Amicus Curiae Brief — Rancho Palos Verdes v. Abrams

. £12 2004

In The F ciniecs ob re

CTPRK

feet

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Supreme Court of the Anited States

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CITY OF RANCHO PALOS VERDES,

CALIFORNIA, ET AL.,

Petitioners,

MARK J. ABRAMS,

Respondent.

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On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

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BRIEF OF THE LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS UNDER LAW; MINORITY MEDIA

AND TELECOMMUNICATIONS COUNCIL;

NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE;

NATIONAL ASIAN PACIFIC AMERICAN

LEGAL CONSORTIUM; NATIONAL PARTNERSHIP

FOR WOMEN & FAMILIES; NATIONAL WOMEN’S

LAW CENTER; PUERTO RICAN LEGAL DEFENSE

AND EDUCATION FUND, INC., AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

¢

AKIN, GuMP, STRAUSS, HAVER & FELD, L.L.P.

REGINALD D. STEER

Counsel of Record

DAVID R. LAWSON

Three Embarcadero Center, Suite 2800

San Francisco, California 94111-4046

Telephone: (415) 765-9500

Facsimile: (415) 765-9501

MICHAEL L. FOREMAN

LAWYER’S COMMITTEE FOR CIVIL RIGHTS UNDER LAW

1401 New York Avenue, NW

Suite 400

Washington, DC 20005

Telephone: (202) 662-8351

~_ WBEST AVAILABLE COPY |

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE............::cccccccceeeeeeeesenees 1

SUMMARY OF ARGUMENT. ...............:::cscecsseeseeeeeeeeees 4

BETIS eentcccsevasitnnstnanincantatnniauinisinisiiniinaiinimnten 7

I. Provision For Judicial Review Does Not In

II.

III.

Itself Constitute A Comprehensive Remedial

Scheme Proving That Congress Intended To

Override The Presumption In Favor Of Access

Tp Bian TI ce ccctcnnsencnsscsssnnvsescssectionsinuninenininns

A. The Government Argues That Provision

For Judicial Review Is Dispositive.............

B. The Court’s Jurisprudence Places A Heavy

Burden On A Party Attempting To Show

That A Remedial Scheme Is Sufficiently

Comprehensive To Rebut The Presump-

tion of Access to Section 1983................206

C. The Court Has Looked To A Variety Of

Factors In Determining Whether A Par-

ticular Scheme is “Comprehensive” And Has

Never Laid Down A Bright-Line Rule ..........

That A Particular Statute Is Silent On The

Availability Of Attorneys’ Fees Does Not Sup-

port A Conclusion That It Is “Incompatible”

Weis Breit Fe rccccncsccssccnscencscsccsssennccsscseseitinns

Adoption of The Two Proposed Bright-Line

Rules Picposed By The Government Would

Nullify Section 1983 Entirely ..................cc::0e000

14

TABLE OF CONTENTS -— Continued

Page

IV. Creation Of Two Sweeping Bright-Line Rules

That Would Greatly Restrict The Scope of Sec-

tion 1983 Is Unnecessary To Resolution Of The

iii

TABLE OF AUTHORITIES

Page

CASES

Blessing v. Freestone, 520 U.S. 329 (1997)................. passim

Commissioner v. Banks/Banaitis, __ U.S. __, 125

iii aie alaaraniaildinilinidiaiiia 2

Dennis v. Higgins, 498 U.S. 439 (1991) ......... eee 5

Felder v. Casey, 487 U.S. 131 (1988)..................:ceeee 4,15

Golden State Transit Corp. v. City of Los Angeles,

ELIE Cnr enna ee ame 8

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) ..................0004. 8

Goodyear Atomic Corp. v. Miller, 486 U.S. 174

SAE SOR ee eo ee nO ee a 15

Jonas v. Stack, 758 F.2d 567 (11th Cir. 1985).......0..000000... 15

Jones v. R.R. Donnelley and Sons Co., __ U.S. __,

ee els I Ss BI ecertontnccnncacesspsccnsccsscosncsancces 2

Livadas v. Bradshaw, 512 U.S. 107 (1994)......0. eee 9

Maher v. Gagne, 448 U.S. 122 (1980)............c ee eeceeeeeees 15

Maine v. Thiboutot, 448 U.S. 1 (1980) 20.0... e eee 15

Middlesex County Sewerage Authority v. National

Sea Clammers Association, 453 U.S. 1 (1981)....... passim

National Home Equity Mortgage Ass’n v. Face, 322

I in errasiamaetbiiicitibiied 15

Native Village of Venetie IRA Council v. State of

Alaska, 155 F.3d 1150 (9th Cir. 1998) ...............0..0.0.00004 15

Nextel Partners Inc. v. Kingston Township, 286 F.3d

I I ainicaiccicnideslinicicinaniininapsiinebsatiedeninaniias 14

Pennsylvania State Police v. Suders, ____ U.S. __,

124 S. Ct. ZB42 (Fame 14, BOOS) .......cccccccccccscscsssesseceseeeees 2

iv

TABLE OF AUTHORITIES — Continued

Page

Smith v. Robinson, 468 U.S. 992 (1984) ......... passim

Suter v. Artist M., 503 U.S. 347 (1992) ...........ccccceceeeeeeceeeees 9

TRW Inc. v. Andrews, 534 U.S. 19 (2001)................... 14, 16

United States v. X-Citement Video, 513 U.S. 64

SEE TaT Ui icscnsiesoensnestcieinsinabenteindcepaitiebaiettenidtiansbeiabiatendiianddiedibiiaiia 14, 16

Wilder v. Virginia Hospital Association, 496 U.S.

a enicersensiietinicnsinnitansaiatiteniieassniniinapiniiinin 11, 12,14

Wright v. Roanoake Redevelopment & Housing

Authority, 479 U.S. 418 (1987)................. 1, 9, 11, 12, 13

STATUTES

BF eas Ue TEI ssisistnscinninsinecieennitapdniadiiidinatindmeminnnpenteenesminnned 15

ee Te Oe IE cnccnncenepesiitnvedisncbinedectitinammienanainitaiateidaniiuts 15

ey Bee eiticrnenricantsitactinntntinnsioseenainebiatetuninnnsiiiiie 15

Fe Oe ee cakcstisitiesniniccanndtpementinnnmnisinimeiaiinniel passim

OT aa passim

a

1

INTEREST OF AMICI CURIAE'

The Lawyers’ Committee for Civil Rights Under Law,

the Minority Media and Telecommunications Council, the

National Asian Pacific American Legal Consortium, the

National Partnership for Women & Families, the National

Association for the Advancement of Colored People and the

Puerto Rican Legal Defense and Education Fund, Inc.

represent people of color, women, individuals with disabili-

ties and other disadvantaged populations under various

federal civil rights statutes. Many of these statutes have

direct causes of action, while others are implied. These

statutes have differing remedial provisions guided by the

unique legislative purpose of each law.

Through precedents like Middlesex County Sewerage

Authority v. National Sea Clammers Association, 453 U.S.

1 (1981) and Wright v. Roanoake Redevelopment & Hous-

ing Authority, 479 U.S. 418 (1987), the Court has articu-

lated an analysis for determining whether a federal

statute has a “comprehensive” remedial scheme that is

incompatible with remedies under § 1983. This analysis by

necessity is statute specific, focusing on the remedies

provided by the statute and Congress’ intent in providing

those remedies. Any departure from this well established

* The parties have consented to the filing of this brief. Their

consent letters are on file with the Clerk of the Court. Pursuant to

Supreme Court Rule 37.6, counsel for amici curiae certifies that this

brief was not written in whole or in part by counsel for any party, and

that no person or entity other than counsel for amici has made a

monetary contribution to the preparation and submission of the brief.

2

framework in favor of a simplistic rule of thumb as advo-

cated by the Solicitor General would have a direct and

limiting effect on the amici’s ability to continue to press

claims on behalf of its disadvantaged constituencies.

Accordingly, the following amici offer their views on this

important issue.

The Lawyers’ Committee for Civil Rights Under Law

(“Lawyers’ Committee”) is a tax-exempt, nonprofit civil

rights organization that was founded in 1963 by the

leaders of the American bar, at the request of President

Kennedy, to help defend the civil rights of racial minorities

and the poor. Its Board of Trustees presently includes

several past Presidents of the American Bar Association, a

past Attorney General of the United States, law school

deans and professors, and many of the nation’s leading

lawyers. It has independent local affiliates in Boston,

Chicago, Denver, Los Angeles, Philadelphia, San Antonio,

San Francisco, and Washington, D.C. Through the Law-

yers’ Committee and its affiliates, hundreds of attorneys

have represented thousands of clients in civil rights cases

across the country challenging discrimination in virtually

all aspects of American life. The Lawyers’ Committee has a

keen interest in proper interpretation of statutory law so

as not to unduly limit the availability of remedies for

plaintiffs seeking to redress violations of federal civil

rights laws, and has most recently offered its views to the

Court in the following cases: Commissioner v. Banks/

Banaitis, ___ U.S. ___, 125 S. Ct. 28 (2004); Pennsylvania

State Police v. Suders, __ U.S. ___, 124 S. Ct. 2342 (June

14, 2004) and Jones v. R.R. Donnelley and Sons Co., ___

U.S. __, 124 S. Ct. 1836 (May 3, 2004).

Ee Ren

3

The Minority Media and Telecommunications Council

(“MMTC”) is a national nonprofit membership corporation,

founded in 1986 and both incorporated and domiciled in

the District of Columbia. MMTC is dedicated to promoting

equal opportunity and eliminating all vestiges of segrega-

tion in the media and telecommunications industries

regulated by the FCC. MMTC represents other organiza-

tions in FCC rulemaking proceedings, operates a media

brokerage, trains law students, and conducts conferences

and seminars. Its members include media and telecom

employees and managers and entrepreneurs.

The National Association for the Advancement of

Colored People (“NAACP”), established in 1909, is the

nation’s oldest civil rights organization. The fundamental

“mission of the NAACP is the advancement and improve-

ment of the political, educational, social, and economic

status of minority groups; the elimination of prejudice; the

publicizing of adverse effects of discrimination; and the

initiation of lawful action to secure the elimination of

racial and ethnic bias.

The National Asian Pacific American Legal Consor-

tium (“NAPALC”) is a national non-profit, non-partisan

organization whose mission is to advance the legal and

civil rights of Asian Americans. Collectively, NAPALC and

its affiliates, the Asian Law Caucus and the Asian Pacific

American Legal Center of Southern California, have over

50 years of experience in providing legal public policy,

advocacy, and community education on discrimination

issues. NAPALC and its affiliates have a long-standing

interest in civil rights issues that have an impact on the

Asian American community, and this interest has resulted

in NAPALC’s participation in a number of amicus briefs

before the courts.

4

Founded-in 1971, the National Partnership for Women

and Families, formerly known as the Women’s Legal

Defense Fund, is a national advocacy organization that

develops and promotes public policies to help women

achieve equal opportunity, quality health care, and eco-

nomic security for themselves and their families. The

National Partnership has a longstanding commitment to

equal opportunity for all and to monitoring the enforce-

ment of antidiscrimination laws. The National Partner-

ship has devoted significant resources to combating sex

and race discrimination and has filed numerous briefs

amicus curiae in the United States Supreme Court and the

federal circuit courts of appeals.

The Puerto Rican Legal Defense and Education Fund,

Inc. (““PRLDEF”) is a national non-profit civil rights

organization founded in 1972. PRLDEF is dedicated to

protecting and furthering the civil rights of Puerto Ricans

and other Latinos through litigation and policy advocacy.

Since its inception, PRLDEF has participated both as

direct counsel and as amicus curiae in numerous cases

throughout the country concerning the proper interpreta-

tion of the civil rights laws.

¢

SUMMARY OF ARGUMENT

Congress enacted 42 U.S.C. § 1983 to insure that all

litigants have available the substantive and financial

means to vindicate federal constitutional and statutory

rights. Felder v. Casey, 487 U.S. 131, 139 (1988) (providing

a means for individuals whose federal constitutional or

statutory rights are violated to recover damages or equita-

ble relief is the central purpose of § 1983). Section 1983

5

presumptively makes damages and attorneys’ fees avail-

able to any litigant who demonstrates deprivation of an

enforceable federal Constitutional or statutory right,

absent Congress’ express or implicit intent to preclude

§ 1983 remedies. Smith v. Robinson, 468 U.S. 992, 1006

(1984) (legislative history and Court’s jurisprudence

demonstrate that § 1988 (implemented through § 1983) is

a broad grant of authority for award of attorneys’ fees to

plaintiffs seeking to enforce federal statutory rights — a

prevailing plaintiff should ordinarily recover an attorney’s

fee unless special circumstances would render such an

award unjust) (citations omitted). Dennis v. Higgins, 498

U.S. 439, 443 (1991) (legislative history indicates that

§ 1983 should be “liberally and beneficently construed”).

Section 1983 has become a crucial weapon in the fight to

protect Americans from arbitrary deprivation of civil and

other statutory rights. Without the damages and attor-

neys’ fees authorized by § 1983, many poor and middle-

class persons could not afford to assert the rights provided

to them by federal law against even the most egregious

violations. Enforcement of many statutory rights would

also be so economically unfeasible even for the non-

indigent as to leave their availability subject to the whim

of government officials. As amici’s experience and decades

of published judicial decisions demonstrate, § 1983 is an

indispensable tool in the fight against arbitrary or mali-

cious deprivation of our rights as Americans.

Ignoring the presumption in favor of § 1983 claims,

the Solicitor General of the United States, in its amicus

brief filed on behalf of the government, invites the Court to

announce two bright-line rules: (1) that any statutory

provision for individual judicial review makes a remedial

scheme so “comprehensive” as to demonstrate Congress’

6

implicit intent to preclude § 1983 remedies, and, (2) that

the absence of a specific provision for attorneys’ tees

automatically renders a statute incompatible with § 1983

because § 1983 does provide for attorneys’ fees. The first of

these conclusions contradicts this Court’s well-developed

jurisprudence, which requires a statute-by-statute analy-

sis of individual remedial schemes to determine whether

they are sufficiently comprehensive to rebut the presump-

tion that § 1983 is available. The second ignores prece-

dent, Congressional intent and logic by arguing that

§ 1983, a statute whose very purpose is to encourage

claims by providing for attorneys fees, can only be invoked

in connection with a statute that already provides for

attorney’s fees.

Neither of the government’s propositions needs to be

addressed to resolve the question actually before the Court

— whether the particular statute at issue, the Telecommu-

nications Act of 1996, 47 U.S.C. § 332(c)(7) (the “TCA”),

incorporates a remedial scheme sufficiently comprehensive

to demonstrate Congress’ implicit intent to override the

presumption in favor of § 1983 relief. There is no need for

the Court to abandon its well-established jurisprudence

requiring a case-by-case analysis of an individual statute

in order to determine whether the TCA’s remedial scheme

is sufficiently comprehensive to preclude a § 1983 claim.’

* Amici will not address the issue of whether the TCA does in fact

include a sufficiently comprehensive scheme to preclude a § 1983 action

because such an explication is unnecessary. The parties will no doubt

explore that question in detail. Amici’s primary interest herein is in

urging the Court to preserve its traditional statute-by-statute analysis

rather than accepting the Solictor’s invitation to adopt radical new

bright-line rules that would apply to future § 1983 claims and substan-

tially narrow the scope of that statute.

The coasequences of adopting the government’s position on

the disadvantaged constituencies represented by amici

would be substantial. For these reasons, amici urge the

Court to decline the government’s invitation to abandon its

long-established jurisprudence requiring statute-by-

statute analysis in favor of over broad bright-line rules

that would eviscerate § 1983.

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ARGUMENT

I. Provision For Judicial Review Does Not In

Itself Constitute A Comprehensive Remedial

Scheme Proving That Congress Intended To

Override The Presumption In Favor Of Access

To Section 1983

A. The Government Argues That Provision

For Judicial Review Is Dispositive

The government states that Ҥ 332(c)(7)(B)(v) does

provide a private judicial remedy to ensure that States

and local governments live up to their obligations. Accord-

ingly, it is sufficiently comprehensive to preclude a § 1983

action. ...” (Brief for the United States As Amicus Curiae

Supporting Petitioners (“Brf.”) at 20. It also states that

“Congress’ creation of a judicial cause of action such as

§ 332(c)(7)(B)(v) to enforce a federal right, with its express

and necessarily implied incidents under federal law, is

‘sufficiently comprehensive’ to indicate a congressional

intent to preclude a § 1983 action to enforce the same

right.” Brf. at 17 In other words, identification of any

provision for access to the courts meets the “substantial

8

burden” of rebutting the presumption against a finding

that Congress implicitly intended to preclude a § 1983

claim. This conclusion simply does not comport with the

Court’s well established jurisprudence on the subject.

B. The Court’s Jurisprudence Places A Heavy

Burden On A Party Attempting To Show

That A Remedial Scheme Is Sufficiently

Comprehensive To Rebut The Presumption

Of Access To Section 1983

The Court through a series of detailed decisions has

articulated a much more complex analysis than the

simplistic rule of thumb suggested by the government to

determine whether Congress implicitly intended to fore-

close a § 1983 claim. As the government admits, “Once a

plaintiff demonstrates that a statute confers an individual

right, the right is presumptively enforceable by § 1983.”

Brf. at 13 (quoting Gonzaga Univ. v. Doe, 536 U.S. 273,

284 (2002)). See also Blessing v. Freestone, 520 U.S. 329,

341 (1997) (demonstration of an enforceable federal

statutory right creates a rebuttable presumption of en-

forceability via § 1983). The burden of demonstrating that

Congress has foreclosed a § 1983 cause of action rests on

the party claiming this preclusion. Golden State Transit

Corp. v. City of Los Angeles, 493 U.S. 103, 107 (1989)

(holding that burden to demonstrate that Congress has

precluded a § 1983 action rests with the party opposing

the claim, once the other party has established an enforce-

able federal right).

As the Court’s jurisprudence clearly establishes, such

a showing can be made only where the statute on which

the § 1983 claim is predicated includes a comprehensive

9

remedial scheme that is incompatible with § 1983. Bless-

ing, 520 U.S. at 341 (presumption may be rebutted where

comprehensive remedial scheme is incompatible with

individual enforcement, thus demonstrating Congress’

implicit intent to foreclose recourse to § 1983). The Court

has described this as a “difficult showing” to make. Suter

v. Artist M., 503 U.S. 347, 360 n.11 (1992) (litigants

seeking to establish such intent must make the difficult -

showing that allowing § 1983 actions to go forward would

be inconsistent with Congress’ carefully tailored scheme);

Wright, 479 U.S. at 423-24 (quoting Smith v. Robinson,

468 U.S. 992, 1012 (1984) (“We do not lightly conclude that

Congress intended to preclude reliance on § 1983 as a

remedy for the deprivation of a federally secured right.”);

Livadas v. Bradshaw, 512 U.S. 107, 133 (1994) (presump-

tion of availability of § 1983 where enforceable federal

right violated can be overcome only in exceptional circum-

stances).

C. The Court Has Looked To A Variety Of Fac-

tors In Determining Whether A Particular

Scheme Is “Comprehensive” And Has Never

Laid Down A Bright-Line Rule

As the government acknowledges, the Court has only

twice found a statutory remedial scheme sufficiently

comprehensive to warrant a conclusion that § 1983 is

unavailable. Brf. at 14 (citing Sea Clammers, 453 U.S. at

13 and Smith, 468 U.S. at 1010-12). The government

repeatedly suggests that these decisions rested solely on

the fact that the statutes at issue contained provisions for

individual judicial review. Brf. at 14-15, 17. The govern-

ment is mistaken.

10

The government's characterization of these cases

contradicts the Court’s own interpretation. In Blessing, the

Court examined its prior decisions in Sea Clammers and

Smith. The Court explained the multiple factors it relied

on in determining that in those two cases the very difficult

showing of an implicit intent to displace § 1983 had been

made. The Court began by pointing out that Sea Clam-

mers:

focused on the ‘unusually elaborate enforcement

provisions’ of the Federal Water Pollution Con-

trol Act, which placed at the disposal of the Envi-

ronmental Protection Agency a panoply of

enforcement options, including noncompliance

orders, civil suits, and criminal penalties. ... We

emphasized that several provisions of the Act au-

thorized private persons to initiate enforcement

action. ... We found it “hard to believe that Con-

gress intended to preserve the § 1983 right of ac-

tion when it created so many specific statutory

remedies, including the two-citizen suit provi-

sions.”

Blessing, 520 U.S. at 347 (citations omitted).

Regarding Smith v. Robinson the Court stated that

because the Education of the Handicapped Act “permitted

aggrieved individuals to invoke ‘carefully tailored’ local

administrative procedures followed by federal judicial

review.... Congress could not possibly have wanted

parents to skip these procedures and go straight to court

by way of § 1983, since that would have ‘rendered super-

fluous most of the detailed procedural protections outlined

in the statute.’” Id. (emphasis added) (citations omitted).

LE

11

As the Court recognized in Blessing, both Sea Clam-

mers and Smith relied on a number of factors in determin-

ing that the two “unusually elaborate” enforcement

schemes at issue were so comprehensive as to compel a

conclusion that Congress implicitly intended to foreclose

resort to § 1983. These opinions did not default to a

simplistic rule of thumb that the plaintiff had access to

judicial review and leave it at that. Rather, the Court did a

true analysis before determining that the remedial

schemes before it were “comprehensive.” Amici believe the

Court should continue this type of analysis on a statute-

by-statute basis.

The government cites three more cases — Wright v.

Roanoke Redevelopment & Housing Authority, 479 U.S.

418 (1987); Wilder v. Virginia Hospital Association, 496

U.S. 498 (1990) and Blessing v. Freestone, 520 U.S. 329

(1997) — in support of its proposed new rule. Brf. at 18-19.

It first claims Wright held that because the statute before

it did not explicitly provide for judicial review, it could

not be sufficiently comprehensive to evidence Congres-

sional intent to foreclose § 1983. Jd. Even if this were

true, it would be irrelevant. That failure to provide for

review might preclude a finding of comprehensiveness

does not mean that providing for review compels a find-

ing of comprehensiveness. The second proposition simply

does not follow from the first. Wright did not reach its

conclusion “because” of the statute’s lack of a judicial

review provision, as the government suggests. The Wright

opinion analyzed a claim that because Congress had

vested exclusive enforcement authority in a particular

agency (the department of Housing and Urban Develop-

ment), private § 1983 relief was unavailable. The Wright

opinion points out that the agency did not consider itself

12

to have exclusive enforcement authority. Wright, 479 U.S.

at 426-27. The Court observed that the agency itself

assumed the availability of private lawsuits. Jd. It there-

fore rejected the assertion that § 1983 was foreclosed. Id.

at 427-28. While Wright did point out that provision for

judicial review is evidence of Congressional intent to

displace § 1983, it certainly did not state that provision for

judicial review is in itself proof of such intent.

The government’s reference to Wilder is no more

availing. Wilder did point out that Sea Clammers and

Smith had cited the availability of judicial review as

among the many factors to be considered in determining

whether Congress intended to foreclose resort to § 1983. It

did not, however, rely solely on the availability of judicial

review in reaching its conclusion, let alone announce a per

se rule. Indeed, Wilder specifically noted that in Sea

Clammers the Court had relied on the “comprehensive

enforcement scheme” at issue in that case — including

agency enforcement powers, provision for citizen suits, and

provision for criminal penalties. Wilder, 496 U.S. at 521.

Wilder also observed that in Smith, the Court held that it

was the “elaborate administrative scheme” that mani-

fested Congress’ desire to foreclose resort to § 1983. Id. In

other words, Wilder applied rather than supplanted the

analytical framework the Court discussed in Sea Clam-

mers.

Finally, the government asserts that in Blessing, the

Court rejected a claim that the statute before it was

sufficiently comprehensive to preclude § 1983 remedies,

solely because the statute lacked a provision for judicial

review. Brf. at 19. Even if this were true, it would not

prove the converse — that inclusion of any provision for

relief compels a conclusion of comprehensiveness.

13

In fact, Blessing undercuts the government’s position.

As discussed above, Blessing demonstrates that the Court

considers a variety of well-defined factors in determining

comprehensiveness. In Blessing, the Court not only exam-

ined its prior holdings in Sea Clammers and Smith and

discussed the factors considered in those opinions, but also

cited the fact that the statute it was examining lacked

provisions for access to administrative review. And the

Court also cited the relatively weak enforcement powers of

the state official charged with administering the relevant

aid program. Blessing, 520 U.S. at 348. Blessing did not

pronounce a bright-line rule that lack of a judicial review

provision in itself precludes a finding of “comprehensive-

ness” — let alone a rule that access to judicial review

automatically compels such a finding.

The Court has never announced or relied on any kind

of bright-line rule regarding provision of judicial review in

determining whether a remedial scheme is sufficiently

comprehensive to rebut the presumption that § 1983

claims are available. Instead, it has looked to a variety of

factors to determine whether a comprehensive remedial

scheme exists. None of the cases cited by the government

suggest otherwise. As resort to a new rule is neither

necessary nor supported by case law, the Court should

reject the government’s interpretation. *

* The government also asserts that provision for judicie! review

will “not always be necessary in order to supplant the § 1983 remedy.

Depending on the particular context, remedial schemes that do not

afford meaningful judicial review may nevertheless be sufficiently

‘comprehensive’ to satisfy this Court’s analysis, e.g. by providing

appropriate administrative avenues for relief.” Brf. at 17, fn 3. This

statement, which is irrelevant to resolution of the instant case, appears

to conflict with the government’s claim that cases such as Wright,

(Continued on following page)

14

II. That A Particular Statute Is Silent On The

Availability Of Attorneys’ Fees Does Not Sup-

port A Conclusion That It Is “Incompatible”

With Section 1983 ns

The government also argues that if a statute does not

contain a specific attorney fee provision, that statute is

incompatible with § 1983 because § 1983 does contain an

attorney fee provision. Brf. at 22-23 (citing the “American

rule” and Nextel Partners Inc. v. Kingston Township, 286

F.3d 687, 695 (3d Cir. 2002)). This cannot be correct. If

§ 1983 were applicable only to statutes with a fee provi-

sion, its fee provision would be redundant. It is a funda-

mental canon of statutory construction that redundancies

are to be avoided. TRW Inc. v. Andrews, 534 U.S. 19, 31

(2001) (statutes should not be construed as to render any

provision redundant or superfluous); United States v. X-

Citement Video, 513 U.S. 64, 69-70 (1994) (statutes should

not be construed as to lead to an absurdity). The govern-

ment’s interpretation would render § 1983 redundant as to

the recovery of attorney fees. The Court should therefore

reject it.

Courts have routinely permitted § 1983 actions to go

forward notwithstanding lack of an explicit attorney fee

Wilder, and Blessing demonstrate that lack of a provision for judicial

review in itself rendered the statutes at issue insufficiently comprehen-

sive to find implied preclusion. This Court has, moreover, stressed that

“[a] plaintiff’s ability to invoke § 1983 cannot be defeated simply by ‘the

availability of administrative mechanisms to protect the plaintiff’s

interest.’” Blessing, 520 U.S. at 347. In any event, the import of the

government's comment is that each remedial scheme must be carefully

examined on a case-by-case basis to determine whether the relief

provided for is sufficiently “comprehensive” to foreclose resort to § 1983

— a position directly contradictory to the government’s invitation to the

Court to announce simplistic new bright-line rules.

Oe

15

provision in the underlying statute. See eg. Maher v.

Gagne, 448 U.S. 122, 133 (1980) (claim predicated on 42

U.S.C. §602); Maine v. Thiboutot, 448 U.S. 1 (1980)

(same); National Home Equity Mortgage Ass’n v. Face, 322

F.3d 802, 804 (4th Cir. 2003) (claim predicated on 12

U.S.C. § 3801 et seg.); Native Village of Venetie IRA Coun-

cil v. State of Alaska, 155 F.3d 1150, 1153 (9th Cir. 1998)

(claim predicated on 25 U.S.C. § 1911). Congress is pre-

sumed to be aware that courts have routinely permitted

§ 1983 claims to proceed notwithstanding lack of an

attorney fee provision in the applicable statutory scheme.

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85

(1998) (Congress is presumed to be aware of how courts

have interpreted the law and to take that interpretation

into account in composing statutes). Had Congress found

fault with this practice, it doubtless would have included

language in the TCA (and other statutes that do not have

an express attorney fee provision as to which courts

routinely permit § 1983 cases to proceed) to ensure that its

intent to foreclose such fees was understood. That it has

not done so demonstrates the incorrectness of the govern-

ment’s position. Id.; Maine, 448 U.S. at 8 (Congress’ silence

in face of Court’s many interpretive pronouncements on

the scope of § 1983 significant evidence of Congressional

intent).

Indeed, the government’s position would nullify the

very purpose of including a fee provision in § 1983 which is

to encourage litigation of meritorious civil rights claims

notwithstanding financial obstacles. Felder, 487 U.S. at

139 (providing a means for individuals whose federal

constitutional or statutory rights are violated to recover

damages or equitable relief is the central purpose of § 1983).

See also Jonas v. Stack, 758 F.2d 567,569 (11th Cir.

16

1985) (§ 1988’s “primary function is to shift the costs of

civil rights litigation from civil rights victims to civil rights

violators.”). To hold that § 1983 fees are not available just

because the statute at issue does not expressly provide for

them, would obviously undermine this Congressional

intent. As the government’s proposed bright-line rule

would nullify § 1983’s fee provision, the Court should

reject it. X-Citement Video, 513 U.S. at 69-70 (statutes

should not be construed as to lead to an absurdity); TRW,

534 U.S. at 31 (statutes should not be interpreted such as

to render any provision nugatory).

Ill. Adoption Of The Two Proposed Bright-Line

Rules Proposed By The Government Would

Nullify Section 1983 Entirely

While adoption of the government’s proposed bright-

line rule on attorneys’ fees would nullify § 1983’s attorney

fee provision, adoption of both of the bright-line rules

proposed by the government would nullify § 1983 entirely.

Statutes providing attorneys’ fees for successful litigants

obviously presume access to the courts. The government

argues that access to the courts in itself renders a statute

sufficiently “comprehensive” to evidence implicit preclu-

sive intent. It also argues that a statute without an attor-

ney’s fee provision cannot be compatible with § 1983.

Thus, according to the government’s logic, no statute could

ever provide a basis for a § 1983 claim. A statute that does

not provide for attorneys’ fees would be incompatible for

that reason, and one that does provide for attorneys’ fees

would be too comprehensive. Such a facially absurd and

disabling construction is obviously to be avoided.

oF

17

IV. Creation Of Two Sweeping Bright-Line Rules

That Would Greatly Restrict The Scope Of Sec-

tion 1983 Is Unnecessary To Resolution Of The

Instant Case

Fortunately, it is not necessary for the Court to resort

to sweeping and destructive new rules in order to resolve

the case before it. There is no reason why the Court cannot

resolve the question as it has resolved all such questions

in the past —-by engaging in a careful examination of the

entire remedial scheme to determine whether the “difficult

showing” of comprehensiveness and incompatibility has

been made. Neither party has limited itself to arguing that

access to judicial review or access to attorneys’ fees are the

only factors to be considered in this analysis, and there is

no reason for the Court to address the government’s

contentions in this regard.*

There is no need for the Court to eviscerate § 1983 in

the manner suggested by the government in order to

resolve this case. Instead, the Court can either apply the

plain language of the savings clause or, if the Court is not

convinced that clause is dispositive, proceed to apply the

traditional, comprehensive analysis of all factors bearing

on the scope of the remedial scheme at issue. The Court

* Both sides, for example, will doubtless discuss the impact of the

“expedited” nature of the judicial review provided by the TCA on the

analysis. They will also certainly debate whether the TCA’s savings

clause is in itself dispositive, thus rendering examination of the

“comprehensiveness” of the TCA’s remedial scheme unnecessary. Amici

herein express no opinion on these subjects, nor the other factors that

will doubtless be extensively addressed in other briefing. Amici submit,

however, that to the extent the Court concurs that any of the additional

factors discussed by the parties or other amici are germane to the

analysis, such factors reinforce the conclusion that resort to the drastic

measures proposed by the government is unnecessary.

18

should therefore decline to announce the restrictive new

rules urged by the government.

+

CONCLUSION

For the foregoing reasons, this Court should reject the

government’s invitation to craft new bright-line rules that

any provision for judicial review forecloses resort to § 1983

and that lack of an attorney fee provision in itself renders

a statute incompatible with § 1983.

Respectfully submitted,

AKIN, GUMP, STRAUSS, HAUER

& FELD, L.L.P.

REGINALD D. STEER

Counsel of Record

DAVID R. LAWSON

Three Embarcadero Center,

Suite 2800

San Francisco, California 94111-4046

Telephone: (415) 765-95C0

Facsimile: (415) 765-9501

MICHAEL L. FOREMAN

LAWYER’S COMMITTEE FOR

CIVIL RIGHTS UNDER LAW

1401 New York Avenue, NW

Suite 400

Washington, DC 20005

Telephone: (202) 662-8351

DAVID HONIG

MINORITY MEDIA AND

TELECOMMUNICATIONS COUNCIL

3636 16th Street NW

#B-366

Washington, DC 20010

Telephone: (202) 332-7005

19

ANGELA CICCOLO

VICTOR L. GOODE

HANNIBAL KEMERER

NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE

4805 Mt. Hope Drive

Baltimore, Maryland 21215

Telephone: (410) 580-5120

VINCENT A. ENG

AIMEE J. BALDILLO

NATIONAL ASIAN PACIFIC AMERICAN

LEGAL CONSORTIUM

1140 Connecticut Avenue, NW

Suite 1200

Washington, DC 20036

Telephone: (202) 296-2300

JOCELYN C. FRYE

NATIONAL PARTNERSHIP FOR

WOMEN & FAMILIES

1875 Connecticut Ave., NW

Suite 650

Washington, DC 20009

Telephone: (202) 986-2600

FOSTER MAER

PUERTO RICAN LEGAL DEFENSE

AND EDUCATION FUND, INC.

99 Hudson Street, 14th Street

New York, New York 10013

Telephone: (212) 739-7507

Attorneys for Amici Curiae