Third Circuit Court of Appeals, in Divided Ruling, Felt Bound by Buckhannon, With Interesting Dissents on the Merits and on Jurisprudential Thinking.
The federal civil rights statute has a pro-plaintiff fee shifting provision in 42 U.S.C. § 1988. The U.S. Supreme Court, in Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001), decided that a civil rights plaintiff must get a change in the legal relationships between the parties in a “judicially sanctioned” context, identifying a merits-judgment or court-ordered consent decree as examples of those that would qualify. Buckhannon, which did change the seascape as what qualified as a catalyst in this area, drew a very divided en banc decision from the Third Circuit Court of Appeals.
Singer Management Consultants, Inc. v. Milgram, 2011 WL 2342733 (3d Cir. June 15, 2011), was a situation where plaintiff obtained a TRO against the State of New Jersey so that a concert could go ahead in Atlantic City, with the State later taking a 180 degree change in position at the preliminary injunction hearing which led to a concession that the constitutional claims had been resolved. Plaintiff then moved for civil rights fees as the prevailing party, but the both the district judge and Third Circuit majority (12 circuit judges) found that the TRO was not a merits-based decision under Buckhannon. The majority did seem to concede that the law might have been different under its own pre-Buckhannon decisions, but found itself bound by Buckhannon.
Circuit Judge Roth, who obtained the concurrence of three other jurists, dissented, finding that the TRO grant was the functional equivalent of a merits-based “judicially sanctioned” decision. The dissenters agreed that the proper test was whether the relief placed a judicial imprimatur on plaintiff’s entitlement to substantially all the relief it sought in the complaint, a test they believed was readily met under the circumstances.
Circuit Judge Aldisert, in a separate dissent (although he joined In Circuit Judge Roth’s dissent), has a very interesting discussion of jurisprudential decisionmaking and reasoning. He described the evolution of American jurisprudence from conceptual jurisprudence to a new school of thought factoring in a concern for society’s welfare into judicial process. Judge Aldisert believed the majority was backtracking from the civil rights reforms in precedents past and employed a “stingy interpretation” of Buckhannon’s “judicially sanctioned” requirement.
In describing what happens when judges are faced with a result that is not pre-determined and law that is not clear, Judge Aldisert colorfully observed: “Some judges have lower thresholds than others, and are more inclined to find solace in shades and fringes rather than the black-letter law.” The decision is interesting reading for practitioners, as well as legal philosophers. (Or, as Justice Bedsworth was apt to observe while on the trial bench, “Welcome to the Hotel California.”)