Bench Memos

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Feeble, Laughable PFAW—Part III


Another of the grand total of five judicial opinions of Judge Roberts that PFAW attacks is his ruling in Taucher v. Brown-Hruska that denied an award of attorney’s fees to plaintiffs in a case brought against the Commodity Futures Trading Commission. You’ll have to try really hard to stay awake as I describe the severe threat to American liberties that PFAW pretends to see in this case.

In order to combat fraudulent practices affecting the commodity futures market, Congress enacted the Commodity Exchange Act. That Act makes it unlawful for any commodity trading adviser to use any means of interstate commerce in connection with its business unless it first registers under the Act. Certain publishers who were commodity trading advisers challenged the registration requirement as violative of the First Amendment. Reasoning from a 1945 concurring opinion by Justice Jackson and a 1985 concurring opinion by Justice White, the district court determined that the registration requirement was a regulation of the publishers’ speech rather than a regulation of professional practice and that it was an unconstitutional prior restraint.

After the CFTC abandoned its appeal, the plaintiff publishers sought to recover attorney’s fees under a statute that awards attorney’s fees to a party prevailing against the government unless the government’s losing legal position is “substantially justified.” A magistrate determined that it was “so self-evident and obvious” that the registration requirement was not regulation of professional practice that the CFTC’s position was not “substantially justified.” It therefore awarded attorney’s fees.

Judge Roberts’s majority opinion rejected the magistrate’s determination that the CFTC’s position was not “substantially justified.” Judge Roberts noted, among other things, that the district court’s merits ruling had relied on two concurring opinions (as opposed to established Supreme Court precedent) and that the discussions in those very opinions belied the magistrate’s assertion that the issue was “self-evident and obvious.” Judge Edwards, in dissent, believed that the abuse-of-discretion standard applicable to review of the fee award required that the majority defer to the magistrate’s determination.

From this highly factbound dispute over the proper application of the abuse-of-discretion standard, PFAW would evidently have us believe that Judge Roberts’s ruling somehow undermines a fee award statute that “is important in opening access to the courts to persons who might otherwise not be able to challenge unlawful or unconstitutional government action.” Americans may sleep safely tonight knowing that PFAW’s contention is hogwash.


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