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

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No. 99-1848 |

IN THE

Supreme Court of the United States

BUCKHANNON BOARD AND CARE HOME INC., et al.,

Petitioners,

Vv.

WEST VIRGINIA DEPARTMENT OF HEALTH

AND HUMAN RESOURCES, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF FOR PUBLIC CITIZEN

AND THE AMERICAN CIVIL LIBERTIES UNION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

BRIAN WOLFMAN STEVEN R. SHAPIRO

(Counsel of Record) AMERICAN CIVIL LIBERTIES

PUBLIC CITIZEN UNION FOUNDATION

LITIGATION GROUP 125 Broad Street

1600 20" Street, NW New York, NY 10004

Washington, D.C. 20009 (212) 549-2500

(202) 588-1000

HARVEY GROSSMAN

ARTHUR B. SPITZER ADAM SCHWARTZ

ACLU OF THE ROGER BALDWIN FOUNDATION

NATIONAL CAPITAL AREA OF ACLU, INC.

1400 20" Street, NW 180 North Michigan Avenue

Washington, DC 20036 Chicago, IL 60601

(202) 457-0800 (312) 201-9740

QUESTION PRESENTED

Whether a plaintiff is a “prevailing party” for the

purpose of fee-shifting statutes where, as a result of the

litigation, the defendant provides the relief the plaintiff sought

in the complaint.

TABLE OF CONTENTS

Ee i

TABLE OF AUTHORITIES .................0.00...000.0000000- tii

ENTEREST OF AMICT...............:cccccccccccccccesscccesscseseesees l

STATEMENT OF THE CASE 0.00200... 2

SUMMARY OF THE ARGUMENT ....000 3

es wunnvonrnseccsocens 5

L The Text And Purpose Of Fee-Shifting Statutes

Support A “Catalyst” Theory Of Fee Recovery... 7

II. This Court’s Decisions Teach That The Fourth

Circuit’s Ruling Is Wrong. .....................0..000...... 1]

III. The Fourth Circuit’s Rule Leads To Anomalous

ALN SETS 16

TE 19

TABLE OF AUTHORITIES

CASES

Arvinger v. Mayor and City Council of Baltimore,

31 F.3d 196 (4th Cir. 1994) cece, 9

Baumgartner v. Harrisburg Hous. Auth.,

21 F.3d 541 (3d Cir. 1994)... .. 8, 14, 15, 18

Beard v. Tedska, 3\ F.3d 942 (10th Cir. 1994)... 8

Chesapeake Bay Found. v. United States Dep't of Agric.,

11 F.3d 211 (D.C. Cir. 1993)..000 eee eeeeeeees l

Citizens Against Tax Waste v. Westerville City Sch.,

985 F.2d 255 (6th Cir. 1993) 000s. 8

Clark v. Sims, 28 F.3d 420 (4th Cir. 1994) 0000... 8

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

138 F.3d 351 (8th Cir. 1998). en. 8

County of Riverside v. McGlaughlin,

$00 U.S. 44 (199]) ee 17

Craig v. Gregg County, Texas,

988 F.2d 18 (Sth Cir. 1993). 8

DeMier v. Gondles, 676 F.2d 92 (4th Cir. 1982)......... . 6

Dunn v. Florida Bar, 889 F.2d 1010 (11th Cir. 1989) ...... l

Evans v. Jeff D., 475 U.S. 717 (1986)...............3, 5, 16, 18

il

Farrar v. Hobby, 506 U.S. 103 (1992) ................ 12, 13, 14

Friends of the Earth v. Laidlaw Envil. Services,

er 3, 13

Friends of the Earth v. Laidlaw Envil. Services,

149 F.3d 303 (4 Cir. 1998),

rev'd on other grounds, 120 S. Ct. 693 (2000) ........... 9

Hanrahan v. Hampton, 446 U.S. 754 (1979)...0.......... nee,

Hensley v. Eckerhart, 461 U.S. 424 (1983) .......... 8, 12, 14

Hewitt v. Helms, 482 U.S. 755 (1987).............. 4,8, 11,14

Jan R. Smith Constr. Co. v. DeKalb County,

18 F. Supp. 2d 1365 (N._D. Ga. 1998) 0, 7

Johnson v. LaFayette Fire Fighters Assoc., Local 472,

oie gM ARES See 7

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

Kilgour v. City of Pasadena,

53 F.3d 1007 (9th Cir. 1995) 00... idan tae

K.L. v. Edgar, No. 92 C 5722, 2000 WL 1499445

eR ee Ae 7

Klamath Siskiyou Wildlands Ctr. v. Babbitt,

105 F. Supp. 2d 1132 (D. Ore. 2000)... 7

Luethje v. Peavine Sch. Dist.,

872 F.2d 352 (10th Cir. 1989) 200. cee. 6

Maduka v. Meissner, 114 F.3d 1240 (D.C. Cir. 1997)...... 8

Maher v. Gagne, 448 U.S. 122 (1980) ........ 4, 8, 12, 15, 16

Marbley v. Bane, 57 F.3d 224 (2d Cir. 1994) ............. 8,15

Marek v. Chesney, 473 U.S. 1 (1985) ..0000 oon. 3,5

Melkonyan v. Sullivan, 501 U.S. 89 (1991) 2000... l

Newman v. Piggie Park Enters., Inc.,

a es 5

Ortiz de Arroyo v. Barcelo,

PIS I ccc sccscssciteninssseielsiianiianini 6

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

Be TEED GIR ceccecctcisececnsenninnicnonsnsinennens 8

Ragin v. Harry Macklowe Real Estate Co.,

870 F. Supp. 510 (S.D.N.Y. 1994) 0. 10

Rhodes v. Stewart, 488 U.S. 1 (1988)... 15

S-1 and S-2 v. State Bd. of Educ..,

21 F.3d 49 (4th Cir. 1994) 200. 3, 8, 13

Shalala v. Schaefer, 509 U.S. 292 (1993)... l

Statewide Reapportionment Advisory Comm. v. Beasley,

ee IES CI cerrcsciasssscsienvinewcnansissonetinsintins 9

Vv

Texas State Teachers Ass'n v. Garland Indep. Sch. Dist.,

I SI oie re 5, 8, 14

Wade v. Coughlin, 2000 U.S. App. LEXIS 11583

ES EES See re 9,17

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

IEE AER Ee orn a 8,14

STATUTES

RRS nets eR anne CN Cee SESE 4

EERE De srea ae Oconee ene 9

ESSERE eee ee 3,5

TELE eae REIN Ree en AY en 3,5

MISCELANEOUS

H.R. Rep. 100-711, 100th Cong., 2d Sess. (1988) ...... 9,10

H.R. Rep. 101-422, pt. II, 101st Cong., 2d Sess.

NTA REPRE SSP ESE EL eve Se EO 10

H.R. Rep. 101-485, pt. III, 101st Cong, 2d Sess.

Gp RSH ASS SILT 10

H.R. Rep. 94-1558, 94th Cong. 2d Sess. (1976)... 4,9, 11

S. Rep. 94-1011, 94th Cong., 2d Sess. (1976)........ 4,6, 12

S. Rep. 98-233, 98th Cong., Ist Sess. (1983) 0... 11

vl

ce cal aa aa ew *

S. Rep. 99-50, 99th Cong., Ist Sess. (1985) ...........

WEBSTER’S UNABRIDGED DICTIONARY (2d ed. 1979)

vu

_—S-=-.— oo — _

INTEREST OF AMICI’

Public Citizen is a non-profit, consumer advocacy

organization with approximately 150,000 members nationwide.

Since 1971, Public Citizen has been active in the courts, in

Congress, and before regulatory agencies concerning the

enforcement of a wide range of health, safety, environmental,

and consumer legislation. Public Citizen has represented

plaintiffs in litigation over federal fee-shifting statutes in a wide

variety of cases. See, e.g., Shalala v. Schaefer, 509 U.S. 292

(1993); Melkonyan v. Sullivan, 501 U.S. 89 (1991); Jones v.

Brown, 41 F.3d 634 (Fed. Cir. 1994), Chesapeake Bay Found.

v. United States Dep't of Agric., 11 F.3d 211 (D.C. Cir. 1993),

cert. denied, 513 U.S. 927 (1994); Dunn v. Florida Bar, 889

F.2d 1010 (11th Cir. 1989), cert. denied, 498 U.S. 811 (1990).

In all of these cases, Public Citizen has sought to further the

policies behind federal fee-shifting legislation: providing a

means for ordinary citizens to enforce federal law.

The American Civil Liberties Union is a nationwide,

nonprofit, nonpartisan organization with nearly 300,000

members dedicated to the principles of liberty and equality

embodied in the Constitution and this nation’s civil nights laws.

In pursuit of those goals, the ACLU maintains an active

litigation program in all fifty states. In seeking to provide access

to the courts to victims of civil liberties and civil nghts abuses,

' Counsel for the parties have consented to the filing of this amici

curiae brief, and the letters of consent are being filed with the Court

simultaneously with the filing of this bnef. Pursuant to Supreme Court Rule

37.6, amici state that no counsel for a party has authored this bnef in whole or

in part, and that no person or entity other than Public Citizen and the ACLU

has made a monetary contribution to the preparation or submission of this bnef

the ACLU relies in part on the recovery of court-awarded fees.

The ACLU believes that the Fourth Circuit’s restrictive

interpretation of the fee-shifting statutes will hamper

enforcement of the civil rights laws contrary to congressional

intent. Since its founding in 1920, the ACLU has appeared

before this Court on numerous occasions, both as counsel for

parties and as amicus curiae”

STATEMENT OF THE CASE

Petitioners’ lawsuit challenged certain West Virginia fire

safety regulations (the “self-preservation rules”) that required

persons living in residential care homes to be able to evacuate

without assistance in the event of danger. The complaint alleged

that these rules discriminated against disabled nursing home

residents in violation of the federal Fair Housing Amendments

Act (“FHAA”) and the Americans with Disabilities Act

(“ADA”).

The lawsuit was filed within days after state authorities

issued Cease and Desist Orders to the petitioner Buckhannon

Board and Care Home to expel its residents who could not self-

evacuate, or to close its doors. At the TRO hearing, the

defendants agreed to the entry of a court order indefinitely

staying enforcement of the Cease and Desist Orders, and such

an order was entered shortly thereafter. (Docket Entry No. 9)

More than two years later, after extensive discovery and

briefing, the defendants repealed the self-preservation rules

(technically, that action was taken by the state legislature, which

> The ACLU of the National Capital Area is co-counsel in Wade v.

Coughlin, pet. for cert. pending, No. 00-75 (filed July 14, 2000), which

presents the same question as this case

2

apparently must promulgate and amend all administrative rules,

see W. Va. Code § 29A-3-1 et seq.). The lawsuit was then

dismissed as moot.

Plaintiffs applied for attorney’s fees under the applicable

provisions of the FHAA, 42 U.S.C. § 3613(c)(2), and the ADA,

42 USC. § 12205. The district court recognized that their

lawsuit may well have been the catalyst for the repeal of the self-

preservation rules. (Pet. App. A-17) Nonetheless, the court

denied the fee request without making a finding of fact on that

issue because the Fourth Circuit has ruled that a party that

obtains the relief it seeks through unilateral action of the

defendant, rather than through a formal judgment or settlement,

cannot be a “prevailing party” under the various federal fee-

shifting statutes. See S-/ and S-2 v. State Bd. of Educ., 21 F.3d

49 (4th Cir.) (en banc), cert. denied, 513 U.S. 876 (1994). The

Fourth Circuit affirmed. (Pet. App. A-9)

SUMMARY OF THE ARGUMENT

Fee-shifting statutes, which enable individuals to act as

“private attorneys general,” are a cornerstone of enforcement of

vital federal laws involving civil rights, health, safety, and the

environment. Marek v. Chesney, 473 U.S. 1, 43-51 (1985),

Evans v. Jeff D., 475 U.S. 717, 732, 741 (1986). For decades,

federal courts have interpreted these fee-shifting statutes to

allow recovery where the plaintiff's lawsuit acts as a “catalyst”

for the defendant providing the relief sought by the plaintiff,

even where there is no formal action by the court or settlement

agreement. Friends of the Earth v. Laidlaw Envil. Services,

120 S. Ct. 693, 711 (2000) (collecting cases).

These courts follow the text and legislative history of

the fee-shifting statutes. For example, the Civil Rights

3

Attorney’s Fees Awards Act, 42 U.S.C. § 1988 (“Section

1988”), provides fees to the “prevailing party,” which plainly

should include parties who prevail because the defendant

provided the relief sought by the plaintiff in response to the

litigation. The Senate Report accompanying Section 1988

states: “[F]or purposes of the award of counsel fees, parties may

be considered to have prevailed when they vindicate nghts

through a consent judgment or without formally obtaining

relief.” S. Rep. 94-1011, 94th Cong., 2d Sess. 5 (1976). See

also HR. Rep. 94-1558, 94th Cong, 2d Sess. 7 (1976)

(“[{A]fter 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.’’).

This statutorily grounded catalyst rule has also been

recognized in the decisions of this Court. For example, in

Hewitt v. Helms, 482 U.S. 755, 760-61 (1987), this Court

explained: “if a defendant, under pressure of the lawsuit, alters

his conduct (or threatened conduct) towards the plaintiff that

was the basis for the suit, the plaintiff will have prevailed.” See

also Maher v. Gagne, 448 U.S. 122, 129 (1980) (“Nothing in

the language of section 1988 conditions the district court's

power to award fees on full litigation of the issues or on a

judicial determination that the plaintiffs mghts have been

violated .’’)

Finally, the catalyst rule is necessary to accomplish the

congressional policies animating the fee-shifting statutes:

obtaining competent counsel, and promoting compliance with

federal law. See S. Rep. 94-1011, 94th Cong, 2d Sess. 5

(1976). First, the catalyst rule helps parties attract counsel by

ensuring payment of fees in cases where the litigation causes the

defendant to materially alter its conduct. Second, the catalyst

4

rule insures that fee-shifting statutes have their intended effect

of promoting compliance with federal law by encouraging

defendants promptly to alter their conduct in order to minimize

their ultimate fee liability. In short, the catalyst rule is necessary

if attorney’s fees are to remain part of “the arsenal of remedies

available to combat violations of civil rights.” Jeff D., 475 U.S.

at 732.

The Fourth Circuit alone has rejected the catalyst

theory. This ruling is contrary to the plain meaning and

legislative history of the fee-shifting statutes, the teachings of

this Court, and congressional policy. Accordingly, the decision

below must be reversed.

ARGUMENT

More than 100 federal fee shifting statutes provide for

an award of fees to successful plaintiffs. See Marek v. Chesney,

473 US. 1, 43-51 (1985) (listing federal statutes authorizing

awards of attorney’s fees). Congress enacted these fee-shifting

Statutes to encourage enforcement of federal law by “private

attorneys general.” Jexas State Teachers Ass'n v. Garland

Indep. Sch. Dist., 489 U S. 782, 793 (1989). Like most fee-

shifting statutes, the Americans With Disabilities Act (“ADA”)

and the Fair Housing Amendments Act of 1988 (“FHAA”)

provide for a reasonable attorney’s fee for the “prevailing

party.” 42U S.C. § 12205,42 USC. § 3613(c)(2).

For two reasons, the catalyst rule is a critical component

of these fee-shifting statutes. First, “Congress expected fee

shifting to attract competent counsel to represen‘ citizens

deprived of their civil rights.” Jeff D., 475 US. at 731. See

also Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402

(1968) (fee-shifting under Title II of 1964 Civil Rights Act

5

allows individuals to employ counsel, obtain access to the

courts, and vindicate their rights). Abandonment of the catalyst

rule would undermine this goal. The catalyst rule ensures

payment of fees where the defendant unilaterally changes its

conduct, including in cases where the defendant does so after

years of litigation. See, e.g., Ortiz de Arroyo v. Barcelo, 765

F 2d 275 (1st Cir. 1985) (fees awarded where government lifted

land use restrictions after two years of litigation under the

Takings Clause, including discovery and failed settlement

negotiations). Without the catalyst rule, counsel would obtain

no fee even in cases with a successful result, and counsel thus

would be less likely to take a case in which fee-shifting is the

primary source of compensation. See S. Rep. 94-1011, 94th

Cong., 2d Sess. 5 (1976) (“If the cost of private enforcement

actions becomes too great, there will be no private enforcement.

If our civil rights laws are not to become mere hollow

pronouncements which the average citizen cannot enforce, we

must maintain the traditionally effective remedy of fee shifting

in these cases.”’).

Second, “fees are an integral part of the remedy

necessary to achieve compliance with our statutory policies.”

S. Rep. 94-1011, 94th Cong., 2d Sess. 5 (1976). The catalyst

rule insures that fee-shifting statutes have their intended effect

of promoting compliance with federal law by encouraging

defendants promptly to alter their conduct in order to minimize

their ultimate fee liability. See, e.g., Luethje v. Peavine Sch.

Dist., 872 F.2d 352 (10th Cir. 1989) (public school lifted gag

order less than one month after employee filed First Amendment

challenge); DeMier v. Gondles, 676 F.2d 92 (4th Cir. 1982)

(sheriff suspended blanket strip-search policy at county jail less

than two months after filing of Fourth Amendment challenge).

Time and again, the courts have properly relied upon the

6

catalyst rule to reimburse plaintiffs who have vindicated

important federal rights. As one would expect, the catalyst rule

has been applied in cases that span the entire spectrum of views

on important public policy questions. Plaintiffs who have been

awarded fees under the catalyst rule include both individuals and

organizations, and they are represented both by private

practitioners (as in the cases above) and non-profit advocacy

organizations. See, e.g., Johnson v. LaFayette Fire Fighters

Assoc., Local 472, 51 F.3d 726 (7th Cir. 1995) (challenge to

union’s accounting procedures brought by non-union firefighters

represented by National Right to Work Legal Defense

Foundation); Klamath Siskiyou Wildlands Ctr. v. Babbitt, 105

F. Supp. 2d 1132 (D. Ore. 2000) (Endangered Species Act case

brought by three environmental organizations), K.L. v. Edgar,

No. 92 C 5722, 2000 WL 1499445 (N_D. Ill. Oct. 6, 2000)

(challenge to conditions in nine psychiatric hospitals brought by

class of patients represented by ACLU); Jan R. Smith Constr.

Co. v. DeKalb County, 18 F. Supp. 2d 1365 (N.D. Ga. 1998)

(challenge to government contract set-aside program for

minorities and women brought by construction company

represented by Southeastern Legal Foundation).

I. The Text And Purpose Of Fee-Shifting Statutes

Support A “Catalyst” Theory Of Fee Recovery.

The question in this case is whether a plaintiff has

“prevailed” if she obtains the relief she seeks in her suit through

the defendant’s “voluntary” compliance with her demands. As

noted above, the fee provisions of the ADA and the FHAA

allow the court to award attorney’s fees to the “prevailing

party.” “Prevail” means “to gain the victory.” WEBSTER’S

UNABRIDGED DICTIONARY 1426 (2d ed. 1979). Plaintiffs who

bring suit to vindicate their federal rights and thereby compel

defendants to change their con‘juct have “gain[ed] the victory”

7

under any ordinary understanding of those words.

Thus, to “prevail” under the fee-shifting statutes, a

plaintiff need not litigate the case to judgment, but need only

obtain some of the relief that she sought, Hensley v. Eckerhart,

461 U.S. 424, 433 (1983), and in so doing materially alter the

relationship between the parties. 7exas State Teachers Ass'n,

489 US. at 792. Once that has occurred, the plaintiff need only

show that the suit was a causal factor in obtaining the relief,

Hewitt v. Helms, 482 U.S. 755, 761 (1987), and that the

plaintiff's federal claim was not frivolous. Maher v. Gagne, 448

U.S. 122, 131 (1980); Zinn by Blankenship v. Shalala, 35 F 3d

273, 274 (7th Cir. 1994).

Unlike every other court of appeals to reach the issue,’

the Fourth Circuit interprets the “prevailing party” statutory

language and this Court’s jurisprudence to preclude recovery

under the well-established “catalyst” theory. The Fourth Circuit

first rejected the catalyst theory in a case which interpreted

Section 1988. S-/ and S-2 v. State Board of Educ., 2\ F.3d 49,

51 (4th Cir.) (en banc), cert. denied, 513 U.S. 876 (1994).

Later that year, it applied its “no catalyst” rule in two other

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

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

138 F.3d 351, 357-58 (8th Cir. 1998), Maduka v. Meissner, 114 F.3d 1240,

1241 (D.C. Cir. 1997), Marbley v. Bane, 57 F.3d 224, 233-35 (2d Cir. 1994),

Kilgour v. City of Pasadena, 53 F.3d 1007, 1010-11 (9th Cir. 1995), Zinn by

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

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

Housing Auth., 2) F.3d 541, 546-50 (3d Cir. 1994); Craig v. Gregg County,

Texas, 988 F.2d 18, 20-21 (Sth Cir. 1993), Paris v. United States Dep't of

Housing and Urban Dev., 988 F.2d 236, 238 (1st Cir. 1993), Citizens Against

Tax Waste v. Westerville City Sch., 985 F.2d 255, 257-58 (6th Cir. 1993).

Arvinger v. Mayor and City Council e€ Ba/t; tore, 31 F.3d 196,

202-03 (4th Cir. 1994). Two years later, the Fourth Circuit

applied this rule to a Voting Rights Act case. Statewide

Reapportionment Advisory Cmte. v. Beasley, 99 F.3d 134, 136-

37 (4th Cir. 1996). Thereafter, it was applied to a Clean Water

Act case, Friends of the Earth v. Laidlaw Envil. Services, Inc..,

149 F.3d 303 (4th Cir. 1998), rev'd on other grounds, 120 S.

Ct. 693 (2000), and even more recently to a case arising under

the Rehabilitation Act, the ADA, and the Social Security Act,

Wade v. Coughlin, 2000 U.S. App. LEXIS 11583 (4th Cir. May

24, 2000), pet. for cert. pending, No. 00-75 (filed July 14,

2000). Both in theory and in practice, then, the Fourth Circuit’s

rule dramatically narrows the grounds for fee awards to

plaintiffs seeking to vindicate federal civil rights or enforce

federal environmental and consumer statutes.

The Fourth Circuit’s rule is contrary to the language and

purpose of the civil rights laws. Like other such laws, the

FHAA contains enforcement provisions allowing private citizens

a full range of equitable relief and compensatory and punitive

damages. 42 U.S.C. § 3613(a) - (e). The obvious purpose of

this provision is to compensate individuals harmed by

discrimination, and to deter discrimination in the first place.

See, e.g, H.R. Rep. 100-711, 100th Cong., 2d Sess. 39-40

(1988), reprinted in 1998 U.S.C.C._A.N. 2200-01 (FHAA lifted

limit on punitive damages to provide incentive to bring private

enforcement action and to deter wrongful conduct). Without

the possibility of a fee award after a successful suit, citizens

seeking to enforce this statute will all too often find it difficult

to retain counsel. As a result, these nghts will exist in name

only — out of the reach of ordinary citizens. See H.R. Rep. 94-

1558, 94th Cong. 2d Sess. 1-3 (1976) (report accompanying

enactment of Section 1988)‘ The legislative history of the

FHAA made this very point, noting that there was a lack of

effective enforcement because of “disadvantageous limitations

on punitive damages and attorney's fees” in the then-current

version of the Fair Housing Act HR. Rep. 100-711, 100th

Cong 2d Sess. 16 (1988), reprinted in 1998 USC CAN

2177

Indeed, the House Report accompanying Section 1988

expressly endorses a fee award in cases where a defendant's

“voluntary” compliance affords the plaintiff the requested relief,

as well as in cases where the plaintiff wins a favorable judgment

on the merits, a settlement, or a consent decree

The phrase “prevailing party” is not intended to

be limited to the victor only after entry of a final

judgment following a full trial on the merits

If the litigation is terminated by consent decree,

* ‘The legislative history of the ADA's attorney's fee provision

specifically notes that it 1s to “be interpreted in a manner consistent with the

Civil Rights Attorney's Fees Act, including that statute's definition of

prevailing party, as construed by the Supreme Court.” H.R. Rep. 101-485, pt

Ill, 1O1st Cong , 2d Sess. 73 (1990), reprinted in 1990 USC CAN 496

(footnotes omitted). See also H.R. Rep. 101-422, pt. Il, 101st Cong , 2d Sess

140 (1990), reprinted in 1990 US.C. CAN 423 (“It 1s intended that the term

‘prevailing party’ be interpreted consistently with other civil nghts laws”)

* Prior to the FHAA, the Fair Housing Act lumited fees to those who

were “not financially able to assume” the cost of fees. See Ragin v. Harry

Macklowe Real Estate Co., 870 F. Supp. $10, 515(S.D.N_Y. 1994) (quoting

42 USC 3612(c)) Congress understood that the old provision impeded

private enforcement of the Act because it required plaintiffs of modest means

to choose between filing a discrmination lawsuit and paying for umportant

necessities.

10

for example, it would be proper to award

counsel fees... A “prevailing party” should

not be penalized for seeking an out-of-court

settlement, thus helping to lessen docket

congestion. Similarly, after a complaint is filed

a defendant might voluntarily cease the unlawful

practice. A court should still award fees even

though it might conclude, as a matter of equity,

that no formal relief, such as an injunction, is

needed

H.R. Rep. 94-1558, 94th Cong., 2d Sess. 7 (1976). Similarly,

legislative materials accompanying the 1987 amendments to the

Clean Water Act demonstrate that a “prevailing party” is one

who settles the case as surely as one who litigates to judgment.

See S. Rep. 99-50, 99th Cong, Ist Sess. 33 (1985) (“The

Committee recognizes that a party may ‘prevail’ by achieving a

successful settlement.”), see also S. Rep. 98-233, 98th Cong.,

Ist Sess. 24-25 (1983).

Il. This Court’s Decisions Teach That The Fourth

Circuit’s Ruling Is Wrong.

This Court has repeatedly endorsed the catalyst theory

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

the merits is not a necessary prerequisite to achieving

“prevailing party” status. For instance, in Hewitt v. Helms, 482

U.S. 755 (1987), the Court acknowledged the catalyst theory:

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

decreed in order to justify a fee award under section 1988.” /d.

at 761. As if to reject the very theory later adopted by the

Fourth Circuit, the Court further noted that “[a] lawsuit

sometimes produces voluntary action by the defendant that

affords the plaintiff all or some of the relief he sought through

ll

a judgment — e.g., a monetary settlement or a change in conduct

that redresses the plaintiff's gnevances. When that occurs, the

plaintiff is deemed to have prevailed despite the absence of a

formal judgment in his favor.” /d. at 760-61. After all, what

one seeks in a lawsuit is not a judicial pronouncement for its

own sake, but to change the behavior of the defendant in some

way. /d. Thus, “if a defendant, under pressure of the lawsuit,

alters his conduct (or threatened conduct) towards the plaintiff

that was the basis for the suit, the plaintiff will have prevailed.”

Id

Similarly, in Maher v. Gagne, 448 U.S. 122 (1980), the

Court stated that “[nJothing in the language of section 1988

conditions the district court’s power to award fees on full

litigation of the issues or on a judicial determination that the

plaintiff's rights have been violated.” /d at 129. The Court

rejected the argument that a settlement without a judgment on

the merits cannot provide “prevailing party” status, quoting a

passage of the Senate Report accompanying Section 1988:

“(Flor purposes of the award of counsel fees, parties may be

considered to have prevailed when they vindicate nghts through

a consent judgment or without formally obtaining relief.” /d.

(quoting S. Rep. 94-1011, 94th Cong , 2d Sess. 5 (1976)). See

also Hanrahan v. Hampton, 446 U.S. 754, 756-57 (1979) (per

curiam) (recognizing that a person may “in some circumstances

be a ‘prevailing party’” if his mghts are vindicated “without

formally obtaining relief”), Hensley v. Eckerhart, 461 U.S. 424,

433 (1983) (prevailing party is one who “succeeds on any

significant issue in litigation which achieved some of the benefit

the parties sought in bringing suit’).

In the Fourth Circuit’s view, however, this Court’s

endorsement of the catalyst theory over the course of a decade

was overtuled sub silentio by Farrar v. Hobby, 506 U.S. 103

12

(1992). No other circuit has adopted that interpretation of

Farrar, and for good reason: The Court in Farrar did not rule

on or even consider the validity of the catalyst theory, as this

Court noted just last Term in Laidlaw, 120 S. Ct. at 167.

Rather, the issue in Farrar was whether a fee award of

$280,000 was reasonable, assuming the plaintiff had technically

prevailed through an award of $1 in a suit seeking $17 million.

In the course of a general discussion of fee awards under

Section 1988, the Court stated that to be a prevailing party, a

“plaintiff must obtain at least some relief on the merits of his

claim,” an “enforceable judgment against the defendant,” or

“comparable relief through a consent decree or settlement.” /d.

at 111. Citing to the test articulated in 7exas State Teachers,

the Court explained that a “plaintiff prevails when actual relief

on the merits of his claim materially alters the legal relationship

between the parties by modifying the defendant’s behavior in a

way that directly benefits the plaintiff.” 506 U.S. at 111 (citing

489 US. at 792).

The Fourth Circuit incorrectly construed the comments

in Farrar about obtaining relief through an enforceable

judgment, consent decree, or settlement as an exhaustive list,

foreclosing the possibility of a fee award where the plaintiff

achieves relief through voluntary compliance by the defendant.

In S-/ and S-2, a one-vote en banc majority held that a

“prevailing party” must achieve success by virtue of “a court’s

authority,” and not by any other means. 21 F.3d at 51. Under

that interpretation, fees would not be available even in cases that

settle, for an out-of-court settlement usually does not depend on

any court action. But that result would directly contradict

Maher v. Gagne. Nothing in Farrar’s holding suggests that

prevailing party status may not be achieved in other ways. In

fact, the context demonstrates that the list in Farrar was not

exhaustive, and that the core inquiry remains the one articulated

13

in Texas State Teachers, Maher, Hewitt, and Hensley -

alteration of the relationship between a plaintiff and a defendant

in a way that benefits the plaintiff 506 US. at 111. As the

Third Circuit has noted, “it is not likely that the Supreme Court

would overturn such a widespread theory without even once

mentioning it, particularly when it was inapplicable to the case

at hand.” Baumgartner v. Harrisburg Hous. Auth., 2\ F.3d

541, 546-50 (3d Cir. 1994); accord Zinn by Blankenship vy.

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

The language in 7exas State Teachers and Farrar that

a prevailing party must demonstrate a “material alteration of the

legal relationship” was meant to ciarify that mere technical

victories might be too insignificant to meet the prevailing party

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

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

the legal relationship has been altered because the defendant is

no longer acting in violation of legal rights held by the plaintiff

This language cannot be read to require an enforceable

judgment before a litigant may be a “prevailing party.”

To the contrary, 7exas State Teachers and Farrar

reaffirmed the well-established rule that the threshold test for

prevailing party status is whether the plaintiff “succeed[ed] on

any significant issue in litigation which achieves some of the

benefit the parties sought in bringing suit.” Farrar, 506 US. at

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

489 US. at 789 (citing Hensley, 461 U.S. at 433). As Justice

O’Connor’s concurrence in Farrar made clear, the inquiry

remains one of causation: whether the plaintiffs succeeded,

through the vehicle of the lawsuit, in achieving at least some of

the practical relief that they sought by changing the “behavior of

the defendant towards the plaintiffs.” Farrar, 506 U.S. at 116

(O’Connor, J., concurring) (citing Hewitt, 482 U.S. at 761).

14

Once the conditions of causation and substantial benefit to the

plaintiff are satisfied, there is no need for the additional

requirement that the change in conduct or law be judicially

mandated or formalized by judicial decree. See, e.g., Marbley

v. Bane, 57 F.3d 224, 234 (2nd Cir. 1994); Baumgartner, 21

F.3d at 547.

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

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

plaintiff's favor. See also Rhodes v. Stewart, 488 U.S. 1, 4

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

judgment affects “behavior of the defendant toward the

plaintiff’). But even if there is no legal judgment to enforce, a

change in the defendant’s behavior that has the practical effect

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

of mooting out the complaint, means that the plaintiff has

“prevailed” as surely as obtaining a declaratory judgment or

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

cases, a defendant's cessation of illegal conduct will confer a far

greater benefit to a plaintiff than the nominal relief embodied in

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

foreclose a catalyst theory of fee recovery and the Fourth

Circuit’s holding is contrary to the teachings of this Court’s

cases.

Under the Fourth Circuit’s prohibition on catalyst fee

awards, plaintiffs are deprived of any fee award despite their

success in vindicating federal rights. If the Fourth Circuit’s rule

stands, it will virtually assure that fewer meritorious suits to

enforce federal rights will be brought. Such a result is contrary

to Congress’s intent to provide a means for ordinary citizens

harmed by violations of federal civil rights, environmental, and

other statutes to serve as “private attorneys general.”

15

Ill. The Fourth Circuit’s Rule Leads To Anomalous

Results.

The Fourth Circuit’s “no-catalyst” rule is not only at

odds with the text and purpose of federal fee-shifting statutes,

and with this Court’s decisions, but it also leads to anomalous

results that further underscore the need for reversal

Under Maher v. Gagne, a plaintiff who settles a case

favorably without litigating the case to judgment “prevails” for

fee-shifting purposes 448 US at 129. This ruling follows the

ordinary meaning of the word “prevail” and congressional

intent. Maher is also consistent with the policy in favor of

settlement, see Jeff D., 475 US at 733, because if the rule were

otherwise, cases would be far less likely to settle

The “catalyst” cases, where the Fourth Circuit denies

fees, are analytically indistinguishable from the “settlement”

cases, where this Court allows fees In both kinds of cases, no

court has found a violation of federal law, because the

defendant’s actions have eliminated the need to do so’. And tn

both cases, the defendant has altered its conduct with respect to

the plaintiff as a result of a lawsuit alleging a violation of federal

law There is no reason to treat the two situations differently

for fee shifting purposes, as the following hypothetical example

illustrates

Assume, for instance, that the plaintiff sues to enjoin a

county prosecutor's policy for conducting arraignment and

probable cause hearings for accused prisoners, arguing that the

county’s policy of conducting such hearings within 72 hours of

arrest violates the Fourth Amendment After the filing of

summary judgment bnefs and an argument before the court that

reveals the court’s serious concerns about the constitutionality

16

of the county’s conduct, the parties enter into settlement

discussions. The county tentatively agrees to do what the

plaintiff maintains the Constitution requires — hold probable

cause determinations within 48 hours of arrest. A settlement

agreement is drafted in which the defendant agrees to adopt a

new policy and the plaintiff agrees to release his claims,

reserving the right to apply for attorney’s fees. Then, before a

settlement is signed, the county simply announces that it has

changed its policy and moves to dismiss the case as moot. The

plaintiff acknowledges that the new policy is lawful. See County

of Riverside v. McGlaughlin, 500 U.S. 44 (1991). The court

then dismisses the case on mootness grounds, accepting the

defendant's representation that the change of policy is

permanent

In such circumstances, plaintiff should be entitled to fees

on a catalyst theory, because the objectives of federal law have

been well served, despite the absence of a formal settlement

agreement More importantly, if fees are not awarde¢ on a

catalyst theory, defendants will avoid fees by unilaterally ending

their misconduct and refusing to enter a formal settlement

agreement, as happened in this case and in Wade v. Coughlin,

2000 US App LEXIS 11583, pet. for cert. pending, No 00-

75 (filed July 14, 2000) (state abandoned challenged policy after

more than four years of litigation, shortly before tnal) In fact,

the Fourth Circuit's repudiation of the catalyst theory acts to

encourage defendants to delay abandonment of their wrongful

conduct Defendants may protract the litigation, hoping to

exhaust the plaintiff's resources, secure in the knowledge that

they can wait until the eleventh hour before changing their

position — and still avoid payment of any attorney's fees

With lawvers aware of this reality, individuals whose

federal nghts are being violated will find it more difficult to find

7

counsel willing to handle their cases without payment of fees in

advance. See Baumgartner, 21 F.3d at 548. Contrary to

congressional intent, this would effectively remove attorney’s

fees from ihe “arsenal of remedies available to combat violations

of civil rights.” Jeff D., 475 U.S. at 732. As discussed earlier,

see p. 6, supra, the threat of an adverse fee award encourages

many defendants to conform their conduct to the law at the

earliest point in time. If the coercive effect of fee-shifting

statutes is eroded by the abandonment of the catalyst theory,

plaintiffs as well as the courts will lose an important and

valuable tool in the resolution of public interest litigation.

This Court should reject such anomalous results,

recognizing that the permanent cessation of illegal conduct in

response to a lawsuit is, in effect, a form of settiement for which

fees may be awarded under Maher v. Gagne

CONCLUSION

The decision of the court of appeals should be reversed,

and the case remanded for a determination whether petitioners

are entitled to fees under a catalyst theory.

Respectfully submitted,

BRIAN WOLFMAN

(Counsel of Record)

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street, NW

Washington, DC 20009

(202) 588-1000

ARTHUR B. SPITZER

ACLU OF THE

NATIONAL CAPITAL AREA

1400 20th Street, NW

Washington, DC 20036

(202) 457-0800

November 20, 2000

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

(212) 549-2500

HARVEY GROSSMAN

ADAM SCHWARTZ

ROGER BALDWIN FOUNDATION

OF ACLU, INC.

180 North Michigan Avenue

Chicago, IL 60601

(312) 201-9740