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 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 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.
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 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 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 In this case, it was because the Commonwealth of Virginia's legislature repealed the statute at issue whether they qualify as prevailing parties under section nineteen eighty eight, And prior to the decision in Lackey versus the Stinty, the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 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 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 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 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, 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 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
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 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, 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, 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, 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
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 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, 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.
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 and the other six justices come to come to that decision?
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 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
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 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 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 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, 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 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 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
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 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 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 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 legislature or from some third third external force that occurred.
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, use Justice Ginsburg's descent in that case to to kind of bolster her her argument against this decision.
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 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
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
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, 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 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,
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 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 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 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 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 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 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 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
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.
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, because it does seem like this this will have a big impact.
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. 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 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. 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 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 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.
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 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 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.
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.
Oh my pleasure. I enjoyed it very much.
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