A 2007 UCLA Law Review article by Professor Catherine Albiston J.D. ’93 Ph.D. ’01 was cited in a recent U.S. Supreme Court opinion.
In a 7-2 decision in Lackey v. Stinnie, the Court held that plaintiffs who won preliminary injunctive relief in a civil rights enforcement action under Section 1983 that later became moot cannot obtain attorney fees as prevailing parties. The Court ruled that plaintiffs can recover fees only if “a court grants enduring judicial relief that materially alters the legal relationship between the parties,” even if the defendant acted unilaterally to moot the case before plaintiffs could obtain a final judgment.
In a dissent joined by Justice Sonia Sotomayor, Justice Ketanji Brown Jackson cites Albiston’s article with Laura Beth Nielsen, “The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General,” to refute the majority’s take that the ruling will have little to no impact. The ruling overturned unanimous precedent allowing fee recovery for preliminary injunctions in mooted cases from every circuit in the country, including the 4th Circuit decision from which this appeal was taken.
Albiston’s article was written in the wake of the Court’s 2001 decision in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, which rejected the so-called “catalyst theory” for recovery of attorney’s fees in civil rights enforcement actions. Based on original data from a national survey of more than 200 public interest organizations, the study found that despite the Buckhannon majority’s assumptions, groups seeking injunctive relief were the most likely to be negatively impacted by the change.
“Research suggests that the Court’s rejection of the catalyst theory in that case had the predictable practical effect of discouraging public interest organizations and private attorneys from taking on civil rights actions,” Jackson writes in the section of her dissent that cites the article. “There is thus every reason to believe that the net result of today’s decision will be less civil rights enforcement in the long run.”
The recent decision could have a significant impact, Albiston says.
“As we have seen as the preliminary injunctions against the Trump administration pile up like firewood, civil rights actions often involve time sensitive relief essential to democratic society, such as protecting freedom of expression,” she says. “The Court’s ruling gives the government one free bite at the apple at infringing these rights so long as it unilaterally moots the case before a final judgment. Organizations across the ideological spectrum filed amicus briefs supporting the plaintiffs in Lackey, showing this is not a right or left issue. Instead, this decision undermines the ability of civil society organizations of all ideological views to push back against governments that overreach and violate fundamental rights.”