Textual imagination.

• Author: Fan, Mary D.
• Position: Judicial interpretation of ambiguous statutory texts

Brickwood Contractors, Inc. v. United States, 49 Fed. Cl. 738 (2001).

Textualism's revival illuminated the judicial imagination at play behind the search for congressional intent through legislative history. (1) Brickwood Contractors, Inc. v. United States (2) shows that textualism substitutes structural interpretation of statutory text to veil even wider-ranging judicial imagination when gap-filling of statutory ambiguities is necessary.

Textual imagination will be increasingly prevalent as the Supreme Court's shift to textualism (3) outstrips in speed and scope its enunciation of sufficiently comprehensive and coherent canons of statutory construction to fill gaps in statutory text. The difficulty is demonstrated by the relationship between Brickwood and the Supreme Court's opinion that gave rise to it, Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources. (4) This Case Note suggests that judicial imagination is better constrained by a cross-hatch of textual and historical sources of textual meaning and congressional intent, rather than a dialectical shift to only textual sources. Rules on permissible aids should consider reliability, accessibility, and the democratic character of the sources. This will give Congress incentive to refine rules on creation of these sources to incorporate these goals, while creating guides for the courts to prevent judicial imagination so wide-ranging as to constitute judicial legislation.

I

An excursion into Buckhannon is necessary to understand Brickwood's context. Buckhannon is a recent example of the Supreme Court's mounting disregard for legislative history and its concomitant attempt to erect replacement canons of statutory construction to guide textual interpretation. The opinion privileged a canon of statutory construction over the legislative record of congressional intent. Of more imminent and practical impact, Buckhannon invalidated the catalyst theory of awarding plaintiff's fees to "prevailing parties" under statutes authorizing private attorneys general to bring suit, overturning the rule of every circuit except the Fourth and Federal Circuits. (5) The theory prevents a defendant from avoiding an award of attorney's fees through tactics like mooting a promising suit, by positing that a litigant may still "prevail" by obtaining relief without judgment. The Court held that the theory did not apply to suits under the Americans with Disabilities Act (ADA) and the Fair Housing Amendments Act (FHAA). (6) The Court's dicta might be interpreted as rendering the catalyst theory inapplicable to suits under 42 U.S.C. [section] 1988 and other major civil rights statutes. (7)

Like many situations where the catalyst theory is invoked, the Buckhannon facts involved a defense of civil rights. In 1996, West Virginia state law required that all residents of residential board and care homes be capable of "self-preservation" in emergencies, such as fleeing a fire. (8) State officials ordered Buckhannon Board and Care Home to close because it housed three elderly residents not capable of self-preservation. (9) The care home sued, arguing that the law violated the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990. The suit survived summary judgment, but was dismissed as moot when, later that year, the state legislature enacted two bills eliminating the self-preservation requirement. (10) The care home requested attorney's fees as the "prevailing party" according to the catalyst theory. (11) The Fourth Circuit denied the motion under its holding in S-1 & S-2 v. State Board of Education, (12) where it broke ranks with its sister circuits to hold the catalyst theory invalid. (13) The Supreme Court granted certiorari to resolve the circuit split. (14)

The Court's 5-4 decision ultimately hinged on the meaning of "prevailing party." Webster's Third New International Dictionary offered a broader definition that could embrace the catalyst theory, while Black's Law Dictionary offered a narrower definition. (15) Chief Justice Rehnquist, writing for the majority, used two textualist tools to render ambiguous text "plain" in meaning. He first applied the canon that legal terms of art susceptible to multiple meanings will be defined by their legal meaning. (16) Thus, the majority followed Black's Law Dictionary's definition of "prevailing party" as one that wins judgment. (17) He also harmonized the provision at issue with the wider body of law (18) by knitting together prior decisions (19) governing the threshold "judgment" necessary, holding that "enforceable judgments on the merits and court-ordered consent decrees create the `material alteration of the legal relationship of the parties' necessary to permit an award of attorney's fees." (20)

The majority discounted clear statements in committee reports contradicting its outcome. Chief Justice Rehnquist prefaced his review of the committee reports with a dismissal, stating, "We doubt that legislative history could overcome what we think is the rather clear meaning of `prevailing party'--the term actually used in the statute. Since we resorted to such history in [past cases], however, we do likewise here." (21) The Senate Report for 42 U.S.C. [section] 1988, on which the ADA and FHAA provisions were modeled, stated that "parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief." (22) Similarly, the House Report stated that "the phrase `prevailing party' is not intended to be limited to the victor only after...