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Roberts, fee-shifting, and the balance of sympathy

Some critics have assailed John Roberts for the majority opinion he wrote in Taucher v. Brown-Hruska, a case decided by a D.C. Circuit panel in January. The Taucher case pitted the Commodity Futures Trading Commission against publishers of commodities newsletters which sought to resist, on First Amendment grounds, CFTC's contention that they were obliged by statute to register as investment advisors and undertake various other regulatory burdens. A judge eventually agreed with the publishers' First Amendment argument and the CFTC appealed, but the case was mooted when the commission dropped its attempt to regulate the newsletters. The question then arose whether the publishers were entitled to recover attorneys' fees from the commission under the Equal Access to Justice Act (EAJA), which provides that certain litigants can recover fees from the government when the position it has taken in litigation is not reasonably based in law or fact. Reversing the trial court, Roberts ruled that the government's position had not been unreasonable because the relevant law had been unsettled, and that the publishers therefore could not recover fees. Judge Karen LeCraft Henderson concurred, while Judge Harry Edwards dissented.

Why should anyone take alarm at this ruling? Well, according to the self-proclaimed People for the American Way (PfAW), it's a question of "access to justice": EAJA "is important in opening access to the courts to persons who might otherwise not be able to challenge unlawful or unconstitutional government action." The enviro-left legal strike force EarthJustice (EJ) likewise claims the ruling (PDF) raises "concerns about his philosophy on access to courts". Both PfAW and EJ mention that the newsletter publishers were represented by a "public interest law firm". The implication, one supposes, is that Roberts is the kind of judge who would take crumbs (in this case $182,425.55) from the mouths of public interest lawyers, who need to eat too if they are to go on filing their publicly interested lawsuits. (Ironically, the next entry in PfAW's sidebar list of anti-Roberts categories is entitled "Defending the Treasury"; its sole entry at present is a case in which Roberts was allegedly not sympathetic enough to qui tam whistleblower complaints).

Both PfAW and EJ coyly refrain from informing readers exactly which "public interest law firm" was representing the newsletters, but a glance at the opinion shows that the attorneys were none other than Scott Bullock and William ("Chip") Mellor of the Institute for Justice (IJ), the very widely known conservative/libertarian law firm that frequently goes to bat (as in Kelo v. New London, the eminent-domain case) for property owners and businesses faced with excessive government regulation. Not only is IJ immensely popular on the Right, but the cause in which it was acting in this case -- protecting the free-speech rights of investment newsletters -- is a long-time favorite in conservative/libertarian circles. In other words, the case is one in which Judge Roberts ruled against the side that probably commanded his sympathies (assuming he's much of a conservative) and in favor of an intrusive regulatory agency as well as, incidentally, the taxpayers. Is there any real doubt that, had he come down on the other side, the case would turn up on some list of his rulings supposedly proving that he sides with business against government regulation?

There remains, of course, the central issue in the case, namely whether the particular dispute fell within the legislated bounds of EAJA's fee entitlement (since EAJA is not a general fee-shifting statute but rather one whose application is triggered only by certain situations). After reading the case, I can only say -- as someone whose instinctive sympathies on the underlying merits are 100% with the newsletter publishers and 0% with the CFTC's -- that I find it hard to argue with Roberts's conclusion that the state of the law on the relevant matters was indeed unsettled, precluding EAJA's application. To reiterate, then: by all appearances, Roberts set aside his likely sympathies as to the parties in the case and ruled according to his honest view of the statute's reasonable application. No wonder they want to fry him!

Incidentally, Baseball Crank covered the original decision at the time, concentrating on an important (if secondary) side issue it raised, namely whether agencies are duty bound to defend the constitutionality of their statutes under any circumstances (Judge Roberts wisely thought not). And Edward Whelan discussed the case in a post on NRO's "Bench Memos" (& welcome Jonathan Adler, Stephen Bainbridge readers).



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.