What should a federal court do when a plaintiff brings a facial challenge to a legal provision, but can show only that the legal provision is invalid as applied in certain circumstances? That is one of the questions raised by the Tenth Circuit’s decision in Scherer v. United States Forest Service.
A common response is to deny relief on the facial challenge and leave open the possibility of an as-applied challenge in a later case. That is what the Tenth Circuit did in Scherer.
Another option available in some cases is to convert the facial challenge into an as-applied challenge and to craft relief tailored to the as-applied violation. That is what the Supreme Court did in Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006).
I have not studied the matter in detail, but my impression is that “Ayotte conversions” remain rare. Regardless of whether that descriptive observation is correct, it is an interesting question whether such conversions ought to be more common. I am inclined to think that the answer is yes, although this inclination is only that at this point.
The question is an important one given its consequences not only for the development of the law, but also for how its resolution affects the parties in any particular case. If the court converts and grants relief, then the plaintiff may be entitled to attorneys’ fees, whereas no such entitlement even arguably exists if the court simply denies relief. In Ayotte, for example, the district court on remand needed to decide whether to award fees. New Hampshire argued against an award of fees on the ground that the plaintiffs brought a facial challenge and lost. The district court rejected this argument and awarded fees, reasoning that the plaintiffs had prevailed even though they had not obtained relief as broad as originally sought.