Petition for Writ of Certiorari — Moore v. Kennison

Supreme Court, U.S.

FILE D

No. % 31808 MAY 10199

In THE Orruc Ur G¥eh Genes

Supreme Court of the Anited States

OcTOBER TERM, 19°3

Dick D. Moore, GEORGE LOMBARDI, DALE RILEY, MYRNA TRICKEY,

RANDIE KAISER, CRANSTON MITCHELL, JEANIE SCHNEIDER-THIES,

CHRISTINE EAVES, TONY GAMMON, WILLIAM BUCK,

JENNIFER SACHS, PAUL CASPARI, TED FIRTEG,

Petitioners,

vs.

EVERETT E. KENNISON,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

JEREMIAH W. (JAY) NIXON

Attorney General, State of Missouri

JOHN R. MUNICH

Chief Counsel, Litigation Division

BRUCE FARMER

Assistant Attomey General

(Counsel of Record)

ALANA M. BARRAGAN-SCOTT

Assistant Attomey General

Post Office Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys for Petitioners

St. Louis Law Printing,Inc. 13307ManchesterRd. St Louis,MO 63131 314-231-4477

+ o

7

QUESTIONS PRESENTED

Is a plaintiff entitled to attorney’s fees as a “prevailing

party” under 42 U.S.C. § 1988 when he obtains a reversal

of a district court’s order dismissing his case but when, after

remand, his claim is dismissed with prejudice by te district

court and he obta)..s no relief as a result of his ltigation?

Is it proper to employ a “catalyst” analysis to a plaintiff’s

request for attorney’s fees under 42 U.S.C. § 1988 when

plaintiff points to actions taken by a non-party during the

course of litigation Sut plaintiff’s claim is dismissed with

prejudice by the disérict court?

If it is proper to employ a “catalyst” analysis to a plaintiff’s

request for attorney’s fees under 42 U.S.C. § 1988, al-

though the plaintiff’s claim is dismissed with prejudice by

the district court, what is the plaintiff’s burden of proof in

demonstrating his entitlement to fees?

cers eee

STATEMENT PURSUANT TO RULE 14.1(b)

The names of all parties to the proceeding in the United States

Court of Appeals for the Eighth Circuit are found in the caption

of this Petition for Writ of Certiorari.

The defendants/appellees to the proceedings below are peti-

tioners herein; the plaintiff/appellant below is respondent herein.

— ili—

TABLE OF CONTENTS

Page

I suuseuouecocsvunncnovennoens i

Statement Pursuant to Rule 14.1(b).........ccccccccccescceeesees ii

_ ESS vi

TIT ih ssnetevininesiesecoseeotivsstnereesegapversecntuconesonc l

SERS ER RI ee 2

Statutes and Constitutional Provisions Involved........... 3

I I I acc cccecncvusceuobonnveenessvonseevecossencses 3

Reasons Why the Writ Should be Granted.................... 5

I. THE DECISION OF THE COURT OF AP-

PEALS TO AWARD ATTORNEY’S FEES

ON APPEAL TO A PLAINTIFF WHO OB-

TAINED REVERSAL OF A DISTRICT

COURT’S ORDER DISMISSING HIS CASE

BUT WHOSE CASE, AFTER REMAND,

WAS AGAIN DISMISSED WITH PREJU-

DICE CONFLICTS WITH DECISIONS OF

THIS COURT AND OTHER COURTS OF

APPEALS AND CONSTITUTES SOFAR A

DEPARTURE FROM THE ACCEPTED

AND USUAL COURSE OF JUDICIAL PRO-

CEEDINGS AS TO CALL FOR AN EXER-

CISE OF THIS COURT’S POWER OF SU-

NITION dacchceltdiutlanastisinsiessmpebentsanenaniicewes 5

Il. THE DECISION OF THE COURT OF AP-

PEALS TO AWARD ATTORNEY'S FEES

ON APPEAL TO A PLAINTIFF WHOSE

CASE WAS DISMISSED WITH PREJU-

DICE, BUT WHO POINTS TO ACTIONS

TAKEN BY A NON-PARTY DURING THE

COURSE OF LITIGATION IN SUPPORT

OF HIS APPLICATION FOR ATTORNEY'S

FEES, CONFLICTS WITH DECISIONS OF

THIS COURT HOLDING THAT A PARTY

MUST RECEIVE AT LEAST SOME RE-

LIEF ON THE MERITS OF HIS CLAIMS

BEFORE HE CAN BE A “PREVAILING

PARTY” UNDER 42 U.S.C. § 1988. ...........

Ill. ITTIS OF CONSIDERABLE IMPORTANCE

THAT THIS COURT CLARIFY THE BUR-

DEN OF PROOF UPON A PARTY SEEK-

ING ATTORNEY’S FEES UNDER 42 U.S.C.

§ 1988 - WHETHER BY CLEAR AND CON-

VINCING EVIDENCE OR A PREPONDER-

ANCE - IN SITUATIONS IN WHICH THE

PARTY OBTAINS NO FORMAL RELIEF

GG SERS SEEN © We ccecsessceveneneesnssntestvsunesntocnaes

ne eseeaiaiadeinisie

Appendix

Appendix A

Judgment of the United States Court of Appeals for

the Eighth Circuit, Dated June 29, 1993 ...............

Appendix B

Order of the United States District Court for the

Eastern District of Missouri Granting Defendants’

Motions to Dismiss for Failure to State a Claim,

eo ¥ . _. enenn ener

12

16

A-1

Appendix C

Memorandum of the United States District Court

for the Eastern District of Missouri in Connection

With Court’s Granting of Defendants’ Motion to

Dismiss, Dated September 21, 1993 .00......0.0000005.

Appendix D

Appellants Memorandum in Support of Motion for

FORTE Ot PUINE saisseinacaceblalesadsasectiaineniimiadabinbadlaades

Appendix E

Appellees’ Letier to Michael Gans, Clerk of United

States Eighth Circuit Court of Appeals, Dated Oc-

OE ae He dereesrensnsecsstesiniticcntandittibilediiotainideins

Appendix F

Appellees’ Reply to Appellant’s Memorandum in

Support of Motion for Attorney’s Fees .................

Appendix G

Order by United States Court of Appeals for the

Eighth Circuit Awarding Plaintiff’s/Appellant’s

Attorney’s Fees, Dated December 14, 1993 .........

Appendix H

Order by United States Court of Appeals for the

Eighth Circuit Denying Defendants’/Appellees’

Motion for Reconsideration and Petition for Re-

hearing or, Alternatively, Rehearing En Banc, dated

PN Wi CNT cticsastasiciesiainieidcoeniiciaicuiadddneonlemiginee

A-10

A-23

A-25

A-30

axe Yi ax

TABLE OF AUTHORITIES

Page(s)

Cases:

Am. Counsel of the Blind of Colorado, Inc. v. Romer, 992

Lh Le. | nO TE 10

Associated Builders & Contractors of Louisiana, Inc. v.

Orleans Parish School Board, 919 F.2d 374 (Sth

TI TPEPEE stessnctvcnmensvenenisiierentacthiianenaemitemdmenaitiin 13

Bernal-Garcia v. 1.N.S., 852 F.2d 144 (Sth Cir. 1988) . 7

Church of Scientology Flag Service v. City of Clearwater,

ae SEP CBee Ges SOUS) ccscerccrecensectsccpnesetinonnns 10,14

City of Burlington v. Dague,___ U.S. ___, 112 S.Ct.

STEIEEETTTETIEY scssiicuneriiemvestinebcanenahinieneenaainionmmnaines 12

Collins v. Romer, 962 F.2d 1508 (10th Cir. 1992)........ 10,13

Crabtree v. Collins, 900 F.2d 79 (6th Cir. 1990).......... 10,14

Farrar v. Hobby, 506 U.S. __, 113 S.Ct. 566

EID sen chicninsvssiaticasasenidudnetinaebibelipnseublacciapesaaiiamuenaeaaaanbaaied 5,6,10

Friedman v. Arizona, 912 F.2d 328 (9th Cir. 1990)...... 7

Friend v. Kolodzieczak, 965 F.2d 682 (9th Cir. 1992).. 10,13

Hanrahan v. Hampton, 446 U.S. 754 (1980) ............00 7

Hendrickson v. Branstad, 934 F.2d 158 (8th Cir.

SI celichbictinsbcessecssilshhediidebenniaeianeideebniuleidenssebibinonaitins 10,13

Hensley v. Eckerhart, 471 U.S. 424 (1983) .............000 7,12,14

Hewitt v. Helms, 482 U.S. 755 (1987) ............0ccceeseeeeeeee passim

— vii—

Maher v. Gagne, 448 U.S. 122 (1980) .o..cccccccccccccccocecce. 10

Mosley v. Hairston, 765 F.Supp. 915 (S.D. Ohio

IPOs iiehsnchsnenouigdatenincnbetadciat ite Ua aa 10,13,15

Pardo v. Hosier, 946 F.2d 1278 (7th Cir. 1991) ........... 15

Paragould Music Co., Inc. v. City of Paragould, Arkan-

sas, 738 F.2d 973 (8th Cir. 1984) ooo cccccccccccecceeee 7

Paris v. U.S. Dep't. of Housing & Urban Development,

988 F.2d 236 (Ist Cir. 1993) ooo. cececsceseccecceseees 10,13

Pearson v. Fair, 980 F.2d 37 (1st Cir. 1992) .....cccccccsee. 15

Posada v. Lamb County, Texas, 716 F.2d 1066 (5th Cir.

SOP vticssiniioeinciieniibhasddeasaihcaaralatitia tee Shana 10

Proctor v. Consolidated Freightways Corp. of Dela-

ware, 795 F.2d 1472 (8th Cir. 1986) .......cccccccecees. 7

Quinn v. State of Missouri, 891 F.2d 190 (8th Cir.

OEE SE a RO Le Se Ee nT eee See 7

Rhodes v. Stewart, 488 U.S. 1 (1989) ....ccccccccccosecsoceceeeee 6,7,8,9

Richardson v. Penfold, 900 F.2d 116 (7th Cir. 1990) ... 7

Strickland v. Lamar County Board of Comm’ rs., 807

F.Supp. 121 (M.D. Ga. 1992) .oo.occccccccscececsececcsees 10,13

Texas State Teachers Ass’n. v. Garland Indep. School

Eaiet., TEP UB. FEB GID) cevceeresnivscistentaunriacsasesiaine 6,14

United Handicapped Federation v. Andre, 622 F.2d 342

GONG IE Gitteciatieiicaeeiditeciee cle a 10,15

— Vili —

Other Authorities:

SEIT Siahiicoihininivetnsiehiiniednsscedivetnsetien iniaidaelalanieltan 2

RI AE: TIE sdstesasnpcestbennncdencaanissinicnenedenbdionsagabeamenouitiei 3

TT ITT iieechiviecscenciisdiniisnienhicublianenssasiitnintinibionahaiaanios 3

Be Ne TIT iacisceticnsicaenninidnidinsinhsianpecnaniatesesinniaianiiaiiiins 3

el IE aiiltiennicciinectaitenictinienisncsinedasaheesanpuimniilin 5,9,10,12

Ne NEED piiteniniciniicsscscniiehinitutininiocsenvudiieasaiialionids 3

No.

IN THE

Supreme Court of the United States

OcToBER TERM, 1993

Dick D. Moore, GZoRGE LOMBARDI, DALE RILEY, MYRNA TRICKEY,

RANDIE KAISER, CRANSTON MITCHELL, JEANIE SCHNEIDER-THIES,

CHRISTINE Eaves, TONY GAMMON, WILLIAM BUCK,

JENNIFER SACHS, PAUL CASPARI, TED FIRTEG,

Petitioners,

vs.

EVERETT E. KENNISON,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

PETITION FOR WRIT OF CERTIORARI

Dick Moore, George Lombardi, Dale Riley, Myrna Trickey,

Randie Kaiser, Cranston Mitchell, Jeanie Schneider-Thies, Chris-

tine Eaves, Tony Gammon, William Buck, Jennifer Sachs, Paul

Caspari, and Ted Firteg, defendants in the action below, respect-

fully pray that a writ of certiorari issue to review the Order of the

United States Court of Appeals for the Eighth Circuit awarding

attorney’s fees on appeal, filed December 14, 1993.

OPINIONS BELOW

This petition concerns the award of attorney’s fees which was

granted in an order of the United States Court of Appeals for the

one Bice

Eighth Circuit, entered on December 14, 1993. Appendix G.

The order followed that Court’s reversal of the district court’s

dismissal of Everett Kennison’s (the inmate’s) lawsuit for failure

to state a claim. The Court had reversed on only one issue (i.e.,

whether the inmate had stated a claim for an ex post facto

violation), finding the other issues raised on appeal to be meritless.

The Court’s opinion, which was unpublished, is reproduced at

Appendix A.

On remand, the district court again dismissed the lawsuit with

prejudice finding no ex post facto violation. The district court’s

order on remand and memorandum in connection therewith are

attached as Appendices B and C.

The inmate’s attorney on appeal then submitted a memoran-

dum in support of his motion for attorney’s fees. Appendix D.

Defendants/petitioners (the “State employees”) replied, Appen-

dix F, and submitted a letter to Michael Gans, Clerk of the United

States Court of Appeals for the Eighth Circuit, in response to a

request for information from the Clerk’s office. Appendix E.

The Eighth Circuit granted a partial allowance of attorney’s fees

to the inmate on December 14, 1993. Appendix G.

The State «mployees then filed a motion for reconsideration

and petition for rehearing or, alternatively, rehearing en banc,

which was denied on February 9, 1994. Appendix H.

JURISDICTION

The Order of the United States Court of Appeals for the Eighth

Circuit allowing attorney’s fees was entered on December 14,

1993. The Order of the United States Court of Appeals for the

Eighth Circuit denying the State employees’ motion for recon-

sideration and petition for rehearing or, alternatively, rehearing

en banc was entered on February 9, 1994. This petition was filed

and served in accordance with the rules of this Court within

ninety (90) days of February 9, 1994. Jurisdiction of this Court

is founded upon 28 U.S.C. § 1254.

= wa

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

42 U.S.C. § 1988(b):

In any action or proceeding to enforce a provision of

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

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

Rights Act of 19€4, the court, in its discretion, may allow

the prevailing party, other than the United States, a reason-

able attorney’s fee as part of the costs.

STATEMENT OF THE CASE

The inmate, Everett Kennison, was a state prisoner incarcer-

ated at the Missouri Eastern Correctional Center. While incar-

cerated, he filed suit under 42 U.S.C. § 1983 against various

Department of Corrections officials and employees of the Mis-

souri Board of Probation and Parole (the State employees). The

inmate alleged, inter alia, that the requirement that he complete

the Missouri Sexual Offender Program (MOSOP) prior to eligi-

bility for parole violated the ex post facto provisions of the

United States Constitution. He asserted jurisdiction in the

district court pursuant to 28 U.S.C. §§ 1331 and 1343. The

district court dismissed his suit for failure to state a claim.

In an unpublished opinion dated June 29, 1993, the Eighth

Circuit reversed on only the ex post facto issue, finding the other

issues raised on appeal to be meritless. The inmate was repre-

sented by appointed counsel on appeal.

On remand, the district court again dismissed the lawsuit with

prejudice finding that the requirement that the inmate complete

MOSOP for parole eligibility was not a violation of the ex post

facto clause.

During this litigation, the inmate voluntarily completed

MOSOP. He was also released from prison pursuant to Execu-

tive Order 93-18, issued by Missouri Governor Mel Carnahan

during the summer of 1993. That summer, severe flooding in the

mid-Western United States affected a Missouri Department of

Corrections facility, Renz Correctional Center, and inmates had

to be evacuated to other prisons. The Executive Order provided

that certain inmates could be released from incarceration in order

to relieve the resulting prison overcrowé.:ng. A condition of the

inmates’ release was that they were to participate in flood relief

activities as directed by their parole officers. Kennison was

released pursuant to this Executive Order because he had suc-

cessfully completed MOSOP during the pendency of this litiga-

tion. See Appendices E and F.

The inmate’s appointed counsel on appeal requested attorney’ s

fees, but offered no evidence in support of the request. Rather,

he submitted a memorandum in which he argued, without any

supporting affidavits or other evidence, that the inmate was

released 54 days before his originally scheduled release date

because the State employees wanted to “cut their losses” and

“moot the controversy.” The Eighth Circuit granted “an allow-

ance of $2,500.00 on the ground that [the inmate] in this case has

prevailed, if at all, only to a slight degree.” Judge Wollman

dissented and would not have allowed any attorney’s fees.

The State employees’ motion for reconsideration and petition

for rehearing or, alternatively, rehearing en banc was denied.

— oe

REASONS WHY THE WRIT SHOULD BE GRANTED

I. THE DECISION OF THE COURT OF APPEALS

TO AWARD ATTORNEY’S FEES ON APPEAL

TO A PLAINTIFF WHO OBTAINED REVER-

SAL OF A DISTRICT COURT’S ORDER DIS-

MISSING HIS CASE BUT WHOSE CASE, AF-

TER REMAND, WAS AGAIN DISMISSED WITH

PREJUDICE CONFLICTS WITH DECISIONS

OF THIS COURT AND OTHER COURTS OF

APPEALS AND CONSTITUTES SO FAR A DE-

PARTURE FROM THE ACCEPTED AND

USUAL COURSE OF JUDICIAL PROCEED-

INGS AS TO CALL FOR AN EXERCISE OF

THIS COURT’S POWER OF SUPERVISION.

This petition presents the “peculiar-sounding question whether

a party who litigates to judgment and loses on all his claims can

nonetheless be a ‘prevailing party.’” Hewitt v. Helms, 482 U.S.

755,757 (1987). The short answer below should have been “no,”

and this Court should vacate the lower court’s judgment because

the inmate was not a “prevailing party” as that phrase is used in

42 U.S.C. § 1988. His claim was dismissed on the merits after

remand and he can point to no relief which he obtained as a result

of this litigation.

This Court recently reviewed awards of attorney’s fees under

§ 1988 and the definition of “prevailing party” in Farrar v.

Hobby, 506 U.S. __, 113 S.Ct. 566 (1992). In Farrar, this

Court emphasized that Congress’ intent in authorizing fees was

“to permit the . .. award of counsel fees only when a party has

prevailed on the merits.”” 113 S.Ct. at 572 (quoting Hanrahan

v. Hampton, 446 U.S. 754, 758 (1980)). “‘[Liability on the

merits and responsibility for fees go hand in hand....’” 113 S.Ct.

at 572 (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)).

After discussing the definition of “prevailing party” upon which

— i

this Court had elaborated in three recent case — Hewitt v. Helms,

482 U.S. 755(1987), Rhodes v. Stewart, 488 U.S. 1 (1989), and

Texas State Teachers Ass'n. v. Garland Independent School

Dist., 489 U.S. 782 (1989) — this Court concluded:

[T]o qualify as a prevailing party, a civil rights plaintiff

must obtain at least some relief on the merits of his claim.

The plaintiff must obtain an enforceable judgment against

the defendant from whom fees are sought, . . . or compa-

rable relief through a consent decree or settlement, .. .. In

short, a plaintiff ‘prevails’ when actual relief on the merits

of his claim materially alters the legal relationship between

the parties by modifying the defendant's behavior in a way

that directly benefits the plaintiff.

113 S.Ct. at 573 (citations omitted).

Here, the inmate’s suit was initially dismissed by the district

court for failure to state a claim; the Eighth Circuit reversed and

remanded for examination of the ex post facto issue. On remand,

the district court again dismissed, finding that the requirement

that the inmate complete MOSOP for parole eligibility was not

a violation of the ex post facto clause. The inmate gained

absolutely no relief on the merits of his claim, for the MOSOP

requirement was held to be legally appropriate. His claim for

injunctive relief also became moot because he elected to com-

plete, and successfully completed, MOSOP during the litigation.

He should not have been awarded attorney’s fees for losing.

In making its fee award, the Eighth Circuit did not articulate

in what way it believed the inmate had prevailed. Rather, the

court stated that he had “prevailed, if at all, only to a slight

degree.” If, by its determination that he had “prevailed, if at all,

only toa slight degree,” the Eighth Circuit was referring only to

Kennison’s having obtained a reversal and remand from that

court, that court was wrong.

:

|

ti

hac caeliietteteeeiaeeeammeaaimeaaiaiiell

— =

The obtainment of the reversal and remand of the district

court’s first dismissal of his claim cannot in itself qualify the

inmate as a prevailing party for purposes of § 1988. This Court,

the Eighth Circuit itself and other courts of appeal have em-

braced the contrary contention.’ Generall y, the opinions of these

courts stand for the proposition that “{a] procedural victory that

may be the way station to utter substantive defeat Creates noright

to fees.” Richardson v. Penfold, 900 F.2d 116, 119 (7th Cir.

1990). The opinions’ common thread is embodied in this Court’s

observation in Hewitt v. Helms that, “Respect for ordinary

language requires that a plaintiff receive at least some relief on

the merits of his claims before he can be said to prevail.” 482

U.S. 755, 760 (1987) (emphasis added).

' See, e.g. Rhodes v. Stewart,488 U.S. 1 (1989), Hewitt v. Helms, 482 U.S.

755 (1987), Hanrahan v. Hampton, 446 U.S. 754, 757-58 (1980) (party won

an interlocutory procedural ruling, which did not establish his entitlement to

some relief on the merits of his claim: party was not a “prevailing party”),

Friedman v. Arizona, 912 F.2d 328, 333 (9th Cir. 1990) (plaintiff won

injunction pending appeal but trial court’s dismissal of Claim affirmed),

Richardson v. Penfold, 900 F.2d 116, 118-19 (7th Cir. 1990) (appellate

counsel successfully reversed summary judgment; no fees “unless and until”

plaintiff obtains damages at trial or positive monetary settlement), Quina v.

State of Missouri, 891 F.2d 190, 194 (8th Cir. 1989) (district court decision

on merits, favorable to plaintiffs, vacated by 8th Circuit), Bernal-Garcia v.

I.N.S., 852 F.2d 144, 147 (Sth Cir. 1988) (petitioner obtained remand of his

case for reconsideration in light of additional evidence), Proctor v. Consoli-

dated Freightways Corp. of Delaware, 795 F.2d 1472, 1479 (9th Cir. 1986)

(plaintiff obtained reversal of summary judgment and remand for trial), and

Paragould Music Co.,Inc.v.C ity of Paragould, Arkansas, 738 F.2d 973,975

(8th Cir. 1984) (plaintiff obtained temporary restraining order, but case

dismissed before determination on merits). Fees were awarded in none of

these cases.

The plaintiff in Bernal-Garcia sought attorney’s fees asa prevailing party

under the Equal Access to Justice Act (EAJA). 852 F.2d at 147. Fee awards

under the EAJA and 42 U.S.C. § 1988 are analyzed similarly. Hensley v.

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

For example, in Hewitt v. Helms, faced with a similar proce-

dural fact pattern, this Court addressed the “peculiar-sounding

question whether a party who litigates to judgment and loses on

all of his claims can nonetheless be a ‘prevailing party.’” 482

U.S. at 757. In that action, also a § 1983 claim, against prison

Officials for alleged due process violations, plaintiff Helms

similarly obtained no relief. ““The most that he obtained was an

interlocutory ruling that his complaint should not have been

dismissed for failure to state a constitutional claim.” /d. at 760.

“That is not the stuff of which legal victories are made.” /d.

Observing that “[rJespect for ordinary language requires that a

plaintiff receive at least some relief on the merits of his claim

before he can be said to prevail,” this Court held that plaintiff

Helms was not a prevailing party. /d.

Rhodes v. Stewart, 488 U.S. 1 (1988), presented a similar fact

pattern. There, this Court carried Hewitt one step further and

reversed an award of fees premised solely on a declaratory

judgment that prison officials had violated two prisoners’ consti-

tutional rights. 488 U.S. at 4. By the time the district court

entered judgment, one of the plaintiffs had died and the other was

no longer in custody. /d. at 3. The Court reaffirmed that a

judgment — declaratory or otherwise — “will constitute relief,

for purposes of § 1988, if, and only if, it affects the behavior of

the defendant toward the plaintiff.” /d. at 4.

Here, the inmate sought not to be required to complete

MOSOP prior to becoming eligible for parole, theorizing that the

MOSOP requirement violated the ex post facto clause. The

inmate indeed obtained a reversal and remand of the district

court’s initial dismissal of his claim, but that maneuver was a

mere way station to utter substantive defeat. His claim was

dismissed again by the district court in its second incarnation

there. Pursuant to the teachings of Hewitt and Rhodes, and

similar cases, the inmate cannot be said to have prevailed, and

should not have been awarded fees.

i eatneateneeenreeeeaenenimaeaiiaanaaaaiiiaiiiel

eet

— ‘aa

Therefore, this Court should grant certiorari. The State

employees suggest that this Court could issue an Opinion without

oral argument, as it did in Rhodes v. Stewart, 488 U.S. 1, to

Clarify this issue.

Il. THE DECISION OF THE COURT OF APPEALS

TO AWARD ATTORNEY’S FEES ON APPEAL

TO A PLAINTIFF WHOSE CASE WAS DIS-

MISSED WITH PREJUDICE, BUT WHO

POINTS TO ACTIONS TAKEN BY A NON-

PARTY DURING THE COURSE OF LITIGA-

TION IN SUPPORT OF HIS APPLICATION

FOR ATTORNEY’S FEES, CONFLICTS WITH

DECISIONS OF THIS COURT, THE EIGHTH

CIRCUIT, OTHER COURTS OF APPEALS AND

DISTRICT COURTS, HOLDING THAT A

PARTY MUST RECEIVE AT LEAST SOME

RELIEF ON THE MERITS OF HIS CLAIMS

BEFORE HE CAN BE A “PREVAILING

PARTY” UNDER 42 U.S.C. § 1988.

The inmate here obtained no enforceable judgment against the

State employees that would entitle him to attorney’s fees under

§ 1988. He in fact chose to participate in, and successfully

completed, MOSOP during the litigation, mooting his claim for

injunctive relief. Nevertheless, in his attempt to obtain a fee

award, the inmate pointed to his release from prison during this

lawsuit and argued that he had been released because the State

employees wanted to “cut their losses” and “moot the contro-

versy.”” The inmate, however, submitted no affidavits, docu-

ments or, in fact, any admissible evidence to support his claim.

In limited circumstances not applicable here, a party who does

not obtain an enforceable judgment against the defendant from

whom fees are sought may be entitled to attorney’s fees if the

party obtains comparable relief through a consent decree or

— von

settlement. Farrar v. Hobby, 506 U.S. __, 113 S.Ct. 566, 573

(1992) (citing Hewitt v. Helms, 482 U.S. 755, 760 (1987) and

Maher v. Gagne, 448 U.S. 122, 129 (1980)). In such situations,

courts have employed various versions of what is generally

called the “catalyst” test for determining whether the party

should be awarded attorney’s fees.?_ This Court has not had

occasion to examine the precise contours of any such catalyst test

for fee awards under § 1988. See Hewitt v. Helms, 482 U.S. at

763.

This Court has recently re-emphasized that “to qualify as a

prevailing party, a civil rights plaintiff must obtain at least some

relief on the merits of his claim.” Farrar v. Hobby, 113 S.Ct. at

573 (emphasis added). Many courts which utilize a catalyst test

have incorporated this fundamental requirement into their ver-

sion of the test. These courts frame their inquiries in two parts:

1) whether a causal connection exists between the suit and the

change in the defendant’s behavior, and 2) whether the change

that resulted was actually required by law. Paris v. U.S. Dep’ t.

of Housing & Urban Development, 988 F.2d 236, 241 (1st Cir.

1993), Collins v. Romer, 962 F.2d 1508, 1511 (10th Cir. 1992),

Hendrickson v. Branstad, 934 F.2d 158, 161 (8th Cir. 1991),

Strickland v. Lamar County Board of Comm’ rs., 807 F.Supp.

121, 124 (M.D. Ga. 1992), and Mosley v. Hairston, 765 F.Supp.

915, 918 (S.D. Ohio 1991).

In the present case, the inmate could not satisfy either prong

of this version of the catalyst test, let alone both. The State

See, e.g.,ChurchofScientology Flag Service v. City of Clearwater ,2F 3d

1509, 1513 (11th Cir. 1993), Am. Counsel of the Blind of Colorado, Inc. v.

Romer, 992 F.2d 249, 250 (10th Cir. 1993), Paris v. U.S. Dep’ t. of Housing

& Urban Development, 988 F.2d 236, 238 (Ist Cir. 1993), Friend v.

Kolodzieczak, 965 F.2d 682, 684-85 (9th Cir. 1992), Koster v. Perales, 903

F.2d 131, 134 (2nd Cir. 1990), Crabtree v. Collins, 900 F.2d 79, 82-83 (6th

Cir. 1990), Posada v. Lamb County, Texas, 716 F.2d 1066, 1071 (Sth Cir.

1983) and United Handicapped Federation v. Andre, 622 F.2d 342, 346 (8th

Cir. 1980).

=< eae

employees were not, under any circumstances urged by the

inmate, required by law to change his parole date by even one

day, and there was no evidence that they effected his release

because of his lawsuit. In fact, the inmate’s release was effected

by the inmate’s own choice to participate in and complete

MOSOP, an act of God (the mid- Western flooding in the summer

of 1993), and an Executive Order issued by a non-party in

response to the act of God. To permit the inmate, nevertheless,

to recover attorney’s fees as if he had prevailed on the merits of

his claim violates decisions of this Court, the Eighth Circuit, and

other courts of appeals and district courts.

To permit the award to stand would also operate to deter prison

officials from undertaking any type of ameliorative efforts with

regard to inmates involved in litigation for fear of incurring

awards of attorney’s fees, and would likely chill routine, admin-

istrative activities as well. For example, prison officials may

require bed space in a maximum security facility for a particular

inmate, and decide that a second inmate can and should be

moved to a lower security facility to make room. Under the

Eighth Circuit’s rationale here, however, if the second inmate is

suing prison personnel at the time the move is contemplated, the

prison officials will feel constrained to look elsewhere for fear of

subjecting the defendants to an award of attorney’s fees, regard-

less of whether that inmate ultimately wins his suit.

The same result may even obtain in administrative matters as

mundane as intra-prison transfers to housing units which in-

mates deem “more desirable” for whatever reason. Similarly,

prison officials must constantly adjust prison policy and proce-

dure to effectively address the changing dynamics of their

institutions. The Eighth Circuit’s ruling encourages inmate

litigants to point to policy and procedure changes as a basis for

fee awards. Indeed, litigation often lasts for years. Under the

Eighth Circuit’s ruling, an inmate may be able to seek fees if

anything favorable happens to him any time during that period.

oo

Congress cannot have intended these results in enacting §

1988. This Court has held that fee applications, including those

made pursuant to § 1988, should not spawn burdensome satellite

litigation. City of Burlington v. Dague, -_—~ U.S. ___, 112 S.Ct.

2638, 2643 (1992), and Hensley v. Eckerhart, 461 U.S. 434, 437

(1983) (request for fees “should not result in second major

litigation”). The Seventh Circuit has recognized, however, that:

Fee litigation has become a heavy burden on the federal

courts. It can turn a simple case into two or even more cases

—— the case on the merits, the case for fees, the case for fees

on appeal, the case for fees for proving fees, and so on ad

infinitum, or at least ad nauseam. See Muscare v. Quinn,

680 F.2d 42 (7th Cir. 1982).

Ustrak v. Fairman, 851 F.2d 983, 987 (1988).

This Court should grant certiorari, and reverse and remand

this case with directions to deny all fees to the inmate.

Il. IT IS OF CONSIDERABLE IMPORTANCE

THAT THIS COURT CLARIFY THE BURDEN

OF PROOF UPON A PARTY SEEKING

ATTORNEY’S FEES UNDER 42 U.S.C, § 1988—

WHETHER BY CLEAR AND CONVINCING

EVIDENCE OR A PREPONDERANCE—INSIT-

UATIONS IN WHICH THE PARTY OBTAINS

NO FORMAL RELIEF ON THE MERITS.

As mentioned above, courts have not recognized a uniform

test for determining whether a party, who does not receive formal

legal relief, is a “prevailing party” for purposes of a fee award. |

Further, the courts, to the extent the issue has been addressed, |

have not uniformly identified the relevant burden of proof

associated with fee awards in such cases. Many courts which

utilize a catalyst-type test have generally recognized that the

parties seeking fees are required to demonstrate that a causal

connection exists between the suit and the change in the defen-

————————————————

pee

dants’ behavior, and that the resulting change was actually

required by law.’ However, no court has specifically identified

the parties’ burden of proof in doing so, whether by a preponder-

ance of the evidence or by clear and convincing evidence.

In Collins v. Romer, for example, the Tenth Circuit struggled

mightily with the issue. The court noted that the district court

found a “preponderance” and a “rather clear preponderance” of

the evidence supported the causal link. 962 F.2d at 1512. The

court then agreed that establishment of the causal link was “clear

beyond question” and found that the district court had “appar-

ently” based its determination on “ample evidence.” Id.

Utilizing a different approach, the Fifth Circuit has come

close. Under its version of the catalyst test, a plaintiff must

establish both that the goal of the lawsuit was achieved and that

the suit was a “significant” catalyst in prompting the defendant

to take action. Associated Builders & Contractors of Louisiana,

Inc. v. Orleans Parish School Board, 919 F.2d 374, 378 (Sth Cir.

1990). Once the plaintiff demonstrates both elements, he has

made a prima facie case that he is a prevailing party and is

entitled to attorney’s fees. /d. “The burden of proof then shifts

to the defendant, who can challenge the entitlement only by

showing that its conduct was a ‘wholly gratuitous response to a

lawsuit that lacked colorable merit.” /d. (citation omitted).

Conversely, the Second Circuit, using yet another analysis,

has he! that if the plaintiff obtains relief through settlement or

the like, which is of the general type demanded in his complaint,

he is entitled to a fee award if he can simply “‘show a causal

*See,e.g.,Parisv.US. Dep't. of Housing & Urban Development, 988 F.2d

236, 241 (1st Cir. 1993), Friend v. Kolodzieczak, 965 F.2d 682, 684-85 (9th

Cir. 1992), Collins v. Romer, 962 F.2d 1508, 1511 (10th Cir. 1992),

Hendrickson v. Branstad, 934 F.2d 158, 161 (8th Cir. 1991), Strickland y

Lamar County Board of Comm rs., 807 F.Supp. 121, 124 (M.D. Ga. 1992),

and Mosley v. Hairston, 765 F.Supp. 915, 918 (S.D. Ohio 1991)

—

connection between the relief obtained and the litigation in

which the fees are sought.’” Koster v. Perales, 903 F.2d 131, 135

(2nd Cir. 1990)(citation omitted). Other courts have simply

conducted an analysis pursuant to this Court’s opinions in Texas

State Teachers Ass'n. v. Garland Independent School Dist., 489

U.S. 782 (1989) and similar cases. See Church of Scientology v.

City of Clearwater, 2 F.3d 1509, 1513 (11th Cir. 1993), and

Crabtree v. Collins, 900 F.2d 79, 82 (6th Cir. 1990). Again,

however, these courts have failed to articulate the burden of

proof placed upon the party seeking attorney’s fees.

This Court has never specifically addressed the issue, al-

though in Hewitt v. Helms this Court implied that a catalyst

theory requires plaintiff to “demonstrate a clear causal link,” 482

U.S. at 763, and in his concurring opinion in Hensley v. Eckerhart,

461 U.S. 424, 441(1983), Chief Justice Burger wrote that a party

must establish his right to fees by “clear and convincing evi-

dence.”

In the present case, the inmate offered no evidence in support

of his motion for attorney’s fees. He simply submitted a

memorandum in which he made bald assertions that:

1) He was released two months earlier than his release date,

2) at a time “corresponding with the litigation,” and 3) that

the early release demonstrated an intent on the part of [the

State employees] to “cut their losses” and “moot the contro-

»”

versy.

Appendix D, p. A-18.

Under any formulation discussed above, the inmate was not

entitled to attorney’s fees because the district court ultimately

determined that his claim was meritless. That is, the MOSOP

requirement did not improperly interfere with the inmate’s

parole eligibility. Moreover, the inmate’s successful completion

of MOSOP mooted his claim for injunctive relief. Under no

circumstances would the State employees have been legally

a

p< an

required to release the inmate early as a result of his efforts in this

lawsuit.

Only the fortuitous natural event of record — flooding — and

the resulting prison overcrowding led to the inmate’s earlier

release from prison, pursuant to the Governor’s Executive Order

and prior to the district court’s second dismissal of the inmate’s

claim. The inmate pointed to this chronology of events, arguing

it demonstrated an intent on the part of the State employees to

“cut their losses” and “moot the controversy.” While some

courts have recognized that the chronology of events can be an

important factor in determining whether defendants took actions

in response to a plaintiff’ s lawsuit, Pearson v. Fair, 980 F.2d 37,

44 (Ist Cir. 1992) (court examined chronology and district

court’s series of detailed injunctive orders); United Handi-

capped Federation v. Andre, 622 F.2d 342, 347 (8th Cir. 1980)

(court examined chronology and testimony of defendant’s Spe-

cial Projects Director), at least two courts have rejected plain-

tiffs’ attempts to rely solely on the chronology of events to

support their contentions that their suits were catalysts for

changes in the defendants’ behavior. Pardo v. Hosier, 946 F.2d

1278, 1285 (7th Cir. 1991) (“attorneys for plaintiffs have not

presented any facts’), and Mosley v. Hairston, 765 F.Supp. 915,

919(S.D. Ohio 1991). The inmate’s similar attempt here should

have been rejected.

The conflict between the lower court’s award and the opinions

of most other courts which have dealt with the issue, as well as

the Eighth Circuit’s own cases, in conjunction with the absence

of any uniform standard for awards in such cases, demands this

Court’s intervention. The proper burden of proof which the

inmate was required to carry below has never been identified,

and in view of the absence of any evidence presented by the

inmate in support of his fee request, it is of great importance that

this Court resolve the conflicting approaches currently in use by

the various courts of appeals and clarify the proper burden of

proof in such cases.

=

CONCLUSION

For the reasons stated, the petition for writ of certiorari should

be granted. The decision of the United States Court of Appeals

for the Eighth Circuit allowing attorney’s fees to the inmate

should be reversed and rernanded with directions to deny the fee

request in whole. Alternatively, the State employees urge this

Court to grant a writ of certiorari and clarify the issues presented

in this case.

Respectfully submitted,

JEREMIAH W. (JAY) NIXON

Attorney General

State of Missouri

JOHN R. MUNICH

Chief Counsel

Litigation Division

BRUCE FARMER

Assistant Attorney General

(Counsel of Record)

ALANA M. BARRAGAN-SCOTT

Assistant Attorney General

Post Office Box 899

Jefferson City, MO 65102

(314) 751-3321

Attorneys for Petitioners

May 1994