HR 2679: Fee-Shifting in Constitutional Cases

[Sisk, Gregory C.]

While I certainly wouldn't endorse the legislation as apparently proposed -
which would exempt a category of constitutional claims (establishment clause
claims) from the Section 1988 attorney's fee award provision - I submit
there is fair substance to the concerns that I imagine prompted this
legislative proposal.  Having written at length about attorney's fee
shifting (I list a few of the works I've published on the topic after my
signature line), I tend to be supportive of these provisions and sympathetic
to fee claimants against the government.  Nonetheless, I have to acknowledge
the force of other arguments and the reasonableness of proposals to revise
fee-shifting rules, even if on balance I may not be persuaded in the end.

 

First, the risk of an attorney's-fee award can be quite chilling,
discouraging cities, school districts, etc. from taking any but the most
cautious policy stance when opposition arises and is framed as
constitutional in basis, especially as when the governmental policy relates
to accommodation of or educational policies relating to religion.  For that
reason, those who threaten lawsuits sometimes can effectively blackmail a
government entity into retreating from even quite reasonable proposals or
policies.  Indeed, we've all probably seen it happen on several occasions,
when a government entity is contacted by a public interest litigation group
or individual lawyer - reflecting all points on the political spectrum - and
is bluntly warned by the group or lawyer that the entity could be liable for
a huge attorney's fee bill, perhaps bankrupting the municipality or school
district, if the matter goes to court and the entity fails to persuade the
judge.  Fearing the devastating costs if unsuccessful in court, such
government entities, especially small municipalities and school districts
who are particularly vulnerable to financial worries, not infrequently cave
in and retreat into passivity.  One result of fee-shifting can be an
attitude of timid risk-aversion by government officers and agencies to
anything remotely controversial, at least when someone actually threatens a
lawsuit, regardless of the arguable public interests that might be advanced
by a particular policy or even the reasonable though uncertain prospect that
a defense of the policy in court might succeed.

 

Second, the typical fee-shifting statute can have perverse effects and do
not apply in the context of the individual citizen hiring an ordinary lawyer
to challenge plainly unreasonable government conduct.  As Ed correctly says,
only a successful plaintiff as the prevailing party is eligible for a fee
award under Section 1988.  But that means that fees may be awarded even if
the plaintiff barely tipped the scales in a close case, because the
defendant municipality or government officer had a well-founded and more
than merely plausible position.  Indeed, in the closely-fought case, where
the government's position was well-justified if ultimately unsuccessful, the
burden of the fee award is likely to be even greater, due to the greater
length and intensity of the litigation.  By contrast, the government
defendant that took a plainly unjustified position, resulting in a slam-dunk
and easy victory for the plaintiff, pays relatively little because the
matter is resolved so quickly.

 

Third, attorney's fee shifting under Section 1988 already is one-sided in
nature, as the defendant state or local government agency or officer is not
entitled to recover fees from the plaintiff when the plaintiff loses (absent
unusual circumstances, such as a truly frivolous lawsuit).  Thus, the
plaintiff threatening or bringing constitutional litigation seldom bears any
risk of liability, while the defendant bears the risk of substantial
liability for the opponent's fees, a risk that must be balanced carefully in
both policy and litigation strategy.

 

Fourth, while fee-shifting seems especially reasonable in the context of the
scenario that Ed portrays, which is that of the individual school teacher
bravely standing against unreasonable government conduct and struggling to
find legal representation at her personal expense, the practical reality
often is quite different.  Many (although by no means all) such suits are
brought by public interest organizations, sometimes openly searching for a
client to give it standing to pursue the lawsuit, which means that no
individual litigant is personally on the hook for the litigation costs.
Moreover, since these public interest organizations exist for the very
purpose of pursuing such lawsuits, fee-shifting is not essential but rather
serves as an additional form of fund-raising for these organizations.  Let
me hasten to say here that public interest organizations on both sides of
the political divide do this.  And I'm not saying there's anything wrong
with it.  Rather I'm simply observing that the reality on the ground can be
more complicated than and not always as poignant as the portrait of a lonely
and impecunious David left to challenge the abusive actions of the municipal
or school-district Goliath.

 

In laying out these collateral effects of fee-shifting and adding nuance to
the portrayal of the fee-shifting scenario, let me emphasize that I am not
saying that these factors justify a dramatic change in fee-shifting
jurisprudence or that the benefits of Section 1988 and similar statutes do
not outweigh the costs.  I simply mean to submit that a reasonable person
could see these matters as justifying revision or reform, even if proposed
HR 2679 may be a dubious means of seeking that revision or reform.

 

As an alternative, which I pose for argument's sake but do not endorse,
Section 1988 could instead be converted from an automatic prevailing-party
fee-shifting provision into a substantial justification fee-shifting
statute, akin to the Equal Access to Justice Act.  Under the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412(d), the federal government is liable
for an award of attorney's fees when its position, either with respect to
the underlying governmental decision or the legal stance taken in court,
lacks substantial justification (which the Supreme Court has interpreted as
meaning is not reasonable in law or fact).  The legislative history behind
this provision (initially enacted in 1980 and made permanent in 1985)
explains that Congress wanted to provide a means of deterring abuse of
government power while not chilling government officials from making
difficult decisions that may later be overturned in court.  Such a revision
to Section 1988 would leave unchanged the availability of fee-shifting for
all categories of claims and would ensure that those who challenge truly
unreasonable government behavior would recover their expenses, while
government entities and officials who have made a reasonable if ultimately
mistaken policy decision would not face the penalty of large fee awards when
acting in an area of legal uncertainty.

 

Greg Sisk

 

Gregory Sisk

Professor of Law

University of St. Thomas School of Law (Minnesota)

MSL 400, 1000 LaSalle Avenue

Minneapolis, MN  55403-2005

651-962-4923

gcsisk at stthomas.edu

 <http://personal2.stthomas.edu/GCSISK/sisk.html>
http://personal2.stthomas.edu/GCSISK/sisk.html

 

Litigation with the Federal Government (ALI-ABA, 4th ed., 2006) (Chapter VII
on "Attorney's Fees:  Limitations and Award")

 

The Essentials of the Equal Access to Justice Act:  Court Awards of
Attorney's Fees for Unreasonable Government Conduct (Part Two), 56 Louisiana
Law Review 1 (1995)

 

The Essentials of the Equal Access to Justice Act:  Court Awards of
Attorney's Fees for Unreasonable Government Conduct (Part One), 55 Louisiana
Law Review 217 (1994)

 

A Primer on Awards of Attorney's Fees Against the Federal Govern­ment, 25
Arizona State Law Journal 733 (1994)

 

Interim Attorney's Fees Awards Against the Federal Government, 68 North
Carolina Law Review 117 (1989)

 

 

-----Original Message-----
From: Ed Brayton [mailto:stcynic at crystalauto.com] 
Sent: Wednesday, June 28, 2006 1:30 PM
To: Religionlaw list
Subject: HR 2679

 

I'm surprised there has been little discussion here of HR 2679. Marc Stern,
who I know is on this list, testified at the House Judiciary Committee
hearings on the subject. This bill would amend 42 U.S.C. § 1988 to exempt
establishment clause cases from the provision which allows the winning
plaintiff in a civil rights lawsuit to receive legal fee reimbursement.
Because such awards are only given if the plaintiff wins, I would argue that
this is a case of the losing side attempting to rig the game to change the
outcome. The religious right (for lack of a better phrase) is against the
bulk of establishment clause jurisprudence over the last few decades.
They've had little success in court trying to turn back those precedents, so
they are attempting to make it much more difficult for plaintiffs to find
representation to bring such suits. I call this the Tonya Harding strategy -
she knew she couldn't beat Nancy Kerrigan in competition, so she had her
hobbled on the way to the arena instead.

More seriously, I think Marc's testimony was spot on. This law would create
a clear disparity in cases. The legislation unfairly tips the balances
against one side in court proceedings without regard to the merit of their
claims. As an example, let's say a teacher decides to lead her class in
prayer (despite the multiple court rulings that forbid this in the public
schools). If the school allows her to do so and the family of one of the
students in her class files suit on establishment clause grounds, they must
bear the full cost of the litigation. Even if they win the case, if it costs
a million dollars to fight such a case all the way to the Supreme Court -
and it likely would - they have to be prepared to pay that million dollars
even though the government has clearly acted in an unconstitutional manner
here. But let's reverse the example. Let's say that the school refuses to
allow the teacher to lead her class in prayer and the teacher decides to
sue, claiming that this ruling violates her right to free speech and free
exercise of religion. Because the suit is on grounds other than the
establishment clause, this legislation would not apply and the teacher could
recover the legal costs if she wins the suit, while those objecting to the
policy on the other side, because their suit would be on establishment
clause grounds, would not.

Any thoughts?

Ed Brayton
 <http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=42&sec=1988> 

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