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

De c - No. 99-1848

IN THE

Supreme Court of the United States

TET FO poco

BLUCKILANNON BOARD AND CARE HOME. INC... ef a/..

Petitioners.

Vv.

WEST VIRGINIA DEPARTMENT OF HEALTH AND HUMAN

RESOURCES. ef al...

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF THE NATIONAL CONFERENCE OF

STATE LEGISLATURES, NATIONAL LEAGUE OF

CITIES, NATIONAL ASSOCIATION OF COUNTIES,

U.S. CONFERENCE OF MAYORS, INTERNATIONAL

CITY/COUNTY MANAGEMENT ASSOCIATION, AND

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

JACQUELINE G. COOPER RICHARD RUDA *

SIDLEY & AUSTIN Chiet Counsel

1722 Eye St... N.W. JAMES I. CROWLEY

Washington, D.C. 20006 STATE AND LOCAL LEGAL

(202) 736-8000 CENTER

444 North Capitol Street, N.W.

PAUL J. WATFORD Suite 345

SIDLEY & AUSTIN Washington, D.C. 20001

555 W. Filth Street (202) 434-4850

Los Angeles, CA 90013

(213) 896-6000

Counsel of Record tor

the Amici Curiae

WILSON-EPES PRINTING Co., INC (202) 789-0096 -— WASHINGTON, D. C. 20001

EST AVAILABLE COPY j

QUESTION PRESENTED

Whether attorney’s fees may be awarded to civil rights

plaintiffs where there was no judgment, consent decree, or

settlement in their favor and the case was mooted by the

legislative action of non-parties without any determination as

to whether the defendants violated federal civil rights laws,

(i)

TABLE OF CONTENTS

ee UREN PO UII cncassssessccnscecsscassssassscsssccesseesses

Se Gay TEED cxccncccnnscersscsesscmssssscesesesesece

INTEREST OF THE AMICI CURIAE .........ccccccceeeseeeneees

SEITE arncccsnncassecasnesasessncnsnensscesscsssseresscscsssesascessess

EEPEIEEEI TS cccnsssseecsscnssnsessssssscsssssssncessssenscesssssoscsesctiiipers

THE CATALYST THEORY IS INCO?.JIS-

TENT WITH THE PLAIN LANGUAGE,

PURPOSE, AND LEGISLATIVE HISTORY OF

THE ATTORNEY ’S FEES STATUTEG.................

A. Congress Authorized Attorney’s Fee Awards

Only Against Violators Of Federal Law ...........

B. The Catalyst Theory Is Inconsistent With The

Plain Language Of Attorney’s Fees Statutes,

And Is Therefore Invalid, Because It Does

Not Require A Determination That The

Defendant Violated Federal Law...............:00000+

EVEN IF THIS COURT CONCLUDES THAT

THE CATALYST THEORY IS VALID AS A

GENERAL MATTER, IT SHOULD AFFIRM

THE DECISION BELOW AND HOLD THAT

THE CATALYST THEORY MAY NOT PRO-

PERLY BE APPLIED IN CASES RENDERED

MOOT BY LEGISLATIVE ACTION ..............c0000

A. The Catalyst Theory Does Not Provide A

Workable Standard To Determine Whether A

Plaintiff's Lawsuit Has “Caused” The Passage

Or Repeal Of Legislation..............:cssccccseeeeseees

(iii)

iv

TABLE OF CONTENTS—Continued

Page

B. The Catalyst Theory Requires Impermissible

Judicial Intrusion Into The Legislative Proc-

esses Of State And Local Governments ...........- 24

CONCLUSION .......00-0cccceseccsscccsssvssseeeeesnecsencsssnnsssnnssnnnees 27

Vv

TABLE OF AUTHORITIES

CASES : Page

Alioto v. Williams, 450 U.S. 1012 (1981).............. 18

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

ae Ce Se ee eneneretnsitnensnaresundinnnenniemauns 8

American Constitutional Party v. Munro, 650

Fa CGD UNTED cccccnsiennennnntinnenitninentitenante 23

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

992 F.2d 249 (10th Cir. 1993) ..............cccccsecseees 17

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

ae Gr ee Ce ee rcamntatuiniessnnemennienieannnntinn 16

Bogan v. Scott-Harris, 523 U.S. 44 (1998)............ 25

Brown v. Gaston County Dyeing Mach. Co., 457

Po 13

Brown v. Griggsville Comty. Unit Sch. Dist. No.

eri | te le . | en 17

Chambers v. Nasco, Inc., 501 U.S. 32 (1991) ....... 27

Christiansburg Garment Co. v. EEOC, 434 U.S.

Fie Gp ee orrencnsetensnsnpencsernemiiemantaiensinnenines 6, 9-10, 14

Citizens Against Tax Waste v. Westerville City

Sch., 985 F.2d 255 (6th Cir. 1993) ..........cccceeeeeee 16, 22

Farrar v. Hobby, 506 U.S. 103 (1992) 0.0.2.0... passim

Foreman v. Dallas County, 193 F.3d 314 (Sth

ER, GUE nesenenssnsonnionnnemmnsesmentntepeninianeatacasiente 17,21, 23

Hanrahan v. Hampton, 446 U.S. 754 (1980)......... 9,11

Hensley v. Eckerhart, 461 U.S. 424 (1983)........... 8-9

Hewitt v. Helms, 482 U.S. 755 (1987)............. 2,9, 14, 15

Hishon v. King & Spaulding, 467 U.S. 69 (1984) . 19

Kilgore v. City of Pasadena, 53 F.3d 1007 (9th

Eas SUE hcnsctsnectesiensnanietiitnnnieenentiiniiapamnastaminennapammasceses 24

Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir.

Usa Ui cciemsdgensicensieatnnetnanenincaniednnaninnnbiniiiinniieaduiads 13

Little Rock Sch. Dist. v. Pulaski, 17 F.3d 260 (8th

eile SU llcsninnieenichienensensnhinintapainiaiaanaiiampsinminimmaniuaeay 16, 18

Maher v. Gagne, 448 U.S. 122 (1980)...............00. 10

Marhbley v. Bane, 57 F.3d 224 (2d Cir. 1995)........ 21

vi

TABLE OF AUTHORITIES—Continued

Page

Milton v. Shalala, 17 F.3d 812 (Sth Cir. 1994)...... 22

Morris v. City of W. Palm Beach, 194 F.3d 1203

Uo \}¢ 4.) 2 16, 17, 21, 22

Nadeau v. Helgemoe, 581 F.2d 275 (ist Cir.

_ 16

New Hampshire v. Adams, 159 F.3d 680 (1st Cir.

DEED ccccennescsnssnnscasssnnsserssmssnntennmnsnssssenimentnenneat 16, 21, 22

Newman v. Piggie Park Enters., Inc., 390 U.S.

en 9

Parham v. Southwestern Bell Tel. Co., 433 F.2d

i lek 11, 12, 12-13, 13

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

Dev., 988 F.2d 236 (1st Cir. 1993) ........cccceeeeees 18

Payne v. Board of Educ., 88 F.3d 392 (6th Cir.

a oe 16, 21

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

CO 0. 13

Ross v. Horn, 598 F.2d 1312 (3d Cir. 1979).......... 22

Ruckelshaus vy. Sierra Club, 463 U.S. 680

Ee 18-19, 19

S-1 and S-2 v. State Bd. of Educ., 6 F.3d 160 (4th

Cir. 1993), rev'd, 21 F.3d 49 (4th Cir. 1994)..... passim

S-1 and §-2 v. State Bd. of Educ., 2\ F.3d 49 (4th

8 4,5, 18, 24

Spallone vy. United States, 493 U.S. 265 (1990)..... 25

Tenney v. Brandhove, 341 U.S. 367 (1951)........... 25

Texas State Teachers Ass'n v. Garland Indep.

Sch. Dist., 489 U.S. 782 (1989) ....ccccccceceeeeeeeees 24

Zinn v. Shalala, 35 F.3d 273 (7th Cir. 1994)......... 16

STATUTES

42 USC. § IDTSME) nnccereccccccecccccsccesccsccscsssccssssessese 8

Vii

TABLE OF AUTHORITIES—Continued

Page

eee 8

Se iaircntieniiitcliiinistiicentiaiaitil, 8, 12

42 U.S.C. §$§ 3601 ef S0q.........ccccccccececcccessscsceceseses 3

So 4,8

ee I aiden iieeaibinniaiiitie 3

iy aera insiileinenieniiintcriilaibctantataealiatataiiae 4,8

LEGISLATIVE HISTORY

H.R. Rep. No. 101-485, pt. 2 (1990), reprinted in

et | Se 8

H.R. Rep. No. 100-711 (1988), reprinted in 1988

SS ECL aS I OD 8

H.R. Rep. No. 94-1558 (1976) .....cccccccccessecessseseeeees passim

S. Rep. No. 94-1011 (1976) ..o.cccccccccccceceseceeeees 8,9, 11, 18

RULES

vl | Tce ae 27

8 YS 19

OTHER AUTHORITIES

Random House Dictionary of the English

Language (2d ed. 1987) .........cscscesesssecsesescseseenes 9

Alan Rosenthal, Legislative Life: People, Pro-

cess, and Performance in the States (1981)....... 22, 25

IN THE

Supreme Court of the United States

No, 99-1848

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

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 THE NATIONAL CONFERENCE OF

STATE LEGISLATURES, NATIONAL LEAGUE OF

CITIES, NATIONAL ASSOCIATION OF COUNTIES,

U. S. CONFERENCE OF MAYORS, INTERNATIONAL

CITY/COUNTY MANAGEMENT ASSOCIATION, AND

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include state,

county, and municipal governments and officials throughout

the United States.' Amici and their members have a vital

' Pursuant to this Court's Rule 37.6, amici state that this brief was not

authored in whole or in part by counsel for a party, and no person or

2

interest in legal issues that affect the exposure of state and

local governments to attorney’s fee awards and that affect the

exposure of state and local legislative decision-making

processes to judicial scrutiny. Amici have submitted briefs in

two other attorney’s fees cases before this Court, Farrar v.

Hobby, 506 U.S. 103 (1992), and Hewitt vy. Helms, 482 U.S.

755 (1987).

Amici have a compelling interest in the issue presented in

this case because their members are often defendants in cases

involving fee-shifting statutes and because they believe that

the catalyst theory of awarding attorney's fees, which was

rejected by the court of appeals below, is inconsistent with

the plain language, purpose, and legislative history of

attorney's fees statutes. It also is inherently unworkable and

exposes state and local governments to potentially unlimited

liability for attorney’s fees as well as unwarranted and

impermissible judicial intrusion into — their legislative

processes.

Because of the importance of this issue to state and local

governments, amici submit this brief to assist the Court in its

resolution of this case.

entity, other than the amici and their counsel made a monetary

contribution to the preparation or submission of this brief. The parties”

written consents to the filing of this brief have been filed with the Clerk of

the Court.

7

ee

3

STATEMENT

|. Petitioners filed the instant lawsuit to challenge

provisions of the West Virginia Code and accompanying

regulations under the Fair Housing Amendments Act

(“FHAA”), 42 U.S.C. §§ 3601 ef seg., and the Americans

with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.

The challenged provisions required persons residing in

residential board and care homes, such as _ petitioner

Buckhannon Board & Care Home, Inc., to be capable of

“self-preservation,” i.e., to be capable of evacuating

themselves without prompting in situations involving

imminent danger such as fires.

The gravamen of the complaint was that defendants

engaged in unlawful discrimination, including intentional

discrimination, against the handicapped and the aged by

enforcing the self-preservation requirement. See, e.g., J.A. 83

(Count I, 4 54) (“Defendants’ actions as described above are

taken with the intent to discriminate and have the effect of

discriminating against persons with handicaps” in violation of

the FHAA); J.A. 86 (Count II, § 66) (“Defendants’ actions as

described above are taken with the intent to discriminate and

have the effect of discriminating against persons with

disabilities and the aged” in violation of the ADA). The

named defendants included the West Virginia Department of

Health and Human Resources, the Office of Health Facility

Licensure and Certification, the West Virginia Fire

Commission, the West Virginia Office of the State Fire

Marshal, the West Virginia State Board of Examiners for

Registered Professional Nurses, the State of West Virginia

and various state officials in their official capacities,

including the Governor, the State Fire Marshal, and the

* This statement is based on petitioners’ amended complaint, which is

reproduced in the Joint Appendix (“J.A.”) 67-102, and on the opinions of

the district court and court of appeals reproduced in the Petition Appendix

(“Pet. App.”).

4

individual State Fire Commissioners. J.A. 70-71. The West

Virginia Legislature was not a named defendant, nor were

any individual members of the West Virginia House or

Senate. The complaint sought a judgment declaring West

Virginia’s self-preservation requirement to be unlawful under

the ADA and the FHAA and an injunction prohibiting tts

enforcement.”

During the litigation, the West Virginia Legislature enacted

legislation abolishing the “self-preservation coquaeenent. In

light of this development, various defendants filed motions to

dismiss the lawsuit as moot. These motions were granted.

Because the lawsuit was dismissed as moot, the District Court

made no findings as to whether any of the defendants violated

the FHAA or ADA as alleged in the complaint.

2. The District Court also denied petitioners’ request for

attorney’s fees. Pet. App. AI7-A19. Petitioners had

requested fees under the “catalyst theory,” arguing that they

are “prevailing” parties entitled to fees under the ADA and

FHAA.* The District Court explained that 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. id. at All.

The District Court held that this argument was not viable

because the Fourth Circuit had rejected the catalyst theory in

S-1 and S-2 v. State Bd. of Educ., 2\ F.3d 49 (4th Cir. 1994)

(en banc). Pet. App. Al7. Because the District Court con-

* Petitioners originally sought compensatory and punitive damages, but

later abandoned this claim. Pet. App. All.

‘ The ADA provides that a court “in its discretion, may allow the

prevailing party, other than the United States, a reasonable attorney's fee,

including litigation expenses, and costs.” 42 U.S.C . § 12205. The are

similarly provides that a court “in its discretion, may allow the porenng

party, other than the United States, a reasonable attorney's fee and costs.

42 U.S.C. § 3613(c)(2).

SE —————

5

cluded that the catalyst theory was not viable, it did not make

any findings concerning whether the instant lawsuit was a

factor in the legislature’s decision to abolish the self-

preservation requirement, much less whether any member of

either house of the legislature even knew about this lawsuit.>

3. The court of appeals affirmed the District Court’s denial

of fees in an unpublished, per curiam opinion. Pet. App. A4-

A8. The panel concluded that it was bound by the en banc

court's rejection of the catalyst theory in S-/ and S-2, and that

the District Court had properly applied that decision. /d. at

A8.

In S-/ and S-2, the en banc court held that “[t}he fact that a

lawsuit may operate as a catalyst for postlitigation changes in

a defendant’s conduct cannot suffice to establish plaintiff as a

prevailing party.” 21 F.3d at 51. The court “adoptfed] as its

own” the reasoning contained in the dissenting panel opinion

of Judge Wilkinson. /d. Judge Wilkinson’s dissenting panel

opinion identified four reasons for rejecting the catalyst

theory: (1) it “conflicts with the plain language” of provisions

limiting fee awards to prevailing parties; (2) it “ignores the

Supreme Court’s recent decisions,” including Farrar y.

Hobby, 506 U.S. 103 (1992); (3) it “engenders confusion and

unnecessary litigation” because it fails to set a coherent

standard; and (4) it “discourages public officials from taking

initiatives to revise outmoded ordinances or to improve

institutional conditions” because they “may come to fear that

worthwhile changes may be retroactively linked to a lawsuit

* The District Court also denied petitioners’ request that it invoke its

inherent power to award attorney's fees pursuant to the bad faith

exception to the American rule, premised upon the alleged bad faith of

two of the defendants, the State Fire Marshal and the State Fire

Commission. Pet. App. Al8-A19. In a later order, the District Court

imposed Rule 11 sanctions in the amount of $3,252 on the State Fire

Marshal, the State Fire Marshal's office, and the State Fire Commission.

J.A. 142-48.

6

and result in a hefty bill for attorneys’ fees.” S-/ and S-2 v.

State Bd. of Educ., 6 F.3d 160, 170-72 (4th Cir. 1993), rev'd,

21 F.3d 49 (4th Cir. 1994) (en banc).

SUMMARY OF ARGUMENT

l. The catalyst theory employed by the lower courts is

inconsistent with the plain language, purpose, and legislative

history of the attorney’s fees statutes. Those statutes

authorize the award of attorney’s fees to “prevailing” parties.

This Court has held that plaintiffs “prevail” when they

succeed on the merits of a significant issue in litigation.

Thus, a court is authorized to award attorney’s fees under the

prevailing party provisions only when “it is awarding them

against a violator of federal law.” Christiansburg Garment

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

Ordinarily, a plaintiff satisfies this requirement by

obtaining a judgment, consent decree, or settlement. See,

e.g., Farrar v. Hobby, 506 U.S. 103, 111 (1992). The

legislative history suggests only one other limited scenario

where a plaintiff may be deemed to have prevailed without

obtaining formal relief: where the plaintiff has secured a

ruling on the merits and the defendant’s own actions render

the need for court-ordered relief unnecessary.

The catalyst theory is inconsistent with the plain language

of the attorney's fees statutes and congressional intent, and is

therefore invalid, because it does not require a determination

that the plaintiff's claims were meritorious, i.e., that the

defendant violated federal law. Under the catalyst theory,

courts may award attorney’s fees when a defendant’s

voluntary actions, or the actions of non-defendant third

parties such as legislative bodies, render a case moot, based

merely on a finding that the plaintiff's claims were not

frivolous. In fact, courts have awarded attorney's fees under

the catalyst theory to plaintiffs who lost on the merits, or who

would have lost had the case proceeded to judgment.

SS -— —_<— eee we

—

F< So ees Fae HT -

—

— _ OE

J

Congress, however, intended fee awards to be available only

where the plaintiff's claims were in fact meritorious and the

relief the plaintiff obtained was necessary to vindicate

federally protected rights. Accordingly, the Fourth Circuit

correctly concluded that the catalyst theory is invalid.

Il. Even if this Court conciudes that the catalyst theory is

valid as a general matter, it should hold that the doctrine may

not properly be applied in cases that are rendered moot by

legislative action. In the context of legislative action, the

Causation inquiry courts must undertake under the catalyst

theory is incoherent and utterly unworkable. It is impossible

for courts to isolate the impact that a particular lawsuit may

have had on a legislative decision from the innumerable other

influences that come into play whenever a legislative body

deliberates and takes action. The incoherence of the inquiry

creates uncertainty for state and local governments

concerning their potential liability for attorney’s fees, which

interferes with their ability to plan for and provide needed

services to the public with limited funds.

Moreover, the judicial inquiry into legislative motive that

the catalyst theory demands constitutes an impermissible

intrusion into the legislative processes of state and local

governments. This intrusion threatens to chill the passage of

worthwhile reforms.

ARGUMENT

I. THE CATALYST THEORY IS INCONSISTENT

WITH THE PLAIN LANGUAGE, PURPOSE,

AND LEGISLATIVE HISTORY OF THE AT-

TORNEY’S FEES STATUTES.

As the court of appeals below correctly recognized, the

catalyst theory employed by other circuits for awarding

attorney's fees is essentially a judicial creation that has no

mooring in the language or purpose of the attorney's fees

statutes. In authorizing attorney’s fee awards under the civil

8

rights statutes to “prevailing” parties, Congress authorized

fees only when there is some basis for finding that the

plaintiff has a meritorious civil rights claim, ‘.e., that the

defendant has violated federal law. The catalyst theory

advocated by petitioners and their amici, however, permits

the award of attorney’s fees against a defendant who has

never been shown to have violated any law. Accordingly, the

catalyst theory cannot be reconciled with the text of the

statutory provisions and, therefore, is invalid,

A. Congress Authorized Attorney’s Fee Awards

Only Against Violators Of Federal Law.

The general rule in American courts is that each party must

bear its own attorney’s fees. Alyeska Pipeline Serv. Co. v.

Wilderness Soc’ y, 421 U.S. 240, 247 (1975). Congress may

abrogate that rule by statute. /d. at 269. In the absence of

congressional authorization, however, federal courts have no

power to devise their own fee-shifting rules, regardless of

how desirable from a policy standpoint the shifting of fees

may seem in a particular context. /d.

Congress has authorized attorney’s fee awards under the

FHAA and ADA, but only to a “prevailing party.” 42 U.S.C.

§ 3613(c)(2) (FHAA); 42 U.S.C. § 12205 (ADA). The fee-

shifting provisions of these statutes are modeled on the

attorney's fees provision contained in 42 U.S.C. § 1988. See

H.R. Rep. No. 101-485, pt. 2, at 140 (1990), reprinted in

1990 U.S.C.C.A.N. 303, 423; H.R. Rep. No. 100-711, at 23

(1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2184.

Congress patterned section 1988, in turn, on the attorney's

fees provisions of Titles Il and VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000a-3(b) and 2000e-5(k), and the

Voting Rights Act Amendments of 1975, 42 U.S.C.

§ 1973(e). See S. Rep. No. 94-1011, at 2 (1976); H.R. Rep.

No. 94-1558, at 5 (1976).

The Court has held that plaintiffs “prevail” within the

meaning of section 1988 when they “succeed on any

9

significant issue in litigation which achieves some of the

benefit the parties sought in bringing suit.” Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983). That interpretation is

compelled by the plain language of the statutes, since “to

prevail” generally means to win or succeed. Random House

Dictionary of the English Language 1534 (2d ed. 1987).

Thus, this Court consistently has held that a “prevailing”

plaintiff is one who advances a meritorious civil rights claim.

See Hanrahan v. Hampton, 446 U.S. 754, 758 n.4 (1980) (per

curiam) (attorney's fees provisions “permit the award of

counsel fees only to a party who has prevailed on the merits

of a claim”) (emphasis added). See also Farrar v. Hobby,

506 U.S. 103, 111 (1992) (“to qualify as a prevailing party, a

civil rights plaintiff must obtain at least some relief on the

merits of his claim”) (emphasis added); Hewitt v. Helms, 482

U.S. 755, 760 (1987) (“[rlespect 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”)

(emphasis added).

This Court's interpretation of the term “prevailing party” to

require success on the merits of a claim also is in accordance

with the congressional purpose underlying fee-shifting

Statutes. Congress enacted these statutes to encourage those

whose civil rights have been violated to seek judicial relief,

particularly those who cannot afford to hire private counsel.

See Newman vy. Piggie Park Enters., Inc., 390 U.S. 400, 402

(1968); H.R. Rep. No. 94-1558, at 1. Congress emphasized

that attorney’s fees provisions are necessary to ensure that

“those who violate the Nation's fundamental laws” do not

“proceed with impunity.” S. Rep. No. 94-1011, at 2. By

requiring that plaintiffs achieve some success on the merits of

their claims before being entitled to an award of attorney's

fees, Congress deliberately narrowed the class of defendants

against whom such fee awards could be imposed. Thus, as

this Court has forcefully stated, “when a district court awards

counsel fees to a prevailing plaintiff, it is awarding them

10

against a violator of federal law.” Christiansburg Garment

Co. v. EEOC, 434 U.S. 412, 418 (1978) (emphasis added).

The Court’s decisions have strictly defined the

circumstances in which a plaintiff may be deemed to have

succeeded on the merits of a significant issue in litigation.

Ordinarily, a plaintiff prevails in litigation by obtaining a

judgment, consent decree, or settlement. See, e.g., Farrar,

506 U.S. at 111. A judgment for the plaintiff obviously

reflects a court’s determination that the plaintiff's claims are

meritorious. Likewise with respect to consent decrees and

settlements that afford plaintiffs the relief they sought:

though such agreements do not always contain an explicit

admission of wrongdoing by the defendant, Maher v. Gagne,

448 U.S. 122, 126 n.8 (1980), courts have sensibly treated

them as a plaintiff victory that indicates the likely merits of

the plaintiff's claims. At the very least, when a defendant

voluntarily affords the plaintiff the requested relief through

the mechanism of a consent decree or settlement, the

defendant chooses to forego his right to contest the merits of

the plaintiff's allegations of civil rights violations. Moreover,

in the case of settlements and consent decrees, there can be no

doubt that the defendant's voluntary actions were prompted

by the plaintiff's lawsuit. Thus, the Court has properly

concluded in this context that the prevailing party

requirement does not condition an award of fees “on a

judicial determination that the plaintiff's rights have been

violated.” /d. at 129.

The legislative history of section 1988 confirms Congress’

purpose to limit attorney’s fee awards to plaintiffs who have

vindicated the civil rights laws by advancing meritorious

claims against blameworthy defendants. The House and

Senate Reports suggest only two scenarios in which an award

of attorney's fees would be proper in the absence of a final

judgment, consent decree, or settlement. Significantly, in

both scenarios, Congress made plain that a favorable ruling

on the merits of at least some of the ‘plaintiff's claims is a

prerequisite for the award of attorney's fees.

With respect to the first such scenario, the Senate Report

states: “In appropriate circumstances, counsel fees . . . may

be awarded pendente lite. Such awards are especially

appropriate where a party has prevailed on an important

matter in the course of litigation, even when he ultimately

does not prevail on all issues.” S. Rep. No. 94-1011, at 5

(citation omitted) (emphasis added); see also H.R. Rep. No.

94-1558, at 8. The Court addressed this legislative history in

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

limited its reach, concluding that “Congress intended to

permit the interim award of counsel fees only when a party

has prevailed on the merits of at least some of his claims,”

whether in the trial court or on appeal. /d. at 757-58

(emphases added). The Court rejected the claim that

plaintiffs who won reversal of a directed verdict against them

could be deemed prevailing parties because they had not

established their entitlement to relief on the merits of any of

their claims. /d. at 758-59. Only where a plaintiff has

prevailed on the merits of a claim, the Court stated, “has there

been a determination of the ‘substantial rights of the parties,”

which Congress determined was a necessary foundation for

departing from the usuai rule in this country that each party is

to bear the expense of his own attorney.” /d. at 758.

The legislative history of section 1988 suggests only one

other scenario in which a plaintiff might be entitled to an

award of attorney's fees in the absence of a final judgment,

consent decree, or settlement. The Senate Report states that

“parties may be considered to have prevailed when they

vindicate rights . . . without formally obtaining relief.” S.

Rep. No. 94-1011, at 5. The Senate Report then cites a

number of cases, including Parham v. Southwestern Bell Tel.

Co., 433 F.2d 421 (8th Cir. 1970), presumably as illustrative

examples. Similarly, the House Report observes that, “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. No. 94-

1558, at 7. The House Report also cites Parham as an

illustration of this principle.

The Parham case warrants closer examination because

petitioners and their amici rely heavily on the language from

the House and Senate Reports as support for the catalyst

theory. In addition, a proper understanding of Parham is

important because it is often cited as the case that first

articulated the catalyst theory. See Pet. Br. 21. Far from

supporting petitioners’ argument, Parham confirms that the

catalyst theory is inconsistent with congressional intent.

Parham was a Title VII case in which the plaintiff sought

damages and injunctive relief, both individually and on behalf

of a class, to remedy the defendant-employer’s racially

discriminatory employment practices. The plaintiff did not

obtain any relief on his individual claims, as both the district

court and the court of appeals found that the defendant had

refused to hire the plaintiff for legitimate, non-discriminatory

reasons. 433 F.2d at 428. However, the court of appeals

concluded—on the merits—that the plaintiff had established

a Title VII violation with respect to the class claims, in light

of the evidence demonstrating that the defendant had

unlawfully refused to hire black employees between 1965 and

1967. Id. at 426.

The court of appeals nonetheless agreed with the district

court that no injunctive relief was warranted because by the

time of trial the defendant had voluntarily amended its hiring

policies to eliminate the past discriminatory practices. /d. at

429. Although the plaintiff had not obtained formal relief on

any of his claims, the court of appeals held that he was

entitled to an award of attorney's fees as a “prevailing party”

under 42 U.S.C. § 2000e-5(k). The court justified the award

on the ground that the plaintiff had “prevailed in his

— ee OO al

13

contentions of racial discrimination against blacks generally

prior to February, 1967,” and his lawsuit had “acted as a

catalyst which prompted the [defendant] .to take action

implementing its own fair employment policies and seeking

compliance with the requirements of Title VII.” 433 F.2d at

429-30. Thus, attorney’s fees were awarded in Parham

because the court found that the plaintiff had advanced a

meritorious civil rights claim (that is, that the defendant had

violated the civil rights laws), even though the court

ultimately concluded that no judicial action was necessary to

remedy the violation.°

The legislative history’s reliance on Parham thus indicates

that Congress contemplated awards of attorney’s fees in the

absence of a judgment, consent decree, or settlement only in

the limited circumstance when plaintiffs have obtained a

ruling on the merits of at least some of their claims. Indeed,

the language of the House Report quoted prominently in the

briefs of petitioners and their amici (Pet. Br. 24; U.S. Br. 22;

Public Citizen Br. 10-11; Friends of the Earth Br. 14)

confirms this view by emphasizing that a court may award

fees after a defendant voluntarily ceases an “unlawful

practice,” H.R. Rep. No. 94-1558, at 7 (emphasis added),

even though the court might conclude, as a matter of equity,

that no formal injunctive relief is needed—an exact

description of Parham itself. Since federal courts do not

* The other civil rights cases cited in the House and Senate Reports in

which plaintiffs recovered attorney's fees in the absence of obtaining

formal reliet all involved plaintiffs who had won favorable rulings on the

merits. See Brown v. Gaston County Dyeing Mach. Co., 457 F.2d 1377,

1383 (4th Cir. 1972) (plaintiff proved Title VII violation with respect to

class claims); Lea v. Cone Mills Corp., 438 F.2d 86, 87 (4th Cir. 1971)

(plaintifts proved Title VII violation); Richards v. Griffith Rubber Mills,

300 F. Supp. 338, 340-41 (D. Or. 1969) (district court found Title VII

violation). The same is true with respect to all of the Title VII cases cited

by the Solicitor General as examples of the catalyst theory's early

application. See U.S. Br. 22 n.11.

I4

issue injunctions except to remedy or prevent violations of

the law, this passage merely reiterates Congress’ intent to

impose attorney's fee awards only on Gerenenines who are

“violator[s}] of federal law.” Christiansburg Garment Co.,

434 U.S. at 418.

Petitioners and their amici contend that language in this

Court’s decision in Hewitt v. Helms, 482 U.S. 755 (1987),

supports the catalyst theory because it suggests that Congress

contemplated an additional category of cases beyond those

involving judgments, consent decrees, and settlements in

which attorney’s fees may be awarded. Specifically, peti-

tioners and their amici quote the following passage from the

Court's opinion (Pet. Br. 25; U.S. Br. 12; Public Citizen Br.

11-12; Friends of the Earth Br. 5):

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 defendant that affords the plaintiff all or some of

the relief he sought through a judgment—v.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.

Hewitt, 482 U.S. at 760-61.

This Court, of course, has never approved the award of

attorney's fees in any case that did not involve a judgment,

consent decree, or setthkement. More importantly, as the

foregoing analysis of the legislative history demonstrates,

Congress contemplated the award of attorney's fees in the

absence of a judgment, consent decree, or settlement only in

an extremely narrow and limited category of cases: where the

court determines that the plaintiff has advanced a meritorious

civil rights claim, but the defendant's own actions render the

need for court-ordered relief unnecessary. Accordingly, in

order to be consonant with congressional intent, the language

15

in Hewitt concerning voluntary action by a defendant must be -

construed to authorize attorney’s fees in the absence of a

judgment, consent decree, or settlement only when the

plaintiff has otherwise demonstrated a meritorious civil

rights claim. That in fact was the case in Hewitt, where the

plaintiff won a ruling from the court of appeals that his due

process righi> had been violated when he was convicted of a

misconduct charge based solely on the word of an

unidentified informant. /d. at 758. Any other construction of

the language in Hewitt would ignore this Court’s holding that

Congress authorized awards of attorney’s fees only against

violators of federal law. Accordingly, the language in Hewitt

does not support the validity of the catalyst theory which, as

demonstrated below, authorizes attorney's fee awards in

circumstances where there has been no determination that the

defendant violated any law.

B. The Catalyst Theory Is Inconsistent With The

Plain Language of Attorney’s Fees Statutes,

And Is Therefore Invalid, Because It Does Not

Require A Determination That The Defendant

Violated Federal Law.

The catalyst theory employed by a majority of the circuits

today traces its roots to cases like Parham, but it extends the

circumstances in which attorney's fees may be awarded in the

absence of a judgment, consent decree, or settlement far

beyond the narrow and limited circumstances described in

that case. Indeed, the Solicitor General declines even to use

the term “catalyst theory,” candidly acknowledging that in

reality it is a “shorthand phrase” that “embraces several

different approaches to the question presented here.” U.S. Br.

8 n.2. Because the catalyst theory indeed encompasses many

different “approaches,” it is hard to discern any clear limits or

boundaries to the theory as applied by the lower courts.

In practice, the catalyst theory now authorizes attorney's

fees in any case in which post-complaint action by the

te)

defendant (or even by non-defendant third parties such as

legislative bodies) has rendered the plaintiff's request for

relief moot, regardless of whether the district court made any

determination regarding the merits of the plaintiffs claims.

See, e.g., Morris v. City of W. Palm Beach, 194 F.3d 1203

(11th Cir. 1999) (city amended challenged parade ordinance;

no ruling that original ordinance violated First Amendment);

Baumgartner v. Harrisburg Hous. Auth., 21 F.3d 541 (3d Cir.

1994) (local housing authority amended development plan to

which public housing tenants objected; no ruling that original

plan violated federal housing laws); Citizens Against Tax

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

(local school board amended challenged policy regarding

speakers at public meetings; no ruling that previous policy

violated First Amendment). The lower courts have thus

created a world that Congress never contemplated, where

attorney's fees are routinely awarded to plaintiffs who have

never established that the relief they obtained was necessary

to vindicate federal rights.

Over the past 25 years, lower courts have developed and

followed a two-pronged test to govern application of the

catalyst theory, although there is considerable variation in the

precise wording of each prong. Under the first prong of the

test, courts typically attempt to determine whether there was a

“causal connection” between the plaintiff's lawsuit and the

relief obtained. See, e.g., New Hampshire v. Adams, 159 F.3d

680, 685 (Ist Cir. 1998); Payne v. Board of Educ., 88 F.3d

392, 397-98 (6th Cir. 1996). Under the second prong of the

test, courts typically permit the award of attorney's fees so

long as the plaintiff's claims are not “frivolous, unreasonable,

or groundless.” See, e.g., Zinn v. Shalala, 35 F.3d 273, 274

(7th Cir. 1994); Little Rock Sch. Dist. v. Pulaski, 17 F.3d 260,

262 (8th Cir. 1994); Nadeau v. Helgemoe, 581 F.2d 275, 281

(Ist Cir. 1978). This latter prong is ostensibly designed to

screen out cases in which the defendant agreed to afford the

plaintiff the requested relief simply to avoid the hassle or

<4

=

17

expense of litigation. See Brown v. Griggsville Comty. Unit

Sch. Dist. No. 4, 12 F.3d 681, 684 (7th Cir. 1993) (“it would

be odd to reward with attorney’s fees a plaintiff who had

induced the defendant to toss him a bone merely to avoid the

expense of defending against an unmeritorious suit”). One

circuit has established an even lower hurdle for the award of

attorney's fees, holding that fees may be awarded so long as

the defendant's voluntary action was “not a wholly gratuitous

response to an action that in itself was frivolous.” Morris,

194 F.3d at 1210. But see American Council of the Blind,

Inc. v. Romer, 992 F.2d 249, 250 (10th Cir. 1993) (plaintiff

must show that defendant's conduct in response to lawsuit

was “required by law’). ;

The catalyst theory cannot be squared with either the plain

language or purpose of the attorney’s fees statutes.

Essentially, the lower courts have jettisoned the requirement

that attorney's fees be awarded only against defendants who

have violated federal law. By focusing solely on whether the

plaintiff ultimately achieved his desired end (whether through

action of a defendant or not), and eliminating any requirement

that the court actually determine whether the plaintiff's civil

rights claims had merit, the catalyst theory flouts the

congressional purpose underlying the attorney's fees statutes

and leaves the doctrine with no anchor in the statutory

language.

The catalyst theory is particularly problematic and

inequitable when it is invoked against defendants who

contested the plaintiff's allegations, but were unable to obtain

a final ruling on the merits because the actions of a third

party rendered the case moot. In these situations, there can

be no pretense that the attorney’s fees were requested based

on a determination that the defendant violated federal law.

See, e.g., Foreman v. Dallas County, 193 F.3d 314, 318 (Sth

Cir. 1999) (state legislature passed law mooting plaintiffs’

claims; fees sought from county defendants); S-/ and S-2 vy.

State Bd. of Educ., 6 F.3d 160, 162 (4th Cir. 1993) (plaintiffs

18

settled with City Board of Education, mooting case; fees

sought against State Board of Education), rev'd, 21 F.3d 49

(4th Cir. 1994) (en bane). Cf. Alioto v. Williams, 450 U.S.

1012 (1981) (Rehnquist, J., dissenting from denial of

certiorari) (noting unfairness of awarding attorney's fees

against defendants who attempted to appeal preliminary

injunction but were unable to obtain ruling on validity of

injunction because case subsequently rendered moot).

The only sense in which some courts consider the merits of

the plaintiff's claims is by setting the threshold for fee

eligibility at non-frivolousness. But this standard falls far

short of what the prevailing party requirement mandates.

Congress intended attorney's fee awards to be available only

where the plaintiff's claims were in fact meritorious and the

relief the plaintiff obtained was necessary to vindicate

important federal rights. See S. Rep. No. 94-1011, at 2; H.R.

Rep. No. 94-1558, at 1. Yet the catalyst theory permits

district courts to award attorney's fees to plaintiffs who have

obtained their desired outcome through the voluntary action

of the defendant (or a non-defendant third party), regardless

of whether the court ultimately could have ordered that

change in conduct following a trial on the merits.

Indeed, courts have awarded attorney’s fees under the

catalyst theory to plaintiffs who lost on the merits, or would

have lost had the case proceeded to judgment. See Paris v.

United States Dep't of Hous. and Urban Dev., 988 F.2d 236

(Ist Cir. 1993) (fees awarded where court of appeals ruled

against plaintiffs on the merits, and Congress passed

legislation that overruled court of appeals’ decision); Little

Rock Sch. Dist. v. Pulaski, 17 F.3d 260 (8th Cir. 1994) (fees

awarded where district court stated it would have ruled

against plaintiffs on the merits had the case not been rendered

moot, because challenged actions of defendant school district

were lawful). Permitting an award of fees in such

circumstances means that “the defendant’s reward could be a

second lawyer's bill—this one payable to those who wrongly

19

accused it of violating the law.” Ruckelshaus v. Sierra Club,

463 U.S. 680, 692 (1983). Had “Congress intended such a

novel result . . . it would have said so in far plainer language

than that employed here.” /d. at 693-94,

Unlike petitioners, the Solicitor General recognizes the

problems raised by the catalyst theory in this regard, and

proposes that courts scrutinize a plaintiff's complaint to

determine whether the claims asserted would be capable of

withstanding a motion to dismiss under Rule 12(b)(6) of the

Federal Rules of Civil Procedure. U.S. Br. 27. As an initial

matter, it is notable that not a single circuit that awards

attorney's fees under the catalyst theory actually uses the

Solicitor General’s proposed test, and indeed the only

authority cited in support of the test is a student law-review

note. See id. at 27 n.16. More fundamentally, however, the

standard proposed by the Solicitor General does not render

the catalyst theory consistent with the statutory language. As

noted above, Congress intended to permit attorney's fee

awards only against defendants who have been determined to

be violators of federal law. Whether a plaintiff's complaint

has withstood a motion to dismiss (or could withstand a

motion to dismiss) obviously does not determine whether a

defendant actually violated the law. A motion to dismiss

merely tests the legal sufficiency of the plaintiff's allegations,

based on the assumption that the plaintiff will be able to

adduce facts to support those allegations. See Hishon v. King

& Spaulding, 467 U.S. 69, 73 (1984). A finding that a

plaintiff's claims could meet the very low threshold of

withstanding a motion to dismiss therefore is in no sense a

substitute for a determination that the plaintiff ultimately

would prevail following a trial on the merits. Thus, the test

proposed by the Solicitor General is no more adequate to

bring the catalyst theory in line with the statutory language

and congressional intent than the various standards currently

employed by the courts of appeals.

20

For the foregoing reasons, the catalyst theory employed by

the lower courts today cannot be reconciled with the plain

language or purpose of the attorney's fees statutes and,

therefore, is invalid. The Court should hold that, in the

absence of a judgment, consent decree, or settlement,

atiommey’s fees may be awarded only where the plaintiff

secures a favorable ruling on the merits and the defendant's

own actions have rendered the need for formal, court-ordered

relief unnecessary. Since petitioners did not obtain a

judgment, consent decree, or settlement in their favor and

there has been no determination that respondents violated

either the FHAA or the ADA, the District Court correctly

refused to award attorney's fees here.

Il. EVEN IF THIS COURT CONCLUDES THAT

THE CATALYST THEORY IS VALID AS A

GENERAL MATTER, IT SHOULD AFFIRM

THE DECISION BELOW AND HOLD THAT

THE CATALYST THEORY MAY NOT PROP-

ERLY BE APPLIED IN CASES RENDERED

MOOT BY LEGISLATIVE ACTION.

The Solicitor General candidly acknowledges, as he must,

that cases rendered moot by legislative action raise “particular

problems of proof’ under the catalyst theory because

legislatures may elect to change laws “for policy reasons

unrelated to pending litigation.” U.S. Br. 29 n.17. Amici

submit that the catalyst theory is not merely difficult to apply

in the context of legislative action, but that it is incoherent

and utterly unworkable. Further, the causation inquiry that

courts must undertake under the catalyst theory necessarily

leads to impermissible and intolerable judicial intrusion into

the legislative processes of state and local governments. For

these reasons, even if the Court concludes that the catalyst

theory is permissible in some form, it should hold that the

catalyst theory may not properly be applied in cases, such as

21

this one, where a lawsuit was rendered moot by legislative

action. The decision below should therefore be affirmed.

A. The Catalyst Theory Does Not Provide A

Workable Standard To Determine Whether A

Plaintiff's Lawsuit Has “Caused” The Passage

Or Repeal Of Legislation.

The causation inquiry that is central to the catalyst theory is

inherently vague and fails to provide courts with a workable

standard. Not surprisingly, no clear standard has emerged to

determine when a particular lawsuit can be deemed to have

caused a voluntary change in conduct by the defendant, much

less whether a particular lawsuit can be deemed to have

caused a legislative change undertaken by third parties. The

different approaches taken by the circuits in defining the

causation inquiry all suffer from the same shortcoming: they

provide no meaningful guidance to district courts. For

example, the test variously has been phrased as whether the

plaintiff's lawsuit was a “catalytic, necessary, or substantial

factor in attaining the relief’;’ whether the plaintiff's lawsuit

was a “substantial factor or significant catalyst in motivating

the defendants to alter their behavior”;* whether the plaintiff's

lawsuit was a “necessary and important factor in achieving

the relief desired”;’ and whether the plaintiff's lawsuit

“served a provocative function in the calculus of relief."

These statements of the causation test are little more than

empty formulations that fail to establish a judicially

manageable standard.

" Marbley v. Bane, 57 F.3d 224, 234 (2d Cir. 1995) (internal quotation

marks omitted).

* Foreman v. Dallas County, 193 F.3d 314, 320-21 (Sth Cir. 1999)

(internal quotation marks omitted). See also Morris v. City of W. Palm

Beach, 194 F.3d 1203, 1209 (11th Cir. 1999).

” Payne vy. Board of Educ., 88 F.3d 392, 397-98 (6th Cir. 1996)

(internal quotation marks omitted).

'° New Hampshire v. Adams, 159 F.3d 680, 685 (1st Cir. 1998).

9

In practice, then, courts have been forced to rely heavily on

a simple chronology of events in determining whether the

requisite causal connection is present. See, ¢.g., Morris ’,

City of W. Palm Beach, 194 F.3d 1203, 1209 (11th Cir.

1999): Citizens Against Tax Waste v. Westerville City Sch.,

985 F.2d 255, 257 (6th Cir. 1993); Ross v. Horn, 598 F.2d

1312, 1322 (3d Cir. 1979). Chronology can be highly

misleading, however, particularly where legislative action has

rendered a case moot. Merely because legislation was passed

or repealed after the filing of a lawsuit does not mean that the

legislature took such action based on an assessment that the

lawsuit was meritorious. Yet none of the standards devised

by the courts of appeals is capable of reliably separating

“coincidence from effect.” New Hampshire v. Adams, 159

F.3d 680, 685 (Ist Cir. 1998).

Moreover, no such standard could be devised in this

context. It is simply impossible—for a court or anybody

else—to isolate the impact that a lawsuit may have had on a

legislative decision from the innumerable other influences

that come into play whenever a legislative body deliberates

and takes action. See Alan Rosenthal, Legislative Life:

People, Process, and Performance in the States 264-65

(1981) (noting role that interest groups, the press, and

national legislative trends play in shaping direction of

legislative policy). The Fifth Circuit’s observations in a case

involving congressional action are just as apt with respect to

state and local legislative bodies: “The mere possibility that

Congress acted because of an individual claimant’s suit (or

reacted to a large number of similar suits) is too speculative

in our view considering the many influences upon members

of Congress in casting their votes.” Milton v. Shalala, \7

F.3d 812, 815 (Sth Cir. 1994). Courts are not competent to

sift through and weigh the relative importance of competing

influences on a legislative body’s members, and there is no

basis for concluding that, in enacting the fee-shifting statutes,

Congress authorized courts to engage in any such endeavor.

— a

i —

23

Moreover, by requiring courts to engage in this endeavor

without a workable standard, the catalyst theory raises the

specter of many difficulties for state and local governments

and the individuals who serve as state and local officials.

First, because the catalyst theory fails to provide meaningful

guidance to district courts, state and local governments—

which are often defendants in cases involving fee-shifting

Statutes—face considerable uncertainty regarding _ their

potential liability for attorney’s fees. Because attorney’s fee

awards can be a significant burden on the budgets of state and

local governments, particularly local governments which

endeavor to provide a variety of important services to their

constituents with limited resources, this uncertainty interferes

with their ability to plan for and provide needed services to

the public.

Second, because there is seldom a _ public record

documenting each legislator’s reasons for supporting a

proposal, the catalyst theory raises the prospect that parties

will be compelled to obtain testimony from public officials

(whether by way of deposition or affidavit) about why they

proposed or voted for a particular piece of legislation. The

prospect of courts receiving testimony from public officials to

determine the reasons that legislative action was taken gives

rise to a number of concerns. For example, courts have held

that affidavits from individual legislators, standing alone, are

insufficient to establish what motivated the legislature as a

collective body to take action. See, e.g., Foreman, 193 F.3d

at 322; American Constitutional Party v. Munro, 650 F.2d

184, 188 (9th Cir. 1981). Obtaining testimony from a large

number of state or local legislators in order to establish

causation under the catalyst theory would obviously impose

an unwarranted burden on elected officials preoccupied with

more pressing concerns. Moreover, in the event the district

court received conflicting affidavits from various legislators,

it presumably would be required to hold an evidentiary

hearing to resolve such conflicts and possibly compel elected

24

officials to testify—a spectacle Congress cannot possibly

have intended to authorize when it afforded attorney's fees to

prevailing parties. Finally, given the uncertainty that can

surround the sequence of events when changes in government

policy moot a lawsuit, public officials will be forced to

provide such testimony at their peril. See Kilgore v. City of

Pasadena, 53 F.3d 1007, 1011 n.5 (9th Cir. 1995) (directing

district court to investigate mayor for perjury after court of

appeals disagreed with mayor's statement in affidavit that city

had decided to change policy well before plaintiff filed

lawsuit).

In sum, no workable causation standard exists or could be

devised under the catalyst theory for addressing the situation

where legislative action reuders a case moot. The confusion

and uncertainty engendered by application of the catalyst

theory in this context will inevitably result in the need for

protracted and unproductive “satellite litigation” over matters

far removed from the core concerns of federal civil rights

laws. See S-/ and S-2 v. State Bd. of Educ., 6 F.3d 160, 171

(4th Cir. 1993) (Wilkinson, J., dissenting), rev'd, 21 F.3d 49,

51 (4th Cir. 1994) (en banc) (adopting Judge Wilkinson's

dissent as opinion of the court). Indeed, the Court's

reasoning in Texas State Teachers Ass'n v. Garland Indep.

Sch. Dist., 489 U.S. 782 (1989), which rejected the “central

issue” test, is fully applicable here: “Creating such an

unstable threshold to fee eligibility is sure to provoke

prolonged litigation, thus deterring settlement of fee disputes

and ensuring that the fee application will spawn a second

litigation of significant dimension.” /d. at 791.

B. The Catalyst Theory Requires Impermissible

Judicial Intrusion Into the Legislative Proc-

esses of State and Local Governments.

Application of the catalyst theory in the legislative context

also implicates concerns of a far graver nature. Even if the

catalyst theory provided a reliable means of determining

SS a Be

25

when a legislative body had changed a law in response to a

particular lawsuit, the inquiry demanded of courts would

involve an impermissible intrusion into. the legislative

processes of state and local governments.

This Court has long held that it is “not consonant with our

scheme of government for a court to inquire into the motives

of legislators.” Tenney v. Brandhove, 341 U.S. 367, 377

(1951). Yet that is precisely what the catalyst theory requires

when legislative action has rendered a case moot. Given the

innumerable political, economic, and policy concerns that

influence the passage or repeal of legislation, courts

attempting to divine causation will necessarily have to probe

the motives of those legislators who voted to take a particular

legislative action. Judicial inquiry into the reasons that

motivated members of state and local legislatures to vote as

they did could not be more intrusive on the deliberative

processes of those bodies. Such inquiry amounts to “judicial

interference” with the “exercise of legislative discretion,” and

is not permitted by this Court’s cases. See Bogan v. Scott-

Harris, 523 U.S. 44, 52 (1998); Spallone v. United States,

493 U.S. 265, 279 (1990).

Judicial inquiry into legislative motive also threatens to

chill the passage of worthwhile reforms. State and local

governments are constantly alert to new ways of addressing

policy issues, and pay particular attention to reforms

underway in other jurisdictions. Frequently, state and local

governments decide to change their laws as a result of

broader law reform efforts that have proved their merit

elsewhere. For example, the Council of State Governments

frequently proposes model legislation, and the National

Conference of State Legislatures and the National Governors’

Association are instrumental in transmitting — legislative

proposals to their members. Rosenthal, supra, at 265.

Legislators fearful that a change in policy might be

“retroactively linked” to a pending lawsuit may hesitate to

adopt reforms that they deem to be beneficial and in the

26

public interest. See S-/ and $-2, 6 F.3d at 172 (Wilkinson, J.

dissenting).

The record in this case suggests why such hesitancy might

be justified if the catalyst theory were applicable. Evidence

in the record indicates that the West Virginia Legislature had

plausible public policy reasons for repealing the self-

preservation regulations at issue in this case in response to a

nationwide law-reform movement that began well before

petitioners filed suit. Specifically, petitioners themselves

point out that the debate over self-preservation requirements

was “not unique to West Virginia,” and in fact had taken

place on a national level following the adoption in 1985 of

the National Fire Protection Association's Life Safety Code.

Pet. Br. 4. Petitioner's own expert testified that, 20 years ago,

“all states had self-preservation requirements for residential

care homes,” but that a majority of states had abandoned

those requirements in light of the proposals set forth in the

1985 Life Safety Code. /d. at 5-6. Thus, the West Virginia

Legislature may well have been motivated by sound policy

concerns in repealing the self-preservation requirements

challenged by petitioners, rather than by any concern over the

prospect of losing petitioners’ lawsuit. In such circum-

stances, a legislature cognizant of the catalyst theory might

decide to delay repeal of the regulations solely to avoid

subjecting taxpayers to liability for the opposing party's

attorney's fees.

Finally, the suggestion of petitioners’ amici that the

catalyst theory is necessary to prevent gamesmanship by state

and local government defendants is implausible at best.

Amici assert that without the catalyst theory in place,

defendants will be likely to moot lawsuits at the last minute

by repealing a challenged regulation, rather than risk losing

on the merits and being ordered to pay the plaintiff's

attorney's fees. See Public Citizen Br. 17. However,

defendants must incur their own attorney's fees during

ETS 2

27

litigation, and thus have no incentive to prolong litigation

when they are considering a change in the law that may end

up mooting the case. In addition, the actions of state and

local officials are subject to the scrutiny of the electorate and

coverage by the news media. The electoral process and the

forces of public opinion are systemic checks against behavior

by legislative officials that is motivated by Strategic

considerations rather than sound legislative decision-making.

And at the very least, both the “bad faith” exception to the

American rule, which allows attorney’s fees to be shifted

where litigation tactics are pursued in bad faith, see

Chambers v. Nasco, Inc., 501 U.S. 32, 45 (1991), and Federal

Rule of Civil Procedure 11, are further checks against such

gamesmanship.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

JACQUELINE G. COOPER RICHARD RUDA*

SIDLEY & AUSTIN Chief Counsel

1722 Eye St., N.W. JAMES I. CROWLEY

Washington, D.C. 20006 = STATE AND LOCAL LEGAL

(202) 736-8000 CENTER

444 North Capitol Street, N.

PAUL J. WATFORD Suite 345 . _—

SIDLEY & AUSTIN

555 W. Fifth Street

Los Angeles, CA 90013

(213) 896-6000

December 20, 2000

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae