As the Court may recall, the District Court dismissed Plaintiffs’ constitutional challenge to various City of Chicago firearm ordinances, holding that the Second Amendment did not apply to the States. From this Court’s affirmation of the District Court’s decision, Plaintiffs successfully petitioned the United States Supreme Court for certiorari, and then prevailed before the Supreme Court on the merits of their claim.
The Supreme Court held that the Second Amendment is “fully applicable” to the States by operation of the Fourteenth Amendment, App. 5, 31, 55. The Supreme Court also made clear that the Second Amendment forbids the banning of handguns, rejecting Appellee - Defendant’s argument (“Defendant”) that handgun bans could be enacted notwithstanding the Second Amendment’s application. App. 13, 24, 25, 31, 32, 55. The case was remanded to this Court for further proceedings. App. 25.
The day after Plaintiffs obtained a reversal of this Court’s judgment and a remand of their case, the Supreme Court granted the National Rifle Association plaintiffs’ certiorari petition in the related case, and remanded that matter to this Court for further proceedings as well.
On August 25, 2010, this Court held that the cases had been mooted by Defendants’ intervening alteration of their firearms ordinances, and remanded the matters to the District Court with instructions to dismiss the case. This Court offered that Plaintiffs could file motions for attorneys’ fees, reserving judgment on whether Plaintiffs were entitled to fees. Order, Aug. 25, 2010. Although no party had raised the issue, this Court volunteered, sua sponte, the question of whether the fee motions might be barred by the rule of Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001). Id.1
Thereafter, the procedural course of the related cases diverged. The divergence is significant in its own right, and explains how the two sets of Plaintiffs came to raise arguments that only somewhat overlap.
The District Court maintains a comprehensive set of procedures governing the presentation of attorney fee motions, set forth in N.D. Ill. Local Rule 54.3. The Rule requires counsel to meet and confer, exchange requested discovery, and sets forth a timetable for generating position statements regarding fee motions, culminating in a 91-day deadline for the filing of fee motions. Shortly after the Supreme Court’s opinion, McDonald Plaintiffs’ counsel began to meet and confer with Defendant’s attorneys regarding the attorney fees and expenses issue. App. 155. McDonald Plaintiffs repeatedly provided requested information, and were advised that the City would respond with a settlement position of its own. App. 155.
Notwithstanding repeated requests, Defendants made no response, offering only that they would respond at some later time. App. 156. Finally, with the parties’ deadline for preparing a Joint Fee Statement approaching, Defendant revealed to McDonald Plaintiffs that the District Court had already ordered briefing on the prevailing party issue — in the related case. Id. Defendant did not wish to discuss the attorney fee issue further until after a particular time, which McDonald Plaintiffs discovered was immediately following a hearing the District Court had set to review the prevailing party issue in the related case. App. 156, 157.
Despite the fact that the cases had been related, and notwithstanding the absence of any order de-relating the cases, McDonald Plaintiffs were provided no notice — not by the NRA Plaintiffs; not by the Defendant City, which had insisted it would continue the settlement negotiations; and notably, not by the District Court — that the District Court was entertaining the issue of whether the Supreme Court opinion McDonald Plaintiffs obtained, in a case bearing their names, altered the legal relationship among the parties such that attorney fees could be awarded under Section 1988. App. 157.
McDonald Plaintiffs immediately filed a motion in the NRA case seeking the right to be heard on the attorney fee issue, and requesting that the District Court not rule on the matter until McDonald Plaintiffs had an opportunity to participate. Abeyance was requested only through the Plaintiffs’ original deadline to file a motion for attorneys’ fees. App. 149.2
The District Court’s response to McDonald counsel’s request to be heard included, “Are you – you think you are a better lawyer than they are?” App. 164; contra Greenlaw v. United States, 128 S. Ct. 2559, 2564 (2008) (“[O]ur adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.” ). The following day, prior to the presentation of McDonald Plaintiffs’ motion to hold the matter in abeyance and twenty days before the attorney fee motion deadline that NRA Plaintiffs had sought to extend, the District Court entered an opinion and order in the NRA case providing, inter alia, “the Supreme Court’s decision in McDonald — which, it will be remembered, resulted in no judicial implementation on remand — did not meet the requirements of Section 1988 under Buckhannon.” SA 8.
Presented with this fait accompli, McDonald Plaintiffs nonetheless filed their own motion for instructions regarding the prevailing party issue, pursuant to N.D. Ill. Local Rule 54.3(g). Had the District Court entertained full and equal participation by all parties in determining the prevailing party issue, the Plaintiffs might have better coordinated and consolidated their various arguments.
As it were, the McDonald Plaintiffs adopted the NRA Plaintiffs’ position, but also raised three points apparently not raised by NRA: first, the Supreme Court’s holding applying the Second Amendment to the States altered the legal relationship between the parties; second, the Supreme Court’s opinion did not merely prompt Defendant to repeal its handgun ban, but actually decided, specifically, that handgun ban’s unconstitutionality; and finally, with no expectation other than to preserve the issue for possible Supreme Court review, McDonald Plaintiffs asserted that Buckhannon was wrongly decided.
On January 3, 2011, the District Court barred the filing of McDonald Plaintiffs’ Section 1988 motion by holding, under its earlier reasoning, that the Supreme Court’s opinion in this case did not satisfy Buckhannon’s prevailing party definition. SA 14. McDonald Plaintiffs timely noticed their appeal. App. 130. Three days later, the District Court treated the two cases as related by entering one opinion for both, supplementing its reasoning. SA 19.
1 The City offered only that the case “should be remanded to the District Court for further proceedings, including the plaintiffs’ claims for attorney’s fees.” Def. Circuit Rule 54 Statement, Aug. 23, 2010 at 4.
2 The order to brief the prevailing party issue was prompted by NRA Plaintiffs’ request for an extension of time and the setting of a discovery schedule regarding their attorney fee motion.
