No. 99-1848 

In the Supreme Court of the United States 

BUCKHANNON BOARD AND CARE HOME, 
INC., ET AL., PETITIONERS 

v. 

WEST VIRGINIA DEPARTMENT OF 

HEALTH AND HUMAN RESOURCES, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

BRIEF FOR THE UNITED STATES AS 
AMICUS CURIAE SUPPORTING PETITIONERS 

SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

BILL LANN LEE 

Assistant Attorney General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

JEFFREY P. MINEAR 

Assistant to the Solicitor 

General 

JESSICA DUNSAY SILVER 
KEVIN K. RUSSELL 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514-2217 

QUESTION PRESENTED 

Whether a plaintiff may recover attorney’s fees under 
federal statutes making attorney’s fees available to a 
prevailing party, when, as a result of the plaintiff’s suit, the 
defendant voluntarily provides the plaintiff with requested 
relief. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
5 

Argument: 

A plaintiff may recover attorney’s fees under 

the prevailing party standard if, as a result of 

the plaintiff ’s suit, the defendant voluntarily 

provides the plaintiff with requested relief ...................... 

8 

A. This Court’s decisions prior to Farrar v. 

Hobby manifested the understanding that a 

plaintiff may recover fees if the defendant 

has voluntarily provided requested relief .................. 

9 

B. This Court’s decision in Farrar v. Hobby 

does not repudiate the principle that a 

plaintiff may recover fees if the defendant 

voluntarily provides requested relief ......................... 

16 

C. The court of appeals’ ruling is inconsistent 

with the language, legislative history, and pur- 
poses of federal legislation authorizing awards 

of attorney’s fees to prevailing parties ....................... 

20 

D. This Court should remand the case for a deter- 
mination of whether, under the facts of this 

case, an award of fees is appropriate .......................... 

26 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

Alden v. Maine, 527 U.S. 706 (1999) .................................. 

25 

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 

421 U.S. 240 (1975) ................................................................ 

2, 9 

American Constitutional Party v. Munro, 650 

F.2d 184 (9th Cir. 1981) ........................................................ 12 

(III) 

IV 

Cases—Continued: Page 

Barnett v. W.T. Grant Co., 518 F.2d 543 (4th 

Cir. 1975) ................................................................................. 

22 

Baumgartner v. Harrisburg Housing Auth., 

21 F.3d 541 (3d Cir. 1994) ..................................................... 

16, 28 

Beard v. Teska, 31 F.3d 942 (10th Cir. 1994) .................... 

16 

Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979) ................. 

4, 12 

Brecht v. Abrahamson, 507 U.S. 619 (1993) ..................... 

19 

Brown v. Gaston County Dyeing Mach. Co., 457 

F.2d 1377 (4th Cir.), cert. denied, 409 U.S. 982 

(1972) ........................................................................................ 22 

City of Riverside v. Rivera, 477 U.S. 561 (1986) .............. 

24, 25 

Craig v. Gregg County, 988 F.2d 18 (5th Cir. 1993) ........ 

16 

DeMier v. Gondles, 676 F.2d 92 (4th Cir. 1982) ............... 

15 

Doe v. Busbee, 684 F.2d 1375 (11th Cir. 1982) .................. 

12 

Evans v. Sheraton Park Hotel, 503 F.2d 177 

(D.C. Cir. 1974) ....................................................................... 

22 

Exeter-West Greenwich Regional Sch. Dist. v. 

Pontarelli, 788 F.2d 47 (1st Cir. 1986) .............................. 

12 

Farrar v. Hobby, 506 U.S. 103 (1992) ............................. 

passim 

Foreman v. Dallas County, 193 F.3d 314 (5th 

Cir. 1999), cert. denied, 120 S. Ct. 1673 (2000) .................. 

16 

Foremaster v. City of St. George, 882 F.2d 1485 

(10th Cir. 1989), cert. denied, 495 U.S. 910 (1990) ........... 

28 

Friends of the Earth, Inc. v. Laidlaw Envtl. 

Servs. (TOC), Inc., 120 S. Ct. 693 (2000) .......................... 

18, 20 

Gerena-Valentin v. Koch, 739 F.2d 755 (2d Cir. 

1984) ......................................................................................... 12 

Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986) ............... 

12 

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay 

Found., Inc., 484 U.S. 49 (1987) .............................. 

5, 14, 15, 19 

Hanrahan v. Hampton, 446 U.S. 754 (1980) ..................... 

10, 11 

Hendricks v. Bowen, 847 F.2d 1255 (7th Cir. 

1988) ......................................................................................... 29 

V 

Cases—Continued: Page 

Hennigan v. Ouachita Parish Sch. Bd., 749 F.2d 

1148 (5th Cir. 1985) ................................................................ 

12, 27 

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

9, 10, 17, 21, 23 

Hewitt v. Helms, 482 U.S. 755 (1987) .............................. 

passim 

Hishon v. King & Spalding, 467 U.S. 69 (1984) ............... 

27 

Institutionalized Juveniles v. Secretary of Pub. 

Welfare, 758 F.2d 897 (3d Cir. 1985) .................................. 

12 

J & J Anderson, Inc. v. Town of Erie, 767 F.2d 

1469 (10th Cir. 1985) .............................................................. 

12 

Kahan v. Rosenstiel, 424 F.2d 161 (3d Cir.), cert. 

denied, 398 U.S. 950 (1970) .................................................. 

23 

Kay v. Ehrler, 499 U.S. 432 (1991) ..................................... 

23 

Kilgour v. City of Pasadena, 53 F.3d 1007 (9th 

Cir. 1995) ................................................................................. 

16 

Kimel v. Florida Bd. of Regents, 528 U.S. 62 

(2000) ........................................................................................ 25 

Kopet v. Esquire Realty Co., 523 F.2d 1005 (2d 

Cir. 1975) ................................................................................. 

22 

Little Rock Sch. Dist. v. Pulaski County Special 

Sch. Dist. 1, 17 F.3d 260 (8th Cir. 1994) ............................ 

16, 27 

Long v. Bonnes, cert. denied, 455 U.S. 961 (1982) ........... 

8, 27 

Maher v. Gagne, 448 U.S. 122 (1980) .................................. 

11 

Marbley v. Bane, 57 F.3d 224 (2d Cir. 1995)......................... 

16, 29 

Milton v. Shalala, 17 F.3d 812 (5th Cir. 1994) ................. 

29 

Morris v. City of West Palm Beach, 194 F.3d 

1203 (11th Cir. 1999) .............................................................. 

16 

Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978) .......... 

10, 27 

New Hampshire v. Adams, 159 F.3d 680 (1st Cir. 

1998) ......................................................................................... 16 

Newman v. Piggie Park Enters., Inc., 390 U.S. 

400 (1968) ................................................................................. 

23 

Parham v. Southwestern Bell Tel. Co., 433 F.2d 

421 (8th Cir. 1970) .................................................................. 

22 

Paris v. United States Dep’t of Hous. and Urban Dev., 

988 F.2d 236 (1st Cir. 1993) .................................................. 29 

VI 

Cases—Continued: Page 

Payne v. Board of Educ., Cleveland City Schs., 

88 F.3d 392 (6th Cir. 1996) ................................................... 

16 

Peltier v. City of Fargo, 533 F.2d 374 (8th Cir. 

1976) ......................................................................................... 22 

Pembroke v. Wood County, 981 F.2d 225 (5th 

Cir.), cert. denied, 508 U.S. 973 (1993) ............................... 

27 

Ramey v. Cincinnati Enquirer, Inc., 508 F.2d 1188 

(6th Cir, 1974), cert. denied, 422 U.S. 1048 (1975) ........... 

22-23 

Rhodes v. Stewart, 488 U.S. 1 (1988) .......................... 

13, 14, 28 

Rice v. Gates Rubber Co., 521 F.2d 782 (6th Cir. 

1975) ......................................................................................... 22 

Richards v. Griffith Rubber Mills, 300 F. Supp. 

338 (D. Or. 1969) ..................................................................... 

22 

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) ............ 

14 

S-1 and S-2 v. State Bd. of Educ., 21 F.3d 49 

(4th Cir.), cert. denied, 513 U.S. 876 (1994) ... 

4, 5, 8, 16, 18, 21 

S-1 by and through P-1 v. State Bd. of Educ., 

6 F.3d 160 (4th Cir. 1993), rev’d, 21 F.3d 49, cert. 

denied, 513 U.S. 876 (1994) .................................................. 

15, 18 

Sosna v. Iowa, 419 U.S. 393 (1975) ..................................... 

26 

Spencer v. General Elec. Co., 894 F.2d 651 (4th Cir. 

1990) ......................................................................................... 15 

Stewart v. Hannon, 675 F.2d 846 (7th Cir. 1982) ............. 

12 

Stewart v. McGinnis, 5 F.3d 1031 (7th Cir. 1993), cert. 

denied, 510 U.S. 1121 (1994) ................................................ 

27 

Texas Teachers Ass’n v. Garland Sch. Dist., 489 

U.S. 782 (1989) ..................................................... 

9, 13, 14, 20, 21 

Thomas v. Honeybrook Mines, Inc., 428 F.2d 981 

(3d Cir. 1970), cert. denied, 401 U.S. 911 (1971) ............... 

22 

Truax v. Bowen, 842 F.2d 995 (8th Cir. 1988) .................. 

29 

United States v. Concentrated Phosphate Export 

Ass’n, 393 U.S. 199 (1968) ................................................... 

20 

United States v. L.A. Tucker Truck Lines, Inc., 

344 U.S. 33 (1952) ................................................................... 

19 

University of Tex. v. Camenisch, 451 U.S. 390 

(1981) ........................................................................................ 26 

VII 

Cases—Continued: Page 

Webster v. Fall, 266 U.S. 507 (1925) .................................... 

19 

Wheeler v. Towanda Area Sch. Dist., 950 F.2d 128 

(3d Cir. 1991) .......................................................................... 

28 

Williams v. Miller, 620 F.2d 199 (8th Cir. 1980) ............. 

12 

Wooldridge v. Marlene Indus. Corp., 898 F.2d 

1169 (6th Cir. 1990) ................................................................ 

15 

Young, Ex parte, 209 U.S. 123 (1908) .................................... 

25 

Zinn v. Shalala, 35 F.3d 273 (7th Cir. 1994) ..................... 

16, 27 

Statutes and rules: 

Americans with Disabilities Act of 1990, 42 U.S.C. 

12101 et seq. ............................................................................. 

1 

42 U.S.C. 12117(a) ............................................................. 

1 

42 U.S.C. 12132 .................................................................. 

3 

42 U.S.C. 12188 .................................................................. 

1 

42 U.S.C. 12188(a) ............................................................. 

25 

42 U.S.C. 12205 ................................................................... 4, 9, 21 

Civil Rights Act of 1964, 42 U.S.C. 2000a et seq.: 

Tit II, 42 U.S.C. 2000a-3(b) ............................................. 

2, 25 

Tit. VII, 42 U.S.C. 2000e-5(k) ......................................... 

2 

Civil Rights Attorney’s Fees Awards Act of 1976, 

42 U.S.C. 1988 ..................................................... 
9, 10, 17, 21-22 

42 U.S.C. 1988(b) (1994 & Supp. IV 1998) .............. 
1-2, 4, 9 

Clean Water Act, 33 U.S.C. 1251 et seq.: 
33 U.S.C. 1365 ........................................................................ 
14 

33 U.S.C. 1365(d) (1982) ....................................................... 
14 

Equal Access to Justice Act, 28 U.S.C. 2412 
(1994 & Supp. IV 1998) ......................................................... 
2 

28 U.S.C. 2412(b) ............................................................... 
9 

28 U.S.C. 2412(d) ............................................................... 
9 

Fair Housing Amendments Act of 1988, 42 U.S.C. 
3601 et seq. ............................................................................... 
1 

42 U.S.C. 3604(f) ................................................................ 
3 

42 U.S.C. 3613(c) ............................................................... 
21 

42 U.S.C. 3613(c)(2) ........................................................... 
1, 3, 9 

42 U.S.C. 3614(d)(2) .......................................................... 1 

VIII 

Statutes and rules: 

Page 

Voting Rights Act of 1965, 42 U.S.C. 1973 
et seq.: 
42 U.S.C. 1973l (e) ............................................................. 
2 

42 U.S.C. 1983 (1994 & Supp. IV 1998) ......................... 
4 

W. Va. Code §§ 16-5C-1 et seq. (1966) ................................... 
3 

Fed R. Civ. P. 12(b) .................................................................. 
27 

W. Va. Code St. R. (1996): 

Tit. 64, §§ 65-1 et seq. ........................................................ 

3 

Tit. 87, § 1-14.7 ................................................................... 
3 

Miscellaneous: 

H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976) ........... 

2, 9, 10, 

22, 25 

H.R. Rep. No. 711, 100th Cong., 2d Sess. (1988) ................. 
9 
H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 2 
(1990) ........................................................................................ 9 

Model Rules of Professional Conduct, reprinted in 

ABA/BNA Lawyers’ Manual on Professional Conduct 
(2000) ........................................................................................ 24 

Note, Civil Rights Attorney’s Fees Awards in Moot 

Cases, 49 U. Chi. L. Rev. 819 (1982) .................................. 
28 

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976) ... 
10, 11, 22, 23, 25 

Webster’s Third New International Dictionary (1976) ..... 21 

In the Supreme Court of the United States 

No. 99-1848 

BUCKHANNON BOARD AND CARE HOME, 
INC., ET AL., PETITIONERS 

v. 

WEST VIRGINIA DEPARTMENT OF 

HEALTH AND HUMAN RESOURCES, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

BRIEF FOR THE UNITED STATES AS 
AMICUS CURIAE SUPPORTING PETITIONERS 

INTEREST OF THE UNITED STATES 

Congress has authorized both the United States and pri- 
vate parties to enforce various anti-discrimination laws, 
including the Fair Housing Amendments Act of 1988, 42 
U.S.C. 3601 et seq. (FHAA), and the Americans with Dis- 
abilities Act of 1990, 42 U.S.C. 12101 et seq. (ADA). As an 
incentive to private enforcement efforts, Congress has 
authorized the award of attorney’s fees to private plaintiffs 
who prevail under those and other civil rights laws. See 42 
U.S.C. 3613(c)(2), 3614(d)(2) (FHAA); 42 U.S.C. 12117(a), 
12188 (ADA); see also, e.g., Civil Rights Attorney’s Fees 
Awards Act of 1976, 42 U.S.C. 1988(b) (1994 & Supp. IV 

(1) 

2 

1998); Voting Rights Act of 1965, 42 U.S.C. 1973l(e); Title II 
of the Civil Rights Act of 1964, 42 U.S.C. 2000a–3(b); Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(k). 
Because meritorious private enforcement actions provide an 
important complement to government civil rights enforce- 
ment efforts, see, e.g., H.R. Rep. No. 1558, 94th Cong., 2d 
Sess. 1 (1976), the United States has a significant interest in 
the construction of the attorney’s fees provisions in a manner 
that fully effectuates that purpose. At the same time, 
because the United States itself is subject to claims for 
attorney’s fees by private plaintiffs who prevail under other 
federal statutes, see, e.g., Equal Access to Justice Act, 28 
U.S.C. 2412 (1994 & Supp. IV 1998), the United States has 
an interest in ensuring that statutes providing for attorney’s 
fees are not construed more broadly than Congress intended 
and that fees are awarded only where Congress has 
deliberately departed from the traditional “American” rule 
that each party bears its own litigation expenses. See 
Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 
(1975). Although this case directly concerns the availability 
of attorney’s fees only under the FHAA and the ADA, it will 
likely provide guidance on the availability of fees under a 
wide variety of federal fee-shifting statutes. See Hensley v. 
Eckerhart, 461 U.S. 424, 433 n.7 (1983). 

STATEMENT 

Petitioners are the operators of residential board and care 
homes (RBCHs) in West Virginia. Pet. App. A7. RBCHs 
provide a group home environment—and an alternative to 
institutionalization—for persons who need assisted living 
but do not need specialized care, such as nursing services. 
Ibid. In 1996, state officials ordered petitioner Buckhannon 
Board and Care Home to close its RBCHs because those 
officials determined that some residents, such as 102-year- 
old Dorsey Pierce, could not satisfy the state fire safety 

3 

code’s “self-preservation” requirement for RBCH residents. 
Ibid. That provision required that, in the event of a fire, all 
residents of a RBCH must be able to evacuate the building 
without prompting or assistance. Ibid. See W. Va. Code 
§§ 16-5C-1 et seq. (1996); W. Va. St. R. tit. 64, §§ 65-1 et seq. 
(1996); id. tit. 87, § 1-14.7 (1996). 

Petitioners filed this action, which challenged both the 
self-preservation requirement and the specific order to 
remove residents from the RBCHs. They contended that 
the “self-preservation” provision was not required for fire 
safety in a group home that afforded other means of safe 
evacuation and that the rule conflicted with provisions of the 
FHAA and the ADA that prohibit discrimination against 
persons with disabilities. See 42 U.S.C. 3604(f) (FHAA); 42 
U.S.C. 12132 (ADA). Pet. App. A7. On March 14, 1998, 
while the litigation was pending, the West Virginia 
legislature repealed the self-preservation requirement. Id. 
at A7, A11. On respondents’ motion, the district court dis- 
missed the case as moot. Id. at A7, A11, A16-A17. 

Petitioners moved for attorney’s fees under the fee pro- 
visions of the FHAA and the ADA. Pet. App. A7. The 
FHAA provides, in relevant part: 

In a civil action under subsection (a) of this section, the 
court, in its discretion, may allow the prevailing party, 
other than the United States, a reasonable attorney’s fee. 

42 U.S.C. 3613(c)(2). Similarly, the ADA provides in rele- 
vant part: 

In any action or administrative proceeding commenced 
pursuant to this chapter, the court or agency, in its dis- 
cretion, may allow the prevailing party, other than the 
United States, a reasonable attorney’s fee. 

4 

42 U.S.C. 12205. Petitioners argued that, even though their 
case was dismissed, they nonetheless were prevailing par- 
ties, within the meaning of those statutes, because their 
lawsuit prompted the change in policy that mooted the case. 
Pet. App. A7-A8. 

The district court denied the motion. Pet. App. A17-A19. 
The court stated that petitioners “might prevail on this 
theory” if it were available. Id. at A17. The court concluded, 
however, that the court of appeals’ decision in S-1 and S-2 v. 
State Board of Education, 21 F.3d 49, 51 (4th Cir.) (en banc), 
cert. denied, 513 U.S. 876 (1994), prohibited the award of 
attorney’s fees under the circumstances presented here 
because the plaintiffs did not qualify as “prevailing parties” 
within the meaning of federal fee shifting statutes, which are 
construed in pari materia. See Pet. App. A17-A18.1 The en 
banc court of appeals had ruled in S-1 and S-2 that: 

1. A person may not be a “prevailing party” plaintiff 
under 42 U.S.C. § 1988 except by virtue of having ob- 
tained an enforceable judgment, consent decree, or 
settlement giving some of the legal relief sought in a 
§ 1983 action. Farrar v. Hobby, [506] U.S. [103] (1992). 

1 The S-1 and S-2 litigation had involved a private suit under 42 
U.S.C. 1983 (1994 & Supp. IV 1998), against state and city officials, 
seeking tuition reimbursement for handicapped students. The private 
plaintiffs obtained summary judgment and, while the case was on appeal, 
they reached a settlement with the city officials. The court of appeals 
concluded that the settlement mooted the case against the state officials, 
and the state legislature later enacted changes benefitting the private 
plaintiffs. The private plaintiffs then sought attorney’s fees from the state 
defendants under 42 U.S.C. 1988(b) (1994 & Supp. IV 1998), which allows a 
“prevailing party” to recover its fees. The district court granted the fee 
request, and a court of appeals panel affirmed, relying on its prior decision 
in Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979). The en banc court of 
appeals reversed the fee award and overruled Bonnes, citing Farrar v. 
Hobby, 506 U.S. 103 (1992). See S-1 and S-2, 21 F.3d at 50-51. 

5 

2. The fact that a lawsuit may operate as a catalyst 
for post-litigation changes in a defendant’s conduct can- 
not suffice to establish plaintiff as a prevailing party. 
“Catalyst theory,” allowing that result, is no longer 
available for that purpose, see Farrar, [506] U.S. at 
[113], and cases such as Bonnes v. Long, 599 F.2d 1316 
(4th Cir. 1979), which applied that theory, are overruled. 

3. Here, the dismissal on appeal of an action under 
42 U.S.C. § 1983 for prudential reasons as moot operates 
to vacate the judgment below, see United States v . 
Munsingwear, Inc., 340 U.S. 36 (1950), and prevents the 
plaintiffs from being found prevailing parties by virtue 
of post-dismissal events. The plaintiffs therefore are not 
entitled to an award of attorney fees under 42 U.S.C. § 
1988. 

21 F.3d at 51 (parallel citations omitted). The district court 
concluded that the S-1 and S-2 decision controlled the out- 
come of this case. Pet. App. A17-A18. 

Petitioners appealed, and the court of appeals affirmed the 
district court’s decision. Pet. App. A4-A8. The three-judge 
panel concluded that it was bound by the S-1 and S-2 
decision, id. at A7, and that, “[b]ecause the plaintiffs did not 
bring about the change in West Virginia law through any 
judgment, decree, or settlement, * * * the district court 
properly applied S-1 and S-2 to this case,” id. at A8. The 
court of appeals denied petitioners’ request for rehearing en 
banc. Id. at A1-A3. 

SUMMARY OF ARGUMENT 

The court of appeals has erroneously concluded that a 
plaintiff cannot qualify as a “prevailing party,” for purposes 
of awarding attorney’s fees under federal civil rights legis- 
lation, unless the plaintiff obtains redress through a judicial 
judgment, consent decree, or out-of-court settlement. 

6 

Contrary to the views of every other court of appeals, that 
court has specifically rejected the possibility that a plaintiff 
may be entitled to an award of attorney’s fees when the 
plaintiff obtains the relief it seeks through the defendant’s 
voluntary, post-complaint compliance. The court of appeals 
reached that mistaken conclusion through a misunder- 
standing of this Court’s decision in Farrar v. Hobby, 506 
U.S. 103 (1992). 

Prior to Farrar, this Court had expressed the under- 
standing that a plaintiff “prevails,” and is accordingly eligible 
for an award of attorney’s fees, if the plaintiff succeeds 
through an enforceable judgment, a consent decree, an out- 
of-court settlement, or the defendant’s voluntary, post- 
complaint change in conduct that redresses the plaintiff’s 
grievances. See Hewitt v. Helms, 482 U.S. 755, 760-761 
(1987). The courts of appeals, including the Fourth Circuit, 
had uniformly expressed that understanding as well. Indeed, 
the Court described that principle as “settled law.” Ibid.; see 
also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 
Inc., 484 U.S. 49, 67 n.6 (1987). 

The Court’s decision in Farrar did not manifest any inten- 
tion to change that principle. Indeed, Farrar did not ad- 
dress, explicitly or implicitly, the question whether a 
plaintiff may qualify as a “prevailing party” if the plaintiff 
obtains the relief it seeks through the defendant’s post- 
complaint compliance. Farrar held that a plaintiff that liti- 
gates to judgment, but receives only nominal damages, quali- 
fies as a “prevailing party” because the plaintiff receives 
actual relief that materially alters the relationship between 
the parties in a way that benefits the plaintiff. 506 U.S. at 
111-112. If anything, Farrar’s rationale supports, rather 
than repudiates, the Court’s prior endorsement of the prin- 
ciple at issue here. Like a plaintiff that receives nominal 
damages, a plaintiff that achieves the aim of its suit through 
the defendant’s voluntary compliance receives actual relief 

7 

that resolves the legal dispute in a way that benefits the 
plaintiff. 

The court of appeals’ contrary ruling is inconsistent with 
the accepted meaning of a “prevailing party,” is contrary to 
the unambiguous legislative history of relevant federal legis- 
lation, and would produce results that are irrational and con- 
trary to the purposes of federal fee-shifting statutes. A 
plaintiff whose lawsuit induces voluntary compliance has no 
less need for or entitlement to an attorney’s fee award than a 
plaintiff who achieves the same objective by litigating to 
judgment or reaching a settlement. Denying a fee award 
when the plaintiff obtains voluntary compliance would pro- 
duce powerful disincentives for victims of discrimination to 
bring meritorious suits and would encourage attorneys to 
engage in gamesmanship that is far removed from the merits 
of the underlying dispute. 

This Court should accordingly reject the court of appeals’ 
categorical rule, reverse the judgment, and remand the case 
for a determination of whether petitioners qualify as “pre- 
vailing parties” under the specific facts of this case. The 
district court’s determination should be guided by three 
central considerations: (1) whether petitioners’ complaint 
had legal merit; (2) whether petitioners received actual relief 
that redressed their grievances; and (3) whether petitioners’ 
lawsuit played a substantial role in inducing respondents to 
change their ways. 

8 

ARGUMENT 

A PLAINTIFF MAY RECOVER ATTORNEY’S FEES 
UNDER THE PREVAILING PARTY STANDARD IF, AS A 
RESULT OF THE PLAINTIFF’S SUIT, THE DEFEN- 
DANT VOLUNTARILY PROVIDES THE PLAINTIFF 
WITH REQUESTED RELIEF 

The Fourth Circuit, alone among the courts of appeals, has 
ruled that a person does not qualify as a “prevailing party,” 
for purposes of federal attorney’s fee statutes, “except by 
virtue of having obtained an enforceable judgment, consent 
decree, or settlement giving some of the legal relief sought.” 
S-1 and S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir. 
1994) (en banc). That court erroneously concluded that this 
Court’s decision in Farrar v. Hobby, 506 U.S. 103 (1992), 
required that result. This Court’s pre-Farrar decisions had 
accepted the proposition that a plaintiff may receive an 
award of attorney’s fees if, as a result of the plaintiff’s suit, 
the defendant voluntarily provided the requested relief. The 
Court’s decision in Farrar did not call that practice into 
question. To the contrary, the practice is consistent with the 
language, legislative history, and purposes of fee-shifting 
statutes. This Court should accordingly reverse the judg- 
ment of the court of appeals and remand the case for 
determination of whether, under the facts of this case, an 
award of fees is warranted.2 

2 Courts and litigants frequently describe a court’s award of attorney’s 
fees in the absence of a formal judgment as resting on the “catalyst 
theory.” See, e.g., Pet. App. A7, A17. Because that shorthand phrase 
embraces several different approaches to the question presented here, 
see, e.g., Long v. Bonnes, cert. denied, 455 U.S. 961 (1982) (Rehnquist, J., 
dissenting from denial of certiorari), we do not employ that terminology. 

9 

A. This Court’s Decisions Prior To Farrar v. Hobby 

Manifested The Understanding That A Plaintiff May 

Recover Fees If The Defendant Has Voluntarily Pro- 
vided Requested Relief 

Under traditional practice in American courts, a party 
that seeks relief through the judicial process must pay its 
own attorney’s fees. See Alyeska Pipeline Serv. Co. v. 
Wilderness Society, 421 U.S. 240 (1975). Congress, however, 
has modified that rule by statute in a number of important 
contexts. See, e.g., Equal Access to Justice Act, 28 U.S.C. 
2412(b) and (d); Civil Rights Attorney’s Fees Awards Act 
of 1976, 42 U.S.C. 1988(b) (1994 & Supp. IV 1998). For 
example, many federal anti-discrimination laws, including 
the FHAA and the ADA, provide that a “prevailing party,” 
other than the United States, may recover a “reasonable 
attorney’s fee.” See 42 U.S.C. 3613(c)(2) (FHAA); 42 U.S.C. 
12205 (ADA). Congress has enacted those fee-shifting pro- 
visions “to ensure ‘effective access to the judicial process’ for 
persons with civil rights grievances.” Hensley v. Eckerhart, 
461 U.S. 424, 429 (1983) (quoting H.R. Rep. No. 1558, 94th 
Cong., 2d Sess. 1 (1976) (supporting passage of 42 U.S.C. 
1988)).3 

This Court stated in Hensley—and explicitly reiterated in 
Texas Teachers Ass’n v. Garland School District, 489 U.S. 
782, 791-792 (1989)—that “plaintiffs may be considered ‘pre- 
vailing parties’ for attorney’s fees purposes if they succeed 
on any significant issue in litigation which achieves some of 

3 In accordance with Congress’s intent, this Court has given the term 
“prevailing party” a consistent interpretation for all of the attorney’s fees 
statutes in which that term appears. See Hensley, 461 U.S. at 433 n.7; 
H.R. Rep. No. 485, 101st Cong., 2d Sess. Pt. 2, at 140 (ADA) (“It is in- 
tended that the term ‘prevailing party’ be interpreted consistently with 
other civil rights laws.”); H.R. Rep. No. 711, 100th Cong., 2d Sess. 16 & 

n.20 (1988) (fee provision of FHAA modeled on 42 U.S.C. 1988). 

10 

the benefit the parties sought in bringing suit.” Hensley, 461 
U.S. at 433 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278- 
279 ((1st Cir. 1978)). The Court has since recognized, based 
in part on the legislative reports that accompanied 42 U.S.C. 
1988, that a plaintiff may qualify as a prevailing party even 
though the plaintiff has not litigated the issue to judgment. 
See S. Rep. No. 1011, 94th Cong., 2d Sess. 5 (1976) (“parties 
may be considered to have prevailed when they vindicate 
rights through a consent judgment or without formally 
obtaining relief ”); H.R. Rep. No. 1558, supra, at 6-7 (accord). 
The Court’s decisions indicate, in accordance with those 
reports, that a plaintiff may “succeed on [a] significant issue 
in litigation” through: (1) a consent decree; (2) an out-of- 
court settlement agreement; or (3) the defendant’s voluntary 
cessation of the challenged practice. See id. at 7.4 

The Court’s decision in Hanrahan v. Hampton, 446 U.S. 
754 (1980), noted that a plaintiff may qualify as a “prevailing 
party” on the basis of a consent judgment. The Court stated: 

The legislative history of the Civil Rights Attorney’s 
Fees Awards Act of 1976 indicates that a person may in 
some circumstances be a “prevailing party” without hav- 
ing obtained a favorable “final judgment following a full 
trial on the merits.” H.R. Rep. No. 94-1558, p. 7 (1976). 
See also S. Rep. No. 94-1011, p. 5 (1976). Thus, for 

4 The House Report specifically states that “[t]he phrase ‘prevailing 
party’ is not intended to be limited to the victor only after entry of a final 
judgment following a full trial on the merits.” H.R. Rep. No. 1558, supra, 
at 7. “If the litigation terminates by consent decree, for example, it would 
be proper to award counsel fees.” Ibid. (emphasis added). “A ‘prevailing’ 
party should not be penalized for seeking an out-of-court settlement, thus 
helping to lessen docket congestion.” Ibid. (emphasis added). “Similarly, 
after a complaint is filed, a defendant might voluntarily cease the 
unlawful practice. A court should still award fees even though it might 
conclude, as a matter of equity, that no formal relief, such as an injunction, 
is needed.” Ibid. (emphasis added). 

11 

example, “parties may be considered to have prevailed 
when they vindicate rights through a consent judgment 
or without formally obtaining relief,” ibid. See also H.R. 
Rep. No. 94-1558, supra, at 7, and cases cited; Dawson v. 
Pastrick, 600 F.2d 70, 78 (CA7 1979); Nadeau v. 
Helgemoe, 581 F.2d 275, 279-281 (CA1 1978). 

Id. at 756-757. The Court’s decision in Maher v. Gagne, 448 
U.S. 122 (1980), reached a similar conclusion with respect to 
settlements. The Court stated: 

The fact that respondent prevailed through a settlement 
rather than through litigation does not weaken her claim 
to fees. Nothing in the language of § 1988 conditions the 
District Court’s power to award fees on full litigation of 
the issues or on a judicial determination that the plain- 
tiff ’s rights have been violated. Moreover, the Senate 
Report expressly stated that “for purposes of the award 
of counsel fees, parties may be considered to have 
prevailed when they vindicate rights through a consent 
judgment or without formally obtaining relief.” 

Id. at 129 (quoting S. Rep. No. 1011, supra, at 5). 

The Court’s decision in Hewitt v. Helms, 482 U.S. 755 
(1987), addressed, albeit indirectly, the consequences of a de- 
fendant’s voluntary cessation of a challenged practice. The 
central issue in Hewitt was “the peculiar-sounding question 
whether a party who litigates to judgment and loses on all of 
his claims can nonetheless be a ‘prevailing party’ for pur- 
poses of an award of attorney’s fees.” Id. at 757. Helms had 
alleged that prison officials mistreated him, and a lower 
court rendered a favorable interlocutory ruling, but ulti- 
mately denied him any form of judicial relief. Id. at 760. This 
Court concluded that Helms was not entitled to an award of 
attorney’s fees. Id. at 760-763. The Court explained: 

12 

It is settled law, of course, that relief need not be judi- 
cially decreed in order to justify a fee award under § 
1988. A lawsuit sometimes produces voluntary action by 
the defendant that affords the plaintiff all or some of the 
relief he sought through a judgment—e.g., a monetary 
settlement or a change in conduct that redresses the 
plaintiff’s grievances. When that occurs, the plaintiff is 
deemed to have prevailed despite the absence of a formal 
judgment in his favor. See Maher, supra, at 129. 

Id. at 760-761 (emphasis added). 

As the quoted language makes clear, the Court’s decision 
in Hewitt explicitly accepted, as “settled law,” that a plaintiff 
“prevails,” for purposes of an award of attorney’s fees if: (a) 
the plaintiff’s lawsuit seeks specific relief to address 
particular grievances; and (b) the defendant responds by 
taking voluntary action—including either a settlement or “a 
change in conduct”—that provides some or all of that relief.5 
The Court contrasted that situation with the one before it 
and concluded that “a favorable judicial statement of law in 
the course of litigation that results in judgment against the 

5 The Court had good reason to characterize this principle as “settled 
law.” By 1987, numerous courts of appeals had recognized that a plaintiff 
may be entitled to an award of attorney’s fees if the plaintiff received 
requested relief through the defendant’s voluntary compliance. See 
Exeter-West Greenwich Reg’l Sch. Dist. v. Pontarelli, 788 F.2d 47, 53 (1st 
Cir. 1986); Gerena-Valentin v. Koch, 739 F.2d 755, 758-759 (2d Cir. 1984); 
Institutionalized Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897, 
911-912 (3d Cir. 1985); Bonnes v. Long, 599 F.2d 1316, 1319 (4th Cir. 1979); 
Hennigan v. Ouachita Parish Sch. Bd., 749 F.2d 1148, 1150-1151 (5th Cir. 
1985); Stewart v. Hannon, 675 F.2d 846, 851 (7th Cir. 1982); Williams v. 
Miller, 620 F.2d 199, 202 (8th Cir. 1980); American Constitutional Party 

v. Munro, 650 F.2d 184, 187-188 (9th Cir. 1981); J & J Anderson, Inc. v. 
Town of Erie, 767 F.2d 1469, 1474-1475 (10th Cir. 1985); Doe v. Busbee, 684 
F.2d 1375, 1379 (11th Cir.1982); Grano v. Barry, 783 F.2d 1104, 1108 (D.C. 
Cir. 1986). 

13 

plaintiff does not suffice to render him a ‘prevailing party.’” 
482 U.S. at 763. The Court thus made clear that the “pre- 
vailing party” requirement focuses on whether, and to what 
extent, the plaintiff’s lawsuit produces the tangible “end” 
result that the plaintiff sought. Accord Texas Teachers 
Ass’n, 489 U.S. at 792 (“the plaintiff must be able to point to 
a resolution of the dispute which changes the legal relation- 
ship between itself and the defendant”).6 

The Court’s decision in Hewitt also rejected Helms’ “alter- 
native” argument that he might be entitled to attorney’s fees 
because his lawsuit prompted prison officials to amend 
prison regulations. The Court concluded that it “need not 

6 The Court specifically made that point in the course of rejecting 
Helms’ argument that the lower court’s favorable, but inconsequential, 
interlocutory ruling was the equivalent of declaratory relief. 482 U.S. at 
761. The Court explained, “To suggest such an equivalency is to lose sight 
of the nature of the judicial process. In all civil litigation, the judicial 
decree is not the end but the means. At the end of the rainbow lies not a 
judgment, but some action (or cessation of action) by the defendant that 
the judgment produces—the payment of damages, or some specific 
performance, or the termination of some conduct. Redress is sought 
through the courts, but from the defendant.” Ibid. The Court specifically 
observed: 

The real value of the judicial pronouncement * * * is in the settling 
of some dispute which affects the behavior of the defendant towards 
the plaintiff. * * * If the defendant, under the pressure of the 
lawsuit, pays over a money claim before the judicial judgment is 
pronounced, the plaintiff has “prevailed” in his suit because he has 
obtained the substance of what he sought. Likewise in a declaratory 
judgment action: if the defendant, under pressure of the lawsuit, 
alters his conduct (or threatened conduct) towards the plaintiff that 
was the basis for the suit, the plaintiff will have prevailed. 

Ibid. Accord Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam) (“A 
declaratory judgment, in this respect, is no different from any other judg- 
ment. It will constitute relief, for purposes of § 1988, if, and only if, it 
affects the behavior of the defendant toward the plaintiff.”). 

14 

decide the circumstances, if any, under which this ‘catalyst’ 
theory could justify a fee award under § 1988” because 
Helms was not in prison at the time the prison officials 
amended the regulations and therefore could not have re- 
ceived “redress” through those regulations. Hewitt, 482 U.S. 
at 763. The Court also suggested that, even in the absence of 
that obstacle, Helms would additionally have had to show 
that his complaint requested the change in the regulations 
and that there was a “clear causal link between his lawsuit 
and the State’s amendment of its regulations.” Ibid.7 

This Court addressed the issue of voluntary cessation 
again, shortly after the Court decided Hewitt, in Gwaltney of 
Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 
U.S. 49 (1987). That case arose from a private plaintiff’s 
attempt to abate, through the citizen suit provisions of the 
Clean Water Act, 33 U.S.C. 1365, unlawful water pollution 
discharges. Those provisions allow citizens to bring private 
enforcement actions against polluters and authorize the 
courts to award attorney’s fees to successful plaintiffs.8 In 
the course of addressing the legal standards for determining 

7 See also Rhodes, 488 U.S. at 4 (“This case is thus controlled by our 
holding in Hewitt, where the fact that the respondent had ‘long since been 
released from prison’ and ‘could not get redress’ from any changes in 
prison policy caused by his lawsuit compelled the conclusion that he was 
ineligible for an award of fees.”). 

8 At that time, the Clean Water Act authorized attorney’s fees 
“whenever the court determines such award is appropriate.” 33 U.S.C. 
1365(d) (1982). Nevertheless, this Court interpreted the Clean Water Act 
to require that the plaintiff achieve at least “some degree of success on the 
merits.” See Ruckelshaus v. Sierra Club, 463 U.S. 680, 684-694 (1983). 
Thus, the Clean Water Act’s attorney’s fee provisions effectively imposed 
a “prevailing party” requirement like those contained in the civil rights 
laws. See Texas Teachers Ass’n, 489 U.S. at 791 (Under Section 1988, a 
plaintiff is a prevailing party if it “succeeded on any significant claim 
affording it some of the relief sought.”). The current version of the Clean 
Water Act expressly limits fees to a “prevailing” party. 33 U.S.C. 1365(d). 

15 

when a citizen suit becomes moot, the Court noted that the 
Clean Water Act allows a court to award attorney’s fees to a 
citizen plaintiff if, “as a result of a citizen proceeding and 
before a verdict is issued, a defendant abated a violation.” 
484 U.S. at 67 n.6. In Gwaltney, as in Hewitt, the Court 
envisioned that a plaintiff would be eligible to recover 
attorney’s fees if, as a result of the plaintiff’s suit, the 
defendant elected to forego litigation and to comply volun- 
tarily with the plaintiff’s demand for cessation of the unlaw- 
ful practice. Ibid. 

Taken collectively, the Court’s pre-Farrar decisions mani- 
fest the Court’s understanding that a plaintiff may recover 
attorney’s fees under the “prevailing party” standard if, as a 
result of the plaintiff’s suit, the defendant voluntarily pro- 
vides the plaintiff with requested relief. To be sure, the 
Court has never had occasion, until now, to rule squarely on 
that specific issue in a discrete factual context. Neverthe- 
less, the Court’s decisions express the understanding that a 
plaintiff may be entitled to fees when the defendant takes 
post-complaint action “that affords the plaintiff all or some of 
the relief he sought” through “a change in conduct that 
redresses the plaintiff’s grievances.” Hewitt, 482 U.S. at 760- 
761. The Court’s acceptance of that “settled” principle 
clearly contributed to the Court’s ratio decidendi in Hewitt, 
and it informed the Court’s decision in Gwaltney. Until this 
Court’s decision in Farrar v. Hobby, supra, the Fourth Cir- 
cuit, like all of the other courts of appeals, shared that under- 
standing and applied it in specific cases. See, e.g., S-1 by and 
through P-1 v. State Bd. of Educ., 6 F.3d 160, 164-165 (4th 
Cir. 1993), rev’d, 21 F.3d 49 (en banc), cert. denied, 513 U.S. 
876 (1994); see also Spencer v. General Elec. Co., 894 F.2d 
651, 662 (4th Cir. 1990); DeMier v. Gondles, 676 F.2d 92, 93 
(4th Cir. 1982); Wooldridge v. Marlene Indus. Corp., 898 
F.2d 1169, 1173-1174 (6th Cir. 1990), and cases cited at note 
5, supra. 

16 

B. This Court’s Decision In Farrar v. Hobby Does Not 

Repudiate The Principle That A Plaintiff May Recover 

Fees If The Defendant Voluntarily Provides Re- 
quested Relief 

The Fourth Circuit stands alone among the courts of 
appeals in holding that this Court’s decision in Farrar v. 
Hobby, 506 U.S. 103 (1992), precludes a plaintiff from quali- 
fying as a “prevailing party” if the plaintiff’s lawsuit induces 
the defendant to provide the requested relief voluntarily 
through a unilateral, post-complaint change in the defen- 
dant’s conduct.9 The Fourth Circuit’s counter-intuitive 
holding rests on a misunderstanding of Farrar, which does 
not address that question. If anything, Farrar supports, 
rather than repudiates, the widely accepted principle that 
plaintiff may be a “prevailing party” if the plaintiff succeeds 
on its claims through means other than “an enforceable 
judgment, consent decree, or settlement” (S-1 and S-2, 21 
F.3d at 51). 

This Court’s decision in Farrar addressed “whether a civil 
rights plaintiff who receives a nominal damages award is a 
‘prevailing party’ eligible to receive attorney’s fees under 42 
U.S.C. § 1988.” 506 U.S. at 105. Farrar had brought a civil 
rights suit against Hobby and other Texas officials under 42 

9 See, e.g., New Hampshire v. Adams, 159 F.3d 680, 685 (1st Cir. 
1998); Marbley v. Bane, 57 F.3d 224, 234 (2d Cir. 1995); Baumgartner v. 
Harrisburg Housing Auth., 21 F.3d 541, 546-550 (3d Cir. 1994); Craig v. 
Gregg County, 988 F.2d 18, 21 (5th Cir. 1993); Payne v. Board of Educ., 88 
F.3d 392, 397 (6th Cir. 1996); Zinn v. Shalala, 35 F.3d 273, 274-275 (7th 
Cir. 1994); Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. 1, 17 
F.3d 260, 262-263 & n.3 (8th Cir. 1994); Kilgour v. City of Pasadena, 53 
F.3d 1007, 1010 (9th Cir. 1995); Beard v. Teska, 31 F.3d 942, 951-952 (10th 
Cir. 1994); Morris v. City of West Palm Beach, 194 F.3d 1203, 1207 (11th 
Cir. 1999); but see Foreman v. Dallas County, 193 F.3d 314, 320 (5th Cir. 
1999) (stating, in dicta, that, after Farrar, “the continuing validity of the 
catalyst theory is in serious doubt”), cert. denied, 120 S. Ct. 1673 (2000). 

17 

U.S.C. 1983, seeking $17 million in compensation for an 
alleged violation of constitutional rights. 506 U.S. at 105-106. 
A jury found that Hobby had violated Farrar’s rights, and 
the district court ultimately entered a judgment for nominal 
damages. Id. at 106-107. The district court awarded Farrar 
substantial attorney’s fees, but the court of appeals reversed 
that award on the basis that Farrar was not a “prevailing 
party.” Id. at 107-109. This Court determined that Farrar 
was a “prevailing party” for purposes of 42 U.S.C. 1988, but 
it affirmed the judgment on the ground that an award of any 
fees in that case was unreasonable. See 506 U.S. at 109-116. 

In reaching its decision, the Court repeated its general 
formulation that “plaintiffs may be considered ‘prevailing 
parties’ for attorney’s fees purposes if they succeed on any 
significant issue in litigation which achieves some of the 
benefit the parties sought in bringing suit.” Farrar, 506 U.S. 
at 109 (quoting Hensley, 461 U.S. at 433). The Court then 
reviewed its decisions in “three recent cases”—Hewitt, 
Rhodes, and Texas Teachers Ass’n—in which the Court had 
“elaborated on the definition of prevailing party.” Ibid. As 
the Court noted, in each of those cases—as in the case before 
it—the plaintiff had litigated its claim to “judgment.” Id. at 
109 (Hewitt), 110 (Rhodes), 111 (Texas Teachers Ass’n). The 
Court distilled the following principles from those fully 
litigated cases: 

[T]o qualify as a prevailing party, a civil rights plaintiff 
must obtain at least some relief on the merits of his 
claim. The plaintiff must obtain an enforceable judgment 
against the defendant from whom fees are sought, 
Hewitt, supra, at 760, or comparable relief through a con- 
sent decree or settlement. Maher v. Gagne, 448 U.S. 122, 
129 (1980). Whatever relief the plaintiff secures must 
directly benefit him at the time of the judgment or 
settlement. See Hewitt, supra, at 764. Otherwise the 

18 

judgment or settlement cannot be said to “affec[t] the 
behavior of the defendant toward the plaintiff.” Rhodes, 
supra, at 4. Only under these circumstances can civil 
rights litigation effect “the material alteration of the 
legal relationship of the parties” and thereby transform 
the plaintiff into a prevailing party. [Texas Teachers 
Ass’n], supra, at 792-793. In short, a plaintiff “prevails” 
when actual relief on the merits of his claim materially 
alters the legal relationship between the parties by 
modifying the defendant’s behavior in a way that directly 
benefits the plaintiff. 

Id. at 111-112. Applying that test, the Court concluded that a 
plaintiff who wins nominal damages is a prevailing party 
because “[a] judgment for damages in any amount, whether 
compensatory or nominal, modifies the defendant’s behavior 
for the plaintiff’s benefit by forcing the defendant to pay an 
amount of money he otherwise would not pay.” Id. at 113. 

The Fourth Circuit reasoned that, because the passages of 
Farrar quoted above do not indicate that a plaintiff may pre- 
vail through the defendant’s voluntary cessation of the chal- 
lenged conduct, the Court intended to foreclose that basis for 
an attorney’s fee award. See S-1 and S-2, 21 F.3d at 51; S-1 
by and through P-1, 6 F.3d at 168-169 (Wilkinson, J., dis- 
senting) (opinion adopted by the en banc court). That rea- 
soning is flawed at the threshold. The Court did not discuss 
the question of voluntary cessation because that issue was 
not before it. See Friends of the Earth, Inc. v. Laidlaw 
Envtl. Servs. (TOC), Inc., 120 S. Ct. 693, 711 (2000) (noting 
that question whether a plaintiff may obtain fees based on 
the defendant’s voluntary cessation of the challenged action 
“was not presented for this Court’s decision in Farrar” and 
that “several Courts of Appeals have expressly concluded 
that Farrar did not repudiate [that] theory”). The Court’s 
decision in Farrar accordingly cannot be viewed as having 

19 

decided that matter. See, e.g., Brecht v. Abrahamson, 507 
U.S. 619, 631 (1993); United States v. L.A. Tucker Truck 
Lines, Inc., 344 U.S. 33, 38 (1952); Webster v. Fall, 266 U.S. 
507, 511 (1925). 

Furthermore, the court of appeals had no basis for infer- 
ring from Farrar that a plaintiff can never obtain attorney’s 
fees if the lawsuit induces voluntary compliance. Farrar 
resolved an attorney’s fee dispute involving a judgment, and 
it did not repudiate, expressly or by implication, the Court’s 
past observations that a plaintiff may “prevail,” for purposes 
of an award of attorney’s fees, if the plaintiff’s lawsuit 
produces “a change in conduct that redresses the plaintiff’s 
grievances.” Hewitt, 482 U.S. at 760-761; see also Gwaltney, 
484 U.S. at 67 n.6. The passages in Farrar that the court of 
appeals cited provide clear guidance for cases involving a 
judgment, which was the only factual context before the 
Court. Those passages, however, should not be mechanically 
applied to other contexts or employed without regard to this 
Court’s statements respecting the availability of attorney’s 
fees when a plaintiff obtains redress “despite the absence of 
a formal judgment in his favor.” Hewitt, 482 U.S. at 761. See 
pp. 10-15, supra 

Moreover, even if the Court decided to extend Farrar’s 
verbal formulation beyond the context of judgments, see 506 
U.S. at 111-112, that formulation would support the con- 
clusion that a plaintiff whose lawsuit induces voluntary post- 
complaint compliance is a “prevailing party.” First, a 
plaintiff who obtains the objective of his suit through the 
defendant’s voluntary post-complaint compliance receives 
“actual relief on the merits of his claim.” Farrar, 506 U.S. at 
111. Indeed, that plaintiff obtains far more meaningful 
redress—despite the absence of a formal judgment—than a 
party who receives nominal damages, like the plaintiff in 
Farrar. See Hewitt, 482 U.S. at 761. Second, that relief 
“materially alters the legal relationship between the par- 

20 

ties.” Farrar, 506 U.S. at 111. The defendant who volun- 
tarily complies with the plaintiff’s demand for relief elimi- 
nates the basis for the plaintiff’s legal challenge, moots the 
plaintiff’s legal action, and relieves the parties of their 
obligation to litigate the suit. Plainly, the plaintiff is “able to 
point to a resolution of the dispute which changes the legal 
relationship between itself and the defendant.” Texas 
Teachers Ass’n, 489 U.S. at 792. Third, that change in the 
legal relationship “modif[ies] the defendant’s behavior in a 
way that directly benefits the plaintiff.” Farrar, 506 U.S. at 
111-112. The plaintiff receives the actual relief it has re- 
quested. Furthermore, if the court determines that the 
defendant’s actions have mooted the case, the plaintiff has 
received a benefit that is concrete and effectively per- 
manent. See Friends of the Earth, 120 S. Ct. at 708 (a 
defendant is entitled to dismissal only if it is “absolutely 
clear that the allegedly wrongful behavior could not reason- 
ably be expected to recur”) (quoting United States v. Con- 
centrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)); 
Pet. App. A13-A17. 

In sum, Farrar supports, rather than undermines, the 
principle that a plaintiff may recover fees if the defendant 
voluntarily provides the requested relief. As we next show, 
the principle finds solid support in the language, legislative 
history, and purpose of the relevant federal legislation. The 
court of appeals’ ruling does not. 

C. The Court Of Appeals’ Ruling Is Inconsistent 

With The Language, Legislative History, And Pur- 
poses Of Federal Legislation Authorizing Awards Of 

Attorney’s Fees To Prevailing Parties 

A plaintiff that has obtained the redress that it seeks 
through the defendant’s voluntary compliance with the 
plaintiff’s demand for relief is a “prevailing party” within the 
plain meaning of the FHAA, the ADA, and other attorney’s 

21 

fee statutes. The ordinary meaning of the verb “to prevail” 
is “to be or become effective or effectual; be successful.” 
See, e.g., Webster’s Third New International Dictionary 
(1976) (def. 3). The Court has accordingly stated that a 
plaintiff has “prevailed” if he has “succeed[ed] on any 
significant issue in litigation which achieves some of the 
benefit [he] sought in bringing suit.” Farrar, 506 U.S. at 109 
(interpreting the term “prevailing party” in 42 U.S.C. 1988); 
Texas Teachers Ass’n, 489 U.S. at 791-792 (same); Hensley, 
461 U.S. at 433 (same). A plaintiff whose lawsuit induces 
voluntary, post-complaint compliance plainly qualifies as a 
prevailing party under that standard because “because he 
has obtained the substance of what he sought.” Hewitt, 482 
U.S. at 761. See ibid. (“if the defendant, under pressure of 
the lawsuit, alters his conduct (or threatened conduct) 
towards the plaintiff that was the basis for the suit, the 
plaintiff will have prevailed”). 

10 

That construction is consistent with the legislative history 
of the FHAA and ADA attorney’s fee provisions. The legis- 
lative reports that accompanied the FHAA and the ADA 
state that the term “prevailing party” has the same meaning 
in those statutes as in other civil rights laws, including 42 

10 The court of appeals’ contrary ruling depends on a limitation—the 
requirement that the party obtain relief through “an enforceable judg- 
ment, consent decree, or settlement” (S-1 and S-2, 21 F.3d at 51)—that 
appears nowhere in the statutes at issue. See 42 U.S.C. 3613(c); 42 U.S.C. 
12205. Furthermore, that limitation creates a stark anomaly: A plaintiff 
may “prevail” through an out-of-court settlement, where the plaintiff and 
the defendant agree to a compromise of the plaintiff’s claims; but the 
plaintiff cannot “prevail” through the defendant’s voluntary post-com- 
plaint compliance, where the defendant unilaterally capitulates to the 
plaintiff’s request for relief. See S-1 and S-2, 21 F.3d at 51; cf. Hewitt, 482 
U.S. at 760-761 (a plaintiff may prevail through “a monetary settlement or 
a change in conduct that redresses the plaintiff’s grievances”) (emphasis 
added). 

22 

U.S.C. 1988 (1994 & Supp. IV 1998). See note 3, supra. The 
House report accompanying 42 U.S.C. 1988 unambiguously 
states: 

A ‘prevailing’ party should not be penalized for seeking 
an out-of-court settlement, thus helping to lessen docket 
congestion. Similarly, after a complaint is filed, a defen- 
dant might voluntarily cease the unlawful practice. A 
court should still award fees even though it might con- 
clude, as a matter of equity, that no formal relief, such as 
an injunction, is needed. 

H.R. Rep. No. 1558, supra, at 7. The House and Senate re- 
ports cite numerous examples of such cases. See ibid.; S. 
Rep. No. 1011, supra, at 5. 

11 

11 The cited cases include the frequently followed decision, Parham v. 
Southwestern Bell Tel. Co., 433 F.2d 421, 429-430 (8th Cir. 1970) (awarding 
fees despite the lack of need for equitable relief), as well as others. See 
Kopet v. Esquire Realty Co., 523 F.2d 1005, 1007-1008 (2d Cir. 1975) 
(awarding fees under “common fund” doctrine and noting that fees may be 
awarded “even where adjudication on the merits is never reached, e.g., 
after a settlement”); Brown v. Gaston County Dyeing Mach. Co., 457 F.2d 
1377, 1383 (4th Cir.) (awarding fees despite the lack of need for equitable 
relief), cert. denied, 409 U.S. 982 (1972); Thomas v. Honeybrook Mines, 
Inc., 428 F.2d 981, 986 (3d Cir. 1970) (awarding fees under “common fund” 
doctrine where plaintiff’s lawsuit caused defendants to take the action 
requested in the lawsuit), cert. denied, 401 U.S. 911 (1971); Richards v. 
Griffith Rubber Mills, 300 F. Supp. 338 (D. Or. 1969) (awarding fees even 
though injunctive relief was made inappropriate by, among other things, 
the fact that the defendant had provided the plaintiff the job assignment 
she requested). The cases cited in the legislative reports are merely 
illustrative of decisions from that era. See also, e.g., Peltier v. City of 
Fargo, 533 F.2d 374, 380 (8th Cir. 1976) (denial of equitable relief); Rice v. 
Gates Rubber Co., 521 F.2d 782, 785 (6th Cir. 1975) (same); Barnett v. W.T. 
Grant Co., 518 F.2d 543, 550 (4th Cir. 1975) (same); Evans v. Sheraton 
Park Hotel, 503 F.2d 177, 189 (D.C. Cir. 1974) (same); see also Ramey v. 
Cincinnati Enquirer, Inc., 508 F.2d 1188, 1196 (6th Cir. 1974) (derivative 
suit mooted by defendant’s voluntary compliance with plaintiff’s 

23 

That interpretation is also consistent with the central 
purpose of federal fee-shifting statutes. Congress sought to 
ensure that persons who have legitimate civil rights griev- 
ances have effective access to the judicial process, Hensley, 
461 U.S. at 429, and can participate in the vindication of 
important civil rights principles, Newman v. Piggie Park 
Enters., Inc., 390 U.S. 400, 402 (1968). See Kay v. Ehrler, 
499 U.S. 432, 436 n.2 (1991) (“If private citizens are to be able 
to assert their civil rights, . . . then citizens must have the 
opportunity to recover what it costs them to vindicate these 
rights in court.” (quoting S. Rep. No. 1011, supra, at 2)). 
Congress had no reason to deny the benefits of those 
statutes to the plaintiff that brings a meritorious suit and 
induces compliance without formal judgment. 

A plaintiff whose lawsuit induces voluntary and unilateral 
compliance with the civil rights laws has no less need or 
entitlement to recover attorney’s fees than the plaintiff 
who achieves that objective by litigating to judgment or by 
reaching an out-of-court settlement. With respect to need, a 
plaintiff will likely require costly professional services to 
bring a meritorious lawsuit, regardless of whether that suit 
is ultimately resolved by judgment, settlement, or voluntary 
compliance. And with respect to entitlement, Congress 
surely sought to encourage plaintiffs to bring suit in the 
most meritorious cases, where the defendant stands in clear 
violation of the law. Those are precisely the cases in which a 
plaintiff’s suit is likely to induce voluntary compliance. 
Indeed, the court of appeals’ rule would have the perverse 
effect of selectively denying plaintiffs fees in precisely those 

demands), cert. denied, 422 U.S. 1048 (1975); Kahan v. Rosenstiel, 424 
F.2d 161, (3d Cir.) (same), cert. denied, 398 U.S. 950 (1970). 

24 

situations in which a lawsuit promptly and effectively in- 
duces compliance with the law. 

12 

Furthermore, the court of appeals’ categorical rule that a 
plaintiff cannot obtain attorney’s fees if the plaintiff’s suit is 
mooted by the defendant’s voluntary compliance would affir- 
matively discourage plaintiffs from bringing meritorious 
claims for fear that the defendant could take unilateral 
action, at any time before judgment, that would extinguish 
the plaintiff’s right to receive otherwise recoverable litiga- 
tion expenses. A plaintiff considering a suit for equitable 
relief may be understandably deterred from vindicating its 
rights by the prospect that the defendant can freely termi- 
nate the action through voluntary compliance and leave the 
plaintiff to bear all the costs of the litigation, even if the 
plaintiff clearly would have prevailed had the case proceeded 
to judgment. That deterrent effect is greatest for cases that 
are expensive to litigate and lack any prospect of a large 
damage award for financing the litigation, such as many 
meritorious civil rights cases. See City of Riverside v. 
Rivera, 477 U.S. 561, 577 (1986) (plurality opinion) (“Con- 
gress enacted § 1988 specifically to enable plaintiffs to 
enforce the civil rights laws even where the amount of 

12 The court of appeals’ contrary rule is also anomalous in light of the 
legal profession’s role in the resolution of disputes. Parties in litigation 
are normally interested in achieving some tangible result, see Hewitt, 482 
U.S. at 760-761, but they must rely on their attorneys’ advice in deter- 
mining the best means to the desired end. See generally ABA Model 
Rules of Professional Conduct, reprinted in ABA/BNA Lawyers’ Manual 
on Professional Conduct (2000). Congress surely did not intend to deny a 
plaintiff a fee award in those situations in which the attorney has 
accomplished what the plaintiff, the judiciary, and the public should view 
as the most efficacious result—the resolution of a meritorious lawsuit, and 
the achievement of the plaintiff ’s desired outcome, through the defen- 
dant’s voluntary action. 

25 

damages at stake would not otherwise make it feasible for 
them to do so.” ). 

13 

The court of appeals’ rule may also encourage some 
defendants to disregard the law unless and until they are 
sued, particularly where private enforcement under the law 
is limited to suits for injunctive relief. For example, under 
the court of appeals’ approach, a business that is obligated 
under the ADA to make its facility accessible to those with 
disabilities may well conclude that it is cost-effective to 
disregard the law until sued and then make the required 
accommodations to moot the case. Indeed, that business 
may be justified in concluding that a lawsuit will never 
materialize in light of the low probability that disabled 
citizens injured by that violation of the ADA would 
undertake the risk of financing an easily mooted lawsuit. 
See Riverside, 477 U.S. at 577-578 (“Fee awards have proved 
an essential remedy if private citizens are to have a 
meaningful opportunity to vindicate the important Con- 
gressional policies which these laws contain.”) (quoting S. 
Rep. No. 1011, supra, at 2). 

Finally, the court of appeals’ rule could encourage the liti- 
gants to engage in strategic behavior directed at the avail- 

13 A number of important civil rights statutes allow only injunctive 
relief. See, e.g., 42 U.S.C. 12188(a) (public accommodations provisions of 
the ADA); 42 U.S.C. 2000a-3 (Title II of the Civil Rights Act of 1964); see 
also H.R. Rep. No. 1558, supra, at 9 (“[I]n a large number of cases brought 
under the provisions covered by [Section 1988], only injunctive relief is 
sought.”). Additionally, even where damages are available, “it should be 
observed that, in some cases, immunity doctrines and special defenses, 
available only to public officials, preclude or severely limit the damage 
remedy.” See ibid. For example, a plaintiff may bring an age discri- 
mination action against a public official under the doctrine of Ex parte 
Young, 209 U.S. 123 (1908), but the plaintiff is entitled to only equitable 
relief. See Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); Alden v. 
Maine, 527 U.S. 706, 755-757 (1999). 

26 

ability of attorney’s fees rather than the merits of the case. 
The court’s rule could encourage plaintiffs to include claims 
for damages, even when they would otherwise be satisfied 
with injunctive relief, to make the case more difficult to 
moot. See, e.g., University of Tex. v. Camenisch, 451 U.S. 
390, 393-394 (1981) (claim for damages prevented mootness). 
Similarly, the rule could encourage plaintiffs to expand the 
number of litigants or bring class-action claims to make the 
claim more difficult to moot. See, e.g., Sosna v. Iowa, 419 
U.S. 393, 399-402 (1975) (class action claims prevented moot- 
ness). At the same time, the court of appeals’ rule could give 
defendants a strong incentive to coerce the plaintiff, through 
protracted litigation, to settle a meritorious claim on un- 
favorable terms, with provision for attorney’s fees, rather 
than run the risk that the defendant will comply without 
settlement and moot the case. Congress plainly did not 
intend to draw distinctions between settlement and volun- 
tary compliance that would skew the litigants’ incentives in 
this way and produce unwarranted results. 

D. This Court Should Remand The Case For A Deter- 
mination Of Whether, Under The Facts Of This Case, 

An Award Of Fees Is Appropriate 

The Court should reverse the court of appeals’ ruling that 
a plaintiff can qualify as a “prevailing party” only through a 
“judgment, decree, or settlement” (Pet. App. A8). There is 
no occasion, however, for the Court to resolve the question 
whether an award of attorney’s fees is warranted under the 
fact of this case. Neither the court of appeals nor the district 
court reached that question. See id. at A7-A8, A17-A18. 
Furthermore, petitioners acknowledge that the Court should 
remand the case so that the district court can “make ap- 
propriate findings of fact and conclusions of law” on peti- 
tioners’ motion for attorney’s fees. Pet. 27. In making those 
determinations, the district court should be guided by 

27 

several principles that can readily be discerned from the 
decisions of this Court and the courts of appeals. 

First, a plaintiff that claims that its lawsuit induced volun- 
tary compliance is entitled to an award of attorney’s fees 
only if that suit had legal merit. “It is clear beyond per- 
adventure that unless an action brought by a private litigant 
contains some basis in law for the benefits ultimately re- 
ceived by that litigant, the litigant cannot be said to have 
‘enforced’ the civil rights laws or to have promoted 
their policies for the benefit of the public at large.” Long v. 
Bonnes, cert. denied, 455 U.S. 961, 966-967 (1982) (Rehn- 
quist, J., dissenting from denial of certiorari). 

14 The district 
court need not determine that the plaintiff would have 
prevailed had the plaintiff litigated the suit to judgment. See 
id. at 966 n.3. 

15 Rather, the court should determine whether 
the plaintiff’s complaint had sufficient merit to withstand a 
motion to dismiss for lack of jurisdiction or failure to state a 
claim on which relief may be granted. See Fed. R. Civ. P. 
12(b). The standards for dismissal on those grounds are 
familiar, are relatively easy to apply, and ensure that the 
plaintiff’s claims are within the jurisdiction of the court and 
grounded in law. 

16 

14 See, e.g., Zinn v. Shalala, 35 F.3d at 274 (“the plaintiffs’ claims, if 
pressed, cannot have been frivolous, unreasonable, or groundless” (quot- 
ing Stewart v. McGinnis, 5 F.3d 1031, 1039 (7th Cir. 1993), cert. denied, 
510 U.S. 1121 (1994)); Little Rock Sch. Dist. v. Pulaski County Special 
Sch. Dist. 1, 17 F.3d at 262 (same); Pembroke v. Wood County, 981 F.2d. 
225, 230-231 (5th Cir.) (same), cert. denied, 508 U.S. 973 (1993); Nadeau v. 
Helgemoe, 581 F.2d at 279 (same); see also Hennigan v. Ouachita Parish 
Sch. Bd., 749 F.2d at 1153 (the plaintiff’s lawsuit “lacked colorable merit”). 

15 That approach would effectively require the parties to litigate the 
mooted claims. See Hensley, 461 U.S. at 437 (“A request for attorney’s 
fees should not result in a second major litigation.”). 

16 See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (a 
motion to dismiss may be granted “only if it is clear that no relief could be 

28 

Second, the plaintiff must be able to demonstrate that it 
obtained redress of a grievance that motivated the suit. See 
Hewitt, 482 U.S. at 760-761 (the defendant’s actions must 
“afford[] the plaintiff all or some of the relief he sought 
through a judgment—e.g., a monetary settlement or a 
change in conduct that redresses the plaintiff’s grievances”). 
The Court suggested in Hewitt that the plaintiff needs to 
show that the complaint encompassed the relief that the 
defendant provided and that the plaintiff personally bene- 
fitted from the defendant’s actions. See id. at 763; see also 
Rhodes, 488 U.S. at 4. At a minimum, the plaintiff must have 
received “some of the benefit sought in the lawsuit, even 
though the plaintiff does not ultimately succeed in securing a 
favorable judgment.” Baumgartner v. Harrisburg Hous. 
Auth., 21 F.3d 541, 546 (3d Cir. 1994) (quoting Wheeler v. 
Towanda Area Sch. Dist., 950 F.2d 128, 131 (3d Cir. 1991)). 

Third, the plaintiff must demonstrate “a clear causal link” 
between the plaintiff’s suit and the defendant’s actions. 
Hewitt, 482 U.S. at 763. See, e.g., Baumgartner, 21 F.3d at 
546 (the plaintiff must show “a causal connection between 
the litigation and the relief from the defendant” (quoting 
Wheeler, 950 F.2d at 131)); Foremaster v. City of St. George, 
882 F.2d 1485, 1488 (10th Cir. 1989) (same), cert. denied, 495 
U.S. 910 (1990). In a situation in which the defendant has 
undertaken voluntary action, the court’s analysis of the 
defendant’s motivations will likely depend on a highly 
factbound inquiry and may turn on reasonable inferences 
from the nature and timing of the defendant’s change in 
conduct. At bottom, the plaintiff must be able to show that 
the lawsuit, as a matter of fact, played a substantial role in 

granted under any set of facts that could be proved consistent with the 
allegations”). See also Note, Civil Rights Attorney’s Fees Awards in Moot 
Cases, 49 U. Chi. L. Rev. 819, 837-838 (1982). 

29 

inducing the defendant to change its ways. See Marbley v. 
Bane, 57 F.3d 224, 234 (2d Cir. 1995). 

17 

17 Where the defendant is a governmental entity and the plaintiff 
asserts that its lawsuit prompted a governmental change in policy, the 
plaintiff may confront particular problems of proof because the govern- 
ment acts through collective consensus and may elect to change laws and 
regulations for policy reasons unrelated to pending litigation. The legis- 
lative and regulatory history of laws and regulations often provides 
guidance in determining the basis for statutory and regulatory 
amendments. Compare Paris v. United States Dep’t of Hous. & Urban 
Dev., 988 F.2d 236, 241 (1st Cir. 1993) (Where legislative history makes 
clear that the plaintiff’s individual suit prompted a statutory amendment, 
the lawsuit may be “fairly characterized as a catalyst of Congress’ 
amendment.”), with Milton v. Shalala, 17 F.3d 812, 815 (5th Cir. 1994) 
(“The mere possibility that Congress acted because of an individual 
claimant’s suit (or reacted to a large number of similar suits) is too 
speculative in our view considering the many influences upon members of 
Congress in casting their votes.”), and Truax v. Bowen, 842 F.2d 995, 997 
(8th Cir. 1988) (Where enactment of reform legislation was partly the 
result of thousands of lawsuits, “the causal link between [the [plaintiff’s] 
lawsuit and Congress’s action is too tenuous to satisfy the calalyst test.”); 
see also Hendricks v. Bowen, 847 F.2d 1255, 1259 (7th Cir. 1988) 
(Easterbrook, J. concurring) (A plaintiff is not entitled to attorney’s fees if 
it is merely the “fortuitous beneficiary” of new legal standards.). 

30 

CONCLUSION 

The judgment of the court of appeals should be reversed 
and the case remanded for further proceedings. 

SETH P. WAXMAN 

Solicitor General 

BILL LANN LEE 

Assistant Attorney General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

JEFFREY P. MINEAR 

Assistant to the Solicitor 

General 

JESSICA DUNSAY SILVER 
KEVIN K. RUSSELL 

Attorneys 

NOVEMBER 2000