Does Buckhannon Apply? An Analysis of Judicial Application and Extension of the Supreme Court Decision Eighteen Months After and Beyond

TABLE OF CONTENTS I. Introduction II. Buckhannon: Facts and Decision A. The "American Rule" B. The Facts C. The Decision III. Post-Buckhannon: The Issues Now Before the Courts A. Issue I: The Extension of Buckhannon to Other Fee-Shifting Statutes 1. The Extension of Buckhannon to Other "Prevailing Party" Statutes a. Civil Rights Attorney's Fees Awards Act of 1976 ([section] 1988) b. Individuals with Disabilities Education Act c. Equal Access to Justice Act 2. The Possible Extension of Buckhannon to Statutes Using the Root Word "Prevail" a. Footnote Four b. "Prevail" as the Operative Word c. Buckhannon's Criticisms Exist in the "Substantially Prevailing" Framework d. "Explicit Statutory Authority" e. Applicability of Ruckelshaus f. Conclusion: Whether Buckhannon Extends to Fee-Shifting Statutes Employing the Root Word "Prevail" 3. Does Buckhannon Have a Limit? The Possible Extension to Non-"Prevailing Party" Statutes a. Ruckelshaus b. Pennsylvania B. Issue II: Judicial Recognition of a Plaintiff's Level of Success 1. A Brief Introduction to Buckhannon's Levels of Success 2. Drawing the Line a. The Majority View b. The Minority View IV. Conclusion I. INTRODUCTION On May 29, 2001, the Supreme Court of the United States issued Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources. (1) Many attorneys, especially those representing the public interest, had been nervously awaiting the results. In what will probably become known as the most significant attorney's fees decision of the generation, the Supreme Court overturned virtually every federal jurisdiction regarding the legality of awarding attorney's fees to a "prevailing party" under the "catalyst theory." However, the Court went further, strongly hinting toward the possible invalidation of the rule, previously approved in every jurisdiction, that a plaintiff can "prevail" and collect attorney's fees by obtaining a favorable settlement. As a result of Buckhannon's potentially far-reaching implications, nearly every public interest attorney must now consider the question: "Does Buckhannon apply to my case?" In light of Buckhannon, many new legal issues have arisen. What categories of successful plaintiffs now qualify for fees under fee-shifting statutes? Can a successful party of a private settlement still qualify as a "prevailing party"? Is Buckhannon's rule limited to the two "prevailing party" fee-shifting provisions specifically at issue, or does it extend to fee-shifting statutes that use modifying terms such as "substantially prevailing party?" If the latter, which statutes with provisions employing similar "prevailing party" language will be affected? This note attempts to fill Buckhannon's photo album with snapshots of its first eighteen months of life and beyond, covering all of its trials and tribulations through late November 2002. Section II briefly describes the facts of the case and provides an analysis of the Supreme Court's decision. Section III divides the post-Buckhannon issues into two categories. First, it generally discusses the applicability of the decision to other fee-shifting provisions in statutes such as the Equal Access to Justice Act (EAJA), the Individuals with Disabilities Act (IDEA), the Freedom of Information Act (FOIA), the Endangered Species Act (ESA), the Clean Air Act (CAA), and the Clean Water Act (CWA) with particular attention paid to the different fee-shifting language each employs. Second, it analyzes lower court decisions with respect to the particular level of success a litigant must achieve before an award may be given. …