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

No, 92-785

are lf

Iu the Supreme Court of the Wuited States

OCTOBER TERM, 1992

20CK CREEK LIMITED PARTNERSHIP, PETITIONER

STATE WATER RESOURCES CONTROL BOARD. ET AL.

ON PETITION FOR A WRIT OF CER}

TO THE UNITED STATES COURT OF AP}

Fe IR T } / / \ { \ / f / t ] Ri j /

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

WILLIAM C. BRYSON

Act ng Sol CIiTO? Gre re?

STUART E. SCHIFFER

Acting Assist | ey Ge

RONALD.J. MANN

As tad ti Thié Nf f (rh)

WILLIAM KANTER

MICHAEL FE. ROBINSON

Attorneys

ue

QUESTION PRESENTED

Whether 42 U.S.C. 1988 authorizes the recovery

of attorney’s fees incurred in administrative pro-

ceedings that are not a part of the process of

enforcement of a civil rights statute and do not con-

tribute to any relief obtained in the district court

action.

(1)

TABLE OF CONTENTS

Page

Statement Peis eanaticeeau ocean eave 1

Discussion RAT rece eaaste 4

Conclusion ica - Baceen 14

TABLE OF AUTHORITIES

Cases:

Bartholomew v. Watson, 665 F.2d 910 (9th Cir.

Es SLE een ee 10

Bobbitt v. Paramount Cap Manufacturing Com-

pany, 942 F.2d 512 (8th Cir. 1991) ...... - 13

California V. FERC, 877 F.2d 743 (9th Cir. 1989),

aff’d, 495 U.S. 490 (1990) ee Sasi 23

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

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

Cir. 1982), cert. denied, 461 U.S. 956 (1983) 1]

Hensley v. Eckerhart, 461 U.S. 424 (1983) ..... 5

Hewitt v. Helms, 482 U.S. 755 (1987) —........ 5,12

Jenkins Vv. Missouri, 862 F.2d 677 (8th Cir.

1988) ; deans sacar aaaias 13

Lampher V. Zagel, 755 F.2d 99 (7th Cir. 1985) 10

McDonald v. Armontrout, 860 F.2d 1456 (8th Cir.

1988) . ater 13

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

i ee 6

North Carolina Department of Transportation V.

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

6 (1986) rave Eee 6, 7,8

Pennsylvania V. Delaware Valle y Citiz en’s Coun-

cil for Clean Air, 478 U.S. 546 (1986) 8,9

Smith v. Robinson, 468 U.S. 992 (1984) 7

Stathos v. Bowden, 728 F.2d 15 (1st Cir. 1984) 10

Sullivan Vv. Hudson, 490 U.S. 877 (1989) ane 8,9

Sullivan v. Pennsylvania Department of Labor

and Industry, 663 F.2d 443 (3d Cir. 1981), cert.

denied, 455 U.S. 1020 (1982) iesieaekenceoutccn ae ae

(IIT)

aaa |

IV

Cases—Continued: Page

Webb v. County Board of Education, 471 U.S. 234

{) | ae > 2s *

Wisniewski v. United States, 353 U.S. 901

(1957) pane Rete TS eID ae a

Statutes:

Civil Rights Act of 1964, Tit. VII, 42 U.S.C.

2000e et seq.:

S 706,42 U.S.C. 2000e-5 ; ae 6

§ 706 (k), ¢ 12 U.S.C. 2000e-5 (k) 6

42 U.S.C. 1983 ae sssmoactty By & 6, 6, 8,9, 16. 12

42 U.S.C. 1988 ............. notiaiaecalcns 0, 4,6, 7,9

Iu the Supreme Court of the United States

OCTOBER TERM, 1992

No. 92-785

RocK CREEK LIMITED PARTNERSHIP, PETITIONER

Vv.

STATE WATER RESOURCES CONTROL BOARD, ET AL.

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the Court’s invi-

tation to the Solicitor General to file a brief express-

ing the views of the United States in this case.

STATEMENT

1. Petitioner operates a hydroelectric facility on

Rock Creek in California. In April 1983, the Fed-

eral Energy Regulatory Commission (FERC) issued

a license requiring petitioner to allow certain mini-

mum amounts of water to flow past the project

(ranging from 11 cubic feet per second during the

summer to 15 cubic feet per second during the win-

ter). In February 1984, the respondent California

State Water Resources Control Board issued a

permit for the project with interim flows duplicating

(1)

2

those required by FERC. When the Board held hear-

ings in 1986 to consider whether it should impose

higher minimum flows than those required by the

FERC license, petitioner sought an order from

FERC declaring that FERC had the exclusive au-

thority to impose flow requirements on the project.

In March 1987, FERC issued such an order, stating

that the Board has no authority to set minimum

flows for the project greater than those required by

the license FERC had issued. A few days later, the

Board issued an order setting minimum flow condi-

tions ranging from 30 cubic feet per second to 60

cubic feet per second, much higher than those estab-

lished in the FERC license. See Pet. App. 2a-3a;

Pet. 3.

At that point, the State of California intervened

in the FERC proceedings on behalf of the Board,

challenging FERC’s authority to issue the declara-

tory order. See Pet. App. 3a. After further pro-

ceedings, FERC rejected California’s position. In

1989, the Ninth Circuit affirmed FERC’s order in

California Vv. FERC, 877 F.2d 748, 750. This Court

granted California’s petition for a writ of certiorari

and subsequently affirmed unanimously. See Cali-

fornia V. FERC, 495 U.S. 490 (1990).

2. Petitioner also attempted to litigate its dispute

with the Board in the United States District Court

for the Eastern District of California. When the

Board responded to FERC’s first order by issuing its

order setting minimum flow conditions inconsistent

with those established by FERC, petitioner filed this

action under 42 U.S.C. 1983. The complaint sought

a temporary restraining order and a preliminary

injunction against enforcement of the order, as well

3

as attorney’s fees pursuant to 42 U.S.C. 1988. See

Pet. App. 3a.

When the Board voluntarily agreed to refrain

from enforcing its order pending a hearing on the

preliminary injunction, petitioner withdrew its re-

quest for a temporary restraining order. Similarly,

when the Board subsequently agreed to refrain from

enforcing its order until the completion of the pro-

ceedings in California v. FERC, supra, the district

court stayed the Section 1983 case pending resolu-

tion of those proceedings. After this Court ruled in

favor of FERC, the Board granted permits conform-

ing to the flow levels approved by FERC. The dis-

trict court then granted the Board’s motion to dis-

miss the Section 1983 action, retaining jurisdiction

only to consider petitioner’s motion for attorney’s

fees. See Pet. App. 3a-5a.

After briefing and a hearing, the district court

court noted that 42 U.S.C. 1988 authorizes an award

of fees only to a “prevailing party” and reasoned

that petitioner was not a prevailing party because

there was ‘“‘no causal link” between the Section 1983

litigation and the relief petitioner obtained in the

California v. FERC case. Pet. App. 14a.

3. The court of appeals affirmed in part and re-

versed in part. Pet. App. la-12a. With respect to

the request for fees incurred in the Section 1983

case, the court held that petitioner could be regarded

as a prevailing party, because pressure from that

lawsuit caused the Board to alter its conduct suffi-

ciently to obviate petitioner’s need for a preliminary

injunction. Accordingly, the court of appeals re-

manded the case to the district court for further

consideration of petitioner’s motion for attorney’s

4

fees related to the Section 1983 proceeding. Pet.

10a-12a,

With respect to the claim for fees incurred in the

FERC proceeding, however, the court affirmed.

Pet. App. 6a-1Ca. The court agreed with the dis-

trict court that petitioner was not entitled to

attorney’s fees for costs incurred in the FERC pro-

ceeding, and the subsequent appeals of that proceed-

ing to the Ninth Circuit and this Court, because the

relief available from FERC was “independent” from

the relief available under Section 1983 in the district

court. Jd. at 9a. The court explained that petition-

er’s “approach to FERC was [neither] a condition

precedent to its entry to federal court * * * [nor]

part of a continuing federal court action.” Jbid.

Thus, the court agreed with the district court that

fees could not be awarded for the FERC proceeding

because of ‘“‘the lack of causal connection” between

the Section 1983 case and the relief obtained from

FERC and the Supreme Court. Jd. at 10a.

DISCUSSION

1. Under 42 U.S.C. 1988, district courts have dis-

cretion, in ‘‘any action or proceeding to enforce [cer-

tain listed provisions of Title 42],” to “allow the

prevailing party, other than the United States, a

reasonable attorney’s fee as_part of the costs.” To

obtain the fees sought here, petitioner must establish

that the fees it seeks were incurred in an “action or

proceeding to enforce” 42 U.S.C. 1983 (the listed

provision of Title 42 on which petitioner relied in

this case).’

1 As respondent points out (Br. in Opp. 8-10), it is ques-

tionable whether petitioner—who did not obtain any relief

5

a. Because the proceedings before FERC (includ-

ing the subsequent judicial review of those proceed-

ings) did not constitute an action to enforce Section

1983, fees incurred in those proceedings are directly

compensable only if those proceedings were so closely

related to the Section 1983 action that they may be

from the district court—satisfied the threshold requirement

that it be a “prevailing party.” Of course, it is possible in

some cases to be a prevailing party without obtaining any

relief from the court. See Hewitt v. Helms, 482 U.S. 755,

760-761 (1987). To secure such a ruling, however, the plain-

tiff must show that the civil rights lawsuit caused the defend-

ant to take the action sought by the plaintiff; the plaintiff is

not a prevailing party if the defendant takes the action for

reasons independent of the lawsuit. See id. at 760 (lawsuit

must “‘produc[e]” the relief); id. at 761 (plaintiff prevails

only if ‘the defendant, under pressure of the lawsuit, alters

his conduct’’) ; see also 7d. at 763 (plaintiff’s contention that

the lawsuit “prompted” the defendant to change its conduct).

In this case, both of the lower courts found that this lawsuit

did not cause the relief petitioner obtained in the FERC pro-

ceedings. Pet. App. 10a, 14a.

The court of appeals did find, however, that the civil rights

lawsuit caused respondents to alter their conduct temporarily,

obviating the need for petitioner to secure a temporary re-

straining order or preliminary injunction. In the circum-

stances of this case, we doubt that respondent’s temporary

forbearance constitutes sufficient success “on any significant

issue in litigation which achieves some of the benefit the

parties sought in bringing suit,” Hensley v. Eckerhart, 461

U.S. 424, 433 (1983), and thus is not sufficient to render peti-

tioner a prevailing party. Resolution of that question, how-

ever, is not necessary to the decision of the case, because, as

we discuss below, the fees petitioner seeks in connection with

the FERC proceeding were not incurred in a “proceeding to

enforce [Section 1983]” and thus would not be compensable

even if petitioner were considered a “prevailing party” in

the Section 1983 action.

6

considered part of that action. This Court’s decisions

make such a conclusion untenable on the facts of

this case.

In New York Gaslight Club, Inc. v. Carey, 447

U.S. 54 (1980), this Court considered for the first

time the propriety under a fee-shifting statute of

awarding compensation in a district court action for

fees incurred in related administrative proceedings.

In that case, the Court held that fees were available

in an action under Title VII of the Civil Rights Act

of 1964 for costs incurred in the portion of the pro-

ceedings that took place before a state administrative

agency.” 447 U.S. at 60-71. The Court relied heavily

on the structure of Title VII, under which claimants

are required to present their claims to state admin-

istrative agencies; the court reasoned that denial

of fees ‘would force the complainant to bear the

costs of mandatory state and local proceedings and

thereby would inhibit the enforcement of a meritori-

ous discrimination claim.” 447 U.S. at 63; see also

id. at 65 (“Initial resort to state and local remedies

is mandated.’’).

The Court’s subsequent decision in Webb v. County

Board of Education, 471 U.S. 234 (1985), made

2 Carey involved Section 706(k) of the Civil Rights Act of

1964, 42 U.S.C. 2000e-5(k), but the Court subsequently has

suggested that its analysis of that provision was applicable

to Section 1988 as well. See, e.g., Webb v. County Board of

Education, 471 U.S. 234, 240 (1985) ; North Carolina Depart-

ment of Transportation v. Crest Street Community Council,

Inc., 479 U.S. 6, 15 (1986). Even though the fee-shifting

provision in Section 706 of Title VII resembles Section 1988,

the differences between the underlying Title VII action and

actions under 42 U.S.C. 1983 make the availability of fees in

the two situations quite different, as this Court’s decision in

Webb makes clear.

7

clear that Carey did not establish a broad rule

requiring fee awards for all types of administrative

proceedings. The plaintiff in Webb contended that

his employment as a school teacher had been ter-

minated for racial reasons. After unsuccessfully

challenging his termination before the responsible

state agency, Webb filed suit in district court seeking

relief under various civil rights statutes. When he

obtained relief in the district court, he relied on

Carey to support his claim for compensation under

42 U.S.C. 1988 for the attorney’s fees incurred in

the state administrative proceedings. The Court re-

jected that claim, explaining that

Carey * * * arose under a statute that ex-

pressly requires the claimant to pursue available

state remedies before commencing proceedings

in a federal forum. There is no comparable re-

quirement in § 1983, and therefore the reason-

ing in Carey is not applicable to this case. * * *

Because § 1983 stands ‘“‘as an independent ave-

nue of relief” and petitioner “could go straight

to court to assert it,” the School Board proceed-

ings in this case simply do not have the same in-

tegral function under $ 1983 that state admin-

istrative proceedings have under Title VII.

471 U.S. at 240-241 (footnote and citation omitted)

(quoting Smith v. Robinson, 468 U.S. 992, 1011 n.14

(1984)); see North Carolina Department of Trans-

portation v. Crest Street Community Council, Inc.,

479 U.S. 6, 15 (1986) (explaining Carey as author-

izing fees ‘for time spent on administrative proceed-

ings to enforce the civil rights claim’). Because the

administrative proceedings at issue here were not

proceedings “to enforce’ petitioner’s civil rights

claim, petitioner was not entitled to compensation

for the fees petitioner incurred in those proceedings.

8

b. To be sure, there are some circumstances in

which administrative proceedings that are not

themselves proceedings ‘“‘to enforce” a civil rights

claim will produce results that are of sufficient

use in the district court action to justify includ-

ing compensation for those fees as part of the

reasonable fees for the district court action. As the

Court explained in Webb, a court may award fees

for “any discrete portion of the work product from

the administrative proceedings * * * that was both

useful and of a type ordinarily necessary to advance

the civil rights litigation to the stage it reached be-

fore settlement.” 471 U.S. at 248; see Pennsylvania

v. Delaware Valley Citizens’ Council for Clean Air,

478 U.S. 546, 561 (1986) (same); Crest Street, 479

U.S. at 15 (same); Sullivan v. Hudson, 490 U.S.

877, 889 (1989) (same). That rule reflects the fact

that the reasonable attorney’s fee allowed under Sec-

tion 1988 compensates not only for time spent in

court, but also for time spent in preparing applicable

pleadings, investigating the background of the case,

and similar matters that contribute significantly to

whatever success the plaintiff obtains in the district

court action. It would be anomalous to compensate

such costs generally, but to bar compensation if the

costs are incurred in the first instance in some other

proceeding.

Under that principle, petitioner is not entitled to

compensation for the FERC proceedings, because

those proceedings were not a necessary or useful

predicate to relief in the Section 1983 action. To

use this Court’s language, none of the work done

in the administrative proceeding was “useful * * *

to advance the civil rights litigation to the stage it

9

reached before settlement,” Webb, 471 U.S. at 243;

indeed, the civil rights litigation never advanced to

a stage where the work done in the administrative

proceedings was useful in the district court action in

any way. Compare Delaware Valley, 478 U.S. at

558-561 (appropriate to compensate for costs in-

curred in administrative proceedings designed to pro-

tect the efficacy of relief that was obtained from the

district court); Hudson, 490 U.S. at 888-892 (ap-

propriate to compensate for costs incurred in admin-

istrative proceedings “necessary to the completion of

a civil action” in which the claimant secured relief).

Petitioner’s claim is substantially broader than the

claims made in any of this Court’s attorney’s fee

cases. Petitioner’s claim is not that the FERC pro-

ceedings aided it in obtaining or protecting some

type of relief in the district court; petitioner ob-

tained no relief from the district court. Rather,

petitioner seeks fees for all reasonable costs incurred

in the FERC proceedings because petitioner obtained

in those proceedings the relief that it might have

obtained in the Section 1983 case if it had pursued

the Section 1983 case as the vehicle for seeking a

ruling on FERC’s exclusive authority to impose flow

requirements. Neither this Court’s cases nor the lan-

guage of Section 1988 supports that claim.

2. Petitioner also argues (Pet. 15-20) that plen-

ary review is appropriate to resolve a conflict be-

tween the decision in this case and decisions of the

First, Third, and Seventh Circuits. We do not agree;

the decisions on which petitioner relies do not estab-

lish a conflict warranting review by this Court. In

the first place, all four of the opinions on which pe-

titioner relies were decided before this Court’s deci-

sion in Webb, which clarified the relevant principles.

a

10

In any event, none of the decisions suggests that any

court would have decided this case any differently

even before Webb.

a. Two of the decisions on which petitioner relies

(Pet. 17-18) involved situations that resemble Carey,

in which it was necessary for the claimants to par-

ticipate in the other proceedings in order to protect

their right to relief in the district court action. See

Lampher v. Zagel, 755 F.2d 99, 102-104 (7th Cir.

1985) (appropriate to award fees incurred in state

court proceeding that determined legal question at

issue in federal case, where federal district court

abstained pending resolution of the state court pro-

ceeding); Stathos v. Bowden, 728 F.2d 15, 22 (lst

Cir. 1984) (appropriate to award fees incurred in

state court proceeding filed by defendants in federal

action “in order to preempt the federal action,”

where federal court determined that “plaintiffs were

forced to defend [the state court action] lest they

lose their § 1983 claim in the federal courts through

collateral estoppel”). Although it is not clear that

Carey required an award of fees in those cases—the

state court proceedings were not “proceedings to en-

force” Section 1983—the Ninth Circuit’s discussion

in this case (Pet. App. 8a-9a) of its earlier decision

in Bartholomew v. Watson, 665 F.2d 910 F.2d

(1982), on which both of those courts relied (see

Lampher, 755 F.2d at 103-104; Stathos, 728 F.2d at

22), suggests that there is no reason to believe that

those courts would have been any more likely to

grant relief in this case than the Ninth Circuit.

b. The third case, like this Court’s decision in

Delaware Valley, involved an award of fees for

work performed in administrative proceedings that

11

materially contributed to the plaintiff’s success in

securing effective relief from the district court. See

Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 766-767

(7th Cir. 1982) (appropriate to award fees incurred

in plaintiffs’ attempt to have defendant debarred

from government contracts where defendant agreed

to settlement in Title VII action to forestall possible

debarment), cert. denied, 461 U.S. 956 (1983).

That case is clearly distinguishable from this case,

where the administrative proceeding played no role

in the obtaining of relief in the district court action.

ce. The fourth case on which petitioner relies (Pet.

18), Sullivan v. Pennsylvania Department of Labor

and Industry, 663 F.2d 443 (3d Cir. 1981), cert.

denied, 455 U.S. 1020 (1982), is similarly unhelpful

to petitioner. In that case, the court awarded fees to

a plaintiff who secured relief in an arbitration that

she had sought in a Title VII lawsuit arising out of

the same incident. 663 F.2d at 451-452. The issue in

the case, however, was whether the plaintiff was a

prevailing party for purposes of the fee-shifting pro-

vision in Title VII even though she obtained no relief

in the Title VII litigation. The court concluded that

she should be treated as a prevailing party in the

Title VII litigation because that litigation was a sub-

stantial cause of her success in obtaining the relief

she sought in her Title VII complaint, even though

she obtained that relief through an arbitration

award rather than in the Title VII proceeding itself.

See id. at 450 (“the crucial question * * * is not

whether a plaintiff actually prevailed in a * * * civil

rights lawsuit, but whether the plaintiff may be

deemed to have prevailed in the civil rights action

because of the causal connection between the suit

12

filed and the relief obtained’); see also Hewitt v.

Helms, 482 U.S. 755, 760-761 (1987). Both of the

lower courts in this case found that petitioner could

not prevail under such a theory here, because there

was no causal connection between the filing of the

Section 1983 action and the relief petitioner ob-

tained in the FERC proceeding. Pet. App. 10a, 14a.

In any event, Pennsylvania Department of Labor

does not support petitioner’s argument in this case.

Although the claimant in that case obtained complete

relief through arbitration, the work for which fees

were sought was limited to the “work done in connec-

tion with the EEOC proceedings and the Title VII

litigation in federal court, not [the] work done in

connection with the arbitration itself.” 663 F.2d at

447. Accordingly, that decision—which, given the

view that the plaintiff was a prevailing party, fol-

lows directly from Carey—does not benefit petitioner,

which seeks compensation not for the fees incurred

in the Section 1983 action, but for the fees incurred

in the FERC proceedings.

d. Finally, petitioner contends (Pet. 19) that a

“hopeless conflict”? has arisen among Eighth Circuit

rulings on the compensability of fees incurred in

administrative proceedings. An intracircuit conflict,

of course, is not a sufficient basis for review by this

Court. See Wisniewski v. United States, 353 U.S.

901 (1957). In any event, petitioner’s contention is

overstated. Each of the three Eighth Circuit deci-

sions petitioner cites as having awarded fees relied

on the standard articulated in Webb to justify a fee

award for administrative proceedings that contrib-

uted substantially to relief that the plaintiffs ob-

13

tained from the district court.’ Because there was

no causal connection in this case between the admin-

istrative proceedings and any relief obtained from

the district court, the reasoning of those decisions

would not support an award of the fees petitioner

seeks in this case.

3See Bobbitt v. Paramount Cap Manufacturing Company,

942 F.2d 512, 514 (1991) (plaintiff who secured a $15,000

settlement of her Title VII claim received award for fees

incurred in state unemployment benefits proceeding where

the work was ‘“ ‘useful and substituted for work at the

judicial stage that would have been ordinarily necessary

to a successful outcome’ of Bobbitt’s civil rights claim’’) ;

McDonald v. Armontrout, 860 F.2d 1456, 1462 (1988) (plain-

tiffs who prevailed in a Section 1983 action challenging prison

conditions compensated under Section 1988 for investigative

work performed during a previous habeas corpus proceeding,

because the work “obviated the need for comparable work in”

litigation challenging the constitutionality of prison condi-

tions and “contributed directly to [its] successful outcome”

(brackets in original) ); Jenkins v. Missouri, 862 F.2d 677

(1988) (prevailing parties in school desegregation case

awarded fees for work in school district tax levy elections

because remedy granted by district court was contingent on

passage of tax increases).

cic aii aia ial

14

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney General

RONALD J. MANN

Assistant to the Solicitor General

WILLIAM KANTER

MICHAEL E. ROBINSON

Attorneys

May 1993

TY U. & GOVERNMENT PRINTING OFFICE. 1993 342479 60264