Hundreds of lawyers who filed cert petitions in recent months are waiting for the U.S. Supreme Court to decide at its so-called long conference on September 25 whether or not to grant review.

But in an unusual move August 25, the court moved one of the petitions to the head of the line and granted cert a month before the conference, much to the surprise of the petitioner s lawyer, UCLA School of Law professor Stuart Banner.

The clerk s office was nice enough to notify us, Banner said in an interview. We never would have thought to look at the summer orders list issued that day. Summer orders usually are routine denials of rehearings and the like, and adding a cert grant is almost unheard of. The far-flung justices do not meet in person to approve summer orders, as they do during the court term. Emails and phone calls substitute for face-to-face discussions.

The case the court granted is Murphy v. Smith, a dispute from Illinois over attorney fees in cases in which a prison inmate wins a money judgment in a 1983 civil rights lawsuit. At issue is what percentage of the attorney fee award should come from the inmate s damage award, and how much should come from the defendants who committed the civil rights violations.

So why did the court speed up the cert process for Banner, who represents petitioner-inmate Charles Murphy? Banner suggests that the trigger for the court may have been the court s calendar as much as anything else, because of a shortage of oral arguments lined up for the fall term.

The court has already filled its October calendar with 13 cases taking up 10 hours of argument. (Usually the court hears 12 arguments each two-week cycle, but October 9 is a federal holiday.) The November and December sessions could accommodate 24 hours of arguments, but the court has granted only 17 hours worth of cases so far. If the court waits until after the September 25 conference to announce additional cert grants, lawyers in those cases could face a compressed briefing schedule if they are put on the December calendar. The addition of the Murphy case last week would fill one argument opening, but gaps could remain.

Another factor: the court on August 10 dismissed PEM Entities v. Levin, a bankruptcy case, from the argument docket as improvidently granted, creating another opening on the calendar.

Whatever the court s motivation was, it could have picked another case or cases to add to the fall docket besides Murphy. In theory at least, the justices and their clerks are combing through incoming petitions throughout the recess.

So what s special about Murphy v. Smith? Two possible answers; it has been lingering on the docket for a long time, and may have appeared to justices as a slam-dunk grant with clear circuit conflicts and a straightforward issue of statutory interpretation that matters to a significant number of people.

Banner, who leads the law school s Supreme Court clinic, said he came upon the case last December by combing through appeals court decisions, as high court advocates often do. The decision in the Murphy case by the U.S. Court of Appeals for the Seventh Circuit seemed so wrong to me, Banner said, so he called Murphy s original lawyer Fabian Rosati to suggest appealing to the Supreme Court.

Rosati gave the green light, and Banner and his clinic students worked on the petition in the early months of 2017. It was filed in March, but after extensions sought by the other side, the case was scheduled for discussion by the court on September 25. Our students were very happy to hear cert was granted, Banner said.

In 2011, two correctional officers at Vandalia Correctional Center in Illinois hit inmate Murphy repeatedly, causing permanent eye damage. Murphy sued in federal court under 1983, and a jury awarded him compensatory and punitive damages of $410,000. A judge reduced the damages to $307,733, and ordered that 10 percent of Murphy s damage award go toward paying attorney fees. The rest would be paid by the officers or the state of Illinois.

On appeal the officers, represented by Illinois, argued that under the Prison Litigation Reform Act, 25 percent of the attorney fees had to come from Murphy s award, not 10 percent. The law states that a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney s fees awarded against the defendant.

The Seventh Circuit, in a ruling by Judge David Hamilton, agreed with the officers, asserting that under the most natural reading of the law, 25 percent of Murphy s damages must go toward the attorney fee awards before the defendants have to contribute anything.

Citing contrary decisions by four other circuits the Second, Third, Sixth and Eighth Banner s petition asserts that a literal interpretation of the not to exceed 25 percent clause of the law gives the district court discretion to apply percentages lower than 25 percent to pay for attorney fees. Illinois solicitor general David Franklin, who represents the corrections officers in the case, declined to comment.

This is not a trivial issue, Banner said, because the Seventh Circuit s interpretation, if upheld, would take a bigger chunk out of prisoners awards. Nor is it rare, Banner added. This issue comes up every time a prisoner with an attorney wins damages under Section 1983. Now, because of a calendar quirk, the issue could be resolved sooner than anyone could have predicted.