Reply Brief — Rock Creek Ltd. Partnership v. California State Water Resources Control Board

No. 92-785

IN THE

Supreme Court of the United is:

OCTOBER TERM, 1992

ROCK CREEK LIMITED PARTNERSHIP,

Petitioner,

v.

STATE WATER RESOURCES CONTROL BOARD, et al,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

REPLY BRIEF FOR PETITIONER

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

Los Angeles, CA 90013

(213) 489-3939

Counsel for Petitioner

IN THE

Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-785

ROCK CREEK LIMITED PARTNERSHIP,

Petitioner,

V.

STATE WATER RESOURCES CONTROL BOARD, et ai.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

REPLY BRIEF FOR PETITIONER

Respondents’ Brief in Opposition ("Opposition" or "Opp.")

confirms that a grant of certiorari in this case is both appropriate

and necessary to resolve a continuing conflict among the Circuits:

1. The Opposition does not dispute that a widespread conflict

exists among the Circuits with respect to the interpretation of this

Court's decisions concerning the right to statutory attorneys’ fees

for work performed in related administrative and state

proceedings. As we have pointed out (Pet. 15-20), the First,

Third and Seventh Circuits have approved awards where resort to

the collateral proceeding was nonmandatory, while the decision

below, like those of the Second, Fifth and Tenth Circuits, has

held that such awards are unavailable unless the collateral

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proceedings were required by statute or court order. Neither the

existence, nor the significance, of that conflict is disputed by

Respondents.

2. In opposing certiorari, Respondents place their primary

reliance on this Court’s decision in Webb v. Dyer County Board

of Education, 471 U.S. 234 (1985), which Respondents suggest

"unequivocally rejected the petitioner’s contention.

(Opp. 7). Webb did no such thing.

In Webb, this Court held that "[a]dministrative proceedings

established to enforce tenure rights created by state law simply

are not part of any proceedings to enforce § 1983." 471 U-S. at

241 (emphasis added). By contrast, in the present case, Petitioner

sought to vindicate the same federal right before the Federal

Energy Commission ("FERC") and in the district court Section

1983 action. As evident from our discussion in the Petition (Pet.

11-15), decisions of this Court before and after Webb make clear

that recovery is appropriate for nonmandatory administrative

proceedings that seek to vindicate federal rights or policies.

Thus, in New York Gaslight Club, Inc. v. Carey, 447 U.S. 54,

66 (1980), fees were found awardable for largely nonmandatory

litigation in state and administrative fora where plaintiffs

succeeded in vindicating "federal [Title VII] policies" at the "state

or local level." Likewise, in Pennsylvania v. Delaware Valley

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

awarded fees under the Clean Air Act for the fee claimant’s

efforts to protect, through entirely nonmandatory participation in

collateral state and administrative proceedings, the scope of a

federal consent decree entered to enforce the Act. See also North

Carolina Dep’t of Transportation v. Crest Street Community

Council, 479 U.S. 6, 15 (1986)("[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.")

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3. But, whether we or the Respondents are correct in

interpreting this Court’s decisions, the undisputed fact remains

that the lower federal courts are in hopeless conflict concerning

the interpretation of those decisions, and the issue arises with

considerable frequency. See Pet. at 15-21.

4. Respondents also do not dispute that the rule adopted by

the Ninth Circuit undermines other important prudential policies

developed by this Court to encourage resort to federal

administrative agencies for determination of issues of statutory

interpretation. Under the theory articulated by the Ninth Circuit,

Petitioner had "at least two choices": it could “proceed directly

to court, and obtain an interpretation of FERC’s authority without

the benefit of a FERC opinion directly on the issue" -- thus

securing attorneys’ fees -- or it could “attempt to get a definitive

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

in the process foregoing such fees. (Pet. App. 9a).

If the Ninth Circuit’s decision were allowed to stand, the

lesson would not be lost on future litigants. In order to secure

attorneys’ fees, they will seek to litigate their claims exclusively

before the federal court in the civil rights action, thus depriving

the federal courts of the agency’s view of the interpretation of the

federal statute -- an interpretation this Court has repeatedly valued

under Chevron, U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984). Avoiding the agency could

thus undercut obvious federal interests in achieving uniform,

competent interpretation and administration of federal regulatory

schemes.

5. Finally, in Part II of the Opposition, Respondents suggest

that certiorari should not be granted because the FERC

proceeding, rather than the district court proceeding, "caused" the

state to withdraw its order. Respondents seriously misunderstand

the governing principle, and none of the cases they cite remotely

4

supports their argument.' Where administrative proceedings and

the federal court action seek the same relief, it is immaterial that

the relief may have been awarded in the administrative or

collateral proceeding rather than in federal court. See, e.g., New

York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (fees awarded

under Title VII fee shifting provision for state and federal

administrative proceeding, although the judgment on the merits

was obtained in state court); Sullivan v. Hudson, 490 U.S. 877

(1989) (fees awarded to social security disability claimant, where

disability benefits were awarded by the Social Security

Administration in an administrative remand from federal court).

6. The frequency with which the issues presented here arise

and the number of conflicting Court of Appeals decisions are not

contested by Respondents; resolution of the issue by this Court is

important to both government and individual litigants.

' Respondents rely on Hewitt v. Helms, 482 U.S. 755 (1987), and

Farrar v. Hobby, 61 U.S.L.W. 4033 (U.S. Dec. 15, 1992). In Hewitt,

the Court merely held that an “interlocutory ruling that [the fee

claimant’s] complaint should not have been dismissed for failure to state

a constitutional claim" did not satisfy Section 1988's "prevailing party"

requirement. 482 U.S. at 760. In Farrar, the fee claimant had

recovered only nominal damages upon conclusion of the civil rights

litigation. The Court held that, although the claimant satisfied the

“prevailing party” requirement, Section 1988's provision for

“reasonable” fee awards did not support any award at all where the

degree of success achieved was so minimal. Neither Hewitt nor Farrar

involved, or even mentioned, the availability of fee awards for

administrative or other proceedings collateral to civil rights litigation.

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CONCLUSION

For the foregoing reasons, and for the reasons stated in the

Petition, 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

Counsel for Petitioner

January 5, 1992