June 2002. Smith No Title.

Vermont Bar Journal

2002.

June 2002.

Smith No Title

SPECIAL FOCUS: DISABILITY LAW

EROSION OF CIVIL RIGHTS ENFORCEMENT:

JUDICIAL CONSTRICTION OF THE CIVIL RIGHTS AND DISABILITY LAW BAR

O. Whitman Smith, Esq.

Less than two decades into the Rehnquist era of Supreme Court jurispru-dence, a discernable pattern has emerged with respect to the law governing awards of attorneys' fees in civil rights litigation in general and in the representation of individuals with disabilities in particular. Judicial constriction of the circumstances permitting such awards has been become the standard. Further constraints on the availability of such awards appear likely with the concomitant reduction in the civil rights bar, particularly within the private sector. Such restrictions substantially undermine the effective enforcement of civil rights legislation, including those statutes intended to ensure fair and equi-table treatment of individuals with disabil-ities.

The Buckhannon Decision and

Its Ramifications

The most recent and pronounced exam-ple of the restricted availability of such awards of fees and expenses is found in Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources.1 In this 5-4 decision, the Supreme Court held that a defendant whose "voluntary" change in behavior after the initiation of litigation provides all the relief sought by civil rights plaintiffs is not obligated under various fee-shifting statutes for plaintiffs' costs and expenses, including an award of reasonable attor-ney's fees.2 In so ruling, the Court reject-ed the "catalyst theory" of recovery adopt-ed by all courts of appeals, including the Second Circuit, except one.3 Under that principle, a civil rights plaintiff was deemed to be the prevailing party and hence entitled to an award of fees upon a demonstration that the litigation in ques-tion had served as the catalyst for the changed behavior on the part of defen-dants.4

In Buckhannon, the plaintiffs consisted of an assisted-living facility and a number of elderly residents who challenged a state law requiring that such individuals have the capacity in case of a fire to exit the facility without assistance. They initiated litigation contending that the enactment violated the Americans with Disabilities Act ["the ADA"] and the Fair Housing Act. When the West Virginia legislature subsequently repealed the challenged pro-visions thus mooting the litigation, plain-tiffs sought an award of fees and expenses under those statutes.

Both the District Court and the Court of Appeals rejected plaintiffs' catalyst theo-ry-based claims. The Supreme Court granted certiorari to determine whether the term "prevailing party"5 - a necessary pre-requisite to an award of fees - encom-passed "a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant's conduct."6

Chief Justice Rehnquist authored the majority opinion. In affirming the denial of attorney's fees, he concluded that plain-tiffs were not prevailing parties because they had not obtained a court-ordered judgment or consent decree which are required to create a "material alteration of the legal relationship of the parties."7 In reaching this conclusion, the majority opinion summarily dismissed plaintiffs' contention that the catalyst theory was "necessary to prevent defendants from unilaterally mooting an action before judgment in an effort to avoid an award of attorney's fees."8 Chief Justice Rehnquist found no empirical support for this asser-tion. In further minimizing this contention, the majority opinion noted that the plain-tiffs' "fear of mischievous defendants only materializes in claims for equitable relief . . . ."9

Despite the majority's assertions, the

O. Whitman Smith, Esq.

practical impact of the Buckhannon deci-sion on the civil rights bar is readily evi-dent. At any point in litigation, even at the time of trial, defendants arguably now have the ability to moot out plaintiffs' claims by simply volunteering to provide the relief requested. In so doing, they can escape responsibility for an award of fees and costs.10 As a result, Buckhannon's holding can be expected to markedly reduce counsels' inclination to undertake representation of civil rights plaintiffs seeking equitable relief on a contingency fee basis, thus undermining civil rights enforcement through the efforts of the pri-vate bar. As Justice Ginsburg's dissenting opinion in Buckhannon noted, the majori-ty's decision would "impede access to court for the less well-heeled, and shrink the incentive Congress created for the enforcement of federal law by private attorneys general."11 For individuals with disabilities who already confront a multi-tude of barriers with respect to access to services and programs, this most recent obstacle to obtaining legal representation constitutes a major undercutting of the substantive rights secured by recent enact-ments such as the ADA.

Buckhannon stands as fundamentally inconsistent with the Congressional prem-ise that private enforcement actions are an essential component of the vindication of individuals' civil rights. Both in 42 U.S.C. 1988...