Amicus Curiae Brief — Association of Community Organizations for Reform Now v. Foster

No. 96-174

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

ACORN, et al.,

Petitioners,

Vv.

EDWIN EDWARDS, ef al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF OF AMICUS CURIAE

PUBLIC CITIZEN IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

ALAN B. MORRISON

Counsel of Record

COLETTE G. MATZZIE

PUBLIC CITIZEN LITIGATION GROUP

1600 20th Street, NW

Washington, DC 20009-1001

(202) 588-1000

Attorneys for Amicus Curiae

Public Citizen

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-174

ACORN, et al.,

Petitioners,

vV.

EDWIN EDWARDS, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

Movant Public Citizen hereby seeks leave to file a brief

amicus curiae in support of the petition for a writ of

certiorari. The Petition seeks review of a decision of the

Court of Appeals for the Fifth Circuit. That court struck

down as unconstitutional a section of the Lead Contamination

Control Act of 1988, 42 U.S.C. § 300j-24(d), even though

the case had been settled as moot and the only issue on

appeal was an award of attorneys’ fees to petitioner. Copies

of petitioners’ and the United States’ written consent have

been lodged with the Clerk. Attorney for the respondent has

informed the undersigned counsel of rm. rd that he does not

consent to the filing of a brief amicus cuviae.

Public Citizen is a non-profit, consumer advocacy

organization with nearly 100,000 members nationwide.

Since 1971, Public Citizen has been active in the courts, in

Congress, and before regulatory agencies concerning the

2

enforcement of a wide-range of health and safety,

environmental, and other consumer legislation. Public

Citizen has also represented named parties and amici in

litigation over federal fee-shifting statutes in environmental

and other cases. See Melkonyan v. Sullivan, 501 U.S. 89

(1991); Jones v. Brown, 41 F.3d 634 (Fed. Cir. 1994);

Chesapeake Bay Foundation vy. United States Dep’t of

Agriculture, 11 F.3d 211 (D.C. Cir. 1993), cert. denied, 115

S. Ct. 315 (1994); Dunn ». Florida Bar, 889 F.2d 1010

(11th Cir. 1989), cert. denied, 498 U.S. 811 (1990). In

doing so, Public Citizen has sought to further the policies

behind federal fee-shifting legislation: providing a means for

ordinary citizens, who otherwise could not afford competent

counsel, to enforce the substantive mandates of federal law.

While petitioners have presented the question whether

the court of appeals erred in holding that the Lead

Contamination Control Act of 1988 (LCCA), 42 U.S.C. §

300j-24(c) & (d), amending the Safe Drinking Water Act

(SDWA), is constitutional under the Tenth Amendment,

amicus Public Citizen does not believe that the Court need or

even should reach the constitutional question presented.

Rather a writ of certiorari should be granted because it was

improper for the court of appeals to decide the

constitutionality of a federal statute in reviewing an award of

attorneys’ fees in a case in which the merits become moot.

The United States is unlikely to urge the Court to adopt the

position advanced by amicus Public Citizen because of the

United States’ institutional interest as a defendant in

attorneys’ fee litigation. We ask therefore that Public Citizen

be granted leave to file the accompanying brief amicus curiae

in support of granting a writ of certiorari upon the question

presented by the attached brief.

October 2, 1996

Respectfully submitted,

(tan B brine (Com)

Alan B. Morrison

(Counsel of Record)

Colette G. Matzzie

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC 20009

(202) 588-1000

Attorneys for Amicus Curiae

Public Citizen

i

QUESTION PRESENTED

Amicus Public Citizen believes that certiorari should be

granted only on the following question:

In deciding whether to award statutory attorneys’ fees

in a settled case, must a federal court first decide that

plaintiffs would have prevailed on the merits, especially

where the merits include ruling on an affirmative defense that

the statute on which the claim was based is unconstitutional?

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Tn eR Nn

ii

TABLE OF CONTENTS

CPRIESRLAGINS ERMMRIN ET TOED nck oR kn one i

Bias GC AU SRIOTED se 8 WN eo ili

RUE RAIS SN COMME ORIE © hd oo ga x Haw eee eee 1

PRIA PAGES S.A ERED CRED cn: sen ge Aen ae eee 1

A. Proceedings in the District Court ......... 2

B. Proceedings in the Court of Appeals ....... 3

REASONS FOR GRANTING THE WRIT ......... 4

I. THE COURT OF APPEALS’ DECISION

CONFLICTS WITH DECISIONS OF THIS

COURT AND OTHER COURTS OF

APPEALS OVER THE PROPER

STANDARD FOR AN AWARD OF

AS IGRI A SE WES. eA a eee ee 4

Il. THE COURT OF APPEALS’ DECISION

CONFLICTS WITH EXPRESS

INSTRUCTIONS OF THIS COURT TO

AVOID DECIDING CONSTITUTIONAL

QUESTIONS UNLESS NECESSARY. ... 10

UARVCRAIDEUEE 4 6 8S EA Reh eR 13

iii

TABLE OF AUTHORITIES

Cases: Page:

Ashwander v. TVA,

Ae EE he Ge de ae 10

Associated Builders & Contractors of La. Inc. v.

Orleans Parish Sch. Bd.,

PES eee PIR LIOR llc EPPO) oe hie oe eas ewe 7

Califano v. Yamasaki,

ee eee eee i SS 5 Re a ee wale 10

Chesapeake Bay Foundation v. United States

Dep’t of Agriculture, 11 F.3d 211

(D.C. Cir. 1993), cert. denied,

i es ee reg ee bk aa 2

Collins v. Romer,

Pe dee Roe Cs TED a ec ce ee ew 0s 7

Colorado Environmental Coalition v. Romer,

FRO 2 Cee. 457 Ge. COG. T9892) ve i es 6

Dunn v. Florida Bar,

889 F.2d 1010 (11th Cir. 1989),

cert. denied, 498 U.S. 811 (1990) .......... py

Environmental Defense Fund v. Reilly,

Oo Er FR ee eae. Ve eee 5

Farrar v. Hobby, 113 S. Ct. 566 (1992) .......... 6

Pie ¥.. Goes, Se te. Be Cee se ees ee ee 11

iia

iV

Foremaster v. City of St. George,

882 F.2d 1485 (10th Cir. 1989),

cert. denied, 495 U.S. 910 (1990) ............ 8

Gulf Oil Co. v. Bernard,

ne RAS OPO ag i 56 Migr wa e ee 10

Hagans v. Lavine, 415 U.S. 528 (1974) .......... 5

Harrington v. DeVito,

pe re cee AF, BOOED 6 as eee 6p eo 7

Hensley v. Eckerhart,

DE. Be ee ee ad 2 be rece ee eK 6,9

Herren v. City of Jamestown, Kentucky,

59 F368 G20 CU Ce. 19) oa eres 8

Hewitt v. Helms, 482 U.S. 755 (1987) ........... 6

Jean v. Nelson, 472 U.S. 846 (1985) ........... 10

Johnston v. Jago, 691 F.2d 283 (6th Cir. 1982) ..... 7

Jones v. Brown, 41 F.3d 634 (Fed. Cir. 1994) ...... 2

Koster v. Perales, 903 F.2d 131 (2d Cir. 1990)...... 7

Long v. Bonnes, 455 U.S. 961 (1982) ............ 9

Luethje v. Peavine School Dist. of Adair County,

Bia Fe sae ce th Cae a sk co Wie ee 8

Lyng v. Northwest Indian Cemetery Prot. Ass’n,

Gio Sis Ge CR a ee oe 10

Maher v. Gagne, 448 U.S. 122 (1980) ........... 5

Vv

Marek v. Chesney, 473 U.S. 1 (1985) ............ i)

Melkonyan v. Sullivan, 501 U.S. 89 (1991) ........ 2

Miller v. Staats, 706 F.2d 336 (D.C. Cir. 1983) ..... 7

Nadeau v. Helgemoe,

ee ee ee ee GC: PP a oe eee 6,7

Pennsylvania v. Delaware Valley Citizens Counsel,

Fe es Se er PO ims a 8 5

Pierce v. Underwood, 487 U_S. 552 (1988) ........ )

Roanoke River Basin v. Hudson,

991 F.2d 132 (4th Cir.), cert. denied,

ee a ee Sow 0-6 8 6a hk Se PK as 8

Ruckelshaus v. Sierra Club,

Se aes er oe we eee 5,6

Sablan v. Dep’t of Finance of N. Mariana Islands,

ew RKP R Lb a ee a ea 7

Sierra Club v. EPA, 769 F.2d 796 (D.C. Cir. 1985)... 5

Staten v. Housing Auth. of City of Pittsburgh,

ee ee rs I ha a Aoig 6 2 ve oe 7

Supre v. Ricketts, 792 F.2d 958 (10th Cir. 1986) ..... 8

EEE

Texas State Teacher’s Ass’n v. Garland

Indep. School Dist., 489 U.S. 782 (1989) ...... 6

Three Affiliated Tribes v. Wold Engineering, P.C.,

ee Be RRO: ok fe ON ado hele 10

) |

Vi

United Handicapped Federation v. Andre,

Gat ae De Ce ee LE Oe. eee 7

United States v. Freuhauf, 305 U.S. 146 (1961) .... 12

Watkins v. Fordice, 7 F.3d 453 (Sth Cir. 1993) ...... 7

Wilderness Soc’y v. Babbitt,

De see Chee Ga BED ce eo eee 6, 8

Williams v. Leatherbury, 672 F.2d 549 (Sth Cir. 1982) . 7

STATUTES

Ped. &. Cov. F. TGA), Ch ok ck OV ee es 9

Pee, Te, Gee eS 5 oe BRR OR. © Fu 9

Equal Access to Justice Act (EAJA),

Oe 2. © BORA 6 oe orcas OS ORS Wee oe 8, 9

Lead Contamination Control Act of 1988,

42 U.3.C.. § RA 28 (0) BG ko ae. ee Se

Civil Rights Attorney’s Fees Award Act,

A Us oe ee week RRS Re 5

IN THE

Supreme Court of the United States

OCTOBER TERM. 1996

No. 96-174

ACORN, ef al.,

Petitioners,

Vv.

EDWiN EDWARDS, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEAL FOR THE

FIFTH CIRCUIT

BRIEF OF AMICUS CURIAE PUBLIC CITIZEN IN

SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

INTEREST OF AMICUS

The interest of amicus Public Citizen is set out in the

accompanying motion for leave to file this brief.

STATEMENT OF THE CASE

A. Proceedings in the District Court

This case has its origins in the ongoing efforts of a

public interest organization, petitioner Association of

Community Organizations for Reform Now (ACORN), on

behalf of the citizens of Louisiana, and a group of concerned

parents, to force the State of Louisiana to comply with the

Lead Contamination Control Act of 1988 (LCCA), 42

U.S.C. § 300j-24(c) & (d), amending the Safe Drinking

2

Water Act (SDWA). The LCCA requires, inter alia, state

officials to distribute to Louisiana schools a list of lead-lined

water coolers published by EPA in the Federal Register and

to assist local educational agencies, schools, and day care

centers in remedying lead contamination in their drinking

water systems. The procedural history of the case is set

forth in detail in the Petition for a Writ of Certiorari at pages

11-13. For the purposes of this brief, only a few facts are

significant.

First, there was no adjudication of the merits because

the parties reached an agreement to dismiss the case as moot.

After the complaint was filed, Louisiana had made

reasonable improvements in its implementation of the LCCA,

and petitioners wished to concentrate on monitoring the

State’s implementation of its lead remediation program rather

than on litigation. Therefore, the district court did not

decide either party’s summary judgment motion on the

merits, but instead granted a consent motion to dismiss on

grounds of mootness which explicitly reserved the parties’

rights to seek attorneys’ fees.

Second, respondents opposed petitioners’ petition for an

award of fees and costs on numerous grounds, but the district

court found for petitioners. Reasoning that “[a] plaintiff may

be a prevailing party in the absence of a judicial

determination on the merits,” the district court made specific

findings in support of its conclusion that the lawsuit had

catalyzed respondents to comply substantially with the LCCA

and awarded petitioners their requested fees and costs.

Petition at A-22-A-26. In its fee award opinion, the district

court reiterated that petitioners’ claims on the merits had

been mooted by respondents’ compliance with the LCCA.

Id. at A-21.

B. Proceedings in the Court of Appeals

Respondents appealed the award of attorneys’ fees,

raising numerous allegations of error. Jd. at A-8. While

explicitly acknowledging that the case had been dismissed as

3

moot, A-7, the court of appeals announced that, to receive an

award of attorneys’ fees, plaintiffs must demonstrate that

“they had alleged a violation of a lawful requirement of the

Act.” Id. at A-18.

Noting that respondents had challenged the LCCA as

violative of the Tenth Amendment, the court of appeals

considered each provision in turn. The first provision, 42

U.S.C. § 300j-24(c), requires that states distribute a list of

lead-lined water coolers prepared by EPA to schools.

Accepting respondents’ representation that its distribution of

a list prior to the filing of the complaint complied with

LCCA--a hotly-contested and unresolved issue in the district

court--the court of appeals found that there was no valid

allegation of a violation of section 300j-24(c) at the time

petitioners instituted the lawsuit, and therefore that

petitioners were not entitled to fees incurred for pursuing a

section 300j-24(c) claim. Jd. at A-11.

The second provision, 42 U.S.C. § 300j-24(d), led the

court of appeals to engage in a more searching inquiry on the

Statute’s constitutionality. Section 300j-24(d) requires the

states to develop plans to remedy lead contamination in

school drinking water systems. During oral argument on the

fee award, the court of appeals asked the parties to submit

post-argument memoranda on whether this statutory provision

violates the Tenth Amendment, and it permitted the United

States to intervene. Jd. at A-12.

Subsequently, the courts of appeals issued a decision

striking down section 300j-24(d) as violative of the Tenth

Amendment. Jd. at A-17. In light of that ruling, the court

held that petitioners were not entitled to fees because they

had failed to allege that respondents were in violation of any

“lawful requirement” of LCCA at the time of filing suit and

dismissed petitioners’ claims. Jd. at A-18.

4

REASONS FOR GRANTING THE WRIT

Despite the fact that the parties had agreed to dismiss

this case as moot, and the fact that an appeal had been taken

only from the award of attorneys’ fees, the court of appeals

held that a court may not award attorneys’ fees unless the

plaintiff can prove a violation of a lawful statutory

requirement. Moreover, the court went even further,

striking down a major federal environmental and public

health statute as unconstitutional, even though the parties had

explicitly abandoned their right to litigate that question.

This decision—to reach out and decide the merits of a

moot case, and to strike down a federal statute as

unconstitutiona! in the process—warrants review by the Court

because it creates a conflict with decisions of this Court and

other courts of appeals over the proper standards for

awarding statutory attorneys’ fees. Furthermore, by virtually

mandating the issuance of advisory opinions on sensitive

constitutional issues, the decision creates an irreconcilable

conflict with the express direction of this Court that the

federal courts should avoid deciding constitutional issues

unless necessary.

I. THE COURT OF APPEALS’ DECISION

CONFLICTS WITH DECISIONS OF THIS COURT

AND OTHER COURTS OF APPEALS OVER THE

PROPER STANDARD FOR AN AWARD OF

ATTORNEYS’ FEES.

By holding that petitioners had to prove that

respondents were in violation of a lawful requirement of the

LCCA, the court of appeals has, in effect, required

petitioners to prove their case at the fee award stage, even

though the merits have been fully resolved and the

underlying controversy is now moot. Review should be

granted because the Fifth Circuit’s approach is at odds with

5

the decisions of this Court and the lower federal courts under

environmental and other fee-shifting statutes.

Awards of attorneys’ fees and costs under citizen suit

provisions in environmental statutes are governed by

substantially the same standards developed under other fee-

shifting statutes, including the Civil Rights Attorney’s Fees

Award Act, 42 U.S.C. § 1988. See Pennsylvania v.

Delaware Valley Citizens Counsel, 478 U.S. 546, 560

(1986); Ruckelshaus v. Sierra Club, 463 U.S. 680, 682 n.1

(1983) (listing federal environmental and public health

statutes with statutory fee provisions). In order to receive a

fee award, a plaintiff need not show that it would have

prevailed on the merits of a case that settles prior to final

adjudication. Maher v. Gagne, 448 U.S. 122, 129 (1980).

Rather it must show that it has achieved “some degree of

success on the merits.” Ruckelshaus, 463 U.S. at 694.

In Maher, the Court affirmed a fee award under 42

U.S.C. § 1988 to plaintiffs who had obtained a consent

decree, despite defendant’s argument that fees could not be

awarded where no formal judicial relief on the merits had

been entered. 448 U.S. at 129. The complaint in Maher

had alleged federal claims on which the lower courts had not

passed, but this Court simply observed that they were

“sufficiently substantial to support federal jurisdiction under

Hagans v. Lavine, [415 U.S. 528 (1974)].” Id. at 131. The

Court deemed important that the federal claims “remained in

the case until the entire dispute was settled... .” Jd. As

Justice Powell declared in his concurring opinion, because

the federal claims were “substantial” under Hagens, the

Court had “no occasion to look behind the settlement

agreement to evaluate further the constitutional cause of

action.” Id. at 134.

The environmental fee-shifting cases follow this

approach. See, e.g., Environmental Defense Fund v. Keilly,

1 F.3d 1254, 1257-58 (D.C. Cir. 1993) (RCRA); Sierra

Club v. EPA, 769 F.2d 796, 799-802 (D.C. Cir. 1985)

(Clean Air Act). A plaintiff may be a prevailing party in the

6

absence of a judicial determination on the merits. See, e.g.,

Wilderness Soc’y v. Babbitt, 5 F.3d 383, 386 (9th Cir.

1993). To receive a fee award, a plaintiff must demonstrate

that it was a “prevailing party,” by obtaining at least partial

success on the merits, whether through full adjudication or

by otherwise achieving the relief sought. See Ruckelshaus,

463 U.S. at 694; see also Colorado Environmental Coalition

v. Romer, 796 F. Supp. 457, 459 (D. Colo. 1992) (awarding

attorneys’ fees to environmental group as prevailing party in

efforts to compel state to comply with the LCCA).

A plaintiff prevails if the relief obtained alters the

defendant’s behavior in a way directly benefitting the

plaintiff. Farrar v. Hobby, 113 S. Ct. 566, 573 (1992).

While a plaintiff is not entitled to fees if it obtained only a

technical or insignificant victory, see id. at 574, “|[t]he

touchstone of the prevailing party inquiry must be the

material alteration of the legal relationship of the parties in

a manner which Congress sought to promote in the fee

statute.” Texas State Teacher’s Ass’n v. Garland Indep.

School Dist., 489 U.S. 782, 792-93 (1989) (awarding

attorneys’ fees to teacher’s union that had succeeded on

“significant issue” of litigation and rejecting test from Fifth

and Eleventh Circuits that required success on the “central

issue”); see also Hensley v. Eckerhart, 461 U.S. 424, 433

(1983).

If a party is deemed prevailing, courts generally apply

the two-step approach first established in Nadeau v.

Helgemoe, 581 F.2d 275, 281 (ist Cir. 1978), to determine

whether a plaintiff, who has gained some of the relief sought,

without obtaining a ruling on the merits, should be awarded

fees. First, the plaintiff must show that the suit was a causal

factor in obtaining the relief. Jd.; see Hewitt v. Helms, 482

U.S. 755, 760-61 (1987). Here, the district court found, as

a matter of fact, that petitioners had substantially prevailed

because their suit caused respondents to improve their

compliance with the LCCA. Second, plaintiff must show

that the legal premise of the suit was not frivolous,

7

unreasonable, or groundless, Nadeau, 581 F.2d at 281 (citing

Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422

(1978)), but no further showing of the ulumate merits of the

suit is required. Jd.' Here, the district court found that the

lawsuit was necessary to catalyze respondents’ compliance

with the LCCA, and the court of appeals never intimated that

this case was frivolous.

The Nadeau standard has been followed in almost every

circuit in cases interpreting a variety of federal fee-shifting

statutes under which reasonable attorneys’ fees may be

awarded. The Fifth Circuit had previously adopted a variant

of the Nadeau test, but the difference was not great. Under

that approach, plaintiffs had to show that the goals of the

lawsuit were achieved, that the suit caused the defendant to

remedy the alleged harm, and that the lawsuit was a

“substantial factor” or “significant catalyst” in motivating the

defendants to end their illegal behavior. See Watkins v.

Fordice, 7 F.3d 453, 456 (Sth Cir. 1993); Associated

Builders & Contractors of La. Inc. v. Orleans Parish Sch.

| Bd., 919 F.2d 374, 478 (Sth Cir. 1990); Williams v.

| Leatherbury, 672 F.2d 549, 551 (Sth Cir. 1982).

| Despite the binding precedent from this Court and Fifth

Circuit law directly governing statutory fee awards, the

' See, e.g., Collins v. Romer, 962 F.2d 1508, 1514 (10th Cir.

1992) (not “frivolous or groundless”); Koster v. Perales, 903 F.2d

131, 136 (2d Cir. 1990) (not “frivolous, unreasonable or

groundless”); Sablan v. Dep’t of Finance of N. Mariana Islands,

856 F.2d 1317, 1325 (9th Cir. 1988) (same); Miller v. Staats, 706

F.2d 336, 341 & n.31 (D.C. Cir. 1983) (“not wholly frivolous”);

Johnston v. Jago, 691 F.2d 283, 287 (6th Cir. 1982) (not

“patently frivolous”); Harrington v. DeVito, 656 F.2d 264, 266

(7th Cir. 1981) (not “frivolous, unreasonable or groundless”);

Staten v. Housing Auth. of City of Pittsburgh, 638 F.2d 599, 605

(3d Cir. 1980) (“not frivolous”); United Handicapped Federation

v. Andre, 622 F.2d 342, 347 (8th Cir. 1980) (not “frivolous,

unreasonable or groundless”).

ene ee

8

decision in this case radically departs from the developed

body of attorneys’ fee law and mandates that lower federal

courts decide the merits of the case at the fee petition stage.

By instructing that a court pass on the merits of a plaintiff’s

claims even though the case had been dismissed as moot, the

Fifth Circuit’s approach follows that in the Tenth and the

Eleventh Circuits which require a showing that the

defendant’s actions are legally required before fees may be

awarded. See Dunn v. Florida Bar, 889 F.2d 1010, 1015

(11th Cir. 1989), cert. denied, 498 U.S. 811 (1990); Supre

v. Ricketts, 792 F.2d 958, 962-63 (10th Cir. 1986). As a

result, those courts have rendered lengthy advisory opinions

on significant issues of constitutional law in the context of

deciding fee petitions. See, e.g., Foremaster v. City of St.

George, 882 F.2d 1485, 1488-89 (10th Cir. 1989)

(Establishment Clause inquiry), cert. denied, 495 U.S. 910

(1990); Luethje v. Peavine School Dist. of Adair County, 872

F.2d 352, 354-56 (10th Cir. 1989) (detailed First

Amendment inquiry). Therefore, there is a split in the

circuits between courts, like the Fifth, Tenth and Eleventh,

which require plaintiffs to “relitigate” and win their claims

at the fee stage, and the other courts of appeals which

require only a showing that plaintiff has substantially

prevailed and was a catalyst.

The Court has never allowed a decision on a fee

petition to turn into an adjudication of the merits even in

situations in which Congress has indicated that courts should

conduct some review of the merits of a defense before a fee

award. Even where there is no fee-shifting statute,

prevailing parties in environmental litigation against the

government may obtain fees under the Equal Access to

Justice Act (EAJA), 28 U.S.C. § 2412. See, e.g., Herren v.

City of Jamestown, Kentucky, 39 F.3d 628, 630-32 (6th Cir.

1994); Wilderness Soc’y v. Babbitt, 5 F.3d 383, 386 (9th

Cir. 1993); Roanoke River Basin v. Hudson, 991 F.2d 132,

138-39 (4th Cir.), cert. denied, 114 S. Ct. 182 (1993).

Under the EAJA, fees may be denied if the government can

9

show that its position on the merits was “substantially

justified.” 28 U.S.C. § 2412(d)(1)(A). Yet even with this

statutory directive, this Court has cautioned courts against

deciding the merits during a fee dispute in a way that

“effectively establish[es] circuit law in a most peculiar,

second-handed fashion.” Pierce v. Underwood, 487 U.S.

552, 561 (1988).

Review should also be granted because the decision of

the court of appeals will make it very difficult to settle

disputes under environmental and public health statutes.

Resolution of citizen suits short of a ruling on the merits

allows the parties to avoid the costs and uncertainties

associated with complex litigation. A system in which a

plaintiff's successful settlement of a citizen suit is followed

by examination of the merits of their underlying claim as part

of a fee application, would render meaningless Justice

Powell’s admonition that a “request for attorney’s fees

should not result in a second major litigation.” Hensley, 461

U.S. at 437; see also Long v. Bonnes, 455 U.S. 961, 966

n.3 (1982) (Rehnquist, J., joined by O’Connor, J., dissenting

from denial of certiorari) (test for determining right to fees

“does not require a finding that the petitioners would have

prevailed on the merits, nor does it require the trial court to

hold the very trial which the settlement was intended to

avoid”).

The decision of the court of appeals will undermine the

longstanding, and increasingly important, public policy

favoring settlement and other forms of extra-judicial dispute

resolution. See, e.g., Marek v. Chesney, 473 U.S. 1, 5, 10-

11 (1985); Fed. R. Civ. P. 68; Fed. R. Civ. P. 16(a)(5),

(c)(7). Not only will the court of appeals’ decision reduce

the likelihood of settlement on the merits, but it will give

defendants another reason to refuse to settle fee disputes, that

is, they can challenge the merits even in a moot case, as

respondents did here.

Moreover, the decision removes the incentive to settle

to avoid the setting of precedent where the parties are not

ae

10

confident about the likely outcome. This incentive is

particularly important in public law litigation where the

merits of the case are likely to have far-reaching

consequences. Avoidance of the resolution of controversial

issues by the courts, and particularly sensitive constitutional

issues, is made much more difficult if the merits are thrust

upon the plaintiffs at the fee stage.

Il. THE COURT OF APPEALS’ DECISION

CONFLICTS WITH EXPRESS INSTRUCTIONS

OF THIS COURT TO AVOID DECIDING

CONSTITUTIONAL QUESTIONS UNLESS

NECESSARY.

Beyond this split in authority, what is most distressing

about the decision of the court of appeals is the potential for

damage to the bedrock constitutional principle enshrined in

Article III, Section 2, that federal courts sit to decide “cases”

or “controversies.” While, of course, petitioners’ right to

fees was, and is, a live controversy, the merits of the instant

case were not.

Nevertheless, the court of appeals issued an advisory

opinion and, in perhaps the most disturbing aspect of the

case, struck down as unconstitutional an important section of

a federal statute. By rendering a major <onstitutional

decision in a case in which the merits had bee’ mooted, the

court of appeals violated this Court’s 0! 2peated and

unequivocal command to avoid reaching onstitutional

questions unless it is necessary to decide them See Lyng v.

Northwest Indian Cemetery Prot. Ass’n, 485 U 3. 439, 445-

46 (1988); Three Affiliated Tribes v. Wold <ngineering,

P.C., 467 U.S. 138, 157-58 (1984); Jean v. Nelson, 472

U.S. 846, 854 (1985); Gulf Oil Co. v. Bernard, 452 U.S.

89, 99 (1981); Califano v. Yamasaki, 442 U.S. 682, 692-93

(1979) Ashwander v. TVA, 297 U.S. 288, 346-48 (1936)

(Brandeis, J., concurring.) The court of appeals appeared to

recognize that it should avoid reaching constitutional issues

11

if possible. Petition at A-8 (citing County Court of Ulster

County v. Allen, 442 U.S. 140, 154 (1977)). Nonetheless,

by ignoring the substantial body of case law governing

Statutory fee awards in settled cases, and instead requiring

petitioners to prove that they had relied on a constitutional

and winnable legal theory, the court established a legal test

which virtually requires the issuance of advisory opinions on

sensitive constitutional questions.

The court of appeals’ foray into the constitutional merits

of a statutory provision in a mooted case requires this

Court’s attention for all of the reasons that Article II

prohibits the issuance of advisory opinions and proscribes

limits upon the federal judicial role. This bright-line rule

against advisory opinions serves the commendable policies of

maintaining a proper separation of powers, conserving

judicial resources, and ensuring that cases are presented to

the Court in terms of specific disputes and not hypothetical

legal questions. See Flast v. Cohen, 392 U.S. 83, 96-97

(1968).

When this case reached the court of appeals, the merits

of the original controversy were moot. Two markers of

justiciability were lacking: there was no actual dispute

between adverse litigants on the issue upon which the court

ruled, and there was no likelihood that a court decision in

favor of the petitioners would bring about any change or

effect regarding respondents’ underlying conduct. The only

live controversy remaining in the case was whether

petitioners were entitled to a fee award. On that question,

the parties were unquestionably adverse. However, the

relevant question for the fee award, whether petitioners were

prevailing parties, was not the question on which the court of

appeals rendered its decision. And on that question--the

constitutional validity of the LCCA--there was no actual

controversy.

Moreover, the court of appeal’s decision will not

change the parties’ behavior in any material way.

Respondents have already completed the relevant acts

12

proscribed by the LCCA by distributing a list of lead-lined

water coolers to schools and implementing a plan to assist

schools in remediating lead in their drinking water. Whether

respondents did so because of the lawsuit or independently is

relevant for purposes of the fee award. But the controversy

over fees did not create a live controversy over the

constitutional validity of the LCCA. It was improper for the

court of appeals to use the fee dispute as an opportunity to

examine respondents’ affirmative defense.

All in all, the court of appeals’ decision requires lower

federal courts to entangle themselves unnecessarily in

constitutional questions even where the merits of the case are

no longer justiciable. See United States v. Freuhauf, 305

U.S. 146, 157 (1961). This holding violates fundamental

tenets of constitutional jurisprudence developed by this Court

over many years and should not be allowed to stand.

13

CONCLUSION

For the reasons given above, the petition for a writ of

certiorari should be granted and the Court should require that

the parties brief the Question Presented by this brief.

Respectfully submitted,

Alan B. Morrison

(Counsel of Record)

Colette G. Matzzie

Public Citizen Litigation Group

1600 20th Street, N.W.

Washington, DC 20009

(202) 588-1000

Attorneys for Amicus Curiae

Public Citizen

October 2, 1996