Opposition Brief — Alabama v. Pope (No. 08-345)

| [—Sipreme Court US]

“\ oS au

No. 08-345 OFFICE OF THE CLERK

en A

IN THE

Supreme Court of the United States

ALABAMA, et al.,

Petitioners,

v.

TIMOTHY D. POPE,

Respondent.

ON PETITION FOR A Writ oF CERTIORARI TO THE

UniTeD States Court or APPEALS

FOR THE ELEVENTH Circuit

Spreader

_ a

BRIEF IN OPPOSITION

——

—_--

_—~—

RAYMOND P Fitzpatrick. JR.

Counsel of Record

Gary L. BRown

Firzpatrick & Brown, LLP

1929 Third Avenue North

Suite 600

Birmingham, Alabama 35203

(205) 320-2255

Attorneys for Respondent

1

QUESTION PRESENTED

Whether the prevailing party test for assessing

liability for civil rights attorney’s fees under 42 U.S.C.

§ 1988 should be modified to exempt a defendant from

fee liability when it belatedly agrees with the plaintiff’s

position on the merits of the claim yet does not change

its conduct until after the court grants relief? Not one

circuit court has agreed with the position advocated by

the Petitioners.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED .................. i

TABLE OF CONTENTS ..............00000. ii

TABLE OF CITED AUTHORITIES ......... iil

STATEMENT OF THE CASE ............... l

A. Proceedings in the District Court. ...... 2

B. The District Court’s Order. ............ 8

C. The Eleventh Circuit’s Affirmance. ..... 9

REASONS FOR DENYINGTHE PETITION ... 11

I. This Court’s Prevailing Party Standard

Should Not Be Reviewed Again In This

RE. Sante Ni wedekaetnedeeeenbenadenen 12

II. The State Was Never Aligned With

DU. Spucuucy shies Sedeeh aren eekeens 16

III. There Is No Circuit Split For This Court

IE, eins retouch itacucie ss 18

IV. Review By This Court Is Not Merited. ... 24

SET navitvscouneanskeieesive sects 25

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Action on Smoking and Health v. Civil

Aeronautics Board, 724 F.2d 211 (D.C. Cir.

DT dh tcsbeslecdeddsciGuawinnbeneuewiles 19

Bigby v. City of Chicago, 927 F.2d 1426 (7™ Cir.

Dn 6... cuutWwiediushusedausphasnsied estes 20

Buckhannon Bd. & Care Home, Inc v. West

Virginia Department of Health & Human

Resources, 532 U.S. 598 (2001) ........... 8, 9, 21

Firebird Society v. Members of the Board of Fire

Commissioners, 556 F.2d 642 (2d Cir. 1977)

ss Me eR Coa U eee an ed aee os kwae 19

Flight Attendants v. Zipes, 491 U.S. 754 (1989) .. 14

Freeman v. Pitts, 503 U.S. 467 (1992) ......... 17

Hensley v. Eckerhart, 461 U.S. 424 (1983) ..... 9, 24

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

Hutto v. Finney, 437 U.S. 678 (1979) .......... 24

Kentucky v. Graham, 473 U.S. 159 (1985) ..... 15

King v. Illinois State Bd. of Elections, 410 F:3d

a ee 22

iv

Cited Authorities

Page

Pope v. State of Alabama, no 08-14729 (11" Cir.)

waisted hentnddvheaiiain vee badass 3

Sole v. Wyner, 551 U.S. __, 127 S.Ct. 2188

DL ceiievae iit ietbianaekeusdeneenanon 13, 14

Supreme Court of Va. v. Consumers Union,

er ee ee ee 25

Texas State Teacher’s Ass’n v. Garland Ind. Sch.

Beg Ge Gas PO UHOEED ccicvtvecccecccess 9, 20

Turner v. District of Columbia Bd. of Elections

and Ethics, 354 F.3d 890 (D.C. Cir. 2004) ... 21, 22

United States v. Frazer, 317 F.Supp. 1079

i ig Seid ed eas 2,3, 4

USA v. Flowers, no. 07-18454 (11" Cir.) ....... 10

W. R. Grace & Co. v. Local 759, 461 U.S. 757

a oa 12

Statutes and Rules

I es ca babeebescue woes passim

ee ee nd cc cceueeceeseeres 7

1

STATEMENT OF THE CASE

Petitioners State of Alabama, et al. (“State” or

“Alabama”) seek review of the long-standing precedent

of this Court creating the “prevailing party” test for

awards of attorney’s fees under 42 U.S.C. § 1988.

Alabama contends that because it eventually confessed

the unconstitutionality of its raced-based employment

policy, respondent Timothy D. Pope (“Pope”) was aligned

with Alabama and as a matter of law cannot be a

prevailing party for purposes of awarding attorney’s

fees under § 1988, despite the fact that Pope obtained

an order changing the legal relationship between the

parties. Pope believes this case does not present an

appropriate vehicle for revision of the prevailing party

standard.

The Eleventh Circuit’s seven page unpublished

decision affirmed the district court’s order awarding

attorney’s fees to Pope under the abuse of discretion

standard. App. 6a. Contrary to the claims of the artfully-

crafted petition, this case does not present an issue on

which the circuits are split. The Eleventh Circuit’s

decision follows the long-standing rule that a civil rights

plaintiff that obtains a court order that changes the

conduct of a defendant employer is considered a

prevailing party entitled to fees under § 1988. In this

case, Pope was unlawfully denied a promotion by the

State and successfully obtained an order from the

district court requiring Alabama to stop applying a racial

preference for African-American job applicants which

had been adversely applied to Pope. Pope had to pursue

litigation for over two years in order to obtain that result

and change the conduct of the defendant.

2

A. Proceedings in the District Court.

This case was filed in 1968 by the United States

against various agencies of the State of Alabama to

enforce the anti-discrimination provisions of federal

funding statutes. App. la. The district court found

Alabama liable and entered an injunction governing the

defendants’ employment practices on July 28, 1970.

App. 2a; United States v. Frazer, 317 F. Supp. 1079

(M.D. Ala. 1970). Alabama officials were enjoined from

bypassing a higher-ranked black applicant in favor of a

lower-ranked white applicant:

2. Negro applicants shall be appointed to

positions other than custodial, domestic,

laborer or laboratory aide, when said Negro

applicants are listed on a Certification of

Eligibles, unless higher-ranking white

applicants on the certificate are appointed to

fill the vacancy (or all the vacancies) in the

listed position, or unless the defendants

determine that the Negro applicant is not

qualified to perform the duties of the position,

or is otherwise not fit for the position.

38. Defendants shall not appoint or offer a

position to a lower-ranking white applicant on

a certificate in preference to a higher-ranking

available Negro applicant, unless the

defendants have first contacted and

interviewed the higher-ranking Negro

applicant and have determined that the Negro

applicant cannot perform the functions of the

position, is otherwise unfit for it, or is

3

unavailable. In every instance where a

determination is made that the Negro

applicant is unfit or unavailable, documentary

evidence shall be maintained by the

defendants that will sustain that finding.

Frazer, 317 F. Supp. at 1091; doc. no. 65.' Several other

State departments and officials were subsequently

joined as defendants and the district court entered a

further injunction on August 20, 1976. Doc. no. 142. This

overtly race-based remedy order was commonly referred

to as the Frazer No-bypass Rule. App. 2a. The district

court conducted no further review of the injunctions

until after Pope initiated these proceedings in 2003.

App. 33a.

Pope is a white male employee of the Alabama

Department of Corrections. He was offered and accepted

a promotion in September 2002. Shortly thereafter, the

promotion was rescinded as violative of the No-bypass

Rule. App. 2a. Pope filed a pro se charge of race

discrimination with the EEOC and received a right to

sue letter on December 4, 2002. Pope also sought

assistance from the Attorney General of Alabama. The

State refused to take any action to seek relief from the

rule or otherwise promote Pope. After obtaining counsel

in January 2003, Pope filed his individual suit on

February 21, 2003. The district court’s dismissal of

Pope’s individual Title VII case is now pending before

the Eleventh Circuit Court of Appeals. Pope v. State of

Alabama, no. 08-14729 (11 Cir.).

i. Record citations in this brief are to the appendix to the

petition for writ of certiorari or to the document numbers

assigned by the district court.

4

Because of the continuing impact of the Frazer No-

bypass Rule on his promotional opportunities, on

February 25, 2003 Pope also moved to intervene in

Frazer and sought an order ending the racially

discriminatory preference. Pope asserted that the 30-

year old Frazer No-bypass Rule was facially

unconstitutional under modern strict scrutiny standards

and should be terminated. App. 2a.

Alabama’s counsel asked the district court to delay

action on Pope’s motion to intervene while they

discussed the matter with counsel for the United States.

Doc. no. 608. Finally, on May 20, 2003, Alabama urged

the court to deny Pope’s intervention motion. Doc. no.

633. At the same time, the United States and Alabama

filed a “Joint Motion To Terminate No-Bypass

Provisions of Injunctive Orders.” App. 2a, 3a; doc. no.

€34. The United States and the State of Alabama

defendants sought termination of the No-bypass Rule

alleging that “the evidence that the discriminatory

practices requiring the implementation of the no-bypass

rule have ceased and the effects of such practices have

been remedied.” See doc. no. 634. In his response to the

joint motion, Pope agreed that the No-bypass Rule

should be terminated as he had urged several months

earlier, but pointed out that the United States and the

State defendants had not raised the constitutional issues

raised by Pope in his complaint-in-intervention and

motion to modify. Unlike the State of Alabama, Pope

urged the district court to immediately suspend

operation of the rule without further proceedings due

to its facial unconstitutionality. Doc. no. 648. The State

defendants subsequently filed an expert’s statistical

5

report in support of the joint motion. See doc. nos. 634,

675.2 While Pope was seeking an immediate end to thc

rule due it its facial unconstitutionality, Alabama made

the fact-intensive claim that after thirty years its

workforce was sufficiently diverse that the preference

was no longer needed.

Alabama opposed Pope’s effort to intervene and the

rule remained in effect. There was no progress for eight

months until the district court granted Pope’s motion

to intervene on January 20, 2004. App. 3a. Pope’s

complaint-in-intervention and motion to modify was then

filed by the clerk on January 28, 2004. Doc. no. 659. The

district court also granted intervention to a group of

African-American state employees. The African-

American intervenors urged the continuation of the

race-based No-bypass Rule and filed their own expert

report in response to the State’s expert report. See App.

3a; doc. no. 698. The proceedings became mired in

2. Alabama claims it retained experts and commenced its

review in May 2002, before it rescinded Pope’s promotion.

Pet. at 3. While that assertion by its counsel is not supported by

any evidence other than its counse!’s affidavit, it only bolsters

Pope's position that the State knew the rule was invalid when it

rescinded Pope’s promotion. Alabama continues to claim that it

was pursuing vacation of the order before Pope moved to

intervene. While the State represents that it was busy working

to vacate the rule in May 2002, the face of the expert report

shows it is based on year-end 2002 data and was not completed

until April 2003, some two months after Pope moved to

intervene. Indeed, it appears that the intense two-month

application of resources cited by Alabama, Pet. at 3, occurred

after Pope received his right to sue letter from the EEOC and

after the filing of Pope’s litigation to bring this matter before

the district court.

6

extended factual disputes between the African-American

intervenors and the State over the fact-based issues raised

by their pleadings and competing expert reports.

Meanwhile, Pope repeatedly urged the Court to

immediately vacate the rule on the constitutional grounds

raised in Pope’s complaint. Only under questioning from

the district court did one of the State’s counsel eventually

concede the unconstitutionality of the rule on April 2, 2004.

Doc. no. 794. The unconstitutional rule remained in effect

and Alabama continued to implement it.

On May 20, 2005, over two years after Pope first sought

relief, the district court entered an order granting Pope’s

motion for preliminary injunction and granting the relief

that he requested in his initial filing, the suspension of the

No-bypass Rule. App. 3a, 32a; doc. no. 605 at p. 3 (“the

movant-intervenor respectfully asks this Court for leave

to intervene in this action for the purpose of challenging

this unconstitutional, un-tailored race-based application

of the Frazer/Ballard injunction . . .”); and Complaint and

Motion to Modify Injunction of Plaintiff-Intervenor

Timothy D. Pope, doc. no. 659, 118 (urging the Court to

“modify the injunction by vacating the no-bypass rule and

other race-based requirements and/or alternatively

ordering the defendants to implement lawful race-neutral

selection procedures”).

Pope obtained actual relief on the merits that

materially altered the legal relationship between the

parties by modifying the defendants’ behavior. Pope

prevailed in this litigation by securing the race-neutrality

of the State defendants’ employment selection procedures

through the grant of his motion for relief from “the

continued implementation of the race-conscious,

7

indeterminate, across-the-board no-bypass rule.”

App. 33a. The district court stated that this relief was

granted “based on Pope’s motion.” App. 32a. The State

then ceased implementation of the No-bypass Rule.

As required by Rule 54(d)(2), FR. Civ. P, on June 1,

2005 Pope filed a motion for attorney’s fees and costs.

Doc. nos. 740, 744, 747. The State defendants opposed

the motion claiming Pope was not a prevailing party.

Doc. no. 748.°

On June 30, 2006, after further extended briefing

and factual disputes between the other parties, the

district court granted Pope’s motion for summary

judgment and entered final judgment-permanently

ending the No-bypass Rule. App. 24a, 25a. The Court’s

order states plainly that “Pope’s motion for summary

judgment (doc. no. 757)... [is] granted.” Jd. The district

court further stated that “intervenor Pope’s motion to

modify injunction (doc. no. 659) [is] granted.” App. 25a.

3. In opposing the fee motion, the State launched a

vituperative attack on Pope’s counse] with an affidavit by State

staff counsel Byrne claiming that Pope intervened for the sole

purpose of gaining fees. Pope responded with three separate

affidavits rebutting each of the State’s claims. Neither the

district court nor the Eleventh Circuit credited the State’s

attack and the State’s new counsel in this Court concedes

the matter is “immaterial.” Pet., at 4 n.2. Despite that

acknowledgment, one of Petitioners’ amici picks up the fight

where the State’s lower court counse) left off, devoting four

pages of its brief to a personal attack on the undersigned

counsel of record. Br. of Amici Curiae International Municipal

Lawyers, et al., at 12-15. The Court should take note of such an

abuse of the privilege given to amici to express views on

important legal issues before this Court.

8

Pope filed a supplemental motion for attorney’s fees

and costs on July 12, 2006, which the defendants

opposed on the same grounds. App. 3a, 20a; doc. nos.

781, 782, 783.

B. The District Court’s Order.

On September 17, 2007, the district court granted

Pope’s two motions for attorneys fees and awarded some

58% of the total amount requested. App. 3a, 19a, 20a.

The district court fie'c that Pope “achieved a sought-

after ‘judicially sanctioned change in the legal

relationship of the parties’” as required by Buckhannon

Bd. & Care Home, Inc. v. West Virginia Department of

Health & Human Resources, 532 U.S. 598, 600 (2001).

App. 13a.

The district court found that Pope made a separate

contribution to the litigation warranting an award of

fees. App. 15a. The district court also found that Pope

and the State defendants made different arguments to

end the no-bypass rule. Characterizing Pope’s position

as “forceful” the district court attributed the preliminary

suspension of the rule largely to Pope’s efforts.

App. 17a.

In determining the amount of Pope’s fee award, the

Court generously discounted the requested amount to

the benefit of the defendants, subtracting 30% of the

requested fees up until the granting of the preliminary

injunction and 60% of the requested fees thereafter.‘

4. While Pope believed these reductions were

inappropriate, and at no time did the defendants contest the

(Cont'd)

9

The court also deducted $5,000.00 of the fees Pope’s

attorneys claimed for work performed litigating fee

issues and deducted all fees incurred that were

attributed to an unsuccessful motion for class

intervention. The district court ordered that all of

Pope’s expenses be reimbursed by the defendants.

App. 17a-19a.

The State defendants appealed the district court’s

order, disputing the district court’s determination that

Pope is a prevailing party under the applicable fee-

shifting statutes and arguing that he was entitled to

nothing. App. 3a, 4a. While no stay was sought, the State

failed to comply with the district court’s order.

C. The Eleventh Circuit’s Affirmance.

The Eleventh Circuit upheld the district court’s

award of attorney’s fees in all respects on June 18, 2008.

First, the appeals court recognized that Pope succeeded

in obtaining a judicially changed legal relationship

between the parties, thereby meeting the prevailing

party test under Hensley v. Eckerhart, 461 U.S. 424

(1983), Texas State Teacher’s Ass'n v. Garland Ind. Sch.

Dist., 489 U.S. 782 (1989) and Buckhannon Bd. and Care

Home, Inc. v. West Virginia Dept. of Health and Human

Resources, 532 U.S. 598 (2001). App. 4a.

(Cont'd)

requested hourly rates, he also recognized that appellate review

of the district court’s decision is governed by the abuse of

discretion standard and fee issues should not result in a “second

major litigation.” Hence, Pope did not increase the costs or

burden the appellate court with a cross-appeal.

10

Second, the appeals court rejected Alabama’s effort

to “engraft a requirement that the defendant must

assume an adversarial posture as a pre-condition to

finding prevailing-party status.” App. 5a. Finding that

“Pope’s efforts contributed to a change in the State

defendants personnel practices ... Pope was...a

prevailing party vis-a-vis the State defendants - for

purposes of a fee award.” /d.

Finally, the Eleventh Circuit upheld the district

court’s finding that the narrow special circumstances

exception did not apply in this case. App. 5a, 6a. In doing

so, the appeals court recognized the various facts the

defendants asserted in support of special circumstances

and opined that all were sufficiently considered when

the district court substantially reduced the lodestar

amount. App. 6a.

The Eleventh Circuit affirmed on June 18, 2008. No

rehearing application was filed. On August 14, 2008,

after Pope sought issuance of the mandate by the

Eleventh Circuit, the Petitioners first moved to stay the

issuance of the mandate. On August 19, 2008, the

Eleventh Circuit denied the motion to stay the mandate

and directed issuance of the mandate instanter. The

Petitioners complied with the district court’s injunctive

order on August 28, 2008. See, USA v. Flowers, no. 07-

18454 (11 Cir.).

1]

REASONS FOR DENYING THE PETITION

Alabama seeks review claiming that it was aligned with

Pope throughout these proceedings and therefore the

district court was precluded from awarding fees to Pope

to be paid by the defendants. First, as demonstrated below,

the underlying claim that Pope and the Alabama

defendants were “squarely aligned” is simply not factually

accurate. Pet. at 5, 8. The State admits it denied Pope a

promotion on the basis of his race and has fought his efforts

to redress that wrong at every step for the past six years.

Second, a civil rights defendant cannot avoid fee liability

by agreeing with plaintiff’s legal argument at the last

minute when the plaintiff is forced to obtain a court order

to end the defendant’s discriminatory practice. Third, the

State claims that a ruling from this Court is needed to

explain “[w]ho is liable to pay attorney’s fees under federal

fee-shifting statutes”. Pet. 11, 12 (emphasis in original).

The lower courts have uniformly implemented this Court’s

rulings that a defendant whose conduct is changed by the

litigation is the party due to pay fees and costs. This is not

a case that warrants certiorari review.

This Court’s decisions are clear that the central issue

in evaluating a fee request is whether the litigation resulted

in an order changing the lega) relationship of the parties.

Pope obtained a court order requiring the defendants to

stop applying the race-based preference in its employment

decisions. Because the State eventually agreed with Pope

that the injunction should be vacated, Alabama contends

that it, too, was a prevailing party and should not be liable

for fees. As demonstrated below, the State of Alabama is

the party that maintained a segregated employment

system; the notion that it is also a “prevailing party” is

preposterous.

12

I. This Court’s Prevailing Party Standard Should

Not Be Reviewed Again In This Case.

The State Petitioners seek to revise the prevailing

party standard by adding an additional requirement

that the defendant must actively oppose the merits of

the plaintiff’s claim. Alabama’s argument ignores the

fact that this Court’s decisions all look to whether the

suit has changed the legal relationship of the parties as

the operative threshold test for fees under § 1988.

Alabama’s claim that it is a prevailing party in this case

and therefore not responsible for fees is meritless. The

State of Alabama and its agencies and officials were the

defendants in an action bought by the United States

over thirty-five years ago. The State was found guilty

of segregative employment practices and enjoined by

order of the federal courts. Having been found liable, it

certainly is fair to assess the State with all costs related

to the injunction, including costs incurred in ending the

injunction. See W. R. Grace & Co. v. Local 759, 461 U.S.

757, 770 (1983) (“obeying injunctions is a costly affair”).

The State of Alabama is under the delusion that it

“won” the case when the injunction was ended in 2005.

The fact that the injunction was ended does not change

the fact that the State was the defendant in civil rights

litigation and found liable for maintaining a segregated

workforce. The State did not prevail when the order

was eventually lifted. It was the loser in 1970 and remains

the loser until the case is closed. The State did not

succeed by obtaining an order changing its own conduct.

The State remains the defendant in a case where liability

was established. Nothing changes the principles of the

fee-shifting statute requiring the civil rights defendant

13

to pay fees to a party that successfully changes the

defendant’s conduct through the litigation process.

Both the district court and the Eleventh Circuit

found that Pope met the traditional standard for

prevailing party status under this Court’s decisions.

App. 4a, 13a. The State claims that it, too, is a prevailing

party and as a consequence Pope should be denied fees.

But, as the district court’s decision demonstrates,

having found Pope to be a prevailing party and after

calculating the lodestar amount, the district court then

substantially reduced the fee to one which, in the district

court’s view, represented Pope’s separate contribution

to the litigation.

This Court’s prevailing party standard need not be

revisited. In determining responsibility for payment of

fees, this Court has always looked to the party

responsible for the provision of relief. Just two Terms

back, in Sole v. Wyner, 551 U.S. _, 1278S. Ct. 2188 (2007),

this Court unanimously reconfirmed that the standard

for an award of fees to a prevailing party is the material

alteration of the legal relationship of the parties:

“The touchstone of the prevailing party

inquiry,” this Court has stated, is “the material

alteration of the legal relationship of the

parties in a manner which Congress sought

to promote in the fee statute.” Texas State

Teachers Ass'n v. Garland Independent

School Dist. , 489 U.S. 782, 792-793, 109 S. Ct.

1486, 103 L. Ed. 2d 866 (1989). See Hewitt v.

Helms, 482 U.S. 755, 760, 107 S. Ct. 2672, 96

L. Ed. 2d 654 (1987) (plaintiff must “receive

14

at least some relief on the merits of his claim

before he can be said to prevail”); Maher v.

Gagne, 448 U.S. 122, 129, 100 S. Ct. 2570, 65

L. Ed. 2d 653 (1980) (upholding fees where

plaintiffs settled and obtained a consent

decree); cf. Buckhannon Board & Care Home,

Inc. v. West Virginia Dept. of Health and

Human Resources, 532 U.S. 598, 605,

121 S. Ct. 1835, 149 L. Ed. 2d 844 (2001)

(precedent “counsel[s] against holding that

the term ‘prevailing party’ authorizes an

award of attorney’s fees without a

corresponding alteration in the legal

relationship of the parties”).

Id. at 2194.

This Court’s decisions have consistently followed

the principle that fees should come from the party

responsible for providing relief. Flight Attendants v.

Zipes, 491 U.S. 754, 762 (1989). The Eleventh Circuit’s

decision here is entirely consistent with that principle.

The State denied Pope a promotion on the basis of his

race claiming it had no option but to reflexively

implement the thirty year old No-bypass Rule. Pope was

left with no option but to seek an order from the federal

court directing Alabama to stop applying the race-based

No-bypass Rule. See also Hewitt v. Helms, 482 U.S.

755,761 (1987) (central to prevailing party status is “the

settling of some dispute which affects the behavior of

the defendant towards the plaintiff’) (emphasis by the

Court).

15

In this case, the State of Alabama was found

responsible for the provision of relief when it was found

liable in 1970. As the enjoined party, it was the loser in

this case. Again, in 2005, it was found responsible for

provision of relief to Pope when he obtained an order

requiring the State to stop applying the No-bypass Rule

to Pope’s employment opportunities. The State was the

party directed to provide relief — both in 1970 and again

in 2005 for Pope.

In Kentucky v. Graham, 473 U.S. 159 (1985), this

Court addressed the question that the Petitioners claim

should now be reviewed. The Court confirmed that the

party responsible to pay attorney’s fees is the defendant

whose conduct is changed by the litigation:

[I]t is clear that the logical place to look for

recovery of fees is to the losing party — the

party legally responsible for relief on the

merits. That is the party who must pay the

costs of the litigation, see generally Fed Rule

Civ Proc 54(d), and it is clearly the party who

should also bear fee liability under § 1988.

473 US at 164. This Court concluded that “liability on the

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

Id. at 165. This Court has defined the term “losing party”

as “the party legally responsible for relief on the merits.”

Contrary to its posturing as the winner, the State of

Alabama is the party legally responsible for relief on the

merits and was properly assessed fees when Pope obtained

an order that changed the State’s conduct vis-a-vis Pope.

16

As demonstrated in Part III, below, the decisions of

the lower courts are entirely consistent with this Court’s

precedents requiring that the material change in legal

relationship between the parties triggers the right to

fees under the statute.

II. The State Was Never Aligned With Pope.

Alabama repeatedly claims it was aligned with Pope

and there was no difference in their positions in this

case. Pet. at 5, 12, 13, 17, 22, 25, 27. That claim is

absolutely disputed and contrary to the holdings of the

courts below. Both the district court and the Eleventh

Circuit recognized the differences in the positions taken

by the State and Pope and the practical effect of those

differences. The Eleventh Circuit made a finding that

Pope prevailed vis-a-vis the State “because Pope’s

efforts contributed to a change in the State defendants’

personnel practices.” App. 5a. While the State agreed

with Pope’s constitutional argument late in the process,

it was the fact that Pope succeeded in obtaining a court

order changing the State’s conduct that made Pope a

prevailing party due to receive fees.

Contrary to the State’s claims, Pope was never

“squarely aligned” with the State. Pet. 5, 27. It is

undisputed that Pope was denied a promotion, filed

an EEOC change, and left with no recourse but to

file litigation seeking an immediate end to an

unconstitutional practice. After he moved to intervene

in this case, the State delayed these proceedings and

opposed Pope’s motion to intervene. Doc. no. 633. The

State refused to join his argument that the rule was

17

patently unconstitutional and due to be immediately

stopped, opting instead for the more politically palatable

claim that the 1970 order was due to be vacated under

the Freeman v. Pitts, 503 U.S. 467 (1992) standards for

ending desegregation orders. Doc. no. 634, at p. 12. The

State slowed the proceedings down with its wasteful fact-

intensive battle of highly-compensated experts with the

African-American intervenors. Finally, after two years

of delays occasioned primarily by the litigation strategies

of the State’s counsel,® the district court granted Pope’s

motion to preliminarily enjoin operation of the rule on

the very grounds advocated by Pope from the outset -

that the policy was facially unconstitutional as a matter

of law. App. 15a, 34a.

The district court found that Pope was justified in

initiating his actions in this case:

... [WJhen Pope filed his motion to intervene

in February 2003, the rule still applied to him,

and, indeed, according to him, he had been,

and continued to be, denied promotions

5. On April 2, 2004, the district court conducted a

conference among counsel. During that conference, not only

were there differences between the parties concerning the

applicable standards for evaluation of the No-bypass Rule, there

was confusion between the State’s own counsel. Compare,

comments of State attorney Byrne (advocating Freeman

standard) with those of State attorney Weller (agreeing for the

first time with Pope’s facial constitutional argument). Doc. no.

794, pp. 5-15. And, the United States refused to take a position

on the applicable standard at all. /d., at 11. Indeed, both the

United States and the State of Alabama deferred to Pope on the

constitutional issue. Jd. at 11-14.

18

because of the rule. He therefore had a real

and live dispute with the State at that time.

App. 14a. The district court further recognized that it

was Pope’s argument that led to the suspension of

operation of the rule in 2005:

Pope’s forceful position in this case, that the

no-bypass rule was unconstitutional on its face

and should be terminated immediately without

any consideration of evidence from any of the

other parties, played a substantial role in

convincing the court that the rule should be

suspended early...

App. 7a.

The district court recognized that while the State

and Pope ultimately sought an end to the No-bypass

Rule, first, they approached the problem with very

different arguments, and, second, it was Pope’s

argument that was credited with leading to the initial

suspension of the rule. The notion that Pope and the

State were “squarely aligned” is simply false.

III. There Is No Circuit Split For This Court To

Reconcile.

Petitioners have not demonstrated any split between

the circuits that merits review by this Court. The Second

and Seventh Circuit cases cited by the State of Alabama

did not involve facts where the party claiming fees met

the threshold test for prevailing party status by

obtaining an order changing the defendant employer's

19

conduct. Those cases only involved a victory by the

plaintiff on procedural issues. The case from the D. C.

Circuit involved the application of a different statute

with different operative language. None of the three

cases cited by the State support the stark split in the

circuits asserted in the Petition. Moreover, both the

Seventh and D. C. Circuits have subsequently decided

cases in a manner consistent with the Eleventh Circuit’s

decision here.

1. In the Second Circuit’s decision of Firebird

Society v. Members of the Board of Fire Commissioners,

556 F.2d 642 (2d Cir. 1977), black plaintiffs were denied

fees against the defendant employer when they

successfully resisted intervention by a group of

nonparty white employees. The black employees in that

case were properly denied fees because their successful

opposition to intervention did not meet the prevailing

party test. The Firebird Society plaintiffs did not change

the defendant’s conduct by opposing an intervention

motion. While the Second Circuit observed that the

plaintiffs “were as much prevailing parties .. .” as the

defendants in opposing intervention, neither met the

prevailing party test of this Court’s subsequent

precedents when they successfully opposed a procedural

motion by nonparties.

2. In Action on Smoking and Health v. Civil

Aeronautics Board, 724 F.2d 211 (D.C. Cir. 1984), the

court awarded attorney’s fees against a federal agency

under the Equal Access to Justice Act (“EAJA”). The

court denied fees on one minor issue on which the court

noted the plaintiff and government took the same

position. While noting in passing the agreement of the

20

plaintiff and defendant on the single issue, the court’s

decision on the point turned on the language of the

EAJA, which materially differs from § 1988: “the

[government’s| position on this issue was ‘substantially

justified’ and, consequently, fees cannot be awarded on

this issue under the EAJA.” Indeed, the EAJA includes

specific language altering the standard for awarding

fees from that of § 1988.

3. The Seventh Circuit’s decision in Bigby v. City

of Chicago, 927 F.2d 1426 (7 Cir. 1991), is another case

where black plaintiffs that succeeded in defending a

court order against the claims of white intervenors were

denied fees payable by the defendant employer. In

Bigby, the Seventh Circuit rejected the plaintiffs’ claims

that they were “prevailing parties” under the Texas

State Teachers standard. The Seventh Circuit agreed

that a “Title VII defendant’s fee liability does not

presumptively extend to cover the fees incurred by

plaintiff in litigating third party interests . . .” 927 F.2d

at 1428, 29. Again, this Seventh Circuit case did not

involve a successful effort by the party seeking fees that

changed the defendant’s conduct by court order. Rather,

it demonstrated a correct application of the Texas State

Teachers standard governing prevailing party status

that focuses on the results of the litigation.

Neither of the two § 1988 cases cited by the

Petitioners in support of their circuit-split allegation

involved a plaintiff seeking fees that obtained some

substantive change in conduct by the defendant as a

result of the litigation. In this case, the Eleventh Circuit

found that Pope was a prevailing party because he

succeeded in obtaining the “judicially sanctioned change

21

in the legal relationship of the parties” required by this

Court’s decision in Buckhannon Bd. & Care Home, Inc.

v. West Virginia Dept. of Health & Human Resources,

532 U.S. 598 (2001). Pope succeeded on the merits in

his effort to gain a court order ending the State’s

application of the No-bypass Rule. The fact that the State

eventually agreed with Pope’s position does not change

the fact that Pope had to obtain a court order to stop

the State’s continued application of the No-bypass Rule

against Pope and similarly situated public employees.

Other cases from the Seventh and D. C. Circuits

have addressed the issue of responsibility to pay fees

under fee-shifting statutes in a manner consistent with

the Eleventh Circuit’s decision in this case. The D. C.

Circuit’s decision in Turner v. District of Columbia Bd.

of Elections and Ethics, 354 F-:3d 890 (D. C. Cir. 2004),

addresses factual circumstances similar to that in this

case. The Turner plaintiff sued the D. C. Board of

Elections to certify the results of a ballot initiative. The

United States intervened and claimed the ballot

initiative violated federal law. The D. C. Board

eventually agreed with the plaintiff that the federal

statute was unconstitutional. The courts ultimately

found the statute unconstitutional and granted plaintiff

relief requiring the certification by the Board. The

defendant D. C. Board then opposed plaintiff’s request

for attorney’s fees, claiming it was not the culpable party.

The D. C. Circuit appeals court rejected the Board’s

position finding that it was the party responsible for

providing relief on the merits to the plaintiff:

There is no basis to conclude that the Board

was not “the party legally responsible for relief

22

on the merits,” Kentucky v. Graham, 473 U.S.

159, 164 (1985), as only it, and not the United

States, could certify the votes on Initiative 59.

Results, not litigating positions, are

determinative of prevailing party status.

Hensley, 461 U.S. at 435. Turner incurred and

continued to incur attorney’s fees and

expenses because the Board refused to certify

the election results.

354 F.3d at 897. The D. C. Circuit rejected the

defendant’s claim that it is excused from fee

responsibility because it agreed with the plaintiff’s legal

argument in the same manner as the Eleventh Circuit’s

decision in this case:

... the Board continued to enforce the Barr

Amendment throughout Turner’s § 1983

litigation, it is irrelevant for purposes of § 1988

that in court the Board supported Turner’s

constitutional challenge to the Barr Amendment.

Id. The D. C. Circuit looked to the traditional test of a

change in the legal relationship of the parties to

determine fee liability, just as the Eleventh Circuit did

in this case. Contrary to the Petitioners’ claims, the

D. C. Circuit’s caselaw is consistent with that of the

Eleventh Circuit.

The Seventh Circuit has also addressed the same

issue raised here and decided it in a manner consistent

with the Eleventh Circuit’s decision. King v. Illinois

State Bd. of Elections, 410 F.3d 404 (7" Cir. 2005) was a

complex multi-party voting rights case. The Seventh

23

Circuit ruled that intervening parties that successfully

protected their constitutional interests were entitled to

fees against the defendant State agency even though

the state claimed it, too, was the “winning” party.

“(Because the intervenors were vindicating their civil

rights, we think that the appropriate party from whom

to seek fees in this case is indeed the State.” Finding

that the State had failed to make adequate efforts to

ensure that its redistricting plan was constitutional, the

Court found it appropriate to require the State to pay

the intervenor’s fees. In this case, Pope was required

to bring the lawfulness of the No-bypass Rule before

the district court after his complaint to State of Alabama

officials was backhanded.

Alabama’s assertion of a “clear, mature and

acknowledged” split in the rulings of the circuits is of

no substance. Pet. 19. The two § 1988 cases cited by the

defendants did not involve fee-applicants that succeeded

on the merits. In relatively recent decisions ignored by

Petitioners and their amici, the Seventh and D. C.

Circuits have ruled in a manner consistent with the

Eighth and Eleventh Circuits. The Eleventh Circuit's

decision here, consistent with every other circuit,

correctly recognized and implemented this Court’s

precedents that look to the results obtained on the

merits in determining fee liability. There is not one

circuit court that adopts the Petitioners’ argument in

this case.

24

IV. Review By This Court Is Not Merited.

This Court has recognized that the statute imposes

attorney’s fees “as part of the costs.” Hutto v. Finney, 437

U.S. 678, 695 (1979). Here, the dis rict court and the

Eleventh Circuit correctly awarded costs against the

defendant State of Alabama and its agencies and officials.

The State claims that Pope should have been denied fees

against the State because it, too, sought vacation of the

No-bypass Rule. The upshot of the State’s argument is

that Pope, while a prevailing party, is entitled to fees from

nobody. Pope did not seek fees from the African-American

intervenors because he sought and obtained no relief from

them.® Rather, the party Pope sought relief from was the

party that denied him an employment opportunity on the

basis of his race.

The State of Alabama has turned what should have

been a routine fee application into a “second major

litigation”. Hensley, 461 U.S. at 424. While there is no doubt

that the State of Alabama and its amici are hostile to the

policy objectives of § 1988, and openly disparage the

motives of counsel for civil rights claimants’, as this case

demonstrates, the issue is not about liberal versus

conservative principles in the proper role of federal judicial

authority over states and local governments. Rather, this

6. While Pope disagreed with the litigation positions of

the African-American intervenors, their arguments did not

justify fees under the Christianburg Garment standard for fees

against plaintiffs that maintain baseless litigation.

7. See Petition at 27, 28, 31, 32: Brief of Amici Curiae

International Municipal Lawyers, etc., at 12-15; and, cf, Brief

of Commonwealth of Virginia, et al., at 11.

25

case is about whether the plain language and principles of

the fee-shifting statute benefitting those that succeed in

protecting constitutional rights are to be respected.

The fee award here should have been a “run-of-the-

mill occurrence.” Supreme Court of Va. v. Consumers

Union, 446 U.S. 719, 739 (1980). While Alabama may

grouse about its mounting obligation to pay “fees-on-fees”,

Pet. at 32, it alone is responsible for the multiplication of

costs in this case.

This Court has adopted a bright line test governing

liability for fees under § 1988: responsibility for fees follows

responsibility on the merits. The circuits are unanimous

on this point. There is no need for this Court to revisit the

issue in this case.

CONCLUSION

Respondent Timothy D. Pope requests that the Court

deny the petition for writ of certiorari.

Respectfully submitted,

RAYMOND P FITzpaTRICK, JR.

Counsel of Record

Gary L. BRown

FITZPATRICK & Brown, LLP

1929 Third Avenue North

Suite 600

Birmingham, Alabama 35203

(205) 320-2255

Attorneys for Respondent

November 14, 2008