Petition for Writ of Certiorari — Rock Creek Ltd. Partnership v. California State Water Resources Control Board

Supreme Court, us

o 8-786 [5

No. __—= | Navy. 3 sz

IN THE ; OFFICE OF THE CLERK

Supreme Court of the Gnited States-

OCTOBER TERM, 1992

ROCK CREEK LIMITED PARTNERSHIP,

Petitioner,

Vv.

STATE WATER RESOURCES CONTROL BOARD, et al,

Respondents.

Petition for a Writ of Certiorari

to the United State Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

TIMOTHY B. DYK

(Counsel of Record)

SARAH W. PAYNE

JONES, DAY, REAVIS

Washington, D.C. 20005

Los Angeles, CA 90013

(213) 489-3939

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether attorneys’ fees are available under 42 U.S.C.

§ 1988 for administrative and other proceedings that are related

to an action under 42 U.S.C. § 1983, when those proceedings are

not required by statute or by court order?

2. Whether, if administrative or other collateral proceedings

are conducted pursuant to a district court stay of the proceedings

under 42 U.S.C. § 1983, attorneys’ fees are allowable?

3. Whether attorneys’ fees are available under 42 U.S.C.

§ 1988 for efforts expended in a district court Section 1983 action

when the ultimate relief is formally obtained in collateral

administrative or other proceedings?

(i)

(ii)

PARTIES TO THE PROCEEDING

There are no petitioners or respondents in addition to those

named in the caption and in footnote 1.

TABLE OF CONTENTS

Page

RPRPRED AUNDIND PIRES oC te es i

PARTIES TO THE PROCEEDING ..............0.4. ii

pp he ey 8 yp. re iv

ee eee eee 2

eg fee ss We ke 8 yk kA Wok bw 8 2

ee Gyo |: rae 2

I tre eee ae xg Gb cw waka dO 2

REASONS FOR GRANTING THE WRIT .......... 9

I. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THIS COURT .............. 11

Il. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF OTHER CIRCUITS .......... 15

Ii]. THE PROPER APPLICATION OF SECTION

1988 TO COLLATERAL PROCEEDINGS IS

AN IMPORTANT AND RECURRENT ISSUE .... 20

a e 22

(ili)

neces

(iv)

TABLE OF AUTHORITIES

Page

Cases

Arriola v. Harville, 781 F.2d 506 (Sth Cir.),

cert. denied, 479 U.S. 820 (1986) ............ 16, 17

Bobbitt v. Paramount Cap Mfg. Co., 942

pf eof fe | ee eee ee ee 19

California ex rel. State Water Resources Bd. vy. FERC,

877 F.2d 743 (9th Cir 1989), affd, 495 U.S.

IIE ec eg hy he a aa ge eae ae ae

California v. FERC, 495 U.S. 490 (1990) .......... 2,7

California v. FERC, No. 87-7538 (9th Cir. June 6,

nat aa ce ee ee a a ee Oe Re 6

Chrapliwy v. Uniroyal, Inc., 670 F.2d 760

(7th Cir. 1982), cert. denied, 461 U.S. 956 (1983) ... 17

Delaware Valley Citizens Council for Clean Air

v. Pennsylvania 581 F. Supp. 1412 (E.D. Pa. 1984) .. 14

Gerena-Valentin v. Koch, 739 F.2d 755 (2d Cir.

a ere a ern 2 arr aa ey re 16, 17

Golden State Transit Corp. v. City of

Los Angeles, 493 U.S. 103 (1989) .............. 10

Jenkins v. Missouri, 862 F.2d 677 (8th Cir. 1988) ..... 19

Lampher v. Zagel, 755 F.2d 99 (7th Cir. 1985) ....... 17

Manders v. Oklahoma ex rel. Dep’t of

Mental Health, 875 F.2d 263 (10th Cir. 1989) ...... 15

McDonald v. Armontrout, 860 F.2d 1456

et ae ee ae eer ere » 19

New York Gaslight Club, Inc. v. Carey,

Oe We PE 6s bk he hee ea as 9, 11, 12

North Carolina Dep’t of Transportation v. Crest

Street Community Council, Inc., 479 U.S. 6

Ae eee eal ee Ne ea a ky 6 a 14

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 546 (1986) ......... 9, 13, 14

Quinn v. Missouri, 891 F.2d 190 (8th Cir. 1989) ...... 19

Stathos v. Bowden, 728 F.2d 15 (ist Cir. 1984) ....... 17

a TT

(v)

TABLE OF AUTHORITIES - Continued

Page

Sullivan v. Commonwealth of Pennsylvania

Dep't of Labor and Indus. , 663 F.2d 443,

447 (3d Cir. 1981), cert. denied, 455

caer Cea asa Me el dace, Sk Sha a ES 18

Sullivan v. Hudson, 490 U.S. 877 (1989) .......... 9, 15

Webb v. Dyer County Board of Education,

WF a ee 6 6S a SO ah he EN ee 12

Administrative Decisions and Orders

Order Denying Rehearing, 41 Fed. Energy Reg.

Comm’n Rep. (CCH) 4 61,198 (1987) ........... 5,6

Order in Response to Request for

Declaratory Order and Providing for Hearing,

38 Fed. Energy Reg. Comm’n Rep. (CCH) 4 61,240 (1987) 4

Order Issuing License (Major), 23 Fed.

Energy Reg. Comm’n Rep. (CCH) ¢ 62,137 (1983) ..... 3

Statutes

Civil Rights Attorney’s Fees Awards Act

of 1976, 42 U.S.C. § 1988 (1988) ............ passim

iS Ue. © Me CD oki ook we eed eee 20

SF Se, ee E's os oe he ks on ke See 20

Be See IE ss 0h cele a es See 2

ee Dek ou he 4 ee 15, 20

Tp as Oe es oh he ke ee eee 16

FS OE ee CE + ok oS ea eR ke oo 16, 20

Te Was ee ree ewe ek passim

eR me | re eer 20

(vi)

TABLE OF AUTHORITIES - Continued

Page

42 U.S.C. § 2000e-S(k) (1988), as amended,

Pub.L. 102-166, 105 Stat. 1075 (1991) ............ 20

Legislative Materials

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976),

reprinted in 1976 U.S.C.C.A.N. 5908 ........... 21

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No.

_—_

ROCK CREEK LIMITED PARTNERSHIP,

Petitioners,

Vv.

STATE WATER RESOURCES CONTROL BOARD, et al.,

Respondents.’

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Rock Creek Limited Partnership ("Petitioner") respectfully

petitions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit in this case.

' Additional Respondents are Darlene E. Ruiz, Edwin H. Finster, W.

Don Maughan, Danny Walsh and Eliseo V. Samaniego, who were the

individual members of the State Water Resources Control Board at the

relevant times.

No party herein is a corporation, and there is no parent company or

subsidiary required to be listed herein under Supreme Court Rule 29.1.

2

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Ninth Circuit (App. 1a) is reported at 972 F.2d 274. The opinion

of the United States District Court for the Eastern District of

California is unreported (App. 13a).

JURISDICTION

The court of appeals entered its judgment on August 5, 1992.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1)(1988).

STATUTES INVOLVED

The Civil Rights Attorney’s Fees Awards Act of 1976, 42

U.S.C. § 1988 (1988), provides in pertinent part as follows:

In any action or proceeding to enforce a provision of

sections 1981, 1982, 1983, 1985 and 1986 of this title, title

IX of Public Law 92-318, or title VI of the Civil Rights Act

of 1964, the court, in its discretion, may allow the

prevailing party, other than the United States, a reasonable

attorney’s fee as part of the costs.

STATEMENT

In California v. FERC, 495 U.S. 490 (1990), after district

court proceedings in a Section 1983 action had been stayed

pursuant to court order, Petitioner prevailed on the underlying

3

merits of this litigation.” This Court held that the Federal Energy

Regulatory Commission ("FERC") had properly found that the

State of California could not bar Petitioner from operating under

the terms of its federal license. This case presents the question of

whether attorneys’ fees are available under Section 1988 for the

fees incurred in connection with such administrative proceedings

even though those proceedings were not mandated by either

Statute or court order.

The Underlying Litigation

The controversy underlying the attorneys’ fee claim arose from

Petitioner’s construction and operation of a small-scale

hydropower project pursuant to a license issued by FERC on

April 29, 1983. The FERC license set forth various operating

conditions for the project, including the "bypass flows" which

would be required in order to protect the stream’s fishery (Order

Issuing License (Major), 23 Fed. Energy Reg. Comm’n Rep.

(CCH) { 62,137 (1983)).* The plant was constructed, at a cost

of over $4.5 million, to operate most efficiently at the bypass

levels set in the FERC license. (Excerpts of Record filed with

Ninth Circuit ("ER") Tab 44 6; Supplemental Excerpts of

Record filed with Ninth Circuit ("ES") 18).

* The circumstances surrounding the project and its early licensing

history are described in detail in the Ninth Circuit’s opinion in

California ex rel. State Water Resources Bd. v. FERC, 877 F.2d 743

(9th Cir. 1989), and this Court’s affirmance of that decision at 495 U.S.

490 (1990). Only the facts pertinent to the attorneys’ fees claim are set

forth above.

* Bypass flows represent the amount of water which must remain in the

streambed during project operation and which cannot be diverted for

power generation.

|

4

After initially issuing water appropriation permits consistent

with the FERC license, in 1986 the Respondent California State

Water Resources Control Board (the "State Board") convened

hearings to determine whether, in order to protect the stream’s

fishery, Petitioner should be ordered to provide substantially

higher bypass flows than FERC had established. (App. 2a).

When the State Board rejected Petitioner’s objections to any

impairment of its federal license, Petitioner petitioned FERC for

a declaratory ruling that the state could not bar Petitioner from

operating under its federal license. (App. 2a). In March 1987

FERC issued a declaratory order ruling that the attempted state

regulation was invalid and requiring Petitioner to observe the

federal bypass flow requirement. (Order in Response to Request

for Declaratory Order and Providing for Hearing, 38 Fed.

Energy Reg. Comm’n Rep. (CCH) ¢ 61,240 (1987)).

Although the State Board received a copy of the FERC

declaratory order on March 16, 1987, three days later it issued

Order 87-2, which was directly inconsistent with the FERC order

and required Petitioner to observe bypass flow requirements as

much as four times higher than FERC’s. (ER Tab 39; ER Tab 41

{ 14; App. 2a-3a).

Two weeks later, on April 9, 1987, the Petitioner filed the

civil action below against the State Board, raising claims, inter

alia, under the civil rights laws, 42 U.S.C. § 1983. In the

Section 1983 claim, the Petitioner alleged that Order 87-2

impaired the Petitioner’s right to operate the project in accordance

with its FERC license and the Federal Power Act, and constituted

an unconstitutional taking of private property for public use.

Petitioner sought to enjoin the State Board from enforcing Order

87-2 and from regulating, or asserting jurisdiction to regulate,

project operations in a manner inconsistent with the FERC

license. Petitioner also requested an award of reasonable

attorneys’ fees and costs under 42 U.S.C. § 1988. (ER Tab 1).

Together with the complaint, Petitioner filed motions for a

temporary restraining order and for a preliminary injunction,

—————————————

5

seeking temporary relief against the enforcement of Order 87-2.

(App. 3a)

Simultaneously with, or immediately after, the filing of this

suit, the State Board moved to intervene in the Petitioner’s FERC

license proceeding, and for rehearing of the FERC declaratory

order on the ground that FERC’s assertion of exclusive authority

to establish bypass flows was inconsistent with federal law. (ER

Tab 41 ¢ 15; ES 93-4; Order Denying Rehearing, 41 Fed. Energy

Reg. Comm’n Rep. (CCH) 4 61,198 (1987)). FERC granted

intervention on April 28, 1987, and briefing of the merits

proceeded thereafter. (ES 13).

Meanwhile, in the litigation below, the parties on April 16,

1987 stipulated, and the district court ordered, that Petitioner

withdraw its motion for a temporary restraining order, and that

the State Board refrain from enforcing Order 87-2 pending

hearing on Petitioner’s motion for a preliminary injunction. (ER

Tab 11). The latter motion came for hearing on May 18, 1987.

(Reporter’s Transcript filed with Ninth Circuit ("Tr.") 1-22). The

district court ruled that drought conditions (which precluded

project operation under any bypass flow requirement) rendered a

preliminary injunction unnecessary at that time, but invited

Petitioner to reapply should conditions change and enforcement of

Order 87-2 appear imminent. (Tr. 21). The court urged the

parties to schedule summary judgment briefing of the merits for

September 1987, in view of the likelihood that October would

bring sufficient rain to make the project operable under the terms

of the FERC license. /d. Pursuant to that suggestion,

cross-motions for summary judgment on substantially all claims

pleaded were fully briefed and were argued on September 18,

1987, but no decision was immediately forthcoming. (App. 4a).

On November 20, 1987, FERC denied the State Board’s

motion for rehearing of the declaratory order, and on

December 21, 1987, the State Board petitioned the Court of

Appeals for the Ninth Circuit for review of FERC’s rulings.

x

6

(Order Denying Rehearing, 41 Fed. Energy Reg. Comm’n Rep.

(CCH) ¢ 61,198 (1987); ES 135-41; California v. FERC, No.

87-7538 (9th Cir. June 6, 1989)).

The district court, which had still not ruled on the

seven-month-old summary judgment motions, then indicated that

it would stay the Section 1983 action if the state would agree to

forego enforcement during the pendency of the FERC appeal.

(ES 143). Accordingly, the State Board on April 14, 1988, wrote

the district court as follows:

1. For the duration of the appeal in the State of California

v. Federal Energy Regulatory Commission, 9th Circuit

Docket No. 87-7538 action, the State Board agrees not to

exercise its enforcement powers . . . against the [Petitioner]

for any violation of the bypass flows set forth in the State

Board’s Water Right Order No. 87-2 for the protection of

the fishery resources of Rock Creek.

2. The State Board agrees to the waiver of enforcement

authority as described in paragraph 1 solely for the purpose

of obtaining a stay of the trial court proceedings in this

action and, thus, encouraging the prompt resolution of the

[appellate proceeding].

(ES 143-44).

On April 22, 1988, the district court entered an order noting

that the appellate proceeding "involves the same preemption issue

raised by the instant action," and further noting that the "state has

agreed to this waiver [of enforcement] for the sole purpose of

obtaining a stay in the instant action." (ES 146-47). The court

then vacated the cross-motions for summary judgment and ordered

that all proceedings be stayed pending resolution of the appeal

from the FERC order. (/d.)

7

On June 6, 1989, the Court of Appeals for the Ninth Circuit

ruled in Petitioner’s favor on the appeal. California ex rel. State

Water Resources Bd. v. FERC, 877 F.2d 743 (9th Cir. 1989),

aff'd, 495 U.S. 490 (1990). The State Board petitioned this Court

for a writ of certiorari. (ER Tab 58). The parties stipulated in

the action below to a continuation of the stay pending a decision

on the petition for certiorari, noting that "[tJhe nature of Supreme

Court action on the State’s petition will largely govern whether

and to what extent the stay of proceedings in this case should be

continued in effect after that time." (/d.)

This Court granted certiorari on December 4, 1989. 493 U.S.

991. On May 21, 1990, after briefing and argument, it held that

the State Board had no authority to interfere with Petitioner’s

operation of the project at the bypass flow levels specified in the

FERC license. This Court agreed that “allowing California to

impose the challenged requirements would be contrary to

congressional intent regarding the Commission’s licensing

authority and would ‘constitute a veto of the project that was

approved and licensed by FERC.'" California v. FERC, 495

U.S. 490 (1990).

Following this Court’s decision, the State Board at last

abandoned its four-year effort to regulate the project, withdrew

Order 87-2, and issued Order WR 90-10, which amended the

project’s water appropriation permits to conform with the bypass

levels ordered by FERC. (ES 149-53).

On September 14, 1990, the district court granted the State

Board’s motion to dismiss the underlying case as moot, but

retained jurisdiction to hear Petitioner’s motion for an award of

attorneys’ fees. (ER Tabs 68, 69).

The Decisions Below on Fetitioner’s Fee Petition

After briefing, the motion for attorneys’ fees was heard on

January 22, 1991. (Tr. 70-76). The trial judge limited

8

Petitioner’s presentation to whether "there [is] any causative

relationship between this lawsuit and the result under which you

were prevailing party in some other lawsuit." (Tr. 60). After

allowing only a brief argument by Petitioner, the district court

indicated that the parallel litigation in California v. FERC was

“part of the same dispute, but it has nothing to do with this

litigation." (Tr. 63). Ruling from the bench, the district court

concluded that Petitioner was not a “prevailing party" within the

meaning of 42 U.S.C § 1988, even though, concededly,

"[Petitioner] has received the relief it sought in this case [i.e.,] the

removal of the threat posed to [Petitioner’s] federal rights by the

California State Water Resources Control Board’s order." (Tr.

64-65). On April 1, 1991, Petitioner appealed. (ER Tab 87).

On appeal, the Ninth Circuit bifurcated its consideration of the

fee claim, addressing "that [part] relating to the activities before

FERC, including the subsequent appeals" separately from "that

[part] relating to efforts before the district court in this action."

(App. 6a). With respect to the latter, the court observed that

"[t]he Board did alter its conduct under the pressure of the lawsuit

to the extent that Rock Creek did not need to obtain a preliminary

injunction." (App. 12a). With respect to this portion of the fee

application, the court remanded for further proceedings.‘

With respect to the remainder of Petitioner’s fee claim, the

Ninth Circuit in effect affirmed the district court’s decision to

reject any fee award for “activities before FERC, including

subsequent appeals." (App. 6a-10a). In denying fees for the

administrative proceeding, the court of appeals expressly endorsed

the district court’s "causation" analysis, elaborating that "[wJhen

[Petitioner] became aware of the Board’s intransigent attitude

* Despite its conclusion, the court simply remanded the fragment of the

fee claim pertaining to "efforts in the Section 1983 action only," holding

merely that “[iJt is possible that the [fees incurred in the] Section 1983

action [were] causally related to the practical outcome realized and the

non-enforcement of the illegal [State Board] order." (App. 12a).

a

9

about its authority to override the FERC decision, it had at least

two choices" -- "to attempt to get a definitive response from

FERC," or “to proceed directly to court." (App. 9a, 10a).

While acknowledging that Petitioner "cannot be faulted tactically

for going to FERC first, as it did," and while further

acknowledging that resort to FERC “became the vehicle for final

resolution" only when "California intervened on behalf of the

Board, and then appealed," the court of appeals nonetheless

concluded that fees were unavailable since "[t]he two avenues

open to [Petitioner had been] independent." (App. 9a). The

court elaborated that the two avenues here simply were not

sufficiently “interrelated and complementary," because "approach

to FERC was not a condition precedent to [Petitioner’s] entry to

federal court," and because the FERC decision was not "required

by . . . remand from the district court." (App. 7a-8a, 9a).

In so holding, the court of appeals was obliged to distinguish

a line of decisions from this Court "sustain[ing] awards of

attorneys’ fees in administrative or state court proceedings outside

the federal action itself." (App. 10a). Thus, the court noted that

New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980), in

contrast to this case, involved a statute - Title VII — which

contained statutory requirements for exhaustion of administrative

remedies. (App. 7a, 9a). Sullivan v. Hudson, 490 U.S. 877

(1989), was viewed as not authoritative because the resort to

administrative proceedings occurred pursuant to court order.

(App. 7a-8a, 9a). Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air, 478 U.S. 546 (1986), was said to be

distinguishable on the ground that it involved administrative work

which "was required before the party could succeed in federal

court." (App. 8a-9a).

REASONS FOR GRANTING THE WRIT

This case involves a question of importance under a variety of

federal fee-shifting statutes: whether attorneys’ fees may be

10

awarded for closely related litigation which is required neither by

statute nor by court order.

As discussed below, the decision of the Ninth Circuit conflicts

directly with decisions of this Court over the past twelve years.

Those cases hold that where, as here, collateral proceedings are

intimately tied to resolution of the underlying litigation, and are

necessary to the results Congress sought to promote through fee

shifting, a fee award for work done in the collateral proceedings

is required.°

The Ninth Circuit’s decision, moreover, perpetuates a conflict

among the circuits as to whether such fees for collateral

proceedings may be recovered whenever the necessary "intimate

tie" exists, or only when the administrative proceedings are

required by statute or court order. Decisions of the First, Third

and Seventh Circuits impose no requirement that the collateral

proceedings be required by statute or court order, while the Ninth

Circuit here and the Second, Fifth and Tenth Circuits hold that

fees are recoverable only when there is a statutory exhaustion

requirement or court order. The decision of the Ninth Circuit and

other circuits following the same rule will severely discourage

plaintiffs from voluntarily seeking resolution of their claims

before administrative agencies or other alternative fora, and

burden the federal courts with disputes that could more easily and

expeditiously be resolved by an administrative agency or

non-federal forum. The issue is important in a wide variety of

federal litigation, and should be resolved by this Court.

° The Federal Power Act clearly grants Petitioner rights enforceable

under 42 U.S.C. § 1983. See Golden State Transit Corp. v. City of Los

Angeles, 493 U.S. 103 (1989).

1]

I. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THIS COURT

The Ninth Circuit’s decision is directly inconsistent with

decisions of this Court.

This Court first considered the issue of recovery of attorneys’

fees for collateral proceedings in New York Gaslight Club, Inc. v.

Carey, 447 U.S. 54 (1980). In Carey, the plaintiff filed a charge

with the Equal Employment Opportunity Commission, which was

then forwarded to the New York State Division of Human Rights

as required by § 706 of Title VII. 447 U.S. at 56-57. Although

Title VII’s period of "mandatory" federal deferral lasts only 60

days, plaintiff nonetheless pursued her state remedies over a three

year period to a successful conclusion. Jd. at 57-59, 62-64.

During the pendency of these proceedings, plaintiff commenced

a Title VII action in federal court. Jd. at 58. Upon the

conclusion of the state proceedings, all that then remained of

plaintiff's federal action was her prayer for an award of attorneys’

fees under Title VII’s fee-shifting statute, a provision worded

virtually identically to Section 1988. Jd. at 59.

Carey held that Title VII’s fee shifting statute required an

award of fees for work performed in administrative and state

court proceedings, without regard to the fact that the judgment on

the merits of the employment discrimination claim actually had

been obtained in the state administrative proceeding. 447 U.S. at

61-66, 68. Carey reasoned that "Congress’s use of the broadly

inclusive disjunctive phrase ‘action or proceeding’ [in the fee

shifting provision] indicates an intent to subject the losing party

to an award of attorney’s fees and costs . . . for administrative

proceedings"; and that that provision was clearly intended to

"facilitate the bringing of discrimination complaints" so as to

“vindicat[e] a policy ‘of the highest priority.'" Jd. at 61, 63

(citations omitted).

12

Furthermore, while Carey buttressed its holding with

references to Title VII’s "interrelated scheme" that "mandat[es]"

initial resort to state remedies, the Court expressly noted that the

period of mandatory deferral to state remedies lasted for only 60

days. 447 U.S. at 64-65. Nonetheless, the Court affirmed the

award of fees for the entire three year state proceeding, which

represented work consuming over eighty percent of the time

Carey’s counsel spent on the merits. Jd. at 59, 68-70. Clearly,

the compensation awarded in Carey included a great deal of work

that was in no way "mandatory" when viewed by the standards

applied by the Ninth Circuit below.

The Ninth Circuit, however, read Carey narrowly on the

authority of Webb v. Dyer County Board of Education, 471 U.S.

234 (1985). In Webb, the plaintiff, a teacher alleging race

discrimination, filed a Section 1983 action after five years of

optional and unsuccessful litigation he had brought under state

tenure law before a state administrative agency. 471 U.S. at

235-37. After the federal suit terminated in a consent order,

plaintiff sought attorneys’ fees under Section 1988 for the entire

administrative action as well as for the two-year district court

litigation. Jd. at 237-38, 243. The Court affirmed denial of fees

for the administrative proceeding, noting that the civil rights acts,

unlike Title VII, do not expressly require initial pursuit of state

remedies prior to bringing of federal court proceedings; and that,

accordingly, "[bJecause [ 42 U.S.C.] § 1983 stands as as an

‘independent avenue of relief,'" the administrative proceeding

"simply [did] not have the same integral function under § 1983

that state administrative proceedings have under Title VII."

471 U.S. at 240-41 (citation omitted). In Webb, however, the

work left uncompensated wholly predated the filing of the federal

civil rights action, and the proceedings were optional, totally

unsuccessful, and brought to enforce state tenure rights rather

than any right conferred by federal law. Jd. at 236-37, 239,

241-43.

13

Moreover, even if Webb engendered lingering doubts about the

continued applicability of fee shifting statutes to nonmandatory

collateral litigation, the Ninth Circuit’s reading of Webb simply

cannot be reconciled with Pennsylvania v. Delaware Valley

Citizens’ Council for Clean Air, 478 U.S. 546 (1986). In

Delaware Valley, plaintiff brought suit under the Clean Air Act

against the Commonwealth of Pennsylvania to require the

Commonwealth to implement a vehicle emission inspection and

maintenance program as required by the Act. A consent decree

eventually was entered requiring the Commonwealth to establish

an emissions program in ten counties and for the Pennsylvania

Department of Transportation to seek legislation instituting a

system under which the Commonwealth would contract with

garage owners for the establishment of inspection stations. If the

legislature failed to approve such a system, then the decree

required the Department to promulgate regulations allowing the

Commonwealth to certify a number of private garage facilities to

perform the inspections. Implementation of the decree, however,

proceeded less than smoothly, and plaintiffs participated in

extensive post-decree litigation in various fora, for which they

subsequently sought an award of attorneys’ fees under the Clean

Air Act’s fee shifting provision. 478 U.S. at 549-53.

The Commonwealth challenged the district court’s grant of

fees, to the extent it pertained to what were alleged to be "only

tangentially related state and federal administrative proceedings."

478 U.S. at 554. Specifically, fees had been awarded following

entry of the decree for, inter alia, plaintiffs’ monitoring of the

defendant’s performance of the decree; their submission of

comments on proposed state regulations; their opposition to

attempts by defendant during hearings before the Environmental

Protection Agency to persuade that agency effectively to limit the

reach of the consent decree; and their filing of an amicus brief in

a collateral state proceeding brought by third parties challenging

the State’s right to enter into the consent decree. Jd. at 550,

552-53. The Court affirmed the award of fees for all of this

work.

14

None of the work at issue in Delaware Valley was required by

statute or court order. 478 U.S. at 550, 552-53.° Indeed,

nothing in the opinion suggests that the Court considered a

statutory or judicial "mandate" as even a factor for consideration

in deciding on a fee petition. Instead of adopting such a rigid and

arbitrary test, the Court in Delaware Valley reasoned that,

"[a]lthough it is true that the proceedings involved . . . were not

‘judicial’ in the sense that they did not occur in a courtroom or

involve ‘traditional’ legal work such as examination of witnesses

or selection of jurors for trial, the work done by counsel in these

two phases was as necessary to the attainment of adequate relief

for their client as was all of their earlier work in the courtroom

which secured Delaware Valley’s initial success." 478 U.S. at

558. This reasoning is as fully applicable to the present case as

it was in Delaware Valley. Indeed, in construing the Clean Air

Act’s fee-shifting provision, Delaware Valley expressly relied on

the virtually identical language and purposes of Section 1988. Jd.

at 559. The Ninth Circuit’s decision is fundamentally at odds

with Delaware Valley.

The Ninth Circuit’s approach is inconsistent as well with North

Carolina Dep’t of Transportation v. Crest Street Community

Council, Inc., 479 U.S. 6, 15 (1986), in which the Court

articulated a broad test for the allowance of attorneys’ fees,

observing that "[a] court hearing one of the civil rights claims

covered by § 1988 may still award attorney’s fees for time spent

on administrative proceedings to enforce the civil rights claim

prior to the litigation. See Carey, supra (so holding under

identical language of Title VII."

* See also Delaware Valley Citizens Council for Clean Air v.

Pennsylvania, 581 F. Supp. 1412, 1429 (E.D. Pa. 1984)(expressly

noting that plaintiffs sought compensation for "activities their attorneys

performed in state court litigation and in regulatory actions, such

activities not directly required by this court’s Orders").

|

15

Finally, the Ninth Circuit’s decision is inconsistent with

Sullivan v. Hudson, 490 U.S. 877 (1989), in which the Court

synthesized the teachings of its fee shifting cases to articulate the

appropriate standard for determining the applicability of fee

shifting statutes to collateral litigation. In Sullivan, the Court

concluded that attorneys’ fees should be awarded to a social

security claimant under the Equal Access to Justice Act, 28

U.S.C. § 2412 (1988), for legal services performed during an

administrative remand. While the case thus involved a collateral

proceeding that was "mandated" by court order, the Court’s

discussion of its precedents was not confined to such facts.

Instead, this Court observed that "[oJur past decisions interpreting

other fee-shifting provisions make clear that where administrative

proceedings are intimately tied to the resolution of the judicial

action and necessary to the attainment of the results Congress

sought to promote by providing for fees, they should be

considered part and parcel of the action for which fees may be

awarded." 490 U.S. at 888.

Certiorari should be granted to resolve the conflict between the

decision below and this Court’s decisions.

Il. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF OTHER CIRCUITS

Despite this Court’s decisions approving recovery under fee

shifting statutes for closely related litigation, a conflict has

developed among the circuits as to the availability of fees where

such proceedings are nonmandatory.

On the one hand, the position taken by the Ninth Circuit below

-— that fees are not awardable absent statutory exhaustion

requirements or a mandatory court order -- is shared by at least

three other circuits. For example, the Tenth Circuit in Manders

v. Oklahoma ex rel. Dep’t of Mental Health, 875 F.2d 263 (10th

Cir. 1989), held that fees could not be awarded under Title VII

for relief obtained in an optional grievance procedure created by

16

State statute because those proceedings were not mandated by

Statute: "Whether employees pursue the internal grievance

procedure or not, they at all times have the right to file their cases

with the Oklahoma Human Rights Commission, the Equal

Employment Opportunity Commission or the Ethics and Merit

Commission. Thus, the procedure is an enforcement mechanism

additional to, not a precondition of, Title VII enforcement, and is

not an integral part of the Title VII scheme." 875 F.2d at 267.

The Fifth Circuit in Arriola v. Harville, 781 F.2d 506 (Sth Cir.),

cert. denied, 479 U.S. 820 (1986), and the Second Circuit in

Gerena-Valentin v. Koch, 739 F.2d 755 (2d Cir. 1984), applied

essentially the same analysis with respect to the fee-shifting

provision of the Voting Rights Act.’ In Arriola and

Gerena-Valentin, plaintiffs successfully sued to enjoin

implementation of redistricting plans that had not been approved.

The plaintiffs in both Arriola and Gerena-Valentin then

participated in preclearance reviews before the Justice

Department, seeking changes to be made in the localities’

proposed plans. It was these efforts for which plaintiffs sought,

unsuccessfully, to obtain an award of attorneys’ fees under the

Act. In denying fees, Gerena-Valentin distinguished Carey on the

ground that in that case, "the plaintiff was required by statute to

exhaust state and local administrative remedies before resorting to

7 The Voting Rights Act requires state and local governments to obtain

federal governmental approval of any change iz a previously approved

election plan, through, inter alia, submission of the proposed changes

to the Justice Department for "preclearance." 42 U.S.C. § 1973c

(1988). Where a locality proposes to conduct an election pursuant to an

unapproved plan, the Act permits institution of a civil action to enjoin

implementation of the plan. Jd. Attorneys’ fees are available under the

Act to prevailing parties, other than the United States, "[iJn any action

or proceeding to enforce the voting guarantees of the fourteenth or

fifteenth amendment." 42 U.S.C. § 1973l(e)(1988).

a “

17

litigation." 739 F.2d at 761. See also Arriola, 781 F.2d at

510-11 n.3.°

On the other hand, the First, Third, and Seventh Circuits do

not view the absence of a statutory exhaustion requirement or

court order as barring attorneys’ fees for closely-related litigation.

Thus, in Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 (7th Cir.

1982), cert. denied, 461 U.S. 956 ( 1983), a Title VII class action,

plaintiffs sought attorneys’ fees for their efforts "in several court

and administrative proceedings, involving the . . . Departments

of Labor, Defense and the Interior," to have the defendant

employer debarred from federal contracting under Executive

Order 11246.” 670 F.2d at 763. Plaintiffs launched these efforts

when the Title VII action stalled following the death of the district

court judge. Jd. The Seventh Circuit awarded fees for the

debarment initiatives, specifically rejecting the contention that fees

are available only for "mandatory procedures," and noting that

"the issues and factual background were the same for both the

Title VII action and the enforcement of Executive Order 11246."

Id. at 766. See also Lampher v. Zagel, 755 F.2d 99 (7th Cir.

1985) (following Chrapliwy).

Similarly, in Stathos v. Bowden, 728 F.2d 15 (1st Cir. 1984),

the First Circuit determined that fees should be awarded under

* Arriola and Gerena-Valentin both reserved the issue of whether fees

are available for "services rendered in a preclearance submission that

bear directly on the issues in an independent lawsuit and where that

work is required and necessary to resolve the issues of the independent

lawsuit." Arriola, 781 F.2d at 507 n.1 (emphasis added). See also

Gerena-Valentin, 739 F.2d at 759.

” Executive Order 11246 prohibits federal contractors from dis-

criminating against employees on the basis of race, sex, or other

impermissible grounds. The contractor can be debarred from its

contracts and declared ineligible for future contracts in the event of

noncompliance with the Order. 670 F.2d at 763 n. 1.

— a i i

18

Section 1988 in a sex discrimination case for work plaintiffs

performed in defending a state declaratory judgment action

brought by defendants under state antidiscrimination laws seeking

a determination that defendants had not engaged in discrimination.

The First Circuit noted that "[tJ]he issues in the state suit were

virtually the same as in the federal case." 728 F.2d at 22. Once

again, there was no statutory exhaustion requirement and no court

order committing the litigants to the collateral forum. Instead, the

court of appeals reasoned that fees should be awarded because of

the virtual identity of the issues and because "plaintiffs were

forced to defend [the state court suit] lest they lose their § 1983

claim in the federal courts through collateral estoppel." /d.

Accordingly, the court of appeals concluded that "defense of the

State court action was a necessary part of plaintiffs’ efforts to

achieve their § 1983 goal [since] [i]t formed part of an

‘action... to enforce a provision of sections . . . 1983 [and]

1985... .'" dd. (citation omitted).

The Third Circuit has also held that fees under Title VII shouid

be awarded for work undertaken in a collateral proceeding -- an

arbitration under the nondiscrimination provision of a collective

bargaining agreement -- even though that proceeding involved “an

enforcement mechanism additional to, and not required by, Title

VII’s enforcement scheme." Sullivan v. Commonwealth of

Pennsylvania Dep’t of Labor and Indus. , 663 F.2d 443, 447 (3d

Cir. 1981), cert. denied, 455 U.S. 1020 (1982). Sullivan stressed

that "an award of attorneys’ fees under [Title VII] and its

companion provision, 42 U.S.C. § 1988, is not limited to the

situation in which the plaintiff prevails by a judgment in the Title

VII action itself, by a favorable resolution of state administrative

proceedings, or by a judgment in any other civil rights action.

Rather . . . attorneys’ fees are available whenever a civil rights

action ultimately results in the plaintiff's having obtained relief,

even when there are several links in the chain of events

connecting the claim brought and the relief granted." 663 F.2d

at 447.

19

Finally, the Eighth Circuit's rulings are in hopeless conflict

regarding the availability of fees for nonmandatory collateral

proceedings. Some decisions affirm such fee awards. Bobbitt v.

Paramount Cap Mfg. Co., 942 F.2d 512, 514 (8th Cir.

1991)(Title VII action; fees awarded for work performed in

unemployment benefits proceeding because this work was "useful

and substituted for work at the judicial stage that would have been

ordinarily necessary to a successful outcome of Bobbit’s civil

rights claim"); McDonald v. Armontrout, 860 F.2d 1456, 1462

(8th Cir. 1988)(class action challenging constitutionality of prison

conditions; Section 1988 fees awardable for investigative work

arising out of a previous habeas corpus proceeding, since the

work “obviated the need for comparable work in" the civil rights

proceeding, and since it "contributed directly to [the] successful

outcome."); see also Jenkins v. Missouri, 862 F.2d 677 (8th Cir.

1988)(affirming an award of attorneys’ fees under Section 1988

for plaintiffs’ unsuccessful lobbying to obtain passage of tax

increases to fund a school desegregation remedy, over the school

district’s objection that the district, and not the plaintiffs, had

submitted the levy proposals to the voters; the fee claimants had

“stood to benefit" from their lobbying and had “performed a

valuable and not unexpected role" in the election).

In another case, however, the Eighth Circuit has concluded that

fees are not available under Section 1988 for collateral litigation

where there was no exhaustion requirement. Quinn v. Missouri,

891 F.2d 190 (8th Cir. 1989)(denying a motion for rehearing of

a denial of an attorneys’ fees award, in view of the lack of any

exhaustion requirement, where (i) the Section 1983 plaintiffs

challenged the constitutionality of a provision of the Missouri

Constitution; (ii) defendants filed a declaratory judgment action in

State court for construction of the provision; (iii) plaintiffs

counterclaimed in the state court action, and litigated the issue

successfully to this Court; and (iv) the federal district court was

ordered to abstain and to dismiss the civil rights action).

a

20

These decisions reflect a deep division among the circuits

regarding the proper interpretation of the Court’s holdings

concerning the availability of attorneys’ fees for nonmandatory

collateral proceedings. The conflict can only be resolved by this

Court.”®

Ill. THE PROPER APPLICATION OF SECTION 1988

TO COLLATERAL PROCEEDINGS IS AN

IMPORTANT AND RECURRENT ISSUE

Many other fee-shifting statutes contain virtually identical

wording to that in Section 1988. Section 1988 was patterned after

the attorney’s fees provisions in Titles II and VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000a-3(b) (1988), 42 U.S.C.

§ 2000e-S(k) (1988), as amended Pub.L. 102-166, 105 Stat. 1075

(1991). The wording of Section 1988 is also essentially identical

to the Voting Rights Act attorneys’ fee provision, 42 U.S.C.

§ 1973(D(e) (1988). Several other attorneys’ fees statutes, while

not identical to Section 1988, contain wording that, for many

purposes, is indistinguishable. These include, among others, the

Equal Access to Justice Act, 28 U.S.C. § 2412(b) and (d) (1988);

the Truth in Lending Act, 15 U.S.C. § 1640(a)(3) (1988); and the

Copyright Act, 17 U.S.C. § 505 (1988). Because of the

similarity in wording and purpose, authorities construing these

Statutes are often used interchangeably.

Moreover, aS shown above, the availability of fees for

collateral proceedings has been a recurrent problem arising with

respect to application of Section 1988 and other fee shifting

'© With respect to the fees incurred in district court, this case presents

the additional question of whether a further hearing is necessary to

establish that the district court proceeding “caused” the result in the

administrative proceedings. For the same reason that the fees incurred

in the administrative proceedings are allowable, no such causation

inquiry is necessary or appropriate with respect to the fees incurred in

district court.

S.2G—G——<” & °° ° °° 4

21

Statutes. The decision below would substantially undermine the

right to attorneys’ fees by making the forum for resolution of the

dispute all-important in many cases. This emphasis on forum

selection will also erode the many prudential policies courts have

established favoring deferrals to the decision-making processes

and judgments of other tribunals and arms of government, such

as the doctrines of primary jurisdiction and abstention. This

approach will also encourage plaintiffs to litigate claims in federal

court that could be better resolved in alternative proceedings.

The erosion of the right to attorneys’ fees would be particularly

serious in the context of Section 1983. Section 1988 was

specifically designed to encourage the bringing of meritorious

civil rights claims. The statute’s legislative history makes clear

that the civil rights laws "depend heavily on private enforcement,

and fee awards have proved an essential remedy if private citizens

are to have a meaningful opportunity to vindicate the important

Congressional policies which these laws contain." S. Rep. No.

1011, 94th Cong., 2d Sess. 1, 2 (1976), reprinted in 1976

U.S.C.C.A.N. 5908-10. Moreover, because many, if not most,

civil rights cases involve only injunctive relief, a fee award takes

on heightened importance as the only means to recoup the costs

involved in pursuing the litigation. In this connection, the fee

award often may serve as well as the only deterrent to

governmental invasion of private civil rights.

se

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

TIMOTHY B. DYK

(Counsel of Record)

SARAH W. PAYNE

JONES, DAY, REAVIS & POGUE

1450 G Street, N.W .

Washington, D.C. 20005

(202) 879-3939

LOUIS L. TOUTON

JONES, DAY, REAVIS & POGUE

555 West Fifth Street

Suite 4600

Los Angeles, CA 90013-1025

(213) 489-3939

—— oe

Counsel for Petitioner

November 3, 1992

APPENDIX

la

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROCK CREEK LIMITED No. 91-15538

PARTNERSHIP, a California D.C. No.

limited partnership, CV-87-00523-LKK

OPINION

Plaintiff-Appellant,

v.

STATE WATER RESOURCES

)

)

)

)

)

)

)

)

)

CONTROL BOARD, et ai., )

)

)

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, Chief Judge, Presiding

Argued and Submitted

May 12, 1992 - San Francisco, California

Filed August 5, 1992

Before: Betty B. Fletcher, Cecil F. Poole, and

Thomas G. Nelson, Circuit Judges.

Opinion by Judge T.G. Nelson

OPINION

T.G. NELSON, Circuit Judge:

The California Water Resource Board (Board) imposed

minimum flow conditions on a hydroelectric project inconsistent

2a

with those contained in the project license issued by the Federal

Energy Regulatory Commission (FERC). The position of the

Board was rejected by this court in affirming a FERC declaratory

order in State of California, ex rel. State Water Resources

Board v. FERC, 877 F.2d 743 (9th Cir. 1989), and by the United

States Supreme Court in Californiav. FERC, 495 U.S. 490

(1990). The project sponsor here appeals the district court’s

denial of an award of attorneys fees in its 42 U.S.C. § 1983

action filed shortly after the Board issued its order. We vacate

the order and remand.

FACTS AND PROCEEDINGS BELOW

Rock Creek Limited Partnership (Rock Creek) is the project

sponsor of a small hydroelectric project on Rock Creek, which is

a tributary of the South Fork of the American River near

Placerville, California. In April, 1983, Rock Creek received a

FERC license, which established minimum flows past the project

diversion of eleven cubic feet per second (cfs) May to September,

and fifteen cfs October through April. The license permitted

FERC to change the minimum flow following completion of long-

term studies the licensee was to complete in conjunction with the

California Department of Fish and Game.

In February, 1984, the Board issued a permit for the project

with interim flows duplicating those of FERC. The permit

reserved Board jurisdiction to set permanent flow rates after

completion of the long-term studies. In 1986, the Board held

hearings concerning the possible imposition of higher minimum

flows, and rejected Rock Creek’s objections based on its FERC

license.

After the Board’s rejection of Rock Creek’s argument, Rock

Creek filed a petition for declaratory order with FERC, seeking

an order declaring that FERC’s authority to set flow conditions at

the project preempted the authority of the Board. In March,

1987, FERC issued an order as requested by Rock Creek, holding

OO ee ae

eed ee se eee ra

3a

that the Board “has no authority to set minimum flows for the

project that conflict with those in the license... . .". 38 FERC

q 61,244 (1987).

A few days after Rock Creek’s receipt of the FERC order, the

Board issued its Order No. WR 87-2, which set permanent flows

of sixty cfs from March through June and thirty cfs July through

February. The State of California then intervened in the FERC

proceedings on behalf of the Board, challenging FERC’s

declaratory order. The result was a final FERC order rejecting

California’s position, which was affirmed on appeal to this court

in State of California ex rel. Water Resources Board v. FERC,

877 F.2d at 750. The Supreme Court of the United States

granted certiorari and affirmed in California v. FERC, 495 U.S.

at 496.

In April, 1987, shortly after the Board issued Order No. 87-2,

and contemporaneously with California’s intervention at FERC,

Rock Creek filed this action in the federal district court under

42 U.S.C. § 1983. Rock Creek sought to enjoin the Board from

enforcing Order No. 87-2 and from regulating or asserting

jurisdiction to regulate project operations or from interfering with

the project’s use of water rights for the project. The complaint

included a request for attorneys fees pursuant to 42 U.S.C.

§ 1988. At the same time it filed the complaint, Rock Creek

asked for a temporary restraining order and preliminary injunction

against enforcement of Order No. 87-2.

The parties stipulated, and the district court ordered, that upon

withdrawal of Rock Creek’s motion for a temporary restraining

order, the Board would refrain from enforcing Order No. 87-2,

pending a hearing on the motion for preliminary injunction.

Following hearing on that motion in May, 1987, the district court

ruled that low flow conditions due to drought, which precluded

project operation no matter what the minimum flow requirement

was, rendered a preliminary injunction unnecessary. The court

urged the parties to schedule a summary judgment hearing on the

merits for September, 1987, in view of the potential for sufficient

4a

rain to permit operation of the project. Cross-motions for

summary judgment were briefed and argued on September 18,

1987. As part of the summary judgment proceedings, the parties

stipulated that Order No. 87-2 was in effect and subject to

enforcement.

The district court did not rule on the motions for summary

judgment, but at a status conference in April, 1988, asked

whether the Board would consider waiving enforcement actions

against Rock Creek for failure to comply with the state mandated

flows. Counsel for the Board stated in a letter to the district

court:

1. For the duration of the appeal in the State of California v.

Federal Energy Regulatory Commission, 9th Circuit Docket

No. 87-7538, action, the State Board agrees not to exercise its

enforcement powers . . . against the [project] for any violation

of the bypass flow set forth in the State Board’s water right

Order No. 87-2 for the protection of the fishery resources of

Rock Creek.

2. The State Board agrees to the waiver of enforcement

authority as described in paragraph 1 solely for the purpose of

obtaining a stay of the trial court proceedings in this action

and, thus, encouraging prompt resolution of the ... 9th

Circuit action.

On April 22, 1988, the district court entered an order which

noted that the appellate proceeding in the Ninth Circuit involved

the same preemption issue raised by the action then pending in the

district court, vacated the submission of the cross-motions for

summary judgment and all stayed proceedings pending resolution

of the appeal.

Following the 1989 decision of this court, the parties stipulated

to continuation of the stay pending a decision on California’s

Petition for Certiorari in the United States Supreme Court.

Following the Supreme Court decision, the Board issued Order

5a

No. WR 90-10 which amended the project’s water appropriation

permits to conform with the bypass levels finally adopted by

FERC.

In September, 1990, the district court granted the Boar«’s

motion to dismiss the case, but retained jurisdiction to hear Rock

Creek’s motion for an award of attorneys fees for its efforts in the

FERC proceeding and in the district court. After brieting, the

motion was heard in January, 1991, and the district court held

that Rock Creek was not a prevailing party within the meaning of

42 U.S.C. § 1988.

Although [Rock Creek] has received the relief it sought in this

case, there is no causal link between this litigation and the

relief. [Rock Creek’s] goal when commencing this action was

the removal of the threat posed to [Rock Creek’s] federal

rights by the California State Water Resources Control Board’s

order. This goal was achieved when the Board withdrew its

order pursuant to the Supreme Court’s ruling in California v.

FERC, [495] U.S. [490], 110 S. Ct. 2024, 109 L.Ed. 474

(1990). This Court finds that the litigation in this Court has

no causal relationship to the court’s decision in California v.

FERC, or the invalidation of the Board’s order.

Rock Creek perfected a timely appeal to this court, contending

that it was, in fact, a prevailing party and entitled to attorneys

fees.

DISCUSSION

[1] Awards of attorneys fees pursuant to 42 U.S.C. § 1988

are reviewed for abuse of discretion, but any elements of legal

analysis and statutory interpretation which figure in the district

court’s decision, and the legal standards applied by the district

court, are subject to de novo review. Cabrales v. County of Los

Angeles, 935 F.2d 1050, 1052 (9th Cir. 1991); Carson-Truckee

Water Conservancy Dist. v. Secretary of the Interior, 748 F.2d

)

6a

523, 524 (9th Cir. 1984), cert. denied, 471 U.S. 1065 (1985).

A final determination favoring the plaintiff is not a precondition

for a fee award under Section 1988. Mather v. Gagne, 448 U.S.

122, 129 (1980). However, the party seeking fees must establish

that the party’s lawsuit acted as a catalyst which prompted

defendants to take action. Am. Constitutional Party v. Munro,

650 F.2d 184, 187 (9th Cir. i981); Braafladtv. Bd. of

Governors, 778 F.2d 1442, 1444 (9th Cir. 1985). The moving

party has the burden of establishing some sort of clear, causal

relationship between the litigation brought and the practical

outcome realized." Rutherford v. Pitchess, 713 F.2d 1416, 1419

(9th Cir. 1983) (quoting Am. Constitutional Party, 650 F.2d at

188) (emphasis in original).

In Sablan v. Department of Finance, 856 F.2d 1317 (9th Cir.

1988), we established a two-part test:

First, we must determine what Sablan sought to accomplish in

bringing his lawsuit and then determine whether the lawsuit

was casually linked to the relief actually obtained. Second,

there must be a legal basis for the Sablan’s claim - it must not

be "frivolous, unreasonable, or groundless."

856 F.2d at 1325 (internal citations omitted). As to the causation

prong of the test, we said it was "nothing more than inquiry into

factual causation." /d.

The Rock Creek attorneys fees claim has two parts: that

relating to the activities before FERC, including the subsequent

appeals, and that relating to efforts before the district court in this

action. We will address the two parts separately.

A. The Administrative Proceedings.

As pointed out above, Rock Creek filed its petition for

declaratory order with FERC after it became apparent that the

Board was not accepting FERC’s authority as exclusive. When

7a

California intervened in that case, the FERC proceeding became

the forum in which the battle on the merits was fought.

Rock Creek relies on four United States Supreme Court cases

and a Ninth Circuit case in support of its contention that attorneys

fees may be awarded under Section 1988 for work before an

administrative agency or state court outside the Section 1983

action itself. However, each of those cases is distinguishable.

New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980),

involved a claim for attorneys fees for appearances in state

administrative and judicial forums in an action for employment

discrimination under Title VII of the Civil Rights Act of 1964.

The Court noted the interrelated and complementary nature of the

state and federal enforcement efforts. It then said:

Initial resort to state and local remedies is mandated, and

recourse to the federal forums is appropriate only when the

State does not provide prompt or complete relief.

Id. at 65. The FERC proceeding and the Section 1983 action

were not interrelated and complementary, in the sense of the

Title VII remedies discussed in New York Gaslight Club.

North Carolina Department of Transportationv. Crest

St. Council, 479 U.S. 6 (1986), held that attorneys fees could not

be awarded in an action brought solely to obtain attorneys fees for

enforcement activities in other forums. Rock Creek’s action in

district court had purposes other than obtaining an award of

attorneys fees so Crest is of no help to us here.

Sullivan v. Hudson, 490 U.S. 877 (1989), involved an award

of attorneys fees to a social security claimant under the Equal

Access to Justice Act, 28 U.S.C. § 2412, for legal services

rendered in administrative proceedings following a remand to the

agency from the district court. The court noted that

"administrative proceedings may be so intimately connected with

judicial proceedings as to be considered part of the ‘civil action’

Ge

8a

for purposes of a fee award." /d. at 892. The administrative

proceedings there were required by the remand from the district

court, unlike those here.

Rock Creek cites Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air, 478 U.S. 546 (1986), for its holding that

attorneys fees could be awarded for administrative proceedings

claimed to be "tangential" but which had been "crucial" to the

Clean Air Act litigation and which was "as necessary to the

attainment of adequate relief for their client as was all of their

earlier work in the courtroom." Jd. at 558. The Delaware Valley

case involved a complex series of judicial and administrative

proceedings, all of which related to an action filed in federal court

to compel Pennsylvania to comply with federal law. Even though

part of the effort undertaken was in an administrative forum, it

was all directly related to the purpose of the suit.

The Ninth Circuit case of Bartholomew v. Watson, 665 F.2d

910 (th Cir. 1982), cited by Rock Creek, does not resolve the

issue presented, either. After inmates in the Oregon State penal

system filed their action under Section 1983, the action was

stayed by agreement while the inmates pursued a separate state

court action seeking a declaration of state law which could have

mooted the federal action. The trip to the Oregon courts resulted

in a decision in favor of the state. Because the case was not

mooted in state court, it returned to district court where the

inmates received some of the relief requested. This court upheld |

an award of attorneys fees under Section 1988 which included |

fees for the work in state court. As the court noted, the state

court action was filed after the federal action was commenced,

and at the insistence of the state. The state proceedings,

therefore, were an integral part of the overall effort to resolve the

inmates’ claims, and was pursued solely because of the filing of

the federal action. Jd. at 912.

In Bartholomew, the state action was a necessary step before

the prevailing party could succeed. Likewise, in Delaware

Valley, the administrative work was required before the party

—E—————<<——

9a

could succeed in federal court. Here, however, Rock Creek was

not faced with mandatory administrative action before it could

prevail.

[2] When Rock Creek became aware of the Board’s intran-

sigent attitude about its authority to override the FERC decision,

it had at least two choices. One was to attempt to get a definitive

response from FERC, in order to buttress a later trip to court.

When California intervened on behalf of the Board, and then

appealed, this became the vehicle for final resolution on the

merits.

[3] The other choice Rock Creek had was to proceed

directly to court, and obtain an interpretation of FERC’s authority

without the benefit of a FERC opinion directly on the issue.

While this would have been an appropriate course for Rock Creek

to follow, it cannot be faulted tactically for going to FERC first,

as it did.

[4] The two avenues open to Rock Creek were independent.

Either could have resulted in a decision on the question of

FERC’s exclusive authority. An approach to FERC was not a

condition precedent to its entry to federal court, as in New York

Gaslight Club. Nor was th: t=RC decision rendered as a part of

a continuing federal court action, as was the case in Sullivan v.

Hudson. The distinct nature of the two proceedings distinguishes

them from the related ara dependent proceedings involved in the

cases relied on by Rock. Creek.

[5] The FERC proceedings resemble more closely the

administrative efforts seeking relief for a teacher which were held

not to carry a right to attorneys fees for a successful Section 1983

plaintiff:

Because § 1983 stands as an independent avenue of relief and

petitioner could go straight to court to assert it, the School

Board proceedings in this case simply do not have the same

10a

integral function under § 1983 that state administrative

proceedings have under Title VII.

Webb v. Dyer County Bd. of Educ., 471 U.S. 234, 241 (1985)

(internal punctuation and citations omitted). Cf, Smith v.

Robinson, 468 U.S. 992, 1011 n. 14 (1984) ("nothing in § 1983

requires that a plaintiff exhaust his administrative remedies before

bringing a § 1983 suit"). The FERC action lacked the "intimate

connection” which sustains awards of attorneys fees in

administrative or state court proceedings outside the federal action

itself. Therefore, Rock Creek’s claim for attorneys fees for its

efforts before FERC must fail.

B. The Action in Federal Court.

[6] The district court’s order denying attorneys fees focused

entirely on the lack of causal connection between the FERC

decision and the Supreme Court’s decision in California v. FERC.

We agree with that analysis as to the FERC proceedings and

subsequent appeals.

[7] However, we believe the district court failed to take into

account the other aspects of the Section 1983 action. Rock Creek

sought more than a decision on the merits: it also sought a

temporary restraining order and preliminary injunction pending a

final decision. This was relief not available to it in the FERC

proceeding.

In Texas Teachers v. Garland School District, 489 U.S. 782

(1989), the Court specifically rejected the "central issue" test for

prevailing party status, reiterating the standard set éut earlier:

piaintiffs may be considered prevailing parties "if they succeed on

any significant issue in litigation which achieves some of the

benefit the parties sought in bringing the suit." Jd. at 789

(quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The

Texas Teachers court also noted that:

} .

}

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lla

A prevailing party must be one who has succeeded on any

significant claim affording it some of the relief sought, either

pendente lite or at the conclusion of the litigation.

489 U.S. at 791.

In a declaration filed in support of Rock Creek’s application

for preliminary injunction, counsel for Rock Creek stated that he

had called counsel for the Board and stated that if the Board

would agree not to commence enforcement proceedings "in a

fashion contrary to whatever declaratory relief this court may

grant," Rock Creek would withdraw its requests for injunctive

relief. "I indicated to Mr. Lee [counsel for the Board] that such

an agreement would provide the Partnership with reasonable

assurance the relief that it obtains will be effective while avoiding

unnecessary injunctive dictates to the State Water Board." He

went on to state that in a later conversation with counsel for the

Board, he was informed the Board had decided to decline the

proposal. The Board did not contradict these statements by Rock

Creek’s counsel.

The Section 1983 action filed by Rock Creek did not result in

a holding that Board had acted in excess of its jurisdiction. That

holding came in the administrative proceedings, ultimately

affirmed in a decision by the Supreme Court. Therefore, on the

merits of Rock Creek’s arguments with the Board, this case did

not affect or accomplish the result Rock Creek desired.

However, Rock Creek also asked for a temporary restraining

order and preliminary injunction in its complaint and ultimately

pursued both. The FERC proceedings involved a challenge to an

order entered by FERC and were not a challenge to the Board’s

order, which was only collaterally involved. Thus, Rock Creek

needed relief in some other forum.

[8] The relief Rock Creek gained in the district court was in

effect an informal stay both of the district court proceedings and

the Board’s threatened enforcement proceedings. The Board had

declined Rock Creek’s invitation to do by agreement external to

12a

the litigation what later became a condition of the stay, namely,

that the Board would not enforce its illegal order.

[9] In this situation, we think the district court focused too

narrowly on Rock Creek’s failure to obtain relief on the merits in

the Section 1983 action. While the district court did not itself

enter a Stay, it was the pendency of this action in the district court

which gave Rock Creek a vehicle by which to obtain a non-

enforcement agreement by the Board. The Board did alter its

conduct under the pressure of the lawsuit to the extent that Rock

Creek did not need to obtain a formal preliminary injunction. It

is possible that the Section 1983 action was causally related to the

practical outcome realized and the non-enforcement of the illegal

order.

Therefore, based on the foregoing analysis, we believe the

district court erred in denying attorneys fees to Rock Creek on the

basis asserted and the judgment should be vacated and the case

remanded for the purpose of reconsideration of Rock Creek’s

motion for attorneys fees for its efforts in the Section 1983 action

only.’ The attorneys fees decision is committed to the district

court’s discretion and we express no opinion as to the ultimate

outcome. Rock Creek’s request for attorneys fees for pursuing

this appeal is referred to the district court. If the district court,

awards fees for Rock Creek’s efforts in the district court, it shall

fix and award fees to Rock Creek for this appeal.

VACATED AND REMANDED. Costs to appellant.

' Since the district court decided the motion for fees on a causation

analysis, it did not have occasion to reach the other prong of the Sablan

test: Whether there was a legal basis for Rock Creek’s case, i.e., "it

must not be frivolous, unreasonable, or groundless." Sablan, 856 F.2d

at 1325. That issue is still open on remand.

13a

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ROCK CREEK

LIMITED PARTNERSHIP,

a California limited

CASE NO. S-87-0523-LKK

)

)

)

partnership, )

) ORDER DENYING THE

Plaintiff, ) PLAINTIFF’S MOTION

) ATTORNEYS’ FEES

STATE WATER )

RESOURCES CONTROL +) Date: Jan. 22, 1991

BOARD, etc., ) Time: 10:00 a.m.

et al., )

Defendants. )Place: The Honorable

Lawrence K. Karlton

On January 22, 1991 this Court heard plaintiff's motion for

attorneys’ fees. Appearing as counsel for the State defendants

State Water Resources Control Board and the individual State

defendants were Deputy Attorney General Clifford T. Lee and

State Water Resources Control Board staff counsel Barbara

Leidigh. Appearing as counsel for plaintiff Rock Creek Limited

Partnership was Louis Touton. Upon conclusion of oral

argument, the Court announced that it was denying the plaintiff's

motivn and set forth the reasons for its denial for the record. The

Court further ordered the State defendants to prepare a formal

order consistent with the record. After full consideration of

moving and responding papers, all supporting papers and exhibits,

and oral argument, the Court denies the plaintiff's motion for

attorneys fees for the following reasons:

1. Under 42 U.S.C. Section 1988, this Court may only award

attorney’s fees to the "prevailing party." 42 U.S.C., § 1988

(Supp. 1990).

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a ee

14a

2. A party can demonstrate prevailing party status by

establishing a "clear causal relationship between the litigation

brought and the practical outcome realized." Rutherford v.

Pitchess, 713 F.2d 1416, 1419 (9th Cir. 1983).

3. Whether a clear causal relationship exists involves two

inquiries:

a) The Court must determine what the plaintiff sought to

accomplish in bringing the lawsuit and then must determine

whether the lawsuit was causally linked to the relief actually

sought; and

b) There must be a legal basis for the plaintiff's claim.

Sablan v. Dept. of Finance of North Mariana Islands, 856

F.2d 1317, 1325 (th Cir. 1988).

4. Although the plaintiff has received the relief it sought in

this case, there is no causal link between this litigation and the

relief. The plaintiff's goal when commencing this action was the

removal of the threat posed to its federal rights by the California

State Water Resources Control Board’s order. This goal was

achieved when the Board withdrew its order pursuant to the

Supreme Court’s ruling in Californiav. FERC, _—~sU.S.__s,

110 S.Ct. 2024, 109 L.Ed.2d 474 (1990). This Court finds that

the litigation in this Court has no causal relationship to the court’s

decision in California v. FERC, or the invalidation of the Board’s

order.

5. Because no causal relationship exists between this district

court action and the invalidation of the Board’s order, plaintiff

Rock Creek Limited Partnership is not a prevailing party within

the meaning of 42 U.S.C. Section 1988 for the purposes of this

action. 42 U.S.C., § 1988 (Supp. 1990)

15a

In light of the above reasons, the plaintiff's motion for

attorney’s fees is DENIED.

IT IS SO ORDERED.

/s/ Lawrence K. Karlton

LAWRENCE K. KARLTON, CHIEF

JUDGE EMERITUS

UNITED STATES DISTRICT COURT

ORDER DENYING THE PLAINTIFF'S

MOTION FOR ATTORNEYS’ FEES