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

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( ‘\ No. 08-345

upreme

F

In the Supreme Court of the Gnited 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

BRIEF OF AMICI CURIAE INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION,

NATIONAL LEAGUE OF CITIES, UNITED

STATES CONFERENCE OF MAYORS, NA-

TIONAL ASSOCIATION OF COUNTIES,

AND INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION

IN SUPPORT OF PETITIONERS

DANIEL R. ORTIZ.

University of Virginia

School of Law Supreme

Court Litigation Clinic

580 Massie Road

Charlottesville, VA 22903

(434) 924-3127

MARK T. STANCIL*

Robbins, Russell, Englert,

Orseck, Untereiner &

Sauber LLP

1801 K Street, NW,

Suite 411

Washington, DC 20006

(202) 775-4520

*Counsel of Record

QUESTION PRESENTED

Whether a litigant who requests and obtains the

same relief as the party from whom he seeks

attorney's 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.

li

TABLE OF CONTENTS

Page

QU EION PRRIIIIN 2 ODD 000.0c0cccces.cccsscesessccscssesceeccerees i

Se Bee I veicessccsesesecicosevsasncsonctasiotes iv

INTEREST OF AMICI CURIAE ...............ccsecsssccssessssees 1

SUMMARY OF ARGUMENT ............ ivisiiadianandiatiil 3

REASONS FOR GRANTING THE PETITION......... 4

I. THE ELEVENTH CIRCUITS RULE WILL

DRAMATICALLY INCREASE MUNICIPALI-

TIES’ EXPOSURE TO ATTORNEYS FEE

SE Mickadienhcieaiititndennsiniaesanainiahabemmdiesaianmininiuneesias 5

A. A Staggering Number of Ongoing Federal

Court Orders Subject to Federal Fee-

Shifting Statutes Require Periodic Modifi-

EE ciiiiiiidsctasdesetnddnatethsdinssiatcssadsanpmianteciametmeach 6

B. Allowing Non-Adversarial Litigants to Col-

lect Attorney’s Fees Would Seriously Harm

Cash-Strapped Municipalities........................ 10

Il. LOCALITIES ARE PARTICULARLY VUL-

NERABLE TO THE CLAIM-JUMPING

THAT THE ELEVENTH CIRCUIT’S RULE

lil

A. As This Record Shows, Deeming Non-

Adversarial Litigants “Prevailing Parties”

Can Encourage Nakedly Strategic Claim-

i ciindiihncrerhnshanstébintinuimainddbenaiintionéiiende 12

B. Because Localities Almost Always Operate

Transparently, They Are Particularly Vul-

nerable to Claim-Jumping........................2.02+- 15

lil, THE ELEVENTH CIRCUIT'S RULE GIVES

LOCALITIES EXACTLY THE WRONG IN-

iis clustideisntininibiciinbnsinnidnsaniinlabumniidionipnaniniinn 17

A. The Rule Discourages Localities From Seek-

ing to Modify Obsolete or [legal Judicial

Orders, Perversely Increasing The Need for

“Private Attorneys General” ....................2.000 17

B. The Rule Creates Incentives In Primary

Litigation That Favor Protracted Litigation

And Voluntary Capitulation Over Settle-

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Agostini v. Felton, 521 U.S. 203 (1997)...................02.. 8

Bounds v. Smith, 430 U.S. 817 (1977) .............0..0..0005. 8

Bradley v. School Bd., 416 U.S. 696 (1974).............. 14

Brown v. Unified Sch. Dist. No. 501, 56 F. Supp.

I cutunts 6-7

Buckhannon Bd. & Care Home v. W. Va. Dep't of

Health & Human Res., 532 U.S. 598

NSE ne ol oor eae SS aoe ee 18, 22, 23

City of Newport v. Fact Concerts, Inc., 453 U.S.

ERIS “ERO ee eRe ei ean oar 10

City of Rancho Palos Verdes v. Abrams, 544 U.S.

ATES SATEEN ee oe Ome NE 10

City of Riverside v. Rivera, 477 U.S. 561 (1986)....... 10

Clark-Cowlitz Joint Operating Agency v. Federal

Energy Regulatory Comm’n, 798 F.2d 499 (D.C.

EEE TS LORS I ST OT OS TON 16

Donnell v. United States, 682 F.2d 240 (D.C. Cir.

Sc ctranisaiiien 20

Evans v. Jeff D., 475 U.S. 717 (1986).................. 10, 22

Gratz v. Bollinger, 539 U.S. 244 (2008) ...................04. 8

Grutter v. Bollinger, 539 U.S. 306 (2003) ................... 8

Hensley v. Eckerhart, 461 U.S. 424 (1983) ......... 12, 19

Key Tronic Corp. v. United States, 511 U.S. 809

RRR reg Pac ae a ee 18

Lewis v. Casey, 518 U.S. 343 (1996)..................ccccceeees 8

Marek v. Chesny, 473 U.S. 1 (19885) .............0000..00000.. 22

Parents Involved in Cmty. Sch. v. Seattle Sch. Dis-

eee fe eR 8

Rufo v. Inmates of Suffolk County Jail, 502 U.S.

a is ealamhiamas 7-8

Vv

United States v. Board of Educ., No. 80-C-5124,

2004 U.S. Dist. LEXIS 3067 (N.D. Ill. Mar. 1,

SITE icchsrscititscnicipncueibnatiacddieiemmaipiieedacedbebtdnsdaibaminiebeeaneveite g

Wilson v. Setter, 501 U.S. 294 (1991)........... cee 8

Statutes

IIE III. srrcins ecsargniptrhcidineasdeaiesiiin neni 9

Se, Oe EE PEED ccvsnccsscviovevesivbnsioescsesaueanennaal 9

i a eee 6

fs TREC ve mer eee eee ==> 18

Be ae ET Oe Di vondnntctebcescntsiusdvresnisescesonsenswibunel 6

Ark. Code Ann. § 25-19-102 (West 2008).................. 17

Other Legislative Materials

Federal Consent Decree Fairness Act, S. 2289,

H.R. 4041, 110th Cong., 1st Sess. (2007)............... 9

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976).......... 19

Miscellaneous

Anthony G. Cahill & Joseph A. James, Responding

to Municipal Fiscal Distress: An Emerging Is-

sue for State Governments in the 1990s, 52 Pub.

Re Ts Se cnvivcntavestinienmitinadibiiel cies 11

Camille Graham Camp & George M. Camp, The

Corrections Yearbook: Adult Systems (2001)......... 7

Beth Walter Honadle, The States’ Role in U.S. Lo-

cal Government Fiscal Crises: A Theoretical

Model and Results of a National Survey, 26

Int'l J. Pub. Admin. 1431 (2003).......................... 11

Omer Kimhi, Reviving Cities: Legal Remedies to

Municipal Financial Crises, 88 B.U. L. Rev.

SE IIE 00+ cnsscdsdecosenuietietinesanmeialiaiaeienamiane 11

vl

Thomas D. Rowe, Jr., The Legal Theory of Attor-

ney Fee Shifting: A Critical Overview, 1982

EE Ar 19

Ross Sandler & David Schoenbrod, Democracy by

RESCUE SC 7

Margo Schlanger, Civil Rights Injunctions Over

Time: A Case Study of Jail and Prison Court

Orders, 81 N.Y.U. L. Rev. 550 (2006) ............ 6, 7,9

Ann Taylor Schwing, Open Meeting Laws

(TIE ERT Seca ere nes Oe ee a 15, 16, 17

David Zaring, National Rulemaking Through

Trial Courts: The Big Case and Institutional

Reform, 51 UCLA L. Rev. 1015 (2004) .............. 6, 7

INTEREST OF AMICI CURIAE!

The International M nicipal Lawyers Association

(IMLA), previously known as the National Institute

for Municipal Law Officers, is a non-profit, proves-

sional organization of over 2500 members. Since

1935, IMLA has served as a national, and now inter-

national, clearinghouse for legal information and has

fostered cooperation on municipal legal matters.

IMLA’s mission is to advance the development of

municipal law, which includes advocating the na-

tionwide views of local governments on legal issues.

The National League of Cities (NLC) -is the oldest

and largest national organization representing mu-

nicipal governments throughout the United States.

Its mission is to strengthen and promote cities as

centers of opportunity, leadership, and governance.

Working in partnership with the 49 state municipal

leagues, NLC serves as a resource to and an advocate

for the more than 19,000 cities, villages, and towns it

represents. More than 1,600 municipalities of all

sizes pay dues to NLC and actively participate as

leaders and voting members in the organization.

The United States Conference of Mayors (USCM)

is the official nonpartisan organization of the 1,139

cities with populations of 30,000 or more. The pri-

mary roles of The U.S. Conference of Mayors are to

promote the development of effective national ur-

1 The parties received notice of intention to file this amicus brief

at least ten days prior to its due date and consented to its filing.

No counsel for a party has authored this brief in whole or in

part, and no person or entity, other than amici or their counsel,

has made a monetary contribution to the preparation or submis-

sion of this brief.

2

ban/suburban policy; to strengthen federal-city rela-

tionships; to ensure that federal policy meets urban

needs; to provide mayors with leadership and man-

agement tools; and to create a forum in which mayors

can share ideas and information.

The National Association of Counties (NACo) is

the only national organization that represents county

governments in the United States. Founded in 1935,

NACo provides essential services to the nation’s 3,068

counties. NACo advances issues with a unified voice

before the federal government, improves the public’s

understanding of county government, and assists

counties in finding and sharing innovative solutions

through education and research.

The International City/County Management Asso-

ciation (ICMA) is the premier local government lead-

ership and management organization. Founded in

1914, its mission is to create excellence in local gov-

ernance by advocating and developing the profes-

sional management of local government worldwide.

In addition to supporting its nearly 9,000 members,

ICMA provides publications, data, information, tech-

nical assistance, and training and professional devel-

opment to thousands of city, town, and county experts

and other individuals throughout the world.

Amici have appeared as friends of the court on be-

half of their members before the United States Su-

preme Court, in the United States Courts of Appeals,

and in state supreme and appellate courts. The rule

adopted below threatens serious harm to municipali-

ties, which are frequently subject to ongoing federal

court orders and consent decrees that implicate fed-

eral fee-shifting statutes. Accordingly, amici and

3

their members are particularly interested in this

case.

SUMMARY OF ARGUMENT

I. Allowing non-adversarial litigants to recover at-

torney’s fees as “prevailing parties” under the federal

fee-shifting statutes would inflict widespread harm

on municipalities. The rule adopted below gives rise

to perverse incentives whenever a locality seeks to

modify or terminate a continuing court order, typi-

cally a permanent injunction or consent decree, im-

plicating any of the nearly 200 fee-shifting statutes

that turn on this particular term. Literally thou-

sands of such orders or decrees are in place across the

Nation and, because public-law litigation frequently

involves municipal institutions, localities are

squarely in the crosshairs of the Eleventh Circuit’s

rule. Since the legal and societal landscape is con-

stantly changing, moreover, municipalities must fre-

quently seek modification or abolition of such orders,

which invites non-adversarial litigants to join the

fray and then bill localities for their “joint” efforts.

Muncipalities can ill-afford such wasteful—and often

severe—expenditures of taxpayer resources.

Il. Localities are particularly vulnerable to the abu-

sive potential of the Eleventh Circuit’s rule. As the

record in this case illustrates, awarding fees to non-

adversarial litigants encourages nakedly strategic

“claim-jumping.” Congress intended the fee-shifting

statutes to provide the balanced incentives necessary

to secure adequate enforcement of certain federal

laws, not to reward enterprising attorneys who join a

government initiative in hopes of a payday. And be-

cause municipalities are required by law to conduct

4

almost all of their business in full public view, there

is little hope of preventing would-be claim-jumpers

from pursuing such strategies.

III. More fundamentally, the rule adopted below gives

municipalities exactly the wrong incentives. It pun-

ishes localities that move to modify or abolish illegal

or outdated orders and decrees, while, perversely,

protecting those who simply remain silent. At the

same time, it gives municipal defendants powerful

incentives in the initial litigation to resist the possi-

bility of ongoing federal jurisdiction either by fighting

otherwise valid lawsuits or by capitulating to dubious

claims in order to avoid even the possibility of an en-

try of judgment. Where the costs of ongoing federal

jurisdiction are unclear and possibly quite signifi-

cant—and that is precisely the specter that the Elev-

enth Circuit’s rule creates—localities will seek to

avoid it at almost any price.

REASONS FOR GRANTING THE PETITION

The issue presented here—whether a litigant who

seeks precisely the same relief as the party from

whom he later demands attorney’s fees may be

deemed a “prevailing party” under the federal fee-

shifting statutes—warrants this Court’s immediate

review. As petitioners have persuasively demon-

strated, this question has sharply divided the federal

courts of appeals. Pet. 12-19. Standing alone, that

conflict is sufficient to warrant the grant of certiorari

and amici will not retread that ground here. Rather,

amici seek to explain why the rule approved below

will impose widespread and grave harm on munici-

palities and others exposed to its perverse operation.

5

I. THE ELEVENTH CIRCUIT'S RULE WILL

DRAMATICALLY INCREASE MUNICIPALI-

TIES’ EXPOSURE TO ATTORNEY'S FEE

AWARDS

Under the Eleventh Circuit’s definition of “pre-

vailing party,” a litigant may recover attorney’s fees

from parties who achieved precisely the same relief

from the court. See Pet. App. 5a (“[W]e see nothing in

the language of section 1988 that * * * conditions the

district court’s power to award fees on the defendant’s

assuming an opposing posture.”); Pet. 27 (“|The

Eleventh Circuit’s decision creates an inequitable

‘lose—lose’ proposition that exposes defendants in

multiparty litigation to fee lability no matter what

their position.”). That rule may, at first blush, ap-

pear to have only limited application, but nothing

could be further from the truth. As amici explain be-

low, pp. 6-9, infra, there are literally thousands of in-

stances in which courts have entered consent decrees

or permanent injunctions that implicate federal fee-

shifting statutes. In all these cases, the Eleventh

Circuit’s rule will create perverse incentives. The

sheer breadth of this problem calls for this Court’s

immediate review.

Because they are subject to an immense number

of ongoing court orders, municipalities are particu-

Jarly vulnerable to the rule’s harmful effects. Many

of these orders are decades old and require frequent

modification (or abolition) as factual circumstances

change and the legal Jandscape evolves. The Elev-

enth Circuit’s rule exposes municipalities to claims

for attorney's fees virtually every time any such

change occurs—even if the municipality itself initi-

ates the change. Furthermore, the rule adopted be-

6

low has the potential to inflict serious harm upon

municipal treasuries, which can scarcely afford to pay

the fees of non-adversarial lawyers. This Court’s re-

view is necessary to prevent that legally erroneous—

and profoundly misguided—appropriation of taxpayer

dollars.

A. A Staggering Number of Ongoing Federal

Court Orders Subject to Federal Fee-

Shifting Statutes Require Periodic Modi-

fication

Since the rise of modern institutional] litigation in

the 1950s, ongoing court orders have proliferated.

Perhaps most visibly, federal courts retain jurisdic-

tion over a large number of cases arising out of litiga-

tion under 42 U.S.C. § 1983 and Titles VI and VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et

seq. Commentators estimate that thousands of or-

ders in such cases remain enforceable and subject to

ongoing jurisdiction. 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) (observing that “thousands of federal consent

decrees * * * currently exist”); cf. David Zaring, Na-

tional Rulemaking Through Trial Courts: The Big

Case and Institutional Reform, 51 UCLA L. Rev.

1015, 1018 (2004) (“{[H]undreds of schools, and, even-

tually, thousands of other government institutions

that were sued for constitutional and federal statu-

tory violations came under the dominion of injunc-

tions and consent decrees.”). Indeed, Brown v. Board

of Education, perhaps the most venerable civil] rights

case in American history, officially ended only a few

years ago. See Brown v. Unified Sch. Dist. No. 501,

7

56 F. Supp. 2d 1212 (D. Kan. 1999). To be clear,

amici do not mean to diminish the importance of ap-

propriate institutional litigation; our point is simply

that such suits have been (and are likely to remain) a

fixture of the modern legal landscape and that they

often result in court-ordered relicf that remains in

place for years.

Many of the institutions frequently subject to on-

going court orders are run by municipalities. As re-

cently as 2004, “[hjundreds of school districts” were

still under court supervision, Zaring, 51 UCLA L.

Rev. at 1019, and, in 2001, more than one-quarter of

all jails operated under court order, Camille Graham

Camp & George M. Camp, The Corrections Yearbook:

Adult Systems 38 (2001). In fact, at one time or an-

other, court orders have governed local jails in all 50

States. Ross Sandler & David Schoenbrod, Democ-

racy by Decree 4 (2003). Moreover, in 1996, 36 child

welfare and foster care systems were subject to con-

sent decrees. Zaring, 51 UCLA L. Rev. at 1018 n.8.

And even these numbers likely understate the num-

ber of ongoing court orders because many decrees are

not memorialized in reported decisions. See

Schlanger, 81 N.Y.U. L. Rev. at 569 (noting that such

orders are often “completely unobservable by ordi-

nary case research methods’).

These court orders often require modification or

termination as on-the-ground circumstances change

and the legal landscape evolves. Indeed, this Court

has recognized the need for such revision. In Rufo v.

Inmates of Suffolk County Jail, 502 U.S. 367, 381

(1992), this Court advised courts to take a “flexible

approach” to modification: “Because such decrees of-

ten remain in place for extended periods of time,” this

8

Court explained, “the likelihood of significant

changes occurring during the life of the decree is in-

creased.” Jd. at 380. In Agostini v. Felton, for exam-

ple, this Court granted the New York City Board of

Education relief from a permanent injunction barring

public school teachers from participation in a paro-

chial school program. 521 U.S. 203 (1997). The

Court noted that Establishment Clause jurisprudence

had “changed significantly” since the injunction is-

sued, making relief appropriate. Id. at 236.

Shifts in other areas of public law also regularly

call into question the vitality of existing court orders.

To name but one well-known example, this Court re-

cently revised the permissible role of racial and eth-

nic considerations in the school admissions context.

See Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v.

Bollinger, 539 U.S. 244 (2003). Likewise, Parents In-

volved in Community Schools v. Seattle School Dis-

trict No. 1, 127 S. Ct. 2738 (2007), recently clarified

the proper use of racial classifications in public school

districting decisions. Rules governing conditions of

confinement offer yet another exa nple of significant

change in the legal landscape. See, e.g., Lewis v. Ca-

sey, 518 U.S. 343, 350-354 (1996), (“disclaim[ing]” any

suggestion that Bounds v. Smith, 430 U.S. 817

(1977), or its antecedents established that prison li-

braries and legal assistance programs are ends in

themselves under the Eighth Amendment); Wilson v.

Seiter, 501 U.S. 294, 304-305 (1991) (restricting the

extent to which conditions of confinement can be

viewed in combination to constitute an Eighth

Amendment violation).

Courts are frequently required to modify existing

decrees or injunctions in response to such significant

9

legal and factual changes. A federal district court in

2004, for example, granted a joint motion to modify a

school desegregation consent decree first entered in

1980. United States v. Board of Educ., No. 80-C-

5124, 2004 U.S. Dist. LEXIS 3067 (N.D. Ill. Mar. 1,

2004). The court observed that “[t]here is no question

that the Chicago of 1980 and before is not the Chi-

cago of 2004” and concluded that the decree was “no

longer capable of achieving its primary objectives.”

Id. at *4.

Similarly recognizing that ongoing court orders of-

ten require modification, Congress has taken steps to

simplify that process. See, e.g., Schlanger, 81 N.Y.U.

L. Rev. at 602, 626. The Prison Litigation Reform Act

of 1995, 18 U.S.C. § 3626 et seqg., for example, makes

it easier for States and localities to terminate judicial

orders awarding prospective relief regarding prison

conditions when the conditions that gave rise to the

initial order change. The Act provides that courts

shall terminate such an order after two years unless,

among other things, the order remains necessary to

correct a current or ongoing violation of a fedcral

right. 18 U.S.C. § 3626(b)(1)-(3). Congress is also

currently considering legislation that would subject

one particular type of ongoing court order—federal

consent decrees—to more searching periodic review.

The proposed Federal Consent Decree Fairness Act,

S. 2289, H.R. 4041, 110th Cong. (2007), would, upon

the motion of a state or local government, modify or

terminate any consent decree that is more than four

vears old in the absence of a demonstrated, ongoing

need for the decree. See id. at § 3.

Unlike this Court and Congress, the Eleventh Cir-

cuit is apparently untroubled by this problem. Its

10

rule would discourage localities from asking courts to

modify orders issued long ago to reflect current condi-

tions. Under its approach, a municipality would

naturally be reluctant to ask the court for relief. The

threat of fee awards to non-adversarial litigants

might simply be too great to justify the request.

B. Allowing Non-Adversarial Litigants to

Collect Attorney’s Fees Would Seriously

Harm Cash-Strapped Municipalities

This Court has been (rightly) sensitive to the bur-

den that attorney’s fees impose on municipal budgets

That concern flows from the practical reality that

monetary awards place a “strain on local treasuries

and therefore on services available to the public at

large.” City of Newport v. Fact Concerts, Inc., 453

U.S. 247, 271 (1981) (refusing to expose municipali-

ties to punitive damages awards under Section 1983).

“Liability for attorney’s fees,” this Court has ob-

served, “would have a particularly severe impact”

when localities face potentially large awards. City of

Rancho Palos Verdes v. Abrams, 544 U.S. 113, 123

(2005).

That concern is well-founded. Attorney’s fees can

be significant and often exceed damages awarded on

the merits. Evans v. Jeff D., 475 U.S. 717, 734

(1986). Indeed, attorney’s fees need not be propor-

tionate to actual damages. City of Riverside v.

Rivera, 477 U.S. 561, 574 (1986). In Rivera, for in-

stance, the claimant was awarded $245,456 in attor-

ney’s fees but only $33,350 in damages. /d. at 582.

11

The Court’s concern also reflects the reality that

localities are frequently strapped for cash. In the

1990s, unbalanced municipal budgets were an “in-

creasingly common phenomenon.” Anthony G. Cahill

& Joseph A. James, Responding to Municipal Fiscal

Distress: An Emerging Issue for State Governments in

the 1990s, 52 Pub. Admin. Rev. 88, 88 (1992). This

unfortunate trend has not abated. Indeed, “about a

hundred local governments have suffered from finan-

cial crisis in recent years.” Omer Kimhi, Reviving

Cities: Legal Remedies to Municipal Financial Crises,

88 B.U. L. Rev. 633, 633 n.2 (2008). Factors beyond

municipalities’ control are often to blame for these

woes. Declining state aid, tax caps, and state consti-

tutions that restrict certain revenue streams all con-

tribute to the problem. Beth Walter Honadle, The

States’ Role in U.S. Local Government Fiscal Crises:

A Theoretical Model and Results of a National Sur-

vey, 26 Int'l J. Pub. Admin. 1431, 1459 (2003). The

recent rapid decline in home values, which constitute

a significant component of most municipal tax bases,

has compounded the crisis. Rural municipalities find

it particularly difficult to solve financial problems

due to their dependence on part-time workers, high

turnover rates, outdated record-keeping systems, and

limited economies of scale. Ibid.

Because attorney’s fees can be high when budgets

are tight, the Eleventh Circuit’s rule presents locali-

ties subject to stale court orders with a Hobson’s

choice. Seeking modification may invite a rush of

non-adversarial, fee-seeking litigants. To pay for

these fees, impecunious localities may have to cut so-

cial services, raise taxes, or go further into debt. A\l-

ternatively, localities may be forced to ignore changes

12

in the legal and factual landscape and thus leave ob-

solete and even unconstitutional orders in place.

Il. LOCALITIES ARE PARTICULARLY VUL-

NERABLE TO THE CLAIM-JUMPING THAT

THE ELEVENTH CIRCUIT’S RULE INVITES

A. As This Record Shows, Deeming Non-

Adversarial Litigants “Prevailing Parties”

Can Encourage Nakedly Strategic Claim-

Jumping

The Eleventh Circuit’s rule is further flawed be-

cause it encourages “claim-jumping,” strategic behav-

ior that the fee-shifting statutes should discourage.

As the record in this case reveals, rewarding non-

adversarial litigants with attorney’s fees can encour-

age lawyers to jump into ongoing litigation for the

wrong reason—to obtain large fees with minimal ef-

fort rather than to vindicate individual rights. See

Hensley v. Eckerhart, 461 U.S. 424, 443-444 (1983)

(Brennan, J., concurring in part and dissenting in

part) (noting that fees should be adequate to attract

competent counsel, but not produce windfalls to at-

torneys).

This case vividly illustrates the potential for the

Eleventh Circuit’s rule to invite claim-jumping. Ac-

cording to an affidavit submitted by the general

counsel for the Alabama State Personnel Depart-

ment, Alice Ann Byrne, respondent Pope’s lawyer

admitted that he was intervening in the litigation for

the sole purpose of generating attorney’s fees. See

Doc. 748, Ex. A, § 8 (Aff. of A. Byrne). While it is true

that Pope contests Byrne’s account, see Pope C.A. Br.

13 (quoting Timothy Pope’s lawyer as claiming that

13

he had no “desire to horn in on the State’s parade”),

that debate is beside the point. Byrne’s affidavit at

the very least illustrates how the Eleventh Circuit’s

rule can encourage unseemly and unproductive be-

havior.

Pope was denied a promotion due to the No-

Bypass Rule in September 2002, after which he filed

an action alleging race discrimination. See Pet. App.

2a. It was not until February 25, 2003, however, that

Pope moved to intervene in the Frazer litigation in

order to challenge the Rule directly. Jbid.

According to Byrne’s testimony, Pope’s lawyer

changed his tune only after learning that the State

had commissioned at significant expense an expert

study showing a basis for ending the No-Bypass Rule

and planned to seek termination of the rule. See Doc.

748, Ex. A, 9 8 (Aff. of A. Byrne) (stating that Fitz-

patrick admitted he filed the motion to intervene only —

after a lawyer for the State “told him about our ex-

pert report and how good the numbers looked for end-

ing the No-Bypass Rule” and that the State had

commissioned the report “at a cost of several hundred

thousand dollars”). It was at that point that “Mr.

Fitzpatrick told [Byrne] in unambiguous terms that

he had filed their preemptive Pope intervention mo-

tion for the purpose of hijacking the litigation to ob-

tain attorney’s fees.” Ibid. (emphasis added). Accord-

ing to Byrne:

Mr. Fitzpatrick then started laughing and told

me to go check [the fax machine]. Upon check-

ing my fax machine, I found Pope’s Motion to

Intervene in the Frazer case. I * * * asked him

why he had filed this motion, and Mr. Fitz-

14

patrick stated that he was “claim-jumping

Lisa”, * * * who was one of the attorneys en-

gaged by tl > State to work on terminating the

Frazer no-bypass rule. When I said that I did

not understand, Mr. Fitzpatrick replied “attor-

ney fees.” I responded “from whom” and he

said “you.”

Ibid.

Pope’s motion to intervene thus powerfully illus-

trates the behavior that the Eleventh Circuit’s rule

encourages. Byrne’s testimony suggests that the mo-

tion might have been aimed not at ending the No-

Bypass Rule—or, if so, only incidentally—but at col-

lecting attorney’s fees in a case where the lion’s share

of the costs had already been borne by the State and

the path for seeking termination of the rule had al-

ready been charted. Again, regardless of whether

-Pope was, in fact, “claim-jumping” so shamelessly,

Byrne's affidavit vividly reveals the potential for such

abuse that the Eleventh Circuit’s rule creates.

To the extent the Eleventh Circuit’s rule encour-

ages claim-jumping, it thwarts the purpose of fee-

shifting statutes. Fee-shifting statutes work as a lim-

ited exception to the “American” rule and award at-

torney’s fees to prevailing plaintiffs who perform the

services of a “private attorney general.” Such plain-

tiffs “render[] substantial service * * * to the commu-

nity at large by securing for it the benefits assumed

to flow” from a defendant’s “compliance with its con-

stitutional mandate.” Bradley v. School Bd., 416 U.S.

696, 718 (1974). Awarding fees to non-adversarial

litigants, by contrast, rewards lawyers for bringing

unproductive, duplicative claims that do not promote

15

private enforcement of federal rights. That perverse

incentive does not “serve” the community or meaning-

fully advance the important interests fee-shifting

statutes are designed to promote.

B. Because Localities Almost Always Oper-

ate Transparently, They Are Particularly

Vulnerable To Claim-Jumping

Municipalities are particularly vulnerable to the

claim-jumping the Eleventh Circuit’s rule invites.

Open-government or “sunshine” laws, which require

local governments to make decisions only after public

deliberation, make it possible for plaintiffs’ attorneys

to receive advance notice of litigation decisions by

municipalities. Attorneys may use that information

to target litigation simply for the purpose of collecting

attorney's fees. The rule thus both penalizes munici-

palities for challenging outdated and possibly unlaw-

ful court orders and encourages them to resist open-

government laws.

Almost all municipalities are subject to open-

government laws, which require local governments to

conduct their meetings and deliberations in public

and give the public complete access to municipal re-

cords. See Ann Taylor Schwing, Open Meeting Laws

§§ 4.24-4.32 (1994). Practical concerns, moreover,

lead many local governments to conduct their busi-

ness, including matters related to potential litigation,

in the open. Unlike state governments (and perhaps

a handful of larger cities), most municipalities do not

have regular access to teams of lawyers to plan out

comprehensive litigation strategies outside of public

view. Instead, municipal litigation is frequently de-

bated in the ordinary (and public) course of business.

16

This fact makes municipalities uniquely vulner-

able to claim-jumping because would-be claim-

jumpers have easy access to municipalities’ litigation

strategies. If a city council, for example, considers

seeking modification of a consent decree, those dis-

cussions almost always will be aired at public meet-

ings. A would-be claim-jumper can prepare and sim-

ply wait to join the action once it begins and then ob-

tain fees if the action is successful.

While most open-government laws place some

limitations on required public disclosure of materials

and discussions relating to litigation, these limita-

tions are not universal and are generally limited only

to attorney-client communications. See generally

Schwing, §§ 7.60-7.66 (discussing the various ap-

proaches of the States that protect communications

between a public body and its attorney); id. § 7.70

(examining those States that do not except attorney-

chent communications from open meeting laws).

There may also be significant overlap between those

activities that are undertaken in anticipation of Jiti-

gation and those activities which set local policy, such

as petitioners’ decision here to fund the study to chal-

lenge the No-Bypass Rule. Cf. Clark-Cowlitz Joint

Operating Agency v. Federal Energy Regulatory

Comm'n, 798 F.2d 499, 502 (D.C. Cir. 1986) (en banc)

(noting the difficulty in drawing a line between litiga-

tion strategy and policy formation).

Even if municipalities could employ attorney-

client exceptions to shield certain litigation decisions,

encouraging such reliance undermines the important

objectives open-government laws serve. Such laws

are designed to keep public officials accountable to

the electorate and to provide the public a meaningful

17

role in making local policy decisions. See, e.g., Ark.

Code Ann. § 25-19-102 (West 2008) (“It is vital in a

democratic society that public business be performed

in an open and public manner so that the electors

shall be advised of the performance of public officials

and of the decisions that are reached in public activ-

ity and in making public policy.”). Public participa-

tion is vitally important at the local level, where gov-

ernment most immediately affects people’s daily

lives. See Schwing § 4.26, at 78-79 (“Application of

open meeting requirements to * * * local public enti-

ties is especially significant because these entities op-

erate in the same locale as the citizens they serve,

making citizen participation in government readily

available to the public.”). And the public’s interest is

seldom greater than when debating the important

policy matters that are frequently the subject of fed-

eral litigation.

lil. THE ELEVENTH CIRCUIT’S RULE GIVES

LOCALITIES EXACTLY THE WRONG IN-

CENTIVES

A. The Rule Discourages Localities From

Seeking to Modify Obsolete or Illegal Ju-

dicial Orders, Perversely Increasing The

Need for “Private Attorneys General”

The Eleventh Circuit’s rule contravenes the pur-

poses underlying federal fee-shifting statutes in two

principal ways. First, the rule encourages “private

attorneys general” to participate in lawsuits where

their participation is of minimal value. Second, it

discourages localities from attempting to modify or

terminate obsolete or Ulegal judicial orders.

18

“Under [the] ‘American Rule,’ we follow ‘a general

practice of not awarding fees to a prevailing party ab-

sent explicit statutory authority.” Buckhannon Bd.

& Care Home v. W. Va. Dep't of Health & Human

Res., 532 U.S. 598, 602 (2001) (internal citations

omitted) (quoting Key Tronic Corp. v. United States,

511 U.S. 809, 819 (1994)). Fee-shifting provisions

(such as 42 U.S.C. § 1988(b), at issue here) represent

a limited exception to that rule. Fee-shifting statutes

are designed to provide enforcement incentives for

private attorneys general, but that underlying policy

has limits:

Since the fee-shifting statutes * * * allow de-

fendants as well as plaintiffs to receive a fee

award, we know that Congress did not intend

to maximize the quantity of the enforcement of

federal law by private attorneys general.

Rather, Congress desired an appropriate level

of enforcement—which is more likely to be pro-

duced by limiting fee awards to plaintiffs who

prevail on the merits, or at least to those who

achieve an enforceable alteration of the legal

relationship of the parties.

532 U.S. at 620 (Scalia, J., concurring) (internal quo-

tations and citation omitted).

The Eleventh Circuit’s rule does not promote the

“appropriate level of enforcement.” Quite the oppo-

site, in fact. - It encourages “private attorneys gen-

eral” to join litigation when their contribution merely

duplicates others’ efforts—that is, when their pres-

ence is needed least. The rule thus serves to maxi-

mize the number of litigants and so undermines effi-

ciency. That result contravenes section 1988's “finely

balanced congressional purpose to provide plaintiffs

19

asserting specified federal rights with ‘fees which are

adequate to attract competent counsel, but which do

not produce windfalls to attorneys.” Hensley v. Eck-

erhart, 461 U.S. 424, 443-444 (Brennan, J., concur-

ring in part and dissenting in part) (quoting S. Rep.

No. 1011, 94th Cong., 2d Sess., at 6 (1976)).

Furthermore, the Eleventh Circuit’s rule serves

none of the six recognized rationales for fee-shifting

statutes: (1) that the losing litigant should pay the

winner’s costs in the interest of fairness; (2) that the

litigant should be made financially whole for the legal

wrong suffered; (3) that fee-shifting may have deter-

rent and punitive value; (4) that suits by private at-

torneys general should be encouraged because of

their public usefulness; (5) that the relative strengths

of the parties should be equalized; and (6) that a fee-

shifting scheme may have desired incentive effects.

See Thomas D. Rowe, Jr., The Legal Theory of Attor-

ney Fee Shifting: A Critical Overview, 1982 Duke L.J.

651, 653 (1982).

None of these rationales justifies fee-shifting

when, as here, public enforcement has already begun

and the interests of the government are aligned with

those of the attorney’s fee-claimant. First, ordering

the government to pay an aligned party’s attorney’s

fees does not increase “fairness” in any meaningful

sense. Nor is there a need to make the aligned party

whole when his participation in the suit is unneces-

sary to achieving his desired outcome. Here, for ex-

ample, because Alabama already had committed to

ending the complained-of policy, Pope’s rights could

have been vindicated at no cost. Likewise, there is no

punitive or deterrent value to fee awards where the

government is actively working to achieve the same

20

result sought by the fee-claimant. In such cases, the

government is not doing anything the fee-claimant

would wish to deter or punish; rather, it acts in the

fee-claimant’s own interest.

Suits by private attorneys general are, moreover,

significantly less useful when the government is al-

ready pursuing the same suit itself. In contrast to a

litigant who initiates an independent suit, the liti-

gant who joins on the government's side in a suit the

government. has initiated performs essentially dupli-

cative and inefficient functions. As the D.C. Circuit

has recognized:

[T]he legislative history of sections 1973l(e)

and 1988 emphasizes over and over again the

critical goal of enabling private citizens to

serve as “private attorneys general” in bringing

suits to vindicate the civil rights laws. * * *

(T}his objective is far less compelling when the

actual Attorney General participates in the

case. * * * Jt cannot be said [in such cases] that

rights are being denied because of inability to

pay attorney’s fees.

Donnell v. United States, 682 F.2d 240, 246 (D.C. Cir.

1982).

There is also no need to equalize the relative

strengths of parties that are on the same side of a

lawsuit. In fact, requiring localities to pay the attor-

ney’s fees of others on their own side reduces the lo-

calities’ economic strength and consequently harms

the interests of both the locality and the aligned

party (if not his attorney).

21

Finally, the Eleventh Circuit’s rule perverts the

fee-shifting statutes’ laudable incentives. The rule

not only encourages duplicative actions, but also pe-

nalizes those localities that seek to aid would-be liti-

gants by modifying or terminating obsolete or illegal

judicial orders. The rule serves only the interests of

enterprising attorneys and does so by harming their

clients. States and municipalities will understanda-

bly hesitate before seeking to modify obsolete injunc-

tions and consent decrees if others who later jump in

on their side can ultimately demand attorney’s fees

from them. And by discouraging localities from initi-

ating such suits, the Eleventh Circuit’s rule actually

increases the need for private attorneys general to en-

force civil rights laws.

Even more perversely, however, the Eleventh Cir-

cuit’s rule punishes localities for attempting to com-

ply with federal law. By forcing localities to pay fees

when they succeed in modifying consent decrees or

injunctions to accord with current legal requirements,

the rule discourages such efforts and forces localities

to remain under court orders that no longer reflect

federal law.

B. The Rule Creates Incentives In Primary

Litigation That Favor Protracted Litiga-

tion And Voluntary Capitulation Over

Settlement

The Eleventh Circuit's rule also distorts the incen-

tives of parties involved in primary litigation. Locali-

ties would be justifiably reluctant to submit to con-

tinued judicial supervision if faced with the possibil-

ity that additional fees would be awarded whenever

they successfully update the original judicial decree

22

to reflect changed legal or factual circumstances. By

effectively raising the cost of continued judicial su-

pervision, the rule thus strongly discourages locali-

ties from settling on such terms. But often such set-

tlements are the only ones possible. In these situa-

tions, then, settlement itself becomes more difficult or

impossible and the many “benefits [it] provides for

civil rights plaintiffs as well as defendants,” Evans v.

Jeff D., 475 U.S. at 732-733 (citing Marek v. Chesny,

473 U.S. 1, 10 (1985)), are lost.

Another, equally troubling reaction is also possi-

ble. Whenever judicial resolution of primary litiga-

tion could entail continued supervision over a matter,

defendants can be expected to try to avoid the issu-

ance of such a judgment. As a result, local govern-

ments facing uncertain future hability for attorney’s

fees have powerful incentives to modify challenged

practices in order to avoid judgment. When rejecting

the “catalyst theory” as a basis for fee awards in

Buckhannon, this Court discounted the threat that

“mischievous defendants” would alter their behavior

to “moot[] an action before judgment in an effort to

avoid an award of attorney’s fees.” 532 U.S. at 608.

When faced with the possibility of a permanent in-

junction or consent decree that wouid leave it vulner-

able to unpredictable future attorney’s fee awards,

however, a locality may be forced to “slink away on

the eve of judgment,” id. at 618 (Scalia, J., concur-

ring), in order to prevent the future application of “a

rule that causes the law to be the very instrument of

wrong—exacting the payment of attorney’s fees to the

[intervening] extortionist.” Ibid.

Because “a mootness dismissal is not easily

achieved,” Buckhanaon, 532 U.S. at 639 (Ginsburg,

"

23

J., dissenting), localities operating under the Elev-

enth Circuit’s rule will face the temptation to moot

threatened actions even before they even begin. In

light of the uncertainty inherent in the estimation of

a future litigant’s fee award—and the ease with

which a non-adversarial litigant could secure an

award under the Eleventh Circuit’s rule—the for-

ward-looking locality will have an incentive simply to

capitulate to a plaintiffs demands before the underly-

ing primary litigation can reach final judgment. Like

the “catalyst theory” the Court rejected in Buckhan-

non, the Eleventh Circuit’s rule harms cash-strapped

local governments by “putting pressure on them to

avoid the risk of massive fees by abandoning a solidly

defensible case early in litigation.” Jd. at 620 (Scalia,

J., concurring).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

DANIEL R. ORTIZ MARK T. STANCIL*

University of Virginia Robbins, Russell, Englert,

School of Law Supreme Orseck, Untereiner &

Court Litigation Clinic Sauber LLP

580 Massie Road 1801 K Street, NW

Charlottesville, VA 22903 Suite 411

(434) 924-3127 Washington, DC 20006

(202) 775-4520

*Counsel of Record

OCTOBER 2008