Supreme Court to Hear Two Clinic Cases on Same Day

January 3, 2011

The Law School's Supreme Court Litigation Clinic landed its third case for the term before the Supreme Court, and also reached a new milestone — clinic instructors recently learned they will argue two cases on the same day, March 22.

Mark Stancil '99

Professor Dan Ortiz will argue Borough of Duryea v. Guarnieri at 10 a.m. and clinic instructor Mark Stancil will take on Fox v. Vice one hour later.

"It's a treat for us. We've never had more than one merits argument in a year before this year" said Stancil, a 1999 graduate of the Law School and a partner in the D.C. litigation boutique Robbins, Russell, Englert, Orseck, Untereiner & Sauber.

The day will bring the tally of clinic cases heard by the Supreme Court since the class began in 2006 to seven. Professor Jim Ryan argued Kevin Abbott v. United States in October.

The clinic, a yearlong class in which 13 students are currently enrolled, signed on to argue Fox after the Supreme Court granted certiorari in November.

The case arises from an election for chief of police in the town of Vinton, La. Respondent Billy Ray Vice, who was running for re-election, was accused by his opponent, petitioner Ricky Fox, of misconduct. Although Fox won the election, he then filed a federal civil rights lawsuit against Vice and the town based on Vice's alleged actions.

"The courts below concluded that Fox's civil rights claims were frivolous," Stancil said. "In order to have a civil rights violation against an individual, a plaintiff must show that the defendant acted under color of law, and to get damages against a municipality a plaintiff must show that the defendant had an actual policy or custom of doing this."

The district court held that Vice had failed even to allege a plausible theory on either count and awarded Vice and the town attorneys' fees. Fox appealed the ruling. Now the case poses two legal questions before the Supreme Court.

The first is whether a defendant may receive attorneys' fees for his work on frivolous federal civil rights claims when there are also non-frivolous claims in the case. The second question is, if so, how much can the defendant recover?

"We're arguing that even if there are claims that have not yet been declared frivolous, you are entitled to attorneys' fees for the frivolous claims," Stancil said. "Just because you may have a non-frivolous claim, you don't get a free pass to put in a frivolous Section 1983 claim."

On the second question, Stancil will argue that fees should be awarded if they are traceable to the frivolous civil rights claims even if other legitimate claims are involved.

"This is the risk you run in making a frivolous claim," Stancil said. "It's up to the district courts to decide what the appropriate fee award is."

Borough of Duryea v. Guarnieri centers on whether the First Amendment right to petition allows a government employee to sue his employer for taking adverse job action against him in response to a grievance that involved no matter of public concern. More.

Charles Guarnieri filed a grievance against the Pennsylvania borough of Duryea after he was dismissed as police chief in 2003. He was reinstated after arbitration, but later sued in federal court, claiming he'd been retaliated against after his reinstatement for exercising his right to petition. The 3rd U.S. Circuit Court of Appeals agreed with Guarnieri.

Third-year law student Wells Harrell, who worked on both cases in the clinic, said the outcomes have potentially enormous practical consequences.

"The respondent in Guarnieri asks the court to extend a First Amendment right currently enjoyed only by public employees in the Third Circuit to every public employee nationwide," Harrell said. "A win for the Guarnieri respondent would mean that a government employee cannot be disciplined for anything that constitutes petitioning activity, even if the petition involves a matter of exclusively private concern."

With Fox, attorneys who prosecute or defend federal civil rights actions remain acutely aware of theprospect of attorneys' fee awards, Harrell said.

"Even for civil rights lawsuits that never see trial, the Supreme Court's decisions on the standards governing eligibility for fees influence whether lawyers agree to take those cases, whether complaints are filed, what claims those complaints include, whether those suits settle and for how much they settle," he said.

"These potential consequences not only inform our arguments to the court, but they also make participating in these cases particularly rewarding for us."

Stancil noted that the only downside to the clinic's success is having to make the second argument of the day, after Ortiz.

"Dan will actually get to kick back and relax and watch me suffer, whereas while Dan is up there suffering, I'll have to keep my head down and focus on my own case."

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