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

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No. 99-1848 f

IN THE H

Supreme Court of the United States———__

+

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

" Petitioners,

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 OF THE STATES OF MARYLAND.

ALABAMA, CALIFORNIA, COLORADO,

DELAWARE, FLORIDA, ILLINOIS, KANSAS,

LOUISIANA, MASSACHUSETTS, MISSOURI.

MONTANA, NEBRASKA, NEW HAMPSHIRE.

NORTH CAROLINA, NORTH DAKOTA,

OHIO, OKLAHOMA, OREGON,

PENNSYLVANIA, RHODE ISLAND, SOUTH

CAROLINA, SOUTH DAKOTA, TENNESSEE,

TEXAS, UTAH, AND VIRGINIA AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

+

J. JOSEPH CURRAN, JR,

Attorney General of Maryland

MAUREEN M. DOVE

ANDREW H. BAIDA*

Assistant Attorneys General

200 St. Paul Place, 20th Floor

Baltimore, Maryland 21202

(410) 576-6318

Counsel for Amici States

*Counsel of Record

{additional counse! listed on inside cover]

ABEST AVAILABLE

a4

BILL PRYOR

Attorney General of

Alabama

11 South Union Street

Montgomery, AL 36130

BILL LOCKYER

Attorney General of

California

1300 I Street

Sacramento, CA 94244

KEN SALAZAR

Attorney General of

Colorado

1525 Sherman Street

Denver, CO 80203

M. JANE BRADY

Attorney General of

Delaware

820 N. French Street

Wilmington, DE 1980]

ROBERT A. BUTTERWORTH

Attorney General of Florida

The Capitol PL-O!

Tallahassee, FL 32399-1050

JAMES E. RYAN

Attorney General of Illinois

100 West Randolph Street

Chicago, IL 60601

CARLA J. STOVALI

Attorney General of Kansas

301 S.W. 10th Avenue

Topeka, KS 66612-1597

RICHARD P. IEYOUB

Attorney General of

Loutsiana

301 Main Street, Suite 600

Baton Rouge, LA 70804-

9OOS

THOMAS F. REILLY

Attorney General of

Massachusetts

One Ashburton Place

Boston, MA 02108-1698

JEREMIAH W. (JAY) NIXON

Attorney General of

Missouri

Supreme Court Building

207 West High Street

Jefferson, MO 65101

JOSEPH P. MAZUREK

Attorney General of

Montana

P.O. Box 201401

215 N. Sanders

Helena, MT 59620-1401

DON STENBERG

Attorney General of

Nebraska

Department of Justice

2115 State Capitol

Lincoln, NE 68509

PHILIP T. MCLAUGHLIN

Attorney General of New

Hampshire

33 Capitol Street

Concord. NH 03301

MICHAEL F. EASLEY

Attorney General of

North Carolina

Department of Justice

P.O Box 629

Raleigh, NC 27602-0629

HEIDI HEITKAMP

Attorney General

of North Dakota

600 E. Boulevard

Bismark, ND 58505-0040

3EST AVAILABLE COPY

BetTY D. MONTGOMERY

Attorney General of Ohio

30 E. Broad St., 17th FI.

Columbus, Ohio 43215

W.A. DREW EDMONSON

Attorney General of

Oklahoma

4545 N. Lincoln Blvd.

Suite 260

Oklahoma City, OK 73105-

3498

HARDY MYERS

Attorney General of Oregon

1162 Court St. N.E.

Salem, OR 97310

D. MICHAEL FISHER

Attorney General of

Pennsylvania

16th Fl., Strawberry Square

Harrisburg, PA 17120

SHELDON WHITEHOUSE

Attorney General of

Rhode Island

150 South Main Street

Providence, RI 02903

CHARLES M. CONDON

Attorney General

of South Carolina

Rembert C. Dennis

Office Building

P.O. Box 11549

Columbia, SC 29211-1549

MARK BARNETT

Attorney General

of South Dakota

500 East Capitol Avenue

Pierre, SD 57501-5070

PAUL G. SUMMERS

Attorney General of

Tennessee

425 Fifth Avenue North

Nashville, TN 37243-0405

JOHN CORNYN

Attorney General of Texas

P.O. Box 12548

Austin, TX 78711-2548

JAN GRAHAM

Attorney General of Utah

236 State Capitol

Salt Lake City, UT 84114

MARK L. EARLEY

Attorney General of

Virginia

900 East Main Street

Richmond, VA 23219

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QUESTION PRESENTED

After a final order of dismissal that disposes of all

claims in a case, may plaintiffs who have not obtained a

judgment, consent decree, or settlement agreement be

prevailing parties for purposes of obtaining attorneys’ fees

under jederal fee-shifting statutes?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................... i

INTEREST OF AMICI CURIAE ................4. l

SUMMARY OF ARGUMENT ................... |

PET san catabecueksucedsnkeeabuecoas 3

A PARTY WHO DOES NOT OBTAIN EITHER

A JUDGMENT, CONSENT DECREE, OR

SETTLEMENT AGREEMENT IS NOT A

PREVAILING PARTY FOR PURPOSES OF

OBTAINING ATTORNEYS’ FEES UNDER

FEDERAL FEE-SHIFTING STATUTES ....... 3

A. The Rule Applied By The Court Of Appeals

To Determine Prevailing Party Status Fully

Complies With This Court’s Attorneys’ Fees

DEE consenewenuadeckuedunceutaedes 3

B. The Court Of Appeals’ Decision Is Not

Contrary To The Legislative History Or

Policies Of Fee-Shifting Statutes .......... 10

DT 64 4cesenenudebadendeae teenies 16

TABLE OF AUTHORITIES

CASES:

American Council of the Blind of Colorado, Inc.

v. Romer, 992 F.2d 249 (10th Cir.1993),

cert. denied, 510 U.S. 864 (1993) ............... vy)

Aspira of New York, Inc. v. Board of Education of the

City of New York, 65 F.R.D. 541

SS MEE sé ctndniseaddesdseuoceeee 10,12

Association for Retarded Citizens of Connecticut v.

Thorne, 68 F.3d 547 (2nd Cir.1995) ............. 7

Beard v. Teska, 31 F.3d 942 (10th Cir.1994)......... 9

ill

Blau v. Rayette-Faberge, Inc.,

389 F.2d 469 (2nd Cir.1968) ............... 10,11

Board of Education of Downers Grove Grade

School v. Steven L., 89 F.3d 464 (7th Cir.1996) .... 8

Boeing Co. v. Van Gemert, 444 U.S. 472 (1980)..... 11

Bogan v. Scott-Harris, 523 U.S. 44 (1998) ......... 14

Brown v. Local 58, Int'l Brotherhood of Electrical

Workers, 76 F.3d 762 (6th Cir. 1996)............ 9

Christiansburg Garment Co. v. EEOC,

Se ee TEED ocd ncncensnseuesndneens ;

Craig v. Gregg County, 988 F.2d 18 (Sth Cir.1993) ... 8

Farrar v. Hobby, 506 U.S. 103 (1992) ....... 3,4,5,6,7

Foreman v. Dallas County, Texas,193 F.3d 314

(Sth Cir.1999), cert. denied,

Se: PEE a Oe bnsusanecescnceenes 8,14

Friends of the Earth, Inc. v. Laidlaw Environmental

Services (TOC), Inc.,120 S.Ct. 693 (2000) .......... 6

Gilson v. Chock Full O'Nuts Corp.,

331 F.2d 107 (2nd Cir.1964) ............... 10,11

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

Hensley v. Eckerhart, 461 U.S. 424 (1983) ........ 4,14

Hewitt v. Helms, 482 U.S. 755 (1987) ......... 4,5,6,12

Kentucky v. Graham, 473 U.S. 159 (1985) ........ 4,13

Kilgour v. City of Pasadena,

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

Kopet v. Esquire Realty Co., 523 F.2d 1005

PDGMREUED ccocenscccecaesesenesncues 10,11

Little Rock School District v. Pulaski County Special

School District, 17 F.3d 260 (8th Cir.1994) ....... 7

Maher v. Gagne, 448 U.S. 122 (1980) .......... 5,9,10

Marbley v. Bane, 57 F.3d 224 (2nd Cir.1995) ....... 7

Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir.1978) .... 7

iV

Parham v. Southwestern Bell Telephone Co.,

433 F.2d 421 (8th Cir.1970) ............. 10,11,12

Payne v. Board of Education,

OS Fe FO CU GENUOED ccc cicscccccesescess 9

S-1] and S-2 by and through P-1 and P-2 v. State

Board of Education of North Carolina, 6 F.3d

PEED Snntcvenkeesnecadodns 3,6,7,13

S-] and S-2 by and through P-1 and P-2 v. State

Board of Education of North Carolina, 21 F.3d 49

(4th Cir.), cert. denied, 513 U.S. 876 (1994) ...... 3

Rhodes v. Stewart, 488 U.S. 1 (1988) ............. 4,5

Richards v. Griffith Rubber Mills, 300 F.Supp.

ee 10,11,12

Tenny v. Brandhove, 341 U.S. 367 (1951).......... 14

Texas State Teachers Ass'n v. Garland Independent

School District, 489 U.S. 782 (1989) ......... 3,4,5

Thomas v. Honeybrook Mines, Inc., 428 F.2d 981

(3rd Cir.1970), cert. denied,

re eer 10,11

Zinn v. Shalala, 35 F.3d 273 (7th Cir.1994) ......... 8

STATUTES AND RULES:

ag A 6 RE Pe ne mere 11

SE 44 co pnescavuncutesxeuweuuueets 4,6

SCE o eabbe a ddEGs ane ubedecoeseutoaubaa l

MISCELLANEOUS:

S.Rep. No. 1011, 94th Cong., 2nd Sess. (1976) ... 10,12

H.R. Rep. No. 1558, 2nd Sess. (1976) ............. 10

Pursuant to Sup. Ct. R. 37, the signatory States

respectfully submit this brief as amici curiae in support of

respondent.

INTEREST OF AMICI CURIAE

As institutional defendants in actions brought under a

broad range of federal fee-shifting laws, the States have a

significant interest in the question whether the catalyst

theory is available to establish a plaintiff's status as a

prevailing party. The resolution of that question will affect

the States in two ways. First, a decision that adopts the

standard advanced by petitioners and their amici will affect

the States financially because it will establish an additional

avenue by which plaintiffs may obtain attorneys’ fees from

public treasuries. Second, and more fundamentally, this

case will affect the manner in which government officials

exercise core legislative and executive functions if this

Court holds that petitioners can establish prevailing party

status by showing that their suit was the catalyst for the

statutory change that rendered their action moot. Allowing

fees in such circumstances will inevitably influence the

manner in which public officials amend law and policy, and

will in many circumstances demand that the legislative

branch of government explain to the judicial branch the

motivations behind the legislature’s exercise of its law-

making authority. The outcome of this case, therefore, will

have a direct impact on State government.

SUMMARY OF ARGUMENT

The decision of the court of appeals should be affirmed

because the court committed no error in holding that a

plaintiff is not a prevailing party for the purpose of an

award of attorneys’ fees in the absence of a judgment,

consent decree, or judicially enforceable settlement

agreement. This Court has consistently held that an award

of fees is improper unless the plaintiff obtains a change in

his or her legal relationship with the defendant. In stating

that prevailing party status is contingent on the existence of

2

a judgment, consent decree, or settlement agreement, the

court of appeals in this case has merely identified the bright-

line criteria it uses for determining whether a material

change in the legal relationship has occurred that would

give rise to a fee award. Those criteria are proper because

they ensure that a party can prevail only if that party secures

relief through the courts.

A change in policy, law, or regulation achieved through

any other forum is not the type of change upon which a

party can rely to establish prevailing party status in

litigation, as a party should not be awarded fees from the

judicial system for change effectuated through actions

undertaken before and by the legislative or executive

branches of government. On a technical level, the party

against whom fees are sought is frequently not even the

party who caused the change through the non-judicial

process, and it is just as frequently difficult, if not

impossible, to ascertain the motivations of the legislature or

the executive branch, each of which is subject to multiple

legitimate influences, concerns, and interests. From a

substantive standpoint, such motivations should not provide

the basis for a fee award, as government officials should be

able to freely exercise their legislative and executive

functions to advance the public interest, unencumbered by

the fear of exposing themselves and their government

processes to the disruptive and highly intrusive burden of

attorney fee litigation. Attorneys’ fee-shifting statutes were

simply not intended to fund public policy changes that are

accomplished through traditional political operations. The

decision below should accordingly be affirmed.

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ARGUMENT

A PARTY WHO DOES NOT OBTAIN EITHER A

JUDGMENT, CONSENT DECREE, OR

SETTLEMENT AGREEMENT IS NOT A

PREVAILING PARTY FOR PURPOSES OF

OBTAINING ATTORNEYS’ FEES UNDER FEDERAL

FEE-SHIFTING STATUTES

A. The Rule Applied By The Court Of Appeals To

Determine Prevailing Party Status Fully Complies

With This Court’s Attorneys’ Fees Decisions.

The standard that the court of appeals used in this case

in determining petitioners’ fee eligibility should be affirmed

because the application of that standard demonstrates that

petitioners have failed to identify any significant change in

their legal relationship in their litigation with West Virginia

giving rise to a fee award. “The touchstone of the

prevailing party inquiry must be the material alteration of

the legal relationship of the parties in a manner which

Congress sought to promote in the fee statute.” Texas State

Teachers Ass'n v. Garland Independent School District, 489

U.S. 782, 792-93 (1989). As this Court recognized in

Farrar v. Hobby, 506 U. S. 103 (1992), “[nJo material

alteration of the legal relationship between the parties

occurs until the plaintiff becomes entitled to enforce a

judgment, consent decree, or settlement against the

defendant.” /d. at 113. Citing this language, the court of

appeals in its en banc decision in S-/ and S-2 by and

through P-1 and P-2 v. State Board of Education of North

Carolina, 21 F.3d 49, 51 (4th Cir.) (adopting Judge

Wilkinson’s dissenting opinion in 6 F.3d 160, 168 (4th

Cir.1993), cert. denied, 513 U.S. 876 (1994)), identified

three ways in which it is possible to change the legal

relationship of parties in litigation: by judgment, consent

decree, or settlement agreement enforceable by a court. The

4

synthesis of this Court’s decisions discussed in Farrar and

S-/ on the issue of prevailing party status demonstrates how

this precedent not only supports, but foreordains and

requires the conclusion that the court of appeals reached in

this case.

In its review in Farrar of its prior attorneys’ fees

decisions, this Court quoted Hanrahan v. Hampton, 446

U.S. 754, 758 (1980), for the proposition that “Congress

intended to permit the . . . award of counsel fees only when

a party has prevailed on the merits.” 506 U.S. at 109. To

qualify for attorneys’ fees, therefore, the party must have

prevailed on a merits issue, not a mere procedural point.

Observing that in Hensley v. Eckerhart, 461 U.S. 424

(1983), the Court accepted a “generous formulation” of the

term “prevailing party,” and held that one could prevail for

purposes of attorneys’ fees by succeeding on any significant

issue in litigation that achieved some of the benefits sought,

the Court in Farrar also noted the confirmatory language in

Kentucky v. Graham, 473 U.S. 159 (1985), that “liability on

the merits and responsibility for fees go hand in hand;

where a defendant has not been prevailed against, either

because of legal immunity or on the merits, §1988 does not

authorize a fee award against that defendant.” Farrar, 506

U.S. at 109 (quoting Graham, 473 U.S. at 165).

After discussing these cases, the Court in Farrar

reviewed what were, at the time, its three most recent

prevailing party decisions: Hewitt v. Helms, 482 U.S. 755

(1987); Rhodes v. Stewart, 488 U.S. 1 (1988) (per curiam);

and Texas State Teachers Ass'n v. Garland Independent

School Dist., 489 U.S. 782 (1989). Hewitt clarified that

“[rJespect for ordinary language requires that a plaintiff

receive at least some relief on the merits of his claim before

he can be said to prevail,” and that to obtain fees, the

plaintiff must “prove ‘the settling of some dispute which

affects the behavior of the defendant towards the plaintiff.’”

5

Farrar, 506 U.S. at 110 (quoting Hewitt, 482 U.S. at 760,

761). Rhodes further elaborated on the definition of “relief”

by holding that a declaratory judgment finding a violation

of federal law is not enough and that “a judgment —

declaratory or otherwise — ‘will constitute relief. . . if, and

only if, it affects the behavior of the defendant toward the

plaintiff.” Farrar, 506 U.S. at 110 (quoting Rhodes, 488

U.S. at 4). Finally, Texas Teachers “synthesized the

teachings of Hewitt and Rhodes,” Farrar, 506 U.S. at 111,

by holding that “the plaintiff must be able to point to a

resolution of the dispute which changes the legal

relationship between itself and the defendant.” /d. (quoting

Texas Teachers, 489 U.S. at 792).

Concluding its review of its attorneys’ fee jurisprudence

on prevailing party status, this Court stated:

Therefore, to 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, 482

U.S., at 760, 107 S.Ct., at 2675, or comparable

relief through a consent decree or settlement,

Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct.

2570, 2574, 65 L.Ed.2d 653 (1980). Whatever

relief the plaintiff secures must directly benefit him

at the time of the judgment or settlement. See

Hewitt, supra, 482 U.S., 764, 107 S.Ct., at 2677.

Otherwise the judgment or settlement cannot be

said to ‘affec{t] the behavior of the defendant

towards the plaintiff.’ Rhodes, supra, 488 U.S., at

4, 109 S.Ct., at 203. 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. Garland, supra, 489 U.S., at 792-

6

793, 109 S.Ct., at 1494. 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.

Farrar, 506 U.S. at 111.

Even though, as this Court recently pointed out, Farrar

“involved no catalytic effect,” Friends of the Earth, Inc. v.

Laidlaw Environmental Services (TOC), Inc., 120 S.Ct. 693,

711 (2000), the court of appeals’ reliance in S-/ on this

language in Farrar does no more than state the three ways

in which it is possible to change the legal relationship in

litigation: by judgment, consent decree, or judicially

enforceable settlement agreement. Contrary to some

analyses, this is not a startling new concept, nor does it

disregard any of this Court’s precedents. Indeed, this Court

had never defined the outer boundaries of the term

“prevailing party.” Rather, in the only case in which it was

faced with the question of whether a party who claimed his

litigation was the catalyst to change and was therefore a

prevailing party, this Court specifically withheld opinion on

the issue, stating that “[w]e need not decide the

circumstances, if any, under which this ‘catalyst’ theory

could justify a fee award under § 1988....” Hewitt, 482 U.S.

at 762.

In reserving judgment in Hewitt on the possibility of

such a fourth avenue for obtaining fees, this Court observed

that a fee award could be justified if the lawsuit produced a

voluntary change in conduct by a defendant. 482 U.S. at

760-61. As Judge Wilkinson explained in S-/, however, the

“voluntary change in conduct” language in Hewitt does not

necessarily “extend the ways to attain prevailing party status

beyond the three situations later listed in Farrar.” 6 F.3d at

rt *

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171. Rather, “Farrar’s inclusion of settlements between

parties encompasses both monetary settlements and

agreements to a change in conduct.” /d. While a plaintiff

who secures either will have prevailed without a formal

judgment, “a voluntary change in conduct must be

formalized in a legally enforceable settlement agreement to

transform a plaintiff into a prevailing party....” Jd.

While petitioners and their amici point out that other

federal courts of appeals have disagreed with this

application of Farrar, some of these decisions contain no

analysis whatsoever, and merely recite that the catalyst

theory remains viable. See, e.g., Little Rock School District

v. Pulaski County Special School District, 17 F.3d 260, 263

n.2 (8th Cir.1994). Some cases rely on Nadeau v.

Helgemoe, 581 F.2d 275 (1st Cir.1978), as the “seminal”

catalyst theory case, but ignore that Nadeau actually used

the catalyst theory to determine whether a party who had a

court-enforceable consent decree was the prevailing party

because he had been the catalyst to the settlement. /d. at

279.

Moreover, a close reading of many of the other cases

cited reveals that the court of appeals’ analysis and

application of prevailing party law in this case is not

substantially different from that of many other circuits but

rather represents more a difference of semantics than

substance. Although the Second Circuit explicitly retained

the catalyst test in Marbley v. Bane, 57 F.3d 224, 234 (2nd

Cir.1995), the same court several months later in

Association for Retarded Citizens of Connecticut v. Thorne,

68 F.3d 547 (2nd Cir.1995), ignored Marbley and observed

that “[r]ecent Supreme Court cases have stated that the key

to determining whether a party prevails is whether the

litigation resulted in an alteration of the legal relationship

between the parties. The ‘plaintiff must obtain an

enforceable judgment against the defendant from whom

8

fees are sought . . . or comparable relief through a consent

decree or settlement.’” 68 F.3d at 552 (quoting Farrar, 506

U.S. at 111) (ellipsis in original) (other citations omitted).

The court concluded that no such change in legal

relationship had occurred, but held that, in any case, the

lower court no longer had subject matter jurisdiction. Assn.

for Retarded Citizens, 68 F.3d at 552.

Likewise, although the Seventh Circuit in Zinn v.

Shalala, 35 F.3d 273 (7th Cir.1994), explicitly retained the

catalyst theory, the same circuit in Board of Education of

Downers Grove Grade School v. Steven L., 89 F.3d 464 (7th

Cir.1996), held that the plaintiff could not be considered to

have substantially prevailed because the outcome of the suit

had resulted in no enforceable obligation on the part of the

school district, and no relief was in the form of a judgment

or enforceable settlement. /d. at 468.

Similarly, the Fifth Circuit stated in Foreman v. Dallas

County, Texas, 193 F.3d 314 (5th Cir.1999), cert. denied

120 S.Ct. 1673 (2000), that it had never fully explored the

impact of Furrar on the viability of the catalyst theory and

that it had never addressed the issue directly. 193 F.3d at

320. The court observed that Farrar places “the continuing

validity of the catalyst theory in serious doubt,” id., as its

language “strongly suggests that the plaintiff must obtain

some merits-based relief which alters its legal standing with

the defendant before it may claim prevailing party status.”

Id. However, the court declined to “engage in that close

debate,” id., holding that, if the catalyst theory still applies,

the facts did not support a finding that the plaintiff had

either obtained the relief he sought by the legislative change

that ended the case, or proved that he was the cause of that

change. /d. at 320-21. The court in Craig v. Gregg County,

988 F.2d 18 (Sth Cir.1993), also questioned whether the

catalyst theory was still good law, but reached no resolution

because the plaintiff had not shown causation in any event.

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The Fifth Circuit has thus never spoken definitively on the

issue.

In some of the cases cited by petitioners, there existed

a judgment, consent decree, or settlement agreement that

supported the attorneys’ fee request. See Kilgour v. City of

Pasadena, 53 F.3d 1007, 1011 (9th Cir.1995) (“Kilgour

obtained an enforceable stipulated judgment requiring the

City to make substantial modifications to the Rose Bowl

press box.”); Beard v. Teska, 31 F.3d 942, 944 (10th

Cir.1994) (“In June 1990 the plaintiff class, Departments

and Sand Springs entered into a Settlement Agreement

under which the Education Department assumed the

responsibility. . . .”).' As this Court has explicitly

recognized, such relief establishes prevailing party status.

See Farrar, 506 U.S. at 111; Maher v. Gagne, 448 U.S.

122, 128 (1980). The prevailing party standard that the

court of appeals applied in this case is entirely consistent

with cases such as these, in which the courts merely applied

the catalyst theory to determine whether the plaintiff's

efforts were causally related to the relief obtained in the

litigation.

Thus, the rule of law applied by the Fourth Circuit to

determine prevailing party status is not substantively

different from that applied by this Court and a number of

lower court decisions cited by petitioners and their amici.

' Attorneys’ fees were also denied in several of the cases

that petitioners claim continue to recognize the catalyst

theory. See Payne v. Board of Education, 88 F.3d 392, 399-

400 (6th Cir.1996); Brown v. Local 58, Int'l Brotherhood of

Electrical Workers, 76 F.3d 762, 771-73 (6th Cir. 1996);

American Council of the Blind of Colorado, Inc. v. Romer,

992 F.2d 249, 251 (10th Cir.), cert. denied, 510 U.S. 864

(1993).

10

B. The Court Of Appeals’ Decision Is Not Contrary To

The Legislative History Or Policies Of Fee-Shifting

Statutes.

Nor does the standard applied by the court of appeals

contravene either the legislative history underlying

attorneys’ fee legislation or the policies upon which that

legislation is based. Evidence regarding congressional

intent to define “prevailing party” is not extensive.

Petitioners and their amici place heavy reliance on one

sentence in a congressional report, which cites to earlier

cases: “Moreover 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. Koper v. Esquire Realty Co., 523

F.2d 1005 (2nd Cir.1975), and cases cited therein [Blau v.

Rayette-Faberge, Inc., 389 F.2d 469 (2nd Cir. 1968); Gilson

v. Chock Full O'Nuts Corp., 331 F.2d 107 (2nd Cir.1964);

Thomas v. Honeybrook Mines, Inc., 428 F.2d 981 (3rd

Cir.1970), cert. den., 401 U.S. 911 (1971)]; Parham v.

Southwestern Bell Telephone Co., 433 F.2d 421 (8th

Cir.1970); Richards v. Griffith Rubber Mills, 300 F.Supp.

338 (D. Ore.1969); Thomas v. Honeybrook Mines, Inc.

[supra]; Aspira of New York, Inc. v. Board of Education of

the City of New York, 65 F.R.D. 541 (S.D.N.Y. 1975).”

S.Rep. No. 1011, 94th Cong., 2nd Sess. at 5 (1976). See

also H.R. Rep. No. 1558, 2nd Sess. at 7 (1976).? The

phrase “without formally obtaining relief’ is not further

explicated, except by citation to the cases. None of these

* Maher v. Gagne cites to this language for the proposition

that a party may prevail through a settlement as well as

through litigation, but the settlement in Maher resulted in

the entry of a court-enforceable consent decree. See 448

U.S. at 129.

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cases extends the concept of “informal relief” to include a

voluntary change in behavior on the part of the defendant

that does not alter the legal relationship between the parties,

is not legally enforceable, and is unaccompanied by any

judicial finding or admission that federal law has been

violated.

Kopet and the cases cited there, including Honeybrook

Mines, do not involve attorneys’ fees collected from a

wrongdoer at all. Rather, they involve variations of the

“common fund” doctrine, in which a litigant or lawyer who

recovers a common fund for the benefit of others is entitled

to a reasonable attorneys’ fee from the fund as a whole.

See, e.g., Boeing Co. v. Van Gemert, 444 U.S. 472, 477

(1980) (citing cases). Kopet, Blau, and Gilson dealt with

the rule under the Securities Exchange Act of 1934, 15

U.S.C. § 78p(b), that allows a stockholder to obtain

compensation for counsel fees from a corporation that has

succeeded in obtaining recovery of profits by insiders in

litigation brought by the stockholder or by the corporation

at the stockholder's behest. Kopet extended this rule to

situations in which the corporation has obtained substantial

non-monetary benefits from the litigation. Honeybrook

concerned a variant of the common fund doctrine and

involved the actions of an intervenor that forced the trustee-

plaintiffs to bring suits that were successful in obtaining

recovery. The court held that the intervenor’s counsel fees

should be paid by the trustee-plaintiffs from the resulting

fund.

While Parham and Richards involved suits brought

against alleged violators of federal law, the courts in both

cases held that the employer-defendants had violated anti-

discrimination laws. On that basis, the courts held that the

plaintiffs were entitled to attorneys’ fees, even though they

had obtained neither damages nor injunctive relief. See

Parham, 433 F.2d at 428-30; Richards, 300 F.Supp. at 340-

12

41. The court in Parham also instructed the district court to

retain jurisdiction to assure continuation of an anti-

discrimination policy. 433 F.2d at 429. Although the

employers had changed their policies after the suits were

filed, that factor was considered by the courts only as a

reason to withhold injunctive relief. Neither of these

decisions supports the award of fees in a case such as this,

and it is questionable whether they could withstand this

Court’s subsequent attorneys’ fees decisions in Hewitt and

Rhodes because neither plaintiff received any relief on the

merits that affected the behavior of the defendant toward the

plaintiff.

The last case cited, Aspira, merely confirmed that

plaintiffs who had obtained a long, detailed consent decree

providing concrete remedies for violations of constitutional

and statutory provisions were prevailing parties. In sum,

none of the cases cited by Congress supports the broad

prevailing party standard petitioners and their amici seek.

More general language in the same congressional

reports lend support to the proposition that in civil rights

cases, as opposed to common fund cases, “when a district

court awards counsel fees to a plaintiff, it is awarding them

against a violator of federal law.” Christiansburg Garment

Co. v. EEOC, 434 U.S. 412, 418 (1978). Fees are

necessary, for example, to ensure that “those who violate

the Nation’s fundamental laws are not to proceed with

impunity,” S.Rep. No. 1011, 94th Cong., 2nd Sess. at 2, and

thus are “an integral part of the remedy necessary to achieve

compliance with our statutory policies” that have enabled

“vigorous enforcement of modern civil rights legislation.”

Id. at 3,4. Fees also ensure that “private attorneys general”

will not be deterred from bringing actions “to vindicate the

fundamental rights here involved,” id. at 5; are incident to

“securing compliance with these laws,” id.; and are “part of

the remedies necessary to obtain such compliance.” /d.

13

Nothing in this legislative history suggests that

Congress intended attorneys’ fees to attach when no change

in the parties’ legal relationship occurred in the litigation

and no finding or admission of any civil rights violation has

ever been made. The core purpose of the “private attorney

general” theory endorsed by Congress is the enforcement of

important civil rights laws. The rule applied by the court of

appeals in this case directly advances that purpose at the

same time it discourages plaintiffs in actions such as this, in

which no violation of federal law has been found to exist,

from collecting fees for pursuing their “private vision of the

public good.” S-/, 6 F.3d at 172 (Wilkinson, J., dissenting).

Conversely, as Judge Wilkinson observed in S-/, the

catalyst theory discourages public officials from “taking

initiatives to revise outmoded ordinances or to improve

institutional conditions” because “the catalyst theory

empowers courts to award fees for any change in behavior

that occurs after the filing of a lawsuit, whether or not the

court could have ordered that change in conduct.” 6 F.3d at

172 (emphasis in original). Such an award not only directly

contravenes this Court’s express recognition that fee

responsibility and liability on the merits “go hand in hand,”

Kentucky v. Graham, 473 U.S. at 165, but it also “serves to

disable public officials, who may come to fear that

worthwhile changes may be retroactively linked to a lawsuit

and result in a hefty bill for attorneys’ fees.” S-/, 6 F.3d at

172. Government officials should not be either deterred

from or penalized for carrying out their responsibilities by

the threat of attorneys’ fee liability and the considerable

litigation that typically is necessary to establish that

liability.

The adverse impact that such litigation would have on

the operation of government cannot be overstated. If parties

such as petitioners can be considered prevailing parties,

notwithstanding the absence of a judgment, consent decree,

14

or enforceable settlement agreement, discovery can be

expected to include depositions of West Virginia legislators

seeking their reasons for repealing the self-preservation

requirement previously at issue in this case. Such discovery

is not likely to lead to any admissible evidence. Indeed,

“the legislative process is fraught with compromises,

competing concerns, and unspoken motives,” Foreman v.

Dallas County, 193 F.3d at 321, and so it is speculative at

best that the motivations of a legislative body in passing a

law can be either parsed so cleanly or even gleaned from the

testimony of any individual legislator.

More fundamentally, however, “[a]. request for

attorney’s fees should not result in a second major

litigation,” Hensley v. Eckerhart, 461 U.S. at 437, which

would be exactly the result of forcing the legislative branch

of State government to provide a federal court with a

specific explanation of the reasons underlying the exercise

of its law-making authority. It is difficult to envision a

greater intrusion by a federal court on such a fundamental

power of a State legislature. This encroachment serves no

public purpose, aids no goal of enforcing civil rights laws,

and runs afoul of the settled principle that “it simply is ‘not

consonant with our scheme of government for a court to

inquire into the motives of legislators.’”” Bogan v. Scott-

Harris, 523 U.S. 44, 55 (1998) (quoting Jenny vy.

Brandhove, 341 U.S. 367, 377 (1951)).

All citizens of this country, of course, are entitled to

seek vindication of their rights from any branch of our

democratic system of government, but an individual does

not become a prevailing party in litigation entitled to

attorneys’ fees when, as a result of the political rather than

judicial process, that relief is secured through the legislative

or executive branches from government officials and

entities that often are not even parties to the litigation. This

does not contravene any fee-shifting policy but simply

15

reflects the choices that are often available to aggrieved

individuals, as issues that are deemed legal in a judicial

proceeding are also frequently treated as political. While

courts represent one mechanism for addressing those issues,

other branches of government in many instances are, as this

case illustrates, the fora best equipped for establishing

solutions for the difficult and complicated public policy

questions that arise when institutional change is sought.

As set forth in petitioners’ brief, this case “pitted the

concept of ‘aging in place’ in a residential care home setting

against fire safety concerns of the State.” Br. at 4. The

origins of that dispute were part of a debate that “was not

unique to West Virginia” but rather “started on a national

level when the National Fire Protection Association (NFPA)

developed its 1985 Life Safety Code, to address the fire

safety needs of residential care homes.” /d. As a result of

this debate, which apparently was fueled by a national

survey showing that “a majority of states had abandoned the

concept of self-preservation for residential care homes,” id.

at 5-6, the West Virginia legislature enacted two bills

“related to amendments to the State Fire Code” and “the

self-preservation provisions in W.Va. §§ 16-SH-1.” Br. at

8 n.4. The enactment of these bills resulted in the

elimination of the self-preservation requirement that

petitioners contested and resolved the issues they raised in

this case.

Petitioners are certainly allowed to ask elected officials

to provide them with this type of relief, but they are not

entitled to attorneys’ fees when they are successful in doing

so. Rather, attorneys’ fees are appropriate only when the

benefits sought are conferred through litigation, by way of

a judgment, consent decree, or enforceable settlement

agreement. Fee-shifting statutes are not designed to reward

citizens for their lobbying efforts.

16

The court of appeals thus committed no error in

concluding that an award of attorneys’ fees is inappropriate

in this case. Even if this Court holds, however, that a

change in law or regulation can establish, by itself,

prevailing party status, that does not provide a reason for

overruling the standard established in S-/. Such a change

may provide a fourth route for obtaining fees, but it should

not call into question the court of appeals’ requirement that

no fees are otherwise available absent one of the three

criteria set forth in Farrar.

CONCLUSION

For the reasons stated, the judgment of the United

States Court of Appeals for the Fourth Circuit should be

affirmed.

Respectfully submitted,

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

MAUREEN M. DOVE

ANDREW H. BAIDA*

Assistant Attorneys General

200 St. Paul Place, 20th Floor

Baltimore, Maryland 21202

(410) 576-6318

Counsel for Amici States

*Counsel of Record

December 20, 2000