Opposition Brief — Trout v. Mabus (No. 08-1086)

Supreme Court, U.S.

FILED

re th MAY 1 4 2009

LS Cy OFFICE OF THE CLERK

No. 08-1086

Jn the Supreme Court of the Gimted States

YVONNE G. TROUT, ET AL., PETITIONERS

Vv.

B.J. PENN, ACTING SECRETARY OF THE NAVY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel of Recore

TONY WEST

Assistant Attorney General

MARLEIGH D. DOVER

MELISSA N. PATTERSON

Altorneys

Department of Justice

Washington, D.C. 20580 0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals’ holding—consistent

with every other court of appeals to consider the ques-

tion—that Section 114(2) of the Civil Rights Act of 1991

(1991 Act) does not provide for prejudgment interest on

a settlement award relating to conduct that preceded

the 1991 Act’s effective date conflicts with this Court’s

decision in Republic of Austria v. Altmann, 541 U.S. 677

(2004), interpreting the temporal reach of the Foreign

Sovereign Immunities Act of 1976.

2. Whether petitioners should recover attorney’s

fees for unsuccessfully litigating their claim that Section

114(2) of the 1991 Act permitted an award of such pre-

judgment interest.

TABLE OF CONTENTS

Page

a ar PP ar emy i PRLS I Restle Mg 5 a? 1

IN arse araca Ve anv 4 4 os OR l

a pay we 4h an hae ee Se a eee 1

PS ha 0 Ob a ee ke eee eee 6

Ce 2 alg. bos a a ee ee 17

TABLE OF AUTHORITIES

Cases:

Andrews v. United States, 122 F.3d 1367 (11th Cir.

SEE oa eS lice & 5c ee Es ee a eae ee 16

Arneson v. Callahan, 12% F.3d 1248 (8th Cir. 1997),

cert. denied, 524 U.S. 9286 (1998) ........ ccc cence cee: 6

Browder v. City of Moab, 427 F.3d 717 (10th Cir.

BE Sb ae ee ee ee eee aa 15

Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978) .......... 13

Brown v. Secretary of Army, 78 F.3d 645 (D.C. Cir.),

cert. denied, 519 U.S. 1040 (1996) ................. 2,6

Commissioner v. Jean, 496 U.S. 154 (1990) .. 2.22 ee. 14

Department of Army v. Blue Fox, Inc., 525 U.S. 255

CEO cc Pek eRe ee Re ee eee eee ea y

Hdwards v. Lujan, 40 F.3d 1152 (10th Cir. 1994),

cert. denied, 516 U.S. 963 (1995) ..............ccceee 7

Fernandez-Vargas v. Gonzalez, 548 U.S. 30 (2006) ...... 5

Green v. Torres, 361 F.3d 96 (2d Cir. 2004) ............ 15

Hensley v. Eckerhart, 461 U.S. 424

(RO ok 600 oe es eee 2, 11, 12, 13, 14, 16

Huey v. Sullivan, 971 F.2d 1362 (8th Cir. 1992),

cert. denied, 511 U.S. 1068 (1994) ...............000. 7

Imwalle v. Reliance Med. Prods., Ine., 515 ¥°.3d 531

Cte 4 Be ns x50 & os Ses eee eee eee 15

Cases—Continued: Page

Johnson v. Hugo’s Skateway, 949 F.2d 1338

NE goin Gris wh eee eet Ga a oR EAS 15

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) . . 3, 4, 10

Library of Cong. v. Shaw, 478 U.S. 310 (1986) 2... 2.2... Z

McCown v. City of Fontana, 550 F.3d 918 (9th Cir.

Ge aes ad ries RELA ee Ree eK ES 15

Minnesota Supply Co. v. Raymond Corp., 472 F.3d

i es vai ek ee va ee As 15

Nadeau v. Helgemoe, 581 F.2d 275 (st Cir. 1978) ...... 13

Pennsylvania v. Deleware Valley Citizens’ Council

for Clean Air, 478 U.S. 546 (1986) ............00058, 12

Pruett v. Harris County Bail Bond Bd., 499 F.3d 403

(5th Cir. 2007), cert. denied, 128 S. Ct. 1227, and

Se ee Gs Eg Kany oo eee ie badiess 15

Quintana v. Jenne, 414 F.3d 1306 (11th Cir. 2005) ...... 15

Republic of Austria v. Altmann, 541 U.S. 677

2 | SERPS Apa Oy ae atieral gPeSuPnr eer Se ar En a 4, 7,8, 9, 10

Schooner Exch. v. McFaddon, 7 U.S. (6 Cranch) 116

See oe ee at Teen eo rs eee 4)

Trout v. Secretary of Navy,:

317 F.3d 286 (D.C. Cir.), cert. denied, 540 U.S.

Bt IE oo ed. op es a Ce ae ba paussvm

Se, ee ko caw sees Voeebes haere ks 4,6

Ustrak v. Fairman, 851 F.2d 983 (7th Cir. 1988) ....... 15

Williams v. Tri-County Growers, Inc., 747 F.2d 121

ee BONE Scat ase re sa eke ee cae eee aay 15

Woolf v. Bowles, 57 F.3d 407 (4th Cir. 1995) ......202.... 6

Statutes: Page

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

rn aaa ate ce eed siete s 4 ge doe wk a 1, 2, 8, 10

Me gy SI AOE oc nse tne cco epee ween nus passim

Civil Rights Act of 1991, Pub. L. No. 102-166, 105

I aa us ee wees oo 4 aks Oe NN eee 2

es eee 6

S LUGtZ), TOG Stat. TOTO .. 2... ccc cee cees passim

OF OR 0 a |: a a er a 6

Foreign Sovereign Immunities Act of 1976,

oi oie de ks own eei dees eaanee ie

ES No de 4 ee 8: Oe ee ee ae eS Y

In the Supreme Court of the Gnited States

No. 08-1086

YVONNE G. TROUT, ET AL., PETITIONERS

Uv.

B.J. PENN, ACTING SECRETARY OF THE NAVY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-14a)

is reported at 540 F.8d 442. The opinion of the district

court (Pet. App. 15a-34a) is reported at 464 F’. Supp. 2d

25.

JURISDICTION

The judgment of the court of appeals was entered on

September 2, 2008. A petition for rehearing was denied

on November 19, 2008 (Pet. App. 41a). The petition for

a writ of certiorari was filed on February 17, 2009. The

jurisdiction of this Court is invoked under 2é U.S.C.

1254(1).

STATEMENT

In 1973, petitioners brought a class action lawsuit

under Title VIT of the Civil Rights Act of 1964, 42 U.S.C.

2000e et seq., alleging that respondents had engaged in

(1)

2

gender discrimination. Pet. App. 2a-3a. After extensive

litigation, the parties reached a settlement, which the

district court approved on November 22, 1993. Under

this 1993 consent decree, respondents agreed to pay

petitioners backpay for the period 1970 to 1992. /d. at

3a. Under a 1995 stipulation, the parties explicitly re-

served the issue of whether petitioners were entitled to

an award of prejudgment interest on back pay and on

attorney’s fees for the period before November 21, 1991,

the effective date of the Civil Rights Act of 1991 (1991

Act), Pub. L. No. 102-166, 105 Stat. 1071. Pet. App. 18a.

Section 114(2) of the 1991 Act (105 Stat. 1079) provides

for the same award of prejudgment interest against the

federal government in Title VII cases “to compensate

for delay in payment * * * [as is available] in cases

involving nonpublic parties.” 42 U.S.C. 2000e-16(d).

Before the passage of the 1991 Act, this Court had held

that interest on attorney’s fees was not available in ac-

tions brought against the government under Title VII,

because Congress had not expressly waived the United

States’ sovereign immunity to such a claim. See Library

of Cong. Vv. Shaw, 478 U.S. 310, 318 (1986).

In orders issued in 1998, the district court concluded

that respondents were required to pay prejudgment

interest on back pay and on attorney’s fees for the pe-

riod prior to the passage of the 1991 Act. Pet. App. 18a.

In 2001, the district court entered a final judgment

awarding petitioners $8,627,276.50 in interest on back

pay and $1,477,020.90 in interest on attorney’s fees. /d.

at loa.

The court of appeals reversed. Trout v. Secretary of

Navy, 317 F.3d 286, 292-293 (D.C. Cir.), cert. denied,

540 U.S. 981 (2003) (Trout JV). It concluded that its

decision in Brown v. Secretary of Army, 78 F.3d 645

(D.C. Cir.), cert. denied, 519 U.S. 1040 (1996), was “dis-

3

positive” of petitioners’ assertion that Section 114(2) re-

quired the Navy to pay prejudgment interest on back-

pay and on attorney’s fees for the period before Novem-

ber 21, 1991. Trout IV, 317 F.3d at 287-288. The court

noted the dual considerations motivating Brown: the

rule of strict construction of waivers of sovereign immu-

nity and the “rule of no-interest against the sovereign.”

Id. at 287. The latter, the court reasoned, “provides an

important backdrop against which Congress acts when

it waives sovereign immunity,” and thus, courts “must

presume that when Congress promulgates a waiver of

sovereign immunity, it knows which principles will gov-

ern [courts’] interpretation of the waiver.” /d. at 290

(citing Brown, 78 F.3d at 650). Brown was further in-

formed, the court of appeals noted, by this Court’s hold-

ing in Landgraf v. USI Film Products, 511 U.S. 244

(1994), which affirmed the “traditional presumption

* * * ‘against applying statutes affecting substantive

rights, liabilities, or duties to conduct arising before

their enactment.’” Trout 1V, 317 F.3d at 291 (quoting

Landgraf, 511 U.S. at 278).

The court of appeals rejected petitioners’ attempt

to distinguish Brown on the ground that respondents’

liability here was not finally determined until the 1993

consent decree, which was after Section 114(2) became

effective. Trout 1V, 317 F.3d at 287-288. The court con-

cluded that “the conduct underlying the complaint”

rather than the procedural posture of the case gov-

erned whether Landgraf’s general presumption against

retroactivity applied. /d. at 291. The court of appeals

also reiterated its conclusion in Brown that there was

“no evidence of congressional intent to apply [Section]

114(2) retroactively.” /d. at 292. Thus, noting “the Su-

preme Court’s instruction that a ‘statement that a stat-

ute will become effective on a certain date does not sug-

4

gest that it has any application to conduct that occurred

at an earlier date,’” the court of appeals held that the

“district court erred in awarding prejudgment interest

under [Section] 114(2) on backpay and attorneys’ fees

for periods prior to November 21, 1991.” /d. at 292-293

(quoting Landgraf, 511 U.S. at 257).

Accordingly, because respondents had paid “interim

attorneys’ fees to counsel for the Trout class that is at-

tributable to litigation of the prejudgment interest dis-

pute, and because the final amount of costs and fees re-

mains to be determined,” the court of appeals remanded

“for final determination of the costs and fees owed to the

Trout class.” Trout 1V, 317 F.3d at 2938.

Petitioners filed a petition for a writ of certiorari,

which this Court denied. 540 U.S. 981 (2003). This

Court also denied petitioners’ motion for leave to file

a petition for rehearing, which articulated petitioners’

theory that this Court’s intervening decision in Republic

of Austria v. Altmann, 541 U.S. 677 (2004) controlled

the disposition of this case. 543 U.S. 976 (2004).

On remand to the district court and after the denial

of petitioners’ previous petition for a writ of certiorari,

respondents moved for final determination of the attor-

ney’s fees and costs owed to the plaintiff class. Pet. App.

21a. Respondents alse requested that the district court

order petitioners and their counsel to refund the excess

interim fees and costs, with interest. /bid. Notwith-

standing the decision in J'rout /V, petitioners again

sought prejudgment interest on back pay and on attor-

ney’s fees for periods prior to November 21, 1991, ar-

guing—as they had in their unsuccessful motion to this

Court—that Altmann demonstrated that Trout /V was

wrongly decided. /d. at 22a.

The district court denied petitioners’ motion, and

granted respondents’ motion for final determination of

os

r

?)

the fees and costs owed to petitioners. Pet. App. 29a-

3la. The district court further ordered petitioners to

“refund $106,375.45 of the interim attorneys’ fees and

costs previously paid by the government in this action

plus interest on that amount.” /d. at 32a. The refunded

attorney’s fees and costs “relate[d] exclusively to the

time spent and costs incurred [by petitioners] in connec-

tion with litigating the issue of the right to prejudgment

interest for the period prior to the enactment of the

ivil Rights Act of 1991.” 7d. at 22a.

The court of appeals affirmed. Pet. App. la-14a. The

court rejected petitioners’ assertion that because this

Court held in Altmann that the Foreign Sovereign Im-

munities Act of 1976 (FSIA), 28 U.S.C. 1602 et seq., was

applicable to conduct before its enactment, “Altmann

now controls statutes that concern waivers of sovereign

immunity” more generally. Pet. App. 6a. “It is clear,”

the court of appeals concluded, “that the Court’s deci-

sion in Altmann was specific to the statute in that case.”

Id. at 9a (pointing to this Court’s reliance in Altmann on

“the history of foreign sovereign immunity” and Con-

gress’ language in the FSIA’s preamble). The court

of appea!s noted that this Court has since observed that

its conclusion in Altmann that the usual presumption

against retroactivity announced in Landgraf did not ap-

ply to the FSIA “turned on the peculiarities” of the

FSIA. /d. at 10a (quoting Fernandez-Vargas v. Gonza-

lez, 548 U.S. 30, 38 n.6 (2006)).

The court of appeals further determined that peti-

tioners were not entitled to attorney’s fees for unsuc-

cessfully litigating their claim that Section 114(2) ap-

plied retroactively and entitled them to claim prejudg-

ment interest on the settlement award for conduct

before the 1991 Act’s enactment. Applying Hensley v.

Eckerhart, 461 U.S. 424 (1983), the court concluded that

6

petitioners’ unsuccessful interest claim was distinct from

their successful sex discrimination litigation, and

was thus not eligible for an attorney’s fee award. Pet.

App. 18a. The court of appeals declined to resolve

whether its review of the district court’s distinctness

determination was de novo or for abuse of discretion,

concluding that under either standard, the claims were

distinct. /bid.

ARGUMENT

The petition for a writ of certiorari should be de-

nied. The decision of the court of appeals is correct,

does not conflict with any decision of this Court or any

other court of appeals, and does not warrant further

review.

1. This Court previously denied petitioners’ petition

for a writ of certiorari seeking review of the court of ap-

peals’ determination that Section 114(2) of the 1991 Act

does not give them a claim for prejudgment interest on

backpay and on attorney’s fees for any period before

November 21, 1991, the effective date of the 1991 Act.

Trout v. Secretary of Navy, 317 F.3d 286, 292-293 (D.C.

Cir.), cert. denied, 540 U.S. 981 (2003); 1991 Act Pmbl.,

105 Stat. 1071; § 402(a), 105 Stat. 1099. The issue did

not warrant this Court’s review then, and it does not

now.

a. At the time of petitioners’ earlier petition for a

writ of certiorari, every court of appeals to consider the

question had concluded that Section 114(2) affords no

claim for prejudgment interest for conduct occurring

betore its effective date. Br. in Opp. at 5-6, Vrout v. Sec-

retary of Navy, 540 U.S. 981 (2003) (No. 03-22) (discuss-

ing Brown v. Secretary of Army, 78 I°.3d 645 (D.C. Cir.

1996), cert. denied, 519 U.S. 1040 (1997); Arneson v.

Cullahan, 128 F.3d 1243 (8th Cir. 1997), cert. denied,

524 U.S. 926 (1998); Woolf v. Bowles, 57 F.3d 407 (4th

ry

(

Cir. 1995); Huey v. Suidlivan, 971 F.2d 1862 (8th Cir.

1992), cert. denied, 511 U.S. 1068 (1994); Edwards v.

Lujan, 40 F.8d 1152 (10th Cir. 1994), cert. denied, 516

U.S. 963 (1995)). Since then, it appears no court of ap-

peals has had reason to address the temporal reach of

Section 114(2), which is unsurprising given that the issue

can arise only where there is proven discrimination from

decades ago, and only in cases against the government.

There is not now, has never been, and is unlikely to be,

a split of authority in the circuits on the question.

b. Petitioners claim that Republic of Austria v.

Altmann, 541 U.S. 677 (2004), marked such a departure

in the Court’s retroactivity analysis that the courts of

appeals are now entirely mistaken in their uniform view

about Section 114(2)’s retroactivity. This argument is

incorrect on the merits.

As an initial matter, this Court saw nothing in the

court of appeals’ earlier application of Brown or Land-

graf to this case that merited this Court’s attention.

Recognizing that, petitioners focus on the court of ap-

peals’ perceived misapplication of Altmann. See, e.g.,

Pet. i (Questions Presented). But Altmann announced

no principle that undermines these authorities, or makes

the application of them to this case incorrect, or other-

wise Warrants further review by this Court.

As the court of appeals explained in the decision be-

low, Altmann reaffirmed—rather than undermined—

the “default rule of no retroactive effect of congressional

enactments announced in Lundgraf.” Pet. App. 6a-7a

(citing Altmann, 541 U.S. at 692-694). !n particular, this

Court noted that where a “statute affects rights, liabili-

ties, or duties with respect to past conduct,” the statute

is not to have retroactive effect absent an explicit con-

yressional directive. /d. at 7a (citing Altmann, 541 U.S.

al 693-694). Where a statute “merely confers or ousts

8

jurisdiction,” however, “application of a statute to * * *

pending cases would be sanctioned.” /bid. This Court’s

determination in Altmann that the FSIA applies to pre-

enactment conduct turned on its conclusion that the

FSIA fell into neither category. /bid.; see Altmann, 541

U.S. at 694 (“Though seemingly comprehensive, this

inquiry [under Landgraf] does not provide a clear an-

swer in this case.”); 7d. at 696 (““Landgraf’s default rule

does not definitively resolve this case.”). Because Land-

graf’s presumption against retroactivity was inconclu-

sive in the “suz generis context” of the FSIA, this Court

looked to the FSIA itself and the “circumstances sur-

rounding its enactment,” and found “clear evidence that

Congress intended the Act to apply to preenactment

conduct.” /d. at 696-697.

This analysis of the FSIA certainly does not alter

the basic rule of Landgraaf. And in contrast to the pecu-

liarities of the FSIA that confronted this Court in Alt-

mann, the D.C. Circuit here found the traditional Land-

graf retroactivity analysis readily applicable to Section

114(2). That section contains no indication that Con-

gress intended it to apply retroactively to respondents’

conduct in this case. See Trout 1V, 317 F.3d at 290:

Brown, 78 F.3d at 648. Moreover, by allowing a claim

for prejudgment interest on awards issued for Title

VII violations, Section 114(2) clearly increases the fed-

eral government’s liabilities for past conduct. Cf. Alt-

mann, 541 U.S. at 695 (stating that the “FSIA merely

opens United States courts to plaintiffs with pre-ex-

isting claims against foreign states” and that it “nei-

ther increases those states’ liability for past conduct nor

imposes new duties with respect to transactions already

completed” (internal brackets and quotation marks

omitted)). Petitioners do not argue otherwise. Thus,

Section 114(2) falls squarely within Landgraf’s pre-

9

sumption against retroactivity, and recourse to the

methods this Court utilized in Altmann to determine

congressional intent is wholly unnecessary.

Petitioners are likewise mistaken in asserting that

Altmann stands for the proposition that Landgraf’s an-

tiretroactivity presumption no longer applies to any case

involving any post-enactment assertion of immunity.

Most obviously, Altmann has nothing to do with the

United States’ sovereign immunity. It is well-estab-

lished that “foreign sovereigns have no right to immu-

nity in our courts.” Altmann, 541 U.S. at 688 (citing

Schooner Exch. v. McFaddon, 7 U.S. (3 Cranch) 116

(1812)). By contrast, waivers of the United States’ own

sovereign immunity must be strictly construed, e.g., De-

partment of Army v. Blue Fow, Inc., 525 U.S. 255, 261

(1999), and so any ambiguity regarding the temporal

scope of that immunity must be resolved in favor of the

United States.

Nor, contrary to petitioners’ suggestion, does Alt-

mann suggest that the “relevant retroactivity event” in

all cases involving any form of immunity is the assertion

of that immunity. Pet. 14. This Court’s conclusion

that “assertions of [a foreign state’s] immunity to suits”

rather than the conduct underlying the assertion of im-

munity “are the relevant conduct regulated by the”

FSIA did not inhere in the nature of an assertion of im-

munity. Altmann, 541 U.S. at 697. Rather, this conclu-

sion stemmed from the FSIA’s particular language

and purposes. /bid. (“Claims of foreign states to immu-

nity should henceforth be decided by courts of the Uni-

ted States and of the States in conformity with the prtn-

ciples set forth in this chapter.”) (quoting 28 U.S.C.

10

1602).' Section 114(2) has no such reference to the fed-

eral government’s znvocation of immunity, and thus

does not signal Congress’s intent to make the invocation

of immunity—rather than the government’s underlying

conduct at which Title VII and Section 114(2) are tar-

geted—the “relevant conduct regulated by the” 1991

Act. Ibid.

c. Even if the Court believed petitioners’ novel in-

terpretation of Altmann might have merit, the Court’s

review of the issue would be better informed by awaiting

additional decisions from other courts of appeals on

Altmann’s relevance to retroactivity analysis of waivers

of sovereign immunity. Petitioners do not identify—and

the United States is unaware of—any split of authority

in lower courts on the application of Altmann to statutes

that waive the United States’ sovereign immunity. In-

deed, the decision below may well be the only court of

appeals opinion addressing the issue in any detail. In

such a sensitive area, with such a wide range of statutes

' In se deciding, this Court noted that its “approach to retroactivity

in this case thus parallels that advocated by Justice Scalia in his concur-

rence in Landgraf.” Altmann, 541 U.S. at 697 n.17 (emphasis added).

This Court did not suggest, as petitioners claim (Pet. 24), that it was

abandoning the Landgraf presumption in all cases involving an asser-

tion of immunity in favor of Justice Sealia’s concurrence. Rather, the

Court simply observed that its interpretation of the FSIA’s particular

language and purposes tracked Justice Scalia’s views in Landgraf.

Moreover, even if Justice Sealia’s Landgraf concurrence were con-

trolling, his foeus on “relevant activity that the rule regulates” would

support the court of appeals’ conclusion here, Altmann, 541 U.S. at 697

n.17 (quoting Landgraf, 511 U.S. at 291 (Sealia, J., concurring)), be-

cause the “relevant retroactivity event” for Section 114(2)is the conduct

underlying the putative Title VII violation. See Trout TV, 317 F.3d at

291-292 (concluding that “the eonduct underlying the complaint, rather

than the procedural posture of the litigation, has significance in” deter-

mining whether Section 114(2)’s application ts retrouctive).

11

permitting the imposition of liability on the government,

this Court may benefit from the views and experience of

the lower courts in other cases.

Finally, the retruactivity of the statute involved here

is of diminishing—if not already vanished—importance.

As petitioners admit, their case is of almost uniquely

“Jarndyceian” duration. Pet. 7. The proper interpreta-

tion of Section 114(2)’s temporal reach may have been

significant in a substantial number of cases around the

time of the 1991 Act’s passage, as evidenced by the clus-

ter of court of appeals cases from the mid-1990s. See pp.

6-7, supra. But today, the issue is irrelevant except in

the rare case that reaches back to discrimination nearly

two decades past. The singular nature of petitioners’

case is underscored by the fact that the Eighth Circuit’s

1997 decision in Arneson appears to be the last time

anyone besides these petitioners raised the issue. An

issue with such limited relevance does not merit this

Court’s attention.

2. The court of appeals’ determination that petition-

ers were not entitled to attorney’s fees as a prevailing

party for unsuccessfully litigating the prejudgment in-

terest issue also does not merit further review. The de-

cision is correct, does not conflict with the decisions of

this Court or any other court of appeals, and arises in an

unusual context that would allow the Court to offer, at

most, limited guidance on the legal issue petitioners as-

sert is presented by their case.

a. In Hensley v. Eckerhart, 461 U.S. 424 (1983), this

Court held that attorney’s fees should not be awarded

for work performed on an unsuccessful “claim that is

distinct in all respects from [a plaintiff’s| successful

claims.” /d. at 440. Both the district court and the court

of appeals determined that under the factors set out in

Hensley, petitioners’ unsuccessful prejudgment interest

12

litigation was “distinct” from its litigation on the under-

lying merits. Pet. App. 10a-13a, 26a-28a. This Court ex-

plained in Hensley that the only unsuccessful claims for

which a plaintiff may still be eligible for attorney’s fees

are those related to successful claims. 461 U.S. at 435.

Such related claims “involve a common core of facts” or

are “based on related legal theories.” /bid. It is this

sort of lawsuit that “cannot be viewed as a series of dis-

crete claims” for the purpose of determining attorney’s

fees to a prevailing party. /bid.

As the court of appeals and district court correctly

concluded, under Hensley, petitioners’ unsuccessful liti-

gation on the prejudgment interest issue is distinct from

their earlier, successful litigation on the merits that cul-

minated in the consent decree. The retroactivity of Sec-

tion 114(2) shares no common facts or legal theories

with petitioners’ underlying claims of sex discrimination.

Nor was “[llitigation of the interest issue * * * inextri-

cably intertwined with the sex discrimination litiga-

tion—it was not necessary to obtain or protect any relief

awarded, nor was it necessary to preserve the integrity

of the Consent Decree as a whole.” Pet. App. 13a; cf.

Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 478 U.S. 546, 556 (1986) (attorney’s fees could

be awarded for work during post-judgment proceedings

if such work is “useful” and of a type “ordinarily neces-

sary” to secure the litigation’s final result). Thus, the

lower courts correctly applied Hensley, and petitioners’

assertion that the court of appeals “disregarded” this

Court’s precedent (Pet. i) is incorrect.

Petitioners contend that Hensley drew a bright line

between “claim|s]”—which petitioners equate to “caus-

els| of action” (Pet. 30-31)—on the one hand, and “con-

tentions,” “grounds,” and “issues” on the other, and that

attorney’s fees should “be awarded to a prevailing plain-

13

tiff on a per ‘claim’ basis” except where several claims

together might be seen as part of “one large claim.” Pet.

27, 28, 29.

Hensley created no rule that a proper attorney’s fee

award must include time spent litigating unsuccessful

““issues’ or ‘contentions’ or ‘grounds.’” Pet. 29. Sucha

formalistie use of the words “claim” and “issue” would

be inconsistent with Hensley itself. In Hensley, this

Court indicated that only a partial award would be war-

ranted on a single constitutional cause of action about

plaintiffs’ treatment and conditions at the defendant

hospital if plaintiffs there had “prevailed on only one of

their six general claims, for example the claim that peti-

tioners’ visitation, mail, and telephone policies were

overly restrictive.” 461 U.S. at 4386. Moreover, without

comment, this Court discussed circuit court holdings

using the word “issues” as synonymous with petitioner’s

conception of “claims.” See id. at 438 n.14 (discussing

the focus on the “particular legal issue on which relief

had been granted”) (citing Brown v. Bathke, 588 F.2d

634 (8th Cir. 1978)); id. at 433 (discussing the typical

analysis of success on “any significant issue in litigation

which achieves some of the benefit the parties sought in

bringing suit”) (quoting Nadeau v. Helgemoe, 581 F.2d

275, 278-279 (1st Cir. 1978)).

Moreover, on petitioners’ logic, a plaintiff’s pursuit

of all forms of relief related to a single cause of action

would be compensable, no matter how unrelated or dis-

proportionate to the success actually achieved. Such

a rule would conflict with this Court’s emphasis on set-

ting fee awards in proportion to the success a plaintiff

obtains. Rather than creating a formal distinction be-

tween claims and issues, this Court emphasized a dis-

trict court’s “discretion in determining the amount of a

fee award” by examining the relief obtained “in compari

14

son to the scope of the litigation as a whole.” Hensley,

461 U.S. at 437, 440. Indeed, this Court stressed that

“[t|here is no precise rule or formula” in determining a

fee award, and that district courts “may attempt to iden-

tify specific hours that should be eliminated, or it may

simply reduce the award to account for” a plaintiff’s

“limited success.” Jd. at 4386-437. The touchstone is that

the work for which a fee is awarded must be propor-

tional to the relief obtained. See zd. at 436 (requiring a

determination that “expenditure of counsel’s [compen-

sated] time was reasonable in relation to the success

achieved”). The lower courts here correctly recognized

that they need not—and ought not—award petitioners

fees for work performed on the Section 114(2) issue,

which did not contribute in any way to the success ob-

tained in the consent decree.

b. Nor does the court of appeals’ application of

Hensley to this case conflict with any other precedent

of this Court or other courts of appeals. The court of ap-

peals’ decision is consistent with Commissioner v. Jean,

496 U.S. 154 (1990). Petitioners suggest that Jean

stands for the proposition that once a party prevails in

any aspect of litigation, it is entitled to fees “for the en-

tire action.” Pet. 33. But this Court reiterated in Jean

its earlier holding in Hensley that the “prevailing party”

requirement “brings the plaintiff only across the statu-

tory threshold” and that “i]t remains for the district

court to determine what fee is ‘reasonable’” under the

success-focused inquiry set out in Hensley. Jean, 496

U.S. at 160-161 (citation omitted).

Notwithstanding petitioners’ string citation to

ten other courts of appeals, Pet. 30-31, not a single case

petitioners cite stands for the proposition that all

work associated with a single cause of action must be

compensated if a plaintiff wins any relief in connection

15

with that cause of action.” Thus, there is no conflict in

“ Most of these cases do not even use the phrase “cause of action,”

and none suggests that every issue unsvccessfully litigated in associa-

tion with a particular cause of action must be included in the calculation

of a fee award. See Green v. Torres, 361 F.3d 96, 98 (2d Cir. 2004) (no-

ting that under Hensley where claims “involve a common core of facts

or are based on related legal theories,” and are therefore not severable,

“attorney's fees may be awarded for unsuccessful claims as weli as suc-

cessful ones”) (internal citation and brackets omitted); Williams v.

Tri-County Growers, Inc., 747 F.2d 121, 1387 (8d Cir. 1984) (remanding

where a district court had “failfed] to consider the interrelated nature

of the lawsuit as a whole”); Johnson v. Hugo’s Skateway, 949 F.2d 1338,

1352 (4th Cir. 1991) (affirming district court’s refusal to award fees

against one defendant for successful claims brought against a different

defendant); Pruett v. Harris County Bail Bond Bd., 499 F.3d 403, 418

(5th Cir. 2007) (remanding to allow the district court to award fees

appropriate to plaintiffs’ partial success), cert. denied, 128 S. Ct. 1227,

and 128 S. Ct. 1290 (2008); Jmawvalle v. Reliance Med. Prods., Inc., 515

F.3d 531, 555 (6th Cir. 200") (noting the relevance to the fee award that

“[cjommon facts” underlay plaintiff's claims, which also had “significant

overlap in the legal theovies”); Ustrak v. Farrman, 851 F.2d 983, 988

(7th Cir. 1988) (‘A partially prevailing plaintiff should be compensated

for the legal expenses he would have borne if his suit had been confined

to the ground on which he prevailed plus related grounds within the

meaning of Hensley.”); Minnesota Supply Co. v. Raymond Corp., 472

F.3d 524, 545 (8th Cir. 2006) (remanding to determine whether claims

“are distinct or whether they are related in such a way that much of the

time of counsel was devoted to the Litigation as a whole,” and if the lat-

ter, “to consider the significance of the overall relief obtained by the

plaintiffin relation to the hours reasonably expended on the litigation”)

(internal quotation marks omitted); McCown v. City of Fontana, 550

F.3d 918, 924 (9th Cir. 2008) (holding that “attorney’s fees awarded

under 42 U.S.C. § 1988 must be adjusted downward where the plaintiff

has obtained limited suecess on his pleaded claims”); Browder v. City

of Moab, 427 F.3d 717, 723 (0th Cir. 2005) (remanding to district

court because it “gave no rationale for its decision” in awarding reduced

fees); Quintanav. Jenne, 414 F.3d 1306, 1312 (11th Cir. 2005) (conelud

ing that where a plaintiff's arguments supporting each claim were

distinet, a district court could “weigh and assess the amount of attor-

16

the circuits to be resolved by this Court’s review of this

case.

Petitioners’ assertion that the court of appeals’ deci-

sion raises “troubling public policy and ethical concerns”

because it does not compensate petitioners’ counsel “for

services they were ethically obligated to provide after

the entry of the Consent Decree,” Pet. 35, is unavailing.

Congress’s provision that fees are awarded only for a

plaintiff’s successes necessarily means that some work

that counsel is ethically obligated to do, having agreed

to represent a plaintiff, may go uncompensated. See

Hensley, 461 U.S. at 436 (stating that “Congress has not

authorized an award of fees whenever it was reasonable

for a plaintiff to bring a lawsuit or whenever conscien-

tious counsel tried the case with devotion and skill” and

that “the most critical factor is the degree of success

obtained”).

ec. Even if this issue were otherwise worthy of this

Court’s attention, this case would be an undesirable ve-

hicle for addressing the question petitioners present.

First, disputes about the retroactivity of certain in-

cremental claims for relief are quite unusual, and dis-

putes about the attendant attorney’s fee award rarer

still. Given the unusual factual context of this case, re-

view here would be expected to give only limited guid-

ance to lower courts.

Second, the court of appeals found it unnecessary to

decide the applicable standard of appellate review, hold-

ing that it would have reached the same result on de

ney’s fees attributable exclusively to [| plaintiff's] frivolous retaliation

claim”); Andrews v. United States, 122 F.3d 1867, 1376 (11th Cir. 1997)

(remanding for a recalculation of fees where a “district court did not

consider that plaintiffs prevailed on only one of their three [Compre-

hensive Environmental Response, Compensation, and Liability Act of

1980| claims and their monetary award on that claim was quite small”).

17

novo review or review for abuse of discretion. Pet. App.

13a. This is a threshold issue the Court might have to

decide before reaching the merits, and it would do so

without the benefit of a reasoned decision below.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

Solicitor General

TONY WEST

Assistant Attorney General

MARLEIGH D. DOVER

MELISSA N. PATTERSON

Attorneys

May 2009