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

anu The

Supreme Court of the Anited States

°

STATE OF ALABAMA, et al.,

Petitioners,

V.

TIMOTHY D. POPE,

Respondent.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

S

BRIEF OF THE COMMONWEALTH OF VIRGINIA

AND 26 OTHER STATES AS AMICI CURIAE

IN SUPPORT OF THE PETITIONERS

+

ROBERT F. MCDONNELL WILLIAM C. MIMS

Attorney General of Virginia Chief Deputy Attorney

STEPHEN R. MCCULLOUGH General

State Solicitor General OFFICE OF THE ATTORNEY

Counsel of Record GENERAL

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436

(804) 786-1991 (facsimile)

Counsel for the

October 17, 2008 Commonwealth of Virginia

[Additional Counsel Listed On Inside Of Cover]

COCKLE LAW BRIEF PRINTING CO (S800) 225-6964

OR CALL COLLECT (402) 342-2831

TERRY GODDARD

Arizona Attorney General

JOHN W. SUTHERS

Colorado Attorney General

BILL MCCOLLUM

Florida Attorney General

THURBERT E. BAKER

Georgia Attorney General

MARK J. BENNETT

Hawaii Attorney General

LAWRENCE G. WASDEN

Idaho Attorney General

STEVE CARTER

Indiana Attorney General

DOUGLAS F. GANSLER

Maryland Attorney General

MARTHA COAKLEY

Massachusetts Attorney

General

MICHAEL A. Cox

Michigan Attorney General

MIKE MCGRATH

Montana Attorney General

JON C. BRUNING

Nebraska Attorney General

CATHERINE CORTEZ MASTO

Nevada Attorney General

ANNE MILGRAM

New Jersey Attorney

General

WAYNE STENEHJEM

North Dakota Attorney

General

NANCY H. ROGERS

Ohio Attorney General

W.A. DREW EDMONDSON

Oklahoma Attorney

General

HARDY MYERS

Oregon Attorney General

THOMAS W. CORBETT, JR.

Pennsylvania Attorney

General

HENRY MCMASTER

South Carolina Attorney

General

LAWRENCE E. LONG

South Dakota Attorney

General

ROBERT E. COOPER, JR.

Attorney General and

Reporter of Tennessee

GREG ABBOTT

Attorney General of Texas

MARK L. SHURTLEFF

Utah Attorney General

DARRELL V. MCGRAW, JR.

West Virginia Attorney

General

BRUCE A. SALZBURG

Wyoming Attorney General

QUESTION PRESENTED

Whether a litigant who requests and obtains the

same relief as the party from whom he seeks

attorneys’ fees—and whose interests are therefore

aligned with those of the would-be fee payer—is a

“prevailing party” entitled to fees within the meaning

of federal fee-shifting statutes.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................2ceceeseeeees i

TABLE OF AUTHORITIES ...................ceseccesseeees iv

is ies nicessnesseessuccseocesosenee 1

SUMMARY OF THE ARGUMENT...................... 2

I. THIS COURT SHOULD GRANT

CERTIORARI TO RESTORE CLARITY

Fe elt diectincsincinathintesnveininetinsnsimetes 4

A. The States need to know at the outset

of litigation when and under what

circumstances they risk exposure to

ee i iitnithacceseiicdntesctntslncemnntiiintat 4

B. Lack of clarity promotes needless

oi iiciniscnnndcssmedunnsdinrineshebiednesitingie 6

Il. THE SITUATION PRESENTED IN

THE PETITION IS ONE THAT THE

STATES EXPERIENCE WITH GREAT

PF IIE bitnircentreivnsviwieesissvasennumseninpinsens 8

Ill. AWARDING ATTORNEYS’ FEES AGAINST

A STATE THAT WAS ALIGNED

WITH THE FEE CLAIMANT WOULD

CONTRADICT THE PURPOSES

BEHIND ATTORNEYS’ FEE-SHIFTING

EE IE edhiariiniinsnscsesysscnpaiceeiescicndiiosvenetbis 12

A. The “private attorney general”

rationale does not apply when the

State seeks the same relief sought by

an aligned private litigant .................. 12

ili

TABLE OF CONTENTS - Continued

Page

B. The notion of “just desserts” cannot

justify a fee award when the State

has not violated the rights of the

i ieee 13

IV. THE REASONING OF THE EIGHTH

AND ELEVENTH CIRCUITS LACKS

ANY HISTORICAL BASIS AND

CONTRAVENES CONGRESSIONAL

EE cabidiibetnipitidscndcanscspcunddammauiabinendiassineetes 15

A. The reasoning of the Eighth and

Eleventh Circuits ignores’ the

historical backdrop against which

attorneys’ fee-shifting statutes were

Re iiicictsinengnmaiebstitnidacnsbileanciiibaittsaiidaenecinaete 15

B. Congress makes its intent plain when

departing from longstanding practice... 17

eye ciatiinipccnienninniadhevidaiiuidnenielninbeneiieess 18

iv

TABLE OF AUTHORITIES

Page

CASES

Action on Smoking & Health v.

Civil Aeronautics Bd.,

Fe ee re IE BOD oo scceccc cer sceccncsccccscsconnssenn 6

Allstate Ins. Co. v. Abbott,

495 F.3d 151 (5 Cir. 2007),

cert. denied, 128 S. Ct. 1334 (2008)........................ 10

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

I os sdieedeaiennaiiiii 15, 16

Bigby v. City of Chicago,

ee Re Ce Ms BODE) aseseninecceccciccssssccssensccommnnel 6

Blum v. Stenson,

I LAAT NTE ER 4

Brooks v. Vassar,

Be Se FD Cie PRs BID vn vncccicccccdscnscocscncsesencent 4

Christiansburg Garment Co. v. EEOC,

ot a ceadaniecmecicibeligeaniilann 14

Engine Mfrs. Ass’n v. S. Coast Air

Quality Mgmt. Dist.,

a I I an iirc sida ccntsnsienennindiinpnntihntisihadsinngiielanal 11

Firebird Soc’y v. Members of the Bd.

of Fire Comm’rs,

ee Oe Ge, BIT TD ov nvvcccceccnccectcccssesccccsensssnuanl 6

Hensley v. Eckerhart,

i I Girisniccnsctisiesicksosecsacsinecnanil 6, 15, 18

Jenkins v. Missouri,

cho Ff fF gio "| RRC Ey 5,7

Vv

TABLE OF AUTHORITIES — Continued

Page

Kentucky v. Graham,

EE eT a 14

Marek v. Chesny,

i senndnsecbonsnooenenieed 8

Missouri v. Jenkins,

a sl pdudinensonacunsecods 4

New York State Bd. of Elections v. Lopez-Torres,

126 S. Ct. 791 (2007)..............000. PILL ae Come OO 10

Ruckelshaus v. Sierra Club,

I ID ao conc cnconsccccccscevecccccecccese 14, 15, 17

Sole v. Wyner,

a cesensscosnnseons 14

Stotts v. Memphis Fire Dept’,

SIT GOEL BIE) .....cecccocccccesssccesessecnsesetss 10

Texas State Teachers Ass’n v.

Garland Indep. Sch. Dist.,

a. scnsnasogsvosscoccesesecsosees 12

United States v. Flowers,

No. 07-14854, 2008 WL 2440028

ES iol

STATUTES

nn, Sr IACMR EG. cccccescnceccccccceceeccces 17

TD. cs ccsedeenecscaccosecoucccecs 8

a snuucenowedecusecceuavada fe)

a iniiciaecictentniskscinchesenabencdassstescossessed 8

vi

TABLE OF AUTHORITIES — Continued

Page

a I arkitetinttisnnicnncntienidnnececeas 8, 12, 14, 15, 16

Oe es II xe vniscccscincescneswsensescunnaseoscnneieitbabelial 8

cs ceicnmatiseniininiienanleniaihila elaine 8

I ee Di kccreccnccccsescascnnesesctectvoesdsmensanaitaiin 8

hte is ckcdicicdsusnnsacsissecnnicinioiiontshceewunniiiiaal 9

ee ET tictiicliniinnnnsinesidniinensiisnnnaibeciaiditinduiiellaial 8

LEGISLATIVE HISTORY

H. Rep. No. 94-1558 (1976) ................0..ceeceeee. 12, 13, 14

Bs MN, DO. Re CRP ccvccececsunccssescssccosccessceese 12-14

122 Cong. Rec. 33313 (1976) (remarks of Sen.

i iticistcicvinntiigatdtitivinismninncninindhiibninitnnnaninnitinnie 13

122 Cong. Rec. 33314 (1976) (remarks of Sen.

TIT chica nceehiobdechehlatidpatdbiesamiaanieb tintin 18

122 Cong. Rec. 35128 (1976) (remarks of Rep.

IED iicitaeuniinibicictibdndincatniiiddadedachapbiiaaanaemednianmidanael 13

OTHER AUTHORITY

Lindsay Fortado, Hourly Billing Rates

Continue to Rise, National Law Journal, Dec.

ERE RCT STP as em OR an ee er eed b Mae Ra oe: oe eR 4

Alan Hirsch & Diane Sheehey, Awarding

Attorneys’ Fees and Managing Fee Litigation

(Federal Judicial Center, 2d ed. 2005)...............0.... 8

Leigh Jones, Law Firms Continue to Raise

Rates, National Law Journal, Dec. 6, 2006.............. 4

vii

TABLE OF AUTHORITIES — Continued

Lynne Marek, State AG Offices Struggle with

Cuts, National Law Journal, Sept. 15, 2008............ 1

Margo Schlanger, Civil Rights Injunctions Over

Time: A Case Study of Jail and Prison Court

Orders, 81 N.Y.U. L. Rev. 550 (2006)........................ 9

Ruth Singleton, Billing Rates Remain High,

National Law Journal, Dec. 16, 2002....................... 4

1

INTEREST OF AMICI

The question presented in the petition is one of

considerable importance and practical significance to

the States. Several points are indisputable. First, as

frequent litigants in the courts of the United States,

the States are exposed to a wide range of attorneys’

fee-shifting statutes. Second, attorneys’ fee awards

often involve substantial sums. Third, particularly at

a time of great budgetary strain,’ the States would

rather devote their limited resources to solving real

problems than litigating about attorneys’ fees.

Moreover, protracted fee litigation and improper fee

awards will deter the States from vigorously

enforcing state and federal law. Finally, and

importantly here, during the course of litigation, the

States’ interests often are aligned with those of a

variety of other private litigants.

Under the law in three Circuits, the States are

exposed to attorneys’ fees only if they lose. In

contrast, under the emergent view adopted by the

Eighth and Eleventh Circuits, the States perversely

‘ Counsel for Virginia by written letter has informed

counsel for the parties of its intent to file this brief.

* The National Conference of State Legislatures noted in

Apml 2008, in its State Budget Update, that, “[w]ith a few

exceptions, state finances are deteriorating, in some cases

considerably.” Available at: http://www.ncsl.org/programs/fiscal/

sbu200804. htm. These cuts have had a considerable impact on

many State Attorneys’ General. See Lynne Marek, State AG

Offices Struggle with Cuts, National Law Journal, Sept. 15,

2008.

2

face exposure to attorneys’ fees from an aligned party

even if they win. This state of confusion requires

state litigants to focus.on fee exposure rather than

the merits of the controversy.

The States urge this Court to grant the petition

for certiorari to resolve this important issue and to

restore needed clarity to the law.

+

SUMMARY OF THE ARGUMENT

The Petition should be granted for several

reasons. First, the States need clarity in this area of

the law. Put simply, the States need to know with

some certainty when and under what circumstances

they can be subjected to attorneys’ fee awards.

Attorneys’ fees can represent a considerable expense.

In addition, disputes about attorneys’ fees often

become “second major litigation{[s)”—and add a

second layer of expense—for the States. Clarity in the

law regarding exposure to attorneys’ fees thus is

absolutely critical for the States. At present, the

Circuits are divided on the issue of whether an

aligned party can recoup fees from the State, even

where the State requests the very same relief as the

aligned party and even where the State prevails in

that request. This uncertainty promotes protracted

satellite litigation on the issue of fees that bogs down

the judicial process and consumes scarce state

resources.

3

Second, the question presented can be expected

to recur with great regularity. States are frequent

litigants in a variety of cases involving, for instance,

law-enforcement, corrections, education, and

environmental laws. In these and many other areas,

Congress has enacted fee-shifting statutes. So too, in

these and other areas, States often find themselves

subject to long-running and multi-faceted injunctions

and decrees that, from time to time, need to be

modified or abrogated. Finally, in litigating these

cases, States often find themselves aligned with other

litigants. These cases are fertile ground for fee

litigation, and the Eleventh Circuit’s rule—under

which aligned parties may seek fees from the State

even though the State has prevailed—threatens to

expand fee litigation exponentially.

Third, awarding fees against an aligned party

contradicts the purposes underlying attorneys’ fee

statutes. The primary purpose behind fee-shifting is

to ensure that a litigant can secure a champion in the

courts. That rationale does not apply when a State is

advocating for the same relief. Another justification

for fee-shifting is that the wrongdoer should be made

to pay for violating the rights of another. Where a

State prevails, and has advocated a position that

benefits the fee claimant, the State has not wronged

that same fee claimant.

Finally, awarding fees against an _ aligned,

prevailing party is inconsistent with the two

dominant paradigms for fee-shifting and _ the

congressional intent that underlies these statutes:

4

the “American Rule,” where each litigant covers his

own attorneys’ fees, and the “English Rule,” where

fees frequently are shifted to the loser. Awarding fees

against a party that is litigating alongside the fee

seeker fits neither paradigm. Had Congress intended

such a radical departure from these historical models,

it would have made its intent clear.

I. THIS COURT SHOULD GRANT

CERTIORARI TO RESTORE CLARITY TO

THE LAW.

A. The States need to know at the outset

of litigation when and under what

circumstances they risk exposure to

attorneys’ fees.

It is crucial for any litigant, and particularly the

States, to know from the outset of litigation about

exposure to attorneys’ fees. Attorneys’ fees can be

significant’ and, in fact, can dwarf any damages

* For example, the State of Virginia presently is litigating a

claim of attorneys’ fees totaling $716,478. Brooks v. Vassar, No.

3:99cv755 (E.D. Va. 2008). Attorneys’ fees can be assessed based

on a “prevailing rate.” Blum v. Stenson, 465 U.S. 886, 889

(1984); Missouri v. Jenkins, 491 U.S. 274, 283 (1989) (“Our cases

have repeatedly stressed that attorneys’ fees ... are to be based

on market rates for services rendered.”). These rates, of course,

consistently have risen over the years. See Lindsay Fortado,

Hourly Billing Rates Continue to Rise, National Law Journal,

Dec. 12, 2005; Leigh Jones, Law Firms Continue to Raise Rates,

National Law Journal, Dec. 6, 2006; Ruth Singleton, Billing

Rates Remain High, National Law Journal, Dec. 16, 2002

(noting that “[a]lthough not huge, increases are the norm”).

5

award. Exposure to attorneys’ fees can affect the way

a State responds to litigation or even whether the

State initiates litigation. For example, a State may

find it tactically wise to settle a case, even when the

State believes its position is meritorious, simply to

avoid the risk of a substantial fee award. Similarly, a

State may decline to file or intervene in an action it

believes is meritorious if doing so risks a large

attorneys’ fee award.

Although exposure to attorneys’ fees is an

important concern for any litigant, these concerns are

magnified for the States. As further explained below,

the States frequently must litigate in federal court to

defend state statutes and regulations or to seek the

modification or termination of long-running

injunctions and decrees. In many frequently litigated

areas, such as_ corrections, housing, and_ the

environment, Congress has enacted fee-shifting

statutes. In litigating these cases, the States

frequently find themselves aligned with, and

litigating alongside, another party. Therefore, the

issue presented by the petition is of great

consequence to the States.

While the States need clarity, at present, the

Circuits are divided on the question of whether an

aligned, prevailing party can be made to pay

attorneys’ fees. In the Eighth and Eleventh Circuits,

a plaintiff can obtain attorneys’ fees against an

aligned state party who prevailed. United States v.

Flowers, No. 07-14854, 2008 WL 2440028 (11"” Cir.

June, 18, 2008); Jenkins v. Missouri, 73 F.3d 201, 204

6

(8" Cir. 1996). In contrast, in the Second, Seventh,

and D.C. Circuits, a litigant who is aligned with the

prevailing state party cannot recoup attorneys’ fees.

Firebird Soc’y v. Members of the Bd. of Fire Comm’rs,

556 F.2d 642, 643-44 (2 Cir. 1977); Bigby v. City of

Chicago, 927 F.2d 1426, 1429 (7" Cir. 1991); Action on

Smoking & Health v. Civil Aeronautics Bd., 724 F.2d

211, 216 (D.C. Cir. 1984).

The question that the petition presents thus is

important to the States and ripe for decision. This

Court should grant the petition for a writ of certiorari

to clarify the law.

B. Lack of clarity promotes needless

litigation.

Clarity in the law governing attorneys’ fees is

important not only so a State can know whether to

settle, to intervene, or even to file a lawsuit in the

first place, but also so a State can avoid needless

collateral litigation on the issue of attorneys’ fees.

This Court has emphasized the need to avoid turning

disputes about attorneys’ fees into “second major

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

(1983). Until this Court resolves the issue, the States

will continue to face claims by aligned parties that

they are entitled to fees, even with respect to issues

in which the State prevailed.

The amorphous standards employed by the

Eighth and Eleventh Circuits inevitably will

encourage “second major litigation” at the district

7

court level. These vague standards provide a powerful

incentive for the fee claimant to seek fees and then, if

necessary, to appeal any adverse decision by the

district court. The Eleventh Circuit concluded that

the intervening plaintiff was entitled to fees because

his “contribution was a substantial force” in the

district court’s decision. Pet. App. 5a. Establishing

what constitutes a “substantial force” in a court’s

decision is hardly subject to ready determination.

Every aligned litigant will make such claims which

the States will have no choice but to oppose. These

disputes will be time-consuming and will require

courts to make difficult analyses of hotly contested

facts.

The standard employed by the Eighth Circuit is

no better. Plaintiffs who seek the same relief as the

State are entitled to fees because intervening parties

need a “means for paying their attorneys” in cases

where litigation “can continue for years and affect

nearly everyone in the community.” Jenkins, 73 F.3d

at 204 n.3. The Eighth Circuit also reasoned that fees

are justified when a type of litigation “seldom results

in a monetary recovery.” Jd. Although Jenkins dealt

with school desegregation litigation, the open-ended

criteria applied by the Eighth Circuit cover a variety

of situations. In the States’ view, when a litigant is

aligned with the State and has requested the same

relief, that aligned litigant is not entitled to attorneys’

fees from the State. A contrary rule—or even

uncertainty—will essentially ensure a proliferation

of “second major litigation” on attorneys’ fees. The

8

States urge the Court to grant certiorari to avoid that

circumstance.

Il. THE SITUATION PRESENTED IN THE

PETITION IS ONE THAT THE STATES

EXPERIENCE WITH GREAT FREQUENCY.

Congress has enacted a wide variety of statutes

that deviate from the American Rule and authorize a

court to award attorneys’ fees to prevailing plaintiffs.

By one estimate, Congress has enacted more than

200 such statutes. Alan Hirsch & Diane Sheehey,

Awarding Attorneys’ Fees and Managing Fee

Litigation (Federal Judicial Center, 2d ed. 2005). See

also Marek v. Chesny, 473 U.S. 1, 44-51 (1985)

(appendix to opinion of Brennan, J., dissenting).

These statutes allow fee-shifting in areas that the

States litigate frequently.

The States constantly are engaged in defending

their statutes and regulations from constitutional

challenges under, for example, the Eighth

Amendment, the First Amendment, and the Fourth

Amendment cases involving prisons, law-enforcement,

mental-health facilities, and schools. Several statutes

authorize fee-shifting for this recurring litigation.

See 42 U.S.C. § 1988 and 42 U.S.C. §§ 2000a-3(b),

2000b-1, 2000e-5(k).*

* See also 42 U.S.C. § 12205 *mericans with Disabilities

Act); 42 U.S.C. §1973Ke) (Voting Rights Act); 20 U.S.C.

§$ 1415043) B) (Individuals with Disabilities Education Act).

9

Often, these cases—and the fee requests that

accompany them—result in comprehensive and

continuing injunctions or consent decrees. Although

the number of federal injunctions and decrees cannot

be determined with certainty, there is no doubt that

they are a staple of modern litigation. See Margo

Schlanger, Civil Rights Injunctions Over Time: A Case

Study of Jail and Prison Court Orders, 81 N.Y.U.

L. Rev. 550, 629 (2006) (noting the existence of

“thousands of federal consent decrees that currently

exist”). As time passes, and as the decrees become

factually or legally outdated, the States inevitably

will seek to modify or terminate them. Under the

Eleventh Circuit’s rule, every motion to modify risks

triggering an intervention and a subsequent fee

petition.

Environmental litigation is another common

source of fee disputes for the States. The States often

defend environmental statutes and regulations from

“both sides”—on the one hand, against environmental

groups and concerned citizens who claim. the

regulations are too lax, and on the other hand,

against claims brought by industry groups who assert

that the regulations are too onerous. Again, Congress

has enacted provisions in the environmental statutes

that allow for fee-shifting. See 33 U.S.C. § 1365(d)

(Clean Water Act); 42 U.S.C. § 7607(f) (Clean Air Act).

A State frequently has to defend its laws or

regulations or litigate an injunction in one or more of

these areas where it is aligned with some other party

in the case. Under the Eleventh Circuit’s rule, that

10

aligned party could then make a claim for attorneys’

fees against a prevailing State. For example, in this

Court’s recent decision in New York State Bd. of

Elections v. Lopez Torres, 128 S. Ct. 791, 794 (2008),

the New York County Democratic Committee, New

York Republican State Committee, Associations of

New York State Supreme Court Justices in the City

and State of New York, as well as the State

Association’s president, intervened with the State

Board of Elections to defend the constitutionality of

the method of selection for party nominees. When

insurers challenged, on constitutional grounds, a

Texas law prohibiting insurance companies from

operating and owning body shops, the _ state

defendants found themselves aligned with two

intervenors: the Automotive Service Association, a

national organization of auto body shops, and

Consumer Choice in Auto Body Repair. Allstate Ins.

Co. v. Abbott, 495 F.3d 151, 154 n.1 (5 Cir. 2007),

cert. denied, 128 S. Ct. 1334 (2008). As the case at bar

illustrates, a State seeking to modify or dissolve an

injunction may find itself aligned with an individual

plaintiff or any of a number of other concerned

parties. Consider, for example, Stotts v. Memphis Fire

Dep't, 679 F.2d 541, 541 (6" Cir. 1982), in which the

local firefighters union intervened on the side of the

City to protect its members’ interests in modifying a

consent decree governing the City’s hiring practices.

So too when industry attacks a_ State’s

environmental law, the State may be aligned with

public interest organizations. Conversely, when an

11

environmental advocacy group challenges a State law

or regulation, the State often will find itself litigating

alongside particular industry or farming groups. The

alignment of parties in Engine Mfrs. Ass’n v. S. Coast

Air Quality Mgmt. Dist., 541 U.S. 246 (2004),

illustrates this phenomenon. There, the Coalition for

Clean Air, the Natural Resources Defense Council,

Communities for a Better Environment, the Planning

and Conservation League, and the Sierra Club were

all aligned with a regional government agency in

California. Jd. at 251 n.4.

The simple fact is that in litigation implicating

the more than 200 attorneys’ fee statutes, the States

often will find themselves aligned with a wide variety

of advocacy groups, political parties, business

entities, and interested individuals. The Eleventh

Circuit’s rule opens up the States to fee liability, even

to aligned co-parties, and even when the State

prevails.

The scenario faced by Alabama in the case at bar,

in which a State litigating alongside an aligned party

was forced to pay that party’s bill, is one the States

face with increasing frequency. Adding to this

dynamic is the fact that the rule adopted by the

Eleventh Circuit encourages litigants and their

lawyers to “piggyback” on a State’s litigation in an

effort to generate and then claim fees. Because the

scenario that unfolded in the courts below is one that

the States often confront, the issue presented in the

petition is vu. great practical significance to the States.

12

Ill, AWARDING ATTORNEYS’ FEES AGAINST

A STATE THAT WAS ALIGNED WITH THE

FEE CLAIMANT WOULD CONTRADICT

THE PURPOSES BEHIND ATTORNEYS’

FEE-SHIFTING STATUTES.

A. The “private attorney general”

rationale does not apply when the

State seeks the same relief sought by

an aligned private litigant.

In providing for attorneys’ fees for a prevailing

party, Congress sought to enable citizens to act as

“private attorneys general” by ensuring they had

access to counsel. Texas State Teachers Ass’n uv.

Garland Indep. Sch. Dist., 489 U.S. 782, 793 (1989)

(observing that Congress meant to promote a role for

citizens as “private attorneys general” in enacting 42

U.S.C. § 1988). With respect to § 1988, the Senate

Report provided that

All of these civil rights laws depend heavily

upon private enforcement, and fee awards

have proved an essential remedy if private

citizens are to have a meaningful

opportunity to vindicate the important

Congressional policies which these laws

contain.

S. Rep. No. 94-1011, p. 2 (1976). The House Report

likewise notes that “{iJn many instances where [civil

rights] laws are violated, it is necessary for the

citizen to initiate court action to correct the illegality.”

H. Rep. No. 94-1558, p. 1 (1976). “Because a vast

majority of the victims of civil rights violations cannot

13

afford legal counsel, they are unable to present their

cases to the courts.” Jd. See also 122 Cong. Rec. 35128

(1976) (remarks of Rep. Seiberling) (“Unless you can

get adequate legal representation, the civil rights

laws are just a lot of words”); id. at 33313 (remarks of

Sen. Tunney) (“Unless effective ways are found to

provide equal legal resources, the Nation must expect

its most basic and fundamental laws to be objectively

[sic] repealed by the economic fact of life that the

people these laws are meant to benefit and protect

cannot take advantage of them. Attorneys’ fees have

proved one extremely effective way to provide these

equal legal resources. ... ”).

Importantly, the need for a “private attorney

general” to police violations of the law is either

nonexistent or minimal where the State—often,

through the actual attorney general—is seeking the

same relief. When the State is devoting its resources

to obtaining the very relief the plaintiff seeks, the

private litigant already has a champion. In that

circumstance, a fee award is not justified.

B. The notion of “just desserts” cannot

justify a fee award when the State has

not violated the rights of the aligned

party.

One foundation of fee-shifting statutes is the

notion that assessing attorneys’ fees is justified

because the party who is forced to pay has inflicted

some wrong on the party seeking the fees. The Senate

14

noted in its report regarding § 1988 that “[i]f private

citizens are to be able to assert their civil rights, and

if those who violate the Nation’s fundamental laws are

not to proceed with impunity, then citizens must

recover what it costs them to vindicate these rights in

Court.” S. Rep. No. 94-1011, p. 2 (1976) (emphasis

added). Similarly, the House Report noted that

fee-shifting was necessary to help the plaintiff

“correct the illegality.” H. Rep. No. 94-1558, p. 1

(1976). This Court’s cases reflect the same premise—

that forcing a party to pay attorneys’ fees must satisfy

“ordinary conceptions of just returns” and “intuitive

notions of fairness.” Ruckelshaus v. Sierra Club, 463

U.S. 680, 685 (1983). See also Kentucky v. Graham,

473 U.S. 159, 165 (1985) (“[wJhere a defendant has

not been prevailed against ... § 1988 does not

authorize a fee award against that defendant.”);

Christiansburg Garment Co. v. EEOC, 434 U.S. 412,

418 (1978) (noting an equitable principle that justifies

an award of attorneys’ fees is that “when a district

court awards counsel fees to a prevailing plaintiff, it

is awarding them against a violator of federal law”)

(emphasis added).

Consistent with this common-sense notion, this

Court repeatedly has concluded, including most

recently in Sole v. Wyner, 127 S. Ct. 2188 (2007), that

the loser in litigation should not be permitted to

recover fees from the winner. The Court has observed

that “ordinary conceptions of just returns reject the

idea that a party who wrongly charges someone with

violations of the law should be able to force that

15

defendant to pay the costs of the wholly unsuccessful

suit against it.” Ruckelshaus, 463 U.S. at 685. By the

same token, the State should not have to pay fees toa

party whom it never wronged—let alone one whose

cause the State has actively supported in the

underlying litigation. Where, as in this case, the

State has not wronged an aligned fee seeker, the

State should not be forced to pay that party’s

attorneys’ fees.

IV. THE REASONING OF THE EIGHTH

AND ELEVENTH CIRCUITS LACKS ANY

HISTORICAL BASIS AND CONTRAVENES

CONGRESSIONAL INTENT.

A. The reasoning of the Eighth and

Eleventh Circuits ignores the historical

backdrop against which attorneys’

fee-shifting statutes were enacted.

The determination by the Eighth and the

Eleventh Circuits to award fees against aligned,

prevailing parties ignores the historical backdrop

that gave rise to attorney fee-shifling provisions.

Congress enacted § 1988—and a host of other

fee-shifting statutes—in direct response to this

Court’s decision in Alyeska Pipeline Serv. Co. v.

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

Hensley, 461 U.S. at 429 (noting that § 1988 was

enacted in response to the Alyeska decision). The

plaintiffs in Alyeska sought to block the construction

of the trans-Alaska oil pipeline, but their lawsuit

ultimately was mooted by legislation. Alyeska, 421

16

U.S. at 244-45. The Ninth Circuit nevertheless

concluded that the plaintiffs were entitled to

attorneys’ fees. Id. at 245-46. This Court, after a

careful review of the historical principles underlying

fee-shifting, reversed this award of fees. This Court

concluded that the longstanding practice under the

“American Rule” was that the “prevailing litigant is

ordinarily not entitled to collect a reasonable

attorneys’ fee from the loser.” Jd. at 247. The Court

contrasted the practice under the American Rule with

the way attorneys’ fee awards had developed in

England. Jd. The Court discussed the deep historical

roots of these two approaches, noting that for

centuries English courts had assessed attorneys’ fees

against the loser in litigation, whereas the American

Rule dated back to 1796. Id. at 247-51. This Court

declined to fashion on its own a far-reaching

exception to the American Rule. /d. at 247, 269.

Because Congress enacted § 1988 in direct

response to Alyeska, it was surely aware of these two

historical paradigms. There is no support in the text

or legislative history of § 1988 for the notion that

Congress intended to usher in sub silentio some

ahistorical departure from both the American Rule

and the English tradition by permitting courts to

assess attorneys’ fees against a prevailing party.

Where one party is vindicated, as the State was here,

it should not be forced to pay attorneys’ fees, either to

the loser or to an aligned party.

17

B. Congress makes its intent plain when

departing from longstanding practice.

The Eighth and Eleventh Circuits have

concluded that a litigant can obtain attorneys fees

against a prevailing State on the basis of some

“contribution” made to the litigation by a litigant who

is aligned with the State. Setting aside the

tremendous practical problems that rule raises—and

the litigation explosion it will detonate—the court’s

holding constitutes a radical departure from the two

dominant historical approaches to attorneys’ fees.

Had Congress intended such a dramatic break with

tradition, it would have made its intent clear In a

comparable context, this Court found that “il!

Congress had intended the truly radical departure

from the American and English common law and

countless fee-shifting statutes that the [court of

appeals] attribute[d] to it, it would no doubt have

used explicit language to this effect.” Ruckelshaus,

463 U.S. at 685 n.7. The Court noted in Ruckelshaus

that where Congress desires to jettison settled models

and chart a new course, it knows how to do so. See id.

(noting that in 15 U.S.C. § 2605(c)(4)(A\(i), Congress

authorized an attorneys’ fee award if a party

“represents an interest which would substantially

contribute to a fair resolution of the issues”). Where

Congress has not included “contribution” language

into a fee-shifting statute, courts should not judicially

add that gloss simply to achieve what they perceive to

be a “fair” result. Congress clearly did not enact

attorneys’ fee statutes to serve as a “‘relief fund for

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lawyers.” Hensley, 461 U.S. at 446 (Brennan, J.,

concurring in part and dissenting in part) (quoting

122 Cong. Rec. 33314 (1976) (remarks of Sen.

Kennedy)). The Eleventh Circuit’s rule creates just

such a fund.

+

CONCLUSION

For the reasons stated above and in the Petition

itself, the Petition for Certiorari should be

GRANTED.

Respectfully submitted,

ROBERT F. MCDONNELL WILLIAM C. MIMS

Attorney General of Virginia Chief Deputy Attorney

STEPHEN R. MCCULLOUGH General

State Solicitor General OFFICE OF THE ATTORNEY

GENERAL

900 East Main Street

Richmond, Virginia 23219

(804) 786-2436

(804) 786-1991 (facsimile)

Counsel for the

October 17, 2008 Commonwealth of Virginia

{Additional Counsel Listed On Inside Of Cover]