Petition for Writ of Certiorari — District of Columbia v. Kattan

ew OR Be.

a FLED

93-1296 FEB 10 199

No. 93- uae

OFFICE of Jobb hrttbett

ay

In the Supreme Court of the United States

OcToBER TERM, 1993

District oF CoLUMBIA, et al,

Petitioners,

Vv.

SARAH KatTTran, By Her Parents AND NExT FRIENDS,

SusSAN J. THOMAS AND JOSEPH KATTAN, et al,

Respondents.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

JOUN PAYTON,

Corporation Counsel

CHARLES L. REISCHEL,

Deputy Corporation Counsel

Appellate Division

*DONNA M. Murasky,

Assistant Corporation Counsel

Office of the Corporation Counsel

One Judiciary Square

Sixth Floor

441 Fourth Street, N.W.

Washington, D.C. 20001

Telephone: (202) 727-6252 ext. 3303

*Counsel of Record

QUESTION PRESENTED

Whether a litigant in federal district court who dow: aot

initially advance an argument that is foreclosed by the law

of the Circuit is precluded from making that argument when

this Court subsequently issues a decision overturning the

Circuit precedent.

PARTIES

Petitioners are the District of Columbia and several of its

officials all of whom were sued in their official capacity: Dr.

Franklin L. Smith, Superintendent, District of Columbia

Public Schools (“‘DCPS’’); Dr. B. Garnett Pinkney, Assis-

tant Superintendent — Special Education, DCPS; and Dr.

Constance Clark, Associate Superintendent, DCPS, as suc-

cessor in interest to Dr. Doris Woodson. Respondents, who

were plaintiffs below, are Sarah Kattan and her parents,

Joseph Kattan and Susan J. Thomas.

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

STATUTORY PROVISIONS AND COURT RULES

INVOLVED

STATEMENT OF THE CASE

I.

II.

IT].

BACKGROUND

THE TRIAL COURT'S DECISION

PROCEEDINGS IN THE DISTRICT OF COLUM-

BIA CIRCUIT

A. Its June 15 Decision

B. Rehearing

C. Events Following Denial Of Rehearing

REASONS FOR GRANTING THE WRIT

ARGUMENT

I.

[i].

THE D.C. CIRCUIT'S DECISION VIOLATES THE

PRINCIPLE THAT FEDERAL COURTS HAVE AN

OBLIGATION TO DECIDE CASES LAWFULLY

BEFORE THEM IN ACCORDANCE WITH THE

LAW

A. This Court Repeatedly Has Ruled That Federal

Courts Must Decide Cases In Accordance With The

Law

B. The Legal Issue Here Property Could Have Been

Raised For The First Time On Appeal . .

. THE D.C. CIRCUIT’S WAIVER RULING IS IN

CONFLICT WITH THE RULINGS OF OTHER

CIRCUITS

A LITIGANT’S FAILURE TO DISPUTE

ADVERSE APPLICABLE CIRCUIT LAW

SHOULD NOT PRECLUDE IT FROM INVOKING

A SUPERVENING DECISION BY THIS COURT

IN ITS FAVOR.........

A. Prior to Kay v. Ehrler, The Law In The District

Was That Pro Se Attorneys May Recover Fees

Under Federal Fee-Shifting Statutes

B. Fairness To Litigants And To Their Counsel, As

Well As Judicial Efficiency, Require Review Here

CONCLUSION

~] or or

Oo

12

12

17

19

19

21

24

TABLE OF AUTHORITIES

Page

CASES

Arcadia, Ohio v. Ohio Power Co., 498 U.S. 73 (1990) 13, 14

Benavides v. Bureau of Prisons, 993 F.2d 257 (D.C. Cir.),

cert. denied, 114 S. Ct. 559 (1993) 20, 21

City of Burlington v. Dague, 112 S. Ct. 2638 (1992). . 14, 17, 22, 24

City of Newport v. Fact Concerts, Inc., 453 U.S. 247

(1981) 13,14

Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C. Cir. 1977) passim

Elder v. Holloway, S. Ct. No. 92-8579 (argued Jan. 10,

1994) 10, 11, 12

Elrod v. Burns, 427 U.S. 347 (1976) 17

Falcone v. IRS, 714 F.2d 646 (6th Cir. 1983), cert. denied,

466 U.S. 908 (1984) . 23

Federal Deposit Ins. Corp. v. Meyer, 781 F.2d 1260 (7th

Cir. 1986) 8, 18, 19

Grumman Aircraft Eng’g Corp. v. Renegotiation Board,

482 F.2d 710 (D.C. Cir. 1973) rev'd, 421 U.S. 168

(1975) % ee 8, 18, 19

Hormel v. Helvering, 312 U.S. 552 (1941) 15

Independent Federation of Flight Attendants v. Zipes, 491

U.S. 754 (1989), ... hanes 14

Jones v. Lujan, 883 F.2d 1031 (D.C. Cir. 1989) 20

Kamen v. Kemper Financial Services, Inc., 111 S. Ct. 1711

(1991) ' - 13

Kay v. Ehrier, 111 S. Ct. 1435 (1991) . passim

King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991) (en banc),

cert. denied sub nom., King v. Ridley, 112 U.S. 3054

(1992) st ee 23

Lawrence v. Staats, 586 F. Supp. 1375 (D.C. 1984), aff'd

in part sub nom., Lawrence v. Bowsher, 931 F.2d 1579

(D.C. Cir. 1991) ¢ * pays passim

Lear, Inc. v. Adkins, 395 U.S. 653 (1969) a 12

il

TABLE OF AUTHORITIES (continued)

Page

Leary v. United States, 395 U.S. 6 (1969) 13, 14, 16

Morris v. American National Can Corp., 988 F.2d 50 (8th

Cir. 1993) 17, 18, 22

Orloff v. Willoughby, 345 U.S. 83 (1953) 12

Patterson v. Alabama, 294 U.S. 600 (1935) 15, 16

Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 478 U.S. 546 (1986) 14

Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 483 U.S. 711 (1987) 17, 23

Poythress v. Kessler, 475 U.S. 1129 (1986) 23

Singleton v. Wulff, 428 U.S. 106 (1976) 16

Town of South Ottawa v. Perkins, 94 U.S. 260 (1877) 12

United States Nat'l Bank of Oregon v. Independent Ins.

Agents, 113 S. Ct. 2173 (1993) 13

Weaver v. Bowers, 657 F.2d 1356 (3rd. Cir. 1981) (en banc),

cert. denied, 455 U.S. 942 (1982) 17,18

Young v. United States, 315 U.S. 257 (1942) 12

STATUTES & RULES

Individuals with Disabilities Education Act (‘“‘IDEA”’), 84

Stat. 175, as amended, 20 U.S.C. § 1400 et seq. (1988 ed.

and Supp. IV) 3

20 U.S.C. § 1415(e)(4)(B) 2,3

28 U.S.C. § 1254(1) 2

28 U.S.C. § 1291 l

28 U.S.C. § 2106 2,5

42 U.S.C. § 1988 passim

Fed. R. Civ. P. 6(a) 7

Fed. R. Civ. P. 59(e) passim

lil

In the Supreme Court of the United States

OcTroBER TERM, 1993

District oF CoLuMBIA, et al,

Petitioners, ©

V.

SarAH Katran, By Her Parents AND NExT FRIENDS,

Susan J. THOMAS AND JOSEPH KaATTAN, et al,

Respondents.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

The District of Columbia and several of its officials peti-

tion this Court for a writ of certiorari to review a decision

of the United States Court of Appeals for the District of

Columbia Circuit.

OPINIONS BELOW

The June 15, 1993, decision of the United States Court of

Appeals for the District of Columbia Circuit (App. 13a-25a)

is not reported. The D.C. Circuit’s June 30, 1993, decision,

which amended its June 15 decision, is reported at 995 F.2d

274. App. la-12a. The December 11, 1991, decision of the

United States District Court for the District of Columbia

(App. 33a-35a) is not reported.

The court of appeals had jurisdiction pursuant to 28 U.S.C.

§ 1291. On July 7, 1993, petitioners filed a timely petition

for rehearing and a suggestion for rehearing en banc. The

petition and suggestion were denied on October 6, 1993. App.

37a, 38a.

On November 22, petitioners filed an application for an

extension of time in which to file their petition for a writ

1

2

of certiorari. On November 23, the Chief Justice extended

the time for filing the petition to February s, 1994. App. 39a.

On January 21, petitioners filed a supplemental application

for an extension of time. On January 24, the Chief Justice

extended the time for filing the petition to February 10.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS AND COURT

RULES INVOLVED

This case involves the following statutory provisions and

court rules:

Fed. R. Civ. P. 59e): ‘‘A motion to alter or amend the judg-

ment shall be served not later than 10 days after entry of

the judgment.”’

20 U.S.C. § 1415(e)(4)(B): “In any action or proceeding

brought under this subsection, the court, in its discretion,

may award reasonable attorneys’ fees as part of the costs

tothe parents . . . of a handicapped child or youth who is

the prevailing party.”’

28 U.S.C. § 2106: ‘The Supreme Court or any other court

of appellate jurisdiction may ... reverse any judg-

ment . . . of a court lawfully brought before it for review

. as may be just under the circumstances.”’

STATEMENT OF THE CASE

The D.C. Circuit has held that the District of Columbia

may not invoke this Court’s decision in Kay v. Ehrler, 111

S. Ct. 1435 (1991), barring fee awards to pro se attorneys

under federal fee-shifting statutes, because it did not dispute

the then-controlling Circuit precedent, permitting such fee

awards, in its initial opposition to a fee applicatiun in 1988.

This Court should reverse that decision because it conflicts

with the decisions of this Court, is fundamentally unfair, and

undermines the efficient administration of justice.

I. BACKGROUND.

This suit was brought pursuant to the Individuals with

Disabilities Education Act (““IDEA’’)' on behalf of Sarah Kat-

tan, a handicapped child, by her parents, on March 9, 1988,

against the District of Columbia seeking an order requiring

payment of her private school tuition. Sarah and her parents

were initially represented by her father, an attorney. At the

urging of the trial court, the Honorable Joyce Hens Green,

he secured co-counsel and the Kattans prevailed on the merits

on August 9, 1988.

On October 11, 1988, Mr. Kattan and his co-counsel sub-

mitted an application for attorney’s fees pursuant to 20

U.S.C. § 1415(e)(4)(B).? In that application, they cited Cuneo

v. Rumsfeld, 553 F.2d 1360 (D.C. Cir. 1977), as establishing

as the law of the D.C. Circuit the rule that pro se attorneys

may recover fees under federal fee-shifting statutes. In

Cuneo, the D.C. Circuit, relying on a Fifth Circuit civil rights

case, ruled that attorneys proceeding pro se could recover

fees under the Freedom of Information Act (“FOIA’’). Given

Cuneo and this Court’s repeated admonition that similar

language in federal fee-shifting provisions should be con-

strued in the same fashion, the District did not dispute that

Cuneo was controlling and the propriety of the fees sought

was otherwise briefed in October and November, 1988.

Nearly three years later, on October 17, 1991, Judge Green

entered an order awarding attorney’s fees, including fees to

Mr. Kattan for his work. On October 31, the District filed

a timely motion, pursuant to Fed. R. Civ. P. 59(e), to alter

or amend the judgment. In this motion, the District cited

this Court’s April, 1991, decision in Kay v. Ehrler that fees

' 84 Stat. 175, as amended, 20 U.S.C. § 1400 et seq. (1988 ed. and Supp.

IV). The IDEA was formerly named the Education of the Handicapped

Act (““EHA”) and the Handicapped Children’s Protection Act (““HCPA"’).

* It provides: ‘In any action or proceeding brought under this subsec-

tion, the court, in its discretion, may award reasonable attorneys’ fees

as part of the costs tothe parents . . . of a handicapped child or youth

who is the prevailing party.”

4

may not be awarded under 42 U.S.C. 9 1988 to attorneys who

represent themselves. The District urged that Kay v. Ehrler

barred any fee award under the IDEA to Mr. Kattan for his

own legal work.

Il. THE TRIAL COURT’S DECISION.

Judge Green initially purported to deny the District's mo-

tion on the ground that it had waived the issue three years

earlier in 1988 when it responded to the fee application. Fur-

thermore, Judge Green, without even referring to the D.C.

Circuit’s decision in Cuneo, also rejected the District’s argu-

ment that its ‘‘Rule 59 motion is based on a change of law

not reasonably anticipated . . .. App. 34a n.1. In Judge

Green's view, because a federal district court judge in the

District of Cclumbia had ruled in 1984 that pro se attorneys

may not recover fees under 42 U.S.C. § 1988, the District

should have anticipated in 1988 this Court’s 1991 decision

in Kay v. Ehrler and thus should have raised the issue in

opposing the fee application at the outset. App. 34a n.1,

citing Lawrence v. Staats, 586 F. Supp. 1375, 1378-80 (D.D.C.

1984).°

Judge Green nevertheless reached the merits, and she ruled

that the District's interpretation of Kay v. Ehrler was wrong:

. . . [P]laintiffs’ motion for fees is based on the

EHA, a different statutory scheme from that which

formed the basis of the Kay v. Ehrler decision. And

defendants have not cited any legislative history or

caselaw that supports defendants’ argument to

extend the ambit of Kay v. Ehrler to EHA cases.

Consequently, defendants’ motion to alter or amend

the judgment must be denied.

App. 34a.

* This decision was appealed in 1984 by the unsuccessful pro se attorney,

and, after pending in the court of appeals for nearly seven years, it was

affirmed following Kay v. Ehrler. Lawrence v. Bowsher, 931 F.2d 1579

(D.C. Cir. 1991).

i)

III. PROCEEDINGS IN THE DISTRICT OF COLUMBIA

CIRCUIT.

A. Its June 15 Decision.

On June 15, 1993, a divided panel of the D.C. Circuit

affirmed. The majority (Mikva, C.J., & Sentelle, J.) never

reached the merits. Instead, it ruled sua sponte that the

District’s Rule 59(e} motion had been filed out of time and,

as a consequence, held that Judge Green ‘‘should not have

reached the merits of the . . . motion.’’ App. 17a. Accord-

ing to the majority, Rule 59(e) motions must be filed within

ten calendar days after entry of the judgment, and the

District’s motion was tardy because it was filed on October

31, 14 days after entry of the judgment on October 17. As

a result, the majority treated the fee issue as if it had been

raised for the first time on appeal and analyzed the propriety

of deciding it under 28 U.S.C. § 2106.‘ In its view, the cases

allowing review under section 2106 were distinguishable

because, in those cases, ‘‘the intervening decision enunciated

a new legal principle that was previously unavailable . . .

for all practical purposes.’’ App. 18a. According to the

majority, the District should have urged in 1988 that Cuneo,

a FOIA case, was distinguishable. Thus, overlooking Cuneo’s

reliance on a civil rights case permitting fee awards to pro

se attorneys and this Court’s command that similar language

in federal fee-shifting statutes should be consistently inter-

preted, the majority stated that, because Cuneo relied on the

policies underlying FOIA, the District had ‘‘no basis to

believe that Cuneo settled the HCPA question.’’ App. 19a

(emphasis added). In its view, ‘‘[s}uch an argument would

have been far from frivolous’’ because, in distinguishing

*28 U.S.C. § 2106 provides: ‘The Supreme Court or any other court

of appellate jurisdiction may . . . reverse any judgment . . . of acourt

lawfully brought before it for review . . . as may be just under the cir-

cumstances." (Emphasis added). In its briefs before the panel, the District

had cited cases interpreting this provision in support of its argument that

it could bring before the trial court in a Rule 59(e) motion the change of

law wrought by this Court in Kay v. Ehrler. The District had urged that

any legal issue that may be raised for the first time on appeal necessarily

may be raised for the first time before appeal in a Rule 59(e) motion.

6

Cuneo, ‘‘the District could [have] look{ed] to [the district

court's 1984 decision in] Lawrence,"’ which found policy dif-

ferences between FOIA and section 1988.° Jd. The majority

held: ‘‘Because the District of Columbia did not contest Mr.

Kattan’s entitlement to attorney's fees in its original opposi-

tion to the Kattans’ application /or fees, we find that the

District waived the issue and cannvi raise it for the first time

on appeal.’ App. 23a (emphasis added).

Judge Douglas H. Ginsburg dissented. In his view, Judge

Green's distinction between section 1988 and the IDEA fee

provision “‘is the proverbial distinction without a difference.”’

App. 24a. Thus, given this Court’s repeated admonitions that

similar language in fee-shifting provisions should be con-

sistently construed and this Court's decision in Kay v. Ehrler,

Judge Green’s ‘grant of a fee for the work performed by Mr.

Kattan was clearly an error.”’ Jd.

Judge Ginsburg also rejected the majority’s waiver

analysis:

The District of Columbia had no reason in 1988 to

anticipate that the Supreme Court would in 1991

change the law of this circuit, which then authorized

the district court to award an attorney's fee to a pro

se litigant. On the contrary, the district court was

clearly bound both by Cuneo . . . and by the

Supreme Court's longstanding command that simi-

larly-worded fee-shifting provisions are to be treated

alike. The distinction the district court drew in

Lawrence . ..ran contrary to the Supreme

Court’s approach. See Lawrence v. Bowsher, 931

F.2d 1579, 1580 (D.C. Cir. 1991) (affirming “‘{s]olely’’

on the basis of intervening Supreme Court decision

in Kay v. Ehrler, which overruled Cuneo). But see

Ct. Op. at 7 [App. 19a] (lauding the district court

for ‘‘a well-reasoned opinion” in Lawrence . . .).

* Finding the district court's decision in Lawrence in 1988 was not easy,

however, because that decision never cited Cuneo. Thus, had a litigant

‘“shepardized’’ Cuneo, it would not have found the district court’s deci-

sion in Lawrence.

NT

7

It is simply unreasonable to penalize the District

. . . for failing to have argued a distinction (bet-

ween the fee provision of the FOIA and that of the

HCPA) that the district court would have been

required to reject under Supreme Court and circuit

precedent. By holding that the District waived the

issue of Mr. Kattan’s eligibility for fees, the court

is in effect punishing a litigant for not making what

would have been at the time an almost frivolous

argument.

App. 25a

B. Rehearing.

On July 7, the District of Columbia filed a timely petition

for rehearing and rehearing en banc. The District sought

review of the panel majority’s rulings (1) that its Rule 59(e)

motion had been filed out of time and thus that Judge Green

had erred in reaching the merits of the motion and (2) that

the District could not invoke this Court’s 1991 decision in

Kay v. Ehrler because it failed in 1988 to attempt to

distinguish the D.C. Circuit’s contrary 1977 decision in

Cuneo.

On the first point, the District urged that the majority had

overlooked a critical provision of Fed. R. Civ. P. 6(a), which

provides that intermediate Saturdays, Sundays, and legal

holidays are to be excluded in computing time periods of

fewer than 11 days. When Rule 6(a) is considered, the Dis-

trict’s Rule 59(e) motion was timely, because excluding week-

ends, it was filed and served on the tenth day after entry

of the judgment. As a consequence, the majority had erred

in ruling sua sponte that it was not timely and thus that

Judge Green should not have reached the merits.

The District also sought rehearing of the majority's waiver

ruling. It urged, inter alia, that, in 1988, the D.C. Circuit's

1977 ruling in Cuneo was controlling and that it could not

reasonably have anticipated that this Court would issue a

contrary decision in 1991. The District also urged that the

majority’s decision to raise sua sponte the timeliness of its

8

Rule 59(e) motion seriously conflicted with the majority’s

ruling that the fee issue was not cognizable on appeal.

Both the petition for rehearing and the suggestion for

rehearing en banc were denied on October 6, 1993. Judge

Ginsburg would have granted the petition and Judge

Stephen F. Williams, the suggestion. App. 37a & 38a.

C. Events Following Denial Of Rehearing.

Following denial of rehearing, the District decided to seek

review in this Court. On November 18, however, it discovered

that there was a significant disparity between the decision

the D.C. Circuit had transmitted to it and for which it had

sought rehearing and the decision reported at 995 F.2d 274.

The reported decision, moreover, contained the notation “As

amended June 30, 1993.’’ App. la. It differed from the deci-

sion issued on June 15 in two principal respects: (1) it does

not contain the holding that the District’s Rule 59(e) motion

was untimely (compare App. 4a with App. 17a) and thus that

Judge Green had wrongfully reached the merits; and (2) it

contains a new discussion of Rule 59(e) (compare App. 4a-5a

with App. 17a), as follows:

Ordinarily Rule 59 motions for either a new

trial or a rehearing are not granted by the

District Court where they are used by a losing

party to request the trial judge to reopen pro-

ceedings in order to consider a new defensive

theory which could have been raised during the

original proceedings.

Grumman Aircraft Engineering Corp. v. Renegotia-

tion Board, 482 F.2d 710, 711 (D.C. Cir. 1973), over-

ruled on different grounds, 421 U.S. 168, 95 S. Ct.

1491, 44 L.Ed.2d 57 (1975). See also Fed. Deposit

Ins. Corp. v. Meyer, 781 F.2d 1260, 1268 (7th Cir.

1986) (Rule 59(e) motion ‘‘cannot be used to raise

arguments which could, and should, have been made

before the judgment issued.’’).

App. 5a.

The District had never received any amended decision and

it had never been notified that any amendment had been

9

made. Nor had the Kattans. Furthermore, the Clerk’s Office

for the D.C. Circuit could not locate any amended decision

and the docket maintained by that Office pursuant to

F.R.A.P. 36 & 45(b), (c) & (d) did not contain any indication

that the June 15 decision had been amended. See App. 42a.

On November 22, the District, citing these surprising

developments, filed a motion to clarify and vacate in the D.C.

Circuit and an application for an extension of time in this

Court for filing their petition for a writ of certiorari. The mo-

tion to clarify and vacate argued that, if the decision of the

panel had been amended, the D.C. Circuit should vacate its

order entering judgment in the appeal for the reasons stated

in the June 15 decision and enter a new judgment so that

the District could seek full and fair rehearing in the Circuit.°

On November 23, the Chief Justice granted the District's

application for an extension of time. App. 39a. Over two

weeks later, on December 9, the original three-judge panel

issued an order ‘‘on the court’s own motion, that the District

of Columbia submit a supplemental memorandum of no more

than five pages setting forth any argument that it was unable

to make in its petition for rehearing/suggestion for rehear-

ing en banc because it did not receive the court’s June 30,

1993, order.’’ App. 40a. The District was given a week, until

December 16, to comply. App. 40a.

The District filed a supplemental memorandum on

December 14. One week later, on December 21, the panel

issued an order denying the motion. App. 41a.

The District then proceeded with this petition in the belief

that the panel, in its orders of December 9 and 21, had given

sufficient indication that the majority's June 15 decision had

* Assuming that the June 15 decision had been amended and that the

full court had been provided with the amended decision, the District's

rehearing petition likely would have been viewed with disfavor because

it addressed an issue that was not in the case and failed to address an

issue that was in the case.

10

been amended even though no amended decision had been

docketed in the D.C. Circuit or served on the parties. App.

42a-43a.

REASONS FOR GRANTING THE WRIT

A divided panel of the D.C. Circuit has wrongly imposed

on litigants in federal district courts a requirement that they

dispute adverse controlling Circuit precedent in order to in-

voke a supervening change of law by this Court in their favor.

As a consequence, the court wrongly refused to decide

whether Kay v. Ehrler, which bars fees to pro se attorneys

under 42 U.S.C. § 1988, also bars fees to pro se attorneys

under the indistinguishable fee provision of IDEA.

The decision of the D.C. Circuit is in conflict with the deci-

sions of this Court. This Court’s decisions impose obligations

on federal courts to ascertain what the law is and to apply

it correctly. These decisions also allow litigants more leeway

to invoke a supervening change of law in their favor and do

not require them to challenge a binding adverse precedent

as a condition of doing so. The decision of the D.C. Circuit

is also in conflict with the decisions of other Circuits.

The D.C. Circuit's rule is bad policy. It forces trial counsel

to make arguments that reasonably appear to be foreclosed

by Circuit precedent and will thus require district court

judges to squander their scarce resources deciding such

arguments. Furthermore, the D.C. Circuit's rule will result

in the proliferation of motions for sanctions and in an increase

in the number of orders imposing sanctions. Because the D.C.

Circuit’s rule requires counsel to attempt to distinguish con-

trolling adverse Circuit precedent in order to invoke a subse-

quent change of law by this Court in favor of their client,

they necessarily must make arguments that will precipitate

motions for sanctions and that will be viewed by busy federal

district court judges as frivolous.

This case is similar to, but far more important than, Elder

v. Holloway, No. 92-8579 (argued January 10, 1994). In both

cases, the overriding issue is whether a federal appellate court

is obligated to decide cases properly before it in accordance

11

with the law or whether it may allow a judgment of a federal

district court to stand which it knows to be wrong. In Elder,

the Ninth Circuit affirmed a judgment of a federal district

court even though the judgment conflicted with one of its

own decisions governing the constitutionality of arrests made

without a warrant. In this case, the D.C. Circuit affirmed

a judgment awarding attorney’s fees even though the judg-

ment conflicted with a decision of this Court. The decisions

of both the Ninth and the D.C. Circuits are a serious depar-

ture from the fundamental principles of judicial decision-

making announced by this Court.

This case is far more important than Elder for several

reasons. First, the decision here necessarily affects a far

greater number of cases than the Ninth Circuit’s decision

in Elder. In Elder, the problem arose because trial counsel

failed to cite (and the district court judge apparently did not

find) a controlling Circuit precedent in his client's favor. Here,

the problem arose because trial counsel for the District of

Columbia failed to dispute the applicability of an adverse

Circuit precedent that counsel for both parties (and apparent-

ly the district court) reasonably believed to be controlling.

Thus, while Elder involves a fairly unusual problem — trial

counsel's failure to cite an extant controlling Circuit prece-

dent in his client’s favor — this case involves a problem that

arises whenever a federal appellate court adopts, as the law

of the Circuit, a legal rule with which this Court subsequently

disagrees. This problem necessarily arises whenever this

Court, as it frequently does, resolves a conflict among the

Circuits.

Second, the decision here is far more unfair to litigants.

It is one thing to punish a litigant because his counsel at

the district court level failed to cite a controlling Circuit

precedent in his favor. It is quite another thing to punish

a litigant because his counsel at the district court level failed

to attempt to distinguish controlling, adverse Circuit prece-

dent and sought to litigate an issue only after this Court

issued a contrary, favorable ruling. In the latter set of cir-

cumstances, a litigant is punished not for any carelessness

on the part of his counsel but because a federal appeals court

12

~

misapprehended the very law it is charged with construing

correctly.

The decision here is more unfair than Elder for yet another

reason. There are no disincentives for trial counsel to cite

a controlling Circuit precedent in their client's favor. By con-

trast, trial counsel who attempt to distinguish adverse con-

trolling Circuit precedent run the risk of having a Rule 11

motion (Fed. R. Civ. P. 11) filed against them and the risk

of having sanctions imposed by busy trial court judges.

Finally, the decision here has far graver consequences than

Elder for the efficient and fair operation of the federal courts.

The Ninth Circuit's Elder rule is likely to provide even one

more, and ordinarily superfluous, incentive for trial counsel

to identify controlling Circuit precedent in their client's favor.

This additional incentive can only ease the burdens of federal

district court judges. By contrast, the D.C. Circuit's rule will

require tenuous, even untenable, motions to be filed and

decided, and will precipitate collateral motions for sanctions

and decisions on those motions.

ARGUMENT

I. THE D.C. CIRCUIT’S DECISION VIOLATES THE

PRINCIPLE THAT FEDERAL COURTS HAVE AN

OBLIGATION TO DECIDE CASES LAWFULLY

BEFORE THEM IN ACCORDANCE WITH THE LAW.

A. This Court Repeatedly Has Ruled That Federal Courts

Must Decide Cases In Accordance With The Law.

This Court has long held that federal courts have the respon-

sibility to ascertain what the law is and to apply it correctly

in resolving disputes properly before them. As this Court has

stated, because ‘‘judgments are precedents,” the obligation

to decide cases in accordance with the law “‘cannot be left

merely to the stipulation of the parties,”’ but rests squarely

on the courts. Young v. United States, 315 U.S. 257, 259

(1942). See also, e.g., Lear, Inc. v. Adkins, 395 U.S. 653, 662

n.10 (1969); Orloff v. Willoughby, 345 U.S. 83, 87-88 (1953);

Town of South Ottawa v. Perkins, 94 U.S. 260, 267 (1877).

13

Thus, for example, in Arcadia, Ohio v. Ohio Power Co., 498

U.S. 73 (1990), this Court sua sponte construed a federal

statute to dispose of the case on a ground neither decided

by the court below nor argued in this Court. This Court con-

strued the statute sua sponte because, ‘‘[wjhen an issue or

claim is properly before the court, the court is not limited

to the particular legal theories advanced by the parties, but

rather retains the independent power to identify and apply

the proper construction of governing law." Kamen v. Kemper

Financial Services, Inc., 111 S. Ct. 1711, 1718 (1991). Similar-

ly, in United States Nat'l Bank of Oregon v. Independent

Ins. Agents, 113 S. Ct. 2173 (1993), this Court ruled that the

D.C. Circuit acted properly when it decided whether the

federal statute governing the case was valid although the

validity of the statute had not been raised in the district court

or even in the briefs and oral argument on appeal.

This Court has also ruled that Fed. R. Civ. P. 59(e) is a pro-

per vehicle for raising similar legal issues for the first time

at the trial level. Thus, in City of Newport v. Fact Concerts,

Inc., 453 U.S. 247 (1981), this Court ruled that a federal

district court acted properly in entertaining a post-trial mo-

tion challenging jury instructions even though the movant

had earlier failed to object to these instructions in violation

of the “‘uncompromising” directive of Fed. R. Civ. P. 51. Id.

at 255. And in Leary v. United States, 395 U.S. 6 (1969), this

Court ruled that a criminal defendant could raise for the first

time in a post-trial motion the issue whether the privilege

against self-incrimination was a defense to his prosecution.

Because at the time of trial, the law of the governing Cir-

cuit prohibited invocation of the privilege in the cir-

cumstances of defendant's case and this Court had not yet

issued its contrary ruling, ‘‘his failure to raise the issue at

that time did not amount to a waiver . . ..”’ Jd. at 27-28.

The D.C. Circuit’s rulings here — that the District waiv-

ed the argument that the IDEA does not permit a pro se

attorney to recover fees; that the District could not invoke

this Court’s supervening favorable decision in a Rule 59(e)

motion; and that Judge Green somehow acted improperly

a

14

in deciding the District's motion on the merits — conflict

with the decisions of this Court. Thus, this Court's decision

in Arcadia, Ohio to construe sua sponte the federal statute

governing the case surely permitted Judge Green to reach

the merits of the District's argument that the federal fee-

shifting statute at issue here does not permit an award of

fees to pro se attorneys. Similarly, if, as this Court ruled in

Fact Concerts, a federal district court acts properly in

deciding the merits of a post-trial motion challenging jury

instructions, surely Judge Green acted properly in deciding

the merits of the District's post-judgment motion address-

ed to the issue whether Congress has authorized fees to pro

se attorneys. Finally, if, as this Court ruled in Leary, a defen-

dant may raise for the first time in a post-trial motion a deci-

sion of this Court overturning adverse Circuit precedent, then

surely the District was permitted to invoke Kay v. Ehrler

in a Rule 59(e) motion.

Had the panel majority reached the merits, it would have

been compelled to rule that Kay v. Ehrler bars a fee award

to IDEA pro se litigants. First, in Kay v. Ehrler, this Court

ruled that ‘‘an attorney who represents himself in a suc-

cessful civil rights action may”’ not ‘‘be awarded a reasonable

attorney's fee . . ., under 42 U.S.C. § 1988." 111 S. Ct. at

1435-36. According to this Court, “the word ‘attorney’

assumes an agency relationship, and it seems likely that Con-

gress contemplated an attorney-client relationship as the

predicate for an award under § 1988."’ Jd. at 1437 (footnotes

omitted). Second, this Court repeatedly has ruled that similar

language in federal fee-shifting provisions should be inter-

preted in the same way. See, e.g., City of Burlington v. Dague,

112 S. Ct. 2638, 2641 (1992); Independent Federation of

Flight Attendents v. Zipes, 491 U.S. 754, 758 n.2 (1989) (§

1988 and fee provision of Title VII should be ‘interpreted

alike’’); Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 546, 560 (1986) (fee provision of Clean

Air Act should be interpreted like § 1988).

As even the panel majority acknowledged, the language

of IDEA's fee-shifting provision is identical in all relevant

15

respects to section 1988. See App. 3a. Accordingly, Kay v.

vhrler bars a fee award to IDEA pro se litigants.

B. The Legal Issue Here Properly Could Have Been

Raised For The First Time On Appeal.

The panel majority correctly acknowledged that appellate

courts have the power “‘ ‘not only to correct error in the judg-

ment under review but to make such disposition of

la] . . . case as justice requires’ "’ and that, ‘‘ ‘in determin-

ing what justice does require, the Court is bound to consider

any change, either in fact or in law, which has supervened

since the judgment was entered.’ ”’ App. 7a, quoting Patter-

son v. Alabama, 294 U.S. 600, 607 (1935). See also supra at

5 n.4. However, according to the majority, before an issue

may be raised for the first time on appeal based on a change

of law, there must be “exceptional circumstances”’ and/or

“the intervening decision [must] enunciate{] a new legal prin-

ciple that was previously unavailable . . . for all practical

purposes."’ App. 8a, 7a.

This is not a correct statement of the law, as even the deci-

sions of this Court cited by the panel majority make clear.

Thus, in Hormel v. Helvering, 312 U.S. 552 (1941), this Court,

citing the need to protect the public fisc, permitted the

government to raise a new legal issue on appeal even though

it had not been foreclosed from making the argument earlier.

This Court stated that an appellate court should review an

issue raised for the first time on appeal when, for example,

“there have been judicial interpretations of existing law after

decision below and pending appeal — interpretations which

if applied might have materially altered the result.”’ Jd. at

558-59. It explained:

Rules of practice anc procedure are devised to pro-

mote the ends of justice, not to defeat them. A rigid

and undeviating judicially declared practice under

which courts of review would invariably and under

all circumstances decline to consider all questions

which had not previously been specifically urged

would be out of harmony with this policy. Orderly

rules of procedure do not require Searilios of the

rules of fundermental justice.

16

Id. at 557. As this Court also explained, the general rule that

a federal appeals court does not consider issues not raised

below is ‘‘essential in order that parties may have the op-

portunity to offer all the evidence they believe relevant to

the issues . . . [and] in order that litigants may not be sur-

prised on appeal by final decision there of issues upon which

they have had no opportunity to introduce evidence.”’ Jd. at

556. Accord Singleton v. Wulff, 428 U.S. 106, 120 (1976).’

This Court has not, therefore, announced any ‘‘exceptional

circumstances” test for determining whether a party may

raise an issue for the first time on appeal. Nor has this Court

ruled that, before an issue may be raised for the first time

on appeal based on a change of law, the new decision must

announce a legal principle that was previously unavailable

for all practical purposes. Instead, this Court has weighed

heavily the fundamental principle that disputes should be

resolved in accordance with the law; has made clear that rules

of procedure are not ends in themselves; and has inquired

whether permitting a litigant to raise an issue for the first

time on appeal would unfairly prejudice the other parties to

the dispute by denying them the opportunity to introduce

evidence relevant to the issue.

In this case, the panel majority never made any inquiry

into whether it would be fair to permit the District to invoke

this Court’s decision in Kay v. Ehrler. Instead, it proceeded

to apply woodenly a general rule that issues may not be rais-

ed for the first time on appeal, even though the District, in

fact, raised the issue below, even though the trial court decid-

ed the issue and plainly misconstrued the law, and even

though the reason for that rule does not apply here.

’ The panel majority cited two other decisions of this Court, Leary v.

United States, supra, and Patterson v. Alabama, supra. As we have

already explained, however, Leary would permit review here and thus pro-

vides no support for the D.C. Circuit's ruling. See supra at 13 & 14. Nor

does Patterson. In Patterson, this Court remanded a criminal case to a

state supreme court to permit it to re-examine its ruling that the defen-

dant’s procedural error under state law precluded him from raising a

federal constitutional claim that this Court had resolved favorably to

another person convicted of the same crime in a separate case.

17

Il. THE D.C. CIRCUIT’S WAIVER RULING IS IN

CONFLICT WITH THE RULINGS OF OTHER

CIRCUITS.

The D.C. Circuit's waiver ruling is in conflict with the deci-

sions of other Circuits. See, e.g., Morris v. American National

Can Corp., 988 F.2d 50 (8th Cir. 1993); Weaver v. Bowers,

657 F.2d 1356 (3rd Cir. 1981) (en banc), cert. denied, 455 U.S.

942 (1982).

In Morris, the Eighth Circuit ruled that a defendant in a

civil rights case could invoke City of Burlington v. Dague,

supra, in which this Court ruled that a lodestar fee award

under the typical federal fee-shifting statute can never be

enhanced to compensate for risk, even though the defendant

had not raised that issue either in the district court or in the

first appeal in the case. Indeed, in the first appeal, an ap-

peal by the plaintiff who had been denied risk enhancement,

the defendant had urged that Justice O’Connor’s opinion in

Delaware Valley II (Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air, 483 U.S. 711 (1987)), was con-

trolling, and the Eighth Circuit, which already had adopted

her opinion as the law of the Circuit, had reversed and

remanded the case. The district court then entered a risk

enhancement of 50 percent, and 19 days later, this Court

issued its decision in Dague. In ruling that the defendant

could invoke Dague, the Eighth Circuit declined to find that

the defendant had waived this argument by not raising it

either at the trial level in the first instance or in the first

appeal.

Similarly, in Weaver, the Third Circuit permitted defen-

dants to litigate, in a Rule 59(e) motion, the issue whether

this Court’s decision in Elrod v. Burns, 427 U.S. 347 (1976), ap-

plied retroactively. The Third Circuit did so, moreover, even

though a trial could have been avoided had defendants suc-

cessfully raised the issue earlier, and even though defendants’

reasons for not raising the issue earlier were ‘“unpersuasive’’

in light of the fact that the issue was open in the Third Cir-

cuit and other federal courts of appeals had decided it

favorably to defendants. Jd. at 1361. The Third Circuit

18

reached the merits in order ‘‘to vindicate one of the most

fundamental jurisprudential concerns, evenhandedness in the

administration of justice.’’ Jd. at 1362. In its view, this fun-

damental concern required it to apply the same rule of law

to similarly situated litigants.

Both Morris and Weaver squarely conflict with the deci-

sion of the D.C. Circuit here. Neither the Eighth nor the Third

Circuit requires that there be ‘‘exceptional circumstances’’

before a litigant may invoke a change of law by this Court

in its favor. Neither Circuit, moreover, requires a litigant

seeking to invoke such a change of law to demonstrate that

the defense it seeks to raise was unavailable for all practical

purposes when it first could have been asserted.

The two cases cited in the panel majority’s amended deci-

sion in support of its Rule 59(e) ruling are not to the con-

trary. Thus, in Grumman Aircraft Eng’g Corp. uv.

Renegotiation Board, 482 F.2d 710 (D.C. Cir. 1973), rev'd

on other grounds, 421 U.S. 168 (1975), the D.C. Circuit

described Rule 59(e) as a “rule requiring clearly available

defenses’’ to be raised before rehearing. Jd. at 721 (emphasis

added). And, in Federal Deposit Ins. Corp. v. Meyer, 781 F.2d

1260 (7th Cir. 1986), the Seventh Circuit stated that a pro-

per Rule 59(e) motion ‘‘must clearly establish either a

manifest error of law or fact or must present newly

discovered evidence’ and that, conversely, Rule 59(e) ‘‘can-

not be used to raise arguments which could, and should, have

been made before the judgment issued.” Jd. at 1268.

Under those tests, the District would have been permit-

ted to invoke Kay v. Ehrler in its Rule 59(e) motion. The panel

majority here never ruled, and could not rule, that the

District had a ‘‘clearly available defense’’ at the time of the

fee application. Furthermore, Judge Green’s fee decision, as

Judge Ginsburg observed, constitutes a manifest error of

law. See also infra at 19-21.*

* That the test adopted by the panel majority here is substantially dif-

ferent from the tests adopted in Grumman and Meyer is also illustrated

by examining the facts of those cases. First, in Grumman, the moving

{Footnote continued on the next page}

19

In short, the Circuits are in conflict over an important and

recurring issue that this Court should resolve — whether a

litigant’s reasonable reliance on the law of the Circuit in

which his dispute is resolved precludes that litigant from in-

voking a supervening change of law by this Court in his

favor.

111. A LITIGANT’S FAILURE TO DISPUTE ADVERSE

APPLICABLE CIRCUIT LAW SHOULD NOT

PRECLUDE IT FROM INVOKING A SUPERVEN.-

ING DECISION BY THIS COURT IN ITS FAVOR.

A. Prior to Kay v. Ehrler, The Law In The District Of

Columbia Was That Pro Se Attorneys May Recover

Fees Under Federal Fee-Shifting Statutes.

The panel majority erred in ruling that the District com-

mitted a fatal misstep in 1988 by failing to attempt to

distinguish the D.C. Circuit’s 1977 decision in Cuneo. As

Judge Ginsburg correctly recognized, the District had every

reason to believe that Cuneo foreclosed a challenge to the

pro se attorney's fee award here. In Cuneo, the D.C. Circuit

treated the fee-shifting provision of FOIA like any other

federal fee-shifting provision. Not only did it refer to ‘‘cur-

rent federal attorney fee statutes,” but it cited in support

of its ruling a civil rights decision by the Fifth Circuit. 553

F.2d at 1366. Furthermore, the policies underlying FOIA’s

fee provision, which were cited in Cuneo, do not differ in any

material respect from the policies underlying the fee provi-

sions of federal civil rights statutes, including the IDEA.

Thus, in 1988, given Cuneo and given this Court's longstand-

[Footnote continued from the previous page]

party sought to invoke a legal defense so well-established that the court

viewed the government's conduct as a deliberate by-pass. 482 F.2d at 722

(government was playing ‘‘cat and mouse”’). Second, in neither Grumman

nor Meyer could any claim have been made that the moving party

reasonably relied on controlling Circuit precedent in not litigating an issue

earlier. Third, in contrast to Grumman and Meyer, the trial court here

decided the merits of the Rule 59(e) motion, and because there can be no

claim that she abused her discretion in doing so, her merits decision was

properly before the D.C. Circuit. Finally, both Grumman and Meyer in-

volved factual matters.

20

ing command that similar language in federal fee-shifting

statutes should ordinarily be consistently construed, the law

of the D.C. Circuit was that an attorney who successfully

represents himself in a case governed by a federal fee-shifting

statute is entitled to fees.

The reasonableness of this interpretation is confirmed by

post-1988 events in the D.C. Circuit. Thus, in Jones v. Lujan,

883 F.2d 1031 (D.C. Cir. 1989), the D.C. Circuit extended

Cuneo to fees sought pursuant to the Equal Access to Justice

Act (“EAJA’”). In so ruling, the panel majority rejected the

very arguments that this Court later found persuasive in Kay

v. Phrler and even characterized these arguments as ‘“‘rather

strange.”’ Jd. at 1034. Judge Silberman, in turn, who con-

curred in the judgment although he believed it to be wrong,

explained that he was bound by Cuneo, even though Cuneo

was a FOIA case, because he could find ‘‘no viable distinc-

tion . . . between the term ‘reasonable attorney fees’ in

FOIA .. . and ‘reasonable attorney fees’ inKAJA .. ..”

Id. at 1036.

There was, therefore, no reasonable basis for believing,

prior to Kay v. Fhrler, that the D.C. Circuit would have held

that pro se attorneys may not recover fees under the IDEA,

§ 1988, or any other federal fee-shifting statute. Indeed, as

Judge Ginsburg observed, the D.C. Circuit's 1991 affirmance

of the district court’s 1984 decision in Lawrence was based

solely on Kay v. Ehrler and did not cite the varying-purposes

distinction made by the district court in Lawrence and in-

voked by the panel majority here.

Finally, the reasonableness of the District’s position in

1988 is underscored by a decision of the D.C. Circuit issued

less than three weeks before the original decision in this case.

In Benavides v. Bureau of Prisons, 993 F.2d 257 (D.C. Cir.),

cert. denied, 114 S. Ct. 559 (1993), a three-judge panel (Mikva,

C.J.; Edwards & Buckley, JJ.) held that Kay v. Ehrler bars

an award of attorney’s fees to a non-attorney pro se litigant

who prevails in a FOIA case. In Benavides, the panel

unanimously rejected arguments made by ‘‘extremely com-

petent counsel,’’ appointed by the court itself for the appeal,

|

2]

that Kay v. Khrler was distinguishable because the purposes

of FOIA’s fee provision differ from those of section 1988.

Id. at 258 n.*. Not only did the panel reject these arguments,

it ruled that they were “untenable” and ‘simply do not hold.”’

Id. at 259, 260. In Benavides, therefore, the D.C. Circuit,

when presented with the only distinction the District could

have made between Cuneo and its own case, ruled that the

distinction was indefensible.

In short, in this case, the D.C. Circuit has upheld an award

of attorney's fees that Congress has not authorized and has

thus violated its fundamental obligation to apply the law

faithfully. The reason for its ruling is, moreover. seriously

flawed. According to the panel majority, a litigant waives

the right to invoke a change of law by this Court in its favor

unless it attempts to distinguish a controlling adverse Cir-

cuit precedent so long as two judges hearing the appeal can

articulate hypothetically a ‘‘reasonable”’ distinction between

the two cases. A distinction can be deemed fatally ‘‘reason-

able,"’ moreover, even though, just three weeks earlier, the

distinction has been held to be ‘“‘untenable”’ by a unanimous

three-judge panel of the same court (which included one judge

who also believes it to be reasonable!).

Such a harsh standard cannot be the law. A litigant should

not be required to attempt to distinguish the in-

distinguishable in order to invoke a change of law by this

Court in its favor. Furthermore, as a general matter, a litigant

should not be expected to anticipate that this Court will

disagree with the law of the Circuit governing its case. Here,

moreover, there was no reasonable ground to do so in the

D.C. Circuit until Kay v. Ehrler was decided.

B. Fairness To Litigants And To Their Counsel, As Well

As Judicial Efficiency, Require Review Here.

The D.C. Circuit's rule will result in great unfairness to

litigants and to their trial counsel and in increased burdens

on federal district courts. This is because in the federal

judicial system, the only law that may exist on an issue is

the law created by the Circuits. The law of a Circuit, even

22

if it is in conflict with the law of another Circuit, is binding

on the litigants and the federal district court judges within

the Circuit.

The D.C. Circuit's too-stringent waiver and Rule 59(e) stan-

dards will unfairly and unwisely force trial counsel to choose

between the rock of waiver and the hard place of sanctions.

Counsel will have to defend against a waiver argument if they

fail to attempt to distinguish a Circuit precedent they

reasonably believe to be controlling or they will have to de-

fend against a motion for sanctions if they attempt to do

so. And a busy district court judge will not be inclined, as

was the panel majority here, to conclude that an untenable

argument is nevertheless reasonable. Attorneys must be

given some leeway to choose a course of action on behalf of

their clients without fear of waiver or sanctions.

The dilemma created by the D.C. Circuit's rule cannot be

avoided by the fact that a litigant can undertake the costly

and risky task of seeking to overturn Circuit precedent that

adversely affects its case in some way. First, not every

litigant has the resources necessary to pursue such litiga-

tion and not every case involves the financial incentives that

would make this course of action economically feasible. Se-

cond, except in the rarest of cases, review by this Court is

far from certain, even when the decision below is wrong and

even when there is a conflict among the Circuits. And en banc

review by the federal courts of appeals is also rare. As a con-

sequence, litigants should not forfeit their fundamental right

to have their case decided according to the law simply

because their trial counsel accept what reasonably appears

to be adverse controlling Circuit precedent. On the contrary,

litigants should be permitted to request a federal district

court to revisit an issue after this Court has established a

contrary precedent in their favor.°

* See Morris v. American National Can Corp., supra (although the defen-

dant had foregone the opportunity to effect a change in the law, by seek-

ing en banc review and/or review by this Court of the Circuit’s decision

that risk enhancement is permitted under federal fee-shifting statutes,

the defendant was nevertheless entitled in the second appeal in the case

to invoke the rule set forth in Dague).

23

The importance and unfairness of the D.C. Circuit's rule

can be illustrated by two examples. First, at the time that

Kay v. Ehrler was decided in April, 1991, there had been a

conflict among the Circuits since at least 1983 over the issue

whether FOIA (and presumably other federal fee-shifting

statutes) permits an award of fees to attorneys who proceed

pro se. Compare Cuneo, supra, with Falcone v. IRS, 714 F.2d

646 (6th Cir. 1983), cert. denied, 466 U.S. 908 (1984) (fees

not permitted). This Court declined to resolve the conflict

on at least two occasions, in 1984, when it declined to review

Falcone, and in 1986, when it declined to review, over the

dissent of two Justices, Poythress v. Kessler, 475 U.S. 1129

(1986), involving 42 U.S.C. § 1988. As a consequence,

throughout much of the 1980's, the law governing the issue

of fees for pro se attorneys was the conflicting law established

by the various Circuits and the prospect of a resolution of

this conflict by this Court seemed dim. In these cir-

cumstances, litigants who have the misfortune to be parties

to cases governed by adverse Circuit precedent that is over-

turned by this Court during the litigation should not have

their rights governed by a wrong legal rule merely because

they reasonably believed that they were bound by that

precedent.

A second example is derived from the events following this

Court’s 1987 decision in Delaware Valley II. In Delaware

Valley II, this Court was unable to resolve definitively

whether federal fee-shifting statutes permit a lodestar fee

award to be enhanced in cases taken on a contingent-fee basis.

Following Delaware Valley II, every federal court of appeals,

up until December 13, 1991, had ruled that enhancement of

the lodestar to reflect risk was permissible under the typical

federal fee-shifting statute and, for the most part, had done

so on the ground that Justice O’Connor’s concurring opinion

in Delaware Valley II was controlling.’° In June, 1992.

‘° On December 13, 1991, the D.C. Circuit, sitting en banc, reversed its

own Circuit precedent and ruled that risk enhancement is never permit-

ted under the typical federal fee-shifting statute. King v. Palmer, 950 F .2d

771 (D.C. Cir. 1991), cert. denied sub nom., King v. Ridley, 112 U.S. 3054

(1992). The decisions of the other Circuits are collected in the Petition

for a Writ of Certiorari filed in King.

24

however, this Court in Dague rejected the nearly unanimous

position of the Circuits and ruled that risk enhancement is

never permitted. In these circumstances, it would be unfair

to require defendants throughout the country to pay risk

enhancements to prevailing plaintiffs’ counsel because, until

Dague, they reasonably believed they were foreclosed by Cir-

cuit precedent from arguing that risk enhancement is never

permitted under the typical federal fee-shifting statute.

Finally, judicial efficiency favors a rule that ordinarily per-

mits a litigant to raise at the trial level a supervening deci-

sion of this Court overturning what had been the law of the

Circuit governing his case and that does not require, as a con-

dition of doing so, an attempt to distinguish what reasonably

appears to be indistinguishable. Federal district court judges

should not be asked to make a distinction between a Circuit

court decision, which they are bound to follow, and the case

before them, which is so tenuous that even moving counsel

does not believe it is reasonable. The inevitable and costly

result of the D.C. Circuit’s rule, however, is to require trial

counsel to raise such matters and federal courts to decide them,

and to generate collateral sanctions litigation.

CONCLUSION

This case raises an important and constantly recurring issue

that has been wrongly decided by the D.C. Circuit and that

should be resolved by this Court. This Court should grant the

petition for a writ of certiorari and reverse the decision below.

Respectfully submitted,

JOHN PayTON,

Corporation Counsel

CHARLES L. REISCHEL,

Deputy Corporation Counsel

Appellate Division

*Donna M. Murasky,

Assistant Corporation Counsel

Office of the Corporation Counsel

One Judiciary Square, Sixth Floor

441 Fourth Street, N.W.

Washington, D.C. 20001

*Counsel of Record Telephone: (202) 727-6252 ext. 3303