March 12, 2025 • 23 mins
On February 25, 2024, the U.S. Supreme Court issued their 7-2 opinion in Lackey v. Stinnie. The Court held that a party that receives a preliminary injunction but does not obtain a final judgment on the merits before a case becomes moot is not a "prevailing party" eligible for attorney's fees under 42 U.S.C. §1988(b)
Please join us in discussing the decision and its future implications.
Featuring:
William Maurer, Managing Attorney of the Washington Office, Institute for Justice
Please join us in discussing the decision and its future implications.
Featuring:
William Maurer, Managing Attorney of the Washington Office, Institute for Justice
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Welcome to Scot dis Cast, a project of the Federalist
Society for Law and Public Policy Studies. Our contributors join
us from around the country to bring you expert commentary
on US Supreme Court cases as they are argued and
the decisions are issued. The Federalist Society takes no position
on particular legal or public policy issues. All expressions are
(00:22):
those of the speaker. Hello, and welcome to scot Discast.
I'm your host, Kyle hammerniz On, behalf of the Faculty
division of the Federalist Society. We are here today to
discuss Lackey versus. Stenny, which was decided by the Court
in a seven to two decision on February twenty fifth,
twenty twenty five. It is my honor to introduce our
(00:45):
guests today, William Mauer. Bill is a Managing attorney of
the Washington State Office of the Institute for Justice, where
he engages in litigation in the areas of economic liberty,
private property rights, educational choice, and freedom of speech. And
with that, I'll hand things over to Bill.
Speaker 2 (01:01):
Well, thanks for having me on. I appreciate it. So
Lackie versus Stinny, as you mentioned, came out in February,
and it was a seventy two decision, and it concerns
the application of Statute forty two Usc. Nineteen eighty eight,
which provides that in relevant part, the Court, in its
(01:22):
discretion may allow the prevailing party, and here I'll read
in veiling party in a civil rights suit other than
the United States reasonable attorneys fees as part of the costs.
And the issue. The precise issue in Lackie versus s
Thinny that the Court was looking at was whether civil
rights plaintiffs who obtained a pulmary injunction in the case
(01:46):
that they have brought under the federal civil rights laws,
and who obtained some degree of relief through the granting
of the pulminary injunction, but then who are unable to
complete the litigation because the case is mooted. In this case,
(02:08):
it was because the Commonwealth of Virginia's legislature repealed the
statute at issue whether they qualify as prevailing parties under
section nineteen eighty eight, And prior to the decision in
Lackey versus the Stinty, the answer to that question was
pretty straightforward. All eleven circuits that had looked at the
(02:31):
issue said yes, they are prevailing parties for the purposes
of nineteen eighty eight. The US Supreme Court granted cert
which is unusual in cases where there is not just
not a split in the circuit, but overwhelming unanimity, and
decided that they are not in fact prevailing parties and
(02:53):
that in these circumstances they should not recover fees under
nineteen eighty eight. So the case's back up a little
bit and talk about the case itself. It was initially
filed in twenty eighteen, and the substantive claims in the
case concerned a Virginia statute that permitted the state to
(03:13):
suspend the driver's licenses of people who had failed to
pay their court debt, and that in and of itself
is a fascinating issue. It was litigated in front of
the district Court, which granted a pulmonary injunction, and the
(03:33):
pulmonary injunction pretty much gave the drivers exactly what they wanted.
They got to drive immediately, and the enforcement of the
statute was suspended against them. And the litigation was actually
somewhat somewhat thorough. There was extensive briefing, there was evidentiary hearings,
(03:57):
and the district decision came out, and it was very
substantive as to why the District Court thought that this
was in fact an unconstitutional policy. After that decision, while
the briefing was going on for the Fourth Circuit on
the merits, I'm sorry, well, the briefing was going on
(04:20):
on the merits for the summary judgment argument, the Commonwealth
decided to move for a stay, arguing that they were
going to the statute was likely going to be mooted.
And that's exactly what happened. Granted this stay and the
legislature repealed the statute. The plaintiffs moved for fees under
(04:44):
Section nineteen eighty eight. And you may recall I just
said that all eleventh circuits had held that they were
entitled to fees under this provision. Plaintiffs in a similar
position were entitled to fees. That actually was not the
case when the plaintiffs moved for attorney s fees, because
(05:06):
the Fourth Circuit was the sole outlier and the District
Court denied them on the basis of the Fourth Circuit decision.
The Fourth Circuit then went up to the panel of
the Fourth Circuit, which again denied the fees. The plaintiffs
moved for rehearing on Bank, and at the unbanc decision,
(05:27):
the fourth Circuit on Bank joined all the other circuits
all to make it eleven to nothing in favor of
granting attorney fees for people who obtain a preliminary injunction
but are whose case is then mooted for some reason,
(05:47):
as I mentioned the Commonwealth petition for cert which the
court granted, which was probably a bad sign for the
plaintiffs in the case because it's as they said, there's
no there was not only not a split, but the
courts were unanimous in holding that this was the correct outcome,
(06:09):
and the court accepted review and as you mentioned, it
reversed the for a circuit and rejected the reasoning of
all eleven of the circuit courts and how that plaintiffs,
civil rights plaintiffs can only recover fees when the court
(06:32):
is well. Let mean we phrase that they defined a
prevailing party as someone who obtains enduring relief on the
merits after that alters the legal relationship between the parties,
and that this this this relief has to come from
(06:53):
a court. It cannot come from a state legislature or
any other kind of intervening activity that would otherwise make
the undo the purpose of the lawsuit. And so the
and now the holding of the US Supreme Court is
that in order to abtain fees under Section nineteen eighty eight,
(07:18):
you have to have a final decision from a court
that alters the legal relationships between the parties. It has
to result from a judicial order, and it has to
be permanent.
Speaker 1 (07:34):
Right, thank you so much for that summary. Can you
get in a dive a little bit deeper into the
reasoning behind the decision, because it does seem like it
almost came out of nowhere before. Where As you said,
all the circuits agreed. How did Chief Justice John Roberts
(07:56):
and the other six justices come to come to that decision?
Speaker 2 (08:00):
Well, the Court actually built on an earlier decision called
Buckhannon and Buckannon was a case that rejected under section
actually wasn't under Section nineteen eighty eight, but for the
purposes of this discussion, was very similar to Section nineteen
eighty eight. Rejected what's called the catalyst theory for the
(08:21):
recovery of fees, where some circuit courts had held that
if you sued a defendant in a federal civil rights
case and the defendant basically gave up that served as
the cattle. The lawsuit served as the catalyst for the
change in the law, and that does you were a
(08:44):
prevailing party in that case and entitled defees. And in
a five to four decision, the Court said, no, prevailing
party is a term of art, and it dates back
to They looked at the definition of prevail billing party
when Section nineteen eighty eight was enacted, and over a
(09:05):
very strong and I think persuasive dissent from Justice s Ginsburg,
held that prevailing party means there had to been a
quarter that results in a change in the legal relationship
between the parties and that it couldn't just be the
other side giving in. And like I said, that was
(09:29):
based primarily on the treating this term of this phrase
prevailing party as a term of art, even though in
a concurrence Justice Scalia argued strongly that this was a
term of art. We have to look at the history,
we have to look at dictionary definitions, which seems odd
(09:51):
because he is such a xtualist that if the Court wanted,
Congress wanted to condition fees entirely on a person winning
the court case, they would have said they can, they
can obtain fees if they win the court case. Uh,
(10:12):
And they didn't. They just said it was prevailing. Prevailing
means basically, you've got what you wanted. I kind of
called it the uh who gets the what kind of
phone call do you make to your client rule? Basically
is you know, is it a happy phone call? Or
is it a sad phone If it starts off with, uh,
I have some bad news to tell you. You're not
(10:34):
a prevailing party. But if it starts off with, hey,
great news. The legislature repealed the law, the city council
stopped enforcing this. We got we got everything we asked
for in the lawsuit. Even though there's not a final order,
that means you've prevailed, you're you're the winning party. And
(10:55):
the the the Stinny decision, sorry, the Like decision really
builds upon Buchanan to say that, uh, it is not
just a it's not just that you have an order
that changes legal relationship. It has to be a permanent order.
It can't be a temporary order because that temporary order
(11:16):
might go away at some point. I don't find that
a particularly persuasive argument, because the reason that the temporary
order is only temporary is because you've achieved all of
your objectives. And as we pointed out in the Amaricust
brief that we've filed with the A C, l U
(11:36):
and other groups, oftentimes a lot of pulmonary injunctions are
granted in cases where there isn't time to have a
full you know, a full scale trial or a full case.
For instance, we want to we want to stage a
protest tomorrow. We need a pumary injunction that will allow
(11:58):
us to do that. We get the pluminay injunction, and
then and the next and then we staged protests. The
case is essentially over. But the there's never going to
be a decision, a full decision, a permanent decision on merits.
But we've got what we wanted. Nonetheless, the Court rejected
(12:18):
that in Lackey and said that building on Buchan, and
it said it not only has to be a judicial
decision that changes the relationship between the parties, but it
has to be a permanent judicial decision that changes the
relationship from the parties. That permanent decision has to flow
from a court and not from the actions of the
(12:39):
legislature or from some third third external force that occurred.
Speaker 1 (12:46):
Okay, and then because it was a seven to two decision,
obviously to justices disagreed, H and Justice Jackson wrote the
dissenting opinion, with Justice side my Art joining her. Uh
does Justice Jackson go into this uh, use this previous case,
(13:06):
use Justice Ginsburg's descent in that case to to kind
of bolster her her argument against this decision.
Speaker 2 (13:15):
No, actually she doesn't. She is. Uh, she very much
relies on court precedent to hold to hold basically that
there still has to be a judicial decision, but it
doesn't need to be permanent if there is some other
permanent relief that is obtained by the plaintiff. So she
(13:39):
was trying, I think she was. She tried to fit
her decision into the buchhanan. Uh uh, you know, uh,
into the Buchanan box. But you know it it it
is a I think that was a little more difficult
(14:00):
than arguing simply that Buchanan should be overruled. I mean,
I can understand why they's somewhat hesitant to to you know,
embrace over for liberals on the court, or somewhat has
itant to embrace overruling president at the moment but the
it made it somewhat difficult, but it's not entire It
(14:20):
wasn't it wasn't completely off the wall. It was it
was pretty well grounded in both A case called Buchanan
ended Soul Soul also debt dealt with a pulmonary injunction,
but in that case it was a pulmonary injunction at
the court granted and then at the end of the case,
(14:41):
UH decided that the plaintiff should not prevail. And the
question was, is that the fact that they got some
remedy during the course of the case in the form
of a pulmary injunction, does that make them a failing party?
And I think, you know, Seul basically said, no, you
do lost. And I think that is you know, the
(15:01):
real distinction is that UH. And then that's one that
Justice Jackson I think really heavily relied upon, which is
that the the judicial decision in favor of the plaintiffs
in this case. And this was a substantive decision. This
was not just this is you know, this law is
very unfair and it'd be terrible. You're probably gonna lose,
(15:22):
but we're gonna I'm going to enjoyed it. Anyway, this
was a this was a substantive decision, like I said,
after you know, substantial briefing and then after an evidentiary hearing,
and uh, Justice Jackson, I think correctly said that that
is not the same as soul because at the end
of the at the end of the case, the plaintiff's
(15:46):
attorney's got to make the happy phone call, the defendant's
attorney's got to make the sad phone call. And uh,
you know. She also looked at the fact that that
if if you look at the statue itself, it doesn't
say final order from a court. Other other federal fee
(16:07):
shifting statutes do say stuff like that, uh, and this
one does not. And she also pointed out, I think,
you know, very correctly, And this was another point that
we tried to make it another several uh anarchists uh
uh briefs from across the ideological spectrum, including the Alliance
(16:30):
Defending Freedom, pointed out that the entire purpose of this
statute was to allow people to get into court to
vindicate their their federal civil rights, and that it was
incredibly important to Congress that they be able to do
that without it completely making you know, wiping out all
of their savings or using up everything that they have
(16:53):
on attorneys fees, and would also make it more likely
for small law firms and public interest to represent federal
civil rights plaintiffs in vindicating their civil rights if there
was a broad policy in place encouraging the collection of
attorneys fees for prevailing parties. So the decision that the
(17:17):
majority issued in Lackey, I think was very much inconsistent
with the congressional purpose, like it was inconsistent with the
actual language of the statute. And it's also I know
a lot of people don't like legislative history, but the
legislative history of Section nineteen eighty eights made clear that
(17:38):
Congress did not intend a conditioned attorney's fees awards on
a final judgment from a court. And those are all
three things that Justice Shacks and I think very persuasively
set out in her dissent. I think those ultimately those
(17:59):
were correct. But but the losing argument, and you know,
Chief Justice Roberts in his majority opinion, pointed out that
if we're interpreting Section nineteen eighty eight incorrectly, Congress can
reform the law as it did in other circumstances involving
(18:20):
attorney sees. But I think Justice Jackson correctly points out, well,
it's our obligation to get it right the first time
and not have to worry about Congress coming back and
saying Okay, we'll say this again and say this time
we mean it. Y.
Speaker 1 (18:41):
I think that gives us a great launching off point
into you know, some of the consequences that sem from
this decision. And I know you touched a little bit
on it, but how do you see this changing litigation
going forward, especially in the civil rights contact as you mentioned,
(19:02):
because it does seem like this this will have a
big impact.
Speaker 2 (19:07):
Well, you know, I think the impact is going to be,
you know, collectively that it's going to be fewer civil
rights cases being brought. It's going to be an encouragement
for city councils and state legislatures to engage in gamesmanship
in order to in order to avoid having to pay fees.
(19:32):
And I think it's also it creates a weird incentive
for plaintiffs to add claims that would prevent the mooting
of their case even after they've achieved all of the
relief that they really needed. And it also creates an
(19:53):
incentive for them to litigate to the bitter end so
that they can so that they can collect fees at
the end of it. So I think, you know, Chief
Justice Roberts discussed a lot about you know, judicial economy,
and you know that this is an easy to apply standard.
(20:13):
It's easy to apply, but I don't know if necessarily
result in judicial in saving judicial resources. I think it'll
create other types of litigation incentives. But I think the
biggest issue is that it is like Buchan and it
(20:34):
is a step in really restricting the intent and the
reach of Section nineteen eighty eight, which Congress really I
mean the legislative history and reading the legislative reports about
this and the debates. This was really designed to get
(20:56):
people whose federal civil rights have been violated in the court,
with how them having to be to worry about being impoverished,
and to open up the doors of the federal courthouses
to people of limited means to be able to vindicate
their rights, because the Department of Justice can't do it all.
(21:17):
They can't vindicate every single person's rights. This was the
creation of private attorneys general, and a key part of
that was be able to have people with the resources
to be able to collect this. So this creates it,
as I mentioned, a disincentive for small firms to solo
(21:37):
practitioners that take federal civil rights cases. It creates a
disincentive for smaller public interest firms take civil rights cases.
And I think it's inconsistent with Congress's and I think
it's inconsistent with the language of the statute. And hopefully,
or one hopes that Congress at some point will correct
(22:01):
the Supreme Court's reading and make it even clearer than
it is now that these types of this type of
situation where you achieve all of the all everything you
needed and you forced the defendant to do what you wanted,
means that you have prevailed and are entitled defeas Okay, well.
Speaker 1 (22:24):
I think that was a really, really great summary of
everything that really is part of this case. And I
just want to thank you so much for coming on.
Speaker 2 (22:34):
Oh my pleasure. I enjoyed it very much.
Speaker 1 (22:37):
Thank you for listening to this episode of SCO Discussed.
Go Discussed is a project of the Federalist Society and
not for profit educational organization of conservative and libertarian law students,
law professors, and lawyers, founded upon the principles that the
state exists to preserve freedom, that the separation of governmental
power is essential to our constitution, and that it is
(22:58):
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(23:18):
fedsoc dot org slash multimedia. That's fe d s OC
dot org slash multimedia. This has been a FEDSOC audio
production
Welcome to Scot dis Cast, a project of the Federalist
Society for Law and Public Policy Studies. Our contributors join
us from around the country to bring you expert commentary
on US Supreme Court cases as they are argued and
the decisions are issued. The Federalist Society takes no position
on particular legal or public policy issues. All expressions are
(00:22):
those of the speaker. Hello, and welcome to scot Discast.
I'm your host, Kyle hammerniz On, behalf of the Faculty
division of the Federalist Society. We are here today to
discuss Lackey versus. Stenny, which was decided by the Court
in a seven to two decision on February twenty fifth,
twenty twenty five. It is my honor to introduce our
(00:45):
guests today, William Mauer. Bill is a Managing attorney of
the Washington State Office of the Institute for Justice, where
he engages in litigation in the areas of economic liberty,
private property rights, educational choice, and freedom of speech. And
with that, I'll hand things over to Bill.
Speaker 2 (01:01):
Well, thanks for having me on. I appreciate it. So
Lackie versus Stinny, as you mentioned, came out in February,
and it was a seventy two decision, and it concerns
the application of Statute forty two Usc. Nineteen eighty eight,
which provides that in relevant part, the Court, in its
(01:22):
discretion may allow the prevailing party, and here I'll read
in veiling party in a civil rights suit other than
the United States reasonable attorneys fees as part of the costs.
And the issue. The precise issue in Lackie versus s
Thinny that the Court was looking at was whether civil
rights plaintiffs who obtained a pulmary injunction in the case
(01:46):
that they have brought under the federal civil rights laws,
and who obtained some degree of relief through the granting
of the pulminary injunction, but then who are unable to
complete the litigation because the case is mooted. In this case,
(02:08):
it was because the Commonwealth of Virginia's legislature repealed the
statute at issue whether they qualify as prevailing parties under
section nineteen eighty eight, And prior to the decision in
Lackey versus the Stinty, the answer to that question was
pretty straightforward. All eleven circuits that had looked at the
(02:31):
issue said yes, they are prevailing parties for the purposes
of nineteen eighty eight. The US Supreme Court granted cert
which is unusual in cases where there is not just
not a split in the circuit, but overwhelming unanimity, and
decided that they are not in fact prevailing parties and
(02:53):
that in these circumstances they should not recover fees under
nineteen eighty eight. So the case's back up a little
bit and talk about the case itself. It was initially
filed in twenty eighteen, and the substantive claims in the
case concerned a Virginia statute that permitted the state to
(03:13):
suspend the driver's licenses of people who had failed to
pay their court debt, and that in and of itself
is a fascinating issue. It was litigated in front of
the district Court, which granted a pulmonary injunction, and the
(03:33):
pulmonary injunction pretty much gave the drivers exactly what they wanted.
They got to drive immediately, and the enforcement of the
statute was suspended against them. And the litigation was actually
somewhat somewhat thorough. There was extensive briefing, there was evidentiary hearings,
(03:57):
and the district decision came out, and it was very
substantive as to why the District Court thought that this
was in fact an unconstitutional policy. After that decision, while
the briefing was going on for the Fourth Circuit on
the merits, I'm sorry, well, the briefing was going on
(04:20):
on the merits for the summary judgment argument, the Commonwealth
decided to move for a stay, arguing that they were
going to the statute was likely going to be mooted.
And that's exactly what happened. Granted this stay and the
legislature repealed the statute. The plaintiffs moved for fees under
(04:44):
Section nineteen eighty eight. And you may recall I just
said that all eleventh circuits had held that they were
entitled to fees under this provision. Plaintiffs in a similar
position were entitled to fees. That actually was not the
case when the plaintiffs moved for attorney s fees, because
(05:06):
the Fourth Circuit was the sole outlier and the District
Court denied them on the basis of the Fourth Circuit decision.
The Fourth Circuit then went up to the panel of
the Fourth Circuit, which again denied the fees. The plaintiffs
moved for rehearing on Bank, and at the unbanc decision,
(05:27):
the fourth Circuit on Bank joined all the other circuits
all to make it eleven to nothing in favor of
granting attorney fees for people who obtain a preliminary injunction
but are whose case is then mooted for some reason,
(05:47):
as I mentioned the Commonwealth petition for cert which the
court granted, which was probably a bad sign for the
plaintiffs in the case because it's as they said, there's
no there was not only not a split, but the
courts were unanimous in holding that this was the correct outcome,
(06:09):
and the court accepted review and as you mentioned, it
reversed the for a circuit and rejected the reasoning of
all eleven of the circuit courts and how that plaintiffs,
civil rights plaintiffs can only recover fees when the court
(06:32):
is well. Let mean we phrase that they defined a
prevailing party as someone who obtains enduring relief on the
merits after that alters the legal relationship between the parties,
and that this this this relief has to come from
(06:53):
a court. It cannot come from a state legislature or
any other kind of intervening activity that would otherwise make
the undo the purpose of the lawsuit. And so the
and now the holding of the US Supreme Court is
that in order to abtain fees under Section nineteen eighty eight,
(07:18):
you have to have a final decision from a court
that alters the legal relationships between the parties. It has
to result from a judicial order, and it has to
be permanent.
Speaker 1 (07:34):
Right, thank you so much for that summary. Can you
get in a dive a little bit deeper into the
reasoning behind the decision, because it does seem like it
almost came out of nowhere before. Where As you said,
all the circuits agreed. How did Chief Justice John Roberts
(07:56):
and the other six justices come to come to that decision?
Speaker 2 (08:00):
Well, the Court actually built on an earlier decision called
Buckhannon and Buckannon was a case that rejected under section
actually wasn't under Section nineteen eighty eight, but for the
purposes of this discussion, was very similar to Section nineteen
eighty eight. Rejected what's called the catalyst theory for the
(08:21):
recovery of fees, where some circuit courts had held that
if you sued a defendant in a federal civil rights
case and the defendant basically gave up that served as
the cattle. The lawsuit served as the catalyst for the
change in the law, and that does you were a
(08:44):
prevailing party in that case and entitled defees. And in
a five to four decision, the Court said, no, prevailing
party is a term of art, and it dates back
to They looked at the definition of prevail billing party
when Section nineteen eighty eight was enacted, and over a
(09:05):
very strong and I think persuasive dissent from Justice s Ginsburg,
held that prevailing party means there had to been a
quarter that results in a change in the legal relationship
between the parties and that it couldn't just be the
other side giving in. And like I said, that was
(09:29):
based primarily on the treating this term of this phrase
prevailing party as a term of art, even though in
a concurrence Justice Scalia argued strongly that this was a
term of art. We have to look at the history,
we have to look at dictionary definitions, which seems odd
(09:51):
because he is such a xtualist that if the Court wanted,
Congress wanted to condition fees entirely on a person winning
the court case, they would have said they can, they
can obtain fees if they win the court case. Uh,
(10:12):
And they didn't. They just said it was prevailing. Prevailing
means basically, you've got what you wanted. I kind of
called it the uh who gets the what kind of
phone call do you make to your client rule? Basically
is you know, is it a happy phone call? Or
is it a sad phone If it starts off with, uh,
I have some bad news to tell you. You're not
(10:34):
a prevailing party. But if it starts off with, hey,
great news. The legislature repealed the law, the city council
stopped enforcing this. We got we got everything we asked
for in the lawsuit. Even though there's not a final order,
that means you've prevailed, you're you're the winning party. And
(10:55):
the the the Stinny decision, sorry, the Like decision really
builds upon Buchanan to say that, uh, it is not
just a it's not just that you have an order
that changes legal relationship. It has to be a permanent order.
It can't be a temporary order because that temporary order
(11:16):
might go away at some point. I don't find that
a particularly persuasive argument, because the reason that the temporary
order is only temporary is because you've achieved all of
your objectives. And as we pointed out in the Amaricust
brief that we've filed with the A C, l U
(11:36):
and other groups, oftentimes a lot of pulmonary injunctions are
granted in cases where there isn't time to have a
full you know, a full scale trial or a full case.
For instance, we want to we want to stage a
protest tomorrow. We need a pumary injunction that will allow
(11:58):
us to do that. We get the pluminay injunction, and
then and the next and then we staged protests. The
case is essentially over. But the there's never going to
be a decision, a full decision, a permanent decision on merits.
But we've got what we wanted. Nonetheless, the Court rejected
(12:18):
that in Lackey and said that building on Buchan, and
it said it not only has to be a judicial
decision that changes the relationship between the parties, but it
has to be a permanent judicial decision that changes the
relationship from the parties. That permanent decision has to flow
from a court and not from the actions of the
(12:39):
legislature or from some third third external force that occurred.
Speaker 1 (12:46):
Okay, and then because it was a seven to two decision,
obviously to justices disagreed, H and Justice Jackson wrote the
dissenting opinion, with Justice side my Art joining her. Uh
does Justice Jackson go into this uh, use this previous case,
(13:06):
use Justice Ginsburg's descent in that case to to kind
of bolster her her argument against this decision.
Speaker 2 (13:15):
No, actually she doesn't. She is. Uh, she very much
relies on court precedent to hold to hold basically that
there still has to be a judicial decision, but it
doesn't need to be permanent if there is some other
permanent relief that is obtained by the plaintiff. So she
(13:39):
was trying, I think she was. She tried to fit
her decision into the buchhanan. Uh uh, you know, uh,
into the Buchanan box. But you know it it it
is a I think that was a little more difficult
(14:00):
than arguing simply that Buchanan should be overruled. I mean,
I can understand why they's somewhat hesitant to to you know,
embrace over for liberals on the court, or somewhat has
itant to embrace overruling president at the moment but the
it made it somewhat difficult, but it's not entire It
(14:20):
wasn't it wasn't completely off the wall. It was it
was pretty well grounded in both A case called Buchanan
ended Soul Soul also debt dealt with a pulmonary injunction,
but in that case it was a pulmonary injunction at
the court granted and then at the end of the case,
(14:41):
UH decided that the plaintiff should not prevail. And the
question was, is that the fact that they got some
remedy during the course of the case in the form
of a pulmary injunction, does that make them a failing party?
And I think, you know, Seul basically said, no, you
do lost. And I think that is you know, the
(15:01):
real distinction is that UH. And then that's one that
Justice Jackson I think really heavily relied upon, which is
that the the judicial decision in favor of the plaintiffs
in this case. And this was a substantive decision. This
was not just this is you know, this law is
very unfair and it'd be terrible. You're probably gonna lose,
(15:22):
but we're gonna I'm going to enjoyed it. Anyway, this
was a this was a substantive decision, like I said,
after you know, substantial briefing and then after an evidentiary hearing,
and uh, Justice Jackson, I think correctly said that that
is not the same as soul because at the end
of the at the end of the case, the plaintiff's
(15:46):
attorney's got to make the happy phone call, the defendant's
attorney's got to make the sad phone call. And uh,
you know. She also looked at the fact that that
if if you look at the statue itself, it doesn't
say final order from a court. Other other federal fee
(16:07):
shifting statutes do say stuff like that, uh, and this
one does not. And she also pointed out, I think,
you know, very correctly, And this was another point that
we tried to make it another several uh anarchists uh
uh briefs from across the ideological spectrum, including the Alliance
(16:30):
Defending Freedom, pointed out that the entire purpose of this
statute was to allow people to get into court to
vindicate their their federal civil rights, and that it was
incredibly important to Congress that they be able to do
that without it completely making you know, wiping out all
of their savings or using up everything that they have
(16:53):
on attorneys fees, and would also make it more likely
for small law firms and public interest to represent federal
civil rights plaintiffs in vindicating their civil rights if there
was a broad policy in place encouraging the collection of
attorneys fees for prevailing parties. So the decision that the
(17:17):
majority issued in Lackey, I think was very much inconsistent
with the congressional purpose, like it was inconsistent with the
actual language of the statute. And it's also I know
a lot of people don't like legislative history, but the
legislative history of Section nineteen eighty eights made clear that
(17:38):
Congress did not intend a conditioned attorney's fees awards on
a final judgment from a court. And those are all
three things that Justice Shacks and I think very persuasively
set out in her dissent. I think those ultimately those
(17:59):
were correct. But but the losing argument, and you know,
Chief Justice Roberts in his majority opinion, pointed out that
if we're interpreting Section nineteen eighty eight incorrectly, Congress can
reform the law as it did in other circumstances involving
(18:20):
attorney sees. But I think Justice Jackson correctly points out, well,
it's our obligation to get it right the first time
and not have to worry about Congress coming back and
saying Okay, we'll say this again and say this time
we mean it. Y.
Speaker 1 (18:41):
I think that gives us a great launching off point
into you know, some of the consequences that sem from
this decision. And I know you touched a little bit
on it, but how do you see this changing litigation
going forward, especially in the civil rights contact as you mentioned,
(19:02):
because it does seem like this this will have a
big impact.
Speaker 2 (19:07):
Well, you know, I think the impact is going to be,
you know, collectively that it's going to be fewer civil
rights cases being brought. It's going to be an encouragement
for city councils and state legislatures to engage in gamesmanship
in order to in order to avoid having to pay fees.
(19:32):
And I think it's also it creates a weird incentive
for plaintiffs to add claims that would prevent the mooting
of their case even after they've achieved all of the
relief that they really needed. And it also creates an
(19:53):
incentive for them to litigate to the bitter end so
that they can so that they can collect fees at
the end of it. So I think, you know, Chief
Justice Roberts discussed a lot about you know, judicial economy,
and you know that this is an easy to apply standard.
(20:13):
It's easy to apply, but I don't know if necessarily
result in judicial in saving judicial resources. I think it'll
create other types of litigation incentives. But I think the
biggest issue is that it is like Buchan and it
(20:34):
is a step in really restricting the intent and the
reach of Section nineteen eighty eight, which Congress really I
mean the legislative history and reading the legislative reports about
this and the debates. This was really designed to get
(20:56):
people whose federal civil rights have been violated in the court,
with how them having to be to worry about being impoverished,
and to open up the doors of the federal courthouses
to people of limited means to be able to vindicate
their rights, because the Department of Justice can't do it all.
(21:17):
They can't vindicate every single person's rights. This was the
creation of private attorneys general, and a key part of
that was be able to have people with the resources
to be able to collect this. So this creates it,
as I mentioned, a disincentive for small firms to solo
(21:37):
practitioners that take federal civil rights cases. It creates a
disincentive for smaller public interest firms take civil rights cases.
And I think it's inconsistent with Congress's and I think
it's inconsistent with the language of the statute. And hopefully,
or one hopes that Congress at some point will correct
(22:01):
the Supreme Court's reading and make it even clearer than
it is now that these types of this type of
situation where you achieve all of the all everything you
needed and you forced the defendant to do what you wanted,
means that you have prevailed and are entitled defeas Okay, well.
Speaker 1 (22:24):
I think that was a really, really great summary of
everything that really is part of this case. And I
just want to thank you so much for coming on.
Speaker 2 (22:34):
Oh my pleasure. I enjoyed it very much.
Speaker 1 (22:37):
Thank you for listening to this episode of SCO Discussed.
Go Discussed is a project of the Federalist Society and
not for profit educational organization of conservative and libertarian law students,
law professors, and lawyers, founded upon the principles that the
state exists to preserve freedom, that the separation of governmental
power is essential to our constitution, and that it is
(22:58):
emphatically the province and do of the judiciary to say
what the law is, not what it should be. Don't
forget to subscribe to our podcast series include Scotscasts and
practice group podcasts on iTunes or Google Play. For an
archive of past podcasts, as well as audio and video
of past Federalist Society events, please visit our website at
(23:18):
fedsoc dot org slash multimedia. That's fe d s OC
dot org slash multimedia. This has been a FEDSOC audio
production
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