award fees to any “party,” rather than the language of the 1987

amendment to that Section which added "prevailing or substantially

prevailing” before "party." /d. at 307, n. 5. However, this Court's

statement in Gwaltney was not erroneous. The legislative history of the

1987 amendment to Section 505(d) shows that the change in the language

of that Section was intended merely to clarify Congress’ intent that citizen

plaintiffs not receive attorneys’ fee awards when the plaintiffs had lost the

litigation. S. Rep. No. 50, 99th Cong., Ist Sess. 33 (1985); S. Rep. No. 233,

98th Cong., Ist Sess. 24-25 (1983); A Legislative History of the Water

Quality Act of 1987, 100th Cong., 2d Sess., Sen. Print 144 (Nov. 1988),

vol. 2, pp. 1311-1312 (remarks of Senator Chafee, the sponsor of the

legislation). Since the "prevailing party" language is precisely the language

interpreted by the Court in Hanrahan v. Hampton, Maher v. Gagne, and

Hewitt v. Helms, the addition of that language cannot possibly mean that the

catalyst rule no longer applies to fee awards under Section 505(d).

© The Court found that an award of nominal damages was sufficient to

make the plaintiff a prevailing party. However, it held that since a

8

The plaintiff must obtain an enforceable judgment

against the defendant from whom fees are sought,

Hewitt, supra, 482 U.S., at 760, or comparable relief

through a consent decree or settlement, Maher v. Gagne,

448 U.S. 122, 129. Whatever relief the plaintiff secures

must directly benefit him at the time of the judgment or

settlement. See Hewitt, supra, 482 U.S. at 764.

Otherwise the judgment or settlement cannot be said to

“affec[t] the behavior of the defendant toward the

plaintiff." [citation omitted] 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. [citation omitted]

The Court of Appeals for the Fourth Circuit held in S-/

& S-2 that the language, "plaintiff must obtain an enforceable

judgment against the defendant from whom fees are sought

or comparable relief through a consent decree or settlement,"

overruled the catalyst rule because it did not add or voluntary

action by the defendant at the end of the sentence. 6 F.3d at

168 (dissenting opinion adopted by majority en banc).

However, Farrar was not addressing the situation where a

defendant had voluntarily changed its behavior in response to

a lawsuit. Instead, it was discussing the nature of the relief

that a plaintiff who had obtained a judgment must receive in

order to be a prevailing party for fees purposes.

The Court of Appeals for the Fourth Circuit held that

Farrar overruled the catalyst rule even though Farrar did

not state that it was doing so. As the Court of Appeals for

prevailing party is only entitled to reasonable fees, the denial of fees was

appropriate when the plaintiff had obtained no significant relief. 506 U.S.

at 115.

ES ee —

9

the Seventh Circuit stated in Zinn by Blankenship v. Shalala,

35 F.3d 273, 276 (1994), it is "implausible that the Supreme

Court meant to abolish a rule employed by nearly every

circuit and previously recognized by the Court itself as

‘settled law,’ without expressly indicating that it was doing

so." Similarly, in Baumgartner v. Harrisburg Housing

Auth., 21 F.3d 541, 547 (3d Cir. 1994), the Court of Appeals

for the Third Circuit stated that "[w]e believe it is not likely

that the Supreme Court [in Farrar] would overturn such a

wide-spread theory without even mentioning it, particularly

when it was inapplicable to the case at hand." It is

particularly doubtful that the Court was overruling its earlier

decisions when it explicitly cited and relied on them.

In the case below, the court of appeals stated that,

"{b]ecause the plaintiffs did not bring about the change in

West Virginia law through any judgment, decree, or

settlement," they are not prevailing parties. Appendix to

Petitioners’ Petition for Writ of Certiorari (hereafter "Pet.

App."), p. A8. However, when, as here, the defendants

modify their behavior in response to litigation (by no longer

forcing the residential facility plaintiffs to close or the

individual plaintiffs to move out of their homes), the lawsuit

has affected the behavior of the defendant toward the

plaintiff exactly as Farrar requires. Indeed, the Court made

clear in Farrar that it is not a judgment itself that confers

prevailing party status but a change in behavior by the

defendant or a change in the legal relationship between the

plaintiff and the defendant. See 506 U.S. at 111. Similarly,

in Hewitt, this Court stated that "[a]t 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." 482 U.S. at 761. Accord, Rhodes v. Stewart,

488 U.S. 1, 4 (1988) (a party who wins a declaratory

10

judgment prevails for fees purposes only if the judgment

"affects the behavior of the defendant toward the plaintiff").

Thus, the sine qua non of prevailing party status is not a

judgment but a change in behavior by the defendant brought

on by the lawsuit. This change of behavior is exactly the

situation covered by the catalyst rule.

Ten other Circuits have found, either explicitly or

implicitly, that the catalyst rule was not overruled by Farrar.

Paris v. U.S. Department of Housing and Urban

Development, 988 F.2d 236, 240-241 (1st Cir. 1993) (finding

plaintiff to be catalyst and remanding the case to the district

court for a decision on the amount of fees); Marbley v. Bane,

57 F.3d 224, 234 (2d Cir. 1995)("Farrar does not eviscerate

the long-standing doctrine that a plaintiff who has obtained

at least some part of what he sought in bringing the suit may

be considered a prevailing party"); Baumgartner v.

Harrisburg Housing Auth., supra, 21 F.3d at 546-551 (3d

Cir. 1994) (quoted at p. 8-9 above); Craig v. Gregg County,

Texas, 988 F.2d 18, 20-21 (Sth Cir. 1993)("A more precise

reading of Farrar, however, might suggest that a party may

prevail, even in the absence of a judgment, consent decree, or

direct personal benefit ‘if its ends are accomplished as a

result of the litigation’" (citation omitted)); Citizens Against

Tax Waste v. Westerville City Sch., 985 F.2d 255, 257-258

(6th Cir. 1993) (holding parties to be prevailing party under

the catalyst rule because "it is not necessary that a party

actually receive some form of judicially ordered relief" in

order to be a prevailing party under §1988); Zinn by

Blankenship v. Shalala, supra, 35 F.3d at 274-276 (quoted at

p. 8 above);” Little Rock Sch. Dist. v. Pulaski County Special

? The Eleventh Circuit in a footnote in Morris v. City of West Palm Beach,

194 F.3d 1203, 1206-1207, n. 5 (11th Cir. 1999), stated that Board of Educ.

of Downers Grove Grade Sch. Dist. No. 58 v. Steven L., 89 F.3d 464 (7th

Cir. 1996), certiorari denied, 520 U.S. 1198 (1997) in an opinion written by

11

Sch. Dist., #1, 17 F.3d 260, 262-263 and n. 2 (8th Cir.

1994)("We decline to extend Farrar’s language beyond its

context of determining prevailing party status after a final

determination on the merits"); Kilgour v. City of Pasadena,

53 F.3d 1007, 1010 (9th Cir. 1995)("Farrar does not

preclude a catalyst test"); Beard v. Teska, 31 F.3d 942,

951-952 (10th Cir. 1994)("we * * * have not agreed [that

Farrar rendered the catalyst theory nonviable]"); American

Council of the Blind v. Romer, 992 F.2d 249, 250-251 (10th

Cir.), certiorari denied, 510 U.S. 864 (1993) ("It does not

appear that the decision in Farrar condemns the use of the

‘catalyst rule’ in a nonjudgment on the merits situation");

Morris v. City of West Palm Beach, 194 F.3d 1203, 1206-

1207 (11th Cir. 1999) ("The majority of courts that have

addressed the question, however, have found that Farrar,

which does not mention the catalyst test and which did not

present a question relating to the form of relief, does not bar

the catalyst test. Like the majority of our sister circuit courts

which have addressed this issue, * * * we hold that the

catalyst test survived Farrar"); Maduka v. Meissner, 114

F.3d 1240, 1241 (D.C. Cir. 1997) (implicitly upholding

catalyst test by examining whether plaintiff's actions led to

the extrajudicial relief he obtained).

Subsequent to these cases, this Court once again had the

opportunity to address this issue. In Friends of the Earth,

the dissenting judge in Zinn by Blankenship v. Shalala, called into question

the continued viability of the catalyst rule in the Seventh Circuit. Amici

disagree with this statement. The court in Steven L. held that plaintiffs

received only interim relief "for which attorneys’ fees may not be awarded."

Id. at 469. The catalyst rule was irrelevant to that holding. To the extent

that the court considered the catalyst rule, it was with regard to the

applicability of the catalyst rule to the facts, not the threshold question of

the validity of the catalyst rule. See Board of Educ. of Downers Grove

Grade Sch. Dist. No. 58 v. Steven L., supra, 89 F.3d at 456-469.

12

Inc. v. Laidlaw Environmental Services (TOC), Inc., 528

U.S.167, 120 S. Ct. 693 (2000), this Court stated expressly

that the issue of the catalyst rule was not addressed in Farrar

(id. at 711):

The case involved no catalytic effect. Recognizing that

the issue was not presented for this Court’s decision in

Farrar, several Courts of Appeals have expressly

concluded that Farrar did not repudiate the catalyst

theory.*

Thus, the court of appeals erroneously relied on Farrar as

overruling the catalyst rule.”

® The United States Government filed a brief as Amicus Curiae in support

of the petitioners in Laidlaw on this issue. The Government's brief agreed

with petitioner’s position that the catalyst theory continues to be available

to plaintiffs in cases involving fee-shifting statutes. The relevant portions

of that amicus brief are included in the appendix hereto.

* In Respondent’s Brief in Opposition to Petition for a Writ of Certiorari

(pp. 16-21), respondents argued that this case was not an inappropriate

vehicle to examine the issue of the catalyst rule because the West Virginia

Legislature took the action to repeal the "self-preservation" regulations, not

the respondents themselves. It is irrelevant that the relief granted here was

by the West Virginia legislature. There is nothing in the catalyst rule which

turns on the person or entity that took the action to give the plaintiff the

relief requested. Consequently, the catalyst rule has been applied where the

relief has been provided by a legislative body. See, e.g. Paris v. US.

Department of Housing and Urban Development, 988 F.2d 236, 241 (ist

Cir. 1993) ("The fact that Congress delivered the plaintiffs’ requested relief

rather than the parties sued, HUD and Corcoran, provides no relevant

distinction. Corcoran, HUD, and Congress are manifestations of the same

entity, the government. HUD is simply an instrument of Congress’ will,

and Corcoran does HUD’s bidding"); /nstitutionalized Juveniles v.

Secretary of Public Welfare, 758 F.2d 897, 917 (3d Cir. 1985) ("When a

State agency seeks to reform its procedures through the state legislature and

new procedures are enacted, we agree with the district court that ‘passage

[of the 1976 Act] is properly attributable’ to defendants").

13

II

THE LEGISLATIVE HISTORY OF SEVERAL

FEE-SHIFTING STATUTES SUPPORTS THE

APPLICABILITY OF THE CATALYST RULE

Congress has clearly indicated its support for the catalyst

rule in the legislative history of numerous fee-shifting

statutes.

Congress made its position on the catalyst rule clear in

the legislative history accompanying Section 304 of the

Clean Air Act (42 U.S.C. 7604). The Senate Report stated

(S. Rep. No. 1196, 91st Cong., 2d Sess. 38 (1970)):

The Courts should recognize that in bringing legitimate

actions under this section citizens would be performing a

public service and in such instances the courts should

award costs of litigation to such party. This should

extend to plaintiffs in actions which result in successful

abatement but do not reach a verdict. For instance, if as

a result of a citizen proceeding and before a verdict is

issued, a defendant abated a violation, the court may

award litigation expenses borne by the plaintiffs in

prosecuting such actions.

The Senate Report accompanying the Federal Water

Pollution Control Act contains identical language in its

discussion of the fee-shifting provision of the Act (Section

505, 33 U.S.C. 1365). See S. Rep. No. 414, 92d Cong., Ist

Sess. 81 (1971), 2 A Legislative History of the Water

Pollution Control Act Amendments of 1972, p. 1499 (1973).

The legislative history of 42 U.S.C. 1988, the Civil

Rights Attorney’s Fees Awards Act of 1976, also makes

clear the importance of both the fee shifting statutes

themselves and the need for the catalyst rule. S. Rep. No.

1011, 94th Cong., 2d Sess. 2 (1976) states:

14

In many cases arising under our civil rights laws, the

citizen who must sue to enforce the law has little or no

money with which to hire a lawyer. If private citizens

are to be able to assert their civil rights, and if those who

violate the Nation’s fundamental laws are not to proceed

with impunity, then citizens must have the opportunity

to recover what it costs them to vindicate these rights in

court.

The Report further said that "fee awards are essential if the

Federal statutes to which [this section] applies are to be fully

enforced." /d., p. 5. Then, in a statement directly relevant

here, the Senate Report said 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." /bid. The House Report

on the same Act stated (H.R. Rep. No. 1558, 94th Cong., 2d

Sess. 7 (1976)):

The phrase "prevailing party" is not intended to be

limited to the victor only after entry of a final judgment

following a full trial on the merits. * * * If the litigation

terminates by consent decree, for example, it would be

proper to award counsel fees [citations omitted]. A

“prevailing” party should not be penalized for seeking an

out-of-court settlement, thus helping to lessen docket

congestion. Similarly, after a complaint is filed, a

defendant might voluntarily cease the unlawful practice.

A court should still award fees even though it might

conclude, as a matter of equity, that no formal relief,

such as an injunction, is needed.

Congress revisited this issue again when looking at the

fee-shifting provisions of the Equal Access to Justice Act, 28

U.S.C. 2412 (H.R. Rep. No. 1418, 96th Cong., 2d Sess. 11

(1980)):

Under existing fee-shifting statutes, the definition of

;

15

prevailing party has been the subject of litigation. It is

the committee’s intention that the interpretation of the

term in S. 265 be consistent with the law that has

developed under existing statutes. Thus, the phrase

“prevailing party" should not be limited to a victor only

after entry of a final judgment following a full trial on

the merits.

Thus, Congress intended plaintiffs who obtained relief

through the action of the defendant without a judgment or

settlement to be prevailing parties under fee-shifting statutes.

Ill

PUBLIC POLICY SUPPORTS THE APPLICABILITY

OF THE CATALYST RULE

The decision of the Fourth Circuit that the catalyst rule

no longer exists would seriously undermine the effectiveness

of fee-shifting statutes in the environmental, civil rights and

other fields.

Congress intended fee-shifting statutes to encourage the

bringing of litigation under the statutes that contain them.

This position was made clear by Congress in the legislative

history of the Civil Rights Attorneys’ Fees Awards Act. The

Senate Report on that Act stated (S. Rep. No. 1011, supra, p.

2):

All of these civil rights laws depend heavily upon

private enforcement, and fee awards have proved an

essential remedy if private citizens are to have a

meaningful opportunity to vindicate the important

Congressional policies which these laws contain.

The Senate Report further stated (id., p. 3):

The idea of the "private attorney general" is not a new

one, nor are attorneys’ fees a new remedy. Congress has

16

commonly authorized attorneys’ fees in laws under

which "private attorneys general” play a significant role

in enforcing our policies. We have, since 1870,

authorized fee shifting under more than 50 laws * * *.

As former Justice Tom Clark found, in a union

democracy suit under the Labor-Management Reporting

and Disclosure Act (Landrum -Griffin), "Not to award

counsel fees in cases such as this would be tantamount

to repealing the Act itself by frustrating its basic

purpose."

The Senate Report accompanying the Clean Water Act

makes clear that the fee-shifting provision of the statute was

likewise intended to encourage the bringing of citizen suits.

S. Rep. No. 414, 92d Cong., Ist Sess. 81 (1971). Asa

result, the Court of Appeals for the Third Circuit has stated

that Congress intended the Clean Water Act to induce

attorneys to be willing to bring these cases. Student Public

Interest Research Group of New Jersey v. AT&T Bell

Laboratories, 842 F.2d 1436, 1448-1449 (1988). Congress

did this by providing for compensation at market rates so that

attorneys handling these cases would be compensated, when

the litigation was successful, to the same degree as when

they did other legal work and would be attracted to continue

doing such work in the future. /bid.

Congress again reiterated the importance of fee-shifting

statutes when amending 28 U.S.C. 2412 to allow the

recovery of fees against the United States under the Equal

Access to Justice Act. There, Congress stated (H.R. Rep.

No. 1418, 96th Cong., 2d Sess. 9 (1980)):

The American rule is grounded in the belief that a losing

party should not be penalized for merely exercising his

or her right to prosecute or defend a lawsuit. Thus, one

of the stated purposes of the American rule is not to

17

discourage or deter litigation. However, in many cases,

particularly in litigation with the Government, the

American rule is in fact having the opposite effect. For

many citizens, the costs of securing vindication of their

rights and the inability to recover attorney fees preclude

resort to the adjudicatory process.

This Court has also recognized the importance of fee-

shifting provisions in federal statutes. In a case dealing with

the fee-shifting provision of the Civil Rights Act of 1964,

this Court stated (Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400, 401-402 (1968)):

When the Civil Rights Act of 1964 was passed, it was

evident that enforcement would prove difficult and that

the Nation would have to rely in part upon private

litigation as a means of securing broad compliance with

the law. * * * If successful plaintiffs were routinely

forced to bear their own attorneys’ fees, few aggrieved

parties would be in a position to advance the public

interest by invoking the injunctive powers of the federal

courts. Congress therefore enacted the provision for

counsel fees * * * to encourage individuals injured by

racial discrimination to seek judicial relief * * *.

(footnoies omitted)

See also Evans v. Jeff D., 475 U.S. 717, 741 (1986)(Section

1988 gives "victims of civil rights violations a powerful

weapon that improves their ability to employ counsel, to

obtain access to the courts, and thereafter to vindicate their

rights").

The catalyst rule carries out Congress’ intent. It

provides for the payment of attorneys’ fees when the case has

been successful in providing the plaintiff with all or a

substantial portion of the relief requested. It should make no

difference whether the relief came through a court judgment,

18

a settlement or the decision of the defendant to provide

redress due to the litigation. As the Court of Appeals for the

Third Circuit has stated, "from a policy standpoint, if

defendants could deprive plaintiffs of attorney’s fees by

unilaterally mooting the underlying case by conceding to

plaintiffs’ demands, attorneys might be more hesitant about

bringing these civil rights suits, a result inconsistent with

Congress’ intent in enacting section 1988". Baumgartner v.

Harrisburg Housing Authority, supra, 2\ F.3d at 548.

If the catalyst rule did not exist, attorneys would be

extremely leary about bringing litigation under fee-shifting

statutes no matter how strong their cases appeared to be.

Attorneys are willing to take the risk that their evaluation of

the strength of their case is overly optimistic. If this turns

out to be true and the case is lost, they bear that risk.

However, they cannot bear the risk that they were absolutely

correct about the strength of their case and, as a result, the

defendant chooses, prior to resolution by the court, to

provide the relief requested. In other words, attorneys can

bear the risk of losing litigation, but not of winning it.

The abolition of the catalyst rule would be particularly

severe since the attorneys may lose their fees and expenses

by action of the defendant at any time during the litigation.

The case can be litigated for years. If the defendant then

1 The Court of Appeals for the Eleventh Circuit in Morris v. City of West

Palm Beach \ikewise recently emphasized the importance of the catalyst

rule (194 F.3d at 1207):

The catalyst test creates incentives for plaintiffs to initiate

potentially meritorious civil rights cases and for plaintiffs to

discontinue litigation after receiving through the defendant's

acquiescence the remedy initially sought. In light of its long

history and the important policies undergirding the catalyst test,

we will not extend Farrar to eliminate the catalyst test.

19

moots the case by granting relief, even when the case is on

appeal or in this Court, the abolition of the catalyst rule

would mean all the fees and expenses would be lost. Few

attorneys would be willing or able to take such a risk.

Many of the cases brought under fee-shifting statutes,

such as environmental cases, involve major, complex

litigation requiring substantial resources. The clients in this

type of litigation rarely can pay any significant portion of the

fees or costs. Hundreds or thousands of hours and tens or

hundreds of thousands of dollars may need to be expended.

The Laidlaw case is a good example. Laidlaw, a Clean

Water Act case against a private polluter, was brought in

June 1992. Since the beginning of this case, over eight years

ago, plaintiffs’ attorneys’ have expended approximately

9,000 hours and $230,000 in expenses on this case. While

the case was in this Court, the defendant claimed that the

case had become moot because the incinerator had been

dismantled. This Court remanded the issue of mootness to

the lower courts for resolution.’ If the case is found moot,

and the catalyst rule is abolished, plaintiffs’ counsel would

be denied fees over eight years after the case was brought.

‘The Court also remanded another issue of mootness relating to the

defendant's earlier actions in bringing itself into compliance with its permit.

12/Amici note that the case is now stayed because Laidlaw (now Safetey-

Kleen, Corp.) Has declared bankruptcy.

20

IV

THE CASE SHOULD BE REMANDED BACK TO THE

DISTRICT COURT TO ADDRESS THE FACTUAL

ISSUE OF WHETHER PETITIONERS HAVE

SATISFIED THE REQUIREMENTS

OF THE CATALYST RULE

The district court held that the catalyst rule did not

apply in the Fourth Circuit under S-/ & S-2. Pet. App. Al7.

It stated (ibid.):

The "catalyst theory" deems a plaintiff to have prevailed

when he or she obtains some portion of the relief

originally sought through a defendant’s voluntary

conduct, even though no formal judgment in his or her

favor has been rendered. Were this argument viable,

plaintiffs might prevail on this theory.

It is therefore clear that the district court found that the

requirements of the catalyst rule might well have been

satisfied if it were applicable in the Fourth Circuit but it did

not determine this issue.

In Laidlaw, this Court granted a writ of certiorari as to

the validity of the catalyst rule. However, in remanding the

case for further determinations on the issue of mootness, the

Court stated that "[i]t is for the District Court, not this Court,

to address in the first instance any request for reimbursement

of costs, including fees." Friends of the Earth v. Laidlaw

Environmental Services, TOC, supra, 120 S. Ct at 712.

Similarly, here, the case should be remanded to the district

court to determine if the requirements of the catalyst rule

have been satisfied.

21

CONCLUSION

For the foregoing reasons, amici urge this Court to hold

that plaintiffs in actions arising under fee-shifting statutes

can recover attorneys’ fees under the catalyst rule and to

remand the case to the district court to determine the

applicability of the catalyst rule to the facts of this case.

Respectfully submitted,

Bruce J. Terris

Carolyn Smith Pravlik

Sarah A. Adams

Counsel for Amici

APPENDIX

7 : "hte 1580 hist, Bee le mtin FR S oN eh als SS OM Sears + ae

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PEM VEST vay Sy SUR Sal OPN Ro Fe, ce hl Red ole FOP A BT a eee Re Sei nue ad

la

No. 98-822

In the Supreme Court of the United States

FRIENDS OF THE EARTH, INC., ET AL., PETITIONERS

v.

LAIDLAW ENVIRONMENTAL SERVICES (TOC), INC.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

SETH P. WAXMAN

Solicitor General

Counsel of Record

LOIS J. SCHIFFER

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JEFFREY P. MINEAR

Assistant to the Solicitor

General

DAVID C. SHILTON

R. JUSTIN SMITH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

2a

D. The Court of Appeals’ Judgment Should Be Vacated

And The Case Remanded For Further Proceedings,

Including Appropriate Proceedings Respecting

Petitioners’ Entitlement To Litigation Costs

For the foregoing reasons, we submit that the court of

appeals erred in concluding that the district court’s.

determination not to award injunctive relief rendered this

case moot. If the Court agrees, then there will be no

occasion to reach the question whether citizens may recover

litigation costs if the citizen action becomes moot as a

consequence of the defendant’s cessation of its unlawful

conduct. Under this Court’s normal practice, the case will be

remanded for resolution of the remaining issues that the court

of appeals did not reach, including the question of

petitioners’ standing.

The question of attorneys’ fees can be addressed once

the litigation has run its course. We nevertheless observe

that there is good reason to question the court of appeals’

dictum that “[petitioners’] failure to obtain relief on the

merits of their claim precludes any recovery of attorneys’

fees or litigation costs because such an award is available

only to a ‘prevailing or substantially prevailing party.’ Pet.

App. 9a n.5. This Court indicated in Gwaltney that citizens

would be entitled to recover litigation costs for suits that

“result in successful abatement but do not reach a verdict.”

484 U.S. at 67 n.6 (quoting S. Rep. No. 414, 92 Cong., 2d

Sess. 81 (1971)). At the time of that suit, Section 505(d) of

the Clean Water Act authorized courts to award attorneys’

fees “whenever the court determines such award is

appropriate.” 33 U.S.C. 1365(d) (1982). Congress has since

revised Section 505(d) to allow an award of litigation costs

“to any prevailing or substantially prevailing perty, whenever

the court determines such award is appropriate.” 33 U.S.C.

1365(d). The amendment, which prohibits a court from

3a

awarding fees to a losing party, does not appear to restrict the

court’s power to award fees to a citizen who can show that

the suit prompted the defendant to come into compliance.

The Court has previously indicated, in connection with

other federal statutes that authorize “prevailing parties” to

recover attorneys’ fees, that a plaintiff whose suit induces the

defendant to comply with the law voluntarily is a “prevailing

party.” For example, the Court stated in Hewitt, supra, a

case arising under 42 U.S.C. 1983, that “[iJt is settled law, of

course, that relief need not be judicially decreed in order to

justify a fee award under [42 U.S.C.] 1988.” 482 US. at

760. The Court explained:

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.

Id. at 760-761. See also Maher v. Gagne, 448 U.S. 122, 129

(1980) (“for purposes of the award of counsel fees [under 42

U.S.C. 1988], parties may be considered to have prevailed

when they vindicate rights through a consent judgment or

without formally obtaining relief”)(quoting S. Rep. No.

1011, 94th Cong., 2d Sess. 5 (1976)).

The Court’s decision in Farrar v. Hobby, 506 U.S. 103

(1992), which states that, “to qualify as a prevailing party, a

civil rights plaintiff must obtain at least some relief on the

merits of his claim,” id. at 111, does not repudiate the

reasoning in Hewitt and Maher. A plaintiff prevails on the

“merits of his claim” if a court finds that the defendant, in

direct response to the plaintiff's suit, has altered his behavior

in a way that renders the claim moot as a matter of law. See

Hewitt, 482 U.S. at 761 (“In all civil litigation, the judicial

4a

decree is not the end but the means.”).

CONCLUSION

The judgment of the court of appeals should be vacated

and the case remanded for further proceedings.

Respectfully submitted.

MAY 1999

SETH P. WAXMAN

Solicitor General

LOIS J. SCHIFFER

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JEFFRY P. MINEAR

Assistant to the Solicitor

General

DAVID C. SHILTON

R. JUSTIN SMITH

Attorneys