Pending Cases

$75 million Attorneys’ fees case

SCPIF and John Crangle v. Alan Wilson, Attorney General of SC

Below is a brief review of this lawsuit. Following that is a description of subsequent events.

At present, all of the waste plutonium in the Eastern United States is stored in South Carolina, at the Savannah River site in Aiken. Under federal law, the Department of Energy was supposed to remove all that plutonium and move it to another storage facility by 2016. (50 U.S. Code §2566(d).) If it failed to do so, the DOE was instructed to pay to the state of SC $100 million per year ”subject to the availability of appropriations” “for economic and impact assistance” until such removal is completed. Such removal has not yet occurred, and the state was not paid the money, so in 2017 the Attorney General decided to pursue a collection action against the federal government.

Attorney General Wilson hired, on a contingent fee basis, two outside law firms (including the one he used to work for) to prosecute this litigation. They lost twice at the trial court level (in the Federal District Court and in the US Court of Claims), and on appeal to the Federal Circuit. They were in the process of preparing an appeal to the Supreme Court which was never filed. However, at that point the politicians stepped in, and the Governor and our Senators applied pressure to the Federal government and negotiated a settlement with the Department of Justice. 

Under that agreement the deadline for removal of the plutonium was extended by 15 years, to 2032, and the Federal government paid to SC the lump sum of $600 million. Out of that money Wilson announced that he was paying $75 million to the outside law firms, including his own former firm, for losing these four cases. SCPIF and our co-plaintiff, citizen-activist John Crangle, then filed suit, alleging that the attorneys’ fees in this case were unreasonable, and that Wilson lacked the authority to make that payment as it had not been approved by a judge; but the money should instead have gone into the State’s General Fund for appropriation by the General Assembly.

In 2020, the plaintiffs (SCPIF and Crangle) sought a temporary injunction to prevent payment of the $75 million to the law firms. However, on the morning that motion was scheduled to be argued, the Office of the Attorney General requested that the State Treasurer expedite payment of those fees; so the money had already gone out before our hearing on an injunction could be held. As a consequence, we amended our complaint to bring in as additional defendants the two law firms, in the hope of clawing back some of that money, should we win.

The trial court denied us standing and dismissed the case. We appealed that decision to the state Supreme Court, which reversed it, granting SCPIF standing and sending the case back to the trial court for a decision on the merits. The trial court again ruled against us in a summary judgment, which we again appealed. Despite the Supreme Court’s earlier order, the trial court failed to rule on the merits of the case, but only ruled on one question which the Plaintiffs had never raised but had actually conceded: whether the Attorney General has the authority to enter into contingency fee agreements.

Oral arguments on this second appeal were held in the Supreme Court last Wednesday, April 2, 2025. The justices took turns grilling both sides, and from my perspective their questions seemed focused primarily on the definition of a “settlement,” since state law provides that monies received by the Attorney General must be remitted to the state’s General Fund unless “awarded by court order or settlement”, (SC Code §1-7-150(B)). There was also some interrogation of counsel over whether the $75 million fee was “reasonable”, but in general none of the five justices seemed clearly on the side of either party.

In my opinion it is folly to speculate on how the Court will rule. However, at the risk of being labelled a fool, I will offer my suggestion: Since the trial court refused to follow the Supreme Court’s instruction and rule on the merits of the case, and since so much of the Justices’ questioning concerned the reasonableness of the $75 million fee, as to which there has been no discovery (the defendants have refused to permit it), I suspect this case will again be remanded to the trial court for a ruling on those issues. A third appeal (filed by whichever party loses there) might then follow.