Buckhannon Board & Care Home v. West Virginia Dept. of Health and Human Resources (05/29/2001)

By: Mindy Jensen, Medill News Service

Questions presented

Can prevailing civil rights plaintiffs recover attorney's fees under the catalyst theory?

Brief

Dorsey Pierce was 102 years old when she was living in the Buckhannon Board and Care Home in West Virginia in 1996.

She had lived there for years when the West Virginia State Fire Marshal and the Department of Health and Human Resources threatened to make her and two others leave the home because they were unable to ""self-preserve"" in the event of a fire. Pierce could not move well enough to get herself out of the house in an emergency.

She did not need nursing care but ""tender loving care,"" according to the owners of the care home. If Pierce could not stay at the care home, her family feared she would have to move to a nursing home. They worried that a nursing home would cost more and that Pierce would not receive the same level of care she was getting at the care home.

Shirley Dean, the owner of the Buckhannon Board and Care Home, said she felt that the state was discriminating against the care home, Dean and other residents, so she filed a suit in the Northern District Court of West Virginia in October of 1996 saying the fire regulations violated the Americans with Disabilities Act and the Federal Housing Amendments Act.

Pierce never had to leave the home and died while the suit was pending. The district court ruled that, according to the ADA, a public entity may not administer a licensing program in a discriminatory manner. In addition, the West Virginia Legislature repealed the self-preservation provision of the law while the suit was pending.

The court, however, would not consider the Buckhannon Board and Care Homes request for attorneys fees under the ""catalyst theory,"" which provides for fees to the plaintiffs counsel when the suit directly leads the government to change a challenged law or policy.

The Buckhannon Board and Care Home's attorney, Webster J. Arceneaux, III, asked for slightly over $120,000 to pay expenses that included hiring fire safety experts and attorneys fees.

The district court observed that if the catalyst theory were available in the circuit, the plaintiffs ""might prevail,"" but they denied the motion.

The Buckhannon Board and Care Home appealed to the 4th Circuit Court of Appeals regarding the fees. In a brief per curiam opinion, the 4th Circuit held almost reluctantly that lawyer fees are available only when someone obtains ""an enforceable judgment or comparable relief through a consent decree or settlement.""

""As a three-judge panel of the court, however, we are bound by our precedent,"" the appeals court wrote.

According to Arceneauxs petition for certiorari to the U.S. Supreme Court, the 4th Circuit concluded that the catalyst theory is no longer available for civil rights plaintiffs to recover attorneys fees. However, ten of the other circuits continue to apply the catalyst theory in these kinds of cases, he argued, adding that there are approximately 100 federal laws that allow an award of attorneys fees to the prevailing party.

""This is the perfect case to resolve this. It will have an impact on attorneys fees cases all over,"" Arceneaux said.

Brenda Snyder, the current owner of Buckhannon Board and Care Home and the daughter of Dean, who originally filed the suit, said she needs the money in order for the business to survive. ""Were not in it for the money and we arent trying to pad our pockets,"" she said.

According to Snyder, if the state does not pay for her legal fees, it will have a devastating effect on her business and all small businesses. According to Arceneaux, the result could have a devastating effect on all civil rights cases.

""Who gets hurt? The little plaintiff who has the civil rights case and cant find a lawyer to handle the case. If the catalyst theory is thrown out, then some lawyers will be less likely to take the risk and represent civil rights plaintiffs,"" he said.

The U.S. Supreme Court granted certiorari Sept. 25, 2000.

On May 29, 2001, the Court held 5-4 along ideological lines that the catalyst theory cannot be used for the award of attorney's fees.

The majority distinguished the catalyst theory from cases in which there is either a judgment on the merits or a court-ordered consent decree.

A defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change, wrote Chief Justice William Rehnquist for the majority.

Justice Ruth Bader Ginsburg wrote the dissent on behalf of herself and Justices John Paul Stevens, David Souter, and Stephen Breyer.

The difference between the majority and the dissent turned on the meaning of the term ""prevailing party.""

""The Court states that the term prevailing party in fee-shifting statutes has an accepted meaning. If that is so, the accepted meaning is not the one the Court today announces,"" wrote Ginsburg in pointing out that the federal circuits ""have overwhelmingly agreed, when a litigated judgment, consent decree, out-of-court settlement, or the defendant's voluntary, postcomplaint payment or change in conduct in fact affords redress for the plaintiff's substantial grievances.""

In penning a concurrence, Justice Antonin Scalia responded that the Court's ""disagreeing with a clear majority of the Circuits is not at all a rare phenomenon. Indeed, our opinions sometimes contradict the unanimous and long-standing interpretation of lower federal courts...Deferring to our colleagues' own error is bad enough; but enshrining the error that we ourselves have improvidently suggested and blaming it on the near-unanimous judgment of our colleagues would surely be unworthy. Informing the Courts of Appeals that our ill-considered dicta have misled them displays, it seems to me, not disrespect, but a most becoming (and well-deserved) humility.""