Steven Kay v. David Douglas School District No. 40, 484 U.S. 1032

Steven Kay v. David Douglas School District No. 40

484 U.S. 1032

SCOTUS

1988

Check Treatment

CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE v. SECRETARY OF TRANSPORTATION OF PENNSYLVANIA ET AL.

No. 87-624

C. A. 3d Cir.

1032

ity in Barrett, however, four concurred specially, noting that they joined the majority only to establish a firm rule but would have preferred to adopt the test formulated by the Seventh Circuit, which puts the issue of seaman status to a jury whenever the person “had a more or less permanent connection with a vessel in navigation” and “made a significant contribution to the maintenance, operation, or welfare of the transportation function of the vessel.”

Johnson v. John F. Beasley Constr. Co., 742 F. 2d 1054, 1063 (7th Cir. 1984), . Judge Rubin dissented, joined by five other judges, stating that the Robison test should be supplemented by considering the person‘s status not only in light of his permanent job assignment but also in light of any assignment imposed on him for a hitch of more limited duration. Barrett, supra, at 1077-1078.

The test used by the Fifth Circuit to determine seaman status is inconsistent with the test used by the Seventh Circuit. In addition, the Third Circuit has formulated the second part of the Robison test as whether the person is aboard the vessel “primarily to aid in its navigation.”

Simko v. C. & C. Marine Maintenance Co., 594 F. 2d 960, 964 (3d Cir. 1979), . The split among the Circuits on this issue warrants our granting certiorari.

No. 87-624. CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE v. SECRETARY OF TRANSPORTATION OF PENNSYLVANIA ET AL. C. A. 3d Cir. Certiorari denied. JUSTICE WHITE and JUSTICE MARSHALL would grant certiorari.

No. 87-734. KAY ET AL. v. DAVID DOUGLAS SCHOOL DISTRICT NO. 40 ET AL. Sup. Ct. Ore. Certiorari denied.

JUSTICE WHITE, dissenting.

This case presents the difficult question whether a plaintiff can recover attorney‘s fees under 42 U. S. C. § 1988 when the underlying action has become moot because of compliance by the defendant with a court order. Here petitioners challenged respondents’ plans to incorporate formal public prayer in the commencement exercises of a public high school. After numerous unsuccessful attempts to persuade respondents to drop the public prayer, petitioners brought suit in state court, challenging respondents’ plans as violative of the State and Federal Constitutions and seeking attorney‘s fees under state law and § 1988. The trial court made an oral ruling that the planned public prayer violated state and federal law, and consequently respondents dropped the public prayer from the commencement exercises. About a month after the commencement exercises, the trial court issued a written order reaffirming the earlier oral decision and awarding attorney‘s fees. The Oregon Court of Appeals affirmed the holding that the planned public prayer violated the State Constitution and affirmed the award of attorney‘s fees under § 1988.

79 Ore. App. 384, 719 P. 2d 875 (1986).

The Oregon Supreme Court reversed the Court of Appeals and remanded the case to the trial court to vacate the judgment.

303 Ore. 574, 738 P. 2d 1389 (1987). The court reasoned that there was no longer a justiciable controversy because petitioners had already graduated, public prayer was not included in their commencement exercises, and petitioners did not seek to enjoin future repetitions of this challenged conduct. The court held that under Oregon law, the oral order was not an effective preliminary injunction or final order until it was reduced to writing and by the time it was rendered in writing the controversy was no longer justiciable.

The Oregon Supreme Court‘s decision that a § 1988 fees award is not available in this case creates a conflict in the courts over the award of fees when the underlying action is rendered unreviewable after it has been filed. The courts are in agreement that a § 1988 fees award is proper where the defendant “voluntarily” complies under threat of the lawsuit, for such compliance, although mooting the lawsuit, shows acquiescence in the plaintiff‘s position. E. g.,

Martin v. Heckler, 773 F. 2d 1145, 1148-1149 (CA11 1985) (en banc); ; see (“[I]f the defendant, under pressure of the lawsuit, alters his conduct (or threatened conduct) towards the plaintiff that was the basis for the suit, the plaintiff will have prevailed“). The more difficult question presented by this case is whether a defendant‘s “involuntary” compliance with a seemingly valid court order supports an award of fees under § 1988, where such compliance, under fear of contempt, moots a lawsuit such as this one but does not demonstrate acquiescence in plaintiff‘s position. The decision here denying an award of fees under § 1988 conflicts with decisions from three Circuits upholding § 1988 fees awards in the involuntary-compliance-plus-mootness context. ; (per curiam), ; , .

The federal issue raised by this petition for certiorari is substantial and requires resolution by this Court. An award of fees under § 1988 to these petitioners may be appropriate, for petitioners were in one sense “prevailing parties“: although the dispute was later held to be moot, the seemingly valid oral ruling by the trial court gave them all that they sought. On the other hand, there has never been a final determination, tested on appeal, that petitioners’ position was legally sound. Arguably, respondents should not be forced to bear an award of fees where they have never been finally determined to have violated the Federal Constitution or laws and have steadfastly maintained the contrary position. And arguably, under

United States v. Munsingwear, Inc., 340 U. S. 36, 39-40 (1950), no party should be prejudiced by a decision which in the statutory scheme for judicial decisionmaking was only preliminary. The resolution of these competing concerns is plainly important to determining who is a “prevailing party” under § 1988. Because of the conflict in the courts over this question of federal law, I would grant certiorari.