However, Some Concurring Justices Were Concerned That Plaintiffs Will Never Get Fees Under Cases Where They Had Earlier Prevailed, Only To Have Technicalities Render The Matter Moot.
On March 17, 2025, we posted on Lackey v. Stinnie, 145 S.Ct. 659 (2025), where SCOTUS held that a plaintiff winning a preliminary injunction, with plaintiff’s case subsequently mooted by legislative action, was not a prevailing party under the federal civil rights statute, 42 U.S.C. § 1988(b).
We can now report that Lackey was applied to deny appellate attorney’s fees to a plaintiff whose prior win as obliterated by Hawaii’s legislative actions in Teter v. Lopez, Case No. 20-15948 (9th Cir. Apr. 30, 2025) (published). However, this recent en banc opinion did stir some concurrences by circuit judges who felt that the fee denial was required based on the prior en banc opinion where the legislative action mooted a district judge’s summary judgment for Hawaii in a Second Amendment challenge to a Hawaiian statute prohibiting butterfly knives and based on the reasoning in Lackey. Another of the concurring judges expressed concern that Hawaii had “gamed” the case such that plaintiff lawyers could rarely get fees against a governmental defendant based on subsequent legislative amendments—he would have vacated the ministerial order vacating the prior decision undone by the previous en banc decision.
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