Opposition Brief — King v. Palmer

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(2) MAR 26 1992

No. 91-1370

OFFICE OF THE CLERK

In The

Supreme Court of the United States

OcToBER TERM, 1991

MABEL A. KING,

Petitioner,

V.

Wa crter B. Riptey, Director,

District oF COLUMBIA DEPARTMENT OF CORRECTIONS, AND

Tue District or COLUMBIA,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

JOHN PAyTON,

Corporation Counsel

Cuares L. REIscuec,

Deputy Corporation Counsel

Appellate Division

Donna M. Murasky,

-Assistant Corporation Counsel

Counsel of Record

Counsel for Respondents

Room 305, District Building

1350 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Telephone: (202) 727-6252

TABLE OF CONTENTS

Page

ARGUMENT l

CONCLUSION 3

TABLE OF AUTHORITIES

City of Burlington v. Dague, No. 91-810, cert. granted (U.S.

Jan. 27, 1992) 1.23

Pennsylvania v. Delaware Valley Citizens’ Council for Clean

Air, 483 U.S. 711 (1990) i,2

United States Department of Labor v. Triplett, 494 U.S.

715 (1990) 2

In The

Supreme Court of the United States

OcToBER TERM, 1991

No. 91-1370

MaBEL A. KING,

Petitioner,

Vv.

Wa ctTER B. Riptey, DIRECTOR, ’

District oF COLUMBIA DEPARTMENT OF CORRECTIONS, AND

Tue District or COLUMBIA,

Respondents. '

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

ARGUMENT

The District of Columbia agrees that the issue presented

by this case — whether risk enhancement is available under

the typical fee-shifting statute — should be reviewed by this

Court. Indeed, this Court has already agreed to address this

issue in City of Burlington v. Dague, No. 91-810. In Dague,

this Court will revisit Pennsylvania v. Delaware Valley

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

that has caused the courts of appeals to be hdpelessly in con-

flict over the meaning of fee-shifting provisions in more than

100 federal statutes.

James F. Palmer, who was sued in his official capacity as the Director,

District of Colurnbia Department of Corrections, no longer holds that posi-

tion. The present Director is Walter B. Ridley. The respondenis will be

collectively referred to in this brief as the District of Columbia or the

District.

2

There is no reason, however, to review this case with Dague

simply because this case has a more extensive factual record.’

The United States Court of Appeals for the District of Colum-

bia Circuit sitting en. banc has correctly ruled that risk

enhancement is not available as a matter of law. As a con-

sequence, the factual submissions on which this petition so

heavily relies are irrelevant.

The views of the District of Columbia on the availability

of risk enhancement under the typical fee-shifting statute

have been presented in an amicus brief submitted by the

District and several of the States in Dague. The amicus brief

takes the position that Congress has not authorized risk

enhancement in such fee-shifting statutes. It also takes the

position that, if risk enhancement is available, attorney

affidavits of the sort submitted in Dague and in this case

are not sufficient under United States Department of Labor

v. Triplett, 494 U.S. 715 (1990), to discharge whatever burden

this Court may impose on prevailing plaintiffs to show that

risk enhancement is necessary to ensure that they were able

to secure counsel. The insufficiency of such evidence is

underscored by the fact that here, as in Dague, competent

counsel agreed to undertake representation on a contingent-

fee basis without any assurance of risk enhancement.

Finally, the District notes a significant and telling error

in the petition here. The petition claims that the D.C. Circuit

erred in setting aside the risk enhancement awarded by the

trial court because ‘‘[t]he trial court ruled properly on all the

evidence before it.’’ Cert. Pet. at 29. The petition also claims

that, if this Court should adopt Justice O'Connor's concur-

ring opinion in Delaware Valley 11, **then the decision of the

D.C. Circuit en banc should be reversed and the contingency

enhancement of 100 percent reinstated.’ Cert. Pet. at 30.

On March 9, 1992, this Court entered an order denying petitioner's

motion to expedite consideration of this case to permit it to be argued

with Dague

3

The trial court, however, did not award a risk enhancement

of 100 percent; it awarded a risk enhancement of 50 percent.

See Cert. Pet. App. at 75a. Thus, if the petition is correct

that the trial court acted properly, counsel for petitioner is

entitled to only half of the 100 percent enhancement re-

quested in this Court.

The petition’s serious error in understanding what the trial

court did highlights one other important point. There is not

now a single judge on the D.C. Circuit who supports the

across-the-board 100 percent risk enhancement sought in this

petition. The dissenters in the en banc decision would have

affirmed the trial court’s risk enhancement of 50 percent;

they did not state that this award should be set aside as an

abuse of discretion and replaced by a 100 percent enhance-

ment. See Cert. Pet. App. at 28a-50a.

CONCLUSION

This case should be held in abeyance pending disposition

of Dague. If, as the District has urged, this Court in Dague

should decide that risk enhancement is not available under

the typical fee-shifting statute, the petition for review here

should be denied.

Respectfully submitted

JOHN Payton,

Corporation Counsel

Cuar_es L. REISCHEL,

Deputy Corporation Counsel

Appellate Division

Donna M. Murasky,

Assistant Corporation Counsel

Counsel of Record

Counsel for Respondents

Room 305, District Building

1350 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

Telephone: (202) 727-6252