Petition for Writ of Certiorari — Wade v. Coughlin

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IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL WADE, et al,

Petitioners,

DIANE COUGHLIN, et al,

Respondents.

On Petition For Writ Of Certiorari To

The United States Court Of Appeals For The Fourth

Circuit

PETITION FOR WRIT OF CERTIORARI

Steven Ney*

Laurence J. Eisenstein

MARYLAND DISABILITY

LAW CENTER

1400 Mercantile Lane

Largo, Maryland 20774

(301) 925-9871

*Counsel of Record

Dwight Sullivan

AMERICAN CIVIL

LIBERTIES UNION OF

MARYLAND

2219 St. Paul Street

Baltimore, Maryland 21208

(410) 889-8550

Ira Burnim

BAZELON CENTER

FOR MENTAL HEALTH

LAW

1101 Fifteenth Street, N.W.

Suite 1212

Washington, D.C. 20005

(202) 467-7530

Arthur B. Spitzer

AMERICAN CIVIL

LIBERTIES UNION OF

THE NATIONAL

CAPITAL AREA

1400 20™ Street, N.W.

Washington, D.C. 20036

202-457-0800

Attorneys for Petitioners

i

QUESTION PRESENTED

The question presented is the same one that this Court

agreed to review, but did not resolve, in Friends of the Earth v.

Laidlaw Environmental Services (TOC), Inc., 120 S. Ct. 693,

711 (2000): 3

Whether plaintiffs may rely on the "catalyst theory" to

demonstrate that they are "prevailing parties" and thus eligible

to recover attorney’s fees and costs pursuant to federal fee

shifting statutes.

li

PARTIES TO THE PROCEEDING

The petitioners, Michael Wade, Timothy Wade, and

John McClelland, are the three surviving plaintiffs from the

case that was pending in the district court. The respondents are

the State of Maryland and two state officials who were sued in

their official capacities: Diane Coughlin, the Director of the

Developmental Disabilities Administration; and, Georges C.

Benjamin, the Secretary of the Department of Health and

Mental Hygiene.

iii

TABLE OF CONTENTS

Page

ef ge ey ss. Re a ee ere i

PARTIES TO THE PROCEEDING ..........cccceees ii

SE 5b os bh ies tks eee dene 1

PEI a as ke cask cud seeunseas eceanewe ae

ests Be 8 ee pry nee 2

pee ge ae 0 8! | ee ee ee 2

A. The Underlying Lawsuit ............... -

B. The Petitions for Attorney’s Fees and

Sa alee & sades WO Nitn ds SA Soe ae se 7

REASONS FOR GRANTING THE WRIT ............- 7

I. This Court Has Already Expressed Interest

In Determining Whether the Catalyst

Theory Remains Viable ............... 10

Il. The Fourth Circuit’s Rejection of the

Catalyst Theory Conflicts With Eleven Other

Circuits

iv

III. | The Continued Viability of the Catalyst

Theory Is An Exceptionally Important

CN i TASS EEA ASE 15

CORRE ATE oi 5 eR 16

TABLE OF AUTHORITIES

FEDERAL CASES

Page

Arvinger v. Baltimore, 31 F.3d 196

I ae eich sais seicasntasietniaaneccvionceienssansiinaninnns 9

Baumgartner v. Harrisburg Hous. Auth.,

21 F.3d 541 (3d Cir. 1994)... eee 13, 14, 15

Beard v. Teska, 31 F.3d 942 (10th Cir. 1994) .. 13, 14

Buckhannon Bd. and Care Home, Inc. v. West Va.

Dept. of Health and Human Resources, 2000

WL 42250 (4th Cir. 2000) (unpublished),

petition for cert. filed, 68 U.S.L.W. 3741

(U.S. May 15, 2000) (No. 99-1848) ....u....... 4,10

Cady v. Chicago,

43 F.3d 326 (7th Cir. 1994) wees 13, 14

Craig v. Gregg County, 988 F.2d 18

CS CE Se isi A icici 13

Evans v. Jeff D., 475 U.S. 717 (1986) .........sssceeeeees 9

Farrar v. Hobby, 506 U.S. 103 (1992) «1... 10

-vi-

Friends of the Earth, Inc. v. Laidlaw Environmental

Services (TOC), Inc., 149 F.3d 303 (4th Cir.

1998), vacated and remanded, 120 S. Ct. 693

(DOGG) .ccecitininseisvsiitncthannidesiitaeavenntbtimaniednanteninicin 9

Friends of the Earth, Inc. v. Laidlaw Environmental

Services (TOC), Inc., 120 S. Ct. 693

(QOD) snscesniinservinsasqnitsiinhintstittlinashaleninbilinntilaaas 10, 11

Gamble v. Maryland State Dept. of Educ., 1996 WL

406258 (4th Cir. July 22, 1996) ...........seseeeee 9,12

Hanrahan v. Hampton, 446 U.S. 754 (1980) ......... 12

Hensley v. Eckerhart, 461 U.S. 424 (1983) ........... 13

_ Hewitt v. Helms, 482 U.S. 755 (1987) ......... 7, a8, ia

Kilgour v. Pasadena, 53 F.3d 1007

A | RR ee at SR) ae 13, 14

Little Rock School Dist. v. Pulaski County

Special School Dist. No. 1 17 F.3d 260 (8th Cir.

TOPE) xxvsscicunnsguhitidaaiadigiitmamaianmandenciantl 13,14

Maduka v. Meissner, 114 F.3d 1240 -

CORA. Gs BUD niicnsssmsatstinistindstictaidasinniaion 13

Maher v. Gagne, 448 U.S. 122 (1980) ...............000- 12

Marbley v. Bane, 57 F.3d 224 (2d Cir. 1995) .. 13, 14

Marek v. Chesney, 473 U.S. 1 (1985) .0.........cceeeeeeee 9

- Vii -

Morris v. West Palm Beach, 194 F.3d 1203

CE Ele SPUD scecncncthahicicedbenncccailiiies 13, 14, 15

New Hampshire v. Adams, 159 F.3d 680

CRG SD Sissies daiesinebacatitintndnaeicnndinns 13

Paris v. U.S. Department of Housing and Urban

Development, 988 F.2d 236 (1st Cir. 1993) ..... 13

Payne v. Bd. of Educ., Cleveland City Schools, 88

De Fae Ce OD iret cctiedsitncaseiiscnce 13, 14

Pembroke v. Wood County, Texas, 981 F.2d 225

(Sth Cir.), cert. denied, 508 U.S. 973 (1993) ... 13

Ruckelshaus v. Sierra Club, 463 U.S. 680

COI shistiitaiaattataltasal ina iitatlich bck iin atecaseckhaphabiohsts 9

S-1 and S-2 By and Through P-1 and P-2 v. State

Board of Education, 6 F.3d 160 (4th Cir. 1993),

reversed, 21 F.3d 49 (4" Cir.) (en banc), cert.

denied, 513 U.S. 876 (1994) ..........cscccsecceeessees 15

S-1 and S-2 By and Through P-1 and P-2 v. State

Board of Education, 21 F.3d 49 (4th Cir.),

— cert. denied, 513 U.S. 876 (1994) ................ 3,10

Smith v. Univ. of North Carolina,

632 F.2d 316 (4th Cir. 1980) ..................scceesceees 3

Statewide Reapportionment Advisory Comm. v.

Beasley, 99 F.3d 134 (4th Cir. 1996),

cert. denied, 520 U.S. 1166 (1997) ...................4 9

- Vili -

Texas State Teachers Ass'n v. Garland Indep.

School Dist., 489 U.S. 782 (1989) ..............0 13

Zinn v. Shalala, 35 F.3d 273

RE als MTOR weieditensineoesosbilidstitiittaiiiotga 13, 14, 15

FEDERAL STATUTES

ee cs Th Re Riksta iicntarieiadgnittniartnitibicaiainiiainn l

Be se Le ucdintinkitnniteanintaiihdigitpasasegaiindins ye

Ax Be snickers 2, 3, 4, 8

SF CEE. ee ince tcsstninnciintaitabinanibitiniaiidlliniianen .

LEGISLATIVE HISTORY

H.R. Rep. No. 94-1558 (1976), reprinted in

Subcomm. on Constitutional Rights,

94" Cong., 2d Sess. Civil Rights Attorney’s

Fees Awards Act of 1976 Sourcebook

RD Bo SPR r nt Re Tn ae EN OES 8

S. Rep. No. 94-1011 (1976), reprinted in 1976

U.S. Code Cong. & Admin. News 5908 ............. 8

IN THE

SUPREME COURT OF THE UNITED STATES

MICHAEL WADE, et al.,

Petitioners,

v.

DIANE COUGHLIN, et al.,

Respondents.

On Petition For Writ Of Certiorari To

The United States Court Of Appeals

For The Fourth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals is unpublished and

reproduced in the Appendix at la-9a. The opinion of the

district court is unpublished and reproduced in the Appendix at

10a-15a.

JURISDICTION

The judgment of the court of appeals was entered on

May 24, 2000. This Court has jurisdiction pursuant to 28

U.S.C. § 1254(1).

2

STATUTES INVOLVED

The relevant text of 42 U.S.C. § 1988(b), 42 U.S.C. §

12205 and 29 U.S.C. § 794a(b) is set forth in the Appendix at

16a.

STATEMENT OF THE CASE

Petitioners are three individuals with developmental

disabilities who were confined by the State of Maryland to the

Great Oaks Center, a 24-hour institutional care facility owned

and operated by the State that was located in Silver Spring,

Maryland.' They sued the State and the individual defendants

in their official capacities seeking a transfer to community

homes for themselves and the other residents at Great Oaks,

and to enjoin the State from admitting any new residents to the

Center.

Petitioners now seek to recover their reasonable

attorney’s fees and costs, which total more than $1 million,

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

U.S.C. § 1988(b), and other fee shifting statutes, because more

than four years after this lawsuit was commenced the State

"voluntarily" agreed to transfer petitioners and all but two of

the other Great Oaks residents to community-based homes, and

close the Center. Although the State had been given the

opportunity to remedy the problems at Great Oaks before

petitioners filed their lawsuit, it chose to wait until shortly

: There were originally six plaintiffs when this

case was filed. Three of the original plaintiffs died while this

case was pending in the district court and they were dismissed

by the court below.

3

before trial and after significant attorney’s fees and costs had

been incurred to finally acquiesce to plaintiffs’ requests.

Petitioners rely on the "catalyst theory" to establish that

they are "prevailing parties" and thus eligible to recover the

amounts that they reasonably incurred in litigating this case.’

Under this doctrine, plaintiffs may recover their attorney’s fees

and costs, if their lawsuit serves as a "catalyst which cause[s]

the defendant to remedy his errant ways." Smith v. Univ. North

Carolina, 632 F.2d 316, 347 (4" Cir. 1980).

The district court held that petitioners had “advanced a

strong argument" for prevailing party status and "presented a

substantial showing" that they "contributed in a significant way

to the results" that were obtained by the lawsuit, but said that

it was constrained to deny the petitions because the court of

appeals had precluded plaintiffs from relying on the catalyst

theory by its decision in S-/ and S-2 By and Through P-1 and

P-2 v. State Bd. of Educ., 21 F.3d 49 (4" Cir.) (en banc), cert.

denied, 513 U.S. 876 (1994) (hereinafter "S-/"), which

overruled the above-cited part of Smith and other cases. App.

The plaintiffs brought claims under the Due

Process and Equal Protection Clauses of the United States

Constitution, the Social Security Act, the Rehabilitation Act of

1973 (Rehabilitation Act), and the Americans with Disabilities

Act (ADA). Attorney’s fees and costs are available under

§1988 for the constitutional claims and for the claim arising

under the Social Security Act. The Rehabilitation Act and the

ADA separately permit the award of attorney’s fees and costs.

See 29 U.S.C. § 794a(b); 42 U.S.C. § 12205 (reproduced at

App. 16a). Each of the attorney’s fee statutes at issue in this

case provides that "prevailing parties" are eligible for an award

of reasonable attorney’s fees and costs.

4

12a-13an 3. Ina sharply divided (7-6) decision, the court of

appeals in S-/ held that absent a formal judgment, consent

decree or settlement agreement, plaintiffs may not recover

attorney’s fees and costs under 42 U.S.C. § 1988. Jd. at 51.

Petitioners appealed the district court’s decision and

filed a petition for initial hearing en banc, requesting

reconsideration of S-]. The en banc petition was denied and

the panel issued a per curiam decision, which affirmed that S-/

barred any recovery of attorney’s fees and costs under the

catalyst theory.’

Petitioners would be eligible to recover their attorney’s

fees and costs in any other circuit, except the one in which they

brought their case. For these and other reasons, petitioners

request that this Court correct the rule fashioned by the court

below.

A. The Underlying Lawsuit

Petitioners filed the underlying lawsuit on September 6,

1991 through their next friends, seeking a transfer for

themselves and all other Great Oaks residents to community-

‘ Shortly before affirming the district court in this

case, another panel of the Fourth Circuit relied on S-/ to deny

another group of plaintiffs the opportunity to demonstrate their

eligibility for attorney’s fees by way of the catalyst theory.

Those plaintiffs have filed a petition that is now pending with

this court. Buckhannon Bd. and Care Home, Inc. v. West Va.

Dept. of Health and Human Resources, 2000 WL 42250 (4*

Cir. 2000) (unpublished), petition for cert. filed, 68 U.S.L.W.

3735, 3741 (U.S. May 15, 2000) (No. 99-1848).

5

based homes, and to prevent the State from admitting any new

residents to the Center.‘ Their complaint was filed nine months

after the Department of Justice ("DOJ") completed an

investigation in which it found that the conditions at Great

Oaks deprived residents of their constitutional rights and that

such conditions posed a serious threat to the residents’ health

and safety. Before filing their lawsuit and after DOJ issued its

report, petitioners attempted over many months to negotiate a

settlement with defendants, but defendants refused to agree to

plaintiffs’ requests. During the discovery stage of this case,

plaintiffs uncovered an extraordinary pattern of ongoing abuse

and neglect of residents by Great Oaks staff, requiring the

discipline of more than 450 staff members.°

In initially refusing to transfer plaintiffs and other

residents to community-based homes, defendants relied on

informal policies and practices that violated federal law. For

example, they allowed parents to veto recommendations made

by a resident’s treatment team that community placement was

appropriate for that individual. (This came to be called the

: This lawsuit was originally filed as a class

action. After the State agreed to treat the case as a class action

for all purposes and that a representative sample of residents

could be used for discovery purposes, the motion for class

Certification was withdrawn without prejudice.

, Some of the abuse uncovered by plaintiffs led to

the filing of criminal charges.

" Petitioners acknowledge, as they did in the

courts below, that parents or close relatives have a substantial

interest in decisions that affect their family member and that

they should be allowed to express their views regarding the

6

"parental veto.") Also, a treatment team would refuse to:

recommend community placement for a resident who had

certain medical needs or who exhibited "challenging"

behaviors, even though there was no evidence that such needs

and behaviors could not be handled in community facilities.

In the fall of 1995, after attorneys and paralegals had

spent thousands of hours taking dozens of depositions, working

‘with expert witnesses, filing motions, and preparing for the trial

that had been set by the district court for the following June,

defendants abruptly reversed the informal policies and practices

that had prevented the discharge of many Great Oaks residents

to community facilities. They abolished the parental veto by

agreeing to hold individualized administrative hearings for

parents or guardians who wished to challenge the State’s

decision to transfer residents to community facilities, and they

substantially scaled back the types of medical conditions and

challenging behaviors that prevented residents from community

placement. As a result, all but two Great Oaks residents were

discharged to community facilities. The State then closed the

Center and moved to dismiss the underlying lawsuit. After the

Center was closed, the parties entered into a stipulation

dismissing the case.

most appropriate placement. But such objections to

community placement arose in this case either from a lack of

understanding of the facilities and supports that are available in

community facilities, or from a lack of knowledge of the abuse

and neglect that was endemic at the Great Oaks Center. In

November 1991, 103 parents and guardians filed declarations

stating that they were opposed to community placement for

their child or ward. After an administrative hearing process was

completed, almost all of the parents who had previously

opposed community placement withdrew their objections.

7

B. The Petitions for Attorney’s Fees and Costs

Having succeeded in convincing defendants to give

them the relief that they sought, plaintiffs then requested that

the district court award them their reasonable attorney’s fees

and costs. Plaintiffs filed two petitions totaling $1,081,588.26

and supported their claim with detailed declarations in support

of these amounts as well as other documentation. Defendants

reserved their argument on whether plaintiffs had in fact caused

the State to transfer almost all of the Great Oaks residents to

community facilities and opposed the petitions solely on the

ground that plaintiffs were foreclosed by S-/ from arguing that

they had been the catalysts that brought about these changes.

The district court and the court of appeals agreed with the

defendants.

REASONS FOR GRANTING THE WRIT

The Fourth Circuit’s "no catalyst" rule conflicts with

statements from this Court and the rule followed in eleven

other courts of appeals, all of which permit plaintiffs to use the

catalyst theory to demonstrate that they are eligible to recover

attorney’s fees.’ This Court and all of these other courts of

appeals recognize that eligibility for attorney’s fees is

predicated on outcomes, not formalities. See, e.g., Hewitt v.

Helms, 482 U.S. 755, 761 (1987) ("In all civil litigation, the

judicial decree is not the end but the means."). The Fourth

Circuit’s rule has the perverse effect of discouraging

defendants, like the ones here, from making good faith attempts

i The only other court of appeals, the U.S. Court

of Appeals for the Federal Circuit, appears not to have faced

this issue.

8

to amicably settle cases. It encourages defendants to drag cases

out— continuing to violate the law— until they "voluntarily"

correct their violations just before judgment, leaving plaintiffs

(many of whom, like the ones here, are not well-financed) to

bear the cost of having brought such violations to the attention

of the defendant and the court.

The "no catalyst” rule is not grounded in the statutory

language of 42 U.S.C. § 1988 or any other fee-shifting statute,

and runs counter to the aim of Congress when it enacted such

laws. Nothing in the term "prevailing parties" suggests that a

formal judgment, consent decree or settlement agreement

serves as the exclusive means by which a plaintiff can become

eligible to recover attorney’s fees or costs. Indeed, relevant

legislative history strongly suggests the contrary— that

Congress intended for plaintiffs to be able to rely on the

catalyst theory to demonstrate such eligibility. See, e.g., S.

Rep. No. 94-1011 at 5 (1976), reprinted in 1976 U.S. Code

Cong. & Admin. News 5908, 5912 ("For purposes of the award

of counsel fees, parties may be considered to have prevailed

when they vindicate rights through a consent judgment or

without formally obtaining relief") (Attorney’s Fees Awards

Act of 1976); H.R. Rep. No. 94-1558 at 7 (1976), reprinted in

Subcomm. on Constitutional Rights, 94" Cong., 2d Sess., Civil

Rights Attorney’s Fees Awards Act of 1976 Source Book 215

(Comm. Print 1976) ("[A]fter a complaint is filed a defendant

might voluntarily cease the unlawful practice. A court might

still award fees even though it might conclude as a matter of

equity that no formal relief, such as an injunction, is needed.").

The "no catalyst" ruie also thwarts the legislative policy

underlying the attorney’s fee statutes, which is to encourage

legal counsel to help plaintiffs vindicate violations of their

rights. See, e.g.,S. Rep. No. 94-1011 at 2 (1976), reprinted in

1976 U.S. Cong. Code & Admin. News 5910 ("In many cases

9

arising under our civil rights laws, the citizen who must sue to

enforce the law has little or no money with which to hire a

lawyer. If private citizens are to be able to assert their civil

rights, and if those who violate the Nation’s fundamental laws

are not to proceed with impunity, then citizens must have the

opportunity to recover what it costs them to vindicate these

rights in court."). See also Evans v. Jeff D., 475 U.S. 717, 741

(1986) (Section 1988 gives "victims of civil rights violations a

powerful weapon that improves their ability to employ counsel,

to obtain access to the courts and thereafter to vindicate their

rights... .") Plaintiffs’ inability to rely on the catalyst theory

for recovery of fees and costs discourages lawyers from taking

such cases, because defendants can avoid the liability of

plaintiffs’ litigation fees and costs by unilaterally granting

relief at any time before judgment.

The Fourth Circuit’s "no catalyst" rule affects a

substantial number of cases. There are more than 150

attorney’s fee statutes, almost all of which predicate eligibility

for attorney’s fees on the claimant’s ability to demonstrate

some degree of success. Ruckelshaus v. Sierra Club, 403 U.S.

680, 684 (1983); Marek v. Chesney, 473 U.S. 1, 44-51 (1985)

(Appendix listing federal fee-shifting statutes). It appears that

the Fourth Circuit would extend the "no catalyst" rule to all

such statutes; in the six years that it has been in effect the

Fourth Circuit has applied the "no catalyst” rule in a wide

variety of cases. See, e.g., Arvinger v. Baltimore, 31 F.3d 196

(4® Cir. 1994) (Title VII); Gamble v. Maryland State Dept. of

Educ., 1996 WL 406258, **2 (4" Cir. July 22, 1996)

(Individuals with Disabilities Education Act) (unpublished);

Statewide Reapportionment Advisory Comm. v. Beasley, 99

F.3d 134, 136 (4" Cir. 1996), cert. denied, 520 U.S. 1166

(1997) (Voting Rights Act); Friends of the Earth, Inc. v.

Laidlaw Environmental Services (TOC), Inc., 149 F.3d 303,

10

306 n. 5 (4" Cir. 1998), vacated and remanded, 120 S. Ct.693

(2000) (Clean Water Act); Buckhannon Bd. and Care Home,

Inc. v. West Va. Dept. of Health and Human Resources, 2000

WL 42250 (unpublished) (Fair Housing Amendments Act).

I, This Court Has Already Expressed Interest

In Determining Whether the Catalyst

Theory Remains Viable

Earlier this term, this Court suggested that the Fourth

Circuit’s reasoning in requiring a formal judgment, consent

decree or settlement agreement before awarding fees is

seriously flawed. The question of whether plaintiffs could be

precluded from relying on the catalyst theory was presented to

this Court in Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc., 120 S. Ct. at 711. After

briefing and argument, this Court decided that it would be

"premature" to decide the issue in the context of that case,

because the district court had never ruled on the plaintiffs’

petition for fees and costs. But this Court noted that many

other circuits do not follow the Fourth Circuit’s "no catalyst"

rule.2 Jd. It also disagreed with the court of appeals’

interpretation of Farrar v. Hobby, 506 U.S. 103 (1992), the

case that the Fourth Circuit relied upon in S-/ to reject the

catalyst theory. See 21 F.3d at 51. In Friends of the Earth, this

, In the brief that it filed in support of petitioners

in Friends of the Earth, the United States agreed that "there is

good reason to question the court of appeals’ dictum that

‘[petitioners’] failure to obtain relief on the merits of their

claim precludes any recovery of attorney’s fees or litigation

costs ....’" Brief of the United States as Amicus Curiae

Supporting Petitioners (U.S. No. 98-822) (filed May 17, 1999).

11

Court said that Farrar "involved no catalytic effect” and that

the issue of the continuing validity of the catalyst theory had

not been "presented for this Court’s decision in Farrar." 120

S. Ct. at 711?

This Court has endorsed the catalyst theory in other of

its decisions. In Hewitt v. Helms, 482 U.S. 755, 760-61 (1987),

this Court said:

It is settled law, of course, that relief need not

be judicially decreed in order to justify a fee

. Despite this, the Fourth Circuit has been

unwilling to overrule S-/. This Court decided Friends of the

Earth after the parties to this petition completed briefing in the

court of appeals. In their petition for initial hearing en banc,

petitioners pointed out that this Court had accepted certiorari

in Friends of the Earth and that the issue presented in the en

banc petition was the same as one of the issues that this Court

would review in Friends of the Earth. The Fourth Circuit

denied the en banc petition without comment. After this Court

decided Friends of the Earth, petitioners informed the court

below of this Court’s decision, and the case was also the

subject of much discussion at oral argument, but the panel

chose not to address the effect of Friends of the Earth in its

opinion affirming the district court. Likewise, the court of

appeals rejected the rehearing and en banc petition of

appellants in Buckhannon (see supra n. 3), which also pointed

out that Friends of the Earth had disapproved the Fourth

Circuit’s interpretation of Farrar. See Appellants’ Petition for

Rehearing and Petition for Rehearing En Banc 8-9,

Buckhannon Bd. and Care Home, Inc. v. West Va. Dept. of

Health and Human Resources (4" Cir. No. 99-1424) (filed Feb.

24, 2000).

- 12

award under § 1988. A lawsuit sometimes

produces voluntary action by the defendant that

affords the plaintiff all or some of the relief he

sought through a judgment - e.g. . .. achange in

conduct that redresses the plaintiff's grievances.

When that occurs, the plaintiff is deemed to

have prevailed despite the absence of a formal

judgment in his favor.

This Court also said in Hewitt that "if the defendant, under

pressure of the lawsuit, alters his conduct . . . towards the

plaintiff that was the basis for the suit, the plaintiff will have

prevailed" and that the "action (or cessation of action) by the

defendant" toward the plaintiff is the true measure of success

in the judicial process. Jd. at 761.'° See also Maher v. Gagne,

448 U.S. 122, 129 (1980) ("For purposes of the award of

counsel fees [under § 1988] parties may be considered to have

prevailed when they vindicate rights through a consent

judgment or without formally obtaining relief.") (quoting S.

Rep. No. 94-1011 at 5 (1976)); Hanrahan v. Hampton, 446

U.S. 754, 757 (1980) (per curiam) (Person may "be a

‘prevailing party’ . . . without formally obtaining relief.").

Time and time again, this Court has said that to

demonstrate success for purposes of the federal fee-shifting

statutes, a plaintiff must point only to a significant issue in

litigation "which achieves some of the benefit the parties

” This Court ultimately declined to rule on the

validity of the catalyst theory in Hewitt, because it held that

even if petitioner had caused the defendant to alter the

challenged policy, petitioner could not show that he had

benefitted from the change in a way that would allow him to

recover attorney’s fees. Id. at 763-64.

13

sought in bringing the suit." Hensley v. Eckerhart, 461 U.S.

424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275,

278-79 (1978)). See also Texas State Teachers Ass'n. v. |

Garland Indep. School Dist., 489 U.S. 782, 792 (1989) ("A

prevailing party must be one who has succeeded on any

significant claim affording it some of the relief sought . . - .”).

The catalyst theory fits well within this "generous formulation."

Hensley, id.

Il. The Fourth Circuit’s Rejection of the

Catalyst Theory Conflicts With Eleven

Other Circuits

No other circuit agrees with the Fourth Circuit’s

rejection of the catalyst theory. See Paris v. U.S. Department

of Housing and Urban Development, 988 F.2d 236 (1* Cir.

1993); New Hampshire v. Adams, 159 F.3d 680, 685 (1* Cir.

1998); Marbley v. Bane, 57 F.3d 224, 234 (2d Cir. 1995);

Baumgartner v. Harrisburg Hous. Auth., 21 F.3d 541, 546-550

(3d Cir. 1994); Craig v. Gregg County, 988 F.2d 18 (5® Cir.

1993); Pembroke v. Wood County, Texas, 981 F.2d 225, 231 n.

27 (5" Cir.), cert. denied, 508 U.S. 973 (1993); Payne v. Bd. of

Educ., Cleveland City Schools, 88 F.3d 392, 397 (6" Cir.

1996); Zinn v. Shalala, 35 F.3d 273, 274-76 (7™ Cir. 1994);

Cady v. City of Chicago, 43 F.3d 326, 328 n. 2 (7® Cir. 1994);

? Little Rock School Dist. v. Pulaski County Special School Dist.

No. 1, 17 F.3d 260, 263 n. 2 (8® Cir. 1994); Kilgour v. City of

Pasadena, 53 F.3d 1007, 1010 (9* Cir. 1995); Beard v. Teska,

31 F.3d 942, 951-52 (10 Cir. 1994); Morris v. West Palm

Beach, 194 F.3d 1203, 1207 (11 Cir. 1999); Maduka v.

Meissner, 114 F.3d 1240, 1241 (D.C. Cir. 1997) (per curiam).

Many of these courts have expressly disagreed with the

statement in S-/ that Farrar overruled the catalyst theory. E.g.

Marbley, 57 F.3d at 234; Baumgartner, 21 F.3d at 549-50;

14

Payne, 88 F.3d at 397 n. 2; Zinn, 35 F.3d at 275; Little Rock

School Dist., 17 F.3d at 263 n. 2; Kilgour, 53 F.3d at 1010;

Beard, 31 F.3d at 951-52; Morris, 194 F.3d at 1207. The

others have continued to permit plaintiffs to rely on the catalyst

theory, without addressing the argument that this Court’s

decision in Farrar required its abolition.

The courts of appeals that permit plaintiffs to use the

catalyst theory emphasize three factors in their decision to do

so. First, they point to the statements made by this Court in the

cases cited in Section I of this petition, which teach that so long

as changes in the defendant’s behavior toward the plaintiff are

caused by the plaintiff's lawsuit, no formal declaration by the

court or concession by the defendant is required before a

plaintiff can be eligible for attorney’s fees. See, e.g., Payne, 88

F.3d at 397; Cady, 43 F.3d at 328. Second, they point out that

there is a strong policy interest in permitting plaintiffs to utilize

the catalyst theory, because its availability encourages attorneys

to take such cases, reinforcing Congress’ intent in enacting

attomney’s fees statutes. E.g., Baumgartner, 21 F.3d at 548

("[F]rom a policy standpoint, if defendants could deprive

plaintiff of attorney’s fees by unilaterally mooting the

underlying case by conceding to plaintiffs’ demands, attorneys

might be more hesitant about bringing their civil rights suits, a

result inconsistent with Congress’ intent in enacting Section

1988."); Marbley, 57 F.3d at 233 ("Congress has deemed

litigation to be a worthwhile tool in protecting and vindicating

important federal rights. This is the general rationale

underlying Section 1988."); Morris, 194 F.3d at 1207 ("The

catalyst test creates incentives for plaintiffs to initiate

potentially meritorious civil rights cases and for plaintiffs to

discontinue litigation after receiving through the defendant’s

acquiescence the remedy initially sought.") Third, they observe

that the catalyst theory has long been applied in the lower

ae

courts without creating the excessive fact-finding burden that

concerned the Fourth Circuit, when it chose to abolish the

catalyst theory. See S-J, 6 F.3d 160, 171 (panel decision)

(Wilkinson, J. dissenting), incorporated by 21 F.3d at 51. The

court in Baumgartner stated:

the factual question of what work was

done and what result it produced is

present in any determination of

attorney’s fees. While it may differ to

some extent in a “catalyst” case, that is

really a question of degree and one

which the district courts, in their fact

finding expertise, deal with on a regular

basis.

21 F.3d at 548. See also Zinn, 35 F.3d at 274 (Explaining that

the catalyst theory has been "long recognized."); Morris, 194

F.3d at 1206 (same).

Ill. The Continued Viability of the Catalyst

Theory Is An Exceptionally Important

Question

The question presented here goes to a core concern of

this Court— maintaining uniformity among the federal courts

of appeal on an important matter of federal statutory

interpretation. No interest is served by having a single court of

appeals differently interpret the same federal statutory

provision from its sister circuits, especially when that provision

(or substantially similar formulations of it) appears widely in

a large number of statutes, all of which are designed to achieve

the same goal. The "no catalyst" restriction that the Fourth

Circuit has placed on plaintiffs who seek to recover attorney’s

fees and- costs for their successful efforts at remedying

violations of their constitutional and federal rights should be

overruled by this Court because it is unwarranted, contrary to

well-established law and substantially hinders the vindication

“of important federal rights in a larger number of cases.

CONCLUSION

For the foregoing reasons, petitioners respectfully

request that their petition for writ of certiorari be granted.

Respectfully submitted,

Steven Ney* Ira Burnim

Laurence J. Eisenstein BAZELON CENTER FOR

MARYLAND DISABILITY MENTAL HEALTH LAW

LAW CENTER 1101 Fifteenth Street, N.W.

1400 Mercantile Lane Suite 1212

Largo, Maryland 20774

(301) 925-9871

Washington, D.C. 20005

(202) 467-7530

*Counsel of Record Arthur B. Spitzer

AMERICAN CIVIL

Dwight Sullivan LIBERTIES UNION OF

AMERICAN CIVIL THE NATIONAL ’

LIBERTIES UNION OF CAPITAL AREA

MARYLAND 1400 20% Street, N.W.

2219 St. Paul Street Washington, D.C. 20036

Baltimore, Maryland 21208 (202) 457-0800

(410) 889-8555

Attorneys for Petitioners

Dated: July 14, 2000

APPENDIX

la

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MICHAEL WADE, a/k/a/ Mark A.

Miawer, by and through his next

friend; TIMOTHY WADE, a/k/a Paul

Marchand, by and through his next

friend; JOHN MCCLELLAND, a/k/a/

Christine E. Boswell, by and through

his next friend,

Plaintiffs-Appellants,

and

MARY HUNT, a.k.a. Christie E.

Boswell, by and through her next

friend; MATROY FOSTER, a/k/a/

Barbara Nelson, by and through her

her guardian, All of the above on

Behalf of Themselves and All Other

Similarly Situated,

Plaintiffs,

v.

DIANE COUGHLIN, Director,

Developmental Disabilities

Administration; ALLEN RADINSKY,

Administrator, Great Oaks Center;

GEORGES C. BENJAMIN, Secretary,

Department of Health and Mental

Hygiene; THE STATE OF MARYLAND;

GREAT OAKS ASSOCIATION,

INCORPORATED, a Maryland nonstock

corporation,

Defendants-Appellees

No. 99-1560

etd

2a

VIRGINIA SOCIETY FOR HUMAN LIFE; s+»)

AMERICAN CIVIL LIBERTIES UNION OF )

NORTH CAROLINA LEGAL FOUNDATION, )

INCORPORATED; AMERICAN CIVIL

LIBERTIES UNION OF WEST VIRGINIA;

AMERICAN CIVIL LIBERTIES UNION OF

VIRGINIA,

Amici Curiae

i i i i

Appeal from the United States District Court

for the District of Maryland, at Baltimore

Catherine C. Blake, District Judge

(CA-91-2564-CCB)

Argued: March 1, 2000

Decided: May 24, 2000

Before MICHAEL, Circuit Judge and

G. Ross, Anderson, Jr., United States District Judge

for the District of South Carolina, siting by designation,

and James H. MICHAEL, Jr., Senior United States District

Judge for the Western District of Virginia, sitting

by designation

Affirmed by unpublished per curiam opinion.

COUNSEL

3a

ARGUED: Steven Ney, MARYLAND DISABILITY LAW

CENTER, Largo Maryland, for Appellants. Kathleen A.

Morse, Assistant Attorney General, Baltimore, Maryland, for

Appellees. ON BRIEF: Susan Goering, AMERICAN CIVIL

LIBERTIES UNION OF MARYLAND, Baltimore, Maryland;

Iran Burnim, BAZELON CENTER FOR MENTAL HEALTH

LAW, Washington, D.C.; Arthur B. Spitzer, AMERICAN

CIVIL LIBERTIES UNION OF THE NATIONAL CAPITAL

AREA, Washington, D.C., for Appellants. J. Joseph Curran,

Jr., Attorney General of Maryland, Maureen A. Dove, Assistant

Attorney General, Baltimore, Maryland, for Appellees. Roger

E. Warin, Tracy L. Hilmer, STEPTOE & JOHNSON, L.L-P.,

Washington, D.C. for Amici Curiae.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

OPINION

PER CURIAM

The State of Maryland voluntarily provided the relief

sought by § 1983 plaintiffs who are residents of a large State

facility for the developmentally disabled. There was no

settlement agreement, however, and the lawsuit was dismissed

by stipulation pursuant to Fed. R. Civ. P. 41(a)(1). Thereafter,

the plaintiffs invoked the "catalyst theory” of "prevailing party”

status to seek attorneys’ fees under 42 U.S.C. § 1988. The

district court denied the fee petitions on the ground that our

court had rejected the catalyst theory in S-/] and S-2 v. State

Board of Education, 21 F.3d 49 (4" Cir. 1994) (en banc).

Because we agree that S-7 and S-2 governs, we affirm.

4a

I.

The Great Oaks Center (the Center) in Silver Spring,

Maryland, was a residential institution for the developmentally

disabled that was operated by the State of Maryland through its

Development Disabilities Administration (DDA), a division of

the State Department of Health and Mental Hygiene (DHMH).

The Center opened in 1970 and its number of residents grew to

a peak of about 500 in 1978. Many of the Center’s residents,

including several of the plaintiffs in this case, were diagnosed

with "profound mental retardation." The Center proved to be

exceedingly difficult to run, and allegations of problems led the

U.S. Department of Justice (DOJ) in 1986 to commence an

investigation into conditions there, pursuant to the Civil Rights

of Institutionalized Person Act, 42 U.S.C. § 1997 et seq.

In January 1991 the DOJ issued written findings and

advised then-Governor Schaefer of Maryland that "the State

subjects its residents of Great Oaks to conditions that violate

their constitutional rights, including conditions that generally

threaten the[ir] health and safety." Although the DOJ

concluded that the "administration and staff at Great Oaks

appear{ed] committed to providing residents with appropriate

care in a safe environment," the DOJ discovered five conditions

that posed significant dangers to residents. First, according to

the DOJ, the Center failed to provide sufficient training for

residents to help them avoid undue risks to their personal

safety. This lack of training led the Center’s staff to make

unreasonable use of physical and chemical restraints. Second,

there was a general failure to provide residents a adequate

protection from physical injuries. Third, the Center’s staff was

not appropriately trained. As a result, residents were not

property supervised, which "contribute[d] to [the] alarmingly

high frequency of resident injuries." Fourth, physical therapy

Sa

services for residents were woefully inadequate. This

deficiency, the DOJ believed, had caused a number of residents

to lose the "ability feed themselves, walk, or propel their

wheelchairs." Fifth, recordkeeping at the Center was deficient.

For example, the Center did not keep behavioral records for

residents, and data about each resident’s progress (or lack of it)

were not collected in a consistent manner. Because of poor

recordkeeping, the staff was unable "to render [informed]

professional judgments regarding care, treatment, and training

of residents." The State contends that it took appropriate

remedial measures in response to the DOJ report.

Nevertheless, in September 1991, about eight months

after the DOJ issued its findings, six residents of the Center (by

their next friends) brought this § 1983 class action against the

State of Maryland and various officials (collectively, the

"State"), alleging deficiencies in the care provided at the

Center. By the agreement of counsel, a representative sample

of sixteen residents (ten percent of the population) was selected

for purposes of pretrial discovery. The Center produced the

complete institutional file for each of these residents, and

discovery began.

It appears that the Center continued to run into

difficulty after the DOJ report was issued and this lawsuit was

filed. For example, in the summer of 1994, the Center lost its

status as a Medicaid provider because it did not meet

certification requirements. By the end of 1994 the plaintiffs’

lawyers believed that a more comprehensive complaint was

warranted, and an amended complaint was filed on December

22, 1994. The theme of the amended complaint was that "Great

Oaks Center is a dangerous place to live." The plaintiffs

alleged (1) that they had been "subjected to injury, abuse,

neglect, and unnecessary physical restrains” and (2) that they

6a

had been denied "necessary medical care, as well as habilitative

services needed to prevent their deterioration,” in violation of

the Due Process and Equal Protection Clauses, the Social

Security Act, the Rehabilitation Act of 1973, and the

Americans with Disabilities Act. Among other things, the

plaintiffs took aim at the Center’s policy of allowing parents

(or close relatives) to override professional staff

recommendations to transfer residents into community-based

facilities. Injunctive relief was requested. The plaintiffs asked

that the State be (1) enjoined from admitting any new residents

the Center and (2) ordered to transfer current residents to

community living arrangements in accordance with the

recommendations of their treating professionals.

The State filed its answer to the amended complaint on

January 11, 1995. In addition to denying the charging

allegations of the amended complaint, the State defended the

Center’s policies and alleged that each resident was receiving

individualized care appropriately tailored to his or her

circumstances. Among other things, the State alleged that (1)

successful community placement efforts had reduced the

Center’s population to 160 residents, (2) the staff-to-resident

ratio had improved, (3) training programs for both staff and

residents had been instituted, (4) professional staff assessed

each resident’s needs on an ongoing basis, (5) restraints were

used infrequently and only in behavioral emergencies, (6) a

new incident tracking system had helped to reduce the number

of resident injuries, and (7) the physical appearance of the

Center had been improved.

On February 21, 1995, the district court consolidated

this case with three other (similar) cases and set a date for trial.

In the meantime, the State decided to close the Center. Dr.

Georges Benjamin, Deputy to the Secretary of DHMH, and

7a

Diane Ebberts, Acting Director of the DDA, told the Center’s

staff at a meeting in August 1995 that the Center was being

closed because of the pending lawsuit, high employee turnover,

high costs, and building repair needs. DHMH Secretary Martin

Wasserman mentioned the lawsuit when he reported on plans

to close the Center to committees of the Maryland General

Assembly in June 1995:

the closure of Great Oaks Center is based on

costs which are escalating beyond any other

Developmental Disabilities Administration

(DDA) facility, and upon employee recruitment

and retention problems which have made it

problematic for Great Oaks Center to maintain

its license and certification for federal Medicaid

funding, to meet U.S. Department of Justice

requirements, and to prepare for a successful

trial in the case of Hunt v. Meszaros [the

caption of this case in district court].

After the State decided to close the Center, the district

court, by order entered October 20, 1995, postponed the trial.

Shortly thereafter, beginning in November 1995, DHMH

Secretary Wasserman wrote individual letters to the residents

of the Center and their parents (or guardians). In each letter the

Secretary reported his findings that the resident "no longer

meets [state law] requirements for admission to a State

Residential Center because there is a less restrictive kind of

service that is available which is consistent with [his or her]

welfare and safety." The resident was accordingly designated

for transfer to "community placement." The Secretary further

acknowledged that "as a result of discussions with parties to a

lawsuit," the State had adopted a new procedure for resolving

any parental objection to the placement of a resident in a

8a

community-based facility. Parents would no longer have the

option to veto a professional recommendation of community

placement. Instead, any parental objection would be referred

(upon request of the parent) to an administrative law judge for

hearing and decision.

In January 1996, the State moved to dismiss the

amended complaint on the ground that the State was "doing

precisely" what the plaintiffs had requested in their prayer for

relief: in the State’s words, “the deinstitutionalization of

individual residents in community centers." In due course, all

but two of the Center’s residents were moved to community-

based housing, and the Center was closed.* On September 8,

1998, the parties stipulated to a dismissal of the lawsuit,

agreeing that there was "no further need for litigation." The

stipulation, however, stated that "the dismissal will have no

bearing on the parties’ positions for the purposes of attorneys’

fees and should [not] be construed ... as a settlement for the

purpose of attorneys’ fees."

The several lawyers for the plaintiffs pressed petitions

for attorneys’ fees and expenses, notwithstanding the dismissal.

Altogether, the lawyers sought fees and expenses in the amount

of $1,081,588.26. They were entitled to fees, they said,

because their clients were prevailing parties for purposes of 42

U.S.C. § 1988, The Civil Rights Attorney’s Fees Awards Act

of 1976. The lawyers argued to the district court that their

clients had prevailed because their lawsuit caused the State to

change its conduct and provide the relief requested (the

Center’s residents were placed in community-based homes and

the Center was closed), even though there was no enforceable

judgment or settlement documents. Fees were thus sought

under what is known as the "catalyst theory."

9a

The district court acknowledged that the plaintiffs had

“advanced a strong argument for prevailing party status" under

the catalyst theory, "in light of the closing of the Center and the

placement of its residents in the community." The court added

that the plaintiffs had "presented a substantial showing" that

their efforts had contributed in a significant way to this result.

However, the court stopped short of actually finding that the

plaintiffs’ lawsuit had served as a catalyst for the change in the

State’s position. Rather, the district court denied the petitions

for fees on the ground that the catalyst theory for attorneys’ fee

recovery is not available to a § 1983 plaintiff in this circuit.

See S-1 and S-2, 32 F.3d at 51 (rejecting the catalyst theory and

holding that an enforceable judgment, consent decree, or

settlement is necessary for prevailing party status under §

1988). The plaintiffs appeal.

Il.

After carefully considering the brief, the joint appendix,

and the arguments of counsel, we affirm on the reasoning of the

district court. See Hunt v. Meszaros, Civ. No. CCB-91-2564

(D. Md. Mar. 25, 1999).

AFFIRMED

* The State contends that the Center was closed because of (1)

the State’s commitment to community placement, (2) high

costs and problems with employee recruitment and turnover,

(3) capital improvement needs, and (4) prospects for a very

profitable sale of the Center’s real estate due to its prime

location near Washington, D.C.

10a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

MARY HUNT, ET AL.,

Plaintiffs

v. : Civil No. CCB-91-2564

LOIS MESZAROS, ET AL., :

Defendants ‘

GREAT OAKS

ASSOCIATION

Intervenor

MEMORANDUM

On September 6, 1991, the plaintiffs filed suit in this

court challenging conditions at the Great Oak Center ("the

Center"), a facility then operated by the Developmental

Disabilities Administration ("DDA") within the State of

Maryland’s Department of Health and Mental Hygiene

("DHMH"). The plaintiffs filed an amended complaint on

December 22, 1994, claiming that the care and treatment of

Center residents did not meet constitutional standards. As

described by the State defendants, the relief sought was "the

deinstitutionalization of the residents of the Center and

placement of individual residents in community facilities."

(Defendants’ Memorandum in Support of Their Motion to

Dismiss filed January 23, 1996, at 1) As also acknowledged by

the State, with regard to the relief sought by the plaintiffs,

"[djefendants are doing precisely that... ." (Id.) Well before

lla

April 1, 1998, when this case was dismissed by agreement, '

the Center had been closed and virtually all residents had been

placed in the community.

The plaintiffs, noting that the State initially opposed

their request to close the Center, and that as late as 1995 the

State had a practice of deferring to family opposition even

when the professional staff recommended community

An Agreement to dismiss~Wwas stated orally on the

record on April 17, 1998. A Stipulation of Dismissal was

submitted on March 22, 1999 and is being entered by the court

today. In relevant part, that Stipulation provides:

The parties agree that there is no further need

for litigation of this action. Great Oaks Center

is closed and all but two of the residents were

moved to community-based residential

programs. To the extent that plaintiffs

challenge the adequacy of placements, they

choose to do so in Maryland Disability Law

Center v. Wasserman, Case No. 90099040/CE

11746, Circuit Court for Baltimore City. The

parties further stipulate that the dismissal will

have no bearing on the parties’ positions for the

purposes of attorneys’ fees and shall be

- construed neither as a settlement for the purpose

of attorneys’ fees or as a waiver on the part of

the State defendants in asserting any defenses in

presently pending litigation, in other pending

litigation or in contemplated litigation.

12a

placement for a particular resident,” assert that they are entitled

to attorneys’ fees as a prevailing party under 42 U.S.C. § 1988.

They rely on a version of the "catalyst" theory previously

recognized by the Fourth Circuit. See DeMier v. Gondles, 676

F.2d 92, 93 (4 Cir. 1982); Bonnes v. Long, 599 F.2d 1316,

1319 (4 Cir. 1979). Under that theory, even in the absence of

an enforceable judgment, consent decree, or settlement, a

plaintiff may be able to establish its status as a prevailing party.

As explained in Bonnes, the court’s inquiry to determine

prevailing party status should first establish:

... the precise factual/legal condition that the

fee claimant has sought to change so as to gain

a benefit or be relieved of a burden. With this

condition taken as a benchmark, inquiry may

then turn to whether as a quite practical matter

the outcome, in whatever form it is realized, is

one to which the plaintiff fee claimant’s efforts

contributed in a significant way, and which

does involve an actual conferral of benefit or

relief from burden when measured against the

benchmark condition.

599 F.2d at 1319. Under that theory, the plaintiffs in this case

have advanced a strong argument for prevailing party status, in

light of the closing of the Center and placement of its residents

in the community.’

. See Petition for Interim Award of Attorneys’ Fees and

Expenses, Ex. 33.

. The plaintiffs must also show that their efforts

"contributed in a significant way” to the results obtained.

Bonnes, 559 F.2d at 1319. They have presented a substantial

13a

The decision on Bonnes, however, has been explicitly

overruled by the Fourth Circuit in S-]1 and S-2 By and Through

P-] and P-2 v. State Bd. of Educ. of N.C., 21 F.3d 49, 51 (4"

Cir. 1994) (en banc) (adopting at its own Judge Wilkinson’s

dissenting panel opinion in S-1 at 6 F.3d 160, 1658-72 (4" Cir.

1933)). Following Farrar v. Hobby, 506 U.S. 102 (1992), the

Fourth Circuit concluded that "[t]he fact that a lawsuit may

operate as a catalyst for post-litigation changes in a defendant’s

conduct cannot suffice to establish plaintiff as a prevailing

party." S-1, 21 F.2d at 51. See also Arvinger v. Mayor of

Baltimore, 31 F.3d 196, 202-03 (4" Cir. 1994); Clark v. Sims,

28 F.3d 420, 425 (4" Cir. 1994).‘

showing of such contribution in their Petition ‘or Interim

Award of Attorneys’ Fees and Expenses, includ ag statements

by Maryland officials indicating that this lawsuit was a factor

in the decision to close the Center. (Petition, Ex. 40 and 41).

In light of what I believe is controlling Fourth Circuit law on

the catalyst theory, however, I am not resolving this issue but

instead have permitted the defendants to reserve their right at

a later date to rebut the factual allegations in the Petition and to

dispute the reasonableness of the fees and expenses claimed,

should that become necessary. (See Defendants’ Memorandum

in Support of Opposition to Plaintiffs’ petition, at 1).

7 District courts in this Circuit nevertheless have found

the catalyst theory available for consideration as a factor in

determining the appropriate amount of fees to be awarded, if

the plaintiff's prevailing party status has been otherwise

established. Clark v. Sims, 894 F. Supp. 868, 872 (D. Md.

1995); see also Lucas v. Guyton, 901 F. Supp. 1047, 1055-56

(D.S.C. 1995). That construction of S-1 does not assist these

plaintiffs in being recognized as prevailing parties.

14a

Every other Circuit that has considered the catalyst

theory after Farrar appears to have recognized its continued

validity.* Strong public policy arguments may be articulated in

support of this result; perhaps even stronger arguments may be

made that the opinion in Farrar should not be read to overturn

a previously well-established basis for recovery of attorneys’

fees. See Statewide v. Beasley, 99 F.3d 134, 137 (4™ Cir.

1996) (Motz, J. concurring). In the absence of any Supreme

Court decision to the contrary, however, this court is of course

obligated to follow Fourth Circuit law.® Accordingly, without

: See New Hampshire v. Adams, 159 F.3d 680, 685 (1*

Cir. 1998); Marbley v. Bane, 57 F.3d 224, 234 (2d Cir. 1995);

Kilgour v. City of Pasadena, 53 F.3d 1007, 1010 (9 Cir.

1995); Cady v. City of Chicago, 43 F.3d 326, 328 n.2 (7 Cir.

ti Beare t__icek 31 F.3d 942, 951-52 (10" Cir. 1994);

mga la) rg is. Auth., 21 F.3d 541, 550 (3d

Cir. 1994); Little Rook Sch. Dist. v. Pulaski County Special

Sch. Dist., 17 F.3d 260, 263 n.2 (8" Cir. 1994); Craig v. Gregg

County, Tex., 988 F.2d 18, 20-21 (5" Cir. 1993); Citizens

Against Tax Waste v. Westerville city Sch. Dist. Bd. of Educ.,

985 F.2d 255, 257-78 (6" Cir. 1993).

: The plaintiffs also argued at the hearing on April 17,

1998 that the State’s decision to afford a hearing before an

administrative law judge if an individual or a family member

objected to a specific community placement, and Secretary

Wasserman’s announced willingness to abide by the results of

the hearing process (see Petition, Exh. 32), constituted a

material alteration in the legal relationship between the parties

that entitled the plaintiffs to prevailing party status. According

to the letter from Secretary Wasserman, the decision to offer a

hearing "was reached as a result of discussions with parties to

a lawsuit. ..." (Id.) It was a voluntary decision, however, not

15a

reaching the factual issues and the reasonableness of the

amounts claimed, a separate order denying the plaintiffs’

interim and supplemental petitions for award of attorneys’ fees

will be entered.

—March 25.1999 _ s/ Catherine C. Blake

Date Catherine C. Blake

United States District Judge

embodied in or enforceable through a judgment, consent

decree, or settlement of this lawsuit. Accordingly, while it

might be relevant for consideration under a catalyst theory, I do

not believe it is sufficient under S-1 to establish prevailing

party status. See Correa v. Vance, 950 F. Supp. 118, 122 (D.

Md. 1996).

16a

STATUTES INVOLVED IN THE CASE

42 U.S.C. § 1988(b):

In any action or proceeding to enforce a provision of section[

]... 1983 ... the court, in its discretion, may allow the

prevailing party, other than the United States, a reasonable

attorney’s fees as part of the costs ....

42 U.S.C. § 12205:

In any action or administrative proceeding commenced

pursuant to this chapter, the court or agency, in its discretion,

may allow the prevailing party, other than the United States, a

reasonable attorney’s fee, including litigation expenses, and

29 U.S.C. § 794a(b):

In any action or proceeding to enforce or charge a violation of

a provision of this subchapter, 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.