Opposition Brief — District of Columbia Board of Elections & Ethics v. Turner

Supreine Court U.S

FILED

od | AUG 6 - 2004

No. 03-1647

}

In the Supreme Court of the Gnited States

DISTRICT OF COLUMBIA

BOARD OF ELECTIONS AND ETHICS,

Petitioner,

V.

WAYNE TURNER, ef al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF IN OPPOSITION

ARTHUR B. SPITZER

Counsel of Record

AMERICAN CIVIL LIBERTIES UNION

OF THE NATIONAL CAPITAL AREA

1400 20th Street, N.W., Suite 119

Washington, DC 20036

(202) 457-0800

GRAHAM A. BOYD .

ACLU DRUG LAW REFORM PROJECT

101 Cooper Street

Santa Cruz, CA 95060

(831) 471-9000

Attorneys for Respondents

hs

QUESTION PRESENTED

Whether the court of appeals correctly ruled that the

District of Columbia was jointly and severally liable for the

prevailing plaintiffs’ attorneys’ fees in this lawsuit

challenging the constitutionality of a District of Columbia

statute under 42 U.S.C. § 1983, where the District of

Columbia enforced the challenged statute throughout the

litigation and provided the relief sought in the complaint only

after the court ruled, and where the intervenor-defendant (to

whom the district court had allocated most of plaintiff's fees)

did not litigate any separate issues and had no power to

provide plaintiffs with any of the relief they sought?

li

TABLE OF CONTENTS

QUESTION PRESENTED .isscccisssseceseenreneenaasnneaianae i

TABLE OF AUTHORITIES wscciunvoa seen ili

STATEMENT OF THE CARE .cicisnscssecseseasaumenaenmne l

1. The Merits Litieetittt o..c.iscss eo eeneenne 2

2. Plaintiffs’ Motion for Attorneys’ Fees...........::::ceeee 5

a. The Denial of Fees Against the United States....... 6

b. The Magistrate Judge’s Award of Minimal

Fees Against the Board of Elections.................4. 7

c. The District Court’s Fee Ruling..............: ssdanuaniina 9

d. The D.C. Cimowit"s SRI siscccrsaseesesnaieenns 11

REASONS FOR DENYING THE WRIT ..............ssseeeeeeeees 14

I. The Decision Below Creates No Conflict

Among the Citcttitt ....as:sa«ssisuis sarseneeneelaieinainiats 16

Hl. The Decision Below ig Contact ...cescessssesscessessveseceenes 23

CONCLUSIOIN .........0:snesierienstiinaisansiinsenieiananaanne 29

ill

TABLE OF AUTHORITIES

Page(s)

CASES

Action on Smoking and Health vy. Civil Aeronautics

Board, 724 F.2d 211 (D.C. Cir. 1984)...........:cccscsssseeeees 6

American Ass'n of Retired Persons-v. EEOC,

ee CE Gols BMI coscerrescvevessesecssveiersciursvenes 6

Buckhannon Board & Care Home, Inc. v. West

Virginia Dept. of Health & Human Resources,

4 sR ATC a 15

Carhart v. Stenberg, 192 F.3d 1142 (8th Cir.

SPP Ge Oe Fae ee FE CLOG) ccesvescvesevscerssnsviverioves 27

Coalition for Basic Human Needs v. King,

Be ae FFF CBN, 1FEZ) cccsvcsevvoccesnscsces 12, 20, 26, 28

Consumers Union of the United States, Inc. v.

American Bar Ass'n, 505 F. Supp. 822 (1981),

rev'd, 688 F.2d 218 (4th Cir. 1982), cert. denied,

NE ae BRE CSO ericincssvvreyseehtnssenrsnesvonidenersedievsinves 25

Corder v. Gates, 947 F.2d 374 (9th Cir. 1991).........ceeeeees 19

Council for Periodical Distributors Ass’ns

v. Evans, 827 F.2d 1483 (11th Cir. 1987)........... ce eeeeees 22

Crosby v. Bowling, 683 F.2d 1068 (7th Cir. 1982)............. 26

Dean v. Gladney, 621 F.2d 1331 (Sth Cir. 1980),

cert. denied, 450 U.S. 983 (1981) ..........ccssccsssressesesees

1V

District Properties Associates v. District of

Columbia, 743 F.2d 21 (D.C. Cir. 1984)... cece 24

Firebird Society v. Members of Board of Fire

Commissioners, 556 F.2d 642 (2d Cir. 1977)............... 22

Hensley v. Eckerhart, 461 U.S. 424 (1983)............ 1, i320

Herbst v. Ryan, 90 F.3d 1300 (7th Cir. 19 96)............... 20, 21

Holley v. Lavine, 605 F.2d 638 (2d Cir. 1979),

cert. denied, 446 U.S. 913 (1980) .............cssssssssssssseees 26

Johnson vy. Mississippi, 606 F.2d 635 (Sth Cir. 1979)......... 26

Jones v. Espy, 10 F.3d 690 (9th Cir. 1993)... cceeeeeeeeees 18

Kentucky v. Graham, 473 U.S. 159 (1985)... eee 13, 25

Knights of Ku Klux Klan v. East Baton Rouge

Parish School Board, 735 F.2d 895 (Sth Cir. 1984)......22

Koster v. Perales, 903 F.2d 131 (2d Cir. 1990)... 21

Little Rock School District v. Pulaski County Special

School District, 787 F.2d 372 (8th Cir. 1986)............... 22

Martin v. Heckler, 773 F.2d 1145 (11th Cir. 1985) ............ 26

Sable Communications, Inc. v. Pacific Telephone

& Telegraph Co., 890 F.2d 184 (9th Cir. 1989)............. 19

Scarborough vy. Principi, 124 S. Ct. 1856 (2004) ......... eee 7

Southeast Legal Defense Group v. Adams,

O57 FSO TBS CUR CW, TDG E )icsccsevsecersesesvees 16, 17, 18, 19

Vv

Supreme Court of Virginia v. Consumers Union of

the United States, Inc., 446 U.S. 719 (1980).......... 12, 25

Texas State Teachers Assn. v. Garland Independent

School Dist., 489 U.S. 782 (1989).........cccccseeeeeeeeees 15, 26

Turner v. District of Columbia Board of Elections

and Ethics, 77 F. Supp. 2d 25 (D.D.C. 1999) ............. 4

Turner v. District of Columbia Board of Elections

and Ethics, 170 F. Supp. 2d 1 (D.D.C. 2001) .............0. 7

Turner v. District of Columbia Board of Elections

and Ethics, 183 F. Supp. 2d 22 (D.D.C. 2001)............... 6

Venuti v. Riordan, 702 F.2d 6 (1st Cir. 1983)...........cceeeeee 25

STATUTES AND RULES

OO Un 9 ODD sicinnisininmenmaanaia aaa 9

28 U.S.C. § 2492 sicccccssccrsecoe WRN ne 5,6, 13

GE UBA. § VFR hsicd cena 1, 7, 14, 29

G2 UB... S FIO canvicncsncasan 5, 7, 8, 12, 13, 14, 27

District of Columbia Appropriations Act for

Fiscal Year 1999, Pub. L. No. 105-277, § 171,

152 GOUk, Ces CEE 6iicccricnensiin mana 2

District of Columbia Appropriations Act for

Fiscal Year 2004, Pub. L. No. 108-199, Division C,

Title III, § 423, 118 Stat. 139 (2004)... eeeeeeees 4

vi

Pub. L. No. 96-170, § 1, 93 Stat. 1284 (1979)... 24

Fide ROD. NO. FO-SEG (IGT a pasccsssvcascovsnssovememesniemmenaal 24

FOG. KR COV. F. DO ccsscverccctvsintsnisentaamanaaaae 6,9

FOG. Re CAV. F. FE ccccsssvinsentnmetammmniaaaiee 6,9

DDL. ECOG COVEPTRIEG SAE eccsecensenssesenneteetianamammas 5

LD.IDA,. LAGGUE FUMED ZT Dei ie evescssscstensnsovessevaisouseessmaaanan 5

STATEMENT OF THE CASE

It is undisputed that the respondents (plaintiffs below)

achieved complete success on the merits of this Section 1983

litigation challenging the constitutionality of a statute of the

District of Columbia.' The Court of Appeals for the D.C.

Circuit held that they were, therefore, entitled to a fully

compensatory award of attorneys’ fees against the petitioner

D.C. Board of Elections and Ethics. The Board was the only

defendant plaintiffs had sued, the only defendant that had

enforced the challenged statute, and the only defendant that

had the power to grant the relief plaintiffs sought.

The Board asserts that the court of appeals erred in

awarding plaintiffs a fully compensatory fee. The Board

prefers the district court’s decision, which “apportioned”

most of plaintiffs’ fees to the United States, which had

intervened to defend the statute—even though the United

States could not be made to pay attorneys’ fees because its

sovereign immunity overrode the consent that its own

lawyers had given to an extension of time for plaintiffs to file

their fee application.

Under the circumstances of this case, the court of appeals

did not err in following this Court’s teaching that “[w]Jhere a

plaintiff has obtained excellent results, his attorney should

recover a fully compensatory fee.” Hensley v. Eckerhart, 461

U.S. 424, 435 (1983). Nor did the decision below create a

conflict among the Circuits, for no Circuit has ever held that

“apportionment” is a technique by which a fully successful

plaintiff may be deprived of a fully compensatory fee.

' The statute in question was enacted by Congress and was

applicable exclusively to the District of Columbia. As a matter of law,

“any Act of Congress applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of Columbia.” 42 U.S.C.

§ 1983.

1. The Merits Litigation

On September 17, 1998, the D.C. Board of Elections and

Ethics certified that the D.C. Medical Marijuana Initiative

had obtained sufficient signatures to be placed on the

November 1998 general election ballot. If it became law,

that measure would have permitted seriously ill individuals to

obtain and use marijuana for medical purposes under the care

of a licensed physician without violating the laws of the

District of Columbia.

On October 21, 1998, Congress passed and the President

signed the fiscal 1999 District of Columbia Appropriations |

Act. Section 171 of that Act, known as the “Barr

Amendment” after its House sponsor (Rep. Bob Barr, R- |

Georgia), provided that:

None of the funds contained in this Act may be

used to conduct any ballot initiative which seeks

to legalize or otherwise reduce penalties

associated with the possession, use, or distribution

of any schedule I substance under the Controlled

Substances Act (21 U.S.C. 802) or any

tetrahydrocannabinols derivative.

Pub. L. No. 105-277, § 171, 112 Stat. 2681 (1998).

Although the Barr Amendment was intended to prevent

the submission of the Medical Marijuana Initiative to the

voters, the general election ballots had already been printed

and the Board of Elections determined that it was too late to

change them. On November 3, 1998, the citizens of the

District of Columbia cast their ballots on the measure.

— —

2 The text of the initiative is available at http://www.dcwatch.com/

election/init001.htm.

However, when it came time to count the ballots and

announce the results, the Board of Elections chose to enforce

the Barr Amendment despite the opinion of its own lawyers

that the Amendment was unconstitutional.’ Accordingly, the

votes were not counted and the results were not announced or

certified, even though D.C. law required the Board to count

the ballots and certify the election results.

Plaintiffs filed this lawsuit for the purpose of getting the

votes counted and the results announced and certified. Their

complaint sought declaratory and injunctive relief, and

alleged (a) that the Barr Amendment, properly interpreted,

did not prohibit the Board of Elections from performing its

statutorily-mandated duty of counting the ballots and

certifying the results, and (b) that if the Barr Amendment did

prohibit the Board from performing its duty, then the Barr

Amendment violated the First and Fifth Amendments to the

Constitution. Three days after the election plaintiffs filed an

application for a temporary restraining order and a motion for

a preliminary injunction. That same day the Board of

Elections filed a motion for declaratory judgment supporting

plaintiffs’ arguments that the Barr Amendment was

unconstitutional. However, the Board did not join in

plaintiffs’ statutory construction argument.‘

On November 23, the United States moved to intervene

to defend the constitutionality of the Barr Amendment. After

expedited briefing on cross-motions for summary judgment,

the merits were argued on December 18 and taken under

advisement. Nine months later the district court (Richard W.

Roberts, J.) issued its decision. The court concluded, as

plaintiffs had argued, that the Barr Amendment did not

3 See Motion of Defendant for Expedited Review and Declaratory

Judgment, Record Doc. 2.

4 Id.

preclude the Board from “counting, releasing and certifying

the vote on Initiative 59,” because the phrase “conduct any

ballot initiative” referred “only to conducting election day

affairs.” Turner v. District of Columbia Board of Elections

and Ethics, 77 F. Supp. 2d 25, 29 (D.D.C. 1999). In reaching

that conclusion, the court relied heavily on the principle of

constitutional avoidance, id., opining that if the Barr

Amendment did prohibit the ballots from being counted, “it

would have violated plaintiffs’ First Amendment rights.” Jd.

at 35.

Pursuant to the district court’s decision, the Board

counted the ballots and announced the results, which showed

that the initiative had passed by a landslide, winning 69% of

the vote, with a majority in every single precinct.

> The election results are posted on the Board of Election’s website

at http://www.dcboee.org/information/elec_1998/ini59_98.htm. Despite

its passage, however, the measure has not become effective because it has

been blocked by a congressional “budget rider” that has been attached to

every subsequent D.C. Appropriations Act. The rider currently in effect

provides:

(a) None of the funds contained in this Act may be used

to enact or carry out any law, rule, or regulation to legalize

or otherwise reduce penalties associated with the

possession, use, or distribution of any schedule I substance

under the Controlled Substances Act (21 U.S.C. 802) or any

tetrahydrocannabinols derivative.

(b) The Legalization of Marijuana for Medical

Treatment Initiative of 1998, also known as Initiative 59,

approved by the electors of the District of Columbia on

November 3, 1998, shall not take effect.

District of Columbia Appropriations Act for Fiscal Year 2004, Pub. L.

No. 108-199, Division C, Title III, § 423, 118 Stat. 139 (Jan. 23, 2004).

2. Plaintiffs’ Motion for Attorney’s Fees

Thirteen days after the district court’s summary judgment

ruling, plaintiffs filed a Consent Motion for an Order Holding

in Abeyance Proceedings Regarding Attorneys’ Fees and

Costs; which was consented to by both the Board of Elections

and the United States.* The motion noted that D.D.C. Local

Rule 215(b)’ “recognizes that it may be ‘in the interest of

justice [for] the fee issues, in whole or in part, [to] be held in

abeyance pending the outcome of [any] appeal’” (brackets in

original), and represented that “all parties agree that it is in

the interest of justice and efficiency to hold those issues in

abeyance until it is known whether or not the defendants will

appeal from this Court’s September 17 Judgment, and, if they

do appeal, until after that appeal is adjudicated.” The Court

issued the requested order, which also instructed the parties

to “confer with respect to issues of attorneys’ fees and...

submit to the Court proposed order(s) regarding further

proceedings on fee issues” after any appeal of the merits was

either adjudicated or foregone.®

Neither defendant appealed. The parties then attempted to

settle plaintiffs’ fee claims, but did not succeed. Accordingly,

plaintiffs’ detailed Motion for Attorneys’ Fees and Expenses

was filed on March 31, 2000.9 It sought fees against the

Board of Elections under the Civil Rights Attorney’s Fees

Awards Act, 42 U.S.C. § 1988, and fees against the United

States under the Equal Access to Justice Act, 28 U.S.C. §

2412. Plaintiffs argued that they were entitled to fees under

both statutory standards, and fully documented the hours

their lawyers had reasonably expended on the litigation and

© Record Doc. 37.

7 Now recodified as D.D.C. Local Civil Rule 54.2.

8 Record Doc. 38.

° Record Doc. 43.

the lawyers’ reasonable hourly rates and out-of-pocket

expenses. Plaintiffs argued that the United States and the

Board were jointly and severally liable for the fees,

recognizing, however, that the liability of the United States

was limited by the cap on hourly rates imposed by 28 U.S.C.

§ 2412(d)(2)(A).'° Pursuant to Fed. R. Civ. P. 54(d)(2)(D)

and 72(b), the fee motion was referred to Magistrate Judge

John M. Facciola for proposed findings and

recommendations.

a. The Denial of Fees Against the U~ited States

Although the United States had expressly consented to

plaintiffs’ motion to hold fee proceedings-n abeyance, it now

asserted that plaintiffs’ motion for fees had to be dismissed as

untimely, on the ground that the Equal Access to Justice Act

required a fee motion to be filed “within 30 days of final

judgment in the action,” 28 U.S.C. § 2412(d)(‘ )(B), and that

this statutory deadline was jurisdictional and not subject to

waiver by the United States or extension by court order."!

Plaintiffs argued that principles of equitable tolling

applied, particularly since the United States had “prolonged

the [fee] settlement consultations due to [its] reassignment of

the attorney responsible for this case.”!? But the magistrate

judge concluded that the United States’ consent to an

extension was ineffective and that equitable tolling did not

apply. Turner v. District of Columbia Board of Elections and

'0 Record Doc. 43 at 22-24.

'! United States’ Memorandum of Law in Opposition to Plaintiffs’

Motion for Attorneys’ Fees and Expenses, Record Doc. 51, at 5-9 (citing

Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211,

225 (D.C. Cir. 1984) and American Ass'n 2f Retired Persons v. EEOC,

873 F.2d 402, 407 (D.C. Cir. 1989)).

2 Plaintiffs’ Reply in Support of Plaintiffs’ Motion for Attorneys’

Fees and Expenses, Record Doc. 56, at 11.

Ethics, 183 F. Supp. 2d 22 (D.D.C. 2001), Pet. App. 40a. In

light of clear Circuit precedent, plaintiffs accepted that

decision and did not file objections with the district court."

b. The Magistrate Judge’s Award of Minimal

Fees Against the Board of Elections

Turning to plaintiffs’ motion for fees against the Board,

the magistrate judge found that plaintiffs were prevailing

parties and that their claimed hours and hourly rates were

reasonable. Turner v. District of Columbia Board of Elections

and Ethics, 170 F. Supp. 2d 1 (D.D.C. 2001), Pet. App. 25a.

The Board of Elections did not dispute those findings.

However, it opposed plaintiffs’ fee request in toto on the

ground that Congress, rather than the D.C. government, had

enacted the Barr Amendment. Based on that fact, the Board

argued that in enforcing the Barr Amendment it was not

acting “under color of . . . State” law, as required by 42

U.S.C. § 1983 (and, thus, by § 1988), because “the offending

conduct was pursuant to federal not state or local law.”'4 In a

supplemental filing, it asserted that it was not liable for fees

because “[p]laintiff has failed to articulate any fau/t on the

part of the Board other than that it complied with federal

law.”"!5

13 Tronically, this Court’s recent decision in Scarborough v. Principi,

124 S. Ct. 1856 (May 3, 2004), holding that the EAJA filing deadline is

“not properly typed ‘jurisdictional,’” id. at 1865, overrules the D.C.

Circuit cases relied upon by the United States and the Magistrate Judge in

dismissing plaintiffs’ EAJA fee motion.

14 Fyefendant’s Opposition to Plaintiffs’ Motion for Attorneys’ Fees

anc Expenses, Record Doc. 50, at 7 (emphasis added).

'S Defendant’s Response to Plaintiffs’ Additional Statement in

Support of their Renewed Motion for Attorneys’ Fees and Expenses

Against the District of Columbia, Record Doc. 68, at 2 (emphasis added).

The magistrate judge rejected the Board’s arguments as a

matter of law, observing that they “ignore[] that § 1983 itself

acknowledges that ‘[f]or the purposes of this section, any Act

of Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the District of

Columbia.’” Pet. App. 29a (quoting 42 U.S.C. § 1983). Thus,

as a matter of law, the Barr Amendment was attributable to

the District of Columbia just as if the D.C. Council had

enacted it. Jd.

The magistrate judge also rejected the Board’s argument

that its good faith or lack of “fault” would render a fee award

unjust. He noted that such arguments had often been made,

and as often rejected:

[T]he proper focus in § 1983 cases is never on the

defendants’ “fault.” It must never be forgotten

that Congress enacted_the fee shifting provision

not to punish defendants but to encourage lawyers

to undertake litigation to vindicate the

constitutional and statutory rights of those who

could not otherwise afford to vindicate those

rights. ... There is absolutely no indication

anywhere that the Board would have brought the

lawsuit itself had it not been sued. It therefore

must be said that, but for plaintiffs’ bringing the

lawsuit, the results of the initiative would have

never been published.

Pet. App. 32a-33a. Thus, the magistrate judge concluded that

the Board was liable for fees and expenses under 42 U.S.C.

§ 1988. Pet. App. 33a (“this is not one of those rare cases

where the award of fees is fundamentally unjust”).

Nevertheless, he awarded plaintiffs only 3% of the fees

they had requested and documented, on two grounds. First,

he reasoned that the Board’s liability for fees should exclude

all work performed by plaintiffs’ counsel after November 6,

1998—just one week after their lawsuit was filed—because

on that date the Board had filed a “request for a declaratory

judgment” and “effectively ceased opposing plaintiffs.” Pet.

App. 35a. Second, he sua sponte invoked the doctrine of

“apportionment,” and apportioned even that first week’s

worth of fees 90% to the United States and 10% to the

Board—although the United States had not yet even moved

to intervene during that first week. Pet. App. 34a-36a. He

reasoned that “the Board was not primarily responsible for

the violation” because “it was Congress that passed the

legislation.” Pet. App. 35a, 36a. Thus, plaintiffs were to

receive fees for only one-tenth of the work their lawyers

performed during only the first week of this wholly

successful litigation.

c. The District Court’s Fee Ruling

Plaintiffs filed timely objections with the district court,'®

triggering a de novo determination of their fee motion

pursuant to Fed. R. Civ. P. 54(d)(2)(D) and 72(b) and 28

U.S.C. § 636(b)(1). The Board did not file any objections to

the magistrate judge’s rulings, although Rule 72(b) gives any

party an additional ten days to file cross-objections after

being served with another party’s objections.

The district court issued its decision in January 2003. Pet.

App. 18a.'’ It noted that plaintiffs’ status as prevailing parties

was undisputed. Pet. App. 20a. Without discussing or even

citing a single court decision or any other authority relating to

the apportionment of fees, the district judge concluded that

'6 Record Doc. 74.

'7 The date of this decision as printed on page 18a of the Petition

Appendix is incorrect. The correct date is January 8, 2003.

10

“apportionment is appropriate in this case,” Jd. He then stated

three reasons why plaintiffs’ fees should be reduced. First,

that “[plaintiffs’] ability to recover a fully compensatory fee

.. . 1s impeded by their failure to have filed their request for

fees from the United States in a timely manner.” Pet. App.

20a.'8 Second, that “[t]he Board should not be required to pay

fees incurred during litigation on the merits after it requested

a ruling from the Court that the Barr Amendment was

unconstitutional.” /d. And third, that “(t]he United States in

this case was solely responsible for enacting the challenged

legislation.” Pet. App. 21a. Without explaining how any of

these factors related to the relevant caselaw—and without

even recognizing that 42 U.S.C. § 1983 made the Barr

Amendment a “statute of the District of Columbia”’—he

followed the magistrate judge’s lead and completely denied

fees for any work done by plaintiffs’ counsel after the first

week of litigation, e.g., denying fees for all work on

plaintiffs’ motion for summary judgment and for the oral

argument on that motion. Pet. App. 20a. He thus awarded

plaintiffs approximately 18% of the fees they had requested

and documented for the merits litigation.'®

'8 Petitioner states that “the district court on de novo review found

that Turner could have received a fully compensatory fee had he timely

filed a request for fees from the United Sates under the EAJA.” Pet. at 7.

That is false. There is no such finding, or statement, or suggestion, in the

district court’s decision. The only relevant sentence in the district court’s

opinion is the sentence quoted in the text above. As explained below

(post at 13 n.21), a timely motion for fees under EAJA would not

necessarily have resulted in a fee award because the statutory

requirements for an EAJA fee award are significantly more demanding |

than the requirements under § 1988.

'9 The district court’s final fee award (after granting plaintiffs’

motion for reconsideration based on erroneous calculations, Record Doc.

87) consisted of $24,000 for the litigation on the merits, $36,929 for the

fee litigation and $600 in expenses, for a total of $61,529. Record Doc.

91.

<<

11

Plaintiffs timely appealed to the D.C. Circuit. The Board

of Elections did not cross-appeal.

d. The D.C. Circuit’s Ruling

Contrary to petitioner’s characterization, the court of

appeals’ decision had nothing to do with the general question

whether an award of attorneys’ fees may be apportioned

among the losing parties. There is no reason to believe that

such apportionment would be improper in the D.C. Circuit,

whether the fee award is fully compensatory or less than fully

compensatory. To the contrary, the court noted that it

“normally would defer to a thoughtful rationale of the district

court so long as it achieved a result that was fair to the

parties.” Pet. App. 8a.

What the court of appeals held was simply that the

plaintiffs here—as concededly prevailing parties who had

achieved complete success on the merits of their case, Pet.

App. 6a-7a—were entitled to a fully compensatory award of

fees against the Board of Elections on the basis of “well-

settled propositions of law.” Pet. App. lla. The court of

appeals’ decision made no new law. Rather, it rejected the

magistrate judge’s “novel application of a comparative fault

theory based on tort law,” Pet. App. 8a, that had been

adopted without discussion by the district court (see Pet.

App. 20a), and that was without support in the law of

attorneys’ fee awards.”

In an opinion by Circuit Judge Judith Rogers, joined by

Chief Judge Douglas Ginsburg and Circuit Judge David

Tatel, the court of appeals held:

20 Notably, the Board of Elections had never even asked the

magistrate judge to apportion plaintiffs’ fees. He did so sua sponte, and

without providing tie parties any opportunity to address the propriety of

apportionment in briefs or argument.

12

(a) That, in accord with “[l]ongstanding precedents,”

the plaintiffs, who had achieved excellent results, “should

normally receive a fully compensatory attorney’s fee.” Pet.

App. 7a.

(b) That the fact that Congress, rather than the D.C.

Council, enacted the Barr Amendment is irrelevant as a

matter of law “because under 42 U.S.C. § 1983 the

Amendment is treated as a District of Columbia law.” Pet.

App. I la.

(c) That “because an award of attorney’s fees under §

1988 ‘is not meant as a “punishment” for “bad” defendants

.. . [but] is meant to compensate civil rights attorneys who

bring civil rights cases and win them,” the fact that it was not

the ‘fault’ of the Board of Elections that the Barr Amendment

was enacted by Congress . . . is not a ‘special circumstance’

warranting denial of a fully compensatory fee.” Pet. App. lla

(quoting Coalition for Basic Human Needs v. King, 691 F.2d

597, 602 (Ist Cir. 1982) (Breyer, J.)) (brackets in original).

(d) That the plaintiff-friendly arguments made in

briefs filed by the Board of Elections’ lawyers did not relieve

the Board of liability for fees because the Board “continued

to enforce the Barr Amendment throughout Turner’s § 1983

litigation.” Pet. App. 11a (citing, inter alia, Supreme Court of

Virginia v. Consumers Union of the United States, Inc., 446

U.S. 719, 739 (1980)).

(e) That plaintiffs’ faiture to file a timely application

for EAJA fees against the United States was irrelevant to the

Board’s liability, “because the Board’s liability for § 1988

fees is not derivative of the United States’,” and because “the

immunity of one defendant does not reduce the liability of a

13

non-immune co-defendant.” Pet. App. | la (citing, inter alia,

Kentucky v. Graham, 473 U.S. 159, 164-65 (1985)).?!

(f) That the Board’s belated attempt to argue that it

was a “prevailing party” was not properly before the court as

it had not been raised below, and was in any event without

merit because the Board was the only party that could count

the votes and certify the election results and it had refused to

do so. Pet. App. 10a-1 la.

(g) That plaintiffs’ claims against the Board of

Elections and the United States were “non-fractionable” (i.e.,

they properly gave rise to joint and several liability for fees)

because they were “centered on a common set of issues” and

did “not [involve] a separate claim against the United States.”

Pet. App. 14a. As the court explained, even “if the United

States had not intervened, Turner would have been required

to litigate the merits of his § 1983 claim so long as the Board

continued to enforce the Barr Amendment.” Jd. 22. -

21 The court of appeals misapprehended the record when it said that

plaintiffs originally “sought fees from the Board under 42 U.S.C. § 1988

for any amount exceeding the award under EAJA.” Pet. App. 4a.

Plaintiffs’ fee motion reflects their awareness that obtaining fees under

EAJA (requiring a finding “that the position of the United States was

[not] substantially justified,” 28 U.S.C. § 2412(d)(1)(A)) is much more

difficult than obtaining fees under § 1988 (requiring only a finding that

the plaintiff was a “prevailing party”), and that they therefore might not

receive any fees under EAJA. Accordingly, ihey asked that “a full award

should be made against each defendant at this stage because of the

possibility that one or both awards may be reversed or reduced on

appeal.” Plaintiffs’ Motion for Attorneys’ Fees and Expenses, Record

Doc 43, at 24 n.9.

22 As the court of appeals pointea out, its conclusion rested on a

finding of fact by the magistrate judge that “[t]here is absolutely no

indication anywhere that the Board would have brought the lawsuit itself

had it not been sued. It therefore must be said that, but for plaintiffs’

bringing the lawsuit, the results of the initiative would have never been

published.” Pet. App. 33a. The Board did not file an objection to that

14

Accordingly, the court of appeals “remand[ed] the case to

the district court to enter a fully compensatory award.” Pet.

App. 16a.

The Board of Elections filed a timely petition for

rehearing or rehearing en banc. The petition for rehearing

was denied. No judge called for a vote on the petition for

rehearing en banc.

REASONS FOR DENYING THE WRIT

As the court of appeals recognized, the Board’s liability

for plaintiffs’ reasonable attorneys’ fees follows from an

unambiguous federal statute and from settled principles of

law that petitioner chooses to ignore.

First, petitioner ignores the fact that for the purposes of

litigation under 42 U.S.C. § 1983, and thus for fee awards

under 42 U.S.C. § 1988, Congress has unambiguously

provided that:

any Act of Congress applicable exclusively to the

District of Columbia shall be considered to be a

statute of the District of Columbia.

42 U.S.C. § 1983 (emphasis added). Thus the District’s plea

that it was not responsible for the Barr Amendment may be

true as a matter of fact but is false as a matter of law. The

District is responsible for the Barr Amendment just as fully

as if that statute had been enacted by the D.C. Council and

signed by the Mayor.

Second, petitioner ignores the fact that it was the only

party that violated plaintiffs’ rights—by refusing to count

finding of fact with the district court, did not dispute it before the court of

appeals, and does not question it here.

15

their ballots—and the only party that could have provided the

relief sought in the complaint—by counting them. Only the

petitioner, and not the United States, was subject to a court-

ordered “‘material alteration of the legal relationship of the

parties,’” Buckhannon Board & Care Home, Inc. v. West

Virginia Dept. of Health & Human Resources, 532 U.S. 598,

604 (2001) (quoting Texas State Teachers Assn. v. Garland

Independent School Dist., 489 U.S. 782, 792-93 (1989)).

Thus, the Board was the responsible party not only as a

matter of law but as a matter of fact.

Third, petitioner ignores the fact that “the most critical

factor” in evaluating the reasonableness of a fee award “is the

degree of success obtained” by the party seeking fees.

Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). On the

merits of this case, plaintiffs achieved complete success, and

“(w]here a plaintiff has obtained excellent results, his

attorney should recover a fully compensatory fee.” Jd. at 435.

Petitioner points to no authority supporting an award of less

than a fully compensatory fee in a case where, as here, a

plaintiff was entirely successful in obtaining, through a final,

unappealed judgment on the merits, the relief sought .in his

lawsuit.

The decision below recognized these facts and followed

these authorities. It broke no new ground. It does not conflict

with any decision of this Court or with the law of any other

Circuit. Moreover, the factual and procedural circumstances

of this case are highly idiosyncratic and unlikely ever to

recur. Nothing about this case makes it appropriate for

review.

16

I. The Decision Below Creates No Conflict Among

the Circuits.

Petitioner’s attempt to manufacture a circuit split begins

with a mischaracterization of the decision below. According

to petitioner, the D.C. Circuit “ruled, as a matter of law, that

district courts do not have discretion to apportion fee

responsibility when apportionment would result in less than a

fully compensatory fee award for a prevailing plaintiff.” Pet.

8. But the ruling was far more qualified than that.

An accurate statement of the court of appeals’ ruling is

that district courts do not have discretion to apportion fees

when (a) the plaintiff “ha[s] achieved excellent results in

civil rights litigation” and therefore “should normally receive

a fully compensatory attorney’s fee,” Pet. App. 7a; (b) the

plaintiff's claims against multiple defendants were not

“fractionable,” having “centered on a set of common issues

against two Or more jointly responsible defendants,” Pet.

App. 12a (internal quotation marks omitted); and (c)

apportioning part of the fee award to a party “who cannot be

made to pay” would be inconsistent “with the court’s duty to

ensure that a successful § 1983 plaintiff is awarded a fully

compensatory fee.” Pet. App. 13a.

No decision cited by petitioner, and no decision of which

we are aware, conflicts with the decision below. Petitioner

points to ten federal cases that, it says, conflict with the D.C.

Circuit’s ruling. We show below that none of them does.

Petitioner’s lead case is Southeast Legal Defense Group

v. Adams, 657 F.2d 1118 (9th Cir. 1981). As the court below

recognized, Pet. App. 14a, that case is not remotely similar,

for it involved separate claims successfully brought against

the federal and state defendants. The successful claim against

the federal defendants was that they had improperly approved

al

17

the state’s selection of a particular corridor for a proposed

highway. 657 F.2d at 1120. The successful claim against the

state defendants was that they had improperly selected that

corridor without “afford[ing] full opportunity for effective

public participation . . . before submission to the Federal

Highway Administration for approval.” /d. at 1122 (internal

quotation marks omitted). Thus, the time spent litigating the

two claims was properly segregated for purposes of awarding

fees. In affirming the district court’s 75%-25% apportion-

ment, the court of appeals went out of its way to explain that

“[t]his is not a case of reducing fees by 25%, but rather is a

case where plaintiffs are only entitled to fees for their action

as against the state defendants. Since plaintiffs are not

entitled to fees for their suit against the federal defendants,

they cannot recover them from the state defendants.” Jd. at

1125 (emphasis added).3

Plaintiffs did not dispute below, and do not dispute here,

that in cases involving separate claims against separate

defendants, fees may be apportioned so that each defendant

bears the cost of its own wrongdoing. See, e.g., Dean v.

Gladney, 621 F.2d 1331, 1339-40 (Sth Cir. 1980), cert.

denied, 450 U.S. 983 (1981) (apportioning fees where

discrete injuries were caused by different defendants). Adams

*3 The Board asserts here, as it did below, that Adams did not involve

separate claims because the plaintiffs in that case “‘prevailed on’ only

‘their eighth claim’” against both the state and federal defendants. Pet. 11

n.2. The court of appeals rejected the Board’s analysis of Adams, for the

good reason that the “eighth claim” included both an allegation that the

state defendants improperly held a public hearing on the route of the

proposed highway after already having made up their minds about the

route, and the separate allegation that the federal defendants improperly

approved the route that had been selected after that sham process. See 657

F.2d at 1120-21. Moreover, in apportioning fees, the Adams court did not

consider only the work done on the successful “eighth claim,” but the

total time plaintiffs’ counsel spent litigating their separate claims against

each defendant. See id. at 1125-26.

18

is simply an example of that situation, and, as such, it has no

relevance here, where both defendants responded to the same

claims.74

Petitioner next cites Jones v. Espy, 10 F.3d 690 (9th Cu.

1993). That case also involved fee claims against a state

defendant under § 1988 and against the United States under

EAJA, but as plaintiffs had achieved only a “partial victory,”

id. at 691, fully compensatory fees were not in the offing.

The district court apportioned the partial fees that it did

award on a 50-50 basis, and because the federal defendant’s

EAJA liability was capped at an hourly rate below market

rates, plaintiffs did not collect as large an award as they

would have if the fees had been unapportioned. However, the

9th Circuit carefully explained that, as in Adams (which it

followed, see 10 F.3d at 692), “this is not a case in which the

plaintiffs’ ‘full’ award has been reduced; rather, ‘t is one in

which one defendant is fully liable for the atiorney fees

expended against it and the other is not.” Jd. (emphasis

added). Specifically addressing the argument that Jones

involved common claims against the state and federal

defendants—an argument relied upon by petitioner here, Pet.

11 n.2—the Jones court responded:

The plaintiffs also argue that the [district]

court's factual characterization was incorrect in

that the same amount of time would have been

expended even if only one defendait were

involved. Clearly, this is a question of fact that

was resolved adversely to the plaintiffs, and we

are presented with no information demonstrating

this finding was clearly erroneous.

4 As noted earlier, plaintiffs sued only the Board of Elections. The

United States subsequently intervened to defend against the same claims.

No separate or additional claim was ever asserted against the United

States.

19

10 F.3d at 692 n.3. Thus, petitioner’s effort to show a conflict

again runs aground on a dispositive factual finding that is

directly at odds with petitioner’s theory and with the

undisputed facts of this case.

In Sable Communications, Inc. v. Pacific Telephone &

Telegraph Co., 890 F.2d 184 (9th Cir. 1989), the court

reversed a holding that General Telephone, a late intervenor,

should be jointly liable for a/? of plaintiff's fees, including

the large portion that had been incurred before General

Telephone even entered the case. Jd. at 194. The court

explained that under those circumstances, a “[f]ailure to

apportion fees fairly between the defendant and the

intervenor would discourage intervention in civil rights cases,

a result to be avoided.” Jd. Sable also noted that “‘a fair

result for [all] parties’” required that the defendant whose

conduct was the focus of the litigation bear the major

responsibility for the fees. Jd. (quoting Adams, 657 F.2d at

1125) Thus, Sable is not at all consistent with the district

court’s allocation decision in this case, because here the

district court allocated the bulk of the fees not against the

original defendant, whose conduct (refusal to count the

ballots) required the litigation, but against the intervenor

United States—including fees incurred before the United

States even entered the litigation, which was precisely the

result that the Sable court found improper. Additionally, the

apportionment in Sable did not have the effect of depriving

the successful plaintiff of his fully compensatory fee.*5

25 Petitioner cites a fourth Ninth Circuit case, Corder v. Gates, 947

F.2d 374 (9th Cir. 1991), for the proposition that “a district court should

be g'ven the discretion to prescribe apportionment ‘when the time

expended by the plaintiff in pursuing each defendant was grossly

unequal.’” re 15 (quoting Corder at 383). Neither we nor the D.C.

Circuit have any quarrel with that proposition, unless such an

apportionment is used to deprive a fully successful plaintiff of a fully

compensatory fee for his attorney’s work on common claims. The

20

Petitioner also relies on Herbst v. Ryan, 90 F.3d 1300

(7th Cir. 1996), which involved a successful challenge to an

Illinois abortion statute. The defendants were two .iate

officials and the state’s 102 State’s Attorneys. None of the

State’s Attorneys had ever enforced the challenged statute,

id. at 1303, but had they done so they “would have been

acting as state agents.” /d. at 1302 (emphasis added). Yet had

they been required to pay plaintiffs’ attorneys’ fees, those

payments would have come out of their respective county

treasuries. Jd. at 1303 n.6. Under the circumstances, the

Seventh Circuit affirmed the district court’s decision to

apportion 100% of the fee liability to the state, given that the

entire litigation “was a defense of a state policy by state

officers on behalf of the state.” Jd. at 1306.

Nothing in the decision below would preclude that same

sensible result under the same circumsiances, for the

plaintiffs in Herbst received a fully compensatory fee. See id.

at 1306 n.13. The D.C. Circuit did not say that considerations

of comparative fault, responsibility or fairness could never be

considered in allocating fees; it said only that “Section 1988

does not permit a court to inquire into defendants’

comparative fault where to do so obstructs Congress’

purpose of compensating successful private attorneys

general.” Pet. App. 13a (emphasis added) (citing Coalition

for Basic Human Needs v. King, 691 F.2d 597, 602 (Ist Cir.

1982) (Breyer, J.)). The Seventh Circuit in Herbst made clear

that it agrees with the D.C. Circuit in that regard, explaining

that “[iJt is frequently appropriate to hold all defendants

jointly and severally liable for attorneys’ fees,” 90 F.3d at

1305, and that in considering any allocation of fees, a district

court “ought to consider the broad remedial purposes of the

holding in Corder is entirely consistent with the D.C. Circuit’s decision

here, for Carder affirmed the district court’s decision to hold multiple

defendants jointly and severally liable for the plaintiffs’ fees. 947 F.2d at

383.

Raunt Arie Mo ye od

21

Civil Rights Act and the role that section 1988 plays in

effectuating these goals.” Jd. at 1304. In particular, the

Herbst court emphasized, courts should bear in mind that

“the overriding goal of section 1988 is to reimburse, with a

reasonable attorneys’ fee, those private attorneys general who

invoke and thereby invigorate federal constitutional and

Statutory rights.” Jd. (internal quotation marks and citations

omitted) (emphasis added).

Indeed, the court in Herbst strongly hinted that it would

follow the same course as the D.C. Circuit in circumstances

like those presented here. Responding to a suggestion that the

piaintiffs might face difficulties in collecting their fees from

the state, the court noted with approval “that a number of

courts have upheld the imposition of joint and several

liability for a fee award where there existed a question as to

whether the fee would be collectible from one of the

defendants.” /d. at 1306 n13.

Petitioner’s next case is Koster v. Perales, 903 F.2d 131

(2d Cir. 1990). The facts and holdings of Koster do not help

petitioner. The Second Circuit there affirmed an award of

fees jointly and severally against multiple defendants,

holding that enforcement agencies are liable for fees even

when they are enforcing policies that are not of their own

making, id. at 137, and that “joint and several liability is

appropriate where the action or inaction of several defendants

produces a single indivisible injury.” Jd. at 140. Those

holdings are fully congruent with the ruling of the D.C.

Circuit here, where the enactment and enforcement of the

Barr Amendment produced a single indivisible injury to the

plaintiffs.?6

6 From the same Circuit, petitioner also cites Firebird Society v.

Members of Board of Fire Commissioners, 556 F.2d 642 (2d Cir. 1977),

where defendants were held not liable for a small portion of the

22

Council for Periodical Distributors Ass’ns v. Evans, 827

F.2d 1483 (11th Cir. 1987) is to the same effect. Petitioner

correctly identifies the relevant passage from Evans:

In cases where two or more defendants actively

participated in a constitutional violation, it will

frequently be appropriate to hold all defendants

jointly and severally liable for the attorney's fees.

In [other] cases . . . however, it may be

appropriate for_a district court to apportion fees

between the active instigator of a wrong and a

more passive co-defendant who had a more

peripheral or ministerial role in the wrong.

Id. at 1487 (quoted at Pet. 14-15). This analysis can give

petitioner no comfort here, for the D.C. Board of Elections

was the defendant that directly and actively violated

plaintiffs’ rights, by refusing to count plaintiffs’ ballots. Its

role cannot fairly be described as “passive.”

Finally, petitioner string-cites Little Rock School Dist. v.

Pulaski County Special School Dist., 787 F.2d 372 (8th Cir.

1986) and Knights of Ku Klux Klan v. East Baton Rouge

Parish School Bd., 735 F.2d 895 (Sth Cir. 1984). Pet. 15. If

the two-paragraph per curiam order in Little Rock stands for

anything, it is only that fees can sometimes properly be

prevailing plaintiffs’ fee that was incurred in opposing intervention by a

third party who wished to set aside a consent decree, an intervention that

the defendants also opposed. This case would be analogous to Firebird if

the D.C. Board of Elections had agreed to count and certify the election

results and the United States had then sought to intervene to enjoin that-

settlement. Of course those facts did not occur. To the contrary, the Board

of Elections’ action in refusing to count the ballots meant that the Board

was aligned, in fact, with the United States. As the court of appeals

observed, “Turner incurred and continued to incur attorney’s fees and

expenses because the Board refused to certify the election results.” Pet.

App. 10a.

23

allocated among defendants. Baton Rouge upholds an

allocation of 90% of fees against the United States in a case

where the federal government was the primary instigator of a

conspiracy to violate the plaintiffs constitutional rights. But

the court makes clear that fees could have been assessed

jointly and severally: “Where, as here, the issues before the

court involved a ‘common core of facts’ and ‘related legal

theories,’ it may be ‘difficult to divide hours spent on a claim

by claim basis.” 735 F.2d at 901 (quoting Hens/ey v.

Eckerhart, 461 U.S. 424, 435 (1983)). Neither case is at odds

with the decision below.

In sum, petitioner’s cases stand for the unsurprising

proposition that an apportionment of fees is sometimes

required, is sometimes permissible, and is sometimes

improper, and that district courts have discretion in allocating

fees but may not abuse that discretion. Nothing in the

decision below suggests that the law is otherwise in the

District of Columbia Circuit. None of petitioner’s cases holds

that apportionment is required where it would deprive a fully

successful plaintiff of a fully compensatory fee. None holds

that a defendant who enforces a challenged law is not liable

for a fully compensatory fee. Nothing in petitioner’s cases

suggests that any other Circuit would have exempted the

D.C. Board of Elections from joint and several liability for

plaintiffs’ reasonable attorneys’ fees under the facts of this

case.

II. The Decision Below is Correct.

1. As the court of appeals recognized, there is nothing

novel about this case except the novel theory fashioned by

the magistrate judge to avoid imposing liability upon the

District of Columbia. While plaintiffs share the D.C.

government’s frustration at congressional interference in

24

local matters (as exemplified by the Barr Amendment), the

court of appeals factually pointed out that

[t]he unique relationship between Congress and

the District of Columbia under the Constitution

simply means that there will be occasions when

the District of Columbia government must pay

attorney’s fees for successful § 1983 lawsuits

challenging laws that the District Government did

not enact, for any Act of Congress that is solely

applicable to the District of Columbia is a law of

the District of Columbia for § 1983 purposes.

Pet. App. 13a. In other words, when enacting laws applicable

only to the District of Columbia, “Congress acts as the local

legislature for the District of Columbia.” District Properties

Associates v. District of Columbia, 743 F.2d 21, 27 (D.C. Cir.

1984). Once that basic fact is accepted, the District’s liability

for fully compensatory attorneys’ fees in this case follows,

independent of any liability ve/ non of the United States, for

the District is fully responsible for the Barr Amendment as a

matter of law.?’

2. Even putting aside the District’s direct responsibility

for fees as the government entity whose law was successfully

challenged, the District is liable because its Board of

Elections actively enforced the Barr Amendment against the

27 Congress was entirely aware of what it was doing when it

amended § 1983 to add the phrase “any Act of Congress applicable

exclusively to the District of Columbia shall be considered to be a statute

of the District of Columbia.” Pub. L. No. 96-170, § 1, 93 Stat. 1284

(1979). As the House Committee on the District of Columbia explained,

“[(t]his change makes it clear that only the District of Columbia, and not

the U.S. Government, is liable for Section 1983 violations committed by

District officials acting under authority of those U.S. statutes.” H.R. Rep.

No. 96-548 (1979) reprinted in 1979 U.S.C.C.A.N. 2609, 2611.

25

plaintiffs. As this Court has recognized, “[f]ee awards against

enforcement officials are run-of-the-mill occurrences.”

Supreme Court of Virginia v. Consumers Union of the United

States, Inc., 446 U.S. 719, 739 (1980). That is true even when

the enforcement officials dislike the law they are enforcing.

Thus, in Consumers Union, fees were awarded against the

Virginia State Bar as the entity that was charged with

enforcing the challenged rule prohibiting attorney

advertising, even though the State Bar had not enacted that

rule and, indeed, had “endeavor[ed] to have the [rule]

amended to conform to constitutional standards.” Consumers

Union of the United States, Inc. v. American Bar Ass’n, 505

F. Supp. 822, 823 (1981) (refusing to award fees), rev'd by

Consumers Union of the United States, Inc. v. Virginia State

Bar, 688 F.2d 218, 222 (4th Cir. 1982), cert. denied, 462

U.S. 1137 (1983). Accord Kentucky v. Graham, 473 U.S.

159, 165 (1985) (“liability on the merits and responsibility

for fees go hand in hand”).

Another leading case is Venuti v. Riordan, 702 F.2d 6 (lst

Cir. 1983), written by then-Circuit Judge Breyer. There,

plaintiffs sued the police chief and the Licensing

Commission of Worcester, Massachusetts, asserting that a

Massachusetts state statute restricting entertainment at

restaurants and bars was facially unconstitutional. The

Commonwealth of Massachusetts was not a party to the

lawsuit; the defendants had no power to change the statute

but were authorized to enforce it. Plaintiffs prevailed and

were awarded fees. The defendants appealed, arguing—like

the petitioner here—that the unconstitutionality of the state

statute wasn’t their fault and that enforcing it was their legal

obligation. The court rejected their plea, noting that fees “are

often assessed against defendants who enforce the laws

instead of those who enact them.” Jd. at 8. The court affirmed

the local defendants’ sole liability for plaintiffs’ full fees.

26

Many courts have awarded fully compensatory fees

against defendants who simply enforced laws they had not

enacted and perhaps disliked. See, e.g., Martin v. Heckler,

773 F.2d 1145, 1150 (11th Cir. 1985) (“It is also not a special

circumstance sufficient to preclude a fee award against the

state defendant that the state merely acted pursuant to federal

regulation”), overruled on other grounds by Texas State

Teachers Ass'n v. Garland Independent School Dist., 489

U.S. 782 (1989); Coalition for Basic Human Needs v. King,

691 F.2d 597, 602 (Ist Cir. 1982) (fees awarded against local

government defendants who merely carried out state law);

Crosby v. Bowling, 683 F.2d 1068, 1073 (7th Cir. 1982)

(“fees can properly be taxed against those whose role is

limited to enforcement of regulations that they had no role in

promulgating”); Holley v. Lavine, 605 F.2d 638, 643-45 (2d

Cir. 1979), cert. denied, 446 U.S. 913 (1980) (fees awarded

against county for administering unconstitutional state law);

Johnson v. Mississippi, 606 F.2d 635, 637 (Sth Cir. 1979)

(fees awarded against State Board of Education although it

was “merely performing [its] duty by enforcing the [state]

statute”). Indeed, a contrary rule would make 42 U.S.C. §

1988 meaningless in virtually all cases challenging the

constitutionality of statutes and ordinances, for the legislature

is not generally a proper defendant.

There is, furthermore, no unfairness in holding the Board

liable for plaintiffs’ fees here. After all, plaintiffs were forced

to litigate this case to final judgment not because the United

States filed a brief defending the Barr Amendment, but

because the Board of Elections continued to enforce the Barr

Amendment against plaintiffs.

3. It may be true that the Board of Elections felt that it

had little choice but to enforce the Barr Amendment until the

district court had rendered judgment. But the Eighth Circuit

has explained why that is no defense:

27

The short answer is that governmental officials

are not bound to follow [statutory] law when that

law is itself unconstitutional. Quite the contrary:

in such a case, they are bound not to follow

[statutory] law. It is true that a prosecuting

attorney may not know for certain whether a state

law is valid or not, and that he may feel obliged to

enforce the law until a determination as to its

validity has been made. ... The point of § 1988

is that such officials proceed at their peril. If in

fact they are wrong, and the law they are

enforcing turns out to be invalid, § 1988 puts the

financial burden on the state officials. The judg-

ment of Congress is that the burden rests more

properly on them than on the party who has been

wronged by the application of an invalid law.

Carhart v. Stenberg, 192 F.3d 1142, 1152 (8th Cir. 1999),

aff'd, 530 U.S. 914 (2000) (emphasis in original). This “short

answer” applies with equal force to the situation that

confronted the D.C. Board of Elections upon the enactment

of the Barr Amendment.

4. Plaintiffs’ failure timely to apply for fees against the

United States did not relieve the Board of its liability for fees,

because the Board’s liability for fees under 42 U.S.C. § 1988

is not derivative of the United States’ liability for fees under

the entirely different standard of the Equal Access to Justice

Act.?8 Indeed, plaintiffs were under no obligation even to

28 The United States strenuously denied liability under EAJA, see

United States’ Memorandum of Law in Opposition to Plaintiffs’ Motion

for Attorneys’ Fees and Expenses, R.Doc. 51, and it is certainly possible

that, even if plaintiffs had filed their EAJA application on time, the

“substantially justified” standard of EAJA would have sheltered the

United States from liability. Nor was that the United States’ only ground

for denying liability for fees. See id.

: 28

seek fees from the United States under that less favorable

statute when they were entitled to a fully compensatory

award of fees against the District under § 1988.

5. Finally, the D.C. Circuit was correct in recognizing

that the strong congressional policy underlying the Civil

Rights Attorneys Fees Act focuses on fairness toward

successful civil rights plaintiffs, not fairness toward

unsuccessful government defendants. As then-Judge Breyer

explained in Coalition for Basic Human Needs v. King, 691

"F.2d 597 (Ist Cir. 1982):

We turn finally to appellees’ claim that

this court should in its “discretion” withhold

attorney’s fees, presumably because special

circumstances render the award “unjust.” They

base their claim on the fact that state law required

them—under threat of criminal penalties—to deny

the Coalition the [relief it sought]... .

If the appellees mean this fact to show that

they acted in good faith—that they felt obliged to

withhold the funds and obliged to contest the

Coalition’s suit—we agree that they may have had

good-faith reasons for their acts, but that is no

reason to deny the Coalition attorney’s fees. The

Civil Rights Attorney’s Fees Awards Act is not

meant as a “punishment” for “bad” defendants

who resist plaintiffs’ claims in bad faith. Rather, it

is meant to compensate civil rights attorneys who

bring civil rights cases and win them.

Id. at 602 (citations omitted).

Petitioner’s real complaint is not with the D.C. Circuit’s

unexceptional ruling that the technique of ~ of

\

%

29

damages cannot properly be used to deprive a successful civil

rights plaintiff of his statutory entitlement to a reasonable

attorneys’ fee. Petitioner’s real complaint is with 42 U.S.C.

§ 1983, which makes the District of Columbia legally

responsible for laws enacted by Congress without the

District’s consent, with the congressional determination to

provide attorneys’ fees to successful civil rights plaintiffs

regardless of the “fault” of the losing defendant, and with the

well-established doctrine that a government defendant who

enforces a challenged law is liable for fees to a successful

§ 1983 plaintiff evcn if the enforcer disliked the law. But the

validity of those statutes and doctrines is not before the

Court, for the petitioner has never sought to challenge them.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted.

ARTHUR B. SPITZER

Counsel of Record

AMERICAN CIVIL LIBERTIES UNION

OF THE NATIONAL CAPITAL AREA

1400 20th Street, N.W., Suite 119

Washington, D.C. 20036

(202) 457-0800

GRAHAM A. BOYD

ACLU DRUG LAW REFORM PROJECT

101 Cooper Street

Santa Cruz, CA 95060

(831) 471-9000

Attorneys for Respondents

August 2004