Transcript

IN THE SUPREME COURT OF THE UNITED STATES

LOWELL D. HEWITT, ET AL., Petitioners v. AARON HELMS

No. 85-1630

March 4, 1987

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:51 a.m.

APPEARANCES:

THOMAS G. SAYLOR, JR., ESQ., First Deputy Attorney General of Pennsylvania, Harrisburg, Pennsylvania; on behalf of the Petitioners.

LAWRENCE G. WALLACE, ESQ., Deputy Solicitor General, Department of Justice, Washington, D.C.; as amicus curiae supporting Petitioners.

ROBERT HAROLD VESELY, Williamsport, Pennsylvania; on behalf of the Respondents.

PROCEEDINGS

11:51 a.m.

CHIEF JUSTICE REHNQUIST: Mr. Saylor, you may proceed whenever you are ready.

ORAL ARGUMENT OF THOMAS G. SAYLOR, JR., ESQ. ON BEHALF OF THE PETITIONERS

MR. SAYLOR: Mr. Chief Justice, and may it please the Court:

The issue in this case, simply stated, is whether a civil rights claimant who wins nothing in the course of his lawsuit is entitled to attorney's fees. The answer simply is no.

The facts of this case are as follows, Your Honors. Aaron Helms, a state prisoner, was found guilty of prison misconduct as a result of his involvement in a prison riot. In a Section 1983 action brought against state corrections officials, Helms challenged this finding of guilt which had been based on information supplied by a confidential informant on due process grounds.

Helms sought equitable relief and money damages. While the action was pending in the district court, Helms was paroled from prison. The district court entered summary judgment for the state officials and the Third Circuit Court of Appeals reversed.

The circuit court remanded the case to the district court to determine the issue of petitioner's claim of official immunity, and also to determine the appropriateness and availability of the relief requested by Helms. On remand Helms abandoned any claims other than his request for damages.

The district court granted judgement for the officials, finding them to be immune from liability for damages, and the court of appeals affirmed. Helms then petitioned for attorney's fees which the district court denied, finding that Helms had not prevailed in this litigation.

The court of appeals reversed and awarded fees, concluding that its statement of the law on prison informants in its first opinion was sufficient to qualify Helms as a prevailing party under the Civil Rights Attorney's Fees Awards Act.

In addition, the court of appeals directed the district court to determine whether Helms' suit was a catalyst for a state regulation addressing the use of informant testimony which was passed, or promulgated after judgment had been entered for the officials.

There are two major reasons, Your Honors, why a plaintiff like Helms should not be entitled to attorney's fees. First of all, to award attorney's fees to a claimant who has obtained no personal benefit or no actual relief as a result of his suit would violate both the plain meaning of the statute, as well as the intent of Congress.

QUESTION: Was there ever a judgment that the use of secret testimony was illegal?

MR. SAYLOR: No, Your Honor. There was a statement of the law by the Third Circuit Court of Appeals on that point, saying that the use of the informant testimony by the officials under the facts of this case was violative of Mr. Helms' due process rights.

No judgment, Your Honor; there was a remand at that time to the court of appeals to consider --

QUESTION: To the district court?

MR. SAYLOR: To the district court, I'm sorry, to consider petitioner's claim of entitlement to immunity based on the statement of the law articulated by the Third Circuit. It's really the first prong of the two-prong Harlow inquiry.

The court of appeals said what the law is and left it to the district court to determine whether that law was clearly established. Also, Your Honor, the court of appeals on remand --

QUESTION: What if the district court -- what did the district court hold on remand?

MR. SAYLOR: That the officials were immune. That was the only issue before the district court on remand.

QUESTION: Well, what it it had held that they were not immune? Then all the district court would have had to do was determine the damages?

MR. SAYLOR: Correct, Your Honor.

QUESTION: Because there would have been a judgment already -- it would have been required by the court of appeals' holding or opinion for the district court to say that the use of the secret testimony was violative of due process?

MR. SAYLOR: On remand, Your Honor, the court of appeals instructed the district court to enter summary judgment for Helms unless it found the officials to be immune.

QUESTION: Right, right.

MR. SAYLOR: And it also --

QUESTION: So that, the district court had nothing more to do with the law?

MR. SAYLOR: That's correct, except to determine whether that law was clearly established at the time of the --

QUESTION: Exactly, exactly. And if it had found -- if they had found no immunity it would have gone on to determine damages, wouldn't it?

MR. SAYLOR: Correct. It would have entered summary judgment for Helms and determined damages.

QUESTION: You say that isn't equivalent to his having obtained a declaratory judgment?

MR. SAYLOR: Not even close, Your Honor. The court didn't enter judgment. It didn't direct the district court to enter judgment. It told the district court on remand to determine the appropriateness and the availability of the requested relief.

It expressed no opinion.

QUESTION: But if no immunity -- you enter summary judgment --

MR. SAYLOR: On the damage issue, not a declaratory judgment.

QUESTION: As a predicate to -- before you order damages you have to find that somebody has done something wrong.

MR. SAYLOR: You have to determine the law applicable to the facts.

QUESTION: And the court of appeals determined it.

MR. SAYLOR: Right.

QUESTION: Okay.

MR. SAYLOR: Favorable decision on the law, a far cry from declaratory judgment. Declaratory judgment, Your Honor, you can enter, you can enforce, you can execute on it, you can appeal from it.

QUESTION: On that point, General, will you just refresh my recollection. The secret testimony, informants' testimony had been used in the disciplinary proceeding for what purpose?

MR. SAYLOR: To convict him of prison misconduct, Your Honor, based on his involvement in a prison riot.

QUESTION: So, his prison record included in effect a finding of guilt of some kind of prison misconduct?

MR. SAYLOR: Correct.

QUESTION: And wouldn't that clear his record, though? Wouldn't the result of this proceeding have the effect of at least washing that off of his record?

MR. SAYLOR: Your Honor, Helms had asked for three forms of relief. He asked for money damages.

QUESTION: Right.

MR. SAYLOR: He asked for declaratory judgment, and he asked for an injunction enjoining prison officials from doing certain things, but also to expunge his record.

QUESTION: Correct.

MR. SAYLOR: He never got an injunction. In point of fact, on remand to the district court after the Third Circuit had stated the law, Helms abandoned his claim for expungement of his misconduct charge.

QUESTION: Well, he abandoned it, but isn't the effect of what the court of appeals held -- I mean, I can't imagine they still have on his record the fact that he is guilty of a crime for which there is no evidence, or do they?

MR. SAYLOR: I don't know.

QUESTION: I mean, even if they weren't ordered to take it out, wouldn't one, if later on it came up for review, say another charge or something, let's see how many prior violations do you have. Wouldn't as a result of this proceeding they would not be able to count this violation, would they?

MR. SAYLOR: I think that is a fair statement, Your Honor.

QUESTION: Isn't that of some benefit to him?

MR. SAYLOR: No, because he didn't get an expungement. He didn't get the injunction.

QUESTION: Because it wasn't a formal order of expungement, but as I understand you it was tantamount to an expungement?

MR. SAYLOR: No, Your Honor. There wasn't anything close to an expungement order. He never even asked for one.

When he went back on remand to the district court --

QUESTION: We are not communicating.

MR. SAYLOR: I don't -- a statement of the law --

QUESTION: We are not communicating. I thought you said a moment ago that he was found guilty of a misconduct charge, and that the effect of the court of appeals' opinion was, he could no longer be considered to have been guilty of that charge.

MR. SAYLOR: I am sorry. If I said that, I misstated myself. I don't know that the law articulated by the Third Circuit, I don't know that it would follow necessarily from the Third Circuit statement of the law that this misconduct charge could never be used against this man.

What I meant to tell --

QUESTION: That statement of law might be wrong, might it not? You had no opportunity to appeal it, whereas if a final judgment had been based upon it you would have had an opportunity to appeal it?

MR. SAYLOR: That is correct. You appeal from judgments, Your Honor. And to try to be fully responsive to your question, I don't think there was any collateral consequences, Your Honor, of this misconduct charge.

I don't think the State could have used it in any way against this man.

QUESTION: Is he incarcerated again?

MR. SAYLOR: I saw a reference to that in respondent's brief, Your Honor. We did check in anticipation of the argument and found out that in point of fact he has been returned -- he is back in prison.

QUESTION: He is back in what?

MR. SAYLOR: He is back in prison, Your Honor.

CHIEF JUSTICE REHNQUIST: We will resume at 1:00 o'clock.

(Whereupon, at 12:00 o'clock noon, the Court recessed, to reconvene at 1:00 o'clock p.m. this same day.)

AFTERNOON SESSION

12:59 p.m.

CHIEF JUSTICE REHNQUIST: Mr. Saylor, you may proceed.

ORAL ARGUMENT OF THOMAS G. SAYLOR, JR., ESQ. ON BEHALF OF THE PETITIONERS - RESUMED

MR. SAYLOR: May it please the Court, Justice Stevens asked a question. I want to make sure that I was clear enough on the chronology, Your Honor.

Prisoner Helms was released from prison shortly after he filed this lawsuit. You had asked about the effect of this misconduct conviction. So, as I said, he was out of the prison population. It wouldn't have affected him, this misconduct charge.

QUESTION: Well, I guess he's back in now.

MR. SAYLOR: That's my understanding, but he was reincarcerated after this litigation had been concluded, even the fees portion, Your Honor.

QUESTION: So, what you are saying is, even if one could construe the proceedings as removing the stigma of conviction, whatever it is, it really wouldn't have made him a prevailing party because he had no interest in the nature of his prison record after he was released?

MR. SAYLOR: Correct, Your Honor.

Your Honors, if you accept Helms' position, it is going to encourage of necessity litigation beyond the point where the results have any effect on the relief available to the parties. Appeals are going to be taken from statements of the law merely because defendants want to avoid liability for attorneys' fees. Or conversely, I guess you could say because attorneys for the plaintiff want to recover fees even though there is no effect on the relief available to their clients.

QUESTION: Well, that won't really happen. I think the result is quite different from that. They won't be -- you're not able to appeal a statement that has no operative effect.

It isn't that people will appeal it. It is that they won't be able to appeal it and will get stuck with the attorneys' fees.

MR. SAYLOR: Yes, Your Honor.

QUESTION: I think that's right. This couldn't have been appealed, could it?

MR. SAYLOR: Well, we could have petitioned for certiorari.

QUESTION: Well, we wouldn't have taken it. It wasn't final.

MR. SAYLOR: In effect it couldn't have been appealed.

QUESTION: Of course, we took one part of the case on petition for certiorari when it was not final.

MR. SAYLOR: Yes, Your Honor, the administrative custody issue. I think that the arguments that I have made are particularly relevant, Your Honors, in cases involving governmental immunity, which is based on the sound idea that government officials should be free to vigorously pursue their duties without the fear of monetary awards, whether those awards take the form of damages or of fees.

Again, at least in some instances if you award a plaintiff like Helms attorney's fees, officials are going to be litigating statements of law despite their entitlement to immunity even where there is no effect on the relief available to the parties.

In the absence of liability for damages and in the absence of the entry of any other relief, a government official's immunity is seriously weakened if they are nonetheless held liable for attorney's fees.

As this Court has pointed out, as recently as in the unanimous decision of Kentucky versus Graham a liability on the merits and responsibility for fees go hand in hand. Where defendant has not been prevailed against, either because of legal immunity or on the merits, Section 1988 does not authorize a fee award against that defendant.

It would be unfair and unjust and a disservice to the very important principle of qualified immunity to permit an award of attorney's fees against state officials who are found not liable to the plaintiff.

We urge this Court to reverse the court of appeals.

QUESTION: May I ask one other question. This was not a class action, was it?

MR. SAYLOR: No, Your Honor.

QUESTION: And when we reviewed the custody issue, had he already been released from prison?

MR. SAYLOR: Oh, yes, Your Honor. He was released shortly after he initiated this lawsuit.

QUESTION: I guess we -- did we review a moot case then? If he was out of prison --

MR. SAYLOR: No, Your Honor, because his claim for damages was still clearly alive.

QUESTION: But the administrative custody issue, did that involve the claim for damages or was that injunctive relief?

MR. SAYLOR: Yes, it did, Your Honor. He claimed damages on two violations.

QUESTION: Right, okay.

QUESTION: Was the case less than final when we took it the first time around?

MR. SAYLOR: Was it --

QUESTION: Was it less than final? The Chief Justice said that we took it although it wasn't final. Had there been no adjudication of the damages yet?

MR. SAYLOR: That's correct. The court of appeals, Your Honor, had remanded the case to the district court but in the meanwhile this court granted certiorari to review the court of appeals' finding of the law on the administrative custody issue.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Saylor.

We will hear from you now, Mr. Wallace.

ORAL ARGUMENT OF LAWRENCE G. WALLACE, ESQ. AS AMICUS CURIAE SUPPORTING PETITIONERS

MR. WALLACE: Thank you, Mr. Chief Justice, and may it please the Court:

The civil rights attorney's fee provision and other fee award statutes enacted by Congress provide for the award of attorney's fees to prevailing parties as an incident of litigation in which those parties succeed on the merits of their claims. These statutes are not intended to exalt attorneys' fees into a self-generating force that will drive the merits litigation or transform the nature of the merits litigation.

That is the basic theme of the brief that we have filed, and we believe a fundamental principle reflected in this Court's decisions under the attorneys' fees statutes, and preservation of that principle requires in our view insistence that the statutory term "prevailing party" be given meaningful and manageable content.

To be a prevailing party, the plaintiff must receive some practical relief or benefit for himself on the merits of his claim, whether by judgment, by settlement, by consent decree or by voluntary action taken by the defendant, and here the respondent did not receive any such benefit or relief.

His damages claims were held barred by immunity, and he failed to pursue any of his equitable claims presumably because they were moot since he was no longer in prison. Now, it is true that the court of appeals said on his first appeal that his rights had been violated but it did not rule on whether he was entitled to any relief.

This Court's decisions make clear that a litigant is not automatically entitled to equitable relief, whether declaratory relief or injunctive relief, merely because a court agrees with his contention on the merits. A judgment in his favor may nonetheless be precluded by mootness, by lack of standing, by case of controversy limitations, by equitable considerations.

QUESTION: -- directed the entry of a declaratory judgment in his favor --

MR. WALLACE: Well, then it would have ruled that he was entitled to relief and I think we would have a substantially different --

QUESTION: No, no, but no other -- is a declaratory judgment by itself without any claim for damages a basis for a fee?

MR. WALLACE: It could be a basis for a fee. That would then bring in the criteria that this Court talked about in Hensley against Eckerhart of whether he prevailed on a substantial part of what he was seeking.

Of course, that would have been a quite different ruling. What he got from the court of appeals ultimately was no different than if the district court in the first place had rejected his claim on grounds of immunity and mootness and the court of appeals had merely affirmed that but citing dictum about, you know, if they weren't barred by mootness and immunity we think he would indeed have a meritorious claim and his rights were violated.

QUESTION: Mr. Wallace, I am right here.

Isn't it true that in some of our case we have said that requests for declaratory judgments are subject to the same limitations as requests for injunctions; that is, that you don't just simply come in and say, I wanted that declaration of the law, period.

MR. WALLACE: Exactly so, Mr. Chief Justice. I have many of them in hand here. It's just what I had in mind.

QUESTION: But before you get them all out here, he got more than a declaration of law. Didn't he get a declaration that the factual basis for the finding of misconduct was unconstitutionally obtained?

MR. WALLACE: That is -- one could call it a declaration. The court of appeals subsequently said it was a declaration. But it was the functional equivalent of saying the same thing in dictum, as I said if the district court had in the first place rejected his claims on grounds of immunity and mootness and then he had appealed to the court of appeals and they affirmed that judgment but said in the opinion that were it not for that, it's true that he was barred, it's the functional equivalent.

They never ruled that he --

QUESTION: I think that overstates it a little. That overstates it a little. It's more than that, surely.

It is at the time it is pronounced an operative judicial act that has real force, unlike a dictum, right?

MR. WALLACE: It remanded the case for a determination of the --

QUESTION: And is it not true that it is also a judicial statement that could have been made the subject of a petition for certiorari to this Court if you wanted to review it, if Pennsylvania wanted to.

MR. WALLACE: It could have.

QUESTION: And there would have been no jurisdictional objection even though it would have been non-final and as a matter of discretion we probably would have denied it.

MR. WALLACE: It is equally true that a petition for certiorari before a judgment could have been filed before the court of appeals had ruled at all. But it is hard to persuade the Court to grant review in an interlocutory posture.

QUESTION: But they did in this very case, at that very time --

MR. WALLACE: The Court did -- in this very case with respect to an issue that it concluded warranted review, but that is a rather exceptional circumstance. It does happen.

QUESTION: Well, all we did was we granted certiorari from a judgment of the court of appeals.

MR. WALLACE: That is correct.

QUESTION: And before it was final, but there is no need for finality from the federal court.

MR. WALLACE: That is correct. That is correct. There was a grant of certiorari.

QUESTION: If the same thing happened in a court system, in a state court system and the same thing happened at the intermediate state court level and then it went down to the court of first instance, there would have been no way unless the Supreme Court of the state had -- and was as liberal as we are on interlocutory appeals, there would have been no appeal of right of that dictum, in any case.

You can certainly say that, but the person who would be socked with the attorney's fee would have no way of appealing the correctness of the statement that is the basis for the fee.

MR. WALLACE: That is correct, Mr. Justice, nor would there have been any right of review from this Court in the hypothetical case I have posited where it was purely dictum by the court of appeals which was affirming the rejection of his claim but which I think is the functional equivalent for purposes of whether he was a prevailing party because he got no more and no less than he would have gotten in that situation.

QUESTION: And they should have given a declaratory judgment?

MR. WALLACE: Well, then he would have prevailed to that extent, because the --

QUESTION: Wouldn't he be entitled to --

MR. WALLACE: The court would have ruled that he was entitled to a declaratory judgment, then.

QUESTION: Would he then be entitled to attorney's fees?

MR. WALLACE: He would at least be entitled if he met the --

QUESTION: So, the magic words are, he should have granted?

MR. WALLACE: The court of appeals --

QUESTION: The court said that he was entitled to it. It didn't say declaratory judgment, but it said he was entitled to relief.

MR. WALLACE: Well, they --

QUESTION: Are we quibbling on words?

MR. WALLACE: No, Mr. Justice, because by the time the court of appeals ruled, he was not in jail and there was a serious question about whether a declaratory judgment should issue on the supposition that he might commit another crime and go back to jail sometime in the future.

Well, the court of appeals never tried it out. They never ruled on that. They never said he was entitled to relief. That's my point.

QUESTION: They said he was entitled -- they didn't say injunctive relief or declaratory judgment.

MR. WALLACE: That's right.

QUESTION: But he was entitled to relief.

MR. WALLACE: Well, they didn't say he was entitled to relief. They said his right had been violated. That's different.

QUESTION: It surely is, in words.

MR. WALLACE: Well, they said his right had been violated and he'll get damages unless there's immunity. That's what they said.

QUESTION: I don't read it that way. You could be right.

QUESTION: Mr. Wallace, you really have two separate theories, as I understand it. One is that he's out of jail and so therefore even expungement wouldn't have done him any good.

Secondly, even if he were still in jail, this is not quite as good as declaratory judgment. Is that right? You have two separate arguments?

MR. WALLACE: Yes. I would say my second point is understated by saying it's not quite as good. I don't think he was entitled to a declaratory judgment because his case was moot, in seeking equitable relief.

QUESTION: You don't think if he had asked for it, that he could have had that order expunged, the misconduct?

MR. WALLACE: Probably not because he was no longer in jail and the only basis on which his case would not be moot would be for the court to be willing to assume he might commit another crime and go back to jail.

QUESTION: Or he might be asked to fill out an employment application on, "what were your misconduct violations in jail." And he'd say none in one case, and he'd say in the other case, "I beat up the guard," or whatever it was.

That's not enough?

MR. WALLACE: I don't think so.

QUESTION: Mr. Wallace, what about the opportunity for gamesmanship? That troubles me a little bit here. You get a remand from a court of appeals and you know that the only thing that's left to be litigated on the remand is something you're going to lose on.

Let's assume that all that had been asked was either an injunction or a declaratory judgment, so you immediately amend the prison regulations so the thing is moot by the time it gets to the district court. That's a way of avoiding paying the attorney's fees, for somebody who has basically beat you fair and square.

MR. WALLACE: Someone can be a prevailing party if the defendant has taken voluntary action that moots out his claim. We readily concede that and the cases establish that.

But, the catalyst concept should not be extended to a situation where it has no effect on his litigation and he didn't prevail in any way, and it doesn't extend the rule more generally that he prevailed on.

QUESTION: But he was paroled and that is what mooted his claim, wasn't it? He was paroled; isn't that what largely mooted the claim?

MR. WALLACE: Yes.

QUESTION: And I take it that was -- they didn't have to parole him?

MR. WALLACE: Well, but those standards have nothing to do with whether he had a pending claim. That is a determination made wholly independently of the lawsuit.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Wallace.

We will hear from you now, Mr. Vesely.

ORAL ARGUMENT OF ROBERT HAROLD VESELY ON BEHALF OF THE RESPONDENT

MR. VESELY: Mr. Chief Justice, and may it please the Court:

The case before you today is one dealing with statutory construction, and in the process of statutory construction there are several things to look at, among which are the statute itself and the legislative history.

Obviously from the discussion that's gone on this morning, we are well aware that there is nothing in the statute itself that is going to answer the question before this Court. However, we feel there is strong language in the legislative history to indicate that the Third Circuit's decision was correct, and I will attempt to address that language today.

There are three basic focuses in the language of the legislative history as to when we decide to shift attorney's fees. Those three focuses are the vindication of rights, constitutional or statutory; when an individual functions as a private attorney general, enforcing congressional policies; and third, when the person has effectively secured compliance with the federal or constitutional laws.

Where these policies have been furthered, Congress has made the decision that we shift the burden or the costs of establishing that violation from the person who was subject to the violation to the violator. That is the pure and simple language we believe is involved in the legislative history.

As to the issue of the vindication of rights, this language is repeated constantly throughout the legislative history and it is repeated, not to be too picayune about this but at least nine times within the language of the legislative history.

Significantly, what is not contained in the legislative history are concepts of personal benefit and formal relief. One of the issues with regard to the vindication of constitutional rights is the concept and the expressed language of the fact that when an individual succeeds on an important matter in the course of litigation, that is a point at which Congress as decided it is proper to shift the costs --

QUESTION: You are talking about expressed language of legislative history?

MR. VESELY: Yes. I am talking about language in the legislative history.

QUESTION: And not --

MR. VESELY: Words, "important matter" in the course of litigation are the specific words that I am referring to.

QUESTION: So, now we talk about expressed language in the statute but about expressed language in the legislative history?

MR. VESELY: Well, the reason we have to go back to that, Your Honor, I believe is if we look at the statutory language. Obviously the concept of "prevailing party" is the concept that all the courts have been struggling over, so the word "prevailing" does not have a finite definition.

The only point at which there is reference to that specific word "prevailing party" in that specific context is they state, "A party can be perceived to have prevailed when he succeeds on an important matter in the course of litigation or he can prevail without obtaining -- when he vindicates rights without formally obtaining relief."

That is the section in which they use the word "prevail" in the legislative history, and that is why I have focused upon that area.

QUESTION: Well, that may well have been what the Committee in question had in mind. Do you think that it's clear that the entire House, much less the other House, had that in mind just from the words "prevailing party"?

Do you think the word is that ambiguous to --

MR. VESELY: Yes, I think the word is in fact that ambiguous.

QUESTION: "Prevailing party in litigation"?

MR. VESELY: Yes.

QUESTION: I wouldn't have thought that.

May I ask you this, what happens to the doctrine of immunity of federal officials such as was involved here if you know you can get a judgment for at least your attorney's fees so long as you get a court to determine the issue of the merits before it determines the issues of official immunity?

Doesn't it in effect invite lawsuits, which is just exactly what the statute -- the doctrine of immunity is designed to forestall?

MR. VESELY: Well, I don't think it invites lawsuits because what in fact invites lawsuits is the fact that someone's constitutional rights have been violated. The reality of the situation will be that where that has happened all you are going to require is that the same actions to accomplish the exact same result will be brought as class actions and so you don't decrease the litigation.

All you do is in fact -- you have the exact same litigation and the people are going to be subject to the same number of suits. You just restructure the way it's brought.

Maybe I am not -- are you asking me about the damage concept?

QUESTION: Yes. I'm asking about the damage concept.

MR. VESELY: The damage concept in that regard, it's the concept of attorney's fees is a shifting of cost and I answer you this way because the issue of damages is divorced from the decision that Congress made as to the shifting of cost.

In other words, they didn't decide because someone was awarded damages that you shift the costs over. Once you establish the violation of constitutional right, that's why you shift costs.

QUESTION: But the doctrine of official immunity, I think means that an officer when he performs his duties shouldn't have to worry about having to pay a lot of money out of his own pocket. But you are now saying that he does have to worry a lot -- he at least has to pay the attorney's fees on his side and the attorney's fees on the other side, even if he has that immunity, so long as the Court reaches the merits before it reaches the immunity issue.

MR. VESELY: I think the simple answer to that was the answer that was given by this Court in the Pulliam versus Allen case. That may be a logical concern, but that's a decision that Congress has made and it's the Congress that these people should repair if they don't agree with that concept, and not to this Court.

QUESTION: The very fact that the conclusion does prove troubling is some reason to look closely at whether Congress really mandated it. And certainly it didn't mandate it in the statutory language.

I'm not sure that I would be persuaded simply by quotations from the legislative history in one House, if the result seems that illogical.

MR. VESELY: Well, I don't believe it is in fact that illogical, because what you have is, you have an expressed desire by Congress that in these certain situations where these policies have been furthered, we are going to shift the costs.

Now, they then leave it to the states to decide how they are going to deal with that thing, but it's really in essence, it's a legislative determination and I don't think a judicial determination. Congress had the power to do it.

QUESTION: And the Congress exercised that power by saying that a prevailing party should recover attorneys' fees.

MR. VESELY: Yes.

QUESTION: But that's what Congress said.

MR. VESELY: Yes.

QUESTION: And you're asking us to draw what may seem to some of us quite an illogical conclusion from it, and you are saying that Congress directed us to do it.

Well, Congress didn't direct us to draw that in the language of the statute.

MR. VESELY: No, I agree that in fact, if you read the statute, that very little guidance is going to be given to the Court and that's why I have gone to the legislative history as really the only other alternative we have to, you know, receive guidance from Congress on this issue.

QUESTION: Mr. Vesely, if the court below had decided the question of immunity first and had found that the officers had immunity for their actions, I suppose you wouldn't be here claiming attorney's fees?

MR. VESELY: That is correct. If they had not made a final determination on the merits as to the fact that they violated his constitutional rights.

QUESTION: Well, why should the result be any different if at the end of the line they determine there is immunity, but in the meantime have something to say about the merits? It's just kind of illogical.

MR. VESELY: I am not sure I understand Your Honor's question.

QUESTION: Well, suppose at the end of the line when the case is all over and done with, the court decides the officers are immune.

MR. VESELY: Yes.

QUESTION: But in the process of doing that makes comments in the course of the opinion about the merits of the underlying violation. Do you think you are entitled to recover them?

MR. VESELY: I think in situations where they have -- you have to remember that the nature of how the judgment was -- I think in situations where they have in fact made a judgement on the merits as to the constitutional violation, yes, I think in every one of those circumstances attorneys' fees should be awarded regardless of concepts of immunity.

QUESTION: What do you mean by a judgment? I mean, if you said a judgment, you know, in the sense that Mr. Wallace was using it I would understand what you meant. But when you say a judgment on the merits, it could be dictum.

MR. VESELY: Well, the dictum then wouldn't be a judgment on the merits. I mean, in other words the merits wouldn't have been presented to the case. It wouldn't have been a case at law, a case of controversy, I presume.

QUESTION: But all these are live cases of controversy. You go to trial on these 1983 cases and you say, "My constitutional rights have been violated."

MR. VESELY: Yes.

QUESTION: And the officer comes back and says, "But I'm entitled a defense of good faith immunity."

Now, the court has its option in whether to talk first about the merits or first about immunity. Maybe most courts go directly to immunity, but we've got a situation were where in the process of handling the case the Court had something to say about the merits.

Now, why should that determine, at the end of the line, whether attorney's fees are recovered or not?

QUESTION: Mr. Vesely, I think we have held here that the immunity defense is no bar to an injunction.

MR. VESELY: Yes.

QUESTION: And I suppose it isn't any bar to a declaratory judgment.

MR. VESELY: I believe that both those were involved in the Pulliam case.

QUESTION: And the court of appeals here said that this complaint included a claim for a declaratory judgment. Did it?

MR. VESELY: Yes. In fact, the initial thing requested in the complaint for relief, and that was in fact specifically requested from the Third Circuit on appeal.

QUESTION: So even if there had been a holding of immunity that wouldn't have entered the case?

MR. VESELY: No. That was perhaps my inarticulate statement as to the nature of why attorney's fees are being awarded. They aren't being awarded for damages. They are being awarded because of a declaration of constitutional rights.

QUESTION: But what do you think wasn't mooted out by his release?

MR. VESELY: What wasn't mooted out?

QUESTION: Yes.

MR. VESELY: His damage claim was not mooted out.

QUESTION: Was not mooted out by his release?

MR. VESELY: Yes, and this Court has repeatedly held that you can receive a declaratory judgment as a predicate to a damage claim.

QUESTION: You almost have to -- you almost have to whether you call it a declaratory judgment or not. You have to establish what the law is as a predicate for a damage suit.

MR. VESELY: Yes, you do, but it is possible, one of the ways that that could be avoided would be, even if -- a 12-B motion, I would think, would be the way around it, to basically say under the facts -- even if we assume everything he said is true, he would have qualified immunity.

QUESTION: Well, what if a plaintiff in a case similar to this sues for damages and says, my rights have been violated by these prison regulations or prison practices and I want a judgment for damages. And the state comes in and says, we think you are wrong on the merits. We also think we are entitled to immunity.

And the district court says, yes, your rights were violated but we think the defendants are entitled to official immunity. Now, can the defendants appeal from that judgment?

MR. VESELY: Yes, I believe they can.

QUESTION: Under what theory? I thought you had to be a losing party to appeal from a judgment.

MR. VESELY: No, I don't believe that that's -- for one, if we consider that to be a declaratory judgment, the Declaratory Judgment Act specifically says that declaratory Judgments are reviewable.

However, if we do not specifically consider a declaratory judgment, I believe this Court has held, where you can show that a decision that has made -- even where the ruling has been in your favor is appealable for purposes of -- if it has adverse consequences against you and in fact, then you still have a live case or controversy.

QUESTION: So, then we are going to expand the class of appealable orders from the district court by virtue of the potential for attorneys' fees?

MR. VESELY: Well, I don't necessarily think -- I am not saying we expand that. My argument is that that already exists, and I would point out that the counterpoint to that is, Aaron Helms certainly walked into this case well aware of qualified immunities, and he specifically sought declaratory relief because until Aaron Helms walks in there and obtains declaratory relief this policy isn't going to change.

You have to remember that the person who is arguing in favor of this policy is the person who is supposed to enforce the laws. But for Aaron Helms coming in, nobody in that state is going to walk in there and try and get this policy changed.

That's a very important concept, I think, and that's why Congress has said in this situation, even though it may at times seem harsh, we are going to shift that cost.

QUESTION: You would also agree, wouldn't you, that you are going to have more appealable orders under your theory than under your opponent's theory, officials are going to be able to appeal more often and will probably be motivated to appeal more often?

MR. VESELY: Well, I -- the reality is, I would have to say yes. However, I think there certainly is an indication that their motivation as to appealing these types of orders does not solely exist for fear of attorneys' fees, because in fact the order that was ultimately appealed to this Court and the one that they chose not to appeal was in fact the final decision.

The one that they chose to appeal to this Court was not in fact the final decision. All the Court had done in that circumstance was remand it for a determination, a factual determination, if his rights had been violated. And they chose not to -- there was nothing left to do once they made a decision on the issue that we are here for today. The facts were admitted and the court took note of that in its decision.

I would like to stress the concept, which I have already done, of fee shifting because it is a policy decision again that is made by Congress and again, I think the problem comes when we try to equate what has to happen here with formal relief and judgments.

There is nothing in the legislative history that indicates that they contemplated formal relief and judgments, and I think one of the most significant cases in the legislative history is the case of Richards versus Griffith Rubber.

That was a Title 7 case, and they use this case to show for the vindication of rights concept without formally obtaining relief, the individual received a determination that the practices that the employer was using violated her constitutional -- violated her statutory rights under Titlte 7.

She could not receive any relief because the employer was only doing it solely to comply with the state regulation. The state regulation subsequently changed. Despite the fact that there was no relief, despite the fact that the only thing that occurred in that situation was a finding of a violation of the statute, the court awarded attorney's fees.

One of the reasons I think this case is significant is that it is a fairly obscure district court case out of Oregon that they cited for this proposition, so they must have picked it for a reason and that's why we think that's an important case.

QUESTION: When this case was here before, he had already been released from prison?

MR. VESELY: That's correct.

QUESTION: And his only interest at that time in the case was the fact that there was a damages claim pending?

MR. VESELY: Yes.

QUESTION: He could at that time get no personal benefit out of the declaratory judgment phase of the case?

MR. VESELY: Well --

QUESTION: I think we noted, didn't we, at that time that the court of appeals had said that the secret testimony violated his rights?

MR. VESELY: Yes.

QUESTION: And then we remanded?

MR. VESELY: Yes.

QUESTION: Because that issue was still in the case and it might be a ground for damages?

MR. VESELY: Yes.

QUESTION: Well, but at that time, if his only interest was in the damages, how could he have gotten any benefit out of just the fact that the court of appeals had made this declaration?

MR. VESELY: Well, the simple answer to that, Your Honor, is I don't --

QUESTION: Do you have to get to the catalyst argument?

MR. VESELY: I don't find the vindication of my constitutional rights as not of personal benefit, and I think you have to -- to go along with the opposition's argument you have to make that determination that the thing that Congress, in fact, created this statute --

QUESTION: Well, why isn't the answer to that, that -- supposing there hadn't been a damages claim in the case?

MR. VESELY: Suppose there had not been?

QUESTION: Yes.

MR. VESELY: Yes.

QUESTION: Wouldn't the case have been moot?

MR. VESELY: Yes, it probably would have, Your Honor.

QUESTION: Well, whether or not the vindication of your constitutional rights as a personal injury, it would have been moot, the case would have been over?

MR. VESELY: It was not in this case.

QUESTION: Well, only because the damages were still alive, but aside from the damages, the declaratory judgment phase was really a dead issue.

MR. VESELY: Well, it's dead to the extent that it had already been decided.

QUESTION: He had been released.

MR. VESELY: He had been -- again, if you are going to say that there is no benefit in that --

QUESTION: Well, suppose here the -- suppose we just took the bull by the horns which sometimes we do, and said, well, it may be true the court of appeals said this or that but there's enough facts in the record for us to declare that this defendant is immune.

Suppose we had said that. Do you suppose you could have gotten attorney's fees?

MR. VESELY: I'm not --

QUESTION: Suppose at this Court we said that the damages claim is dead now because we say the defendant was immune.

MR. VESELY: And you say that in what context?

QUESTION: Right here in this court, when it was first here, when Hewitt against Helms was first here, we said the defendant is immune so the damages claim is no longer alive.

Do you think you could have gotten attorney's fees?

MR. VESELY: Yes, I think we should be entitled to attorney's fees.

QUESTION: Because?

MR. VESELY: Because in fact, the final judgment on the merits of that issue had been made by the Third Circuit. That remains the law of the Circuit.

QUESTION: You are out of jail and absent a damages claim it would have been moot.

MR. VESELY: Well, it would have been moot except that it was entered prior to that -- prior to your decision.

QUESTION: Mr. Vesely, I think there is some inconsistency in your answer. On the one hand you say, as I understand you correctly, that the vindication of your client's constitutional rights is sufficient to make him a prevailing party?

MR. VESELY: Yes.

QUESTION: But you acknowledge in questioning by Justice White that the vindication of your client's constitutional rights when he has no claim for damages is not sufficient to prevent the case from becoming moot.

Now, how can something that's not strong enough -- it doesn't take much to keep the case from getting moot. How can that be enough to make you a prevailing party if it isn't enough to keep the case alive?

MR. VESELY: It a decision has been made -- my answer is, if a decision on that issue was made prior to it becoming moot --

QUESTION: Well, but the question is whether there is not inconsistency between your concession that the case had become moot or would be moot as long as there was no viable claim for damage left.

You are saying that the interest in a vindication of constitutional rights on behalf of your client is not enough to save the case from becoming moot? I don't know how you can say that and also say it's enough to entitle you to fees.

MR. VESELY: If the seeking of a declaratory judgment --

QUESTION: Well, but you said your request for declaratory judgment would have been moot if you were not also asking for damages. You seem to have conceded that there's not enough left, that the interest in a declaratory judgment vindicating your client's rights was not of any benefit to your client after he was discharged on parole.

I have some question about whether that is right, but you seem to be willing to give it up.

MR. VESELY: I think I am misunderstanding Your Honor. Let me -- if I phrase it back -- are you assuming that I am saying that he could receive no benefit?

QUESTION: Well, if you are saying the case is moot, the reason it is moot is there is no adversary interested in the result of the case any more. If he has something of value he is seeking, namely a vindication of his constitutional rights, and if that's sufficient to justify the payment of fees, it is puzzling to me why you would concede that it's not sufficient to keep the case alive.

MR. VESELY: Well, I believe it is sufficient.

QUESTION: That's not the way you answered Justice White.

MR. VESELY: Perhaps I misunderstood him. I perhaps got bollixed up.

QUESTION: You said his interest in a declaratory judgment would not prevent the case from being moot. Now, you may be changing your mind, but you can't -- it doesn't seem to me you can both concede that and also say it's enough to make him a prevailing party.

MR. VESELY: The interest in --

QUESTION: The interest in vindicating his constitutional rights.

MR. VESELY: I am saying --

QUESTION: Which is what would support a declaratory judgment.

MR. VESELY: Yes, I would say that that would be adequate for standing purposes.

QUESTION: The case is dismissed in the district court and the plaintiff appeals his 1983 loss to the court of appeals, and then while it's pending in the court of appeals he is released from prison, and all he ever asked for, let's assume, is a declaratory judgment in the district court. That is all he ever asked for.

He is then released while this case is pending on appeal. Now, you have at least twice, earlier in your argument, said the case would have become moot if all it was was a declaratory judgment request.

Do you think it would not be moot now?

MR. VESELY: Well, I think that he could bring a declaratory judgment action for violation of his constitutional rights against the individual. I'm not saying he could bring it against the state.

QUESTION: Well, you analogize it, then, really to an action for damages rather than to an injunctive action?

MR. VESELY: I'm not sure what you mean.

QUESTION: Well, I've always thought that a declaratory judgment was kind of over on the same side of the line with an action for an injunction on the equity side, so to speak, and the damages action is on the other side.

But you say that even though the thing is moot and he is not getting damages he could still get a declaratory judgment?

MR. VESELY: No, no, no. Obviously if it's moot he can't get a declaratory judgment. That's gone.

QUESTION: But you say that he can appeal and ask for a declaratory judgment under the circumstance Justice White gave you?

MR. VESELY: In other words, he could appeal, we found qualified immunity --

QUESTION: Yes.

MR. VESELY: Then you have had a lower court decision finding qualified immunity?

QUESTION: Yes, the lower court says it doesn't make any difference whether it's a violation of the constitutional rights or not because I find as a matter of law there is immunity.

MR. VESELY: Right.

QUESTION: Can the plaintiff appeal from that and say, maybe there's immunity but I want a declaration of my constitutional rights?

MR. VESELY: My answer is yes.

QUESTION: Even though all he seeks is damages; even though all he sought in the lower court is damages?

MR. VESELY: He sought -- I thought you said he sought declaratory relief.

QUESTION: Okay. If he seeks both declaratory relief and damages --

MR. VESELY: Yes.

QUESTION: And the lower court says -- well, then the lower court would have to pass on the declaratory judgment issue, so that that, perhaps is a different question?

MR. VESELY: Right.

QUESTION: What if it passes on it and says, you don't get your declaratory judgment and you appeal, but then your client is released?

MR. VESELY: Then I appeal --

QUESTION: Doesn't it become moot?

MR. VESELY: I don't believe so, because we have a violation there and we are seeking a declaration of our rights.

QUESTION: What if your client brings an action which he has no standing to bring but the court in disposing of it says, we agree you've been done wrong, what the police did here was a violation of the Constitution; however you have no standing, suit dismissed.

Now, would that be a vindication?

MR. VESELY: I really can't perceive that situation but if it were a vindication of the constitutional rights and a court throws it out for no standing --

QUESTION: No, I can think of --

MR. VESELY: The court would have had no jurisdiction to enter the order. The order would have no force and effect.

QUESTION: Now, let's take the case where you think the Army should not be engaging in certain intelligence activities, or that the CIA should publish its expenditures, okay. And the Court says, as we have said, you have no standing to raise these issues.

But suppose the Court doesn't begin that way. It begins by saying, you're right, there seems to be a flat violation of the Constitution. Too bad, however, you have no standing to raise it.

Now, you're going to go out of that courtroom saying, you see, I've proven my point. Would you be able to get attorney's fees, in a case in which you had no standing?

MR. VESELY: In a case in which you had no standing I don't believe you would because the court would have had no jurisdiction to enter anything. In other words, it is a mere statement and it is not going to become necessarily the law of the circuit, for instance as the holding in this case did.

The point that I would like to get back to is that even in immunity situations, attorneys' fees are to be awarded and it's not -- and you have to differentiate damages from the concept of shifting the burden of establishing the violation. And I think this Court addressed that in Pulliam versus Allen and one of the cases that this Court noted in Pulliam versus Allen is the case of Pierson versus Ray.

That case specifically dealt not only with absolute judicial immunity but it also dealt with the lesser concept of qualified immunity and presumably if it implies that attorneys' fees can be awarded for declaratory relief in the case of absolute judicial immunity, it also applies in the case of qualified immunity and I would -- if you stand this case up against every purpose as expressed in the legislative history, the vindication of rights, the functioning as a private attorney general and the bringing of the State's action into compliance with the law, the facts of this case indicate that every single one of those policies was vindicated and furthered by this lawsuit.

Therefore, I think this is especially a case within which Congress intended the shifting of attorneys' fees and I would say that if the opposition does not agree with the concept the place to go, as this Court noted in Pulliam, is not to the Supreme Court of the United States but to Congress.

Thank you very much.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Vesely.

Mr. Saylor, you have six minutes remaining.

ORAL ARGUMENT OF THOMAS G. SAYLOR, JR., ESQ. ON BEHALF OF THE PETITIONERS - REBUTTAL

MR. SAYLOR: Briefly, Your Honor, in drafting the fee statute Congress struck a balance, and that is clear from the legislative history, between encouraging civil rights suits to vindicate rights, on the one hand, and fairness to the defendants that have to pay attorneys' fees on the other hand.

Congress didn't take the private attorney general concept to its logical extreme and it didn't say that all plaintiffs who bring non-frivolous claims are entitled to fees, nor did it say the plaintiffs who secure a favorable legal ruling are entitled to fees. What Congress did say is that in order to receive fees you need to prevail.

Helms didn't prevail. He got no damages. He got no injunction and he got no declaratory judgment or declaratory relief, and I think we need to be clear that what he got from the Third Circuit Court of Appeals was not relief.

The court said, "We therefore leave the issue of official immunity to the district court on remand." But it also said, "Further proceedings will also be required to determine the appropriateness and the availability of the requested relief."

In other words, they gave him no relief. They didn't come close to giving him relief, and they made it clear that if the man's going to get relief on his claims which are damages, injunction and a declaratory judgment that's going to be done by the district court.

You also need to understand, Your Honors, that shortly after Helms filed his suit he was parole from prison. That is the fact.

QUESTION: Suppose -- the new regulations were the result of his lawsuit? Would you think then that his release from prison -- say he was released from prison the same day that they adopted the new regulations so that he himself could never have gotten any particular benefit out of the new regs.

Now, I take it that it's your position, is it, that he's not entitled to attorneys' fees, even though it's clear that there's a connection between his suit and the new regs?

MR. SAYLOR: Under the facts of this case -- can I answer that in two parts, please, Your Honor? Under the facts --

QUESTION: I know you don't want to accept part of my --

MR. SAYLOR: I will answer your hypothetical first.

QUESTION: All right.

MR. SAYLOR: Yes, if the State changes its practices in response to a lawsuit so that the effect of that change or cessation is to moot plaintiff's claim, I think plaintiff is a prevailing party and entitled to fees.

QUESTION: Well, I know, but you still haven't answered my question. He is released from prison the day the new regs go in so he can, himself, never get any personal benefit.

I thought part of your theory was, at least the government's, that unless he himself is going to get a benefit from the result of his case he isn't entitled to fees?

MR. SAYLOR: That's correct, because he wouldn't have benefited nor would have any party who he represented, Your Honor. The only benefit, if there is arguable benefit, would be if non-parties with future grievances -- and Congress didn't say, we're taking the private attorney general concept that far.

QUESTION: So, even if he was the cause of the new regulations he gets no attorney's fee if he is released -- if he is released prior to the adoption of the regs, or at the same time?

MR. SAYLOR: Correct, Your Honor.

QUESTION: Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Saylor. The case is submitted.

(Whereupon, at 1:49 o'clock p.m., the case in the above-entitled matter was submitted.)