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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1018

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1230%3A1. Public record. Not legal advice.