Petition for Writ of Certiorari — Gerald F. Lackey, in His Official Capacity as the Commissioner of the Virginia Department of Motor Vehicles, Petitioner v. Damian Stinnie, et al.

Supreme Court briefNov 20, 2023

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No. 23 -_____

IN THE

Supreme Court of the United States

______________________________________________

GERALD F. LACKEY, IN HIS OFFICIAL CAPACITY AS THE

COMMISSIONER OF THE VIRGINIA DEPARTMENT OF MOTOR

VEHICLES,

Petitioner,

DAMIAN STINNIE, ET AL.,

Respondents.

_______________________________________________

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

_______________________________________________

APPENDIX

_______________________________________________

JASON S. MIYARES

Attorney General of Virginia

ANDREW N. FERGUSON

Solicitor General

Counsel of Record

MAYA M. ECKSTEIN

ERIKA L. MALEY

TREVOR S. COX

Principal Deputy Solicitor

DAVID M. PARKER

General

HUNTON ANDREWS

GRAHAM K. BRYANT

KURTH LLP

Deputy Solicitor General

Riverfront Plaza, East Tower

M. JORDAN MINOT

951 E. Byrd Street

Assistant Solicitor General

Richmond, Virginia 23219

OFFICE OF THE VIRGINIA

ATTORNEY GENRAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

aferguson@oag.state.va.us

Counsel for Petitioner

TABLE OF CONTENTS

Page(s)

Appendix A: Opinion of the United States Court of

Appeals for the Fourth Circuit upon Rehearing En

Banc (August 7, 2023) ........................................1a

Appendix B: Order of the United States Court of

Appeals for the Fourth Circuit Granting Rehearing

En Banc (August 9, 2022) ................................. 71a

Appendix C: Published Panel Opinion of the United

States Court of Appeals for the Fourth Circuit

(June 27, 2022) ................................................. 73a

Appendix D: Order of the United States District

Court for the Western District of Virginia on

Petition for Attorneys' Fees and Litigation

Expenses (June 4, 2021) ................................... 93a

Appendix E: Memorandum Opinion of the United

States District Court for the Western District of

Virginia (June 4, 2021) ..................................... 95a

ON REHEARING EN

BANC

PUBLISHED

UNITED STATES

COURT OF APPEALS

FOR THE FOURTH

CIRCUIT

No. 21-1756

DAMIAN

STINNIE;

MELISSA

ADAMS;

ADRAINNE

JOHNSON;

WILLIEST BANDY;

BRIANNA MORGAN, individually, and on behalf of

all others similarly situated,

Plaintiffs - Appellants,

RICHARD D. HOLCOMB, in his official capacity

as the Commissioner of the Virginia Department of

Motor Vehicles,

Defendant - Appellee.

AMERICAN CIVIL LIBERTIES UNION OF

VIRGINIA, ET AL,

Amicus Supporting Appellant,

INSTITUTE FOR JUSTICE,

Amicus Supporting Rehearing

Petition.

Appeal from the United States District Court for

the Western District of Virginia, at Charlottesville.

Norman K. Moon, Senior District Judge. (3:16-cv00044-NKM-JCH)

Argued: January 25, 2023

Decided: August 7, 2023

Before DIAZ, Chief Judge, and NIEMEYER,

KING, GREGORY, AGEE, WYNN, THACKER,

HARRIS, RICHARDSON, QUATTLEBAUM, and

RUSHING, Circuit

Judges.

Vacated and remanded by published opinion. Judge

Harris wrote the majority opinion, in which Chief

Judge Diaz and Judges Niemeyer, King, Gregory,

Wynn, and Thacker joined. Judge Quattlebaum wrote

a dissenting opinion, in which Judges Agee,

Richardson, and Rushing joined.

ARGUED: Tennille Jo Checkovich, SMITHFIELD

FOODS, INC., Smithfield, Virginia, for Appellants.

Trevor Stephen Cox, HUNTON ANDREWS KURTH

LLP, Richmond, Virginia, for Appellee. ON BRIEF:

Jonathan

Blank,

Benjamin

Abel,

Charlottesville,

Virginia,

John

Woolard,

MCGUIREWOODS LLP, Richmond, Virginia; Angela

A. Ciolfi, Charlottesville, Virginia, Patrick LevyLavelle, LEGAL AID JUSTICE CENTER, Richmond,

Virginia; Leslie Kendrick, Charlottesville, Virginia;

Michael Stark, Smithfield, Virginia, for Appellants.

Mark R. Herring, Attorney General, Jason S.

Miyares, Attorney General, Andrew N. Ferguson,

Solicitor General, Donald D. Anderson, Deputy

Attorney General, Leslie A.T. Haley, Deputy Attorney

General, Chandra D. Lantz, Senior Assistant

Attorney General, Julie M. Whitlock, Senior

Assistant Attorney General, Janet W. Baugh, Senior

Assistant Attorney General, Christian A. Parrish,

Assistant Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF VIRGINIA, Richmond,

Virginia; Maya M. Eckstein, David M. Parker,

HUNTON ANDREWS KURTH LLP, Richmond,

Virginia, for Appellee. Theodore A. Howard, WILEY

REIN LLP, Washington, D.C., for Amici American

Civil Liberties Union of Virginia, et al. William R.

Maurer, INSTITUTE FOR JUSTICE, Seattle,

Washington, for Amicus Institute for Justice.

PAMELA HARRIS, Circuit Judge:

Under 42 U.S.C. § 1988(b), the “prevailing

party” in certain civil rights actions is eligible to

recover reasonable attorney’s fees. Two decades ago,

we held that a plaintiff who wins a preliminary

injunction but – for whatever reason – does not

secure a final judgment may never qualify as a

prevailing party. Smyth ex rel. Smyth v. Rivero, 282

F.3d 268 (4th Cir. 2002). In the years since, this

categorical rule has become a complete outlier: Every

other circuit to consider the issue has held that a

preliminary injunction may confer prevailing party

status in appropriate circumstances.

We granted rehearing en banc to reassess our

bright-line approach, and we now conclude that it is

too

stringent.

Although

many

preliminary

injunctions represent only “a transient victory at the

threshold of an action,” Sole v. Wyner, 551 U.S. 74, 78

(2007), some provide enduring, merits-based relief

that satisfies all the requisites of the prevailing party

standard. Because the plaintiffs here “prevailed” in

every sense needed to make them eligible for a fee

award, we vacate the district court’s denial of

attorney’s fees and remand for further proceedings.

This fee dispute turns on a single question of

law – whether a preliminary injunction may ever

confer “prevailing party” status under 42 U.S.C. §

1988(b) – so we review the facts only as they bear on

that inquiry. Prior to this litigation, a Virginia

statute required the automatic suspension of

residents’ driver’s licenses if they failed to pay

certain court fines and fees. See Va. Code § 46.2-395

(repealed 2020). Then, in 2016, a group of indigent

Virginians who lost their licenses when they were

unable to pay court debts initiated a putative class

action against the Commissioner of the Virginia

Department of Motor Vehicles (“Commissioner”),

alleging that the Commonwealth’s license-suspension

scheme was unconstitutional. The plaintiffs raised

several claims under the Fourteenth Amendment:

that the statute’s requirement of automatic

suspension without notice or a hearing violated their

procedural due process rights; and that the statute’s

enforcement against those who were unable, not

unwilling, to pay violated both their substantive due

process rights and their equal protection rights. As

relief, the plaintiffs sought preliminary and

permanent injunctions preventing the statute’s

enforcement and requiring license reinstatement as

to the “hundreds of thousands of Virginians” with

suspended licenses. J.A. 227.

In December 2018, 1 following extensive

briefing and argument, the district court granted the

The district court initially granted the Commissioner’s motion

to dismiss for lack of subject matter jurisdiction. On appeal, we

remanded with instructions to allow the plaintiffs to amend

their complaint. See Stinnie v. Holcomb, 734 F. App’x 858, 863

(4th Cir. 2018).

plaintiffs’ request for a preliminary injunction. In a

comprehensive opinion, the court made detailed

findings of fact and conducted a robust assessment of

the plaintiffs’ procedural due process claim before

concluding that it was likely to succeed on the merits.

See Stinnie v. Holcomb, 355 F. Supp. 3d 514, 531

(W.D. Va. 2018). 2 And after determining that the

plaintiffs satisfied the remaining injunction factors

set forth in Winter v. Natural Resources Defense

Council, Inc., 555 U.S. 7 (2008), the court deemed

interim relief appropriate. Stinnie, 355 F. Supp. 3d at

532 (concluding that “irreparable harm, the balance of

equities, and the public interest . . . weigh in favor of”

the plaintiffs). The court then preliminarily enjoined

the statute’s enforcement as to the named plaintiffs

and ordered the Commissioner to “remove any

current suspensions of the Plaintiffs’ driver’s licenses

imposed under Va. Code § 46.2-395.” J.A. 843. 3 The

Commissioner did not appeal the injunction, and the

plaintiffs were once again free to drive to their jobs,

medical appointments, and personal engagements.

See Stinnie, 355 F. Supp. 3d at 520–22.

The case was set for a bench trial in August

2019. But soon before trial – and with cross-motions

for summary judgment pending – the Virginia

Because the court found the plaintiffs likely to succeed on the

merits of their procedural due process claim, it declined to reach

their remaining constitutional arguments. Stinnie, 355 F. Supp.

3d at 531 n.9.

The court had not yet ruled on the plaintiffs’ motion for class

certification, so it made clear that its injunction “applie[d] only

to the named Plaintiffs” and not to any broader putative class.

J.A. 843 n.1.

General Assembly passed a Budget Amendment

suspending the enforcement of the challenged statute

for one year. See Stinnie v. Holcomb, 396 F. Supp. 3d

653, 658 (W.D. Va. 2019). At the Commissioner’s

request and over the plaintiffs’ strenuous objections,

the court then stayed the case pending the next

legislative session, during which the Commissioner

represented a full repeal was likely. See id. And at

this session, the General Assembly voted to

eliminate § 46.2-395 from the Virginia Code. See

2020 Va. Acts ch. 965. With the challenged statute

repealed – and the plaintiffs no longer in need of

court-ordered relief – the court dismissed the action

as moot.

The plaintiffs then petitioned for attorney’s

fees under 42 U.S.C. § 1988(b), which provides that

the district court, “in its discretion, may allow the

prevailing party” in § 1983 actions “a reasonable

attorney’s fee as part of the costs.” The court first

requested briefing on whether the plaintiffs were

“prevailing parties” eligible for a fee award; if the

plaintiffs could clear this hurdle, the parties would

then brief “the amount and reasonableness of any

fees” to be shifted. J.A. 1017.

In our circuit, however, this initial hurdle

amounted to a brick wall. True, the plaintiffs noted,

a party “prevails” for purposes of § 1988(b) if “actual

relief on the merits of his claim materially alters the

legal relationship between the parties by modifying

the defendant’s behavior in a way that directly

benefits the plaintiff.” Farrar v. Hobby, 506 U.S.

103, 111–12 (1992). And here, they argued, the

district court’s preliminary injunction did just that:

After determining that the plaintiffs were likely to

succeed on the merits, the court ordered the

Commissioner to reinstate their licenses, providing

precisely the “actual relief” that the litigants sought

by bringing suit. The repeal of the challenged statute

may have rendered further relief unnecessary, but

that did not “detract from the legal significance” of

their victory. J.A. 1042.

But as the Commissioner responded, these

arguments were squarely foreclosed by Fourth

Circuit precedent: In Smyth ex rel. Smyth v. Rivero,

282 F.3d 268, 277 (4th Cir. 2002), we held that

winning a preliminary injunction is never sufficient

to confer “prevailing party” status. Preliminary

relief, we reasoned, is “necessarily uncertain,” the

product of an “incomplete examination of the merits”

that “by no means represents a determination that

the claim in question will or ought to succeed

ultimately.” Id. at 276– 77 & n.8. We thus concluded

that preliminary injunctions are, without exception,

“not the stuff of which legal victories are made.” Id.

at 276 (quoting Buckhannon Bd. & Care Home, Inc.

v. W. Virginia Dep’t of Health & Hum. Res., 532 U.S.

598, 605 (2001)).

In a thoughtful report recommending denial of

the fee petition, a magistrate judge noted that Smyth

“stands alone,” and that “a broad consensus among

other circuits” holds that a “merits-based

10a

preliminary injunction that is not undone or

otherwise modified by a later court order may confer

prevailing party status.” Stinnie v. Holcomb, No.

3:16-cv- 00044, 2021 WL 627552, at *9–10 (W.D. Va.

Feb. 16, 2021). Moreover, the magistrate judge

concluded, it appeared that the plaintiffs here would

indeed be prevailing parties under this consensus

approach. Id. at *10–11. Nonetheless, in light of

Smyth’s categorical rule, the magistrate judge felt

compelled to recommend denial, and the district

court adopted that recommendation. See Stinnie v.

Holcomb, No. 3:16-cv-00044, 2021 WL 2292807, at *5

(W.D. Va. June 4, 2021).

On appeal, the plaintiffs did not contest that

Smyth foreclosed their claim. Instead, they argued

that intervening Supreme Court precedent rendered

Smyth untenable. When we decided Smyth, courts in

this circuit were permitted to grant preliminary

injunctions for equitable reasons without finding

that a plaintiff’s claim was likely to succeed. See

Blackwelder Furniture Co. of Statesville v. Seilig

Mfg. Co., 550 F.2d 189, 196 (4th Cir. 1977). But in

the years after Smyth, the Supreme Court clarified

that a plaintiff may obtain preliminary relief only by

first establishing a clear likelihood of success on the

merits. See Winter, 555 U.S. at 20. This new, more

rigorous

merits

requirement,

the

plaintiffs

contended, obviated Smyth’s concerns about granting

prevailing party status based on the “interplay of . . .

equitable and legal considerations and the less

stringent assessment of the merits of claims that are

part of the preliminary injunction context.” Smyth,

11a

282 F.3d at 277.

A panel of this court rejected the plaintiffs’

argument and held that Smyth remains good law.

Stinnie v. Holcomb, 37 F.4th 977, 983 (4th Cir. 2022).

As the panel noted, “[w]e do not lightly presume that

the law of the circuit has been overturned, especially

where . . . the Supreme Court opinion and our

precedent can be read harmoniously.” Id. (quoting

Taylor v. Grubbs, 930 F.3d 611, 619 (4th Cir. 2019)).

Because such a harmonious reading remained

possible after Winter, the panel concluded that “at

this juncture, we are bound by Smyth.” Id. 4 We then

granted the plaintiffs’ petition for rehearing en banc,

and “[w]e now consider the case anew.” Manning v.

Caldwell for City of Roanoke, 930 F.3d 264, 270 (4th

Cir. 2019).

II.

This appeal turns on an issue of statutory

construction: the meaning of a “prevailing party”

under 42 U.S.C. § 1988(b). Grabarczyk v. Stein, 32

F.4th 301, 306 (4th Cir. 2022). “Prevailing party,” in

turn, is a “legal term of art that we interpret

consistently across all federal fee-shifting statutes.”

Reyazuddin v. Montgomery Cnty., 988 F.3d 794, 796

(4th Cir. 2021). So before we revisit our decision in

The panel also rejected an argument that the Supreme Court’s

decision in Lefemine v. Wideman, 568 U.S. 1 (2012) – which

observed that winning a permanent injunction confers

prevailing party status – superseded Smyth. Stinnie, 37 F.4th

at 983.

12a

Smyth, we begin with the basics of the prevailing

party inquiry, which help clarify the nature of the

dispute before us.

As a general rule, parties are “required to bear

their own attorney’s fees – the prevailing party is not

entitled to collect from the loser.” Buckhannon Bd. &

Care Home, Inc. v. W. Virginia Dep’t of Health &

Hum. Res., 532 U.S. 598, 602 (2001). But in

recognition of the costly burdens of litigation and to

ensure “effective access to the judicial process” for

those with civil rights grievances, Congress passed

42 U.S.C. § 1988 as an exception to this general rule.

Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)

(quoting H.R. Rep. No. 94-1558, at 1 (1976)). Section

1988 provides that in an action to enforce § 1983 or

other specified civil rights laws, “the court, in its

discretion, may allow the prevailing party, other

than the United States, a reasonable attorney’s fee

as part of the costs.” 42 U.S.C. § 1988(b).

A party “prevails” for purposes of § 1988 “when

actual relief on the merits of his claim materially

alters the legal relationship between the parties by

modifying the defendant’s behavior in a way that

directly benefits the plaintiff.” Farrar v. Hobby, 506

U.S. 103, 111–12 (1992). The plaintiff need not

achieve his “central” goal to prevail; instead, if “the

plaintiff has succeeded on any significant issue in

litigation which achieved some of the benefit the

parties sought in bringing suit, the plaintiff has

13a

crossed the threshold to a fee award of some kind.”

Tex. State Tchrs. Ass’n v. Garland Indep. Sch. Dist.,

489 U.S. 782, 791–92 (1989) (cleaned up).

As the Supreme Court has emphasized, “[t]his

is a generous formulation” that does no more than

bring a plaintiff “across the statutory threshold” to

eligibility for a fee award. Hensley, 461 U.S. at 433.

“It remains for the district court to determine what

fee is ‘reasonable.’” Id. Accordingly, the Court has

treated various forms of partial relief as sufficient to

establish prevailing party status at this threshold

stage of the inquiry. See, e.g., Lefemine v. Wideman,

568 U.S. 1, 4 (2012) (permanent injunction); Farrar,

506 U.S. at 112 (nominal damages); Rhodes v.

Stewart, 488 U.S. 1, 4 (1988) (declaratory judgment);

Maher v. Gagne, 448 U.S. 122, 130 (1980) (settlement

agreement enforced through consent decree).

Even this “generous formulation,” to be sure, is

not without limits. For one, the plaintiff’s relief must

be “judicially sanctioned.” Buckhannon, 532 U.S. at

605. So 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.” Id. In addition,

the plaintiff’s success must be “enduring” rather than

“ephemeral.” Sole v. Wyner, 551 U.S. 74, 86 (2007).

So a preliminary injunction that is later “reversed,

dissolved, or otherwise undone by the final decision

in the same case” cannot render a party prevailing.

Id. at 83.

But in Sole, the Supreme Court expressly left

open the question presented here: whether a

14a

preliminary injunction that is not “reversed,

dissolved, or otherwise undone” by a later decision

may confer prevailing party status. See id. at 86

(expressing “no view on 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”). Years earlier, however, we had

answered that question for ourselves, holding that

success in gaining a preliminary injunction may

never render a party eligible for a fee award. See

Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir.

2002). We now review our holding in Smyth and

decide anew whether a plaintiff who wins

preliminary relief can ever “cross[] the threshold to a

fee award of some kind.” Garland, 489 U.S. at 792. 5

Our dissenting colleagues provide their own thorough

description of the Supreme Court’s prevailing party case law.

Though we agree with much of their review, we part ways on

the suggestion that the Court’s cases, taken as a whole, have

effectively settled this question in favor of Smyth’s bright-line

rule. See Diss. Op. at 54. In Sole, the Supreme Court was

squarely presented with the opportunity to adopt Smyth’s

approach, and if its precedent made “crystal clear” that

preliminary relief can never confer prevailing party status, see

Diss. Op. at 51, it would have said so. Instead, by identifying

the issue as one on which it was taking “no view,” Sole, 551 U.S.

at 86, the Court created the space that has permitted virtually

every court of appeals, as detailed below, to hold that

preliminary relief may indeed support a fee award in

appropriate circumstances.

15a

Smyth presented very similar facts to the case

before us. There, the plaintiffs brought a § 1983

action challenging a Virginia welfare policy on

constitutional and statutory grounds. Smyth, 282

F.3d at 271–72. After the district court granted

a preliminary injunction prohibiting enforcement of

the policy, and with the plaintiffs’ motion for

summary judgment pending, the Commonwealth

modified the policy to provide the plaintiffs the relief

they sought on a permanent basis. Id. at 273. The

district court concluded that the plaintiffs were

prevailing parties and granted their fee petition.

A panel of this court reversed, concluding that

a preliminary injunction cannot provide the meritsbased “material alteration of the legal relationship of

the parties necessary to permit an award of

attorney’s fees.” Id. at 274 (internal quotation marks

omitted). In so holding, the court focused on two

features of the preliminary injunction inquiry. For

one, the panel observed that “in granting a

preliminary injunction a court is guided not only by

its assessment of the likely success of the plaintiff’s

claims, but also by other considerations, notably a

balancing of likely harms.” Id. at 276. Indeed, at that

time, our circuit permitted courts to grant

preliminary injunctions for primarily equitable

reasons – namely, to prevent irreparable harm to the

plaintiff – without making any finding that the

plaintiff’s claim was likely to succeed. See

Blackwelder Furniture Co. of Statesville v. Seilig

Mfg. Co., 550 F.2d 189, 196 (4th Cir. 1977). And the

Smyth court concluded that Blackwelder’s balance-of-

16a

hardships approach, which allowed a particularly

strong showing of likely harm to compensate for a

weak showing on the merits, rendered preliminary

relief “an unhelpful guide to the legal determination

of whether a party has prevailed.” Smyth, 282 F.3d

at 277.

Second, the Smyth court looked to the

“necessarily uncertain” nature of preliminary relief

itself. Even a merits-based preliminary injunction, in

the panel’s view, “is best understood as a prediction

of a probable . . . outcome,” one that “by no means

represents a determination that the claim in

question will or ought to succeed ultimately.” Id. at

276. Winning a preliminary injunction, the court

concluded, was more “closely analogous” to surviving

a motion to dismiss than securing a final judgment

on the merits, and thus “ill- suited to guide the

prevailing party determination.” Id. at 276–77 & n.8.

For the last two decades, then, civil rights

plaintiffs in our circuit who won preliminary relief

but did not secure a final judgment have been

categorically barred from recovering attorney’s fees.

And although “we do not lightly overrule our

precedent,” Hurlburt v. Black, 925 F.3d 154, 161 (4th

Cir. 2019) (en banc), three developments in the years

since we decided Smyth now compel us to revisit its

holding.

17a

First, there was the Supreme Court’s decision

in Winter v. Natural Resources Defense Council, Inc.,

555 U.S. 7 (2008). As noted above, the Smyth court’s

decision rested, in significant part, on Blackwelder’s

lenient equitable standard for granting preliminary

relief. Under Blackwelder, the “first factor” courts

were instructed to consider was the likelihood of

irreparable harm to the plaintiff, which would then

be balanced against the likelihood of harm to the

defendant. Safety-Kleen, Inc. (Pinewood) v. Wyche,

274 F.3d 846, 859 (4th Cir. 2001). If this “hardship

balance” tipped “sharply and clearly in the plaintiff’s

favor, the required proof of likelihood of success [was]

substantially reduced.” Ciena Corp. v. Jarrard, 203

F.3d 312, 323 (4th Cir. 2000) (internal quotation

marks omitted). The Smyth court, then, was quite

reasonably concerned about affording prevailing

party status to a plaintiff who had demonstrated no

more than a “fair ground for litigation.” Rum Creek

Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th

Cir. 1991).

In Winter, however, the Supreme Court

clarified that each preliminary injunction factor –

likelihood of success, irreparable harm, the balance

of equities, and the public interest – must be

“satisfied as articulated.” Real Truth About Obama,

Inc. v. Fed. Election Comm’n, 575 F.3d 342, 347 (4th

Cir. 2009), vacated on other grounds, 559 U.S. 1089

(2010). Today, a plaintiff seeking preliminary relief

must first make a “clear showing” that his claim is

likely to succeed on the merits. Winter, 555 U.S. at

22; see Real Truth About Obama, Inc., 575 F.3d at

18a

346–47 (“The Winter requirement that the plaintiff

clearly demonstrate that it will likely succeed on the

merits is far stricter than the Blackwelder

requirement.”).

As the panel here rightly concluded, Winter did

not supersede Smyth or render its reasoning wholly

untenable. Smyth, after all, was concerned with not

just “the standard for obtaining a preliminary

injunction” but also the inherently tentative “nature

of preliminary injunctions.” Stinnie, 37 F.4th at 982.

Nonetheless, Winter’s stringent merits requirement

means that we may revisit Smyth without opening

the door to the risk that so concerned the court there:

that a plaintiff may prevail, and thus be entitled to

fees, based on a preliminary injunction that had

virtually nothing to do with the merits of her claim.

Smyth, 282 F.3d at 277.

Winter is not the sole development compelling

us to reconsider Smyth. Second, we turn to an

observation of the magistrate judge here: The

bright-line rule set out in Smyth has become a

distinct outlier. Since we decided Smyth, almost

every other circuit has weighed in on the question

before us. And all have concluded that a plaintiff

whose case is rendered moot after she wins a

preliminary injunction – so that the injunction by

definition cannot be “reversed, dissolved, or otherwise

undone” by a later order, Sole, 551 U.S. at 83 – may

qualify as a prevailing party in appropriate

19a

circumstances. See Planned Parenthood Sw. Ohio

Region v. Dewine, 931 F.3d 530, 542 (6th Cir. 2019);

Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712,

716 (9th Cir. 2013); Rogers Grp., Inc. v. City of

Fayetteville, 683 F.3d 903, 909–10 (8th Cir. 2012);

Kan. Jud. Watch v. Stout, 653 F.3d 1230, 1238 (10th

Cir. 2011); Common Cause/Ga. v. Billups, 554 F.3d

1340, 1356 (11th Cir. 2009); People Against Police

Violence v. City of Pittsburgh, 520 F.3d 226, 233 (3d

Cir. 2008); Dearmore v. City of Garland, 519 F.3d

517, 524 (5th Cir. 2008); Dupuy v. Samuels, 423 F.3d

714, 723 n.4 (7th Cir. 2005); Select Milk Producers,

Inc. v. Johanns, 400 F.3d 939, 948 (D.C. Cir. 2005);

Haley v. Pataki, 106 F.3d 478, 483–84 (2d Cir. 1997). 6

These circuits vary slightly in their formulations

of when, precisely, preliminary relief satisfies this

standard, a question to which we return below. But

every court disagrees with Smyth’s conclusion that a

preliminary injunction always acts as a mere

“prediction of a probable, but necessarily uncertain,

outcome.” Smyth, 282 F.3d at 276. As many courts

have noted, this viewpoint “fails to account for fact

patterns in which the claimant receives everything it

asked for in the lawsuit, and all that moots the case”

before final judgment “is court-ordered success and

the passage of time.” McQueary v. Conway, 614 F.3d

591, 599 (6th Cir. 2010); see, e.g., Young v. City of

The First Circuit has not yet opined on the issue, see Sinapi v.

R.I. Bd. of Bar Exam’rs, 910 F.3d 544, 552 (1st Cir. 2018), but

district courts within that circuit have followed the consensus

rule, see, e.g., Tri-City Cmty. Action Program, Inc. v. City of

Malden, 680 F. Supp. 2d 306, 314 (D. Mass. 2010).

20a

Chicago, 202 F.3d 1000, 1000–01 (7th Cir. 2000)

(awarding fees to plaintiffs who won a preliminary

injunction allowing them to protest at a convention,

which was the only relief they sought). In these

cases, the courts have explained, “although the

plaintiff never secured a final judgment granting

permanent injunctive relief, the preliminary

injunction ended up affording all the relief that

proved necessary.” Higher Taste, 717 F.3d at 717; see

also Select Milk Producers, 400 F.3d at 948.

To be sure, the fact that Smyth now represents

a minority view of one does not by itself make it

incorrect. But we take seriously the legal

developments in the years since we decided Smyth.

Our sister circuits have carefully and thoughtfully

engaged with this question and come to a contrary

consensus – and the Supreme Court, we note, has not

intervened, except to flag the question as one it has

left open. See Sole, 551 U.S. at 86. Ultimately, we

find ourselves persuaded that Smyth’s categorical bar

goes too far, and that some preliminary injunctions

may suffice to confer prevailing party status.

Finally, one more practical observation impacts

our thinking. Congress enacted § 1988(b), we have

noted, “in furtherance of the policy of facilitating

access to judicial process for the redress of civil

rights grievances.” Brandon v. Guilford Cty. Bd. of

Elections, 921 F.3d 194, 198 (4th Cir. 2019). Our

circuit rule, however, may undermine that policy by

21a

allowing government defendants to game the

system. Faced with a suit challenging a potentially

or even very probably unlawful practice, a defendant

may freely litigate the case through the preliminary

injunction phase, hoping for the best or, perhaps, to

outlast an indigent plaintiff. And when the court

confirms the likely merit of the plaintiff’s claim, the

government will have ample time to cease the

challenged conduct, moot the case, and avoid paying

fees. That leaves the plaintiff, who likely devoted

considerable resources to obtaining the preliminary

injunction, holding the bag. The predictable outcome

of this gamesmanship is fewer attorneys willing to

represent civil rights plaintiffs in even clearly

meritorious actions – particularly those whose

urgent situations call for interim relief. And that

result, instead of furthering the goals of § 1988(b),

contravenes the statute’s entire purpose. See

Buckhannon, 532 U.S. at 607 (observing that the

Supreme Court interprets § 1988(b) in light of its

legislative purpose).

This case illustrates the point. The plaintiffs

here secured a preliminary injunction based on a

“clear showing” that Va. Code § 46.2-395 was likely

unconstitutional. Stinnie, 355 F. Supp. 3d at 527–31.

And after years of “long, contentious, and no doubt

costly” litigation, the plaintiffs were eager to proceed

to summary judgment. Stinnie, 396 F. Supp. 3d at

660. But over the plaintiffs’ protests, the

Commissioner secured a stay so that the General

Assembly could repeal the statute and moot the case.

Id. at 661. Moreover, the Commissioner provided

22a

significant input on how to structure the repeal –

including a draft bill – so that it would “result in the

pending litigation being dismissed, relieving” the

government’s obligation to “incur costly legal fees.”

J.A. 968–69. And because Virginia is in the Fourth

Circuit and not anywhere else in the country, the

Commonwealth could rest assured that this eleventhhour capitulation would insulate it from a fee award.

As this case so unfortunately demonstrates, instead of

opening the courthouse doors to meritorious civil

rights claimants, Smyth’s rule gives the government

the key, allowing it to lock out civil rights plaintiffs

whenever their success seems imminent. This cannot

have been Congress’s intent in passing § 1988.

III.

We turn now to the crux of this appeal. Having

overruled Smyth, we must articulate a new standard

to take its stead. In our view, a simple, workable test

follows directly from Supreme Court precedent:

When a preliminary injunction provides the plaintiff

concrete, irreversible relief on the merits of her claim

and becomes moot before final judgment because no

further court-ordered assistance proves necessary,

the subsequent mootness of the case does not

preclude an award of attorney’s fees.

We begin with the Supreme Court’s definition

of a prevailing party: one who receives “actual relief

23a

on the merits of his claim” that “materially alters the

legal relationship between the parties by modifying

the defendant’s behavior in a way that directly

benefits the plaintiff.” Farrar, 506 U.S. at 111–12. On

the face of this formulation, there appears to be no

aspect a preliminary injunction cannot satisfy. After

all, “the granting of a preliminary injunction

assuredly changes the legal relationship between the

parties” by modifying the defendant’s behavior.

McQueary v. Conway, 614 F.3d 591, 600 (6th Cir.

2010). Indeed, this is “typically the whole point of

an injunction”: to force the defendant, for the benefit

of the plaintiff, to do something he otherwise would

not. Higher Taste, Inc. v. City of Tacoma, 717 F.3d

712, 716 (9th Cir. 2013). For this reason, the

Supreme Court has “repeatedly held” that a

permanent injunction will “usually satisfy that test.”

Lefemine, 568 U.S. at 4.

Preliminary relief, however, differs from its

permanent form in important ways. It does not

require a final judicial determination that a

plaintiff’s claim is meritorious, and it is, “by its very

nature, intended to be temporary.” Higher Taste, 717

F.3d at 716. As we have discussed, these two

differences proved determinative for our court in

Smyth. But other courts, rejecting Smyth’s brightline rule, have been required to address a set of

“recurrent questions . . . when making prevailingparty determinations in this context.” Id. We turn to

those questions, and their resolution by our sister

circuits, for guidance.

24a

First, does a preliminary injunction provide the

plaintiff “actual relief” by ordering a “material

alteration” of the parties’ legal relationship? On this

prong, for a plaintiff to prevail, he must practically

“achieve[] some of the benefit” he ultimately “sought

in bringing suit.” Hensley, 461 U.S. at 433 (internal

quotation marks omitted). So merely surviving a

motion to dismiss or securing reversal of a directed

verdict, for example – even if accompanied by a

“favorable judicial statement of law,” Hewitt v.

Helms, 482 U.S. 755, 763 (1987) – cannot support an

award of fees. Such interim victories, which provide

no concrete relief beyond another day in court, are

simply “not the stuff of which legal victories are

made.” Id. at 760; see also id. (“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.”).

In some cases, as illustrated here, there will be

little question that a preliminary injunction’s

“alteration of the legal relationship of the parties”

satisfies this standard. The plaintiffs brought this

suit, at least in part, to secure reinstatement of their

suspended licenses.

The court’s preliminary

injunction ordered precisely that relief. See Stinnie,

355 F. Supp. 3d at 532. True, as the Smyth court

anticipated, this relief was ordered on a provisional

basis. 282 F.3d at 276. And we return to the

question of what makes preliminary relief

sufficiently “enduring” in a moment. But no matter

25a

what happened at the conclusion of the litigation,

this injunction, for the time it remained in effect,

allowed the plaintiffs to again drive to their jobs and

personal

engagements,

providing

concrete,

irreversible economic and non-economic benefits that

the plaintiffs sought in bringing suit. Cf. Select Milk

Producers, 400 F.3d at 942 (noting that, where a

preliminary injunction preventing enforcement of a

proposed federal regulation saved the plaintiffs

millions of dollars, this relief was “concrete and

irreversible”). 7

The Commissioner’s attempts to distinguish Select Milk

Producers are unavailing. There, the district court preliminarily

enjoined enforcement of a proposed agency rule that would have

caused the plaintiffs a “substantial monetary loss.” 400 F.3d at

943. While the injunction was in place, it saved the plaintiffs

an “estimated $5,000,000” that “could not have been recovered.”

Id. (internal quotation marks omitted). The government then

abandoned the proposed rule, mooting the case before final

judgment. And the D.C. Circuit held that the “concrete and

irreversible redress” the preliminary injunction provided during

the time it was in effect satisfied the prevailing party standard.

Id. at 942.

This case is on all fours with Select Milk Producers. The

Commissioner contends that unlike the “irreversible” monetary

savings in Select Milk Producers, the plaintiffs’ relief here was

“temporary and reversible.” But the concrete benefits of license

reinstatement, which were provided directly by the preliminary

injunction and reaped each day it remained in effect, were no

less permanent and irrevocable than the plaintiffs’ monetary

savings in Select Milk Producers. And inasmuch as the

Commissioner posits a distinction between the economic benefits

in Select Milk Producers and the non-pecuniary relief at issue in

this case, that contention misses the mark. For one, the district

court here made specific findings of fact regarding the direct

26a

We caution, however, that some preliminary

injunctions will not satisfy this standard. “The

traditional office of a preliminary injunction,” we

have observed, “is to protect the status quo and to

prevent irreparable harm during the pendency of a

lawsuit,” thus “preserv[ing] the court’s ability to

render a meaningful judgment on the merits.”

Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013)

(internal quotation marks omitted). These so-called

status quo injunctions, which simply maintain the

“last uncontested status between the parties,” id. at

320 (quoting Aggarao v. MOL Ship Mgmt. Co., 675

F.3d 355, 366 (4th Cir. 2012)), may not provide the

plaintiff any of the relief he ultimately seeks at the

conclusion of the litigation. And as many courts of

appeals have concluded, winning a simple “holdingpattern injunction,” McQueary, 614 F.3d at 601, that

does not provide some of the benefit the plaintiff

ultimately seeks in bringing suit cannot confer

prevailing party status. 8 But here – where the

financial burdens of license suspension on the plaintiffs. See

Stinnie, 355 F. Supp. 3d at 520–23. And more importantly, the

Supreme Court has emphasized that the prevailing party

inquiry in no way turns on the monetary nature of the relief

involved, but rather on whether the plaintiffs “achieve[d] some

of the benefit [they] sought in bringing suit.” Garland, 489 U.S.

at 791–92 (internal quotation marks omitted).

See, e.g., McQueary, 614 F.3d at 601; Select Milk Producers,

400 F.3d at 984; N. Cheyenne Tribe v. Jackson, 433 F.3d 1083,

1086 (8th Cir. 2006); Dubuc v. Green Oak Twp., 312 F.3d 736,

753–54 (6th Cir. 2002). As courts and commentators have

observed, distinguishing between status quo and non-status quo

injunctions – and identifying the “last uncontested status

27a

district court enjoined a longstanding statute and

ordered affirmative relief, much to the plaintiffs’

concrete benefit – this first requirement is easily

satisfied.

So a preliminary injunction may, in

appropriate circumstances, provide the necessary

“actual relief” to render a party prevailing. But is

that relief sufficiently on the merits to justify

prevailing party status? Here, too, we think the

answer is clear. In Buckhannon, the Supreme Court

held that relief “on the merits” requires a “judicially

sanctioned change in the legal relationship of the

parties.” 532 U.S. at 605 (emphasis added). It thus

rejected the “catalyst theory,” which allowed fee

awards when a plaintiff “achieved the desired result

because the lawsuit brought about a voluntary

change in the defendant’s conduct” without any courtordered relief. Id. at 600. Such a voluntary change in

conduct, “although perhaps accomplishing what the

plaintiff sought to achieve by the lawsuit, lacks the

between the parties” – often proves difficult. See, e.g., Chi.

United Indus., Ltd. v. City of Chicago, 445 F.3d 940, 944 (7th

Cir. 2006) (Posner, J.) (describing the formulation as “much,

and rightly, criticized”); Thomas R. Lee, Preliminary

Injunctions and the Status Quo, 58 Wash. & Lee L. Rev. 109,

157–66 (2001). For our purposes, however, what matters is

whether the injunction itself provided “some of the benefit” the

plaintiff ultimately “sought in bringing suit.” Hensley, 461 U.S.

at 433 (internal quotation marks omitted).

28a

necessary judicial imprimatur on the change.” Id. at

605.

Importantly, the plaintiffs here do not rely on

the catalyst theory. Their claim to fees rests entirely

on their victory at the preliminary injunction stage,

and not on the General Assembly’s subsequent

repeal of § 46.2-395. There is little question that a

preliminary

injunction

entails

“judicially

sanctioned change” in the parties’ legal relationship.

Id. at 605. And any concerns we had about this

judicially sanctioned change resting only on the

equities and not “on the merits,” see Smyth, 282 F.3d

at 276–77, were addressed by the Supreme Court in

Winter, see 555 U.S. at 22 (requiring plaintiff seeking

preliminary relief to show likelihood of success on the

merits). 9

Today, we may expect all preliminary

injunctions to be solidly merits-based – as was the

case here, with the district court granting

preliminary relief only after a “clear showing” that

the plaintiffs’ claim was likely meritorious. Stinnie,

355 F. Supp. 3d at 527–31. Accordingly, we conclude,

following other courts of appeals, that “[a]

preliminary injunction issued by a judge carries all

the ‘judicial imprimatur’ necessary to satisfy

Buckhannon.” Higher Taste, 717 F.3d at 716

(internal quotation marks omitted); see, e.g.,

Further mitigating this concern is the “heightened standard of

review” we apply to injunctions that upend, rather than

maintain, the status quo. Pashby, 709 F.3d at 319–20 (noting

that, when reviewing such injunctions, our “exacting standard

of review is even more searching” (internal quotation marks

omitted)).

29a

Common Cause/Georgia v. Billups, 554 F.3d 1340,

1356 (11th Cir. 2009); Select Milk Producers, 400

F.3d at 946.

The Commissioner, echoing our reasoning in

Smyth, insists that a preliminary injunction is only

an “initial prediction” and not a guarantee that the

plaintiffs would have prevailed on the merits had

their case proceeded to final adjudication. But that

simply begs the question now before us: whether a

plaintiff who wins a preliminary injunction has

already “prevailed” for purposes of § 1988. 10 The

plaintiffs, that is, do not allege that they would have

prevailed on the merits had the district court denied

the Commissioner’s stay motion and allowed their

case to go to final judgment. Instead, they claim that

they did prevail on the merits when the district court

awarded them concrete, judicially sanctioned relief,

in the form of reinstated licenses, by way of a

preliminary injunction. Nor is it the case, as the

Commissioner suggests, that court-ordered relief

cannot satisfy Buckhannon without a final

determination of liability on the merits. Instead,

Buckhannon itself recognized that a consent decree,

even without “an admission of liability by the

defendant, . . . nonetheless is a court-ordered change

The Commissioner’s passive-voice framing also elides the

reason the plaintiffs’ case did not proceed to final adjudication:

The Commissioner obtained a stay, over the plaintiffs’ objection,

so that the legislature could moot the plaintiffs’ case by

repealing the challenged statute. What the Commissioner

really means to say is that a preliminary injunction is not

equivalent to the hypothetical final judgment that its own

litigation strategy put out of reach

30a

in the legal relationship between the plaintiff and the

defendant” that may be the basis for a fee award.

532 U.S. at 604 (cleaned up). A merits-based

preliminary injunction amounts to no less of a “courtordered change in the legal relationship,” id., and

confers the same “judicial imprimatur,” id. at 605. 11

In the dissent’s view, this understanding conflicts not only

with Smyth but also with our recent panel decision in Ge v. U.S.

Citizenship & Immigration Services, 20 F.4th 147 (4th Cir.

2021). See Diss. Op. at 54. It would be unremarkable if this

were so; in overruling Smyth, we also “overrule [any]

casesrelying upon its reasoning.” United States v. Lancaster, 96

F.3d 734, 736 (4th Cir. 1996) (en banc). But as it happens, Ge is

not such a case. Ge did not involve a preliminary injunction but

instead a district court order remanding a case to a federal

agency for further consideration. And the panel sensibly held

that a remand order, like any interlocutory procedural victory,

provides neither actual relief on the merits nor a material

alteration of the parties’ legal relationship and so cannot confer

prevailing party status. Ge, 20 F.4th at 155–57. This

straightforward ruling presents no conflict with – and in fact

directly tracks – our reasoning here.

The dissent focuses not on Ge’s holding but instead on

its observation that a party “must obtain . . . a judgment,

consent decree, or similar order” to prevail. Id. at 153

(emphasis added); see Buckhannon, 532 U.S. at 604–05 (listing

“enforceable judgments on the merits and court-ordered consent

decrees” as “examples” of orders that “create the material

alteration of the legal relationship of the parties necessary to

permit an award of attorney’s fees” (internal quotation marks

omitted)). Because a preliminary injunction is not “like a

judgment or a consent decree,” the dissent believes, our holding

today conflicts with Ge. Diss. Op. at 54. But our holding, of

course, is that a preliminary injunction – unlike a remand

order – is “similar” to a final judgment and a consent

decree for Buckhannon purposes, because it can effectuate the

necessary “material alteration” of the parties’ legal relationship.

31a

Preliminary relief thus appears capable of

satisfying the basic requirements of prevailing party

status: A preliminary injunction may provide

concrete and irreversible relief on the merits of a

plaintiff’s claim, as the result of a judicially ordered

change in the parties’ relationship. But because of its

preliminary nature, such relief implicates one

further requirement: that the “court-ordered change

in the legal relationship” be “enduring” rather than

“ephemeral.” Sole v. Wyner, 551 U.S. 74, 86 (2007);

see also Higher Taste, 717 F.3d at 717.

A preliminary injunction, after all, might

always be undone in later proceedings. That is what

happened in Sole: A plaintiff won a preliminary

injunction allowing her to stage a public antiwar

display featuring nudity, but when she sought a

permanent injunction for future displays, the district

court reversed course and entered final judgment for

the state defendant. 551 U.S. at 79–82. That

plaintiff, the Supreme Court held, had not

“prevailed” under § 1988 – notwithstanding

preliminary relief that allowed for her first display –

because her “initial victory was ephemeral,” resting

“on a premise the District Court ultimately rejected.”

Id. at 85–86. When preliminary relief is later

“reversed, dissolved, or otherwise undone by the final

decision in the same case,” the Supreme Court

The dissent may disagree, but that holding is fully consistent

with Ge.

32a

reasoned, that “eventual ruling on the merits . . .

supersede[s] the preliminary ruling” and the plaintiff

cannot be said to have “prevailed.” Id. at 83–85.

the

mine-run

cases,

Sole’s

straightforward holding will begin and end the

inquiry. Generally speaking, a preliminary injunction

– even one that provides actual relief on the merits –

will be revisited by a final decision in the same case.

Under Sole, if the plaintiff loses at final judgment,

she cannot prevail; if she wins, she prevails without

recourse to her initial victory. But there is a third

possibility, as this case illustrates: Sometimes, after

a plaintiff wins preliminary relief, her case will

become moot before final judgment, as her

preliminary injunction will have “ended up affording

all the relief that proved necessary.” Higher Taste,

717 F.3d at 717. Because the case is moot, there can

be no subsequent final judgment superseding the

preliminary ruling. Cf. Sole, 551 U.S. at 84–85. And

in those cases, courts regularly conclude that the

plaintiffs have recovered sufficiently “enduring”

relief to make them prevailing parties under Sole.

In some of those cases, a preliminary

injunction provides concrete relief on the merits, and

what moots the case is only “court-ordered success

and the passage of time.” McQueary, 614 F.3d at 599.

The canonical example is a plaintiff who wins a

preliminary injunction permitting a protest at a

specific event. After the event ends, the litigation

will be dismissed as moot, but only because the

plaintiff has received all the court-ordered assistance

required. Our sister circuits have little difficulty

33a

finding

prevailing

party

status

such

circumstances. See id. (describing cases). In others,

the fact pattern mimics the one before us now: A

plaintiff wins preliminary relief enjoining a statute

or practice, but the policy is permanently repealed or

abandoned before final judgment. And in this

scenario, too, courts have held that the plaintiff

may qualify as a prevailing party under § 1988. See,

e.g., Common Cause, 554 F.3d at 1355–56; People

Against Police Violence v. City of Pittsburgh, 520 F.3d

226, 233–34 (3d Cir. 2008); Rogers Grp., Inc. v. City

of Fayetteville, 683 F.3d 903, 913 (8th Cir. 2012);

Select Milk Producers, 400 F.3d at 943.

We agree. What these two sets of cases have in

common is that in each, a preliminary injunction has

provided the plaintiff with precisely the merits-based

relief she needs for precisely as long as she needs it –

for the would-be protester, for as long as the event

lasts; for the challenger to a statute, for as long as

the statute remains on the books. See Dupuy v.

Samuels, 423 F.3d 714, 723 n.4 (7th Cir. 2005)

(reviewing cases finding prevailing party status

where case becomes moot only “after the preliminary

injunction had done its job” (internal quotation

marks omitted)). In each, the relief the plaintiff

receives is as “enduring” as if she had received a

permanent injunction to the same effect. See Higher

Taste, 717 F.3d at 717. And in each, mootness means

that the material and concrete preliminary relief

awarded cannot be superseded by a contrary final

judgment on the merits in the same case. See Sole,

551 U.S. at 83; Dupuy, 423 F.3d at 723 (“The relief the

34a

plaintiffs had obtained through the preliminary

injunction therefore was not defeasible for the same

reason that the case was moot.”).

It is true that, “as a matter of course, an

injunction may dissolve when a case becomes moot

and the injunction is no longer necessary.” Planned

Parenthood Sw. Ohio Region v. Dewine, 931 F.3d

530, 542 (6th Cir. 2019). But unlike an adverse

decision on the merits, this matter-of-course vacatur

does not negate the “change in the legal relationship”

already effected by the preliminary injunction. Id. at

539–40. In Sole, the plaintiff’s preliminary victory

was deemed “fleeting” not because it failed to reach

final judgment, but because the plaintiff’s

“temporary success rested on a premise the District

Court ultimately rejected” when it granted final

judgment to the defendant. 551 U.S. at 85. This

conclusion follows logically from Buckhannon: A

reversal on the merits repudiates the earlier judicial

mandate for a change in the parties’ legal

relationship, so that any preliminary relief obtained

by the plaintiff – even if concrete and irreversible –

no longer has “the necessary judicial imprimatur” to

support a fee award. Buckhannon, 532 U.S. at 605;

see Kan. Jud. Watch v. Stout, 653 F.3d 1230, 1240

(10th Cir. 2011).

But when a case is dismissed as moot because a

preliminary injunction has done all it needed, the

injunction is not “dissolved for lack of entitlement.”

Watson v. Cnty. of Riverside, 300 F.3d 1092, 1096

(9th Cir. 2002); see Planned Parenthood, 931 F.3d at

540 (“[V]acatur at that juncture . . . does not

35a

represent the kind of active, merits-based undoing

the Supreme Court referred to in Sole.”). No court

ever “issue[s] an order undermining the district

court’s assessment of the merits” or “repudiat[ing]

the favorable change in the parties’ legal

relationship.” Kan. Jud. Watch, 653 F.3d at 1240 &

n.4. On the contrary, the plaintiff’s victory is now

sure to be enduring, as there is no longer any risk

that the court-ordered relief will lose its judicial

imprimatur. 12

Consistent with our reasoning above, we hold

that the Supreme Court’s “generous formulation” for

prevailing party status, Hensley, 461 U.S. at 433, is

satisfied when a plaintiff obtains a preliminary

This reasoning, the dissent suggests, is “little more than a new

spin on the catalyst theory”: Because a case becomes moot only

through a “non-judicial act” – here, the legislative repeal of the

challenged statute – the dissent posits that our holding relies

on a “non-judicial decision” to “anoint a prevailing party.” Diss.

Op. at 52. But sometimes, as we have described above, it is not a

“non-judicial decision” but only “court-ordered success and the

passage of time” that moots a case. McQueary, 614 F.3d at 599.

And in any event, as we have explained, this case simply does

not implicate the catalyst theory, with or without a spin. Under

the standard we adopt today, a plaintiff prevails not because

her preliminary injunction “catalyzes” some subsequent

mooting event, like a legislative repeal, but because the

preliminary injunction itself provides her with concrete,

irreversible relief. The case’s subsequent mootness – however it

arises – simply guarantees that this enduring, merits-based

relief will not lose its judicial imprimatur.

36a

injunction that (a) provides her with concrete,

irreversible relief on the merits of her claim by

materially altering the parties’ legal relationship,

and (b) becomes moot before final judgment such that

the injunction cannot be “reversed, dissolved, or

otherwise undone” by a later decision. Because the

plaintiffs here satisfy these baseline criteria, they

cross the “statutory threshold,” id., to qualify as

prevailing parties whom “the court, in its discretion,

may allow . . . a reasonable attorney’s fee,” 42 U.S.C.

§ 1988(b).

We believe this straightforward approach is

not only faithful to Supreme Court guidance but also

reflective of the broad consensus in our sister circuits.

As noted, though other federal courts of appeals are

unanimous in their rejection of Smyth’s categorical

rule, there are some differences in the way they

assess prevailing party status and frame their

inquiries in this context. But we have done our best

to synthesize the case law and capture the dominant

approach. And we think the requirements we

articulate today – that the plaintiff receive “concrete

and irreversible judicial relief” from the preliminary

injunction itself, Select Milk Producers, 400 F.3d at

948; that the preliminary injunction rest on an

“unambiguous indication of probable success on the

merits,” Kan. Jud. Watch, 653 F.3d at 1238; and that

the “plaintiff’s initial victory [be] enduring rather

than ephemeral,” in that it lasts for as long as it is

needed and may not be undone by a final ruling on

the merits, Higher Taste, 717 F.3d at 718 – fairly

encapsulate the weight of the authority.

37a

We recognize that a few circuits impose

additional, fact-specific barriers to prevailing party

status. See Dearmore v. City of Garland, 519 F.3d

517, 524 (5th Cir. 2008) (requiring showing that

preliminary injunction caused defendant to moot an

action); Singer Mgmt. Consultants, Inc. v. Milgram,

650 F.3d 223, 230 n.4 (3d Cir. 2011) (en banc)

(requiring a heightened showing on the merits);

McQueary, 614 F.3d at 601 (outlining a “contextual

and case-specific inquiry”). In our view, however, the

majority approach better conforms to the Supreme

Court’s emphasis on judicial administrability when it

comes to the threshold question of fee eligibility. See

Garland, 489 U.S. at 790. At this early stage of the §

1988 inquiry, the Supreme Court advises, courts

should avoid, where possible, “unstable” standards

and fact-dependent criteria that would reliably

“spawn a second litigation.” Id at 791. The threshold

standard we have enunciated here, we think, tracks

the precedents of the Supreme Court without

sacrificing clarity or administrability.

And it still leaves room at the next stage of the

§ 1988 inquiry – a district court’s discretionary

assessment of a “reasonable” fee – for consideration

of all the relevant facts and circumstances. See

Hensley, 461 U.S. at 429 (“The amount of the fee, of

course, must be determined on the facts of each

case.” (emphasis added)).

Our decision today is a narrow one. We hold

38a

only that when a preliminary injunction meets the

criteria outlined above, the plaintiff satisfies the

statutory definition of a prevailing party. But

as we have emphasized, that “brings the plaintiff only

across the statutory threshold. It remains for the

district court to determine what fee is ‘reasonable.’”

Hensley, 461 U.S. at 433. In other words, that the

plaintiffs here are prevailing parties means that they

are “eligible for, rather than entitled to, an award of

attorney’s fees.” Mercer v. Duke Univ., 401 F.3d 199,

203 (4th Cir. 2005). What constitutes a “reasonable

fee” in this case is committed to the district court’s

“broad discretion.” Daly v. Hill, 790 F.2d 1071, 1085

(4th Cir. 1986).

Our deference to district courts in determining

a reasonable fee is “appropriate in view of the district

court’s superior understanding of the litigation and

the desirability of avoiding frequent appellate review

of what essentially are factual matters.” Hensley,

461 U.S. at 437; id. at 430 n.3 (outlining twelve-factor

test courts employ to calculate fees). In this field, the

district courts have longstanding expertise and

“enjoy a decided advantage over appellate courts.”

Carroll v. Wolpoff & Abramson, 53 F.3d 626, 628 (4th

Cir. 1995). Indeed, though the Commissioner

expresses some doubt about the administrability of

anything other than Smyth’s bright-line bar on fee

recovery in this context, we note that district courts

in other circuits – all of which have long allowed

preliminary injunctions to confer prevailing party

status – appear to have no trouble applying the usual

factors to fee awards based on preliminary relief.

39a

See, e.g., P.G. v. Jefferson Cnty., No. 5:21-CV-388,

2023 WL 3496363, at *3–4 (N.D.N.Y. May 17, 2023);

Memphis A. Phillip Randolph Inst. v. Hargett, No.

3:20-CV-00374, 2022 WL 576554, at *6 (M.D. Tenn.

Feb. 25, 2022), aff’d sub nom. Memphis A. Philip

Randolph Inst. v. Hargett, 2023 WL 411381 (6th Cir.

Jan. 26, 2023); Brakebill v. Jaeger, No. 1:16-CV-008,

2020 WL 10456884, at *4 (D.N.D. May 7, 2020), aff’d

sub nom. Spirit Lake Tribe v. Jaeger, 5 F.4th 849

(8th Cir. 2021); Miller v. Davis, 267 F. Supp. 3d 961,

979 (E.D. Ky. 2017); Ne. Ohio Coal. for Homeless v.

Brunner, 652 F. Supp. 2d 871, 886 (S.D. Ohio 2009),

modified on reconsideration sub nom. Ne. Ohio Coal.

for the Homeless v. Brunner, No. C2-06-896, 2009 WL

10663619 (S.D. Ohio July 30, 2009).

And, importantly, a district court’s multifactored assessment of what constitutes a

“reasonable” fee is capacious and flexible enough to

account for many of the concerns that have been

raised about allowing preliminary relief to support a

fee award at all. The Commissioner, for instance,

argued strenuously that the preliminary injunction

here should not confer prevailing party status in part

because it gave the plaintiffs so little of what they

wanted: The named plaintiffs sought not only

reinstatement of their own licenses, but also class

certification, a declaratory judgment that § 46.2-395

was unconstitutional, and hence permanent license

reinstatement for hundreds of thousands of

Virginians. Those are precisely the kinds of

considerations that bear on the “extent of a plaintiff’s

success” – a critical factor in assessing a reasonable

40a

fee award in any fee litigation under § 1988. See

Hensley, 461 U.S. at 439–40; McAfee v. Boczar, 738

F.3d 81, 92 (4th Cir. 2013), as amended (Jan. 23,

2014). 13 We of course express no view on the

merits of the Commissioner’s argument or the

extent of the plaintiffs’ success. But we are confident

that on remand, the district court, with its “ringside

view of the relevant conduct of the parties and of the

underlying dispute,” Alexander v. Mayor & Council

of Cheverly, 953 F.2d 160, 162 (4th Cir. 1992), will

take account of all of the relevant facts and

circumstances in exercising its discretion to order a

“reasonable attorney’s fee,” 42 U.S.C. § 1988(b).

The district court, bound by Smyth’s categorical

rule, had no choice but to deny the plaintiffs

prevailing party status, rendering them ineligible for

fees at the threshold. For the reasons given above, we

have reconsidered Smyth’s bright-line rule and

replaced it with a standard under which the plaintiffs

qualify as prevailing parties eligible for fees. We

therefore vacate the judgment of the district court

and remand for further proceedings consistent with

this opinion.

IV.

These considerations, however, have no relevance to the legal

question before us of whether a party has prevailed in the first

place. As the magistrate judge here observed, “the limited

nature of the relief granted is accounted for not by denying a fee

award altogether, but rather by adjusting the amount of fees

awarded.” Stinnie, 2021 WL 627552, at *11; see Farrar, 506 U.S.

at 114 (“[T]he degree of the plaintiff’s success does not affect

eligibility for a fee award.” (internal quotation marks omitted)).

41a

The district court order denying the plaintiffs’

fee petition is vacated and the case remanded for

further proceedings.

VACATED AND REMANDED

42a

QUATTLEBAUM, Circuit Judge, with whom

Judges AGEE, RICHARDSON, and RUSHING

join, dissenting:

Section 1988 of Title 42 in the United States

Code permits awards of attorney’s fees to a

“prevailing party” in certain civil rights cases. The

question presented in this appeal is whether a party

that obtains a preliminary injunction is a prevailing

party. To the majority, the answer is yes if “a

plaintiff obtains a preliminary injunction that (a)

provides her with concrete, irreversible relief on the

merits of her claim by materially altering the parties’

legal relationship, and (b) becomes moot before final

judgment such that the injunction cannot be

reversed, dissolved, or otherwise undone by a later

decision.” Maj. Op. at 29. In reaching that conclusion,

the majority overrules our Smyth ex rel. Smyth v.

Rivero, 282 F.3d 268 (4th Cir. 2002), decision. But

the text of § 1988(b) and Supreme Court guidance

make clear that temporary relief is insufficient. A

court must resolve at least one issue once and for all

on the merits, not merely predict how issues are

likely to be resolved. Finally, the relief must come

from a judicial decision, not the voluntary act of the

opposing party, so that it is enforceable by the court.

Obtaining a preliminary injunction does not meet

these requirements. In my view, the majority’s

decision misconstrues the meaning of “prevailing

party” under § 1988(b) and strays from Supreme

Court precedent. In contrast, Smyth is faithful to

both. So, I respectfully dissent.

43a

This case arises from a challenge to the

constitutionality of Virginia Code § 46.2- 395, which

has since been repealed. That statute authorized a

state court to order the suspension of a driver’s

license if a person convicted of any violation of the

law of the Commonwealth, the United States or any

valid local ordinances failed to pay any fine, costs,

forfeiture, restitution or penalty or make installment

payments as ordered by the court. Va. Code § 46.2395 (B). The plaintiffs brought a class action

complaint against Richard D. Holcomb in his official

capacity as the Commissioner of the Virginia

Department of Motor Vehicles alleging that the DMV

suspended the plaintiffs’ licenses immediately upon

their default without a hearing or consideration of

inability to pay court debts under § 46.2-395.

The plaintiffs sought a declaratory judgment

that § 46.2-395 violated the Constitution’s Due

Process Clause, as well as various forms of injunctive

relief. They also moved for a preliminary injunction.

The district court granted the motion, concluding

that “Plaintiffs are likely to succeed on the merits of

their procedural due process claim because the

Commissioner suspends licenses without an

opportunity to be heard.” J.A. 820. The order (1)

“preliminarily enjoined [the Commissioner] from

enforcing Virginia Code § 46.2- 395 against the

plaintiffs unless or until the Commissioner or

another entity provides a hearing regarding license

suspension[];” (2) required the Commissioner to

44a

remove any current suspensions of the plaintiffs’

driver’s licenses imposed under Virginia Code § 46.2395; and (3) enjoined the Commissioner from

charging a fee to reinstate the plaintiffs’ drivers’

licenses if there were no other restrictions on their

licenses. J.A. 843. The district court made no

determination as to the plaintiffs’ motion to certify a

class. And it did not determine that “final injunctive

relief or corresponding declaratory relief [was]

appropriate respecting the class as a whole.” J.A.

843. Thus, the order only applied to the named

plaintiffs.

The case proceeded to discovery. Subsequently,

the Virginia General Assembly passed a budget

amendment that prohibited the suspension of

drivers’ licenses for failure to pay court fines and

costs but did not repeal the statute. In response, the

Commissioner moved to dismiss the case as moot or

alternatively to stay the proceedings because of

pending legislative action to rescind the statute. The

district court denied the motion to dismiss. It found

that the budget amendment did not moot the case

because the statute remained on the books meaning

it was possible that it could still be enforced. But over

the plaintiffs’ objections, it granted the motion to

stay. Then, during its next regular session, the

Virginia General Assembly passed legislation that

eliminated

46.2-395

and

required

the

Commissioner to reinstate, without payment of fees,

driving privileges that had been suspended by courts

under § 46.2-395. Based on that legislative action,

the parties stipulated to the dismissal of the case as

45a

moot. But the plaintiffs asserted they were entitled to

attorney’s fees under 42 U.S.C. § 1988(b), so the

parties jointly requested the district court retain

jurisdiction to determine whether to award

attorney’s fees.

The district court referred the plaintiffs’

petition for attorney’s fees to a magistrate judge for a

report and recommendation. The magistrate judge

recommended denying the petition, finding our

Smyth decision controlling on the question of

whether a plaintiff who won a preliminary injunction

under the facts presented is a “prevailing party” under

§ 1988. The district court overruled the plaintiffs’

objections and denied the petition, finding no error

in the magistrate judge’s reasoning and ultimately

concluding that “whether the Fourth Circuit would

overrule Smyth today is, at best, unclear.” J.A. 1264.

The plaintiffs timely appealed.

II.

Section 1988(b) allows a district court, in its

discretion, to “allow the prevailing party, other than

the United States, a reasonable attorney’s fee as part

of the costs” in certain civil rights cases. 42 U.S.C. §

1988(b). But while this provision provides an

exception to the “American Rule”—where each party

in a lawsuit ordinarily bears its own attorney’s fees

unless there is express statutory authority otherwise,

Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)—the

46a

statute itself does not define “prevailing party.”

Instead, Congress employed the “the legal term of art

‘prevailing party’” in many statutes in addition to the

one at issue here. Buckhannon Bd. & Care Home,

Inc. v. W. Va. Dep’t of Health & Hum. Res., 532 U.S.

598, 603 (2001). As Justice Scalia recognized in his

concurrence in Buckhannon, “‘prevailing party’ is not

some newfangled legal term invented for use in late20th-century fee-shifting statutes.” Id. at 610.

In interpreting statutes, we define terms based

on their meaning at the time Congress enacted the

statute. Perrin v. U.S., 444 U.S. 37, 42 (1979)

(describing this principle as a “fundamental canon of

statutory construction”); see also A. Scalia & B.

Garner, Reading Law: The Interpretation of Legal

Texts, 69–92 (2012). At the time Congress enacted

the Civil Rights Attorney’s Fee Award Act of

1976, the term “prevailing party” was understood

in the law. Black’s Law Dictionary’s defined

“prevailing party” as “one of the parties to a suit who

successfully prosecutes the action or successfully

defends against it, prevailing on the main issue, even

though not to the extent of his original contention.”

Prevailing Party, Black’s Law Dictionary (rev. 4th

ed. 1968). Black’s added that a “prevailing party” is

“[t]he one in whose favor the decision or verdict is

rendered and judgment entered.” 1 Id. And it further

This is very close to the definition cited by the Supreme Court

in Buckhannon. There, the Court cited the 1999 seventh edition

of Black’s Law Dictionary which “define[d] ‘prevailing party’ as

‘[a] party in whose favor a judgment is rendered, regardless of

the amount of damages awarded.’” Buckhannon, 532 U.S. at

603.

47a

explains that prevailing party is “[t]he

party

ultimately prevailing when the matter is finally set

at rest.” Id. Offering more clarity, Black’s told us that

“[t]o be [a prevailing party] does not depend upon the

degree of success at different stages of the suit, but

whether at the end of the suit, or other proceeding,

the party who has made a claim against the other,

has successfully maintained it.” Id.

These definitions reveal that to prevail, a party

must achieve final, not temporary, success. Absent

that, it is not clear whether a party has “successfully

prosecute[d]” an action. Without final success, no

“decision or verdict is rendered and judgment

entered” and the matter is not “set at rest.” In sum,

Black’s tells us to look to the “end of the suit” to see if

a party has “successfully maintained” a claim, not to

interim events.

But we have more than legal dictionaries to

help us understand what it means to be the

prevailing party. The Supreme Court has interpreted

the phrase “prevailing party” from § 1988(b) on

numerous occasions. A quick tour through those

decisions provides additional guidance on the

meaning of a prevailing party. And the guidance

makes clear—contrary to the majority’s reading—

that while a prevailing party need not obtain relief on

every claim asserted, it must obtain enduring

judicially-sanctioned relief.

In Hensley, the plaintiffs challenged the

48a

constitutionality of conditions and treatment of those

involuntarily confined at a state hospital. 461 U.S. at

426. While the plaintiffs did not succeed on all their

claims, the district court held that an involuntarily

committed patient has a constitutional right to

minimally adequate treatment. Id. at 427. The

district court determined that the plaintiffs were

prevailing parties under §1988(b) even though they

had not succeeded on every claim. The court of appeals

affirmed. The Supreme Court granted certiorari and

then vacated and remanded for further proceedings

so that the district court could determine the proper

fee award in relation to the results obtained by the

plaintiffs. The Court did not settle on one particular

standard for defining “prevailing party.” Its primary

concern was clarifying the “proper standard for

setting a fee award where the plaintiff has achieved

only limited success.” Id. at 431. But in holding that

“the extent of a plaintiff’s success is a crucial factor

in determining the proper amount of an award for

attorney’s fees under 42 U.S.C. § 1988,” it made clear

that a party need not prevail on all its claims to be a

prevailing party. Id. at 440. And in explaining this,

the Court stated that success on any significant issue

that achieves some of the benefits the parties sought

in bringing suit was a “generous formulation” that

might bring a party “only across the statutory

threshold.” Id. at 433. So, from Hensley we learn that

complete victory on all claims is not required. Even so,

the partial relief that conferred prevailing party

status was a judgment finding constitutional

violations following a three-week trial on the merits.

49a

In Hewitt v. Helms, 482 U.S. 755 (1987), an

inmate brought a § 1983 action against prison

officials alleging that a Pennsylvania correctional

facility failed to give him a prompt hearing on

misconduct charges and convicted him of misconduct

in violation of his due process rights. Id. at 757. After

his release, the district court granted summary

judgment in favor of the prison officials on the

constitutional claims without ruling on qualified

immunity. Id. at 758. The Third Circuit reversed,

holding the facility violated the inmate’s due process

rights and ordered the district court to grant

summary judgment for the inmate on a claim on

remand. Id. at 758. But before that could happen, the

Supreme Court granted certiorari and held that the

prisoner’s administrative segregation did not violate

the due process clause. Id. When the case returned to

the district court, it granted summary judgment on

the basis of qualified immunity. Id. After the plaintiff

appealed, the Pennsylvania Bureau of Corrections

revised its regulations for inmate disciplinary

proceedings. Id. at 759. The inmate then sought

attorney’s fees under § 1988(b). The Supreme Court

rejected the Third Circuit’s conclusion that its

holding that the inmate’s constitutional rights were

violated prior to the Supreme Court’s decision was a

form of judicial relief. The Court held that “[r]espect

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.” Id. at 760. It then

explained that the plaintiff there received no

damages award, injunction or declaratory judgment.

50a

Id. at 760. And it added that “[t]he most that he

obtained was an interlocutory ruling that his

complaint should not have been dismissed for failure

to state a constitutional claim [,but] that is not the

stuff of which legal victories are made.” Id. Hewitt is

quite different from our case. Unlike the plaintiff

there, the plaintiffs here obtained a preliminary

injunction. But the Supreme Court made clear that

relief on the merits is required for a party to prevail

and its examples of such relief—a damages award,

an injunction or a declaratory judgment—indicate

that provisional relief precludes eligibility. Id. The

Court’s inclusion of “injunction” does not suggest

otherwise. Read in context with the rest of the

opinion, the Court’s insistence of relief on the merits

and its inclusion of injunction along with damages

awards and declaratory judgments indicates that by

referencing injunctions, it meant permanent

injunctions that result in final judgments. Id. In fact,

the Court explained that the fact that the plaintiff

obtained the benefit of the new procedures “can

hardly render him, retroactively, a ‘prevailing party’

in this lawsuit, even though he was not such when

the final judgment was entered.” Id. at 764. Thus,

the Court seems focused on final judgments.

Next, in Texas State Teachers Association v.

Garland Independent School District, 489 U.S. 782

(1989), several teachers’ unions brought a § 1983

action challenging the constitutionality of the school

district’s communications policy. The school district

obtained summary judgment on a number of the

claims, but not all. And as to other claims, the

51a

teachers’ unions were awarded summary judgment.

Id. at 787. The teachers’ unions then filed for

attorney’s fees under § 1988. Id. The Supreme Court

held that although they only prevailed on some of

their claims, the unions were nevertheless prevailing

parties. Id. at 793. The Court explained that the

“touchstone of the prevailing party inquiry must be

the material alteration of the legal relationship of

the parties in a manner which Congress sought to

promote in the fee statute.” Id. at 792–93. And it

reasoned that the teachers’ union prevailed “on a

significant issue in the litigation and [had] obtained

some of the relief they sought,” in obtaining “a

judgment vindicating the rights of public employees

in the workplace.” Id. at 793 (emphasis added). Texas

State Teachers Association confirms that complete

victory is not required to be a prevailing party. But

importantly, while the unions’ success was limited, it

was final—they received a final judgment on the

merits of some of their claims. To be sure, the Court

said “pendente lite” relief might suffice in addition to

relief afforded at “the conclusion of the litigation.” Id.

at 791. But read as a whole, the opinion makes clear

that such relief must necessarily be based on a party

establishing his entitlement to relief on the merits.

Id. at 790.

In Farrar v. Hobby, 506 U.S. 103 (1992), the

Supreme Court held that a civil rights plaintiff who

receives a nominal damages award is a “prevailing

party” eligible to receive attorney’s fees under § 1988.

Id. at 112. While the Court affirmed the denial of fees

in that particular case, it held that a plaintiff

52a

receiving only nominal damages was in fact a

prevailing party. Id. at 105. The Court clarified that

a “plaintiff must obtain at least some relief on the

merits of his claim.” Id. at 111. It added that a party

prevails “when actual relief on the merits of his claim

materially alters the legal relationship between the

parties by modifying the defendant’s behavior in a

way that directly benefits the plaintiff.” Id. at 111–

12. Continuing, the Court explained that a civil

rights plaintiff must obtain at least some relief on

the merits of his claim. Id. And giving specific

guidance as to what type of relief is needed, the

Court instructed that “[n]o material alteration of the

legal relationship between the parties occurs until

the plaintiff becomes entitled to enforce a

judgment, consent decree, or settlement against the

defendant.” Id. at 113. So, Farrar reiterates Texas

State Teachers Association’s standard of materially

altering the legal relationship between the parties

and adds “by modifying the defendant’s behavior in a

way that directly benefits the plaintiff.” Id. at 111–

12. But importantly, it clarifies that a material

alteration does not occur until the plaintiff becomes

entitled to enforce “a judgment, consent decree, or

settlement against the defendant.” Id. at 113.

That brings us to Buckhannon Board and Care

Home, Inc. v. West Virginia Department of Health

and Human Resources, 532 U.S. 598 (2001). In that

case, the Court addressed the question of whether “a

party that has failed to secure a judgment on the

merits or a court-ordered consent decree, but has

nonetheless achieved the desired result because the

53a

lawsuit brought about a voluntary change in the

defendant’s conduct” is a prevailing party. Id. at 600.

The Supreme Court said no. There, West Virginia’s

state fire marshal shut down assisted living facilities

operated by a corporation because, as required by

state law, certain residents were incapable of moving

themselves in the event of imminent danger. Id. at

600. The corporation sued claiming the state selfpreservation requirement violated the American with

Disabilities Act and the Fair Housing Amendments

Act. Id. at 601. After the litigation began, West

Virginia

eliminated

the

self-preservation

requirement. Id. And after the district court granted

a motion to dismiss the case as moot, the corporation

then sought attorney’s fees arguing that that it was

the “catalyst” for the change in West Virginia law. Id.

Specifically, the corporation argued that it was

entitled to fees as a prevailing party because the

lawsuit brought about a voluntary change in the

defendant’s conduct. Id. at 601. The Supreme Court

disagreed emphasizing the need for a “judicially

sanctioned change in the legal relationship of the

parties.” Id. at 605. After reviewing prior decisions

involving § 1988(b), it explained “enforceable

judgments on the merits and court-ordered consent

decrees create the material alteration of the legal

relationship of the parties necessary to permit an

award of attorney’s fees.” Id. at 604 (internal

quotation marks and citation omitted). And it held

that the catalyst theory “falls on the other side of the

line from these examples.” Id. at 605. Buckhannon

provides important guidance about the meaning of a

54a

prevailing party. First, it makes clear that the

alteration of the parties’ legal relationship must be a

judicial act, not the voluntary conduct of the parties

or a third party. And following Farrar, it instructs

that the judicial act needs to be akin to “a judgment

on the merits or a court-ordered consent decree.” Id.

at 600. 2

In Sole v. Wyner, 551 U.S. 74 (2007), the Court

addressed a single question: “[d]oes a plaintiff who

gains a preliminary injunction after an abbreviated

hearing, but is denied a permanent injunction after a

dispositive adjudication on the merits, qualify as a

‘prevailing party’ within the compass of § 1988(b)?”

Id. at 77. The Supreme Court again said no. There,

Wyner applied to conduct an anti-war event on

Valentine’s Day in a public park where participants,

while nude, would form a peace symbol. Florida

officials advised her that they could only do so if the

participants complied with the state’s “Bathing Suit

Rule,” which required patrons in Florida’s state park

to wear at least bathing suit-type clothing. Id. at 78.

In response, Wyner sued claiming the restrictions

the state imposed on the proposed event violated the

First Amendment. She requested an injunction

against the restrictions at the proposed event and

Recall that Farrar held that a settlement could confer

prevailing party status. Farrar, 506 U.S. at 113. Buckhannon

did not explicitly overrule that part of Farrar but clarified that

“settlement agreements enforced through a consent decree may

serve as the basis for an award of attorney’s fees.” Buckhannon,

532 U.S. at 604. And its requirement of a judicial act and

emphasis on relief on the merits makes clear that settlements

generally would not qualify.

55a

future such events. Id. at 79. The district court

granted the preliminary injunction, concluding the

Bathing Suit Rule was overbroad since the state’s

interest in protecting the visiting public from nudity

could be accomplished by requiring the display to

take place behind a screen. Id. at 80. But in carrying

out the peace display, the participants ignored the

required barrier. So later, as Wyner pursued an

injunction against state interference with future

events, the district granted summary judgment to

the defendants ruling that the participants

deliberate

noncompliance

with

the

screen

requirement established that the Bathing Suit Rule

was not overbroad after all. Id. at 80-81.

Despite losing at summary judgment, Wyner

sought attorney’s fees claiming that she was a

prevailing party under § 1988(b) since she earlier

obtained the preliminary injunction that allowed the

peace display to go forward without the bathing suit

requirement. The Supreme Court disagreed. Id. at

81. Characterizing the preliminary injunction as

“fleeting success,” id. at 83, the Court explained that

“Wyner had gained no enduring ‘chang[e] [in] the

legal relationship’ between herself and the state

officials she sued.” Id. at 86 (quoting Texas State

Tchr’s. Ass’n, 489 U.S. at 792). Sole is different from

our case because the preliminary injunction here was

never altered or rescinded. In fact, the Supreme

Court indicated that it was expressing no view on

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

56a

sometimes warrant an award of counsel fees.” Id. at

86. 3 But it also made clear that obtaining the benefit

of a preliminary injunction that was later

overturned—in that case, the ability to participate in

a peace display nude—did not convey prevailing

party status because that “initial victory was

ephemeral.” Id. at 76.

Finally, in Lefemine v. Wideman, 568 U.S. 1

(2012), the Supreme Court, in a per curiam opinion

concluded that a protester who secured a permanent

injunction but no monetary damages was a

prevailing party. Id. at 2. The Court held “a plaintiff

‘prevails . . . when actual relief on the merits of his

claim materially alters the legal relationship

between the parties by modifying the defendant’s

behavior in a way that directly benefits the

plaintiff.’” Id. at 4 (quoting Farrar, 506 U.S. at 111–

12). It then explained that an “injunction or

declaratory judgment, like a damages award, will

usually satisfy [the Farrar] test.” Id. at 4. While

Lefamine does not explicitly address a preliminary

injunction, its explanation that a permanent

injunction is like a damages award indicates the

judicial act must provide final, permanent relief.

Considering

these

Supreme

Court

cases

In leaving the question open, Sole also confirms that Hewitt’s

reference to an injunction and Texas State Teachers

Association’s reference to pendente lite relief had not answered

the question either.

57a

interpreting § 1988(b), several principles emerge. To

prevail, a party must first obtain a judicial decision

that is like a judgment or a consent decree. The

Court’s language from Farrar says this explicitly.

And Buckhannon, in particular, reinforces it. True,

Buckhannon did not expressly state that judgments

on the merits and court-ordered consent decrees were

the only types of relief that provide prevailing party

status. Buckhannon, 532 U.S. at 604. But Farrar was

clear as to that point, and the focus of Buckhannon

was rejecting the “catalyst theory” by emphasizing

that prevailing party status is dependent on a

“judicially sanctioned change in the legal

relationship of the parties.” Id. at 605.

Second, the judicial decision must irreversibly

alter the legal rights of the parties. While the

Supreme Court may not have expressly said that

relief must be final, it has never approved a claim for

attorney’s fees under § 1988(b) for temporary relief.

Also, the Court rejected the claim for fees in Sole

where the preliminary injunction had not

permanently altered the rights of the parties calling

it “ephemeral.” Sole, 551 U.S. at 86. And in Hewitt, it

held judicial pronouncement of a constitutional

violation without relief does not entitle a party to

prevailing party status and looked to the final

judgment as the basis for determining which party

prevailed. Hewitt, 482 U.S. at 764.

Relatedly, the judicial decision must resolve at

least one issue on the merits. The Supreme Court has

consistently emphasized this requirement. See

Hewitt, 482 U.S. at 760; Texas State Tchrs. Ass’n, 489

58a

U.S. at 786; Sole, 551 U.S. at 86. And resolving an

issue on the merits means deciding who ultimately

wins.

On the other hand, if the final determination

of the legal rights of the parties is decided by the

voluntary conduct of the defendant, the party does

not prevail. Also, if the judicial decision provides

practical benefits to the moving party, even

substantial practical benefits, but does not resolve at

least one issue on the merits, the party does not

prevail. Last, if the judicial decision provides

provisional rather than ultimate relief, the party has

not prevailed.

Of significance, current Fourth Circuit law

virtually mirrors these requirements. While not in

the context of a preliminary injunction, we have

framed the inquiry about prevailing party as a fourpart test, requiring a plaintiff seeking fees to “obtain

(1) a judgment, consent decree, or similar order, (2)

that grants him some relief on the merits, (3) that

materially alters the legal relationship between him

and the defendant, and (4) that is enforceable by the

court.” Ge v. U.S. Citizenship & Immigr. Servs., 20

F.4th 147, 153 (4th Cir. 2021).

This brings us, at last, to the ultimate question

presented by this appeal—does a preliminary

injunction satisfy the requirements of a prevailing

party? Simply put, no.

We start by considering what a preliminary

59a

injunction is and, more importantly, is not. Consider

the Supreme Court’s decision in University of Texas v.

Camenisch, 451 U.S. 390 (1981). There, a deaf college

student sued the University of Texas under the

Rehabilitation Act for not providing a sign-language

interpreter. Id. at 392. During the course of the case,

the student obtained a preliminary injunction

requiring the school provide the interpreter. Id.

Relevant here, in granting the preliminary

injunction, the trial court was required to consider

the likelihood of success on the merits and found that

the student established that he was. Id. The school

appealed challenging the injunction. But during the

appeal, the school provided the interpreter and then

the student graduated. These events implicated the

issue of whether the case was moot. Complicating

the mootness question was the fact that not only did

the student seek injunctive relief; he also sought to

recover the amount he spent on interpreters prior to

the school’s decision to provide them. Id. at 393.

The Supreme Court held that the question of

whether a preliminary injunction should have been

issued was moot “because the terms of the

[preliminary] injunction . . . ha[d] been fully and

irrevocably carried out.” Id. at 398. But it also held

the question of whether the university should pay for

the interpreter remained for a trial on the merits. Id.

Said differently, the preliminary injunction did not

resolve the question of the student’s entitlement to

recover interpreter fees. Instead, the Court

explained, “a preliminary injunction is customarily

granted on the basis of procedures that are less

60a

formal and evidence that is less complete than in a

trial on the merits.” Id. at 395. A party is not

required to prove his case in full at a preliminary

injunction hearing and the findings of fact and

conclusions of law made by a court in granting a

preliminary injunction are not binding at a trial on

the merits. Id. “In light of these considerations, it is

generally inappropriate for a federal court at the

preliminary-injunction stage to give a final judgment

on the merits.” Id. at 395. The Court continued,

“where a federal district court has granted a

preliminary injunction, the parties generally will

have had the benefit neither of a full opportunity to

present their cases nor of a final judicial decision

based on the actual merits of the controversy.” Id. at

396.

While the analysis was not under § 1988(b),

Camenisch shows why preliminary injunctions—by

their very nature—are insufficient to confer

prevailing party status. They are provisional. That’s

why they are called preliminary injunctions. And

that’s why they are not binding at the trial on the

merits. True, this decision pre-dates Winter which

moved a showing on the merits to a more central role

in obtaining a preliminary injunction. But that does

not change the provisional nature of a preliminary

injunction. 4

Importantly, much like the Winter test, the plaintiff in

Camenisch had to and did prove a likelihood of success. But the

Supreme Court still held that to be insufficient to make a final

determination on who should bear the costs. The same logic

applies here.

61a

After all, for a preliminary injunction, a plaintiff

need only show a “mere ‘likelihood of success.’” Mayor

of Balt. v. Azar, 973 F.3d 258, 274 (4th Cir. 2020) (en

banc). Showing a likelihood of success on the merits is

a far cry from the “actual success” needed to obtain a

permanent injunction. Id. A showing only predicts

the outcome of a future decision. See Smith v. Univ.

of N. Carolina, 632 F.2d 316, 347 (4th Cir. 1980). It

does not definitively decide the merits of anything.

If anyone doubts that there is a difference

between actually prevailing and having a likelihood

of success, just ask the Atlanta Falcons—or better

yet, their fans. Mid-way through the third quarter of

the 2017 Super Bowl, the Falcons had achieved a

great deal of success. They led the New England

Patriots 28-3 and were dominating every facet of the

game. By any measure, the Falcons were likely to

succeed. But they had not prevailed. And since one

and one-half quarters still had to be played, the

Patriots still had time to come back. And they did.

They Patriots came back to win 34-28, the largest

comeback in Super Bowl history. Likelihood of

success is just not the same thing as prevailing. The

cases defining “prevailing party” make clear the

importance of finality. This makes sense. Until the

final whistle blows, fortunes can change—as it did for

the Falcons.

And Camenisch shows that preliminary

injunctions—by their nature—do not provide finality.

Admittedly, in this case, the fortunes did not change

after the preliminary injunction. The plaintiffs

62a

ultimately got what they wanted. But they did not

get what they wanted because a federal court decided

the merits of their challenge. They got what they

wanted because the General Assembly of Virginia

decided to change the law. Although § 46.2-395 had

been rescinded by the end of the case, no judicial

decision permanently altered the legal rights of the

parties. So, the plaintiffs cannot be prevailing

parties. Buckhannon is crystal clear on this point.

The plaintiffs’ claim to prevailing party status is

little more than a new spin on the catalyst theory.

Last, my conclusion here conforms with the

canon that statutes in derogation of the common law

should be construed narrowly and not extended

beyond their express terms. Farish v. Courion

Indus., Inc., 754 F.2d 1111, 1115 (4th Cir. 1985). Our

precedent has been to follow that canon with other

statutes modifying the American Rule that each

party ordinarily bears its own attorney’s fees. In re

Crescent City Estates, LLC, 588 F.3d 822, 825 (4th

Cir. 2009) (“[I]f Congress wishes to overcome either

premise underlying the American Rule, it must

express its intent to do so clearly and directly.”).

To be sure, § 1988(b) represents Congress’ intent to

modify the American Rule in part. But only as to

prevailing parties. Nothing in § 1988(b) indicates an

intent to expand that modification to parties that do

not obtain enduring judicially sanctioned relief.

III.

63a

The majority, of course reaches the opposite

conclusion. In an attempt to “synthesize the case law

and capture the dominant approach,” it holds that a

plaintiff is a prevailing party if she “obtains a

preliminary injunction that (a) provides her with

concrete, irreversible relief on the merits of her claim

by materially altering the parties’ legal relationship,

and (b) becomes moot before final judgment such

that the injunction cannot be ‘reversed, dissolved, or

otherwise undone’ by a later decision.” Maj. Op. at

29. To me, that conclusion strays from the text of §

1988(b) and the guidance from the Supreme Court in

at least five ways.

First, while claiming otherwise, the majority’s

new standard allows a non-judicial decision to anoint

a prevailing party. The majority states that plaintiffs’

“claim to fees rests entirely on their victory at the

preliminary injunction stage, and not on the General

Assembly’s subsequent repeal of § 46.2-395.” Maj. Op

at 22. But the second part of the majority’s test—that

the claim “becomes moot before final judgment such

that the injunction cannot be ‘reversed, dissolved, or

otherwise undone’ by a later decision,” Maj. Op. at

29—necessitates a non-judicial act. Why this

runaround? Because either way the majority turns,

its conclusion conflicts with Supreme Court

precedent. The majority claims to rely on only the

preliminary injunction. Yet the relief that the

plaintiffs received under the preliminary injunction

is every bit as “ephemeral” as the relief afforded in

Sole. See 551 U.S. at 86. The majority needs

64a

something more. What does it have? The fact that

the injunction was never “undone.” 5 Maj. Op. at 29.

But that is only the case because the Virginia

General Assembly changed the law. To rely on that

legislative, not judicial, action would conflict with

Buckhannon’s holding that 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.” Buckhannon, 532 U.S. at 605. In short, the

majority points to the preliminary injunction but

that cannot make the plaintiffs prevailing parties

because it did not give them permanent relief. So the

majority turns to the fact that the preliminary

injunction was not “undone.” But it was not “undone”

because the case became moot. And that means that

the lasting change did not come from the court.

Second, the majority points to Farrar for the

Supreme Court’s definition of a prevailing party as

“one who receives ‘actual relief on the merits of his

claim’ that ‘materially alters the legal relationship

between the parties by modifying the defendant’s

That said, even the majority acknowledges that “‘as a matter

of course, an injunction may dissolve when a case becomes

moot.’” Maj. Op. at 27 (quoting Planned Parenthood Sw. Ohio

Region v. Dewine, 931 F.3d 530, 542 (6th Cir. 2019)). But, the

majority says, “this matter-of-course vacatur does not negate

the ‘change in the legal relationship’ already effected by the

preliminary injunction.” Id. (quoting Planned Parenthood, 931

F.3d at 542). To the contrary, it seems to me, if the preliminary

injunction has been vacated, then we know with absolute

certainty that any lasting change must arise from somewhere

else.

65a

behavior in a way that directly benefits the plaintiff.’”

Maj. Op. at 18 (quoting Farrar, 506 U.S. at 111–12). I

agree that language sets out part of the analysis

required under § 1988(b). But it omits the Court’s

explanation, in the very same case, of the limited

circumstances that qualify as a material alteration of

the legal relationship between the parties. Farrar,

506 U.S. at 113. More specifically, the Supreme

Court instructed that “to qualify as a prevailing

party, a civil rights plaintiff must obtain at least

some relief on the merits of his claim . . .[t]he

plaintiff must obtain an enforceable judgment

against the defendant from whom fees or sought, [] or

comparable relief though a consent decree or

settlement.” Id. at 111. And Buckhannon reiterated

the need for such relief. Despite that, the majority all

but ignores this strong guidance.

In so doing, without saying as much, the

majority undermines part of our Ge decision.

Following Buckhannon and Farrar by extension, we

held in Ge that to convey prevailing party status,

relief must be like an enforceable judgment or

consent decree. Ge, 20 F.4th at 154. Significantly,

that decision post-dated Winter. And we recently

reaffirmed it in Cities4Life, Inc. v. City of Charlotte,

52 F.4th 576, 580 (4th Cir. 2022), a § 1988(b)

attorney’s fees case. So, the majority’s decision today

kills two birds with one stone. With the stroke of a

pen, we wipe away Smyth and undermine Ge and

Cities4Life.

In my view, we should follow our precedent and

the Supreme Court’s guidance requiring a judicial

66a

decision like a judgment or a consent decree. And as

already discussed, a preliminary injunction is not

like either of those.

Third, the majority’s analysis, in my view,

waters down the Supreme Court’s and our

requirement that relief conferring prevailing party

status be on the merits. To the majority, since Winter

requires a showing of likely success on the merits to

obtain a preliminary injunction, “we may expect all

preliminary injunctions to be solidly merits-based.”

Maj. Op. at 23. But I’m not sure what “solidly meritsbased” means. Under Winter, the most it can mean is

that a party is likely to succeed on the merits. And

Camenisch tells us that is not enough. “On the

merits” means a court actually makes a final

decision. In other words, it does not just forecast

success; it determines success. And once again, a

preliminary injunction does not do that.

Fourth, in adopting its broader view of

prevailing party, the majority relies on its belief that

Smyth’s rule “allow[s] government defendants to

game the system.” Maj. Op at 16. Maybe it does. But

even if true, this rationale is not a legal

interpretation of prevailing party; it is a policy

argument for a different rule. If the meaning of

prevailing party leads to unintended consequences, it

is Congress’ job to fix it, not ours. Our role is to apply

the law, not rewrite it when it produces outcomes we

do not like.

What’s more, rather than relying on legislative

intent to expand the definition of prevailing party,

we should require clear and direct expression of

67a

intent in interpreting statutes that modify the

common law. In re Crescent City Estates, LLC, 588

F.3d at 826. Congress did not provide such an

expression that § 1988(b) applies to parties that

obtain preliminary injunctions.

Fifth and finally, the Supreme Court

admonished in Buckhannon that “[a] request for

attorney’s fees should not result in a second major

litigation.” Buckhannon, 532 U.S. at 609. The bright

line rule from Smyth furthers that important

interest. In contrast, the majority’s approach will

lead to collateral litigation on attorney’s fees. What is

concrete relief? What is irreversible relief? How much

discussion of the merits is necessary? Is any event

that makes a claim moot enough? Make no

mistake, the majority may feel its approach

“straightforward.” Maj. Op. at 29. But creative lawyers

haggling over fees will contest these and likely other

issues undoubtedly bringing about what Buckhannon

sought to avoid—“a second major litigation.”

IV.

I recognize decisions from our sister circuits do

not follow Smyth’s bright-line rule that a party that

obtains a preliminary injunction is not a prevailing

party under § 1988(b). See e.g., Planned Parenthood

Southwest Ohio Region v. Dewine, 931 F.3d 530, 539

(6th Cir. 2019) (concluding that the preliminary

injunction there represented an unambiguous

indication of probable success on the merits,

particularly where the Sixth Circuit had already

68a

upheld part of the injunction after reviewing the

merits of the claims); Dearmore v. City of Garland,

519 F.3d 517, 521–22 (5th Cir. 2008) (finding threeprong test for prevailing party status satisfied where

the district court’s merit-based order clearly

informed the city that certain provisions of its

ordinance violated the Fourth Amendment); Select

Milk Producers, Inc. v. Johanns, 400 F.3d 939, 948

(D.C. Cir. 2005) (noting that the likelihood of success

on the merits was never seriously in doubt and that

the preliminary injunction resulted in irreversible

and substantial monetary savings to the milk

producers); Young v. City of Chicago, 202 F.3d 1000,

1001 (7th Cir. 2000) (per curiam) (recognizing that

case mootness does not alter prevailing party status);

Watson v. Cnty. of Riverside, 300 F.3d 1092, 1095 (9th

Cir. 2002) (concluding that “having won the

preliminary injunction, the plaintiffs were prevailing

parties notwithstanding the subsequent mooting of

their case”). And in candor, that causes me to pause.

But for two reasons, that does not convince me to join

any of their approaches.

First, the standards and reasoning from those

decisions are quite diverse. As the Fifth Circuit noted

in Dearmore, “[w]ithout a Supreme Court decision on

point, circuit courts considering this issue have

announced fact-specific standards that are anything

but uniform.” Dearmore, 519 F.3d 517, 521–22 (5th

Cir. 2008) (recognizing that “several circuits have

determined that a preliminary injunction that merely

preserves the status quo temporarily will not confer

‘prevailing party’ status on a party,” while others

69a

“incorporate some combination of [] factors,” which

touch on the merits-based nature of a decision.). So,

let’s be clear. There is no unanimity of the circuit

courts on this issue.

And today, we add a new standard to the mix.

Admittedly, our new rule resembles the Sixth

Circuit’s approach. But it is not the same. In that

sense, we add to the disparate ways courts will

interpret § 1988(b). As an aside, such variety is hardly

surprising.

Countertextual

statutory

interpretations,

kudzu,

often

creep

unpredictably.

Second, decisions from our sister circuits should

be carefully considered and indeed, we can learn a lot

from our federal appellate court colleagues. But, as

we learned as children, just because others are doing

something, that does not make it right. And for many

of the same reasons explained with respect to the

majority’s new test, to me, those other approaches

are inconsistent with text of § 1988(b) and the

Supreme Court’s decisions on prevailing party. I

would resist the temptation to follow the crowd.

Over 20 years ago in Smyth, we

established a bright line rule that preliminary

injunctions do not convey prevailing party status. In

my view, that rule is faithful to the text of § 1988(b)

and the Supreme Court’s decisions. I would not

overrule it. And as a result, I would affirm the

district court’s denial of the plaintiffs’ petition for

70a

attorney’s fees.

Respectfully, I dissent.

71a

FILED: August 9, 2022

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

No. 21-1756

(3:16-cv-00044-NKM-JCH)

DAMIAN STINNIE; MELISSA ADAMS; ADRAINNE

JOHNSON;

WILLIEST

BANDY;

BRIANNA

MORGAN, individually, and on behalf of all others

similarly situated

Plaintiffs - Appellants

RICHARD D. HOLCOMB, in his official capacity as

the Commissioner of the Virginia Department of

Motor Vehicles

Defendant - Appellee

AMERICAN CIVIL LIBERTIES UNION OF

VIRGINIA, ET AL

Amicus Supporting Appellant

INSTITUTE FOR JUSTICE

Amicus Supporting Rehearing Petition

72a

ORDER

A majority of judges in regular active

service and not disqualified having voted in a

requested poll of the court to grant the petition for

rehearing en banc,

IT IS ORDERED that rehearing en banc is

granted.

The parties and any amici curiae shall file 16

additional paper copies of their briefs and appendices

previously filed in this case within 10 days. Copies of

amici briefs relating to a petition for rehearing or

rehearing en banc are not required. The parties may

move, or the court may sua sponte order, the filing of

supplemental en banc briefs pursuant to Local Rule

35(d).

For the Court

/s/ Patricia S. Connor, Clerk

73a

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

No. 21-1756

DAMIAN

STINNIE;

MELISSA

ADAMS;

ADRAINNE JOHNSON;

WILLIEST BANDY;

BRIANNA MORGAN, individually, and on behalf of

all others similarly situated,

Plaintiffs – Appellants,

RICHARD D. HOLCOMB, in his official capacity

as the Commissioner of the Virginia Department

of Motor Vehicles,

Defendant – Appellee.

AMERICAN CIVIL LIBERTIES UNION OF

VIRGINIA, ET AL,

Amicus Supporting Appellant.

Appeal from the United States District Court for

the Western District of Virginia, at Charlottesville.

Norman K. Moon, Senior District Judge. (3:16-cv-

74a

00044-NKM-JCH)

Argued: May 4, 2022

Decided: June 27, 2022

Before THACKER, HARRIS, and QUATTLEBAUM,

Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote

the opinion, in which Judge Harris and Judge

Quattlebaum joined. Judge Harris wrote a

concurring opinion.

75a

ARGUED: Tennille Jo Checkovich, SMITHFIELD

FOODS, INC., Smithfield, Virginia, for Appellants.

Trevor Stephen Cox, HUNTON ANDREWS KURTH,

LLP, Richmond, Virginia, for Appellee. ON BRIEF:

Jonathan

Blank,

Benjamin

Abel,

Charlottesville,

Virginia,

John

Woolard,

MCGUIREWOODS LLP, Richmond, Virginia; Angela

A. Ciolfi, Charlottesville, Virginia, Patrick LevyLavelle, LEGAL AID JUSTICE CENTER, Richmond,

Virginia; Leslie Kendrick, Charlottesville, Virginia;

Michael Stark, Smithfield, Virginia, for Appellants.

Mark R. Herring, Attorney General, Donald D.

Anderson, Deputy Attorney General, Julie M.

Whitlock, Senior Assistant Attorney General &

Transportation Section Chief, Janet W. Baugh,

Senior Assistant Attorney General, Christian A.

Parrish, Assistant Attorney General, OFFICE OF

THE ATTORNEY GENERAL OF VIRGINIA,

Richmond, Virginia; Maya M. Eckstein, David M.

Parker, HUNTON ANDREWS KURTH LLP,

Richmond, Virginia, for Appellee. Theodore A.

Howard, WILEY REIN LLP, Washington, D.C., for

Amici Curiae.

76a

THACKER, Circuit Judge:

This fee dispute arises from a putative classaction challenge to a now-repealed Virginia statute

that triggered the automatic suspension of the

driver’s licenses of Damian Stinnie, Demetrice

Moore, Robert Taylor, Neil Russo (collectively,

“Appellants”), and numerous other Virginia residents

for nonpayment of court costs and fines. After

Appellants obtained a preliminary injunction, the

Virginia General Assembly passed a law repealing

the challenged statute. Appellants stipulated that

dismissal of the underlying lawsuit was therefore

appropriate but claimed that they were nonetheless

entitled to attorney’s fees pursuant to 42 U.S.C. §

1988 because they secured the preliminary

injunction.

The district court denied Appellants’ petition

for attorney’s fees, citing our decision in Smyth ex rel.

Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002),

wherein we held that preliminary injunctions do not

confer the requisite “prevailing party” status required

for an award of fees pursuant to § 1988. On appeal,

Appellants contend that Smyth is not controlling

because it is untenable with subsequent Supreme

Court decisions.

We conclude Smyth remains the law of this

circuit. And, pursuant to Smyth, Appellants are not

prevailing parties. Accordingly, we affirm the district

court’s denial of their petition for attorney’s fees and

litigation expenses.

77a

In 2016, Appellants initiated a civil action

against Richard Holcomb (the “Commissioner”) in his

official capacity as the Commissioner of the Virginia

Department of Motor Vehicles, challenging the

constitutionality of Virginia Code § 46.2-395. The

now-repealed statute provided, in relevant part:

(B)

. . . [W]hen any person is

convicted of any violation of the law

of the Commonwealth or of the

United States or of any valid local

ordinance and fails or refuses to

provide for immediate payment in

full of any fine, costs, forfeitures,

restitution, or penalty lawfully

assessed against him, or fails to make

deferred payments or installment

payments as ordered by the court, the

court shall forthwith suspend the

person’s privilege to drive a motor

vehicle on the highways in the

Commonwealth . . .

Before transmitting to the

Commissioner a record of the

person’s failure or refusal to pay all

or part of any fine, costs, forfeiture,

restitution, or penalty . . . the clerk of

the court that convicted the person

shall provide or cause to be sent to

(C)

78a

the person written notice of the

suspension of his license or privilege

to drive a motor vehicle in Virginia,

effective 30 days from the date of

conviction, if the fine, costs,

forfeiture, restitution, or penalty is

not paid prior to the effective date of

the suspension as stated on the

notice . . . .

Stinnie v. Holcomb, 734 F. App’x 858, 860 (4th Cir.

2018) (quoting Va. Code § 46.2-395 (repealed 2020)).

In their complaint, Appellants claimed that the

Commissioner enforced § 46.2-395 in a manner

that violated the Due Process and Equal

Protection clauses by “unfairly punish[ing] them for

being poor.” Id. at 680 (internal quotation marks

omitted). 1 In December 2018, the district court

issued a detailed memorandum opinion granting

Appellants a preliminary injunction. See generally

Stinnie v. Holcomb, 355 F. Supp. 3d 514 (W.D. Va.

2018). As is relevant here, the district court applied

the four-part test from Winter v. National Resources

Defense Council, Inc., 555 U.S. 7 (2008), and

concluded that Appellants “demonstrate[d] a

likelihood of success on their claim that § 46.2-395

Initially, the district court granted the Commissioner’s

motion to dismiss the case for lack of subject matter

jurisdiction, but, on appeal, we remanded the case to the

district court with instructions to allow Appellants to amend

their complaint.

79a

violate[d] procedural due process” because “§ 46.2395, on its face, [did] not provide a meaningful

opportunity to be heard regarding license

suspension.” Id. at 531. Accordingly, the district

court preliminarily enjoined the Commissioner

from enforcing § 46.2-395 against Appellants.

Three months later, in March 2019, former

Virginia Governor Ralph Northam proposed Budget

Amendment No. 33, which suspended the

enforcement of § 46.2-395 going forward and

required the Commissioner to reinstate, without fees,

driving privileges for persons whose licenses were

previously revoked pursuant to the statute. Press

Release, Va. Off. of the Governor, Governor Northam

Announces Budget Amend. To Eliminate Driver’s

License Suspensions for Nonpayment of Ct. Fines

Costs

(Mar.

26,

2019),

https://www.governor.virginia.gov/newsroom/allreleases/2019/march/headline-839710- en.html. The

Virginia General Assembly passed the Amendment

“by votes of 70 to 29 in the House and 30 to 8 in the

Senate.” Stinnie v. Holcomb, 396 F. Supp. 3d 653,

658 (W.D. Va. 2019).

Thereafter, upon motion

from the Commissioner and over Appellants’

objections, the district court stayed the proceedings

pending the 2020 session of Virginia’s General

Assembly. See id. at 659–60. The district court

reasoned that staying the “long, contentious, and no

doubt costly” litigation was appropriate because

the General Assembly’s support of the Budget

Amendment “indicate[d] political hostility toward[]

80a

§ 46.2-395,” and the Commissioner “testified that the

process of drafting legislation to codify the Budget

Amendment ha[d] begun.” Id. at 658.

During its 2020 regular session, the Virginia

General Assembly eliminated § 46.2- 395 from the

Code of Virginia. Accordingly, in May 2020, the

parties filed a stipulation of dismissal. In the

stipulation, the parties expressly reserved any

argument as to Appellants’ entitlement to attorney’s

fees and expenses. Appellants then petitioned the

district court for attorney’s fees and expenses

pursuant to 42 U.S.C. § 1988. Appellants argued

that the 2018 preliminary injunction conferred upon

them “prevailing party” status, making them eligible

for a discretionary award of fees and expenses.

The district court denied the petition.

Specifically, the district court reasoned that

pursuant to our decision in Smyth ex rel. Smyth v.

Rivero, 282 F.3d 268 (4th Cir. 2002), Appellants

cannot be prevailing parties and therefore are not

eligible for an award of attorney’s fees and expenses.

In doing so, the district court rejected Appellants’

argument that Smyth is untenable with the Supreme

Court’s decisions in Winter v. National Resources

Defense Council, Inc., 555 U.S. 7 (2008) and Lefemine

v. Wideman, 568 U.S. 1 (2012) (per curiam) and is no

longer controlling law in the Fourth Circuit.

II.

We review de novo a district court’s “prevailing party”

determination. Grabarczyk v. Stein, 32 F.4th 301,

81a

306 (4th Cir. 2022). “[I]t is well-settled that a panel

of this court is bound by prior precedent from other

panels in this circuit absent contrary law from an en

banc or Supreme Court decision.” United States v.

Seigler, 990 F.3d 331, 336 n.6 (4th Cir. 2021) (internal

quotation marks omitted); see also McMellon v.

United States, 387 F.3d 329, 332 (4th Cir. 2004) (en

banc) (“A number of cases from this court have

stated the basic principle that one panel cannot

overrule a decision issued by another panel.”).

Because our decision in Smyth is not

untenable with any Supreme Court decisions, it is

binding upon this panel and requires us to affirm the

decision of the district court. United States v. Banks,

29 F.4th 168, 175 (4th Cir. 2022).

III.

Pursuant to 42 U.S.C. § 1988(b), the

“prevailing party” in certain civil rights proceedings

may recover attorney’s fees. “The term ‘prevailing

party’ is a legal term of art,” Reyuzuddin v.

Montgomery Cnty., 988 F.3d 794, 796 (4th Cir. 2021),

which means a party that has “been awarded some

relief by the court,” Sky Cable, LLC v. DIRECTV,

Inc., 23 F.4th 313, 317 (4th Cir. 2022) (internal

quotation marks omitted). The term “some relief”

refers to “relief that creates the material alteration of

the legal relationship of the parties necessary to

permit an award of attorney’s fees by modifying the

defendant’s behavior in a way that directly benefits

the plaintiff.” Sky Cable, LLC, 23 F.4th at 317–18

82a

(internal quotation marks and alterations omitted).

In Smyth, we explicitly held “the preliminary

injunction entered by the district court does not

satisfy the prevailing party standard of § 1988(b).”

Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 277 (4th

Cir. 2002). We reasoned that the preliminary

injunction framework is “an unhelpful guide to the

legal determination of whether a party has

prevailed,” considering the “preliminary, incomplete

nature of the merits examination” and the fact that

“in granting a preliminary injunction a court is

guided not only by its assessment of the likely

success of the plaintiff’s claims, but also by other

considerations, notably a balancing of likely harms.”

Id. at 276–77. As a result, Smyth is controlling and

determinative here. Nonetheless, Appellants, seeking

to avoid the fatal implications of this reality, urge us

to conclude that Smyth is untenable or inconsistent

with the Supreme Court’s decisions in Winter v.

National Resources Defense Council, Inc., 555 U.S. 7

(2008), and Lefemine v. Wideman, 568 U.S. 1 (2012)

(per curiam). But that is not so.

As is relevant here, Winter altered our test for

preliminary injunctions. “Before the Supreme Court

issued its ruling in Winter, this Court used a ‘balanceof-hardship test’ that allowed it to disregard some of

the preliminary injunction factors if it found that the

facts satisfied other factors.” Pashby v. Delia, 709

F.3d 307, 320 (4th Cir. 2013) (quoting Blackwelder

Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 196

(4th Cir. 1977)). “However, in light of Winter, this

Court recalibrated that test, requiring that each

83a

preliminary injunction factor be ‘satisfied as

articulated.’” Id.; see also Real Truth About Obama,

Inc. v. FEC, 575 F.3d 342, 346–47 (4th Cir.

2009) (recognizing “[o]ur Blackwelder standard . . .

stands in fatal tension with the Supreme Court’s

2008 decision in Winter”), vacated and remanded

on other grounds, 559 U.S. 1089 (2010),

reinstated in relevant part, 607 F.3d 355 (4th Cir.

2010) (per curiam).

But our decision in Smyth primarily turned on

the nature of preliminary injunctions -- which

remains unchanged -- not the standard for

obtaining a preliminary injunction. For example, we

emphasized “[a] district court’s determination that

such a showing [of likelihood of success on the

merits] has been made is best understood as a

prediction of a probable, but necessarily uncertain,

outcome” and “[t]he fact that a preliminary

injunction is granted in a given circumstance, then,

by no means represents a determination that the

claim in question will or ought to succeed ultimately.”

Smyth, 282 F.3d at 276. Winter did not change these

realities. Also relevant to our conclusion in Smyth

that preliminary injunctions do not confer prevailing

party status, and also unchanged by Winter, is “[t]he

interplay of the[] equitable and legal considerations .

. . that are part of the preliminary injunction

context” that we reasoned “belie the assertion that

the district court’s decision to grant a preliminary

injunction was an ‘enforceable judgment[ ] on the

merits or something akin to one for prevailing party

purposes.’” Id. at 277. In sum, because our decision

84a

in Smyth was not based on our old Blackwelder

standard for preliminary injunctions, Appellants’

argument that Smyth is untenable considering the

changed merits standard following Winter is

unpersuasive.

Appellants’ argument based on Lefemine fares

no better. In Lefemine, the Supreme Court held that

we erred in determining that a plaintiff who secured a

permanent injunction, but no monetary damages, was

not a “prevailing party” for the purposes of § 1988(b).

568 U.S. at 2. The Court reasoned that the district

court’s permanent injunction prohibiting police

officers from threatening Lefemine with sanctions for

protesting “worked the requisite material alteration

in the parties’ relationship” necessary to support an

award of attorney’s fees. Id. at 5. In doing so, the

Supreme Court emphasized “that an injunction or

declaratory judgment, like a damages award, will

usually satisfy” the test outlined in Farrar v. Hobby,

506 U.S. 103, 111–12 (1992) for determining when a

party “prevails.” Id. at 4 (citing Rhodes v. Stewart,

488 U.S. 1, 4 (1988)).

Appellants contend Lefemine “clarified” that

“monetary relief is not required; injunctive relief

standing alone can be sufficient” to support an award

of attorney’s fees pursuant to § 1988(b). Appellants’

Opening Br. at 25. But, in summarizing the

applicable standard in Lefemine, the Supreme Court

relied on Farrar, which predates Smyth. Thus, as

the district court observed, “the Supreme Court’s

brief per curiam decision implies that Lefemine

involved a straightforward application of precedent,”

85a

not a clarification of any sort. Stinnie v. Holcomb,

No. 3:16-CV-00044, 2021 WL 2292807, at *5 (W.D.

Va. June 4, 2021). Moreover, “a permanent

injunction (like the one granted in Lefemine) differs

from a preliminary injunction [like the injunctions

granted here and in Smyth] because it is based on a

finding of success on the merits[--]not the likelihood

of such success.” Id. (emphasis in original).

The changed merits standard following Winter

and the Supreme Court’s decision in Lefemine

explicitly holding that the issuance of a permanent

injunction alone is sufficient to support an award of

attorney’s fees do not make Smyth untenable.

Indeed, “[w]e do not lightly presume that the law of

the circuit has been overturned, especially where, as

here, the Supreme Court opinion and our precedent

can be read harmoniously.” Taylor v. Grubbs, 930

F.3d 611, 619 (4th Cir. 2019) (internal quotation

marks omitted). “Adhering to our longstanding rule

that a panel of this court is bound by prior precedent

from other panels in this circuit absent contrary

law from an en banc or Supreme Court decision

demands nothing less.” Id. (internal quotation marks

omitted); see also United States v. Banks, 29 F.4th

168, 175 (4th Cir. 2022) (“A panel of this Court

cannot overrule a precedential decision.”); Warfield v.

Icon Advisers, Inc, 26 F.4th 666, 670 n.3 (4th Cir.

2022) (“[S]itting as a panel we cannot overrule a

prior panel decision.”); United States v. Moses, 23

F.4th 347, 359 (4th Cir. 2022) (King, J., dissenting in

part and concurring in the judgment) (“[N]o panel of

this Court is entitled to circumscribe or undermine

86a

an earlier panel decision.”). 2

In sum, at this juncture, we are bound by

Smyth because it is directly on point and is neither

distinguishable from nor untenable with any

Supreme Court decision. See McMellon v. United

States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc)

(“[O]ne panel cannot overrule a decision issued by

another panel.”).

IV.

For the foregoing reasons, the district

court’s denial of Appellants’ petition for attorney’s

fees and litigation expenses is

AFFIRMED.

Our recent Grabarczyk decision -- which holds “when a

plaintiff wins judicial relief on the merits in the district court,

and that ruling causes a state legislature to remedy the

violation of federal law identified by the district court,” it is a

prevailing party -- does not lead us to a different result.

Grabarczyk v. Stein, 32 F.4th 301, 310 (4th Cir. 2022).

“Grabarczyk remain[ed] a prevailing party entitled to attorney’s

fees . . . because the legislature amended the challenged law [--]

and thereby mooted his case [--] only after he won a final

judgment on the merits and because of that judgment.” Id.

(emphasis in original). Unlike Grabarczyk, Appellants never

obtained a final judgment on the merits. See Pashby v. Delia,

709 F.3d 307, 319 (4th Cir. 2013) (“‘The traditional office of

a preliminary injunction is to protect the status quo and to

prevent irreparable harm during the pendency of a lawsuit

ultimately to preserve the court’s ability to render a

meaningful judgment on the merits.’”).

87a

PAMELA HARRIS, Circuit Judge, concurring:

I join in full the majority’s opinion, which

cogently explains why our decision in Smyth ex rel.

Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002),

remains binding upon this panel and requires us to

affirm the decision of the district court. I write

separately to suggest that for two reasons, our circuit

may wish to reconsider Smyth in the appropriate

case.

First, although subsequent Supreme Court

cases have not superseded Smyth, one of them –

Winter v. Natural Resources Defense Council, Inc.,

555 U.S. 7 (2008) – has gone a long way toward

addressing its concerns. At the time Smyth was

decided, courts in this circuit could grant preliminary

injunctions on equitable grounds without a showing

of likely success on the merits. See Blackwelder

Furniture Co. of Statesville, Inc. v. Selig Mfg. Co.,

550 F.2d 189, 195–96 (4th Cir. 1977); Smyth, 282

F.3d at 276–77 (describing Blackwelder’s slidingscale approach). And the court in Smyth quite

sensibly worried about according “prevailing party”

status to a plaintiff who had obtained a preliminary

injunction based primarily on a balancing of likely

harms, without a rigorous assessment of the merits

of the plaintiff’s claim. See 282 F.3d at 276–77.

Today, however, under Winter’s more

stringent standard, a plaintiff can obtain a

preliminary injunction only by first establishing a

likelihood of success on the merits. See Real Truth

About Obama, Inc. v. FEC, 575 F.3d 342, 346–47 (4th

88a

Cir. 2009) (“The Winter requirement that the plaintiff

clearly demonstrate that it will likely succeed on the

merits is far stricter than the Blackwelder

requirement.”), vacated on other grounds, 559 U.S.

1089 (2010). That does not mean, as the majority

opinion explains, that Winter has rendered our

decision in Smyth untenable. See Maj. Op. Part III.

Indeed, Smyth was carefully written to survive just

this change in the law of preliminary injunctions.

See 282 F.3d at 277 n.8. But it does mean that we

could reconsider our rule in Smyth without opening

the door to the risk that so concerned the court in

that case: that a plaintiff could be deemed a

prevailing party, and thus entitled to fees, by virtue

of a preliminary injunction that had little or nothing

to do with the merits of her claim. Id. at 277.

Second, the rule set out in Smyth is a complete

outlier. As the Commissioner forthrightly concedes,

ours is the only circuit in the country in which a

preliminary injunction never may serve as the basis

for prevailing party fees under § 1988. Every other

circuit to consider the issue has held that a plaintiff

whose case is mooted after she obtains a preliminary

injunction – so that the preliminary injunction by

definition cannot be reversed or undone by a final

decision in the case – may qualify as a prevailing

party in appropriate circumstances. See Planned

Parenthood Sw. Ohio Region v. Dewine, 931 F.3d 530,

542 (6th Cir. 2019); Higher Taste, Inc. v. City of

Tacoma, 717 F.3d 712, 716 (9th Cir. 2013); Rogers

Grp., Inc. v. City of Fayetteville, 683 F.3d 903, 909–10

(8th Cir. 2012); Kan. Jud. Watch v. Stout, 653 F.3d

89a

1230, 1238 (10th Cir. 2011); Common Cause/Ga. v.

Billups, 554 F.3d 1340, 1356 (11th Cir. 2009); People

Against Police Violence v. City of Pittsburgh, 520 F.3d

226, 233 (3d Cir. 2008); Dearmore v. City of

Garland, 519 F.3d 517, 524 (5th Cir. 2008); Dupuy

v. Samuels, 423 F.3d 714, 723 n.4 (7th Cir.

2005); Select Milk Producers, Inc. v. Johanns, 400

F.3d 939, 948 (D.C. Cir. 2005); Haley v. Pataki, 106

F.3d 478, 483–84 (2d Cir. 1997).∗

In most circuits, the preliminary injunction will

suffice so long as it rests on a finding of probable

success on the merits and orders a change in the legal

relationship between the parties. See, e.g., Planned

Parenthood, 931 F.3d at 542; Higher Taste, 717 F.3d

at 716; Kan. Jud. Watch, 653 F.3d at 1237–38; Select

Milk Producers, 400 F.3d at 948; Haley, 106 F.3d at

483. In one circuit, it seems, the merits-based

preliminary injunction also must have been the cause

of the case’s subsequent mootness, as the impetus for

a defendant’s decision to cease the challenged

conduct or otherwise moot the case. See Dearmore,

519 F.3d at 524; see also People Against Police

Violence, 520 F.3d at 233 (affirming fee award where

defendant revised challenged ordinance in response

to preliminary injunction). But in no circuit other

than ours is there a bright-line rule that a

The First Circuit has not directly addressed this issue, see

Sinapi v. R.I. Bd. of Bar Exam’rs, 910 F.3d 544, 552 (1st Cir.

2018), but district courts within it have followed the consensus

rule, see, e.g., Tri-City Cmty. Action Program, Inc. v. City of

Malden, 680 F. Supp. 2d 306, 314 (D. Mass. 2010).

∗

90a

preliminary injunction never can satisfy the

prevailing party standard. And the Supreme Court

has explicitly left this question open. See Sole v.

Wyner, 551 U.S. 74, 86 (2007) (“We express no view

on 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.”).

On the facts of this case, the plaintiffs would

almost certainly qualify as prevailing parties were it

not for our categorical rule to the contrary. To begin,

there is no question that their preliminary injunction

was solidly merits-based. After a comprehensive

assessment of the strength of the plaintiffs’ case,

informed by an evidentiary hearing and oral

argument, the district court found that the plaintiffs

had made a “clear showing” of a likelihood of success

on the merits. Stinnie v. Holcomb, 355 F. Supp. 3d

514, 527–31 (W.D. Va. 2018). Although the court

went on to find that the remaining preliminary

injunction factors also weighed in favor of the

plaintiffs, id. at 532, the crux of its opinion was the

merits analysis. “In other words, this is not a case in

which a preliminary injunction was based less on the

trial court’s view of the merits than on a perceived

hardship to the plaintiff[s].” Select Milk Producers,

400 F.3d at 948. Rather, the plaintiffs “secured a

preliminary injunction in this case largely because

their likelihood of success on the merits was never

seriously in doubt.” Id.

It is true, as we explained in Smyth, that this

merits analysis was necessarily provisional. See 282

91a

F.3d at 276; Maj. Op. Part III. But for the time it

was in effect, the preliminary injunction materially

altered the parties’ legal relationship, prohibiting the

Commissioner from enforcing the challenged

provision against the plaintiffs. See, e.g., Higher

Taste, 717 F.3d at 716 & n.1 (distinguishing

injunctions that merely maintain the status quo).

And the reason this preliminary injunction never

advanced past the provisional stage is that the

Commissioner mooted the case, heading off a final

judgment. The plaintiffs were eager to go forward

to summary judgment.

But over their

objection, the Commissioner secured several stays,

which he used to successfully lobby the legislature to

repeal section 46.2-395 – with the express aim, in

part, of avoiding the payment of attorney’s fees. See,

e.g., J.A. 968–69 (letter from Commissioner to state

senator asking legislature to address the matters at

issue in the Stinnie litigation to avoid “costly legal

fees”). So even in a circuit requiring a causal link

between a preliminary inunction and the mooting of a

case, the plaintiffs here would be prevailing parties

eligible for attorney’s fees.

Our circuit rule, by contrast, allows

defendants to game the system. Faced with a suit

against a potentially or even very probably illegal

provision or practice, there is no downside to

litigating through the preliminary injunction stage:

If and when a court confirms the likely merit of the

plaintiff’s claim, there will be time enough for the

defendant to cease the challenged conduct (or

persuade the legislature to do so), moot the case, and

92a

avoid the payment of fees. And the plaintiff, who

almost certainly will have devoted considerable effort

and resources to obtaining a preliminary injunction,

is left holding the bag, with no way to recover those

costs. The predictable result is fewer attorneys

willing to take on even the most meritorious civil

rights suits on behalf of indigent plaintiffs – a result

in direct contravention of the whole point of § 1988,

which is to ensure “effective access” to the judicial

system for all persons with civil rights grievances.

See Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)

(quoting H.R. Rep. No. 94-1558, at 1 (1976)).

It is of course possible, as the Commissioner

assures us, that Smyth is right and every other circuit

is wrong. But that is the kind of question that seems

worth considering as an en banc court. See Fed. R.

App. P. 35(b) advisory committee’s note to 1998

amendment (“[A] situation that may be a strong

candidate for a rehearing en banc is one in which the

circuit persists in a conflict created by a pre-existing

decision of the same circuit and no other circuits

have joined on that side of the conflict.”). Until then,

as the majority opinion sets out, we have no choice

but to affirm the district court’s denial of attorney’s

fees. See United States v. Seigler, 990 F.3d 331, 336

n.6 (4th Cir. 2021) (“[I]t is well-settled that a panel of

this court is bound by prior precedent from other

panels in this circuit absent contrary law from an en

banc or Supreme Court decision.” (internal quotation

marks omitted)). I therefore concur in the court’s

opinion.

93a

UNITED STATES DISTRICT COURT WESTERN

DISTRICT OF VIRGINIA

CHARLOTTESVILLE DIVISION

DAMIAN STINNIE, et al.,

Plaintiffs,

RICHARD D. HOLCOMB, in his official

capacity as the Commissioner of the

VIRGINIA DEPARTMENT OF MOTOR

VEHICLES,

Defendant.

CASE NO. 3:16-cv-00044

ORDER

JUDGE NORMAN K. MOON

Before the Court are Plaintiffs’ petition for

attorneys’ fees and litigation expenses, Dkt. 234,

Magistrate Judge Joel C. Hoppe’s report and

recommendation (“R&R”), Dkt. 243, and Plaintiffs’

objections to the R&R, Dkt. 247. For the reasons set

forth in the accompanying Memorandum Opinion,

the Court

ADOPTS the R&R, Dkt. 243, as set

forth

the

accompanying

Memorandum Opinion;

OVERRULES Plaintiffs’ objections to

the R&R, Dkt. 247; and

DENIES

Plaintiffs’

petition

for

94a

attorneys’ fees and litigation expenses,

Dkt. 234.

The Clerk of Court is directed to send this

Order and the accompanying Memorandum Opinion

to all counsel of record and to Magistrate Judge

Hoppe.

It is so ORDERED.

Entered this 4th day of June, 2021.

95a

UNITED STATES DISTRICT COURT WESTERN

DISTRICT OF VIRGINIA

CHARLOTTESVILLE DIVISION

DAMIAN STINNIE, et al.,

Plaintiffs,

RICHARD D. HOLCOMB, in his official

capacity as the Commissioner of the

VIRGINIA DEPARTMENT OF MOTOR

VEHICLES,

Defendant.

CASE NO. 3:16-cv-00044

MEMORANDUM OPINION

JUDGE NORMAN K. MOON

Plaintiffs have filed a petition for attorneys’

fees and litigation expenses. Dkt. 234. Pursuant to

28 U.S.C. § 636(b)(1)(B), the Court referred this

matter to the magistrate judge for proposed findings

of fact and a recommended disposition. In his report

and recommendation (“R&R”), the magistrate judge

determined that a plaintiff who won a preliminary

injunction that was not reversed or otherwise

modified, but whose case was later dismissed as

moot, is not a “prevailing party” entitled to attorneys’

fees under 42 U.S.C. § 1988, and he recommended

96a

denying Plaintiffs’ petition for attorneys’ fees. Dkt.

243. Plaintiffs filed timely objections, Dkt. 247,

obligating the Court to review de novo the portions of

the R&R to which Plaintiffs objected. See Fed. R. Civ.

P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C); Orpiano v.

Johnson, 687 F.2d 44, 48 (4th Cir. 1982).

Plaintiffs object to the magistrate judge’s

conclusion that this Court is bound to follow the

Fourth Circuit’s holding in Smyth ex rel. Smyth v.

Rivero, 282 F.3d 268 (4th Cir. 2002), that a plaintiff

who wins a preliminary injunction is not a prevailing

party under § 1988. Dkt. 247 at 2; see also Dkt. 243

at 24–27. Plaintiffs urge the Court to “recognize[]

that Smyth is no longer good law” and conclude that

Plaintiffs are prevailing parties entitled to attorneys’

fees. Dkt. 247 at 2.

Because it finds no error in the magistrate

judge’s reasoning or conclusion, the Court will

overrule Plaintiffs’ objections to the R&R and adopt

the R&R as set forth herein. Accordingly, the Court

will deny Plaintiffs’ petition for attorneys’ fees and

litigation expenses.

LEGAL STANDARD

Federal Rule of Civil Procedure 72 permits a

party to submit objections to a magistrate judge’s

R&R within fourteen days. Fed. R. Civ. P. 72(b)(2); 28

U.S.C. § 636(b)(1)(C). The district court conducts a de

novo review of those portions of a magistrate judge’s

R&R to which the party made specific objections.

Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C);

97a

Orpiano, 687 F.2d at 48. The Court may give a

magistrate judge’s R&R “such weight as its merit

commands and the sound discretion of the judge

warrants,” United States v. Raddatz, 447 U.S. 667,

682–83 (1980) (internal quotations omitted). The

district court may accept, reject, or modify the

recommended disposition based on its de novo review

of the recommendation and the objections made. Fed.

R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C).

Although civil litigants bear their own

attorneys’ fees by default, Peter v. Nantkwest, Inc.,

140 S. Ct. 365, 370–71 (2019), a court may award

attorneys’ fees where a “specific and explicit”

statutory provision authorizes fee shifting, Baker

Botts L.L.P. v. ASARCO LLC, 576 U.S. 121, 126

(2015). In certain civil rights actions, 42 U.S.C. §

1988(b) authorizes district courts to award “a

reasonable attorney’s fee” to the “prevailing party,”

other than the United States. A “prevailing party” is

one who “receive[s] at least some relief on the merits”

of the litigation. Hewitt v. Helms, 482 U.S. 755, 760

(1987). That relief on the merits must (1) “materially

alter[] the legal relationship between the parties by

modifying the defendant’s behavior in a way that

directly benefits the plaintiff,” Lefemine v. Wideman,

568 U.S. 1, 4 (2012) (per curiam) (quoting Farrar v.

Hobby, 506 U.S. 103, 111–12 (1992)), and (2) be

“marked by ‘judicial imprimatur,’” as “when a

plaintiff secures an ‘enforceable judgment on the

merits’ or a ‘court-ordered consent decree,’” CRST

Van Expedited, Inc. v. EEOC, 136 S. Ct. 1642, 1646

(2016) (quoting Buckhannon Bd. & Care Home, Inc.

98a

v. W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598,

604–05 (2001)) (cleaned up) (emphasis in original).

II.

THE R&R

The magistrate judge’s reasoning in the R&R

proceeded in six steps.

First, the magistrate judge analyzed the

reasoning underlying Smyth’s holding “that the

grant of a preliminary injunction does not give rise to

prevailing party status for an attorneys’ fees

petition.” Dkt. 243 at 12 (citing Smyth, 282 F.3d at

277). As the magistrate judge explained, the Fourth

Circuit’s conclusion that preliminary injunction

winners are not prevailing parties under § 1988 was

based on “the now-outdated formulation of the

preliminary injunction standard articulated in

Blackwelder Furniture Co. of Statesville, Inc. v. Seilig

Manufacturing Company, Inc., 550 F.2d 189, 195 (4th

Cir. 1977).” Id. at 14. Under the Blackwelder

standard, “[a] plaintiff’s burden to show a likelihood

of success on the merits . . . varie[d] according to the

harm the plaintiff would be likely to suffer absent an

injunction.” Id. (quoting Smyth, 282 F.3d at 276).

Thus, in his view and considering “the inconsistent

and abbreviated nature of the merits inquiry, the

flexible ‘interplay’ of the Blackwelder factors, and the

‘incorporation (if not the predominance) of equitable

factors,’” the Smyth court announced a bright line

rule that preliminary injunctions do not make

plaintiffs prevailing parties under § 1988. Id. at 16

(quoting Smyth, 282 F.3d at 277 & n.8).

99a

Second, the magistrate judge acknowledged

Plaintiffs’ contention that the Supreme Court’s

holding in Winter v. Natural Resources Defense

Council, Inc., 555 U.S. 7, 20 (2008), altered the

preliminary injunction standard in the Fourth

Circuit by requiring a plaintiff to “establish that he is

likely to succeed on the merits, that he is likely to

suffer irreparable harm in the absence of preliminary

relief, that the balance of the equities tips in his

favor, and that an injunction is in the public

interest.” Indeed, the Fourth Circuit later recognized

that “[t]he Winter requirement that the plaintiff

clearly demonstrate that it will likely succeed on the

merits is far stricter than the Blackwelder

requirement that the plaintiff demonstrate only a

grave or serious question for litigation.” The Real

Truth About Obama, Inc. v. Fed. Election Comm’n,

575 F.3d 342, 346–47 (4th Cir. 2009), vacated on

other grounds, 559 U.S. 1089 (2010), and aff’d in

relevant part, 607 F.3d 355 (4th Cir. 2010) (emphasis

in original).

Third, the magistrate judge concluded that the

Supreme Court has not squarely decided the issue

before the Court. In Sole v. Wyner, the Supreme

Court held that “[a] plaintiff who achieves a

transient victory at the threshold of an action can

gain no award under that fee-shifting provision if, at

the end of the litigation, her initial success is undone

and she leaves the courthouse emptyhanded.” 551

U.S. 74, 78 (2007) (emphasis added). And in Lefemine

v. Wideman, 568 U.S. 1 (2012) (per curiam), the

Supreme Court held that a permanent injunction

100a

based on a finding on summary judgment “that the

defendants had violated [the plaintiff’s] rights,” id. at

5, and “order[ing] the defendant officials to change

their behavior in a way that directly benefited the

plaintiff,” id. at 2, “worked the requisite material

alteration in the parties’ relationship,” id. at 5,

making the plaintiff a prevailing party under § 1988.

Neither case, however, addressed whether a meritsbased preliminary injunction that is not later undone

makes a plaintiff a prevailing party under § 1988.

Dkt. 243 at 17–18.

Fourth, the magistrate judge addressed

Plaintiffs’ argument that the Fourth Circuit’s

decision in Smyth is out of step with the holdings of

other circuit courts. The magistrate judge noted that

“almost every circuit agrees that a merits-based

preliminary injunction that is not undone or

otherwise modified by a later court order may confer

prevailing party status entitling the plaintiff to an

award of attorneys’ fees.” Dkt. 243 at 19; see id. at

19–21 (collecting cases). 1 Still, he concluded that

See, e.g., Planned Parenthood Sw. Ohio Region v.

Dewine, 931 F.3d 530, 542 (6th Cir. 2019), cert. denied sub nom.

Yost v. Planned Parenthood Sw. Ohio Region, 141 S. Ct. 189

(2020); Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 716

(9th Cir. 2013); Doe v. Nixon, 716 F.3d 1041, 1048 (8th Cir.

2013); Kan. Jud. Watch v. Stout, 653 F.3d 1230, 1238 (10th

Cir. 2011); Common Cause/Ga. v. Billups, 554 F.3d 1340, 1356

(11th Cir. 2009); People Against Police Violence v. City of

Pittsburgh, 520 F.3d 226, 233 (3d Cir. 2008); Dearmore v. City

of Garland, 519 F.3d 517, 524 (5th Cir. 2008); Dupuy v. Samuels,

423 F.3d 714, 723 n.4 (7th Cir. 2005); Select Milk Producers, Inc.

v. Johanns, 400 F.3d 939, 948 (D.C. Cir. 2005); Haley v. Pataki,

106 F.3d 478, 483 (2d Cir. 1997).

101a

“out-of-circuit precedent is not binding upon this

[C]ourt” and that “this Court is required to follow

controlling Fourth Circuit law.” Id. at 21.

Fifth, the magistrate judge examined this

Court’s preliminary injunction in this case. Id. at 2–7;

22–24 (citing Stinnie v. Holcomb, 355 F. Supp. 3d 514

(W.D. Va. 2018)). He concluded that the preliminary

injunction, which was granted under the Winter

standard, “was thoroughly merits- based” and “was

an enforceable court order, carrying all the necessary

judicial imprimatur, . . . that ‘materially altered the

legal relationship between the parties by modifying

the defendant’s behavior in a way that directly

benefited’ Plaintiffs.” Id. at 22 (quoting Lefemine, 568

U.S. at 4) (internal citation omitted). The magistrate

judge explicitly rejected Defendant’s arguments that

Plaintiffs cannot achieve prevailing party status

because the preliminary injunction (1) granted only

some of the relief Plaintiffs requested, id. at 23, and

(2) could (or would) have been reversed if the case

had not been mooted by legislation repealing the

statute that Defendants were enjoined from enforcing

against Plaintiffs, id. at 23–24.

Finally, the magistrate judge concluded that,

despite Plaintiffs’ argument “that the rationale

supporting the Fourth Circuit’s decision in Smyth has

been materially undermined by the Supreme Court’s

later decisions in Winter and Lefemine,” id. at 24,

this Court is nevertheless bound to follow Smyth,

which “has not been explicitly overruled by either

the Fourth Circuit or by the Supreme Court” and

102a

“remains controlling law in this Circuit,” id. at 25.

III.

ANALYSIS

Plaintiffs object to the final step of the

magistrate judge’s reasoning in the R&R. Plaintiffs

argue that the Supreme Court’s holdings in Winter

and Lefemine “fatally undermine[]” Smyth’s

“underpinnings” and that this Court is no longer

bound to follow Smyth. Dkt. 247 at 11. Specifically,

Plaintiffs contend that Winter’s requirement that a

plaintiff show a likelihood of success on the merits to

obtain a preliminary injunction “pulled the chair out

from under Smyth,” whose holding “revolved around

concerns regarding the ‘necessarily abbreviated’

nature of preliminary injunctions at the time.” Id. at

12 (quoting Smyth, 282 F.3d at 276). In light of

intervening precedent, Plaintiffs opine, the Fourth

Circuit would rule differently—and in their favor—if

it faced this question today. Id. at 13.

A published Fourth Circuit decision is binding

on this Court unless the Fourth Circuit overrules its

prior decision or the Supreme Court issues a

superseding decision. See United States v. Dodge, 963

F.3d 379, 383 (4th Cir. 2020) (“A decision of a panel of

this court becomes the law of the circuit and is

binding on other panels unless it is overruled by a

subsequent en banc opinion of this court or a

superseding contrary decision of the Supreme

Court.”) (citation omitted) (emphasis added); see also

Warfaa v. Ali, 811 F.3d 653, 661 (4th Cir. 2016) (“One

panel’s decision is binding, not only upon the district

103a

court, but also upon another panel of this court—

unless and until it is reconsidered en banc.”) (internal

quotation marks and citation omitted) (emphasis

added). Neither is the case here. No Fourth Circuit

opinion has overruled Smyth. Nor has the Supreme

Court issued a superseding decision.

Plaintiffs argue, however, that the Supreme

Court’s decisions in Winter and Lefemine undermine

Smyth’s reasoning. This may be so. But even if it

agreed with Plaintiffs’ argument, the Court must

follow binding circuit precedent. Plaintiffs have cited

no authority permitting this Court to disregard the

Fourth Circuit’s binding precedent in Smyth.

Moreover, the Court is not persuaded that

Winter and Lefemine have so directly undermined

Smyth’s reasoning that this court should disregard

Smyth. In Smyth, the Fourth Circuit acknowledged

that some preliminary injunctions involved a showing

on the merits nearly identical to—or even stronger

than—the one the Supreme Court later articulated

in Winter:

At the most, a party seeking a

preliminary injunction may have to

demonstrate a strong showing of

likelihood of success or a substantial

likelihood of success by clear and

convincing evidence in order to obtain

relief.... A district court’s determination

that such a showing has been made is

best understood as a prediction of a

probable, but necessarily uncertain,

outcome….The fact that a preliminary

104a

injunction is granted in a given

circumstance, then, by no means

represents a determination that the

claim in question will or ought to

succeed ultimately; that determination

is to be made upon the deliberate

investigation that follows the granting

of the preliminary injunction.

282 F.3d at 276 (internal quotation marks and

citations omitted). Winter changed the preliminary

injunction analysis by requiring a plaintiff to

“establish that he is likely to succeed on the merits.”

555 U.S. at 20. Thus, while a Fourth Circuit plaintiff

at the time Smyth was decided may have shown that

he was likely to succeed on the merits to obtain a

preliminary injunction under the Blackwelder test,

he was not required to do so until after Winter.

But the Smyth court clearly considered—and

rejected—the plaintiffs’ argument that “some

preliminary injunctions are sufficiently based on the

merits to serve as a basis for an award of attorneys’

fees.” 282 F.3d at 277 n.9 (emphasis added). Indeed,

the Fourth Circuit denied plaintiffs’ request for

attorneys’ fees even though the district court granted

the preliminary injunction in Smyth after finding

“that the denial of benefits for noncooperation because

of a claimant’s inability to identify the father of her

children contradicted the plain language of thenapplicable federal regulations, and that the plaintiffs

were thus likely to succeed on the merits.” Id. at 272

(emphasis added). Instead, the Smyth court adopted

105a

a bright line rule that preliminary injunction

awardees are not prevailing parties under § 1988:

“The preliminary injunction inquiry, because of the

preliminary, incomplete examination of the merits

involved and the incorporation (if not the

predominance) of equitable factors, is ill-suited to

guide the prevailing party determination regardless

of how it is formulated.” 2 Id. at 277 n.8 (emphasis

added). This statement is just as true of the Winter

inquiry as it is of the Blackwelder one.

Furthermore, although Lefemine was decided

after Smyth, the Supreme Court’s brief per curiam

decision implies that Lefemine involved a

straightforward application of precedent in Farrar v.

Hobby—which was decided a decade before Smyth.

The Smyth court made this statement in response to

Judge Luttig’s concurrence in Safety- Kleen, Inc. (Pinewood) v.

Wyche, 274 F.3d 846, 868–70 (4th Cir. 2001) (Luttig, J.,

concurring). 282 F.3d at 277 n.8. In Safety-Kleen, Judge Luttig

argued that Blackwelder “contravene[d] Supreme Court

precedents by overvaluing the inquiry into the relative equities

of granting and denying a requested injunction to an extent

that essentially denies any value whatsoever to the inquiry into

the likelihood of success on the merits,” thereby “virtually

eliminat[ing] altogether the inquiry into the likelihood of

success on the merits—in doctrine, though, . . . no longer in

practice. . . .” 274 F.3d at 868. Significantly, the Smyth court

considered Judge Luttig’s critique and determined that

“[w]hatever the merits of this argument, it does not alter our

conclusion here”—that is, even if the preliminary injunction

standard required an inquiry into the likelihood of success on the

merits, the Smyth court would still conclude that a preliminary

injunction does not confer prevailing party status under § 1988.

282 F.3d at 277 n.8.

106a

See Lefemine, 568 U.S. at 4 (quoting Farrar, 506 U.S.

at 111–12). In addition, a permanent injunction (like

the one granted in Lefemine) differs from a

preliminary injunction because it is based on a

finding of success on the merits— not the likelihood

of such success. Again, nothing in Lefemine alters the

Smyth court’s reasoning that the preliminary

injunction merits showing “is best understood as a

prediction of a probable, but necessarily uncertain,

outcome” and that the granting of a preliminary

injunction “by no means represents a determination

that the claim in question will or ought to succeed

ultimately.” 282 F.3d at 276.

Therefore, whether the Fourth Circuit would

overrule Smyth today is, at best, unclear. But in any

event, the Fourth Circuit is the court to make that

determination, not this Court.

IV.

CONCLUSION

For these reasons, the Court will overrule

Plaintiffs’ objections and adopt the R&R as set forth

herein. Accordingly, the Court will deny Plaintiffs’

petition for attorneys’ fees and litigation expenses.

An appropriate Order will issue.

It is so ORDERED.

Entered this 4th

day of June, 2021.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.