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<v Speaker 1>Welcome to Scot dis Cast, a project of the Federalist

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<v Speaker 1>Society for Law and Public Policy Studies. Our contributors join

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<v Speaker 1>us from around the country to bring you expert commentary

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<v Speaker 1>on US Supreme Court cases as they are argued and

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<v Speaker 1>the decisions are issued. The Federalist Society takes no position

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<v Speaker 1>on particular legal or public policy issues. All expressions are

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<v Speaker 1>those of the speaker. Hello, and welcome to scot Discast.

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<v Speaker 1>I'm your host, Kyle hammerniz On, behalf of the Faculty

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<v Speaker 1>division of the Federalist Society. We are here today to

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<v Speaker 1>discuss Lackey versus. Stenny, which was decided by the Court

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<v Speaker 1>in a seven to two decision on February twenty fifth,

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<v Speaker 1>twenty twenty five. It is my honor to introduce our

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<v Speaker 1>guests today, William Mauer. Bill is a Managing attorney of

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<v Speaker 1>the Washington State Office of the Institute for Justice, where

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<v Speaker 1>he engages in litigation in the areas of economic liberty,

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<v Speaker 1>private property rights, educational choice, and freedom of speech. And

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<v Speaker 1>with that, I'll hand things over to Bill.

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<v Speaker 2>Well, thanks for having me on. I appreciate it. So

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<v Speaker 2>Lackie versus Stinny, as you mentioned, came out in February,

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<v Speaker 2>and it was a seventy two decision, and it concerns

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<v Speaker 2>the application of Statute forty two Usc. Nineteen eighty eight,

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<v Speaker 2>which provides that in relevant part, the Court, in its

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<v Speaker 2>discretion may allow the prevailing party, and here I'll read

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<v Speaker 2>in veiling party in a civil rights suit other than

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<v Speaker 2>the United States reasonable attorneys fees as part of the costs.

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<v Speaker 2>And the issue. The precise issue in Lackie versus s

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<v Speaker 2>Thinny that the Court was looking at was whether civil

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<v Speaker 2>rights plaintiffs who obtained a pulmary injunction in the case

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<v Speaker 2>that they have brought under the federal civil rights laws,

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<v Speaker 2>and who obtained some degree of relief through the granting

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<v Speaker 2>of the pulminary injunction, but then who are unable to

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<v Speaker 2>complete the litigation because the case is mooted. In this case,

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<v Speaker 2>it was because the Commonwealth of Virginia's legislature repealed the

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<v Speaker 2>statute at issue whether they qualify as prevailing parties under

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<v Speaker 2>section nineteen eighty eight, And prior to the decision in

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<v Speaker 2>Lackey versus the Stinty, the answer to that question was

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<v Speaker 2>pretty straightforward. All eleven circuits that had looked at the

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<v Speaker 2>issue said yes, they are prevailing parties for the purposes

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<v Speaker 2>of nineteen eighty eight. The US Supreme Court granted cert

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<v Speaker 2>which is unusual in cases where there is not just

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<v Speaker 2>not a split in the circuit, but overwhelming unanimity, and

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<v Speaker 2>decided that they are not in fact prevailing parties and

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<v Speaker 2>that in these circumstances they should not recover fees under

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<v Speaker 2>nineteen eighty eight. So the case's back up a little

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<v Speaker 2>bit and talk about the case itself. It was initially

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<v Speaker 2>filed in twenty eighteen, and the substantive claims in the

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<v Speaker 2>case concerned a Virginia statute that permitted the state to

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<v Speaker 2>suspend the driver's licenses of people who had failed to

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<v Speaker 2>pay their court debt, and that in and of itself

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<v Speaker 2>is a fascinating issue. It was litigated in front of

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<v Speaker 2>the district Court, which granted a pulmonary injunction, and the

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<v Speaker 2>pulmonary injunction pretty much gave the drivers exactly what they wanted.

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<v Speaker 2>They got to drive immediately, and the enforcement of the

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<v Speaker 2>statute was suspended against them. And the litigation was actually

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<v Speaker 2>somewhat somewhat thorough. There was extensive briefing, there was evidentiary hearings,

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<v Speaker 2>and the district decision came out, and it was very

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<v Speaker 2>substantive as to why the District Court thought that this

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<v Speaker 2>was in fact an unconstitutional policy. After that decision, while

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<v Speaker 2>the briefing was going on for the Fourth Circuit on

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<v Speaker 2>the merits, I'm sorry, well, the briefing was going on

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<v Speaker 2>on the merits for the summary judgment argument, the Commonwealth

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<v Speaker 2>decided to move for a stay, arguing that they were

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<v Speaker 2>going to the statute was likely going to be mooted.

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<v Speaker 2>And that's exactly what happened. Granted this stay and the

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<v Speaker 2>legislature repealed the statute. The plaintiffs moved for fees under

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<v Speaker 2>Section nineteen eighty eight. And you may recall I just

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<v Speaker 2>said that all eleventh circuits had held that they were

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<v Speaker 2>entitled to fees under this provision. Plaintiffs in a similar

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<v Speaker 2>position were entitled to fees. That actually was not the

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<v Speaker 2>case when the plaintiffs moved for attorney s fees, because

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<v Speaker 2>the Fourth Circuit was the sole outlier and the District

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<v Speaker 2>Court denied them on the basis of the Fourth Circuit decision.

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<v Speaker 2>The Fourth Circuit then went up to the panel of

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<v Speaker 2>the Fourth Circuit, which again denied the fees. The plaintiffs

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<v Speaker 2>moved for rehearing on Bank, and at the unbanc decision,

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<v Speaker 2>the fourth Circuit on Bank joined all the other circuits

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<v Speaker 2>all to make it eleven to nothing in favor of

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<v Speaker 2>granting attorney fees for people who obtain a preliminary injunction

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<v Speaker 2>but are whose case is then mooted for some reason,

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<v Speaker 2>as I mentioned the Commonwealth petition for cert which the

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<v Speaker 2>court granted, which was probably a bad sign for the

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<v Speaker 2>plaintiffs in the case because it's as they said, there's

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<v Speaker 2>no there was not only not a split, but the

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<v Speaker 2>courts were unanimous in holding that this was the correct outcome,

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<v Speaker 2>and the court accepted review and as you mentioned, it

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<v Speaker 2>reversed the for a circuit and rejected the reasoning of

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<v Speaker 2>all eleven of the circuit courts and how that plaintiffs,

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<v Speaker 2>civil rights plaintiffs can only recover fees when the court

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<v Speaker 2>is well. Let mean we phrase that they defined a

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<v Speaker 2>prevailing party as someone who obtains enduring relief on the

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<v Speaker 2>merits after that alters the legal relationship between the parties,

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<v Speaker 2>and that this this this relief has to come from

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<v Speaker 2>a court. It cannot come from a state legislature or

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<v Speaker 2>any other kind of intervening activity that would otherwise make

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<v Speaker 2>the undo the purpose of the lawsuit. And so the

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<v Speaker 2>and now the holding of the US Supreme Court is

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<v Speaker 2>that in order to abtain fees under Section nineteen eighty eight,

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<v Speaker 2>you have to have a final decision from a court

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<v Speaker 2>that alters the legal relationships between the parties. It has

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<v Speaker 2>to result from a judicial order, and it has to

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<v Speaker 2>be permanent.

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<v Speaker 1>Right, thank you so much for that summary. Can you

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<v Speaker 1>get in a dive a little bit deeper into the

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<v Speaker 1>reasoning behind the decision, because it does seem like it

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<v Speaker 1>almost came out of nowhere before. Where As you said,

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<v Speaker 1>all the circuits agreed. How did Chief Justice John Roberts

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<v Speaker 1>and the other six justices come to come to that decision?

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<v Speaker 2>Well, the Court actually built on an earlier decision called

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<v Speaker 2>Buckhannon and Buckannon was a case that rejected under section

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<v Speaker 2>actually wasn't under Section nineteen eighty eight, but for the

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<v Speaker 2>purposes of this discussion, was very similar to Section nineteen

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<v Speaker 2>eighty eight. Rejected what's called the catalyst theory for the

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<v Speaker 2>recovery of fees, where some circuit courts had held that

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<v Speaker 2>if you sued a defendant in a federal civil rights

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<v Speaker 2>case and the defendant basically gave up that served as

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<v Speaker 2>the cattle. The lawsuit served as the catalyst for the

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<v Speaker 2>change in the law, and that does you were a

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<v Speaker 2>prevailing party in that case and entitled defees. And in

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<v Speaker 2>a five to four decision, the Court said, no, prevailing

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<v Speaker 2>party is a term of art, and it dates back

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<v Speaker 2>to They looked at the definition of prevail billing party

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<v Speaker 2>when Section nineteen eighty eight was enacted, and over a

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<v Speaker 2>very strong and I think persuasive dissent from Justice s Ginsburg,

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<v Speaker 2>held that prevailing party means there had to been a

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<v Speaker 2>quarter that results in a change in the legal relationship

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<v Speaker 2>between the parties and that it couldn't just be the

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<v Speaker 2>other side giving in. And like I said, that was

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<v Speaker 2>based primarily on the treating this term of this phrase

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<v Speaker 2>prevailing party as a term of art, even though in

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<v Speaker 2>a concurrence Justice Scalia argued strongly that this was a

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<v Speaker 2>term of art. We have to look at the history,

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<v Speaker 2>we have to look at dictionary definitions, which seems odd

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<v Speaker 2>because he is such a xtualist that if the Court wanted,

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<v Speaker 2>Congress wanted to condition fees entirely on a person winning

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<v Speaker 2>the court case, they would have said they can, they

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<v Speaker 2>can obtain fees if they win the court case. Uh,

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<v Speaker 2>And they didn't. They just said it was prevailing. Prevailing

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<v Speaker 2>means basically, you've got what you wanted. I kind of

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<v Speaker 2>called it the uh who gets the what kind of

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<v Speaker 2>phone call do you make to your client rule? Basically

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<v Speaker 2>is you know, is it a happy phone call? Or

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<v Speaker 2>is it a sad phone If it starts off with, uh,

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<v Speaker 2>I have some bad news to tell you. You're not

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<v Speaker 2>a prevailing party. But if it starts off with, hey,

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<v Speaker 2>great news. The legislature repealed the law, the city council

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<v Speaker 2>stopped enforcing this. We got we got everything we asked

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<v Speaker 2>for in the lawsuit. Even though there's not a final order,

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<v Speaker 2>that means you've prevailed, you're you're the winning party. And

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<v Speaker 2>the the the Stinny decision, sorry, the Like decision really

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<v Speaker 2>builds upon Buchanan to say that, uh, it is not

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<v Speaker 2>just a it's not just that you have an order

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<v Speaker 2>that changes legal relationship. It has to be a permanent order.

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<v Speaker 2>It can't be a temporary order because that temporary order

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<v Speaker 2>might go away at some point. I don't find that

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<v Speaker 2>a particularly persuasive argument, because the reason that the temporary

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<v Speaker 2>order is only temporary is because you've achieved all of

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<v Speaker 2>your objectives. And as we pointed out in the Amaricust

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<v Speaker 2>brief that we've filed with the A C, l U

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<v Speaker 2>and other groups, oftentimes a lot of pulmonary injunctions are

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<v Speaker 2>granted in cases where there isn't time to have a

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<v Speaker 2>full you know, a full scale trial or a full case.

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<v Speaker 2>For instance, we want to we want to stage a

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<v Speaker 2>protest tomorrow. We need a pumary injunction that will allow

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<v Speaker 2>us to do that. We get the pluminay injunction, and

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<v Speaker 2>then and the next and then we staged protests. The

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<v Speaker 2>case is essentially over. But the there's never going to

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<v Speaker 2>be a decision, a full decision, a permanent decision on merits.

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<v Speaker 2>But we've got what we wanted. Nonetheless, the Court rejected

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<v Speaker 2>that in Lackey and said that building on Buchan, and

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<v Speaker 2>it said it not only has to be a judicial

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<v Speaker 2>decision that changes the relationship between the parties, but it

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<v Speaker 2>has to be a permanent judicial decision that changes the

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<v Speaker 2>relationship from the parties. That permanent decision has to flow

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<v Speaker 2>from a court and not from the actions of the

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<v Speaker 2>legislature or from some third third external force that occurred.

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<v Speaker 1>Okay, and then because it was a seven to two decision,

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<v Speaker 1>obviously to justices disagreed, H and Justice Jackson wrote the

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<v Speaker 1>dissenting opinion, with Justice side my Art joining her. Uh

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<v Speaker 1>does Justice Jackson go into this uh, use this previous case,

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<v Speaker 1>use Justice Ginsburg's descent in that case to to kind

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<v Speaker 1>of bolster her her argument against this decision.

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<v Speaker 2>No, actually she doesn't. She is. Uh, she very much

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<v Speaker 2>relies on court precedent to hold to hold basically that

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<v Speaker 2>there still has to be a judicial decision, but it

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<v Speaker 2>doesn't need to be permanent if there is some other

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<v Speaker 2>permanent relief that is obtained by the plaintiff. So she

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<v Speaker 2>was trying, I think she was. She tried to fit

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<v Speaker 2>her decision into the buchhanan. Uh uh, you know, uh,

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<v Speaker 2>into the Buchanan box. But you know it it it

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<v Speaker 2>is a I think that was a little more difficult

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<v Speaker 2>than arguing simply that Buchanan should be overruled. I mean,

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<v Speaker 2>I can understand why they's somewhat hesitant to to you know,

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<v Speaker 2>embrace over for liberals on the court, or somewhat has

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<v Speaker 2>itant to embrace overruling president at the moment but the

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<v Speaker 2>it made it somewhat difficult, but it's not entire It

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<v Speaker 2>wasn't it wasn't completely off the wall. It was it

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<v Speaker 2>was pretty well grounded in both A case called Buchanan

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<v Speaker 2>ended Soul Soul also debt dealt with a pulmonary injunction,

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<v Speaker 2>but in that case it was a pulmonary injunction at

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<v Speaker 2>the court granted and then at the end of the case,

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<v Speaker 2>UH decided that the plaintiff should not prevail. And the

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<v Speaker 2>question was, is that the fact that they got some

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<v Speaker 2>remedy during the course of the case in the form

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<v Speaker 2>of a pulmary injunction, does that make them a failing party?

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<v Speaker 2>And I think, you know, Seul basically said, no, you

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<v Speaker 2>do lost. And I think that is you know, the

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<v Speaker 2>real distinction is that UH. And then that's one that

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<v Speaker 2>Justice Jackson I think really heavily relied upon, which is

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<v Speaker 2>that the the judicial decision in favor of the plaintiffs

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<v Speaker 2>in this case. And this was a substantive decision. This

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<v Speaker 2>was not just this is you know, this law is

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<v Speaker 2>very unfair and it'd be terrible. You're probably gonna lose,

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<v Speaker 2>but we're gonna I'm going to enjoyed it. Anyway, this

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<v Speaker 2>was a this was a substantive decision, like I said,

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<v Speaker 2>after you know, substantial briefing and then after an evidentiary hearing,

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<v Speaker 2>and uh, Justice Jackson, I think correctly said that that

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<v Speaker 2>is not the same as soul because at the end

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<v Speaker 2>of the at the end of the case, the plaintiff's

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<v Speaker 2>attorney's got to make the happy phone call, the defendant's

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<v Speaker 2>attorney's got to make the sad phone call. And uh,

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<v Speaker 2>you know. She also looked at the fact that that

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<v Speaker 2>if if you look at the statue itself, it doesn't

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<v Speaker 2>say final order from a court. Other other federal fee

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<v Speaker 2>shifting statutes do say stuff like that, uh, and this

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<v Speaker 2>one does not. And she also pointed out, I think,

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<v Speaker 2>you know, very correctly, And this was another point that

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<v Speaker 2>we tried to make it another several uh anarchists uh

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<v Speaker 2>uh briefs from across the ideological spectrum, including the Alliance

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<v Speaker 2>Defending Freedom, pointed out that the entire purpose of this

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<v Speaker 2>statute was to allow people to get into court to

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<v Speaker 2>vindicate their their federal civil rights, and that it was

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<v Speaker 2>incredibly important to Congress that they be able to do

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<v Speaker 2>that without it completely making you know, wiping out all

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<v Speaker 2>of their savings or using up everything that they have

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<v Speaker 2>on attorneys fees, and would also make it more likely

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<v Speaker 2>for small law firms and public interest to represent federal

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<v Speaker 2>civil rights plaintiffs in vindicating their civil rights if there

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<v Speaker 2>was a broad policy in place encouraging the collection of

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<v Speaker 2>attorneys fees for prevailing parties. So the decision that the

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<v Speaker 2>majority issued in Lackey, I think was very much inconsistent

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<v Speaker 2>with the congressional purpose, like it was inconsistent with the

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<v Speaker 2>actual language of the statute. And it's also I know

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<v Speaker 2>a lot of people don't like legislative history, but the

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<v Speaker 2>legislative history of Section nineteen eighty eights made clear that

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<v Speaker 2>Congress did not intend a conditioned attorney's fees awards on

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<v Speaker 2>a final judgment from a court. And those are all

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<v Speaker 2>three things that Justice Shacks and I think very persuasively

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<v Speaker 2>set out in her dissent. I think those ultimately those

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<v Speaker 2>were correct. But but the losing argument, and you know,

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<v Speaker 2>Chief Justice Roberts in his majority opinion, pointed out that

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<v Speaker 2>if we're interpreting Section nineteen eighty eight incorrectly, Congress can

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<v Speaker 2>reform the law as it did in other circumstances involving

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<v Speaker 2>attorney sees. But I think Justice Jackson correctly points out, well,

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<v Speaker 2>it's our obligation to get it right the first time

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<v Speaker 2>and not have to worry about Congress coming back and

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<v Speaker 2>saying Okay, we'll say this again and say this time

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<v Speaker 2>we mean it. Y.

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<v Speaker 1>I think that gives us a great launching off point

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<v Speaker 1>into you know, some of the consequences that sem from

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<v Speaker 1>this decision. And I know you touched a little bit

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<v Speaker 1>on it, but how do you see this changing litigation

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<v Speaker 1>going forward, especially in the civil rights contact as you mentioned,

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<v Speaker 1>because it does seem like this this will have a

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<v Speaker 1>big impact.

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<v Speaker 2>Well, you know, I think the impact is going to be,

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<v Speaker 2>you know, collectively that it's going to be fewer civil

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<v Speaker 2>rights cases being brought. It's going to be an encouragement

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<v Speaker 2>for city councils and state legislatures to engage in gamesmanship

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<v Speaker 2>in order to in order to avoid having to pay fees.

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<v Speaker 2>And I think it's also it creates a weird incentive

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<v Speaker 2>for plaintiffs to add claims that would prevent the mooting

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<v Speaker 2>of their case even after they've achieved all of the

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<v Speaker 2>relief that they really needed. And it also creates an

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<v Speaker 2>incentive for them to litigate to the bitter end so

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<v Speaker 2>that they can so that they can collect fees at

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<v Speaker 2>the end of it. So I think, you know, Chief

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<v Speaker 2>Justice Roberts discussed a lot about you know, judicial economy,

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<v Speaker 2>and you know that this is an easy to apply standard.

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<v Speaker 2>It's easy to apply, but I don't know if necessarily

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<v Speaker 2>result in judicial in saving judicial resources. I think it'll

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<v Speaker 2>create other types of litigation incentives. But I think the

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<v Speaker 2>biggest issue is that it is like Buchan and it

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<v Speaker 2>is a step in really restricting the intent and the

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<v Speaker 2>reach of Section nineteen eighty eight, which Congress really I

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<v Speaker 2>mean the legislative history and reading the legislative reports about

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<v Speaker 2>this and the debates. This was really designed to get

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<v Speaker 2>people whose federal civil rights have been violated in the court,

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<v Speaker 2>with how them having to be to worry about being impoverished,

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<v Speaker 2>and to open up the doors of the federal courthouses

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<v Speaker 2>to people of limited means to be able to vindicate

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<v Speaker 2>their rights, because the Department of Justice can't do it all.

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<v Speaker 2>They can't vindicate every single person's rights. This was the

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<v Speaker 2>creation of private attorneys general, and a key part of

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<v Speaker 2>that was be able to have people with the resources

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<v Speaker 2>to be able to collect this. So this creates it,

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<v Speaker 2>as I mentioned, a disincentive for small firms to solo

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<v Speaker 2>practitioners that take federal civil rights cases. It creates a

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<v Speaker 2>disincentive for smaller public interest firms take civil rights cases.

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<v Speaker 2>And I think it's inconsistent with Congress's and I think

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<v Speaker 2>it's inconsistent with the language of the statute. And hopefully,

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<v Speaker 2>or one hopes that Congress at some point will correct

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<v Speaker 2>the Supreme Court's reading and make it even clearer than

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<v Speaker 2>it is now that these types of this type of

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<v Speaker 2>situation where you achieve all of the all everything you

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<v Speaker 2>needed and you forced the defendant to do what you wanted,

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<v Speaker 2>means that you have prevailed and are entitled defeas Okay, well.

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<v Speaker 1>I think that was a really, really great summary of

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<v Speaker 1>everything that really is part of this case. And I

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<v Speaker 1>just want to thank you so much for coming on.

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<v Speaker 2>Oh my pleasure. I enjoyed it very much.

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<v Speaker 1>Thank you for listening to this episode of SCO Discussed.

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<v Speaker 1>Go Discussed is a project of the Federalist Society and

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<v Speaker 1>not for profit educational organization of conservative and libertarian law students,

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<v Speaker 1>law professors, and lawyers, founded upon the principles that the

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<v Speaker 1>state exists to preserve freedom, that the separation of governmental

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<v Speaker 1>power is essential to our constitution, and that it is

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<v Speaker 1>emphatically the province and do of the judiciary to say

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<v Speaker 1>what the law is, not what it should be. Don't

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<v Speaker 1>archive of past podcasts, as well as audio and video

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<v Speaker 1>fedsoc dot org slash multimedia. That's fe d s OC

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<v Speaker 1>dot org slash multimedia. This has been a FEDSOC audio

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<v Speaker 1>production