Justices to Hear Two Cases on Same Day from U.Va.'s Supreme Court Litigation Clinic

January 04, 2011

January 4, 2011 — The University of Virginia 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.

Law 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 Robbins, Russell, Englert, Orseck, Untereiner & Sauber, a Washington, D.C., firm that specializes in litigation.

The day will bring the tally of clinic cases heard by the Supreme Court to seven since the class began in 2006. Law 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 the Fox case after the Supreme Court agreed to hear it 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 filed a federal civil rights lawsuit against Vice and the town based on Vice's alleged actions. Separately, Vice was found guilty in state criminal court of extortion for sending Fox an anonymous letter warning him not to run.

"The courts below concluded that Fox's civil rights claims were frivolous," Stancil said. He explained that, in order to have a civil rights violation against an individual, a plaintiff must show that the defendant was acting in the capacity of office. "To get damages against a municipality a plaintiff must show that the defendant had an actual policy or custom of doing this," he said.

The district court held that Fox 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, Stancil said.

"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.

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 a government employee is protected by the First Amendment's petition clause if he sues his employer for retaliation, even when the suit concerns a matter solely of concern to the petitioner and not to the public.

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 suffered retaliation, in the form of withheld overtime and job directives, for exercising his right to petition. The Third U.S. Circuit Court of Appeals agreed with Guarnieri, ruling that the petition clause does indeed protect a government employee who has filed a grievance or lawsuit from retaliation, even if the grievance is about private concerns, such as overtime.

Third-year law student Wells Harrell said the outcome has 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."

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."