Opposition Brief — Brickwood Contractors, Inc. v. United States, 123 S. Ct. 871 (2003) (No. 02-553)

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In the Supreme Court of the G

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BRICKWOOD CONTRACTORS, INC., PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM, JR.

~ Assistant Attorney General

MICHAELJAY SINGER

MICHAEL E. ROBINSON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

This Court ruled in Buckhannon Board & Care

Home, Inc. v. West Virginia Department of Health &

Human Resources, 532 U.S. 598, 600 (2001), that the

term “prevailing party,” which is used in numerous fed-

eral statutes allowing courts to award attorney’s fees

and costs, does not include “a party that has failed to

secure a judgment on the merits or a court-ordered con-

sent decree, but has nevertheless achieved the desired

result because the lawsuit brought about a voluntary

change in the defendant’s conduct.” The questions

presented are:

1. Whether the Buckhannon ruling applies to the

determination of “prevailing party” status for purposes

of awarding attorney’s fees and costs under the Equal

Access to Justice Act, 28 U.S.C. 2412.

2. Whether the Buckhannon ruling applies only to

voluntary changes of conduct resulting from the inter-

vening act of a legislature, as was the case in Buck-

hannon, and not to a voluntary change in conduct initi-

ated by a government agency, as occurred in this case.

3. Whether petitioner meets the definition of a “pre-

vailing party” notwithstanding the Buckhannon ruling.

(I)

TABLE OF CONTENTS

Page

Opinions below .........sssssssssssseesssessssnessssnecesnneennnnsecssersssnesgnscsenssee 1

JUTISGiction .........ccccscscssssescesescsssesssssscsssseerenenssesacsenenssenensensensnenenenes 1

Statement .......ccscccccccsccssssscseccssssssssssscsssssserensarsssersessssssssnrenseasoaeaces 2

AYQUMEN ......sscsessseessessseessecnsecssensnssnneensccanennscgnnessnecnssenscnsennscnnssnntss 7

Conclusion .......ccccccccscssessssescsscessecscssssssescescnsensssnsessssssnenseanensenesnenees 12

TABLE OF AUTHORITIES

Cases:

Buckhannon Board & Care Home, Inc. v. West

Virginia Dep’t of Health & Human Res., 532

U.S. 598 (2001) .....ssssecessesseesseneseessnsenenees 2,4, 5, 7, 8, 9, 10, 11

Commissioner v. Jean, 496 U.S. 154 (1990) ......cseseseseee 9

Hensley v. Eckerhart, 461 U.S. 424 (1983) .....---sssssssse 9

Hewitt v. Helms, 482 U.S. 755 (1987) ....essessssessseeeeeeeensens 4

Marek v. Chesny, 473 U.S. 1 (1985) ..seessessessesseesseneenteneees 9

Perez-Arellano v. Smith, 279 F.3d 791 (9th Cir.

DOOD) .cccececcsreressccessssvcncsecscsssecsvrecsvsessvcscsesnsssessonseosssncncneseensssers 7,10

Texas State Teachers Ass’n v. Garland Indep. Sch.

Dist., 489 U.S. 782 (1989) .....sssssssseesesssssseensessensenensssscnnsnnees 11

Statutes and rule:

Act of Aug. 6, 1975, 42 U.S.C. 19731(€) ..--sssesseseesseenseesneeeees 9

Americans with Disabilities Act of 1990, 42 U.S.C.

12101 et SEQ. ..ecsssssssreerssesecserseneenencsesseneeneneenensenensenensnssenensnsenens 5

Civil Rights Act of 1964, 42 U.S.C. 20000-5(K) ........eceseeees 9

Civil Rights Attorney’s Fees Awards Act of 1976,

AZ U.S.C. 1988 .cccccccccccsssscccesessserececsseserscccsessssessecenssssesesesenenees 9

Equal Access to Justice Act, 28 UBC. BAUD .-cccrecrercsrcsseess 2

Fair Housing Amendments Act of 1988, 42 U.S.C.

BEOL et SCG. .rcressessersersessesserscenecneenssnsnnenecnsennennennsnsensenenecacessesens 5

Fed. R. Civ. P. GO(b) ......ccscsscssssssscssnseeesenesenenesssssnsenensenenensees 5

Miscellaneous:

H.R. Rep. No. 1418, 96th Cong., 2d Sess. CED snncerceess 10

(IIT)

Jn the Supreme Court of the United States

No. 02-553

BRICKWOOD CONTRACTORS, INC., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-15) is

reported at 288 F.3d 1371. The order of the Court of

Federal Claims granting attorney’s fees and expenses

(Pet. App. 41-74), is reported at 49 Fed. Cl. 148, and the

order denying reconsideration (Pet. App. 17-39) is

reported at 49 Fed. Cl. 738.

JURISDICTION

The judgment of the court of appeals was entered on

May 3, 2002. The petition for writ of certiorari was filed

on August 1, 2002. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

Petitioner sought recovery of its attorney’s fees and

expenses pursuant to the Equal Access to Justice Act

(EAJA), 28 U.S.C. 2412, on the theory that its initiation

of a lawsuit challenging the Department of the Navy’s

amendment of a bid solicitation caused the Navy to

withdraw the solicitation. The trial court awarded peti-

tioner $10,939 in fees and expenses. The court of

appeals reversed that award, holding that, under this

Court’s decision in Buckhannon Board & Care Home,

Inc. v. West Virginia Department of Health & Human

Resources, 532 U.S. 598, 600 (2001), petitioner was not a

“prevailing party” within the meaning of the EAJA.

See Pet. App. 1.

1. The Department of the Navy issued an invitation

for bids (IFB) to repair elevated water storage tanks at

the Naval Air Station in Patuxent River, Maryland.

The Navy subsequently issued amendments to the

solicitation adding PCB contamination testing to the

base requirements and adding three options related to

removing the contamination from the water tanks. The

Navy received five bids. Based on the total price (base

bid plus options), the Navy identified petitioner as the

apparent low bidder. Pet. App. 2, 18. The Navy later

conducted its own test for PCB contamination to deter-

mine whether the options would need to be exercised.

It concluded that there was no evidence of PCB con-

tamination and announced that the bids on the options

would be excluded from the final price evaluation

because they no longer were needed. Had the options

been evaluated along with the base bids, petitioner

would have had the low bid. Without the options,

petitioner would have been displaced in the evaluation

3

by two other bidders who had lower base bids. Jd. at 2,

18-19.

In light of the results of its own testing, the Navy

issued an amendment to the solicitation that attempted

to convert the solicitation from an IF'B to a request for

proposals (RFP) and eliminated the requirements re-

garding PCB testing. Following the conversion to an

RFP, the Navy intended to negotiate with the bidders

for bids that did not include the cost of the unnecessary

PCB testing. Pet. App. 2, 19. In response, petitioner

filed suit in the Court of Federal Claims seeking an

injunction preventing the Navy from converting the

IFB to an RFP and directing the Navy to proceed with

the award of the contract to petitioner. The court held

a hearing on petitioner’s request for a temporary

restraining order (TRO). Ibid. The court indicated that

it was inclined to grant the TRO “if I get nothing

further.” Jd. at 83. The Navy then issued an amend-

ment cancelling the solicitation. As a consequence, the

Navy filed a motion to dismiss the action. Because the

Navy cancelled the solicitation, instead of converting

from an IFB to an RFP, the court dismissed peti-

tioner’s suit on July 22, 1999, “without reaching the

merits of the case.” Id. at 2,44. Petitioner eventually

submitted another bid and received a contract for the

work. /d. at 45. 5

2. Petitioner filed an EAJA application seeking

attorney’s fees and expenses for work performed on the

lawsuit protesting the Navy’s attempted conversion

from a solicitation for bids to a request for proposals.

Pet. App. 2-3, 45. The court found that petitioner was

the “prevailing party” in its litigation challenging the

procurement procedures, that the government’s posi-

tion in the litigation was not “substantially justified,”

and that there were no “special circumstances” that

d

would “make an award [of fees] unjust.” Jd. at 57, 70-

71. In holding that petitioner was a “prevailing party”

for purposes of the EAJA, the court relied on the

“catalyst” theory:

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

judicially decreed in order to justify a fee award

* * * A lawsuit sometimes produces voluntary

action by the defendant that affords the plaintiff all

or some of the relief he sought through a judg-

ment—e.g., a monetary settlement or a change 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.

Id. at 53 (quoting Hewitt v. Helms, 482 U.S. 755, 760-

761 (1987)). The court noted, however, that this Court

had granted a petition for a writ of certiorari in Buck-

hannon Board & Care Home, Inc. v. West Virginia

Department of Health & Human Resources, “in which

the viability of the catalyst theory is directly at issue.”

Id. at 52 n.4. The court nevertheless entered a judg-

ment awarding petitioner $10,939.09 in fees and ex-

penses. /d. at 75.

3. After the trial court entered its judgment, this

Court issued its decision in Buckhannon, which re-

jected the “catalyst theory” as a basis for awarding

attorney’s fees and expenses under federal fee-shifting

statutes. 532 U.S. at 610. In Buckhannon, a company

that operated assisted-living residences in West Vir-

ginia failed a state fire inspection because some resi-

dents were incapable of “self-preservation” as defined

by state law. After receiving orders to close its facili-

ties, the company and others sued, seeking declaratory

and injunctive relief that the “self-preservation”

5

requirement violated the Fair Housing Amendments

Act of 1988 (FHAA), 42 U.S.C. 3601 et seg., and the

Americans with Disabilities Act of 1990 (ADA), 42

U.S.C. 12101 et seg. While the action was pending, the

West Virginia legislature eliminated the “self-preser-

vation” requirement, and the district court then

granted the defendants’ motion to dismiss the case as

moot. The company thereafter sought attorney’s fees

as the “prevailing party” under the FHAA and ADA,

basing its entitlement on the catalyst theory. The dis-

trict court and the court of appeals refused to award

fees on the catalyst theory, and this Court affirmed.

See 532 U.S. at 600-602.

The Court recognized at the outset that “[n]umerous

federal statutes allow courts to award attorney’s fees

and costs to the ‘prevailing party.’” 532 U.S. at 600.

The Court concluded that the term “prevailing party” is

limited to those parties who “secure a judgment on the

merits or a court-ordered consent decree.” Ibid. The

term does not include those who merely “achieved the

desired result because the lawsuit brought about a

voluntary change in the defendant’s conduct.” Jbid.

The Court reasoned that the term “prevailing party” is

limited to “one who has been awarded some relief by [a]

court.” Jd. at 603. The term does not include those who

bring a suit that prompts a defendant to change its

conduct in the absence of judicial relief because, in the

absence of a judicial judgment, “there is no judicially

sanctioned change in the legal relationship of the

parties,” which is the hallmark of prevailing party

status. Jd. at 605.

4. The government filed a motion under Rule 60(b),

Fed. R. Civ. P., asking the Court of Federal Claims to

reconsider its judgment in this case in light of Buck-

hannon. The court accepted the invitation to revisit

6

the issue, but it ultimately adhered to its position that

petitioner was a “prevailing party” under the EAJA.

The court conceded that Buckhannon might seem diffi-

cult to distinguish “{a]t first blush,” Pet. App. 25, but it

ultimately concluded that Buckhannon was not con-

trolling for three reasons.

First, the court held that Buckhannon did not apply

to attorney’s fees under the EAJA because “(t]he

EAJA [was] not mentioned in the Buckhannon opin-

ion.” Pet. App. 26. Second, the court held that Buck-

hannon involved state legislative action, which the

court viewed as significantly different from voluntary

action by an executive branch agency. Jd. at 27. Third,

the court stated that the language of the EAJA fee-

shifting provision differs from the language of the

statutes addressed or referenced in Buckhannon, be-

cause the EAJA requires an award of fees if the

statutory conditions are met and requires the court to

analyze the merits in ruling on the fee request, in order

to determine if the government’s position was “substan-

tially justified.” Jd. at 31.

The court additionally stated that, even if Buck-

hannon applied in determining “prevailing party” sta-

tus under the EAJA, petitioner would prevail in this

case, because the facts “meet[] the concerns described

in Buckhannon.” Pet. App. 34. The court reasoned

that, in its exchange with government counsel at the

hearing on whether to issue a TRO, “the court, al-

though it did not issue a written opinion, announced its

acknowledgment of the merits of plaintiff’s claims, the

rectitude of plaintiff’s position and the error of defen-

dant’s actions.” Jd. at 36. Those comments, the court

stated, “represent the necessary ‘judicial imprimatur’

that caused the change in the legal relationship of the

parties. * * * [T]he court’s remarks at the TRO

7

hearing amounted to a finding that the Navy had acted

unlawfully, and the defendant’s change in conduct was a

product of judicial_action in the lawsuit.” Jd. at 37.

5. The court of appeals reversed. The court held

that its “examination of the text and the legislative

history of the EAJA leads us to conclude that there is

no basis for distinguishing the term ‘prevailing party’ in

the EAJA from other fee-shifting statutes.” Pet. App.

10. The court also rejected the notion that the “catalyst

theory” survived Buckhannon if executive, rather than

legislative, action caused the change. The court ex-

plained that the “holding in Buckhannon leaves no

room for a distinction to be drawn between whether a

change is brought about by the legislature, as in

Buckhannon or by the government’s cancellation of the

solicitation in this case.” Jbid. Finally, the court held

that the “‘very preliminary’ remarks at a TRO hearing”

were “not sufficient to establish a judicial imprimatur

and they do not constitute a ‘court-ordered change in

the legal relationship’ of the parties as Buckhannon

requires.” Id. at 13-14.

ARGUMENT

The court of appeals correctly applied this Court’s

decision in Buckhannon Board & Care Home, Inc. v.

West Virginia Department of Health & Human Re-

sources, 532 U.S. 598, 600 (2001), to petitioner’s request

for attorney’s fees under the EAJA. The only other

court of appeals that has squarely addressed the issue

has also concluded that Buckhannon’s “prevailing

party” analysis applies to the EAJA. See Perez-Arel-

lano v. Smith, 279 F.3d 791, 794 (9th Cir. 2002) (“[W]e

discern no reason to interpret the EAJA inconsistently

with the Supreme Court’s interpretation of ‘prevailing

party’ in the FHAA and the ADA as explained in

8

Buckhaninon.”). Consequently, the court of appeals’ de-

cision does not conflict with any decision of this Court

or another court of appeals and does not otherwise war-

rant this Court’s review.

1. Petitioner contends (Pet. 5) that this Court’s deci-

sion in Buckhannon holds only that “the ‘catalyst

theory’ is not a permissible basis for the award of

attorney’s fees under the FHAA, 42 U.S.C. § 3613(c)(2),

and ADA, 42 U.S.C. § 12205,” 532 U.S. at 610, and

therefore does not resolve whether the catalyst theory

remains an appropriate basis-for an award of attorney’s

fees under the EAJA. Petitioner is mistaken. As the

court of appeals correctly recognized, the Court’s rejec-

tion of the catalyst theory in Buckhannon precludes

application of that theory in other federal fee shifting

statutes, such as the EAJA, that award fees to a “pre-

vailing party.” Pet. App. 7-8.

This Court granted review in Buckhannon to ad-

dress a question of general importance respecting

federal fee-shifting statutes. As the Court observed at

the outset of its decision, “[n]Jumerous federal statutes

allow courts to award attorney’s fees and costs to the

‘prevailing party.’” Buckhannon, 532 U.S. at 600. The

Court identified the critical issue as whether “this

term”—meaning “prevailing party”—“includes a party

that has failed to secure a judgment on the merits or a

court-ordered consent decree, but has nonetheless

achieved the desired result because the lawsuit brought

about a voluntary change in the defendant’s conduct.”

Ibid. Thus, the Court clearly expressed its under-

standing that its decision in Buckhannon would apply

to other federal fee shifting statutes that also employ

the “prevailing party” standard.

The Court reemphasized the general applicability of

its ruling later in the decision, noting that Congress

9

“has authorized the award of attorneys’ fees to the

‘prevailing party’ in numerous statutes in addition to

those at issue here.” Buckhannon, 532 U.S. at 602. It

specifically identified three fee-shifting statutes, in

addition the FHAA and the ADA, to which its “pre-

vailing party” analysis would apply—the Civil Rights

Act of 1964, 42 U.S.C. 2000e-5(k), the Act of Aug. 6,

1975, 42 U.S.C. 1973l(e), and the Civil Rights Attor-

ney’s Fees Awards Act of 1976, 42 U.S.C. 1988. 532

U.S. at 602-603. The Court also cited the Appendix to

Justice Brennan’s dissenting opinion in Marek v.

Chesny, 473 U.S. 1, 43-51 (1985), which lists more than

100 federal fee-shifting statutes. 532 U.S. at 603. Ina

footnote immediately following the reference to the

Marek Appendix, the Court stated:

We have interpreted these fee-shifting provisions

consistently, see Hensley v. Eckerhart, 461 U.S. 424,

433, n.7 (1983), and so approach the nearly identical

provisions at issue here.

Id. at 603 n.4. The Court stated in Hensley v.

Eckerhart, 461 U.S. 424 (1983) (which interpreted the

fee-shifting provisions contained in 42 U.S.C. 1988) that

“(t]he standards set forth in this opinion are generally

applicable in all cases in which Congress has authorized

an award of fees to a ‘prevailing party.’” 461 U.S. at

433 n.7. The Court has accordingly treated the EAJA

consonantly with other “prevailing party” statutes. See

Commissioner v. Jean, 496 U.S. 154, 161 (1990)

(applying “prevailing party” analysis in Hensley to

cases under the EAJA).

Petitioner acknowledges that the EAJA employs the

“prevailing party” standard, but nevertheless contends

(Pet. 7-12) that the EAJA is “distinct” from other fee-

shifting statutes in certain respects. But the distinc-

10

tions that petitioner cites do not justify departing from

Buckhannon’s understanding of the term “prevailing

party.” A party that “fail[s] to secure a judgment on

the merits or a court-ordered consent decree” is not a

“prevailing party,” 532 U.S. at 600, regardless of

whether the EAJA “mandates” an award of attorney’s

fees to a “prevailing party” in certain circumstances

(Pet. 7-8) or whether a court must determine if the gov-

ernment’s position is “substantially justified” (Pet. 9-

10). See Perez-Arellano, 279 F.3d at 794 n.4.

Petitioner’s reliance (Pet. 10-12) on the EAJA’s legis-

lative history is also misplaced. Petitioner notes that

congressional reports accompanying the EAJA legisla-

tion make reference to the potential availability of fees

in situations in which a case is settled. This Court

explicitly considered and rejected similar legislative

history in Buckhannon, stating:

Particularly in view of the “American Rule” that

attorney’s fees will not be awarded absent “explicit

statutory authority,” such legislative history is

clearly insufficient to alter the accepted meaning of

the statutory term.

532 U.S. at 608. Indeed, rather than providing a basis

for distinguishing the EAJA, the legislative history

states that “[i]t is the committee’s intention that the

interpretation of the term [‘prevailing party’] be con-

sistent with the law that has developed under existing

statutes.” H.R. Rep. No. 1418, 96th Cong., 2d Sess. 11

(1980).

2. Petitioner argues (Pet. 12-13) that this Court’s

ruling in Buckhannon does not apply here because in

that case a state legislature, rather than an Executive

Branch agency, took action that mooted the litigation.

That distinction is immaterial. The Court unambigu-

11

ously rejected the “catalyst theory” without regard to

the action that led to termination of the litigation. The

crucial consideration is whether the party seeking fees

has secured “a judgment on the merits or a court-

ordered consent decree” that creates a “material al-

teration of the legal relationship of the parties.” Buck-

hannon, 532 U.S. at 600, 604 (quoting Texas State

Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.

782, 792 (1989)). Petitioner obtained neither in this case

and accordingly is not a “prevailing party” for purposes

of an attorney’s fee award.

3. Petitioner asserts (Pet. 13-16) that it is a “pre-

vailing party” within the meaning of Buckhannon

because the trial court made comments at the hearing

on its motion for a temporary restraining order sug-

gesting that petitioner’s legal arguments had merit. As

the court of appeals recognized, those statements fall

far short of satisfying Buckhannon’s requirement of a

“judicially sanctioned change in the legal relationship of

the parties.” 532 U.S. at 605. The trial court simply

made “‘very preliminary’ remarks at a TRO hearing.”

Pet. App. 14. The court of appeals correctly concluded

that those remarks “are clearly not sufficient to estab-

lish a judicial imprimatur and they do not constitute a

‘court-ordered change in the legal relationship’ of the

parties as Buckhannon requires.” Id. at 13-14.

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

MICHAELJAY SINGER

MICHAEL E. ROBINSON

Attorneys

DECEMBER 2002