March 14, 2011 — The U.S. Supreme Court's March 22 docket will feature two cases argued by instructors from the University of Virginia Law School's Supreme Court Litigation Clinic, a first for the five-year-old clinic.

Law professor Daniel Ortiz will argue Borough of Duryea (Pa.) 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 Washington litigation firm Robbins, Russell, Englert, Orseck, Untereiner & Sauber.

The Supreme Court will hear four cases from the U.Va. clinic this term, a school record. Professor Jim Ryan argued Kevin Abbott v. United States in October and clinic instructor John Elwood will argue Nevada Commission on Ethics v. Carrigan in April.

The Supreme Court receives approximately 10,000 case petitions each year, and grants and hears about 75 to 80 cases. Including upcoming arguments, the U.Va. clinic has landed eight cases before the Supreme Court since the course began in 2006.

In the clinic, a yearlong class in which 13 U.Va. law students are currently enrolled, students and instructors identify potential cases and petition for Supreme Court review. They work on briefs on the merits of the case, and attend practice arguments and Supreme Court arguments.

The clinic 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. Billy Ray Vice, who was running for re-election, was accused by his opponent, 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 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.

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

"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. Just because you may have a nonfrivolous 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 firing him in response to a grievance that involved no matter of public concern.

Charles Guarnieri filed a grievance against the Pennsylvania borough of Duryea after he was dismissed as its 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, and the clinic filed a brief on behalf of the borough encouraging the Supreme Court to take up the case.

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 the prospect 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 said the only downside to the clinic's success is having to argue 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," he said.