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

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## Record

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

## Text

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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0372%3A15. Public record. Not legal advice.