Trout v. Penn - Opposition

No. 08-1086

In the Supreme Court of the United States

YVONNE G. TROUT, ET AL., PETITIONERS

v.

B.J. PENN, ACTING SECRETARY OF THE NAVY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
MARLEIGH D. DOVER
MELISSA N. PATTERSON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals' holding-consistent with every other court of appeals to consider the ques tion-that Section 114(2) of the Civil Rights Act of 1991 (1991 Act) does not provide for prejudgment interest on a settlement award relating to conduct that preceded the 1991 Act's effective date conflicts with this Court's decision in Republic of Austria v. Altmann, 541 U.S. 677 (2004), interpreting the temporal reach of the Foreign Sovereign Immunities Act of 1976.

2. Whether petitioners should recover attorney's fees for unsuccessfully litigating their claim that Section 114(2) of the 1991 Act permitted an award of such pre judgment interest.

In the Supreme Court of the United States

No. 08-1086

YVONNE G. TROUT, ET AL., PETITIONERS

v.

B.J. PENN, ACTING SECRETARY OF THE NAVY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-14a) is reported at 540 F.3d 442. The opinion of the district court (Pet. App. 15a-34a) is reported at 464 F. Supp. 2d 25.

JURISDICTION

The judgment of the court of appeals was entered on September 2, 2008. A petition for rehearing was denied on November 19, 2008 (Pet. App. 41a). The petition for a writ of certiorari was filed on February 17, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

In 1973, petitioners brought a class action lawsuit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., alleging that respondents had engaged in gender discrimination. Pet. App. 2a-3a. After extensive litigation, the parties reached a settlement, which the district court approved on November 22, 1993. Under this 1993 consent decree, respondents agreed to pay petitioners backpay for the period 1970 to 1992. Id. at 3a. Under a 1995 stipulation, the parties explicitly re served the issue of whether petitioners were entitled to an award of prejudgment interest on back pay and on attorney's fees for the period before November 21, 1991, the effective date of the Civil Rights Act of 1991 (1991 Act), Pub. L. No. 102-166, 105 Stat. 1071. Pet. App. 18a. Section 114(2) of the 1991 Act (105 Stat. 1079) provides for the same award of prejudgment interest against the federal government in Title VII cases "to compensate for delay in payment * * * [as is available] in cases involving nonpublic parties." 42 U.S.C. 2000e-16(d). Before the passage of the 1991 Act, this Court had held that interest on attorney's fees was not available in ac tions brought against the government under Title VII, because Congress had not expressly waived the United States' sovereign immunity to such a claim. See Library of Cong. v. Shaw, 478 U.S. 310, 318 (1986).

In orders issued in 1998, the district court concluded that respondents were required to pay prejudgment interest on back pay and on attorney's fees for the pe riod prior to the passage of the 1991 Act. Pet. App. 18a. In 2001, the district court entered a final judgment awarding petitioners $8,627,276.50 in interest on back pay and $1,477,020.90 in interest on attorney's fees. Id. at 16a.

The court of appeals reversed. Trout v. Secretary of Navy, 317 F.3d 286, 292-293 (D.C. Cir.), cert. denied, 540 U.S. 981 (2003) (Trout IV). It concluded that its decision in Brown v. Secretary of Army, 78 F.3d 645 (D.C. Cir.), cert. denied, 519 U.S. 1040 (1996), was "dis positive" of petitioners' assertion that Section 114(2) re quired the Navy to pay prejudgment interest on back pay and on attorney's fees for the period before Novem ber 21, 1991. Trout IV, 317 F.3d at 287-288. The court noted the dual considerations motivating Brown: the rule of strict construction of waivers of sovereign immu nity and the "rule of no-interest against the sovereign." Id. at 287. The latter, the court reasoned, "provides an important backdrop against which Congress acts when it waives sovereign immunity," and thus, courts "must presume that when Congress promulgates a waiver of sovereign immunity, it knows which principles will gov ern [courts'] interpretation of the waiver." Id. at 290 (citing Brown, 78 F.3d at 650). Brown was further in formed, the court of appeals noted, by this Court's hold ing in Landgraf v. USI Film Products, 511 U.S. 244 (1994), which affirmed the "traditional presumption * * * 'against applying statutes affecting substantive rights, liabilities, or duties to conduct arising before their enactment.'" Trout IV, 317 F.3d at 291 (quoting Landgraf, 511 U.S. at 278).

The court of appeals rejected petitioners' attempt to distinguish Brown on the ground that respondents' liability here was not finally determined until the 1993 consent decree, which was after Section 114(2) became effective. Trout IV, 317 F.3d at 287-288. The court con cluded that "the conduct underlying the complaint" rather than the procedural posture of the case gov erned whether Landgraf's general presumption against retroactivity applied. Id. at 291. The court of appeals also reiterated its conclusion in Brown that there was "no evidence of congressional intent to apply [Section] 114(2) retroactively." Id. at 292. Thus, noting "the Su preme Court's instruction that a 'statement that a stat ute will become effective on a certain date does not sug gest that it has any application to conduct that occurred at an earlier date,'" the court of appeals held that the "district court erred in awarding prejudgment interest under [Section] 114(2) on backpay and attorneys' fees for periods prior to November 21, 1991." Id. at 292-293 (quoting Landgraf, 511 U.S. at 257).

Accordingly, because respondents had paid "interim attorneys' fees to counsel for the Trout class that is at tributable to litigation of the prejudgment interest dis pute, and because the final amount of costs and fees re mains to be determined," the court of appeals remanded "for final determination of the costs and fees owed to the Trout class." Trout IV, 317 F.3d at 293.

Petitioners filed a petition for a writ of certiorari, which this Court denied. 540 U.S. 981 (2003). This Court also denied petitioners' motion for leave to file a petition for rehearing, which articulated petitioners' theory that this Court's intervening decision in Republic of Austria v. Altmann, 541 U.S. 677 (2004) controlled the disposition of this case. 543 U.S. 976 (2004).

On remand to the district court and after the denial of petitioners' previous petition for a writ of certiorari, respondents moved for final determination of the attor ney's fees and costs owed to the plaintiff class. Pet. App. 21a. Respondents also requested that the district court order petitioners and their counsel to refund the excess interim fees and costs, with interest. Ibid. Notwith standing the decision in Trout IV, petitioners again sought prejudgment interest on back pay and on attor ney's fees for periods prior to November 21, 1991, ar guing-as they had in their unsuccessful motion to this Court-that Altmann demonstrated that Trout IV was wrongly decided. Id. at 22a.

The district court denied petitioners' motion, and granted respondents' motion for final determination of the fees and costs owed to petitioners. Pet. App. 29a- 31a. The district court further ordered petitioners to "refund $106,375.45 of the interim attorneys' fees and costs previously paid by the government in this action plus interest on that amount." Id. at 32a. The refunded attorney's fees and costs "relate[d] exclusively to the time spent and costs incurred [by petitioners] in connec tion with litigating the issue of the right to prejudgment interest for the period prior to the enactment of the Civil Rights Act of 1991." Id. at 22a.

The court of appeals affirmed. Pet. App. 1a-14a. The court rejected petitioners' assertion that because this Court held in Altmann that the Foreign Sovereign Im munities Act of 1976 (FSIA), 28 U.S.C. 1602 et seq., was applicable to conduct before its enactment, "Altmann now controls statutes that concern waivers of sovereign immunity" more generally. Pet. App. 6a. "It is clear," the court of appeals concluded, "that the Court's deci sion in Altmann was specific to the statute in that case." Id. at 9a (pointing to this Court's reliance in Altmann on "the history of foreign sovereign immunity" and Con gress' language in the FSIA's preamble). The court of appeals noted that this Court has since observed that its conclusion in Altmann that the usual presumption against retroactivity announced in Landgraf did not ap ply to the FSIA "turned on the peculiarities" of the FSIA. Id. at 10a (quoting Fernandez-Vargas v. Gonza lez, 548 U.S. 30, 38 n.6 (2006)).

The court of appeals further determined that peti tioners were not entitled to attorney's fees for unsuc cessfully litigating their claim that Section 114(2) ap plied retroactively and entitled them to claim prejudg ment interest on the settlement award for conduct

before the 1991 Act's enactment. Applying Hensley v. Eckerhart, 461 U.S. 424 (1983), the court concluded that petitioners' unsuccessful interest claim was distinct from their successful sex discrimination litigation, and was thus not eligible for an attorney's fee award. Pet. App. 13a. The court of appeals declined to resolve whether its review of the district court's distinctness determination was de novo or for abuse of discretion, concluding that under either standard, the claims were distinct. Ibid.

ARGUMENT

The petition for a writ of certiorari should be de nied. The decision of the court of appeals is correct, does not conflict with any decision of this Court or any other court of appeals, and does not warrant further review.

1. This Court previously denied petitioners' petition for a writ of certiorari seeking review of the court of ap peals' determination that Section 114(2) of the 1991 Act does not give them a claim for prejudgment interest on backpay and on attorney's fees for any period before November 21, 1991, the effective date of the 1991 Act. Trout v. Secretary of Navy, 317 F.3d 286, 292-293 (D.C. Cir.), cert. denied, 540 U.S. 981 (2003); 1991 Act Pmbl., 105 Stat. 1071; § 402(a), 105 Stat. 1099. The issue did not warrant this Court's review then, and it does not now.

a. At the time of petitioners' earlier petition for a writ of certiorari, every court of appeals to consider the question had concluded that Section 114(2) affords no claim for prejudgment interest for conduct occurring before its effective date. Br. in Opp. at 5-6, Trout v. Sec retary of Navy, 540 U.S. 981 (2003) (No. 03-22) (discuss ing Brown v. Secretary of Army, 78 F.3d 645 (D.C. Cir. 1996), cert. denied, 519 U.S. 1040 (1997); Arneson v. Callahan, 128 F.3d 1243 (8th Cir. 1997), cert. denied, 524 U.S. 926 (1998); Woolf v. Bowles, 57 F.3d 407 (4th Cir. 1995); Huey v. Sullivan, 971 F.2d 1362 (8th Cir. 1992), cert. denied, 511 U.S. 1068 (1994); Edwards v. Lujan, 40 F.3d 1152 (10th Cir. 1994), cert. denied, 516 U.S. 963 (1995)). Since then, it appears no court of ap peals has had reason to address the temporal reach of Section 114(2), which is unsurprising given that the issue can arise only where there is proven discrimination from decades ago, and only in cases against the government. There is not now, has never been, and is unlikely to be, a split of authority in the circuits on the question.

b. Petitioners claim that Republic of Austria v. Altmann, 541 U.S. 677 (2004), marked such a departure in the Court's retroactivity analysis that the courts of appeals are now entirely mistaken in their uniform view about Section 114(2)'s retroactivity. This argument is incorrect on the merits.

As an initial matter, this Court saw nothing in the court of appeals' earlier application of Brown or Land graf to this case that merited this Court's attention. Recognizing that, petitioners focus on the court of ap peals' perceived misapplication of Altmann. See, e.g., Pet. i (Questions Presented). But Altmann announced no principle that undermines these authorities, or makes the application of them to this case incorrect, or other wise warrants further review by this Court.

As the court of appeals explained in the decision be low, Altmann reaffirmed-rather than undermined- the "default rule of no retroactive effect of congressional enactments announced in Landgraf." Pet. App. 6a-7a (citing Altmann, 541 U.S. at 692-694). In particular, this Court noted that where a "statute affects rights, liabili ties, or duties with respect to past conduct," the statute is not to have retroactive effect absent an explicit con gressional directive. Id. at 7a (citing Altmann, 541 U.S. at 693-694). Where a statute "merely confers or ousts jurisdiction," however, "application of a statute to * * * pending cases would be sanctioned." Ibid. This Court's determination in Altmann that the FSIA applies to pre- enactment conduct turned on its conclusion that the FSIA fell into neither category. Ibid.; see Altmann, 541 U.S. at 694 ("Though seemingly comprehensive, this inquiry [under Landgraf] does not provide a clear an swer in this case."); id. at 696 ("Landgraf's default rule does not definitively resolve this case."). Because Land graf's presumption against retroactivity was inconclu sive in the "sui generis context" of the FSIA, this Court looked to the FSIA itself and the "circumstances sur rounding its enactment," and found "clear evidence that Congress intended the Act to apply to preenactment conduct." Id. at 696-697.

This analysis of the FSIA certainly does not alter the basic rule of Landgraf. And in contrast to the pecu liarities of the FSIA that confronted this Court in Alt mann, the D.C. Circuit here found the traditional Land graf retroactivity analysis readily applicable to Section 114(2). That section contains no indication that Con gress intended it to apply retroactively to respondents' conduct in this case. See Trout IV, 317 F.3d at 290; Brown, 78 F.3d at 648. Moreover, by allowing a claim for prejudgment interest on awards issued for Title VII violations, Section 114(2) clearly increases the fed eral government's liabilities for past conduct. Cf. Alt mann, 541 U.S. at 695 (stating that the "FSIA merely opens United States courts to plaintiffs with pre-ex isting claims against foreign states" and that it "nei ther increases those states' liability for past conduct nor imposes new duties with respect to transactions already completed" (internal brackets and quotation marks omitted)). Petitioners do not argue otherwise. Thus, Section 114(2) falls squarely within Landgraf's pre sumption against retroactivity, and recourse to the methods this Court utilized in Altmann to determine congressional intent is wholly unnecessary.

Petitioners are likewise mistaken in asserting that Altmann stands for the proposition that Landgraf's an tiretroactivity presumption no longer applies to any case involving any post-enactment assertion of immunity. Most obviously, Altmann has nothing to do with the United States' sovereign immunity. It is well-estab lished that "foreign sovereigns have no right to immu nity in our courts." Altmann, 541 U.S. at 688 (citing Schooner Exch. v. McFaddon, 7 U.S. (3 Cranch) 116 (1812)). By contrast, waivers of the United States' own sovereign immunity must be strictly construed, e.g., De partment of Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999), and so any ambiguity regarding the temporal scope of that immunity must be resolved in favor of the United States.

Nor, contrary to petitioners' suggestion, does Alt mann suggest that the "relevant retroactivity event" in all cases involving any form of immunity is the assertion of that immunity. Pet. 14. This Court's conclusion that "assertions of [a foreign state's] immunity to suits" rather than the conduct underlying the assertion of im munity "are the relevant conduct regulated by the" FSIA did not inhere in the nature of an assertion of im munity. Altmann, 541 U.S. at 697. Rather, this conclu sion stemmed from the FSIA's particular language and purposes. Ibid. ("Claims of foreign states to immu nity should henceforth be decided by courts of the Uni ted States and of the States in conformity with the prin- ciples set forth in this chapter.") (quoting 28 U.S.C. 1602).1 Section 114(2) has no such reference to the fed eral government's invocation of immunity, and thus does not signal Congress's intent to make the invocation of immunity-rather than the government's underlying conduct at which Title VII and Section 114(2) are tar geted-the "relevant conduct regulated by the" 1991 Act. Ibid.

c. Even if the Court believed petitioners' novel in terpretation of Altmann might have merit, the Court's review of the issue would be better informed by awaiting additional decisions from other courts of appeals on Altmann's relevance to retroactivity analysis of waivers of sovereign immunity. Petitioners do not identify-and the United States is unaware of-any split of authority in lower courts on the application of Altmann to statutes that waive the United States' sovereign immunity. In deed, the decision below may well be the only court of appeals opinion addressing the issue in any detail. In such a sensitive area, with such a wide range of statutes permitting the imposition of liability on the government, this Court may benefit from the views and experience of the lower courts in other cases.

Finally, the retroactivity of the statute involved here is of diminishing-if not already vanished-importance. As petitioners admit, their case is of almost uniquely "Jarndyceian" duration. Pet. 7. The proper interpreta tion of Section 114(2)'s temporal reach may have been significant in a substantial number of cases around the time of the 1991 Act's passage, as evidenced by the clus ter of court of appeals cases from the mid-1990s. See pp. 6-7, supra. But today, the issue is irrelevant except in the rare case that reaches back to discrimination nearly two decades past. The singular nature of petitioners' case is underscored by the fact that the Eighth Circuit's 1997 decision in Arneson appears to be the last time anyone besides these petitioners raised the issue. An issue with such limited relevance does not merit this Court's attention.

2. The court of appeals' determination that petition ers were not entitled to attorney's fees as a prevailing party for unsuccessfully litigating the prejudgment in terest issue also does not merit further review. The de cision is correct, does not conflict with the decisions of this Court or any other court of appeals, and arises in an unusual context that would allow the Court to offer, at most, limited guidance on the legal issue petitioners as sert is presented by their case.

a. In Hensley v. Eckerhart, 461 U.S. 424 (1983), this Court held that attorney's fees should not be awarded for work performed on an unsuccessful "claim that is distinct in all respects from [a plaintiff's] successful claims." Id. at 440. Both the district court and the court of appeals determined that under the factors set out in Hensley, petitioners' unsuccessful prejudgment interest litigation was "distinct" from its litigation on the under lying merits. Pet. App. 10a-13a, 26a-28a. This Court ex plained in Hensley that the only unsuccessful claims for which a plaintiff may still be eligible for attorney's fees are those related to successful claims. 461 U.S. at 435. Such related claims "involve a common core of facts" or are "based on related legal theories." Ibid. It is this sort of lawsuit that "cannot be viewed as a series of dis crete claims" for the purpose of determining attorney's fees to a prevailing party. Ibid.

As the court of appeals and district court correctly concluded, under Hensley, petitioners' unsuccessful liti gation on the prejudgment interest issue is distinct from their earlier, successful litigation on the merits that cul minated in the consent decree. The retroactivity of Sec tion 114(2) shares no common facts or legal theories with petitioners' underlying claims of sex discrimination. Nor was "[l]itigation of the interest issue * * * inextri cably intertwined with the sex discrimination litiga tion-it was not necessary to obtain or protect any relief awarded, nor was it necessary to preserve the integrity of the Consent Decree as a whole." Pet. App. 13a; cf. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 556 (1986) (attorney's fees could be awarded for work during post-judgment proceedings if such work is "useful" and of a type "ordinarily neces sary" to secure the litigation's final result). Thus, the lower courts correctly applied Hensley, and petitioners' assertion that the court of appeals "disregarded" this Court's precedent (Pet. i) is incorrect.

Petitioners contend that Hensley drew a bright line between "claim[s]"-which petitioners equate to "caus e[s] of action" (Pet. 30-31)-on the one hand, and "con tentions," "grounds," and "issues" on the other, and that attorney's fees should "be awarded to a prevailing plain tiff on a per 'claim' basis" except where several claims together might be seen as part of "one large claim." Pet. 27, 28, 29.

Hensley created no rule that a proper attorney's fee award must include time spent litigating unsuccessful "'issues' or 'contentions' or 'grounds.'" Pet. 29. Such a formalistic use of the words "claim" and "issue" would be inconsistent with Hensley itself. In Hensley, this Court indicated that only a partial award would be war ranted on a single constitutional cause of action about plaintiffs' treatment and conditions at the defendant hospital if plaintiffs there had "prevailed on only one of their six general claims, for example the claim that peti tioners' visitation, mail, and telephone policies were overly restrictive." 461 U.S. at 436. Moreover, without comment, this Court discussed circuit court holdings using the word "issues" as synonymous with petitioner's conception of "claims." See id. at 438 n.14 (discussing the focus on the "particular legal issue on which relief had been granted") (citing Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978)); id. at 433 (discussing the typical analysis of success on "any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit") (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978)).

Moreover, on petitioners' logic, a plaintiff's pursuit of all forms of relief related to a single cause of action would be compensable, no matter how unrelated or dis proportionate to the success actually achieved. Such a rule would conflict with this Court's emphasis on set ting fee awards in proportion to the success a plaintiff obtains. Rather than creating a formal distinction be tween claims and issues, this Court emphasized a dis trict court's "discretion in determining the amount of a fee award" by examining the relief obtained "in compari son to the scope of the litigation as a whole." Hensley, 461 U.S. at 437, 440. Indeed, this Court stressed that "[t]here is no precise rule or formula" in determining a fee award, and that district courts "may attempt to iden tify specific hours that should be eliminated, or it may simply reduce the award to account for" a plaintiff's "limited success." Id. at 436-437. The touchstone is that the work for which a fee is awarded must be propor tional to the relief obtained. See id. at 436 (requiring a determination that "expenditure of counsel's [compen sated] time was reasonable in relation to the success achieved"). The lower courts here correctly recognized that they need not-and ought not-award petitioners fees for work performed on the Section 114(2) issue, which did not contribute in any way to the success ob tained in the consent decree.

b. Nor does the court of appeals' application of Hensley to this case conflict with any other precedent of this Court or other courts of appeals. The court of ap peals' decision is consistent with Commissioner v. Jean, 496 U.S. 154 (1990). Petitioners suggest that Jean stands for the proposition that once a party prevails in any aspect of litigation, it is entitled to fees "for the en tire action." Pet. 33. But this Court reiterated in Jean its earlier holding in Hensley that the "prevailing party" requirement "brings the plaintiff only across the statu tory threshold" and that "[i]t remains for the district court to determine what fee is 'reasonable'" under the success-focused inquiry set out in Hensley. Jean, 496 U.S. at 160-161 (citation omitted).

Notwithstanding petitioners' string citation to ten other courts of appeals, Pet. 30-31, not a single case petitioners cite stands for the proposition that all work associated with a single cause of action must be compensated if a plaintiff wins any relief in connection with that cause of action.2 Thus, there is no conflict in the circuits to be resolved by this Court's review of this case.

Petitioners' assertion that the court of appeals' deci sion raises "troubling public policy and ethical concerns" because it does not compensate petitioners' counsel "for services they were ethically obligated to provide after the entry of the Consent Decree," Pet. 35, is unavailing. Congress's provision that fees are awarded only for a plaintiff's successes necessarily means that some work that counsel is ethically obligated to do, having agreed to represent a plaintiff, may go uncompensated. See Hensley, 461 U.S. at 436 (stating that "Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscien tious counsel tried the case with devotion and skill" and that "the most critical factor is the degree of success obtained").

c. Even if this issue were otherwise worthy of this Court's attention, this case would be an undesirable ve hicle for addressing the question petitioners present.

First, disputes about the retroactivity of certain in cremental claims for relief are quite unusual, and dis putes about the attendant attorney's fee award rarer still. Given the unusual factual context of this case, re view here would be expected to give only limited guid ance to lower courts.

Second, the court of appeals found it unnecessary to decide the applicable standard of appellate review, hold ing that it would have reached the same result on de novo review or review for abuse of discretion. Pet. App. 13a. This is a threshold issue the Court might have to decide before reaching the merits, and it would do so without the benefit of a reasoned decision below.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
MARLEIGH D. DOVER
MELISSA N. PATTERSON
Attorneys

MAY 2009

1 In so deciding, this Court noted that its "approach to retroactivity in this case thus parallels that advocated by Justice Scalia in his concur rence in Landgraf." Altmann, 541 U.S. at 697 n.17 (emphasis added). This Court did not suggest, as petitioners claim (Pet. 24), that it was abandoning the Landgraf presumption in all cases involving an asser tion of immunity in favor of Justice Scalia's concurrence. Rather, the Court simply observed that its interpretation of the FSIA's particular language and purposes tracked Justice Scalia's views in Landgraf.

Moreover, even if Justice Scalia's Landgraf concurrence were con trolling, his focus on "relevant activity that the rule regulates" would support the court of appeals' conclusion here, Altmann, 541 U.S. at 697 n.17 (quoting Landgraf, 511 U.S. at 291 (Scalia, J., concurring)), be cause the "relevant retroactivity event" for Section 114(2) is the conduct underlying the putative Title VII violation. See Trout IV, 317 F.3d at 291-292 (concluding that "the conduct underlying the complaint, rather than the procedural posture of the litigation, has significance in" deter mining whether Section 114(2)'s application is retroactive).

2 Most of these cases do not even use the phrase "cause of action," and none suggests that every issue unsuccessfully litigated in associa tion with a particular cause of action must be included in the calculation of a fee award. See Green v. Torres, 361 F.3d 96, 98 (2d Cir. 2004) (no ting that under Hensley where claims "involve a common core of facts or are based on related legal theories," and are therefore not severable, "attorney's fees may be awarded for unsuccessful claims as well as suc cessful ones") (internal citation and brackets omitted); Williams v. Tri-County Growers, Inc., 747 F.2d 121, 137 (3d Cir. 1984) (remanding where a district court had "fail[ed] to consider the interrelated nature of the lawsuit as a whole"); Johnson v. Hugo's Skateway, 949 F.2d 1338, 1352 (4th Cir. 1991) (affirming district court's refusal to award fees against one defendant for successful claims brought against a different defendant); Pruett v. Harris County Bail Bond Bd., 499 F.3d 403, 418 (5th Cir. 2007) (remanding to allow the district court to award fees appropriate to plaintiffs' partial success), cert. denied, 128 S. Ct. 1227, and 128 S. Ct. 1290 (2008); Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 555 (6th Cir. 2008) (noting the relevance to the fee award that "[c]ommon facts" underlay plaintiff's claims, which also had "significant overlap in the legal theories"); Ustrak v. Fairman, 851 F.2d 983, 988 (7th Cir. 1988) ("A partially prevailing plaintiff should be compensated for the legal expenses he would have borne if his suit had been confined to the ground on which he prevailed plus related grounds within the meaning of Hensley."); Minnesota Supply Co. v. Raymond Corp., 472 F.3d 524, 545 (8th Cir. 2006) (remanding to determine whether claims "are distinct or whether they are related in such a way that much of the time of counsel was devoted to the litigation as a whole," and if the lat ter, "to consider the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation") (internal quotation marks omitted); McCown v. City of Fontana, 550 F.3d 918, 924 (9th Cir. 2008) (holding that "attorney's fees awarded under 42 U.S.C. § 1988 must be adjusted downward where the plaintiff has obtained limited success on his pleaded claims"); Browder v. City of Moab, 427 F.3d 717, 723 (10th Cir. 2005) (remanding to district court because it "gave no rationale for its decision" in awarding reduced fees); Quintana v. Jenne, 414 F.3d 1306, 1312 (11th Cir. 2005) (conclud ing that where a plaintiff's arguments supporting each claim were distinct, a district court could "weigh and assess the amount of attor ney's fees attributable exclusively to [plaintiff's] frivolous retaliation claim"); Andrews v. United States, 122 F.3d 1367, 1376 (11th Cir. 1997) (remanding for a recalculation of fees where a "district court did not consider that plaintiffs prevailed on only one of their three [Compre hensive Environmental Response, Compensation, and Liability Act of 1980] claims and their monetary award on that claim was quite small").