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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 543 U.S. 817

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1764%3A2. Public record. Not legal advice.