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Speaker 2: it was because the Commonwealth of Virginia's legislature repealed the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