Reply Brief — District of Columbia v. Kattan

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No. 93-1296 MAR 2 8 1994 |

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Iu the Supreme Court of the United States

OctToBER TERM, 1993

District oF CoLuMBIA, et al,

Petitioners,

V.

SARAH KaTTAN, By HER PARENTS AND NExtT FRIENDS,

SusAN J. THOMAS AND JOSEPH KATTAN, et al,

Respondents.

Reply to Brief in Opposition to

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

JOHN PayTon,

Corporation Counsel

VANESSA Ruiz,

Principal Deputy

Corporation Counsel

Cuar.es 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

ae

TABLE OF CONTENTS

[. ELDER REQUIRES REVERSAL HERE ........

II. THIS CASE PRESENTS AN IMPORTANT QUES-

.y ' £: gk Serer errs eee ere ee

111. THE OTHER ARGUMENTS IN THE OPPOSITION

THAT THIS CASE DOES NOT MERIT REVIEW

DO NOT WITHSTAND ANALYSIS ............

A. This Court Need Not Decide Whether Kay v. Ehrler

Bars The Pro Se Fee Award Here......

B. This Case Does Not Present Any Complex Factual

CE ho seks dadvcaes sea seeis-

C. This Case Does Not Involve Any Discetieney

Balancing Of The Equities ..............

IV. THE D.C. CIRCUIT’S WAIVER RULE DOES NOT

ADVANCE THE FAIR AND EFFICIENT AD-

MINISTRATION OF JUSTICE.. .

CONCLUSION

TABLE OF AUTHORITIES

Page

CASES

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

cert. denied, 114 S. Ct. 559 (1993) 5

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

(1981) 3

Cooter & Gell v. Hartmax Corp., 496 U.S. 384 (1990) 6

Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C. Cir. 1977) 2,5, 7,8

Elder v. Holloway, 62 U.S.L.W. 4149 (U.S. Feb. 22,

1994) passim

Fogerty v. Fantasy, Inc., 62 U.S.L.W. 4153 (U.S. March

1, 1994) 6

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

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

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

(D.C. Cir. 1991) 8

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

Cir. 1993) 4

Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 483 U.S. 711 (1987) 4

STATUTES & RULES

42 U.S.C. § 1988 2

Fed. R. Civ. P. 8, 12(g)&(h), and 51 8

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

bt

ii

ee

In the Supreme Court of the United States

Octoser Term, 1993

District or CoLumBIA, et al,

Petitioners,

Vv.

SARAH KatTTaNn, By Her Parents AND NeExtT FRIENDS,

Susan J. THOMAS AND JOSEPH KaTTAN, et al,

Respondents.

Reply to Brief in Opposition to

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

I. ELDER REQUIRES REVERSAL HERE.

In Elder v. Holloway, 62 U.S.L.W. 4149 (U.S. Feb. 22,

1994), this Court ruled that federal courts have an obliga-

tion to decide claims properly before them in accordance with

the law. Even in the case of a federal appellate court, ques-

tions of law ‘‘must be resolved de novo,” and its inquiry into

what the law is must ‘‘be conducted in light of all relevant

precedents, not simply those cited to or discovered by the

district court.’’ Jd. at 4151, 4150.

In so ruling, this Court explainedthat the contrary rule

that had been adopted by the Ninth Circuit did not advance

the legitimate and important interests of either plaintiffs or

defendants. In cases like Elder, involving questions of law,

the Ninth’s Circuit rule wrongly results in erroneous deci-

sions ‘‘because of shortages in counsels’ or the court’s legal

research or briefing.’’ Jd. at 4151. This Court also observed:

The Ninth Circuit’s rule could have a number of un-

toward effects. It could occasion appellate affirma-

tion of incorrect legal results . . . and it could place

l

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2

defense counsel in a trying situation. See ABA

Model Rule of Professional Conduct 3.3(a)(1989 ed.)

(‘A lawyer shall not knowingly: . . . (3) fail to

disclose to the tribunal legal authority in the con-

trolling jurisdiction known to the lawyer to be direct-

ly adverse to the position of the client and not

ded’ by opposing counsel.’’).

Id. at 4151 n.3.

Elder requires reversal here. In this case, at the time that

the Kattans submitted their fee application in 1988, the par-

ties agreed that Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C. Cir.

1977), governed the claim of an attorney for fees for any pro

se representation. Three years later, when Judge Green

awarded these fees to Mr. Kattan, none of the parties had

brought to her attention, and she apparently had not found,

this Court’s intervening decision in Kay v. Fhrler, 111 S. Ct.

1435 (1991), barring fee awards to pro se attorneys under

42 U.S.C. § 1988, a federal fee-shifting statute in-

distinguishable from the basic fee provision here. Because

under Elder, an appellate court is required to decide a legal

claim properly before it de novo in light of all relevant

precedents, Judge Green was required to decide the validi-

ty of Mr. Kattan’s claim for attorney’s fees for his pro se

representation in light of the obviously relevant Kay v.

Ehrler. When she failed to do so, the District acted proper-

ly in bringing Kay v. Ehrler to her attention in a motion

under Fed. R. Civ. P. 59(e), a motion which destroyed the

finality of her judgment.

The reasons for the rule set forth in Elder apply with equal

force here. First, the waiver rule announced by the D.C. Cir-

cuit, in which legal rights are settled based on the authority

cited by the parties in the district court in the first instance,

does not advance the legitimate and important interests of

any of the litigants. Second, as even the Opposition appears

to concede (Opp. 22 n.23), the D.C. Circuit’s waiver rule has

resulted in ‘appellate affirmation of [an] incorrect legal

result{] . . ..”’ Elder, supra, 62 U.S.L.W. at 4151 n.3. Final-

ly, the ethical considerations cited by this Court in Elder are

3

relevant here. Model Rule 3.3(a) would have required counsel

for the Kattans to bring Kay v. Ehrler to Judge Green’s at-

tention had they known of the decision.

II. THIS CASE PRESENTS AN IMPORTANT QUES-

TION OF LAW.

The Opposition argues that the District has misstated the

issue in this case and that the issue actually presented is of

no importance. The Opposition is wrong on both counts.

One way of fairly stating the issue here is whether the lower

federal courts must decide claims properly before them ‘‘in

light of all relevant precedents, not simply those cited to”’

them. Elder, supra, 62 U.S.L.W. at 4150. It is the District’s

position that when Judge Green entered her order awarding

fees in 1991, some three years after the fee application had

been briefed, she was obligated to decide Mr. Kattan’s claim

for fees as a pro se attorney in light of Kay v. Ehrler, an ob-

viously relevant precedent from this Court. The D.C. Circuit,

however, rejected this position. As Elder demonstrates,

whether the D.C. Circuit erred presents an important legal

issue.

Another way of fairly stating the issue here is whether a

litigant forfeits his right to have his case decided in accor-

dance with a relevant rule of law announced by this Court

because a contrary rule of law, which had been adopted as

the law of the Circuit, reasonably appeared to govern the

case prior to this Court’s decision. Once again, given this

Court’s numerous decisions reversing the law of the Circuits,

this issue is an important legal issue.

Review is warranted here not only because this Petition

presents an important legal issue but also because the waiver

standard adopted by the D.C. Circuit is in conflict with the

decisions of this Court and of other Circuits. The Opposi-

tion’s attempts to distinguish a few of the decisions the

District cited in its Petition are patently unsuccessful for

several reasons, including the following. City of Newport v.

Fact Concerts, Inc., 453 U.S. 247 (1981), for example, can-

4

not be distinguished on the ground that the district court

there ‘‘in fact passed on the very issue presented” while

Judge Green ‘declined to reach the merits."’ Opp. 15 & 15

n.19. Here, Judge Green did reach the merits and she wrongly

ruled that Kay v. Ehrler was not controlling (App. 33a-34a),

a ruling that the D.C. Circuit left intact. Furthermore, the

Opposition’s attempt to distinguish Morris v. American Na-

tional Can Corp., 988 F.2d 50 (8th Cir. 1993), also fails. No

reasonable lawyer or federal court judge could have believed

that Delaware Valley II (Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air, 483 U.S. 711 (1987)), would

be this Court’s last pronouncement on the issue of risk

enhancement, and the Eighth Circuit excused a waiver of

the issue in Morris because it had adopted, as the law of the

Circuit, Justice O'Connor's opinion in Delaware Valley I.

I1i. THE OTHER ARGUMENTS IN THE OPPOSITION

THAT THIS CASE DOES NOT MERIT REVIEW DO

NOT WITHSTAND ANALYSIS.

A. This Court Need Not Decide Whether Kay v. Ehrler

Bars The Pro Se Fee Award Here.

The Opposition argues that this Court should deny review

because review will require this Court to decide whether Kay

uv. Ehrler bars the pro se fee award here. This argument is

plainly mistaken. This Court, as it did in Elder, can decide

only the waiver issue and, should the Court decide that issue

in favor of the District, it can remand to the D.C. Circuit

with instructions to determine whether Kay v. Ehrler is con-

trolling.

B. This Case Does Not Present Any Complex Factual

Questions.

The Opposition urges that this Court should deny review

because this case, in a number of ways, presents complex

factual questions. This argument, in all of its manifestations,

is unfounded.

First, given Elder, this Court could rule that Judge Green

was obligated to decide Mr. Kattan’s claim for fees as a

5

pro se attorney in light of Kay v. Ehrler whether or not the

District's understanding of Cuneo was reasonable. However,

should the Court decide that a more stringent waiver stan-

dard is needed here, one which, for example, depends on

whether an attorney reasonably could have concluded that

Cuneo was controlling, this Court is free to announce what

the standard should be and remand to the D.C. Circuit for

further proceedings.

Alternatively, this Court could itself decide whether the

District’s position was reasonable. On the record here, this

issue is an issue of law. Furthermore. the record here makes

clear that the District's understanding of Cuneo was

reasonable. Thus, less than three weeks before the divided

decision in this case, the D.C. Circuit in Benavides v. Bureau

of Prisons, 993 F.2d 257 (D.C. Cir.), cert. denied, 114 S. Ct.

559 (1993), ruled that the only distinction the District could

have made between Cuneo and this case was ‘‘untenable’’ and

thus indefensible. Jd. at 259. In addition, at the district court

level, the Kattans cited only Cuneo in support of their argu-

ment that the law required an award of attorney's fees to suc-

cessful pro se attorneys. In taking this approach, they

obviously expressed their belief that a reasonable reading of

Cuneo required a fee award to an attorney for any pro se

representation under the IDEA. They should therefore be

estopped from arguing later, for tactical reasons, that the

District's agreement with their earlier position was

unreasonable. Finally, the Opposition concedes that, follow-

ing Kay v. Ehrler, no reasonable attorney proceeding pro se,

including Mr. Kattan, would seek fees in a case like this one.

even though the D.C. Circuit has not expressly overruled

Cuneo. '

The Opposition (Opp. 4, 8, 9, 10, 21) also suggests that the District

should be faulted because the court in Cuneo stated “‘{t}he law is not clear

on the question of whether a party appearing on his own behalf, who is

also an attorney, is entitled to tax attorney fees as costs." 553 F.2d at 1366.

This suggestion is ridiculous. The court made this statement in surveying

the law of other jurisdictions construing a number of fee-shifting statutes:

the court then went on to adopt as the law of the D.C. Circuit the rule that

such fees are recoverable. After Cuneo, therefore, the law of the D.C. Cir-

cuit was clear — attorneys proceeding pro se under federal fee-shifting

Statutes may recover fees.

6

C. This Case Does Not Involve Any Discretionary Balan-

cing Of The Equities. |

The Opposition urges that review should be denied

because, although the courts below did not say so, what is

at issue here is a judgment based on the “facts and cir-

cumstances of this case, . . . such as the conduct and at-

titude of trial counsel’ for the District. Opp. 23. See also

Opp. 3, 3 n.4, 4, 12, 13. According to the Opposition, the D.C.

Circuit found a waiver of the pro se fee claim because, inter

alia, the District ‘“‘had tenaciously attempted to defend an

untenable position’”’ in litigating the merits of the action.

Opp. 12.

This argument is utterly mistaken for several reasons.

First, it overlooks the reasons given by the D.C. Circuit

for its waiver ruling. The D.C. Circuit ruled that the District

could not invoke Kay v. Ehrier because it failed to dispute

Cuneo by pressing a distinction between the FOIA and the

IDEA that ‘“‘would have been far from frivolous.”’ App. 5a.

See also App. 7a-8a. That ruling is a pure legal ruling, not

a balancing of any equities, and, if wrong, is an abuse of

discretion. See, e.g., Fogerty v. Fantasy, Inc., 62 U.S.L.W.

4153 (U.S. March 1, 1994) (the standards governing the ex-

ercise of discretion in awarding attorney’s fees are questions

of law); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405

(1990) (‘A district court would necessarily abuse its discre-

tion if it based its ruling on an erroneous view of the

MW sca th

Second, it overlooks the fact that the courts below ex-

pressly rejected the arguments the Opposition urges they

secretly embraced. Thus, the Kattans’ request for sanctions

at the trial level was denied (App. 31a), and when they asked

for a larger fee award on appeal for trial misconduct, that

was also denied. App. 10a. Furthermore, the District per-

suaded Judge Green that both Mr. Kattan and his co-counsel

were requesting hourly rates that were too high. App.

27a-29a. When the Kattans appealed the hourly rate Judge

Green had adopted for co-counsel, the D.C. Circuit affirnied

7

that rate. App. 8a-9a. Finally, despite arguments by the

Kattans, neither Judge Green nor the D.C. Circuit faulted

the District for its delay in bringing Kay v. Ehrler to Judge

Green's attention.’

In a similar fashion, the Opposition argues that Judge

Green may have found a waiver in order to compensate the

Kattans for her three-year delay in acting on the fee applica-

tion, during which time this Court resolved the pro se fee

issue against them. Opp. 23. This argument, however, far

from being a reason for denying review, is a reason for gran-

ting review. A federal court cannot refuse to follow the law

on the grounds that had it acted more promptly, the other

side would have won based on an incorrect legal principle.

Finally, despite the Opposition’s recitation that a court

may exercise discretion in determining whether a matter has

been waived by considering ‘“‘whether tactical considerations

prompted a party’s choices, any prejudice to the opposing

party, etc.,’’ no such discretion was exercised here. Opp. 22.

Had such discretion been exercised, it is plain that neither

the District’s acceptance of Cuneo in 1988 nor its failure to

raise Kay v. Ehrler before judgment was prompted by any

tactical consideration. Furthermore, it is equally plain that

the Kattans were not prejudiced by the District’s failure to

dispute Cuneo or by its delay in bringing Kay v. Ehrler to

Judge Green’s attention. In short, there was no exercise of

discretion in the traditional sense in this case. Instead, the

courts below failed to understand and apply the law gover-

ning waiver.

* In view of the facts of Elder, where plaintiff's trial counsel overlook-

ed a Circuit precedent that existed even before his suit was filed, the courts

below properly refused to fault the District for its six-month delay in bring-

ing Kay v. Ehriler to Judge Green's attention, especially since the fee ap-

plication had been pending before her for over two years when this Court

issued Kay v. Ehrler.

8

IV. THE D.C. CIRCUIT’S WAIVER RULE DOES NOT

ADVANCE THE FAIR AND EFFICIENT AD-

MINISTRATION OF JUSTICE.

The Opposition, citing Fed. R. Civ. P. 8, 12(g) & (h), and

51, urges that waiver plays an important role in ‘‘judicial

administration.”’ Opp. 22. In the District’s view, however,

and as Elder and the cases cited in its Petition make clear,

waiver is disfavored in the federal judicial system even

though it does have a proper role to play in certain cir-

cumstances. Here, of course, the rules cited in the Opposi-

tion do not apply to this case. Second, the reasons for these

rules and for judge-made rules of waiver do not apply here.

A waiver may properly be found when necessary to advance

the fair and efficient administration of justice. For example,

a waiver may be found to preclude ‘‘sandbagging”’ — a tac-

tic in which a litigant awaits the outcome of a case and, if

it is adverse, raises a defense that could, and should, have

been raised earlier and that eviscerates all or part of the pro-

ceedings that have taken place.

This obviously is not what happened here. The District did

not seek, and could not hope to gain, any tactical advantage

by its conduct. Furthermore, the Kattans were not prejudiced

and the administration of justice was not adversely affected

by the District's failure to dispute Cuneo or by its delay in

invoking Kay v. Ehrler.

Finally, whatever contribution the waiver doctrine may

make to the fair and efficient administration of justice must,

in the context of this case, be weighed against the impor-

tant contribution that the law of the Circuit makes in achiev-

ing that goal. In this case, the District’s acceptance of Cuneo

as controlling in 1988 advanced the fair and efficient ad-

ministration of justice. The District, by not advancing a

distinction that the D.C. Circuit ultimately found untenable

when squarely placed before it, avoided launching what sure-

ly would have been a losing battle over the validity of the

district court’s opinion in Lawrence v. Staats, 586 F. Supp.

1375 (D.D.C. 1984), in light of the controlling the law of the

Circuit in Cuneo. And the District likely also avoided

9

precipitating another collateral battle over sanctions. The

Kattans did, in fact, file a motion for sanctions because, in

their view, the District ‘“‘tenaciously attempted to defend an

untenable position”’ on the merits, and there is no reason to

believe that they would not have filed another motion for

sanctions had the District “‘tenaciously attempted to defend

an untenable position’’ on the pro se fee issue in 1988.

CONCLUSION

This petition presents an issue that recurs with great fre-

quency and that should be resolved by this Court to ensure

the fair and efficient administration of justice. At the very

least, this Court should order the D.C. Circuit to reconsider

its decision in light of Elder.

Respectfully submitted,

JOHN PayTON,

Corporation Counsel

VANESSA Ruiz,

Principal Deputy

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