Amicus Curiae Brief — Tre Hargett, Tennessee Secretary of State, et al., Petitioners v. Tennessee State Conference of the NAACP, et al.

No. 22-773

In The

Supreme Court of the United States

----------------------------------------------------------------------TRE HARGETT, et al.,

Petitioners,

v.

TENNESSEE STATE CONFERENCE

OF THE NAACP, et al.,

Respondents.

----------------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

----------------------------------------------------------------------BRIEF OF THE STATES OF GEORGIA,

ALABAMA, ARKANSAS, FLORIDA, INDIANA,

IOWA, KENTUCKY, LOUISIANA, MISSISSIPPI,

MONTANA, NEBRASKA, OHIO, OKLAHOMA,

SOUTH CAROLINA, TEXAS, AND VIRGINIA AS

AMICI CURIAE SUPPORTING PETITIONERS

----------------------------------------------------------------------CHRISTOPHER M. CARR

Attorney General

STEPHEN J. PETRANY

Solicitor General

Counsel of Record

PAUL R. DRAPER*

Honors Fellow

OFFICE OF THE GEORGIA

ATTORNEY GENERAL

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3408

spetrany@law.ga.gov

Counsel for Amici

*Admitted in California; supervised

by members of the Georgia Bar.

i

TABLE OF CONTENTS

Page

Table of Authorities .............................................

ii

Interests of the Amici Curiae ..............................

1

Summary of the Argument ..................................

2

Argument .............................................................

3

I.

The question presented is recurring and

important to the States .............................

3

A. Plaintiffs regularly seek and courts

impose substantial fee awards against

state officials based on preliminary injunctions when cases end without a

merits judgment in the plaintiff ’s favor ........................................................

4

B. The circuit courts have failed to establish a clear and consistent test for

when a preliminary injunction supports a fee award in a case that ends

without a merits judgment ..................

9

C. Messy and unpredictable tests for fee

eligibility impose needless costs on

states and their residents ................... 14

II.

The Sixth Circuit below, and other circuit

courts, apply tests for fee eligibility that

conflict with this Court’s precedents ......... 18

Conclusion............................................................ 22

ii

TABLE OF AUTHORITIES

Page

CASES

Amawi v. Paxton,

48 F.4th 412 (5th Cir. 2022) ....................................13

Buckhannon Bd. & Care Home, Inc. v.

W. Va. Dep’t of Health & Human Res.,

532 U.S. 598 (2001) ............ 2, 9, 13, 14, 16, 18, 20, 21

Citigroup Glob. Mkts., Inc. v. VCG Special

Opportunities Master Fund Ltd.,

598 F.3d 30 (2d Cir. 2010) ................................. 12, 13

City of Burlington v. Dague,

506 U.S. 557 (1992) ...................................................2

Common Cause Georgia v. Sec’y, State of Georgia,

17 F.4th 102 (11th Cir. 2021) .................... 5, 6, 17, 18

Common Cause/Georgia v. Billups,

406 F. Supp. 2d 1326 (N.D. Ga. 2005) .......................4

Common Cause/Georgia v. Billups,

504 F. Supp. 2d 1333 (N.D. Ga. 2007) .......................5

Common Cause/Georgia v. Billups,

554 F.3d 1340 (11th Cir. 2009) ...................... 5, 17, 20

Common Cause/Georgia v. Billups,

No. 4:05-cv-0201, 2007 WL 9723985

(N.D. Ga. Dec. 27, 2007) ............................................5

Davis v. Abbott,

781 F.3d 207 (5th Cir. 2015) ......................................9

Davis v. Perry,

991 F. Supp. 2d 809 (W.D. Tex. 2014) ................... 8, 9

iii

TABLE OF AUTHORITIES—Continued

Page

Dearmore v. City of Garland,

519 F.3d 517 (5th Cir. 2008) ........ 9, 10, 12, 13, 17, 20

Douglas v. District of Columbia,

67 F. Supp 3d 36 (D.D.C. 2014) .................................8

Evans v. Jeff D.,

475 U.S. 717 (1986) .................................................16

Hewitt v. Helms,

482 U.S. 755 (1987) .................................................22

Higher Taste, Inc. v. City of Tacoma,

717 F.3d 712 (9th Cir. 2013) .............................. 17, 20

Hoosier Energy Rural Elec. Coop. v.

John Hancock Life Ins. Co.,

582 F.3d 721 (7th Cir. 2009) ....................................13

Kan. Judicial Watch v. Stout,

653 F.3d 1230 (10th Cir. 2011) ............................ 6, 12

Kan. Judicial Watch v. Stout,

No. 06-4056, 2012 WL 1033634

(D. Kan. Mar. 27, 2012) .............................................6

Marek v. Chesny,

473 U.S. 1 (1985) .....................................................16

McQueary v. Conqay,

614 F.3d 591 (6th Cir. 2010) .............................. 10, 11

N. Cheyenne Tribe v. Jackson,

433 F.3d 1083 (8th Cir. 2006) ..................................11

People Against Police Violence v.

City of Pittsburgh,

520 F.3d 226 (3d Cir. 2008) ................................. 6, 17

iv

TABLE OF AUTHORITIES—Continued

Page

Reilly v. City of Harrisburg,

858 F.3d 173 (3d Cir. 2017) .....................................13

Rogers Group, Inc. v. City of Fayetteville,

683 F.3d 903 (8th Cir. 2012) ................................ 7, 11

Select Milk Producers, Inc. v. Johanns,

400 F.3d 939 (D.C. Cir. 2005) ..................................12

Serono Labs., Inc. v. Shalala,

158 F.3d 1313 (D.C. Cir. 1998) ................................13

Sinapi v. Rhode Island Bd. of Bar Exam’rs,

910 F.3d 544 (1st Cir. 2018) ....................................10

Singer Mgmt. Consultants, Inc. v. Milgram,

650 F.3d 223 (3d Cir. 2011) (en banc) .....................10

Smyth v. Rivero,

282 F.3d 268 (4th Cir. 2002) ....................................10

Sole v. Wyner,

551 U.S. 74 (2007) ............................................. 18-21

Tenn. State Conf. of NAACP v. Hargett,

53 F.4th 406 (6th Cir. 2022) .......................... 4, 11, 19

Tenn. State Conf. of NAACP v. Hargett,

No. 3:19-cv-00365, 2021 WL 4441262

(M.D. Tenn. Sept. 28, 2021) .......................................4

Tex. State Teachers Ass’n v.

Garland Indep. Sch. Dist.,

489 U.S. 782 (1989) ................................ 12-14, 18, 21

Tri-City Cmty. Action Program, Inc. v.

City of Malden,

680 F. Supp. 2d 306 (D. Mass. 2010) .........................8

v

TABLE OF AUTHORITIES—Continued

Page

Watson v. County of Riverside,

300 F.3d 1092 (9th Cir. 2002) ................................ 6, 7

In re Witness Before Special Grand Jury 2000-2,

288 F.3d 289 (7th Cir. 2002) ....................................15

STATUTES

15 U.S.C. § 1117 ............................................................7

20 U.S.C. § 1415 ........................................................ 7, 8

28 U.S.C. § 2412 ............................................................7

42 U.S.C. § 1983 ................................................ 7, 16, 17

42 U.S.C. § 1988 ..................................... 1-4, 7, 9, 18, 21

42 U.S.C. § 2000e-5 .......................................................7

42 U.S.C. § 3613 ........................................................ 7, 8

42 U.S.C. § 12205 ..........................................................7

52 U.S.C. § 10310 ...................................................... 7, 9

OTHER AUTHORITIES

11A Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 2948.3 (3d

ed. 2022) ..................................................................12

Steven K. Berenson, Public Lawyers, Private

Values: Can, Should, and Will Government

Lawyers Serve the Public Interest?, 41 B.C. L.

Rev. 789 (2000) ........................................................15

1

INTERESTS OF THE AMICI CURIAE1

This case is about how to interpret the term “prevailing parties,” the statutory threshold for deciding

when parties in certain civil rights lawsuits are eligible for attorney’s fees. 42 U.S.C. § 1988. The States

have obvious sovereign interests in the proper construction of this threshold because state officials are

often defendants in these cases, and the States will inevitably pay any fee awards against them. At the least,

the States need clear and predictable rules for when

they may be exposed to such awards so they can structure their conduct—budgeting, litigation, and otherwise—accordingly.

Unfortunately, the circuit courts have not supplied

clear, predictable rules for the question of fee eligibility

this case presents: when can a preliminary injunction

serve as the basis for attorney’s fees if the party seeking them never wins a final merits ruling? This question often arises when a state takes steps that resolve

a plaintiff ’s concerns—for example, amending a voter

ID law or changing an enforcement policy—after a preliminary injunction is issued. If the state’s actions will

expose it to a substantial fee award, the state needs to

know that in advance so it can make an informed decision whether to press on with the lawsuit. Without

clear rules to guide that decision, the States are left to

gamble with public money. The amici States therefore

urge this Court to step in and clear up this question so

This brief serves as notice to counsel for all parties. See

Sup. Ct. Rule 37.2.

1

2

the States can make sound litigation and policy decisions on the public’s behalf.

SUMMARY OF THE ARGUMENT

The petition identifies a recurring issue of great

importance to the States. Under 42 U.S.C. § 1988 and

a number of other federal statutes, plaintiffs regularly

seek and courts sometimes impose substantial fee

awards against state officials where the plaintiffs obtain a preliminary injunction but no final relief because the case becomes moot. Yet the circuit courts

have not established clear or consistent standards for

when, if ever, attorney’s fees are authorized under

these circumstances. Instead, the circuits apply amorphous, subjective tests that fall far short of this Court’s

repeated calls for “ready administrability” in fee eligibility standards. Buckhannon Bd. & Care Home, Inc. v.

W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 610

(2001) (quoting City of Burlington v. Dague, 506 U.S.

557, 566 (1992)). These unstable and often contradictory tests impose needless costs on the States and their

residents in the form of protracted secondary litigation

over fees. This uncertainty then complicates the

States’ litigation and policy decisions, and it produces

a perverse incentive to continue litigating cases to final

judgment to avoid spending the public’s money on attorney’s fees.

Many circuits, including the Sixth Circuit here,

allow fee awards to preliminary injunction winners

under circumstances that conflict with the plain language of § 1988 and this Court’s precedents. Those

3

precedents make clear that a party is not a “prevailing

party” entitled to attorney’s fees unless the party secures relief that is both (1) court-ordered and (2) enduring. Cobbling together these requirements from a

preliminary injunction (court-ordered, but not enduring) and nonjudicial circumstances that moot the case

(perhaps enduring, but not court-ordered) is not good

enough. This Court should grant the petition to make

that clear for all.

ARGUMENT

I.

The question presented is recurring and

important to the States.

The question presented is when, if ever, a plaintiff

who wins a preliminary injunction but not a merits

ruling is a “prevailing party” entitled to attorney’s fees

under 42 U.S.C. § 1988. This question is a recurring

one because plaintiffs regularly seek attorney’s fees in

these circumstances, which mostly arise when the defendant’s (or a third party’s) actions resolve the plaintiff ’s concerns after a preliminary injunction is issued

but before the court decides the merits of the case. And

it is important for this Court to provide a clear answer

to this question because the circuit courts have not:

their tests for addressing fee eligibility in these circumstances are subjective and unpredictable. This imposes unnecessary costs on the States and their

residents.

4

A. Plaintiffs regularly seek and courts impose substantial fee awards against

state officials based on preliminary injunctions when cases end without a

merits judgment in the plaintiff ’s favor.

The plaintiffs in this case failed to win a merits

ruling on any of their claims against Tennessee officials before the State’s independent and voluntary actions gave the plaintiffs what they sought and mooted

their case. Yet, because the district court had earlier

issued a preliminary injunction, the court deemed

them “prevailing parties” under § 1988 and put Tennessee on the hook for $795,292.39 in attorney’s fees

and expenses. See Tenn. State Conf. of NAACP v.

Hargett, No. 3:19-cv-00365, 2021 WL 4441262, at *11

(M.D. Tenn. Sept. 28, 2021), aff ’d, 53 F.4th 406 (6th Cir.

2022). The plaintiffs did not win their lawsuit, but after being hit with a nearly seven-figure attorney’s fee

award, Tennessee can hardly be faulted for thinking it

lost.

Unfortunately for the States, Tennessee is not an

outlier. Plaintiffs regularly seek and courts have been

willing to impose substantial fee awards against state

officials under § 1988 based on this same combination:

a preliminary injunction, and a case that ends without

the plaintiffs having won a merits judgment.

Take Georgia. In Common Cause/Georgia v. Billups,

the district court issued a preliminary injunction

against enforcement of a voter ID law. 406 F. Supp. 2d

1326, 1377 (N.D. Ga. 2005). After Georgia enacted a

5

new law that expanded the ways for voters to comply

with the ID requirement, and after reviewing the new

law on the merits, the court ultimately denied permanent injunctive relief because Georgia’s “compelling

interest in preventing fraud in voting” outweighed any

burden that the ID requirement might have on the

right to vote. 504 F. Supp. 2d 1333, 1382–83 (N.D. Ga.

2007), aff ’d in relevant part, 554 F.3d 1340, 1355 (11th

Cir. 2009). So the plaintiffs didn’t just fail to win a

merits judgment—they lost the case. Yet the State was

forced to pay $112,235.03 in fees because the plaintiffs

had obtained a preliminary injunction against the old

law. 554 F.3d at 1356; No. 4:05-cv-0201, 2007 WL

9723985, at *22 (N.D. Ga. Dec. 27, 2007).

More recently, in Common Cause Georgia v. Secretary, State of Georgia, the plaintiffs argued that security issues in Georgia’s voter registration system could

result in the erroneous rejection of some provisional

ballots. 17 F.4th 102, 105 (11th Cir. 2021). The district

court granted a temporary restraining order—the

most preliminary form of relief—directing Georgia’s

Secretary of State to take steps to ensure the accuracy

of the November 2018 election results. Id. at 106. Before the district court could consider the plaintiffs’ request for permanent relief, however, the State enacted

two new voting laws that resolved the plaintiffs’ concerns, and the parties agreed to dismiss the action with

prejudice. Id. Based solely on the temporary restraining order, which the plaintiffs themselves acknowledged was “a very, very narrow order,” the district

6

court awarded $166,210.09 in fees and expenses. Id. at

105–06.

Other states, and their political subdivisions too,

have been made to pay large fee awards under the

same basic set of circumstances:

•

In Kansas Judicial Watch v. Stout, candidates

for judicial office obtained a preliminary injunction preventing the Kansas Commission

on Judicial Qualifications from disciplining

them for responding to a candidate questionnaire. 653 F.3d 1230, 1233–34 (10th Cir. 2011).

The Kansas Supreme Court revised the challenged canons before the district court decided the merits of the challenge. Id. at 1234.

Kansas paid $151,470.08 in fees. See No. 064056, 2012 WL 1033634, at *14 (D. Kan. Mar.

27, 2012).

•

In People Against Police Violence v. City of

Pittsburgh, the plaintiffs challenged Pittsburgh’s ordinance regulating parades and

crowds in public forums. 520 F.3d 226, 229–30

(3d Cir. 2008). The court preliminarily enjoined the ordinance, and then the city passed

a revised ordinance that satisfied the plaintiffs’ concerns. Id. The parties never litigated

the merits of the original ordinance, but the

city still paid $103,718.89 in attorney’s fees.

Id.

•

In Watson v. County of Riverside, the plaintiff

sought and obtained a preliminary injunction

preventing the county from introducing a police report in his administrative termination

7

proceedings. 300 F.3d 1092, 1094 (9th Cir.

2002). The court later granted judgment for

the defendants on all claims except one—on

which the court merely denied summary judgment—but because the administrative hearing was over, that claim was moot. Id. The

county nevertheless paid $153,988.41 in fees,

including fees for post-preliminary injunction

work, even though the plaintiff did not prevail

on the legal merits of any claim. Id. at 1095.

•

In Rogers Group, Inc. v. City of Fayetteville, the

plaintiff challenged a city ordinance limiting

its ability to operate a limestone quarry just

outside the city limits. 683 F.3d 903, 904 (8th

Cir. 2012). The plaintiff obtained a preliminary injunction, but the city independently

and voluntarily repealed the ordinance before

the court could rule on the plaintiff ’s request

for permanent relief. Id. Despite the absence

of any decision on the merits of the plaintiff ’s

claims, the city was forced to pay $110,419.71

in fees and costs. Id. at 907.

And those are just § 1988 cases. The same “prevailing party” language under which courts have

awarded attorney’s fees in moot § 1983 cases based on

preliminary injunctions appears in many other federal

statutes that authorize fee-shifting. See 15 U.S.C.

§ 1117(a) (Lanham Act); 20 U.S.C. § 1415(i)(3)(B)(i) (Individuals with Disabilities Education Act); 28 U.S.C.

§ 2412(d)(1)(A) (Equal Access to Justice Act); 42 U.S.C.

§ 2000e-5(k) (Civil Rights Act of 1964); 42 U.S.C.

§ 3613(c)(2) (Fair Housing Act); 42 U.S.C. § 12205

(Americans with Disabilities Act); 52 U.S.C. § 10310(e)

8

(Voting Rights Act). Courts have generally applied

these statutes in the same way:

•

In Douglas v. District of Columbia, a plaintiff

sued under the Individuals with Disabilities

Education Act and obtained a preliminary injunction directing the public school to permit

him to return to and complete a program for

at-risk students. 67 F. Supp. 3d 36, 39 (D.D.C.

2014). Because the plaintiff was allowed to

return to school, the case was mooted before

any merits decision. Id. at 40. But the district

court ordered the school system to pay

$17,009.62 in attorney’s fees and costs under

20 U.S.C. § 1415(i)(3)(B)(i). Id. at 39, 44.

•

In Tri-City Community Action Program, Inc. v.

City of Malden, the plaintiffs wished to retrofit a house to bring it into compliance with the

ADA. 680 F. Supp. 2d 306, 308 (D. Mass.

2010). They sought and obtained a preliminary injunction preventing the city from interfering. Id. at 310. The construction ended,

mooting the suit, before any further litigation

occurred. Id. at 310–11. The City paid $49,999

in fees and costs under 42 U.S.C. § 3613(c)(2).

Id. at 317.

•

And in Davis v. Perry, the plaintiffs challenged

a redistricting plan adopted by the Texas legislature. 991 F. Supp. 2d 809, 815 (W.D. Tex.

2014). The court enjoined the plan because it

had not been precleared under the Voting

Rights Act, and the court issued its own interim plan for the 2012 election. Id. at 816.

After preclearance was denied by a different

9

district court, the Texas Legislature passed a

new plan, which mirrored the court’s interim

plan, mooting the case. Id. at 818. The district

court ordered Texas to pay $363,378.43 in fees

and costs under § 1988 and § 10310(e) because the plaintiffs obtained “judicially sanctioned relief.” Davis v. Abbott, 781 F.3d 207,

213–14 (5th Cir. 2015). This time, however, the

court of appeals reversed the fee award. Id. at

215–18 (holding that the plaintiffs were not

prevailing parties because the preliminary relief did not arise from a prediction of future

success on the merits).

In short: what has happened to Tennessee happens a lot.

B. The circuit courts have failed to establish a clear and consistent test for when

a preliminary injunction supports a fee

award in a case that ends without a merits judgment.

Because this question of fee eligibility for preliminary-injunction winners is a recurring one, it stands to

reason that the rule for deciding it, like standards for

fee eligibility in general, should be clear and easy to

administer. See Buckhannon Bd. & Care Home, Inc. v.

W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 610

(2001). But most circuit courts have not provided such

a rule. In addition to coming up with a number of

different and often conflicting formulations of a rule

to govern fee eligibility (as the petition demonstrates),

circuit courts have mostly chosen amorphous, factspecific rules over bright lines. Dearmore v. City of

10

Garland, 519 F.3d 517, 521 (5th Cir. 2008) (citation

omitted) (“[C]ircuit courts considering this issue have

announced fact-specific standards that are anything

but uniform.”).

Only a few circuit courts have established a

bright-line rule to govern the fee-eligibility question

presented here. In the Third and Fourth Circuits, a

plaintiff who wins a preliminary injunction is not a

“prevailing party” on that basis alone because the

plaintiff has not won anything on the merits. See

Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d

223, 229 (3d Cir. 2011) (en banc); Smyth v. Rivero, 282

F.3d 268, 277 (4th Cir. 2002).2 The First Circuit similarly holds that preliminary relief does not confer prevailing-party status, at least where the opposing party

“never receive[s] a fair opportunity to contest” the merits on a fully developed record. Sinapi v. Rhode Island

Bd. of Bar Exam’rs, 910 F.3d 544, 551–52 (1st Cir.

2018).

Other circuits’ rules are messier. Take, for instance, the Sixth Circuit, whose test is especially hard

to pin down (as the Tennessee officials found in this

case). The circuit’s leading case on the question of

fees for preliminary-injunction winners never even articulated a test, instead describing the inquiry as “contextual and case-specific.” McQueary v. Conqay, 614

Even the Third Circuit left room for uncertainty, however.

In Singer, that court described a different case as “that rare situation where a merits-based determination is made at the injunction stage” and this did support a fee award. 650 F.3d at 229

(citation omitted).

2

11

F.3d 591, 601 (6th Cir. 2010). And the decision below

seems to have embraced the amorphous nature of that

standard in affirming the district court’s decision to

award fees, noting that there is “a spectrum of cases”

along which the relief granted ranges from “fleeting” to

“enduring,” the difference between them being only

“one of degree.” Hargett, 53 F.4th at 410–11. The panel

at least clarifies that a plaintiff who ultimately loses

on the merits cannot be a prevailing party, id., but beyond that, it is not clear how a future panel should

identify where along the “spectrum” any given case

lies.

The Eighth Circuit, too, injects needless subjectivity into this inquiry. Its test puts dispositive weight on

whether a preliminary injunction “merely maintains

the status quo.” N. Cheyenne Tribe v. Jackson, 433 F.3d

1083, 1086 (8th Cir. 2006). Yet that question appears to

turn not simply on whether the preliminary injunction

preserved the existing state of affairs, but rather on a

subjective determination of how “thorough[ly]” the district court considered the merits of the claim at issue

in granting the injunction. Compare id. (denying fee

award after the defendants’ voluntary action mooted

the case because, although the preliminary-injunction

order addressed likelihood of success on the merits, it

“did not discuss whether those claims would entitle

the Tribes to final relief on the merits against the

Secretary”), with Rogers Grp., 683 F.3d at 911 (granting fee award based on preliminary injunction that

prevented new rock quarry regulations from going into

effect because the order “engaged in a thorough

12

analysis of the probability that Rogers Group would

succeed on the merits of its claim”—even though that

injunction just maintained the real world status quo).

Other circuits introduce uncertainty into their

tests by asking whether the preliminary injunction

was based on an “unambiguous indication of probable

success on the merits” as opposed to a mere balancing

of the equities in favor of the plaintiff. Dearmore, 519

F.3d at 524; Kan. Judicial Watch, 653 F.3d at 1239

(same); see also, e.g., Select Milk Producers, Inc. v.

Johanns, 400 F.3d 939, 948 (D.C. Cir. 2005) (affirming

fee award to a preliminary-injunction winner and emphasizing that the “Milk Producers secured a preliminary injunction in this case largely because their

likelihood of success on the merits was never seriously

in doubt”). But a preliminary injunction, by its “very

nature,” is a “flexible” remedy that precludes “wooden

application of the probability test.” Citigroup Glob.

Mkts., Inc. v. VCG Special Opportunities Master Fund

Ltd., 598 F.3d 30, 35–36 (2d Cir. 2010) (citation omitted). Deciding whether the district court examined the

merits “serious[ly]” enough in that context is a fraught

endeavor, and a particularly “unstable threshold to fee

eligibility.” Id.; Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989).3

This difficulty is compounded by the “bewildering variety of

formulations” courts use to decide whether the likelihood of success on the merits is high enough to secure a preliminary injunction. 11A Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2948.3 (3d ed. 2022) (listing fourteen different articulations). Many courts allow the requisite likelihood

3

13

In addition to the fuzzy “is it sufficiently meritsbased” inquiry, at least the Fifth Circuit has added into

its test the knotty question whether the preliminary

injunction also “cause[d] the defendant to moot the

action.” Dearmore, 519 F.3d at 524; see also Amawi v.

Paxton, 48 F.4th 412, 417–18 (5th Cir. 2022) (doubling

down on Dearmore’s causation element). That question

pushes courts not only to assess motives and mental

states of government officials, but also to make a subjective judgment about just how strong the causative

link between the injunction and the mooting action

has to be. Did the defendants moot the action because

they were enjoined, or for some other reason, or for a

combination of reasons? If the latter, which reason

did they care about most? Hardly the stuff of “ready

administrability.” Buckhannon, 532 U.S. at 609–10

(citation omitted); Garland, 489 U.S. at 791 (rejecting

“central issue” test for “prevailing party” question because “[b]y focusing on the subjective importance of an

issue to the litigants, it asks a question which is almost

impossible to answer,” since it “appears to depend

largely on the mental state of the parties”).

of success to increase or decrease on a sliding scale depending on

the strength of the other preliminary-injunction factors. See, e.g.,

Hoosier Energy Rural Elec. Coop. v. John Hancock Life Ins. Co.,

582 F.3d 721, 725 (7th Cir. 2009) (“How strong a claim on the

merits is enough depends on the balance of harms: the more net

harm an injunction can prevent, the weaker the plaintiff ’s claim

on the merits can be while still supporting some preliminary relief.”); Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317–18 (D.C.

Cir. 1998); Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir.

2017); Citigroup Glob. Mkts., Inc., 598 F.3d at 36–38 & n.5 (all

similar).

14

The circuit courts are not just deeply divided over

the question of when preliminary-injunction winners

are “prevailing parties”—they have also created messy

and unpredictable tests that provide no certainty for

anyone.

C. Messy and unpredictable tests for fee

eligibility impose needless costs on

states and their residents.

The circuit courts’ amorphous, unpredictable tests

are not just trouble for district and circuit courts trying

to apply them; they are also costly in a number of ways

for states and their officials.

First, these tests impose the same obvious costs as

any “unstable threshold[s] to fee eligibility”: a second

major litigation when the case was supposed to be all

but over. Garland, 489 U.S. at 791. Time and again this

Court has rejected complicated rules for fee eligibility

to avoid subjecting parties to the needless costs in time

and resources of litigating over fees. The Court rejected

the “central issue” test for just this reason. Id. (“Creating such an unstable threshold to fee eligibility is

sure to provoke prolonged litigation, thus deterring

settlement of fee disputes and ensuring that the fee

application will spawn a second litigation of significant

dimension.”). Same with the “catalyst theory” tossed

away in Buckhannon, 532 U.S. at 609–10 (rejecting the

theory because it required a “highly factbound” and

“nuanced ‘three thresholds’ test”).

Second, these tests frustrate the States’ ability to

make informed litigation and policy decisions. When

15

deciding whether and how to defend against a lawsuit,

a state must balance a number of competing interests,

including defending duly enacted laws, implementing

effective policies, safeguarding its citizens’ rights, and

protecting the public fisc. See, e.g., In re Witness Before

Special Grand Jury 2000-2, 288 F.3d 289, 293 (7th Cir.

2002) (explaining that government lawyers have ethical duties to protect the public interest and the public

fisc); Steven K. Berenson, Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve

the Public Interest?, 41 B.C. L. Rev. 789, 789 (2000). The

state’s exposure to attorney’s fees is an important variable in that calculus, and it ought to be a controllable

one: the state should remain exposed to a costly fee

award only so long as it continues the litigation, since

fees are usually allowed only if the plaintiff actually

wins the case. But the circuit courts’ tests replace this

modicum of control with uncertainty because they

sometimes allow fee awards even when a state decides

to stop litigating—for instance, because changing a law

would better serve the public interest—after a preliminary injunction is entered. And worse, unlike before

the preliminary injunction, the state can no longer assess its exposure to a fee award simply by evaluating

the merits of the claims against it. Instead, it must

try to predict the outcome of a subjective, “contextspecific,” and inconsistently applied legal test to figure

out whether amending a law or changing a policy will

also subject the state to a six-figure fee award.

Finally, in addition to needlessly complicating the

States’ litigation and policy decisions, most of the

16

circuits’ tests distort the States’ incentives in making

those decisions. See Evans v. Jeff D., 475 U.S. 717, 734–

35 (1986) (explaining that uncertainty regarding fee

exposure often prevents settlement, especially in

§ 1983 litigation, where the fee awards often represent

“the most significant liability in the case”) (citation

omitted). The specter of high fee awards is usually a

disincentive to litigate: all else equal, rational parties

will try to avoid paying attorney’s fees of six or seven

figures, and the surest way to avoid that is to resolve

the dispute before either party wins the case (and thus

can be called a “prevailing party”). See id. at 733 (explaining that settlement is often in the best interests

of both plaintiffs and defendants because it offers cost

certainty and ensures relief “at an earlier date without

the burdens, stress, and time of litigation”) (quoting

Marek v. Chesny, 473 U.S. 1, 10 (1985)). And states

should be especially averse to spending the public’s

money on such fees instead of for the public good.

But that incentive is reversed by unpredictable

rules that can result in fee awards to a preliminaryinjunction winner. See id. at 736–37 (predicting that

“parties to a significant number of civil rights cases

will refuse to settle if liability for attorney’s fees remains open, thereby . . . unnecessarily[ ] burdening the

judicial system, and disserving civil rights litigants”).

Under the shadow of such rules, the logical move for

states that wish to avoid spending the public’s money

on large fee awards is to litigate cases to the hilt rather

than explore other options that might better serve the

public interest. See Buckhannon, 532 U.S. at 608

17

(explaining that a defendant may be deterred from

“altering its conduct,” especially if the conduct “may

not be illegal,” if doing so will result in a fee award).

After all, under these rules, the States’ alternatives to

continuing to litigate—for example, amending a challenged law or regulation, reversing a challenged action, or declining to enforce a challenged policy—could

actually lock in a substantial fee award against them.

See, e.g., Higher Taste, Inc. v. City of Tacoma, 717 F.3d

712, 717–18 (9th Cir. 2013) (affirming a fee award because the city’s compromise solution with the plaintiffs

“transformed what had been temporary relief capable

of being undone . . . into a lasting alteration of the parties’ legal relationship”); Dearmore, 519 F.3d at 526

(holding that the plaintiff was a prevailing party, despite not obtaining a final judgment, because the city

amended the ordinance rather than litigating to finality); People Against Police Violence, 520 F.3d at 234

(same).

Consider, for example, how Common Cause/Georgia

v. Billups and Common Cause Georgia v. Secretary,

State of Georgia have the potential to shape Georgia’s

response to future § 1983 suits. In the former, the court

issued a preliminary injunction against enforcement of

Georgia’s voter ID law. Billups, 554 F.3d at 1346. In response, Georgia enacted a new voter ID law, and it

ultimately defended the law successfully because the

court held that the State’s interest in preventing voter

fraud outweighed any burden on voters. Id. at 1348.

Given the district court’s holding, Georgia might well

have prevailed on the merits had it defended the

18

original law, too. But because Georgia chose a legislative solution instead, it was rewarded with a

$112,235.03 bill for attorney’s fees. And in the latter

case, although there was no court order requiring it to

do so, Georgia took legislative steps to remedy the

plaintiffs’ concerns about the potential for error in the

State’s procedures for handling provisional ballots.

Sec’y, State of Georgia, 17 F.4th at 106. That left the

State on the hook for $166,210.09 in fees and expenses.

Id. at 105–06. The lesson from these cases is doubly

clear: even if the public interest might otherwise be

best served by a legislative fix, Georgia should litigate

to the bitter end if it wants to protect the public fisc.

II.

The Sixth Circuit below, and other circuit

courts, apply tests for fee eligibility that

conflict with this Court’s precedents.

Section 1988 authorizes courts to award a reasonable attorney’s fee to a “prevailing party” in civil rights

actions. That term of art imposes a pair of basic requirements for fee eligibility. First, the party must

have won a “court-ordered ‘change in the legal relationship between’ ” the parties. Buckhannon, 532 U.S.

at 604 (quoting Garland, 489 U.S. at 792) (alterations

adopted). Thus, Buckhannon rejected the circuit

courts’ “catalyst theory” of fee eligibility, under which

they had allowed a fee award “if it achieves the desired

result because the lawsuit brought about a voluntary

change in the defendant’s conduct.” Id. at 601. Second,

the requisite court-ordered change in legal relationship must be “enduring,” in the sense that the ordered

relief lives on after the case is closed. Sole v. Wyner, 551

19

U.S. 74, 86 (2007). In Sole, for example, winning a preliminary injunction against enforcement of a state rule

against nudity in state parks did not make the plaintiff

a prevailing party because by the end of the case, she

had lost on the merits and the challenged rule remained in place. Id. In short, a “prevailing party” is one

who, at the end of the day, wins the lawsuit: the party

gets a desired court-ordered and enduring change in

the legal relationship between the parties.

The decision below departed from this straightforward test. As the petitioners explain, the district

court’s preliminary injunction was not an enduring victory for the plaintiffs because it provided only temporary relief pending the district court’s resolution of

their request for a permanent injunction. Hargett, 53

F.4th at 409. Indeed, the preliminary injunction was in

effect for only seven months, until Tennessee enacted

a new law addressing the plaintiffs’ concerns. Id. The

preliminary injunction, moreover, “didn’t provide everything [the plaintiffs] asked for.” Id. at 413 (Nalbandian, J., dissenting). They requested relief both

for the upcoming election and for all future elections,

but the court granted only the former. Id. at 414. In

other words, the plaintiffs “may have won the battle,”

but “they didn’t win the war for all future elections,

at least not in court.” Id. And the real-world outcome

that actually did end the lawsuit was not courtordered; it resulted instead from Tennessee’s independent and voluntary decision to amend its laws. Id.

at 409.

20

Sole and Buckhannon respectively held that neither of these circumstances is enough to make someone a “prevailing party.” See Sole, 551 U.S. at 84, 86

(precluding fee awards where the plaintiff ’s initial victory is “ephemeral” and has “no preclusive effect in the

continuing litigation”); Buckhannon, 532 U.S. at 606

(“Never have we awarded attorney’s fees for a nonjudicial ‘alteration of actual circumstances.’ ”) (citation

omitted). Cobbling together the combination—a preliminary injunction that does not provide enduring relief, and a desired outcome that did not come from a

court order—as a recipe for attorney’s fees conflicts

with those clear holdings.

Other circuit courts have made the same mistake.

See Higher Taste, 717 F.3d at 718 (allowing fee award

to preliminary-injunction winner because a settlement

between the parties was supposedly “enduring” relief);

Billups, 554 F.3d at 1356 (affirming a fee award even

though the preliminary injunction was dissolved when

Georgia “repealed the enjoined statute,” not “by any judicial decision”). The Fifth Circuit even appears to

have revived the circuits’ old catalyst theory by declaring a party eligible for a fee award if it wins a preliminary injunction “that causes the defendant to moot the

action” by giving the plaintiffs the relief they sought in

the lawsuit. Dearmore, 519 F.3d at 524 (emphasis

added); see also Buckhannon, 532 U.S. at 601 (defining

the “catalyst” theory as permitting recovery if the

plaintiff “achieve[d] the desired result because the

lawsuit brought about a voluntary change in the defendant’s conduct”). Just like the catalyst theory

21

Buckhannon rejected, this test expressly allows fees

where the plaintiff ’s lawsuit purportedly brought

about nonjudicial relief. See id. at 605 (“A defendant’s

voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the

lawsuit, lacks the necessary judicial imprimatur on the

change.”).

This is not to say this Court’s current precedents

leave no opening for a preliminary injunction to ever

serve as the basis for attorney’s fees. See Sole, 551 U.S.

at 86 (leaving open whether “in the absence of a final

decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction

may sometimes warrant an award of counsel fees”). A

preliminary injunction that itself moots the suit by

providing all the relief the plaintiff sought—for instance, by permitting a plaintiff to hold a parade,

which is the only thing the plaintiff sought from a lawsuit—presents a slightly harder question (although

even there, it seems that without a final judgment on

the merits, there is no prevailing party). But consistent

with the plain language of § 1988, the Court’s precedents always require a plaintiff to win (1) courtordered (2) enduring relief before they are a “prevailing party.” Buckhannon, 532 U.S. at 605–06 (explaining

that the “plain language of the statutes” forbids awarding “attorney’s fees for a nonjudicial ‘alteration of actual circumstances’ ”) (citation omitted); Garland, 489

U.S. at 792 (holding that the “ordinary” meaning of

§ 1988 means that the plaintiff prevails only if it can

“point to a resolution of the dispute which changes the

22

legal relationship between itself and the defendant”);

Hewitt v. Helms, 482 U.S. 755, 760 (1987) (“Respect for

ordinary language requires that a plaintiff receive at

least some relief on the merits of his claim before he

can be said to prevail.”). Allowing fee awards when a

preliminary injunction order does not fit that bill exceeds the authority granted to courts under that statute.

CONCLUSION

For the reasons stated above, the Court should

grant the Tennessee officials’ petition.

FEBRUARY 2023

Respectfully submitted,

CHRISTOPHER M. CARR

Attorney General

STEPHEN J. PETRANY

Solicitor General

Counsel of Record

PAUL R. DRAPER*

Honors Fellow

OFFICE OF THE GEORGIA

ATTORNEY GENERAL

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3408

spetrany@law.ga.gov

Counsel for Amici

*Admitted in California;

supervised by members

of the Georgia Bar.

23

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General of

Alabama

TIM GRIFFIN

Attorney General of

Arkansas

ASHLEY MOODY

Attorney General of

Florida

THEODORE E. ROKITA

Attorney General of

Indiana

BRENNA BIRD

Attorney General of

Iowa

DANIEL CAMERON

Attorney General of

Kentucky

JEFF LANDRY

Attorney General of

Louisiana

LYNN FITCH

Attorney General of

Mississippi

AUSTIN KNUDSEN

Attorney General of

Montana

MIKE HILGERS

Attorney General of

Nebraska

DAVE YOST

Attorney General of

Ohio

GENTNER F. DRUMMOND

Attorney General of

Oklahoma

ALAN WILSON

Attorney General of

South Carolina

KEN PAXTON

Attorney General of Texas

JASON S. MIYARES

Attorney General of

Virginia