Ninth Circuit So Rules in Split Decision.
Congress has imposed certain restrictions on legal aid organizations that receive federal grants through the Legal Services Corporation (LSC), including that grantee attorneys cannot claim, collect, or retain statutory attorney’s fees. (45 C.F.R. sec. 1642.3.) Recently, in Legal Aid Services of Oregon v. Legal Services Corporation, Case Nos. 08-35467, 08-35483 & 08-35492 (9th Cir. Nov. 23, 2009), the Ninth Circuit—in a 2-1 decision—rejected as-applied First Amendment constitutional challenges to these and other restrictions. The majority did not believe that the fee restrictions were “viewpoint-based,” because they did not forbid legal services lawyers from arguing that an adverse party is not entitled to fees. In dissent, Circuit Judge Pregerson saw it differently, finding that the restrictions prevented the legal aid organizations from taking similarly situated cases or class actions that might motivate the defendants to truly change their behavior—distortion arguments that were not properly vetted in the litigation.