Last-minute repeal can’t stave off attorney fees

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Civil rights lawyers who take a case all the way to the U.S. Supreme Court and win can’t be deprived of their rightful attorney fees just because the defendant takes action to make the case moot before it is remanded to the district court.

The 7th Circuit held on June 2 that the City of Chicago and the Village of Oak Park, Ill., must pay attorney fees to the National Rifle Association and the other plaintiffs who successfully argued that the municipalities’ handgun bans violated their Second Amendment rights.

The municipalities argued that their opponents were not “prevailing parties” under 42 U.S.C. 1988, because the bans were repealed before the district court could enter judgment against them after remand from the U.S. Supreme Court.

But the court disagreed, noting, “By the time defendants bowed to the inevitable, plaintiffs had in hand a judgment of the Supreme Court that gave them everything they needed.”

The litigation has its genesis in the Supreme Court opinion in District of Columbia v. Heller, 554 U.S. 570 (2008), in which the court held that the district’s ban on handguns violates the Second Amendment.

The cases at bar followed, alleging that the Second Amendment applied to states and municipalities as well as the District of Columbia. The Supreme Court agreed last year, in McDonald v. Chicago, 130 S.Ct. 3020 (2010).

Within days of that opinion, Chicago and Oak Park repealed their unconstitutional handgun ordinances. Accordingly, on remand from the Supreme Court, the 7th Circuit held the cases were moot and directed the district court to dismiss them.

Back in the district court, the plaintiffs sought attorney fees as prevailing parties, but the court denied the requests. They appealed, and the 7th Circuit reversed in an opinion by Judge Frank Easterbrook.

At issue were the Supreme Court’s opinion in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), and the 7th Circuit opinion in Zessar v. Keith, 536 F.3d 788 (7th Cir. 2008).

In Buckhannon, the court held that a lawsuit’s role as a catalyst for change is not enough to support an award of attorneys’ fees; instead a plaintiff prevails only by obtaining a judicial order altering its legal status.

In Zessar, the court held that attorney fees were not allowed when the statute being contested was amended after a district court’s opinion but before entry of judgment.

Chicago and Oak Park argued that, as in Zessar, these cases became moot before the entry of judgment, and therefore, the plaintiffs were not entitled to attorney fees.

The court disagreed, explaining, “But they did better: They won in the Supreme Court, which entered a judgment in their favor. When the Supreme Court rendered its decision, the controversy was live.”

The court added, “Many a defendant gives up after a district court’s final decision and does not appeal; some other parties settle to avoid the risk of reversal. If a cessation of hostilities after a district court’s decision does not deprive the victor of prevailing-party status, why should conceding defeat after a decision by the Supreme Court do so?”

In contrast to a district court opinion that was never reduced to a judgment, the court concluded that a U.S. Supreme Court opinion does alter “the legal relationship of the parties,” the triggering event for attorney fees in Buckhannon.

Chicago and Oak Park contended that the Supreme Court opinion merely addressed a “preliminary legal issue” – the applicability of the Second Amendment to the States.

But the court called this characterization “not realistic”: “Whether the second amendment applies to the states and subsidiary units of government was the issue in this litigation. The Court’s decision was not just a procedural skirmish (emphasis in original).”

The court therefore remanded the cases for awards of reasonable attorneys’ fees.

What the Court Held

Cases: National Rifle Association of America, Inc., v. City of Chicago, Nos. 10-3957, 10-3965 & 11-1016

Issue: Is a plaintiff who prevails in a Section 1983 action in the U.S. Supreme Court entitled to attorney fees, even though the defendants repealed the offending ordinances before the district court could enter judgment on remand?

Holding: Yes. The Supreme Court opinion alters the legal relationship of the parties.

David Ziemer can be reached at [email protected].