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The U.S. Supreme Court this week hears an attorney fees case that may be crucial for the future of public interest litigation. Sole v. Wyner, No. 06-531. The fee at issue is $25,924 that Toni Anne Wyner and lower courts thought her lawyers deserved for the work they did to win a preliminary injunction against the state of Florida in February 2003. That injunction ordered the state not to interfere with Wyner and fellow naturists as they formed a nude peace symbol on a public beach to protest the then-impending war in Iraq. However, Florida, joined by 24 other state governments and the Bush administration, claims that because a preliminary injunction is not a final judgment, Wyner does not qualify as a “prevailing party” for the purposes of fee-shifting statutes. So her lawyers, James K. Green, a private practitioner in West Palm Beach, Fla., and Randall Marshall, an American Civil Liberties Union lawyer in Miami, should get no money from the state. Andrew Pincus, a partner at Chicago’s Mayer, Brown, Rowe & Maw, wrote a brief on behalf of an odd coalition of public interest groups that often oppose each other � ranging from Americans United for Separation of Church and State to the Rutherford Institute to the Institute for Justice and Public Citizen. He said that precluding fees in all preliminary-injunction cases would “significantly chill the enforcement of constitutional and statutory rights.” On the other side, states warn that if a mere preliminary injunction can trigger a fee award, the result will be a “considerable drain” on already-strained budgets. Virginia Solicitor General William Thro, representing the 24 states, also argues that state and local government would face “costly disincentives to enforce their laws.” The Supreme Court’s 2001 ruling, Buckhannon v. W.Va. Department of Health and Human Services, 532 U.S. 598, upended decades of tradition rooted in the civil rights statutes of the 1960s. Under the traditional “American rule,” parties in almost all litigation pay their own costs. But the civil rights laws and 42 U.S.C 1988 made an exception to that rule, rewarding private plaintiffs for vindicating and enforcing civil rights law through litigation as “private attorneys general.” Civil rights plaintiffs could recover their attorney fees and costs from their government adversaries if their lawsuits were the “catalyst” for change in government policy, even if there was no ruling declaring victory for the plaintiff. But in Buckhannon, a 5-4 decision authored by the late Chief Justice William H. Rehnquist, the court put an end to the catalyst theory, insisting instead that a judge must grant “some relief” in an actual decision before the plaintiff can qualify as a “prevailing party” and recover attorney fees. Public interest groups had warned that if the catalyst theory was struck down, government agencies could avoid ever paying attorney fees merely by settling or capitulating on the eve of a judge’s ruling or trial. They also complained that plaintiffs would be deterred from bringing cases in the first place because of uncertainty about recovering fees. According to a forthcoming law review article by Northwestern University Professor Laura Beth Nielsen and Catherine Albiston, a professor at the University of California, Berkeley School of Law, Buckhannon has indeed discouraged public interest litigation and has also discouraged settlement of cases � apparently because litigants want to hold out for a judicial ruling that might trigger a fee award. The article is based on an extensive survey of public interest organizations � both liberal and conservative � conducted in 2004. The post- Buckhannon trend, they say, amounts to a little-noticed sneak attack on civil rights enforcement. One special victim of Buckhannon has been litigation under the Freedom of Information Act, says Brian Wolfman, director of Public Citizen Litigation Center, which has participated in more than 300 FOIA lawsuits seeking documents from recalcitrant government agencies. “We get ‘Buckhannoned’ all the time,” he said, explaining that it is particularly easy for government agencies to avoid paying attorney fees in FOIA cases.

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