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Appeal Addresses Fees in Suit Challenging Kentucky Law Limiting Protests At Military Funerals

By FindLaw Staff on July 30, 2010 6:49 PM

McQueary v. Conway, 09-5807, concerned a challenge to the  district court's denial of plaintiff's request for fees following dismissal of the lawsuit as moot after Kentucky repealed the challenged provisions of a Kentucky law, placing limits on protests at military funerals (six months after district court's grant of plaintiff's motion to enjoin enforcement of the law on a preliminary basis).  Plaintiff had challenged the validity of the Kentucky law, claiming that the law violated his free-speech rights. 

In reversing denial of fees, the court held that the district court's explanations for denying fees in this case do not hold up because, although caselaw makes clear that when a claimant wins a preliminary injunction and nothing more, that usually will not suffice to obtain fees under section 1988, what remains unclear is when the occasional exceptions to that rule should apply, and the district court must undertake a contextual and case-specific inquiry.

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