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

No 99-1848

IN THE

Supreme Court of the Gnited States

BUCKHANNON BOARD AND CARE HOME, INC, ef al,

Petitioners,

-

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 LOS ANGELES

COUNTY AND CALIFORNIA STATE

ASSOCIATION OF COUNTIES AS AMICI

CURIAE IN SUPPORT OF RESPONDENTS

JEFFREY S. SUTTON ELWOOD LUI

Counsel Of Record JONES, DAY, REAVIS & POGUI

RONALD E. LAYMON Suite 4600

JONES, DAY, REAVIS & POGUI 555 West rifth Street

1900 Huntington Center Los Angeles, CA 90013

41 South High Street (213) 489-3939

Columbus, OH 43215

(614) 469-3855

Counsel for Los Angeles County and

California State Association of Counties

EST AVAILABLE COPY

QUESTION PRESENTED

Whether the “catalyst” theory applies to federal fee-

shifting statutes?

_ — —

—_ > -

—V.eeCS , —

TABLE OF CONTENTS

QUESTION PRESENTED i

TABLE OF CONTENTS iN

TABLE OF AUTHORITIES il

RULE 37 STATEMENT l

STATEMENT OF M/C] INTEREST l

SUMMARY OF ARGUMENT 3

ARGUMENT 4

| THE FEE-SHIFTING STATUTES PREMISE

AWARDS ON A COURT ORDER OR

JUDICIALLY-ENFORCEABLE SETTLEMENT

ESTABLISHING THAT THE LITIGANT HAS

“PREVAIL[ED]” | 4

Il PRECEDENT CONFIRMS THIS READING

OF THE FEE-SHIFTING STATUTES 7

Ill IN REQUIRING PARTIES TO PREVAIL

THROUGH A JUDICIAL ORDER OR A

JUDICIALLY-ENFORCEABLE SETTLEMENT,

THE STATUTE SETS UP A CLEAR TEST THAT

WILL STEM VEXATIOUS COLLATERAL-FEE

LITIGATION WHILE STILL PERMITTING

DESERVING LITIGANTS TO OBTAIN FEES 12

CONCLUSION 16

TABLE OF AUTHORITIES

Page

Cases

Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421

US. 240 (1975) . , 8

Christiansburg Garment Ce O. V. EEOC,

434US 412(1978) __. 6

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

Friends of the Earth, Inc. v. Laidlaw Envil.

Servs. (TOC), Inc., 528 U.S. 167 (2000) 4.14

Hanrahan v. Hampton, 446 U.S. 754 (1980) 911

Hensley v. Eckerhart, 461 U.S. 424 (1983) 4,6,9.13

Hewitt v. Helms, 482 U.S. 755 (1987) 10,1112

Kentucky v. Graham, 473 US. 159 (i985) 9

Key Tronic Corp. v. United States,

511 U.S. 809(1994) __. 3,8

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994) | | | 12

Maher v. Gagne, 448 U S. 122 (1980) 11,12

Norman v. Reed, 502 U.S. 279 (1992) _. 14

Rhodes v. Stewart, 488 U.S. 1 (1988) |. - 10

Riverside v. Rivera, 477 U.S. 561 (1986) |. 3

Runyon v. McCrary, 427 U.S. 160 (1976) 8

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

Cir 1993), rev'd en banc and dissenting

opinion adopted, 2 F 3d 49 (4th Cir ), cert.

denied, 513 US. 876 (1994) __. | 7.9.15

Summit Valley Industries, Inc. v. Local 112,

United Broth. of Carpenters and Joiners,

456 U.S. 717(1982) ......... | 8

Texas Teachers Ass'n v. Garland Sch. Dist.

489 US. 782(1989) .___.. 2... 910

United States Parole Comm'n v. Geraghty,

445 U.S. 388 (1980) ee bt

ae ee

+ < <leaannRia

ms

IV

Statutes

Americans with Disabilities Act of 1990

42U SC § 12117%(a)

42U SC § 12188

42 USC § 12205

Civil Rights Attorney's Fees Awards Act of 1976

42U SC § 1988

Fair Housing Amendments Act of 1988,

42U SC § 3601 et seq

42 USC § 3613(c)(2)

Voting Rights Act

42USC § 1973Ke)

Miscellaneous

Black's Law Dictionary (7th ed 1999)

RULE 37 STATEMENT

Counsel for the amici curiae authored this bnef in whole

and received no financial or other assistance from any other

person or entity in doing so. The parties have consented to the

filing of this brief, and their consent letters are on file with the

Clerk’s office

STATEMENT OF AMICI INTEREST

Congress has enacted a variety of laws that authonze

attorney-fee awards to successful plaintiffs and defendants.

See, e.g, 42 USC § 1988 (Civil Rights Attorney's Fees

Awards Act of 1976),42 USC § 3613(c)(2) (Fair Housing

Amendments Act of 1988), 42 USC. §§ 12117(a), 12188

(Americans with Disabilities Act), 42 USC § 1973Ke)

(Voting Rights Act) In statutorily altering the “American

Rule”—that customarily requires litigants to pay their own

costs when they ask courts to resolve disputes—Congress has

indicated that only “prevailing” parties are eligible for fees At

issue in this case is whether litigants may obtain fees even when

they do not obtain a judgment or judicially-enforceable

settlement over a contested issue, but instead claim merely to

have been the “catalyst” of the other party's voluntary action

to dismiss a case or alter challenged conduct

Amici curiae are Los Angeles County and the California

State Association of Counties Both have a considerable stake

in the outcome of this dispute and both believe that the

“catalyst” theory cannot be squared with the words of the fee-

shifting statutes, precedent or common sense

As of January 2000, Los Angeles County had a population

of 9.9 million residents, making it the most populous county in

the nation and making it more populous than 42 States in the

country Roughly 29 percent of the residents of

California—the most populous State—live in Los Angeles

County

As a subdivision of the state, the County is charged with

providing numerous services that affect the lives of all

4

-

residents Traditional mandatory services include law

enforcement, property assessment, tax collection, public health

protection, public social services and relief to indigents

Among the specialized services are flood control, water

conservation, parks and recreation, and many diversified

cultural activities There are 88 cities within the County, each

with its own city council. All of the cities, to one degree or

another, contract with the County to provide municipal

services Thirty-seven cities contract for nearly all of their

municipal services More than 65% of the County is

unincorporated For the | million people living in those areas,

the Board of Supervisors of Los Angeles County is their “city

council” and County departments provide the municipal

services

The California State Association of Counties (CSAC) ts a

non-profit corporation, whose membership consists of all 58

California counties Those counties range in population from

nearly ten million to several hundred thousand CSAC

sponsors a Litigation Coordination Program, which 1s

administered by the County Counsels’ Association of California

and is overseen by the Association's Litigation Overview

Committee, comprised of county counsels throughout the

State The Litigation Overview Committee monitors litigation

of concern to counties statewide and has determined that this

case is a matter affecting all counties

Both Los Angeles County and the counties represented by

CSAC face claims for attorney fees by private plaintiffs under

42 USC § 1988 and other fee-shifting statutes enacted by

Con@ress Each entity thus has a considerable interest in

emsugng that statutes providing for attorney fees are not

comstrwed more broadly than Congress intended and that fees

are awarded only where Congress has deliberately departed

‘om the traditional “American” rule that each party bears its

own litigation expenses.

a

3

SUMMARY OF ARGUMENT

The “catalyst” theory does not respect the words of the

fee-shifting statutes, precedent or the everyday realities of

government litigation

As a matter of plain English, the fee-shifting statutes do

not by their terms create “a relief Act for lawyers.” Farrar v.

Hobby, 506 U.S. 103, 122 (1992) (O'Connor, J., concurring)

(quoting Riverside v. Rivera, 477 US. 561, 588 (1986)

(Rehnquist, J, dissenting)). They apply only to “prevailing”

plaintiffs and “prevailing” defendants, not to any party or any

legal dispute When combined with each statute’s repeated

reference to a relevant “party” and “action,” the term

“prevailing” requires fee-requesting litigants to obtain success

through a court order or judicially-enforceable settlement that

alters the legal relationship between the parties. A claim that

one litigant has inspired, prompted, or catalyzed another

litigant voluntarily to alter its conduct does not suffice

As a matter of precedent, the Court’s historic presumption

against shifting responsibility for attorney fees bolsters this

interpretation. In adhering to this “American rule,” the Court

has indicated “that attorney’s fees generally are not a

recoverable cost of litigation absent explicit congressional

authorization.” Key Tronic Corp. v. United States, 511 US.

809, 824 (1994) (quotation omitted) Congress’s mere

authonzation of fees for “prevailing” parties hardly amounts to

an “explicit” warrant to shift fees whenever litigants ineffably

inspire change, as opposed to compel it. The Court’s cases

interpreting these provisions all follow this course. To be a

“prevailing” party, the litigant must make a two-part showing.

One, it “ must obtain an enforceable judgment .. or

comparable relief through a consem decree or settlement.”

Farrar, 506 U.S at 111. Two, “[w)hatever relief the plaintiff

secures must directly benefit him at the time of the judgment or

settlement.” /d The litigant in other words must achieve the

end of a direct benefit that alters the legal relationship between

4

the parties through the means of an enforceable judgment or

judicially-enforceable settlement.

As a matter of mundane litigation realities, this

interpretation also makes sense. For one, the clarity of this rule

will preclude plaintiffs and defendants, both of whom after all

may be treated as “prevailing” parties, from commencing time-

consuming satellite litigation over fee awards. The vexing

state-of-mind and cause-and-effect inquiries compelled by the

“catalyst” theory, by contrast, will catalyze all manner of

collateral fee litigation. “A request for attorney’s fees,” the

Court has warned, “should not result in a second major

litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

For another, a defendant’s voluntary cessation of a challenged

practice will not invariably deprive a federal court of its power

to determine the legality of a challenged practice. Because the

defendant bears a “heavy burden” of showing that the conduct

will not recur, it is not the case that institutional litigation by

civil rights plaintiffs will invariably stop merely because the

defendant appears to end its challenged conduct. Friends of

the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167,

189 (2000).

ARGUMENT

I. THE FEE-SHIFTING STATUTES PREMISE

AWARDS ON A COURT ORDER OR

JUDICIALLY-ENFORCEABLE SETTLEMENT

ESTABLISHING THAT THE LITIGANT HAS

“PREVAIL[ED].”

In a civil action under subsection (a) of this section, the

court, in its discretion, may allow the prevailing party,

other than the United States, a reasonable attorney’s fee.

Fair Housing Amendments Act of 1988, 42 U.S.C. § 3601 ef

seq. (FHAA), 42 U.S.C. § 3613(c)(2) (emphasis added).

5

-_

In any action or administrative proceeding commenced

pursuant to this chapter, the court or agency, in its

discretion, may allow the prevailing party, other than the

United States, a reasonable attorney’s fee.

Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.

§ 12205 (emphasis added).

In any action or proceeding to enforce a provision of

sections 1981, 1982, 1983, 1985, and 1986 of this title,

title [IX of Public Law 92-318 . . ., or title VI of the Civil

Rights Act of 1964 . . ., the court, in its discretion, may

allow the prevailing party, other than the United States,

a reasonable attorney’s fee as part of the costs.

Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C.

§ 1988 (emphasis added).

All three of the pertinent statutes—the ADA and FHAA,

as at issue here, and section 1988, as at issue in most

cases—-say that a district court’s discretion to grant attorney

fees does not apply to any legal “action” or at any time during

that legal action. Only when a “party” has “prevail[ed]” on the

merits, each law makes clear, may trial courts exercise the

discretion Congress has given them to shift attorney fees from

one litigant to the other in an “action” before them.

As the references to “party” and “action” in each of these

statutes suggests, a “prevailing” litigant is not one who inspires

change in governmental conduct but one who obtains a court

order (or judicially-enforceable settlement) compelling it. No

doubt that court order may come in a variety of forms, be it a

temporary restraining order, preliminary injunction, judgment,

settlement, consent decree or something else. But some

judicially-enforceable directive must change the legal

relationship between the parties. After all, one only

“prevail[s]” in a lawsuit when an issue is mutually contested

and a resolution is mutually enforceable, not when there is one-

sided alteration in conduct. See Black’s Law Dictionary, 1145

6

(7th ed. 1999) (defining “prevailing party” as “(t]he party to a

suit who successfully prosecutes the action or successfully

defends against it, prevailing on the main issue, even though

not necessarily to the extent of his original contention”).

A contrary rule—that ineffably asks whether one litigant

was a“ ” of the other litigant’s change in behavior—has

no statutory mooring and no coherent principle to guide it.

Unless tethered to a judicially-enforceable directive concerning

a contested issue, an inquiry into “prevailing party” status will

force lower courts into utterly speculative debates over why

parties voluntarily dismiss cases »r voluntarily change their

conduct after cases are filed.

Take plaintiffs who choose voluntarily to dismiss their

claims against government defendants. They of course are no

more immune from attorney-fee awards than defendants.

Prevailing defendants, like ptevailing plaintiffs, may invoke

these fee-shifting statutes, which by their terms apply to any

“prevailing party” and any “action.” See Christiansburg

Garment Co. v. EEOC, 434 U.S. 412, 421 (1978) (“a district

court may in its discretion award attorney’s fees to a prevailing

defendant in a Title VII case upon a finding that the plaintiff's

action was frivolous, unreasonable, or without foundation,

even though not brought in subjective bad faith”); Hensley v.

Eckerhart, 461 U.S. 424, 433 n. 7 (1983) (Title VII and

section 1988 apply the same fee-shifting “standard{]”). On

what basis, however, would a trial court determine whether the

defendant had “prevail[ed]” in such a case? In one sense, a

plaintiff s decision voluntarily to dismiss a claim would seem to

be the epitome of an “action [that] was frivolous, unreasonable,

or without foundation.” Christiansburg Garment Co., 434

U.S. at 421. Why else dismiss a case that one has initiated?

But in another sense, that may not be true—as a civil-rights

plaintiff may voluntarily dismiss an action for an endless

assortment of reasons. They may decide that other lawsuits

deserve more priority, they may decide to challenge the

-

oN as

7

underlying government policy in the legislature rather than in

the courts; or their lead lawyer may simply change jobs. One's

capacity for imagination is the only limit to the number of

possibilities.

. So too with government defendants. Like private

plaintiffs, they may choose voluntarily to change their conduct

for a variety of reasons—many of which have little if anything

to do with the merits of the case or, more precisely, with

prevailing-party status. An election may lead to a new

government proposal on the underlying policy issue at stake in

the litigation; an intervening precedent may change the legal

landscape; or the legislature may change a law based on policy,

as opposed to federal constitutional or statutory, grounds. At

bottom, it is no more possible fairly to label a government

defendant a “prevailing” party than it is to label a private

plaintiff that way—at least in the absence of a judicial order (or

judicially-enforceable settlement) resolving a contested issue.

In the final analysis, the fee-shifting statutes by their terms

require a legal as opposed to a causal connection between the

lawsuit and the end result. “For individuals to recover fees,

they must prevail in their status as parties, not in their role as

agents of reform.” S-/ and S-2 v. State Bd. of Educ., 6 F.3d

160, 170 (4th Cir. 1993) (Wilkinson, J., dissenting), rev'd en

banc and dissenting opinion adopted, 21 F 3d 49 (4th Cir.),

cert. denied, 513 U.S. 876 (1994).

Il. PRECEDENT CONFIRMS THIS READING OF

THE FEE-SHIFTING STATUTES.

Even if there were doubt regarding the meaning of these

statutes, precedent resolves that doubt against petitioners in at

least two ways. First, the presumption against such awards

confirms that any ambiguity regarding “prevailing” party status

should be construed against disrupting the American Rule.

Second, the Court’s cases have frequently indicated that a

8

judicial order regarding a contested issue, not an unbridled

inquiry into causation, establishes “prevailing” party status.

While the words of the fee-shifting statutes alone answer

the question presented, the presumption against such fee

awards cements the conclusion. “Our cases establish,” the

Court has indicated, “that attorney’s fees generally are not a

recoverable cost of litigation ‘absent explicit congressional

authorization.”” Key Tronic Corp. v. United States, 511 U.S.

809, 824 (1994) (quoting Runyon v: McCrary, 427 U.S. 160,

185) (1976)). “[T]he availability of attorney’s fees therefore

requires a determination that ‘Congress intended to set aside

this longstanding American rule of law.”” /d. (quoting Runyon,

427 US., at 185-186). See also Alyeska Pipeline Serv. Co. v.

Wilderness Soc'y, 421 U.S. 240, 247 (1975) (even “the

prevailing litigant is ordinarily not entitled to collect a

reasonable attorneys’ fee from the loser”); Summit Valley

Industries, Inc. v. Local 112, United Broth. of Carpenters and

Joiners, 456 U.S. 717, 727 (1982) (“the American Rule

presumes that the word ‘damages’ means damages exclusive of

fees”). Whatever else may be said about the terms of these

statutes, the mere phrase “prevailing party” does not overcome

this presumption when it comes to a decision by a plaintiff on

the one hand voluntarily to dismiss a suit or by a public

defendant on the other hand voluntarily to alter a government

policy. Unlike a judgment, settlement or consent decree, this

type of litigation-ending conduct does not bind anyone or in

any way alter the relationship between the parties. What a

litigant may voluntarily do, it of course may voluntarily undo.

Absent some judicial order or judicially-enforceable settlement,

it thus is utterly speculative to maintain that one litigant has

“prevail[ed]” over the other.

The Court’s decisions follow this path. In Farrar v.

Hobby, 506 U.S. 103 (1992), the Court held that to “qualify as

a prevailing party,” a plaintiff must satisfy two requirements.

“(T]he plaintiff must obtain an enforceable judgment ... or

~ ee

SPR

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a

9

comparable relief through a consent decree or settlement.” Jd.

at 111. And “[w)hatever relief the plaintiff secures must

directly benefit him at the time of the judgment or settlement.”

Id. Put another way, a prevailing party must achieve the end

of a direct benefit through the means of an enforceable

judgment or other comparable relief. “Only under these

circumstances can civil rights litigation effect ‘the material

alteration of the legal relationship of the parties’ and thereby

transform the plaintiff into a prevailing party.” Jd. (quoting

Texas Teachers Ass'n v. Garland Sch. Dist., 489 U.S. 782,

792-793 (1989)).

The determinate requirements of the Farrar test cannot

be squared with the free-form “catalyst” theory. A voluntary

decision by government to change a policy, like a decision by

a plaintiff to dismiss a case, binds no one. Least of all does it

do so through a judicially-enforceable decree. Because “[n]o

material alteration of the legal relationship between the parties

occurs until the plaintiff becomes entitled to enforce a

judgment, consent decree, or settlement against the defendant,”

id. at 113, it cannot fairly be said that the plaintiff (or

defendant) has prevailed in these circumstances. “[W]ithout a

demonstrated legal entitlement, plaintiffs cannot be deemed to

have prevailed.” S-/ and S-2, 6 F.3d at 168 (Wilkinson, J.).

Nor may the “catalyst” theory be salvaged by appealing to

earlier Supreme Court precedent. The two-part Farrar

requirement of (1) a judgment, consent decree, or settlement

that (2) alters the legal relationship between the parties builds

on precedent; it does not alter that precedent. As to the first

requirement, case after case indicates that “liability on the

merits and responsibility for fees go hand in hand.” Kentucky

v. Graham, 473 U.S. 159, 165 (1985). See Hanrahan vy.

Hampton, 446 U.S. 754, 758 (1980) (per curiam) (consent

decree) (“Congress intended to permit the .. . award of

counsel fees only when a party has prevailed on the merits.”);

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (settlement)

10

(prevailing party must “succeed on any significant issue in

litigation which achieves some of the benefit the parties sought

in bringing suit”) (quotation omitted), Hewitt v. Helms, 482

U.S. 755, 760 (1987) (“Respect 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.”).

As to the second requirement, the Court has warned

litigants that it is not enough merely to obtain a favorable

judgment to qualify as “prevailing.” See Hewitt, 482 U.S. at

763 (“a favorable judicial statement of law in the course of

litigation that results in judgment against the plaintiff does not

suffice to render him a ‘prevailing party.””). Such a judgment

“will constitute relief, for purposes of § 1988, if, and only if, it

affects the behavior of the defendant toward the plaintiff.”

Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam). In the

end, “the plaintiff must be able to point to a resolution of the

dispute which changes the legal relationship between itself and

the defendant.” Texas Teachers Ass'n v. Garland Sch. Dist.,

489 U.S. 782, 792 (1989). See id. at 791-792 (“plaintiffs may

be considered ‘prevailing parties’ for attorney’s fees purposes

if they succeed on any significant issue in litigation which

achieves some of the benefit the parties sought in bringing

suit”) (quotation and citation omitted). To our knowledge, the

Court has never held that a party may obtain attorney fees

where it was not “entitled to enforce a judgment, consent

decree, or settlement against the defendant.” Farrar, 506 U.S.

at 113.

Hewitt v. Helms is not to the contrary. There, an appellate

court found that the government violated the due process

rights of a former prison inmate, Aaron Helms, by using

hearsay testimony of an undisclosed informant against him.

The court of appeals ordered the district court to enter

summary judgment for Helms unless the prison officials could

show that they were immune from suit. On remand, Helms

pursued only his claim for damages. In particular, Helms’

1]

counsel never sought a declaratory judgment or an

expungement order. The district court ultimately entered

judgment for the officials on the ground that they were entitled

to qualified immunity, and the appellate court affirmed. See

Hewitt, 482 U.S. 757-759.

Helms nonetheless sought attorney fees, arguing that he

had prevailed, for purposes of 42 U.S.C. § 1988, by obtaining

a ruling that the government violated his constitutional rights

by using hearsay testimony against him. /d. at 759. The Court

disagreed. As an initial matter, the Court explained, “a

favorable judicial statement of law in the course of litigation

that results in judgment against the plaintiff does not suffice to

render him a ‘prevailing party.’” /d. at 763.

Helms obtained no relief. Because of the defendants’

official immunity he received no damages award. No

injunction or declaratory judgment was entered in his

favor. Nor did Helms obtain relief without benefit of a

formal judgment—for example, through a consent decree

or settlement.

Id. at 760 (citing Hanrahan, 446 U.S. at 758-759, and Maher

v. Gagne, 448 U.S. 122, 129 (1980)).

In the course of rejecting the claim for fees, the Court also

observed.

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—eg, 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. See Maher, supra, at 129.

Hewitt at 760-761 (emphasis added).

12

Contrary to petitioners’ suggestion as well as the

suggestion of their amici, the italicized language does not

address a wholly voluntary change in conduct and certainly

does not represent an endorsement of the “catalyst” theory.

The citation to Maher confirms that this dictum refers to

monetary and injunctive “settlements.” And that of course is

all Maher says: “The fact that respondent prevailed through a

settlement rather than through litigation does not weaken her

claim to fees.” 448 U.S. at 129. Any ambiguity on this score

is removed by the Court’s explicit directive to readers of the

opinion not to draw any conclusions regarding the merits of the

“catalyst” theory. In the Court’s words: “We need not decide

the circumstances, if any, under which [the] ‘catalyst’ theory

could justify a fee award under section 1988.” Hewitt, 482

US. at 763.

Hewitt in the last analysis represents an exceedingly slim

reed on which to rest the claim that Farrar does not control

the resolution of this case. The decision rejected a claim for

fees, predated Farrar by five years, and explicitly declined to

address the “catalyst” theory. What matters instead, as Farrar

makes clear, is (1) whether the litigant is “entitled to enforce a

judgment, consent decree, or settlement against the defendant,”

and (2) whether that order or agreement creates a “material

alteration of the legal relationship of the parties.” Farrar, 506

U.S. at 111, 113. See also Kokkonen v. Guardian Life Ins.

Co. of America, 511 U.S. 375, 382 (1994) (“If the parties wish

to provide for the court’s enforcement of a dismissal-producing

settlement agreement, they can seek to do so. ... Absent such

action, however, enforcement of the settlement agreement is

for state courts, unless there is some independent basis for

federal jurisdiction.”).

13

fil. IN| REQUIRING PARTIES TO PREVAIL

THROUGH A JUDICIAL ORDER OR A

JUDICIALLY-ENFORCEABLE - SETTLEMENT,

THE STATUTE SETS UP A CLEAR TEST THAT

WILL STEM VEXATIOUS COLLATERAL-FEE

LITIGATION WHILE STILL PERMITTING

DESERVING LITIGANTS TO OBTAIN FEES.

Moving from the sacred to the mundane, this

interpretation also makes sense. This construction as a

preliminary matter will assuredly stem satellite litigation over

attorney-fee awards. As the Court has warned, “[a] request for

attomey’s fees should not result in a second major litigation.”

Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The clarity

of this two-part test—requiring a judicial order or judicially-

enforceable settlement that alters the legal relationship between

the parties—promises to advance this objective.

In conspicuous contrast, the elusive state-of-mind and

cause-and-effect inquiries compelled by the “catalyst” theory

would prompt, and indeed have engendered, all manner of

collateral-fee litigation. And that risk is particularly acute

when the government alters its conduct through an act of the

legislature—as occurred in this case. On what basis will courts

determine why the law was passed under those circumstances?

Did the change in law flow from the litigation, press coverage,

or run-of-the-mill constituent complaints? One trial court’s

guess frequently will be as good as another’s. The Court’s

bnght-line test eliminates this confusion and what often comes

with it—unproductive and resource-sapping litigation.

What ultimately makes this case hard are not the terms of

the statute, case law, or even (in most cases) the objectives of

the fee-shifting statutes. All make clear that litigants are not

entitled to fees until they have obtained a judgment or

judicially-enforceable settlement that alters the legal

relationship between the parties. The difficulty instead is the

apparent gap in the statute left by this construction—namely,

14

the risk that a government litigant could voluntarily dismiss a

lawsuit on the eve of an adverse ruling, leaving a civil rights

plaintiff with no judgment or alteration in the legal relationship

between the parties, just a lot of unpaid fees. But in the end

this risk is more perceived than real.

Contrary to petitioner's suggestion, a government

defendant may not so readily moot a plaintiff's action. As the

Court held just last Term, “[i}t is well settled that a defendant's

voluntary cessation of a challenged practice does not deprive

a federal court of its power to determine the legality of the

practice.” Friends of the Earth, Inc. v. Laidlaw Envil. Servs.

(TOC), Inc., 528 U.S. 167, 189 (2000) (quotation and citation

omitted). Defendants who wish to end a legal dispute through

voluntary action, Friends of the Earth establishes, must satisfy

“[t]he heavy burden of persuading the court that the challenged

conduct cannot reasonably be expected to start up again.” /d.

(quetation, citation and brackets omitted). Because a

defendant that alters its conduct merely to moot a plaintiff's

meritorious case is not apt to meet this “heavy burden,”

plaintiffs will remain free to obtain a judicial determination that

alters the legal relationship of the parties.

For like reasons, actions that are “capable of repetition,

yet evading review” also will allow some civil rights plaintiffs

to proceed to judgment on legal issues even when a case

otherwise becomes moot. See United States Parole Comm'n

v. Geraghty, 445 U.S. 388, 396 (1980). Thus, for example,

when “a mentally disabled patient files a lawsuit challenging her

confinement in a segregated institution, her postcomplaint

transfer to a community-based program will not moot the

action.” Friends of the Earth, 528 U.S. at 215. See also

Norman v. Reed, 502 U.S. 279, 300 (1992) (action involving

challenge to statutory requirements for political party to gain

place on the ballot would be considered even though the

election had been concluded, as the issue was one capable of

repetition yet evading review).

15

No doubt these avenues of relief do not exhaust every

possible scenario in which a government defendant (or civil

the point of the fee-shifting statutes to make good on every fee

claim. Neither section 1988 nor any of these other statutes is

“a relief Act for lawyers.” Farrar, 113 S. Ct. at 578

(O Connor, J., concurring). “By providing a clear rule for

achieving prevailing party status,” S-/ and S-2, 6 F.3d 160,

171 (Wilkinson, J.), the Farrar requirement that a litigant

obtain “an enforceable judgment ... or comparable relief

through a consent decree or settlement” that alters the legal

relationship between the parties, 506 U.S. at 111, necessarily

does what all bright lines do—place some cases on one side

and some cases on the other side of it. At the same time, this

rule shows fidelity to the words of the statute, respects this

Court's precedents, and ultimately eliminates a far-more trying

and vexatious cycle of litigation.

16

CONCLUSION

For the foregoing reasons, the decision of the court of

appeals should be affirmed.

Respectfully submitted,

JEFFREY S. SUTTON ELWoop LUI

Counsel of Record _ JONES, Day, REAVIS &

RONALD E. LAYMON POGUE

JONES, DAY, REAVIS & Suite 4600

POGUE 555 West Fifth Street

1900 Huntington Center Los Angeles, CA 90013

41 South High Street (213) 489-3939 n

Columbus, OH 43215

(614) 469-3855 Counsel for Amici Curiae

Los Angeles County and

December 2000 California State Association

of Counties