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Fee Shifting After Buckhannon

January 2002

Citation: ELR 10137

Author: Adam Babich

Introduction

On May 29, 2001, the U.S. Supreme Court decided Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources,1 sharply limiting the situations under which "prevailing parties" can recover their attorneys fees under citizen enforcement and judicial review provisions of federal laws. The Buckhannon Court rejected the "catalyst theory" of recovery, which allowed plaintiffs to receive fee awards "in the absence of a judicial determination on the merits" for litigation that was a significant factor in causing a defendant to change its conduct.2 Under the catalyst theory, a plaintiff could recover fees and costs even if it settled out of court or dropped its lawsuit after inspiring the defendant to voluntarily come into compliance.3 With respect to statutes that limit attorneys fee awards to "prevailing parties," those days are gone.

Buckhannon concerned the Fair Housing Amendments Act of 1988,4 and the Americans With Disabilities Act,5 but is clearly relevant to environmental litigators. The Court has long recognized that "fee-shifting statutes' similar language is a strong indication that they are to be interpreted alike."6 Further, the Buckhannon Court framed the issue before it in terms of the "numerous federal statutes [that] allow courts to award attorney's fees and costs to the 'prevailing party.'"7 Among these numerous federal statutes are many fee-shifting provisions important to environmental litigators, including citizen enforcement and judicial review provisions of major environmental laws. Other environmental laws, however, include fee-shifting provisions that do not use the phrase "prevailing party."

This Dialogue begins with a brief background discussion of the importance of citizen litigation to the U.S. environmental protection system. Next, the Dialogue identifies key concerns that have animated the Court's decisions on fee shifting. The Dialogue then examines Buckhannon's holding and argues that, in conjunction with prior Court holdings, Buckhannon creates an easily administrable "bright line" for determining when a litigant qualifies as a "prevailing party" entitled to recover attorneys fees. Next, the Dialogue discusses Buckhannon's application to statutes that do not use the phrase "prevailing party," arguing that the catalyst theory should remain viable under those laws. The Dialogue concludes that Buckhannon's primary impact will be to reduce settlement options and therefore increase costs for both plaintiffs and defendants of litigating and settling citizen enforcement and judicial review actions under statutes that provide for payment of attorneys fees under the "prevailing party" standard.

The author is an Associate Professor of Law at Tulane Law School and directs the Tulane Environmental Law Clinic.

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