Amicus Curiae Brief — Gerald F. Lackey, in His Official Capacity as the Commissioner of the Virginia Department of Motor Vehicles, Petitioner v. Damian Stinnie, et al.

No. 23-621

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,

v.

DAMIAN STINNIE, ET AL.,

Respondents.

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

To The United States Court Of Appeals

For The Fourth Circuit

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

ALABAMA, ARKANSAS, FLORIDA, IDAHO,

INDIANA, IOWA, LOUISIANA, MISSISSIPPI,

MONTANA, NEBRASKA, OHIO, OKLAHOMA,

SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE,

TEXAS, UTAH, AND WEST VIRGINIA AS

AMICI CURIAE SUPPORTING PETITIONER

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

Attorney General

STEPHEN J. PETRANY

Solicitor General

Counsel of Record

PAUL R. DRAPER

Deputy Solicitor General

OFFICE OF THE GEORGIA

ATTORNEY GENERAL

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3546

spetrany@law.ga.gov

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

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

1

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

2

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

3

I.

The question presented is recurring and

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

3

A. Plaintiffs regularly seek and courts

impose substantial fee awards against

state officials based on preliminary

injunctions when cases end without

a merits judgment in the plaintiff ’s

favor .....................................................

4

B. The circuit courts have failed to

establish a clear and consistent test

for when a preliminary injunction

supports a fee award in a case that

ends without a merits judgment ......... 10

C. Messy and unpredictable tests for fee

eligibility impose needless costs on the

States and their residents ................... 15

II. The Fourth Circuit below, and other circuit

courts, apply tests for fee eligibility that

conflict with this Court’s precedents........... 20

Conclusion............................................................ 24

ii

TABLE OF AUTHORITIES

Page

CASES

Amawi v. Paxton,

48 F.4th 412 (5th Cir. 2022) ....................................14

Buckhannon Bd. & Care Home, Inc. v.

W. Va. Dep’t of Health & Human Res.,

532 U.S. 598 (2001) ............... 2, 10, 14, 16, 18, 20–23

Chrysafis v. Marks,

No. 21-cv-2516, 2023 WL 6158537

(E.D.N.Y. Sept. 21, 2023) ...........................................6

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

Opportunities Master Fund Ltd.,

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

City of Burlington v. Dague,

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

Common Cause Georgia v. Sec’y,

State of Georgia,

17 F.4th 102 (11th Cir. 2021) .......................... 5, 6, 19

Common Cause/Georgia v. Billups,

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

Common Cause/Georgia v. Billups,

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

Common Cause/Georgia v. Billups,

554 F.3d 1340 (11th Cir. 2009) ...................... 5, 19, 22

Common Cause/Georgia v. Billups,

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

(N.D. Ga. Dec. 27, 2007) ...................................... 5, 19

Davis v. Abbott,

781 F.3d 207 (5th Cir. 2015) ....................................10

iii

TABLE OF AUTHORITIES—Continued

Page

Davis v. Perry,

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

Dearmore v. City of Garland,

519 F.3d 517 (5th Cir. 2008) ............ 10, 12, 14, 18, 22

DiMartile v. Hochul,

80 F.4th 443 (2d Cir. 2023) ......................................12

Douglas v. District of Columbia,

67 F. Supp 3d 36 (D.D.C. 2014) ............................. 8, 9

Evans v. Jeff D.,

475 U.S. 717 (1986) ........................................... 17, 18

Hewitt v. Helms,

482 U.S. 755 (1987) .................................................23

Higher Taste, Inc. v. City of Tacoma,

717 F.3d 712 (9th Cir. 2013) .............................. 18, 22

Hoosier Energy Rural Elec. Coop. v.

John Hancock Life Ins. Co.,

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

Kan. Judicial Watch v. Stout,

653 F.3d 1230 (10th Cir. 2011) ............................ 7, 13

Kan. Judicial Watch v. Stout,

No. 06-4056, 2012 WL 1033634

(D. Kan. Mar. 27, 2012) .............................................7

Marek v. Chesny,

473 U.S. 1 (1985) .....................................................18

McQueary v. Conway,

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

iv

TABLE OF AUTHORITIES—Continued

Page

N. Cheyenne Tribe v. Jackson,

433 F.3d 1083 (8th Cir. 2006) ..................................12

People Against Police Violence v.

City of Pittsburgh,

520 F.3d 226 (3d Cir. 2008) ................................. 7, 19

Reilly v. City of Harrisburg,

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

Rogers Grp., Inc. v. City of Fayetteville,

683 F.3d 903 (8th Cir. 2012) ............................ 7, 8, 12

Select Milk Producers, Inc. v. Johanns,

400 F.3d 939 (D.C. Cir. 2005) ..................................13

Serono Labs., Inc. v. Shalala,

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

Sinapi v. R.I. Bd. of Bar Exam’rs,

910 F.3d 544 (1st Cir. 2018) ....................................11

Singer Mgmt. Consultants, Inc. v. Milgram,

650 F.3d 223 (3d Cir. 2011) .....................................11

Smyth v. Rivero,

282 F.3d 268 (4th Cir. 2002) ....................................11

Sole v. Wyner,

551 U.S. 74 (2007) ....................................... 20, 21, 23

Stinnie v. Holcomb,

77 F.4th 200 (4th Cir. 2023) .............. 4, 11, 14, 15, 21

Tenn. State Conf. of NAACP v. Hargett,

53 F.4th 406 (6th Cir. 2022) .......................... 6, 11, 22

v

TABLE OF AUTHORITIES—Continued

Page

Tenn. State Conf. of NAACP v. Hargett,

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

(M.D. Tenn. Sept. 28, 2021) .......................................7

Tex. State Teachers Ass’n v.

Garland Indep. Sch. Dist.,

489 U.S. 782 (1989) ......................... 13, 14, 16, 20, 23

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

City of Malden,

680 F. Supp. 2d 306 (D. Mass. 2010) .........................9

Watson v. County of Riverside,

300 F.3d 1092 (9th Cir. 2002) ....................................8

In re Witness Before Special Grand Jury 2000-2,

288 F.3d 289 (7th Cir. 2002) ....................................16

STATUTES

15 U.S.C. § 1117 ............................................................8

20 U.S.C. § 1415 ........................................................ 8, 9

28 U.S.C. § 2412 ............................................................8

42 U.S.C. § 1988 .................................... 1–4, 8, 9, 20, 23

42 U.S.C. § 2000e-5 .......................................................8

42 U.S.C. § 3613 ........................................................ 8, 9

42 U.S.C. § 12205 ..........................................................8

52 U.S.C. § 10310 ...................................................... 8, 9

vi

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

11A Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 2948.3 (3d

ed. 2022) ..................................................................13

Steven K. Berenson, Public Lawyers, Private

Values: Can, Should, and Will Government

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

Rev. 789 (2000) ........................................................16

1

INTERESTS OF THE AMICI CURIAE1

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

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

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

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

least, the States need clear and predictable rules for

when they might be exposed to such awards so they

can structure their conduct—budgeting, litigation, and

otherwise—accordingly.

Unfortunately, the circuit courts have not supplied

clear, predictable rules for answering the question of

fee eligibility presented by this case: When can a preliminary injunction serve as the basis for attorney’s

fees if the party seeking them never wins a final merits

ruling? This question often arises when a state takes

steps that resolve a plaintiff ’s concerns—for example,

amending a voter ID law or changing an enforcement

policy—after a preliminary injunction is issued. If the

state’s actions will expose it to a substantial fee award,

the state needs to know that in advance so it can make

an informed decision whether to press on with the lawsuit. Without clear rules to guide that decision, states

are left to gamble with public money. The amici States

therefore urge this Court to step in and clear up this

Amici have notified counsel for all parties of their intention

to file this brief. See Sup. Ct. Rule 37.2.

1

2

question so states can make sound litigation and policy

decisions on the public’s behalf.

SUMMARY OF THE ARGUMENT

The petition identifies a recurring issue of great

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

a number of other federal statutes, plaintiffs regularly

seek, and courts sometimes impose, substantial fee

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

have not established clear or consistent standards for

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

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

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

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

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

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

residents in the form of protracted secondary litigation

over fees. This uncertainty then complicates the

States’ litigation and policy decisions, and it produces

a perverse incentive to continue litigating cases to final

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

Many circuits, including the Fourth Circuit here,

allow fee awards to preliminary injunction winners

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

3

precedents make clear that a party is not a “prevailing

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

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

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

enough. This Court should grant the petition to make

that clear for all.

ARGUMENT

I.

The question presented is recurring and

important to the States.

The question presented is when, if ever, a plaintiff

who wins a preliminary injunction but not a merits

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

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

one because plaintiffs regularly seek attorney’s fees in

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

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

it is important for this Court to provide a clear answer

to this question because the circuit courts have not;

their tests for determining fee eligibility are subjective

and unpredictable. This imposes unnecessary costs on

the States and their residents.

4

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

state officials based on preliminary injunctions when cases end without a merits judgment in the plaintiff’s favor.

The plaintiffs in this case failed to win a merits

ruling on any of their claims against the Commissioner

before Virginia’s independent and voluntary actions

gave the plaintiffs what they sought and thus mooted

their case. Yet, because the district court had earlier

issued a preliminary injunction, the Fourth Circuit

deemed them “prevailing parties” under § 1988 and

put Virginia on the hook for hundreds of thousands of

dollars in fees and expenses. See Mot. For Att’y Fees at

23, Stinnie v. Holcomb, No. 21-1756 (4th Cir. Aug. 21,

2023) (requesting $768,491.70 in appellate fees and expenses alone). The plaintiffs did not win their lawsuit,

but now that it faces the possibility of a near-sevenfigure fee award, Virginia can hardly be faulted for

thinking it lost.

Unfortunately for the States, Virginia is not an

outlier. Plaintiffs regularly seek and courts have been

willing to impose substantial fee awards against state

officials under § 1988 based on this same combination:

a preliminary injunction, and a case that ends without

the plaintiffs having won a merits judgment.

Take Georgia, for example. In Common Cause/

Georgia v. Billups, the district court issued a preliminary injunction against enforcement of a voter ID law.

406 F. Supp. 2d 1326, 1377 (N.D. Ga. 2005). But after

5

Georgia enacted a new law making it easier for voters

to comply with the ID requirement, the court ultimately denied permanent injunctive relief because

Georgia’s “compelling interest in preventing fraud in

voting” outweighed any burden that the updated ID requirement might have on the right to vote. 504

F. Supp. 2d 1333, 1382–83 (N.D. Ga. 2007), aff ’d in relevant part, 554 F.3d 1340, 1355 (11th Cir. 2009). So the

plaintiffs didn’t just fail to win a merits judgment; they

lost the case. Yet the State was forced to pay

$112,235.03 in fees because the plaintiffs had obtained

a preliminary injunction against the old law. 554 F.3d

at 1356; No. 4:05-cv-0201, 2007 WL 9723985, at *22

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

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

result in the erroneous rejection of some provisional

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

court granted a temporary restraining order—the

most preliminary form of relief—directing Georgia’s

Secretary of State to take steps to ensure the accuracy

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

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

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

6

awarded $166,210.09 in fees and expenses. Id. at 105–

06.

Other states, and their political subdivisions too,

have been made to pay large fee awards under the

same basic set of circumstances:

•

In Chrysafis v. Marks, the district court actually denied the plaintiffs’ request to preliminarily enjoin a New York law limiting

evictions during the COVID pandemic and

dismissed their case. No. 21-cv-2516, 2023 WL

6158537, at *1 (E.D.N.Y. Sept. 21, 2023). The

plaintiffs then secured a temporary injunction

against the law pending appeal, but the law

automatically expired by its own terms before

the plaintiffs’ appeal was resolved. Id. at *2.

The Second Circuit dismissed the appeal as

moot, but New York was subsequently ordered

to pay almost $350,000 in fees and costs—

based on nothing more than an injunction

pending appeal. Id. at *3, 12.

•

In Tennessee State Conference of NAACP v.

Hargett, the plaintiffs challenged a suite of

Tennessee laws regulating voter registration

drives. 53 F.4th 406, 408–09 (6th Cir. 2022).

The plaintiffs secured a preliminary injunction halting enforcement of the laws while

their legality was under review, but Tennessee

repealed the challenged laws less than seven

months later—before the plaintiffs won any

permanent relief on the merits—and the parties agreed to dismiss the case. Id. at 409. Tennessee was nevertheless ordered to pay

roughly $800,000 in fees and expenses. See

7

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

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

•

In Kansas Judicial Watch v. Stout, candidates

for judicial office obtained a preliminary injunction preventing the Kansas Commission

on Judicial Qualifications from disciplining

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

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

Still, Kansas was made to pay $151,470.08 in

fees. See No. 06-4056, 2012 WL 1033634, at

*14 (D. Kan. Mar. 27, 2012).

•

In People Against Police Violence v. City of

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

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

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

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

the merits of the original ordinance, but the

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

Id.

•

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

plaintiff challenged a city ordinance limiting

its ability to operate a limestone quarry just

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

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

and voluntarily repealed the ordinance before

the court could rule on the plaintiff ’s request

8

for permanent relief. Id. Despite the absence

of any decision on the merits of the plaintiff ’s

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

in fees and costs. Id. at 907.

•

In Watson v. County of Riverside, the plaintiff

sought and obtained a preliminary injunction

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

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

2002). The court later granted judgment for

the defendants on all claims except one—on

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

county nevertheless paid $153,988.41 in fees,

including fees for post-preliminary injunction

work, even though the plaintiff did not prevail

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

1097.

And those are just § 1988 cases. The same “prevailing party” language courts have used to award attorney’s fees in moot § 1983 cases based on

preliminary injunctions appears in many other federal

statutes. See 15 U.S.C. § 1117(a) (Lanham Act); 20

U.S.C. § 1415(i)(3)(B)(i) (Individuals with Disabilities

Education Act); 28 U.S.C. § 2412(d)(1)(A) (Equal Access

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

of 1964); 42 U.S.C. § 3613(c)(2) (Fair Housing Act); 42

U.S.C. § 12205 (Americans with Disabilities Act); 52

U.S.C. § 10310(e) (Voting Rights Act).

•

In Douglas v. District of Columbia, a plaintiff

sued under the Individuals with Disabilities

9

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

him to return to and complete a program for

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

2014). Because the plaintiff was allowed to return to school, the case was mooted before any

merits decision. Id. at 40. But the district

court ordered the school system to pay

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

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

•

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

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

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

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

mooting the suit, before any further litigation

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

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

Id. at 317.

•

And in Davis v. Perry, the plaintiffs challenged

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

2014). The court enjoined the plan because it

had not been precleared under the Voting

Rights Act, and the court issued its own interim plan for the 2012 election. Id. at 816. After preclearance was denied by a different

district court, the Texas Legislature passed a

new plan, which mirrored the court’s interim

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

court ordered Texas to pay $363,378.43 in fees

and costs under § 1988 and § 10310(e)

10

because the plaintiffs obtained “judicially

sanctioned relief.” Davis v. Abbott, 781 F.3d

207, 213–14 (5th Cir. 2015). This time, however, the court of appeals reversed the fee

award. Id. at 215–18 (holding that the plaintiffs were not prevailing parties because the

preliminary relief did not arise from a prediction of future success on the merits).

In short: What happened to Virginia here happens

a lot.

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

a preliminary injunction supports a fee

award in a case that ends without a merits judgment.

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

reason that the rule for deciding it, like standards for

fee eligibility in general, should be clear and easy to

administer. See Buckhannon, 532 U.S. at 610. But most

circuit courts have not provided such a rule. In addition to coming up with a number of different and often

conflicting formulations of a rule to govern fee eligibility (as the petition demonstrates), circuit courts have

mostly chosen amorphous, fact-specific rules over

bright lines. Dearmore v. City of Garland, 519 F.3d 517,

521 (5th Cir. 2008) (“[C]ircuit courts considering this

issue have announced fact-specific standards that are

anything but uniform.”).

Only a few circuit courts have established a

bright-line rule to govern the fee eligibility question

11

presented here. In the Third Circuit—and, until now,

the Fourth Circuit—a plaintiff who wins a preliminary

injunction is not a “prevailing party” on that basis

alone because the plaintiff has not won anything on

the merits. See Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 229 (3d Cir. 2011) (en banc); Smyth

v. Rivero, 282 F.3d 268, 277 (4th Cir. 2002), overruled

by Stinnie v. Holcomb, 77 F.4th 200 (4th Cir. 2023) (en

banc).2 The First Circuit similarly holds that preliminary relief does not confer prevailing party status, at

least where the opposing party “never receive[s] a fair

opportunity to contest” the merits on a fully developed

record. Sinapi v. R.I. Bd. of Bar Exam’rs, 910 F.3d 544,

551–52 (1st Cir. 2018).

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

to pin down. The circuit’s leading case on the question

of fees for preliminary injunction winners never even

articulated a clear standard, instead describing the inquiry as “contextual and case-specific.” McQueary v.

Conway, 614 F.3d 591, 601 (6th Cir. 2010); see also Hargett, 53 F.4th at 410–11 (describing “a spectrum of

cases” along which the relief granted ranges from

“fleeting” to “enduring,” the difference being only “one

of degree”).

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

Even the Third Circuit left room for uncertainty, however.

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

2

12

whether a preliminary injunction “merely maintains

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

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

turn not simply on whether the preliminary injunction

preserved the existing state of affairs, but rather on a

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

in granting the injunction. Compare id. (denying a fee

award after the defendants’ voluntary action mooted

the case because, although the preliminary injunction

order addressed the likelihood of success on the merits,

it “did not discuss whether those claims would entitle

the Tribes to final relief on the merits against the Secretary”), with Rogers Grp., 683 F.3d at 911 (granting a

fee award based on a preliminary injunction that prevented new quarry regulations from going into effect

because the order “engaged in a thorough analysis of

the probability that Rogers Group would succeed on

the merits of its claim,” even though the injunction just

maintained the real world status quo). The Second Circuit has likewise denied prevailing party status where

a preliminary injunction, although supposedly meritsbased, was premised on a “hasty and abbreviated”

analysis. DiMartile v. Hochul, 80 F.4th 443, 451–54 (2d

Cir. 2023). Exactly how “hasty” or “abbreviated” the

analysis must be, however, was left unanswered.

Other circuits introduce uncertainty into their

tests by asking whether the preliminary injunction

was based on an “unambiguous indication of probable

success on the merits” as opposed to a mere balancing

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

13

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

(same); see also, e.g., Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 948 (D.C. Cir. 2005) (affirming fee

award to a preliminary injunction winner and emphasizing that the “Milk Producers secured a preliminary

injunction in this case largely because their likelihood

of success on the merits was never seriously in doubt”).

But a preliminary injunction, by its “very nature,” is a

“flexible” remedy that precludes “wooden application of

the probability test.” Citigroup Glob. Mkts., Inc. v. VCG

Special Opportunities Master Fund Ltd., 598 F.3d 30,

35–36 (2d Cir. 2010) (quotation omitted). Deciding

whether the district court examined the merits “serious[ly]” enough in that context is a fraught endeavor,

id., and a particularly “unstable threshold to fee eligibility,” Tex. State Teachers Ass’n v. Garland Indep. Sch.

Dist., 489 U.S. 782, 791 (1989).3

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

This difficulty is compounded by the “bewildering variety of

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

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

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

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

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

582 F.3d 721, 725 (7th Cir. 2009) (“How strong a claim on the merits is enough depends on the balance of harms: the more net harm

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

merits can be while still supporting some preliminary relief.”);

Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317–18 (D.C. Cir.

1998); Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017);

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

3

14

into its test the knotty question whether the preliminary injunction also “cause[d] the defendant to moot

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

v. Paxton, 48 F.4th 412, 417–18 (5th Cir. 2022) (doubling down on Dearmore’s causation element). That

question pushes courts not only to assess motives and

mental states of government officials, but also to make

a subjective judgment about just how strong the causative link between the injunction and the mooting action has to be. Did the defendants moot the action

because they were enjoined, for some other reason, or

for a combination of reasons? If the latter, which reason did they care about most? Hardly the stuff of

“ready administrability.” Buckhannon, 532 U.S. at

609–10 (quotation omitted); see also Garland, 489 U.S.

at 791 (rejecting the “central issue” test for the “prevailing party” question because, “[b]y focusing on the

subjective importance of an issue to the litigants, it

asks a question which is almost impossible to answer,”

since it “appears to depend largely on the mental state

of the parties”).

With its decision here, the Fourth Circuit adds to

the confusion. The court attempts to cobble together a

“synthesize[d]” test based on the formulae applied in

other circuits. See Stinnie, 77 F.4th at 216–17. But, as

explained above and as even the Fourth Circuit

acknowledges, the other circuits’ tests are hardly models of clarity or consistency. See id. at 216 (recognizing

that “there are some differences in the way [other circuits] assess prevailing party status” and many “impose additional, fact-specific barriers to prevailing

15

party status”). And the Fourth Circuit’s new test suffers from the same ambiguity as other circuits’. It confers prevailing party status where a preliminary

injunction is based on a likelihood of success on the

merits, id., but fails to explain how much of a likelihood

is required or how thorough the court’s merits analysis

must be, see Pet. at 30–32. And it says that a party has

secured enduring court-ordered relief if the preliminary injunction “lasts for as long as it is needed” and

the case subsequently becomes moot such that the preliminary injunction cannot be “undone,” Stinnie, 77

F.4th at 216–17, but fails to explain how the case could

be mooted by anything other than a legislative act,

which is decidedly not court-ordered, see Pet. at 33–35.

The circuit courts are deeply divided on the question of when preliminary injunction winners are “prevailing parties,” and the confusing tests they have

devised to answer that question—which vary significantly from circuit to circuit—provide no certainty for

anyone.

C. Messy and unpredictable tests for fee

eligibility impose needless costs on the

States and their residents.

The circuit courts’ amorphous, unpredictable tests

are not just trouble for district and circuit courts trying

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

for states and their officials.

First, these tests impose the same obvious cost as

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

major litigation when the case was supposed to be all

16

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

Court has rejected complicated rules for fee eligibility

to avoid subjecting parties to the needless costs—both

time and resources—of litigating over fees. The Court

rejected the “central issue” test for just this reason. Id.

(“Creating such an unstable threshold to fee eligibility

is sure to provoke prolonged litigation, thus deterring

settlement of fee disputes and ensuring that the fee

application will spawn a second litigation of significant

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

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

theory because it required a “highly factbound” and

“nuanced ‘three thresholds’ test”).

Second, these tests frustrate the States’ ability to

make informed litigation and policy decisions. When

deciding whether and how to defend against a lawsuit,

a state must balance a number of competing interests,

including defending duly enacted laws, implementing

effective policies, safeguarding citizens’ rights, and

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

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

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

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

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

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

one; the state should remain exposed to a costly fee

award only so long as it continues the litigation, since

fees are usually allowed only if the plaintiff actually

17

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

modicum of control with uncertainty because they often allow fee awards even when a state decides to stop

litigating—for instance, because changing a law would

better serve the public interest—after a preliminary

injunction is entered. And worse, unlike before the preliminary injunction, the state can no longer assess its

exposure to a fee award simply by evaluating the merits of the claims against it. Instead, it must try to predict the outcome of a subjective, “context-specific,” and

inconsistently applied legal test to figure out whether

amending a law or changing a policy will also subject

the state to a six-figure fee award.

Finally, in addition to needlessly complicating the

States’ litigation and policy decisions, most of the circuits’ tests distort the States’ incentives in making

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

35 (1986) (explaining that uncertainty regarding fee

exposure often prevents settlement, especially in

§ 1983 litigation where fee awards often represent “the

most significant liability in the case” (quotation omitted)). The specter of high fee awards is usually a disincentive to litigate: All else equal, rational parties will

try to avoid paying attorney’s fees of six or seven figures, and the surest way to avoid that is to resolve the

dispute before either party wins the case (and thus can

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

plaintiffs and defendants because it offers cost certainty and ensures relief “at an earlier date without

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

18

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

should be especially averse to spending the public’s

money on such fees instead of for the public good.

But that incentive is reversed by unpredictable

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

“parties to a significant number of civil rights cases

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

judicial system, and disserving civil rights litigants”).

Under the shadow of such rules, the logical move for

states that wish to avoid spending the public’s money

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

than explore other options that might better serve the

public interest. See Buckhannon, 532 U.S. at 608 (explaining that a defendant may be deterred from “altering its conduct,” especially if the conduct “may not be

illegal,” if doing so will result in a fee award). After all,

under these rules, a state’s alternatives to continuing

litigation—for example, amending a challenged law or

regulation, reversing a challenged action, or declining

to enforce a challenged policy—could actually lock in

a substantial fee award against it. See, e.g., Higher

Taste, Inc. v. City of Tacoma, 717 F.3d 712, 717–18

(9th Cir. 2013) (affirming a fee award because the

city’s compromise solution with the plaintiffs “transformed what had been temporary relief capable of being undone . . . into a lasting alteration of the parties’

legal relationship”); Dearmore, 519 F.3d at 526 (holding that the plaintiff was a prevailing party, despite not

obtaining a final judgment, because the city amended

19

the ordinance rather than litigating to finality); People

Against Police Violence, 520 F.3d at 234 (same).

Consider, for example, how Common Cause/Georgia

v. Billups and Common Cause Georgia v. Secretary,

State of Georgia have the potential to shape Georgia’s

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

issued a preliminary injunction against enforcement of

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

court held that the State’s interest in preventing voter

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

Given the district court’s holding, Georgia might well

have prevailed on the merits had it defended the original law, too. But because Georgia chose a legislative

solution instead, it was rewarded with a $112,235.03

bill for attorney’s fees. Billups, 2007 WL 9723985, at

*22. And in the latter case, although there was no court

order requiring it to do so, Georgia took legislative

steps to remedy the plaintiffs’ concerns about the potential for error in the State’s procedures for handling

provisional ballots. Sec’y, State of Georgia, 17 F.4th at

106. That left the State on the hook for $166,210.09 in

fees and expenses. Id. at 105–06. The lesson from these

cases is doubly clear: Even if the public interest might

otherwise be best served by a legislative fix, Georgia

should litigate to the bitter end if it wants to protect

the public fisc.

20

II.

The Fourth Circuit below, and other circuit courts, apply tests for fee eligibility

that conflict with this Court’s precedents.

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

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

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

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

adopted). Thus, Buckhannon rejected the circuit

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

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

result because the lawsuit brought about a voluntary

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

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

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

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

prohibiting nudity in state parks did not make the

plaintiff a prevailing party because by the end of the

case, she had lost on the merits and the challenged rule

remained in place. Id. In short, a “prevailing party” is

one who, at the end of the day, wins the lawsuit; they

get their desired court-ordered and enduring change in

the legal relationship between the parties.

The decision below departed from this straightforward test. As the petition explains, the district court’s

preliminary injunction was not an enduring victory for

the plaintiffs because it provided only temporary relief

21

pending the district court’s resolution of their request

for a permanent injunction. Stinnie, 77 F.4th at 203–

04. Indeed, the preliminary injunction was in effect for

less than four months before the Virginia General Assembly, on its own initiative, paused enforcement of

the State’s license suspension scheme. Id. at 204; Doc.

143 at 9, Stinnie v. Holcomb, No. 3:16-cv-00044 (W.D.

Va. Apr. 23, 2019). The preliminary injunction, moreover, “did not give” the plaintiffs everything they asked

for. Stinnie, 77 F.4th at 228 (Quattlebaum, J., dissenting). They requested both temporary and permanent

relief enjoining enforcement of the license suspension

statute, but the district court granted only the former.

Id. at 219. In other words, the plaintiffs may have

“got[ten] what they wanted” eventually, but “they did

not get what they wanted because a federal court decided the merits of their challenge.” Id. at 227; see also

id. at 228 (noting that the district court’s preliminary

injunction was necessarily “ephemeral” (quoting Sole,

551 U.S. at 86)). And the real-world outcome that actually did end the lawsuit was not court-ordered; it resulted instead from Virginia’s independent and

voluntary decision to amend its laws. Id. at 228.

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

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

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

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

22

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

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

with those clear holdings.

Other circuit courts have made the same mistake.

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

to a preliminary injunction winner because a settlement between the parties was supposedly “enduring”

relief); Billups, 554 F.3d at 1356 (affirming a fee award

even though the preliminary injunction was dissolved

when Georgia “repealed the enjoined statute,” not “by

any judicial decision”); Hargett, 53 F.4th at 409–11 (approving a fee award where the district court’s order

provided only temporary relief and then “the Tennessee legislature itself repealed the challenged provisions”). The Fifth Circuit even appears to have revived

the circuits’ old catalyst theory by declaring a party eligible for a fee award if it wins a preliminary injunction

“that causes the defendant to moot the action” by giving

the plaintiffs the relief they sought in the lawsuit.

Dearmore, 519 F.3d at 524 (emphasis added); see

also Buckhannon, 532 U.S. at 601 (defining the “catalyst” theory as permitting recovery if the plaintiff

“achieve[d] the desired result because the lawsuit

brought about a voluntary change in the defendant’s

conduct”). Just like the catalyst theory Buckhannon rejected, this test expressly allows fees where the plaintiff ’s lawsuit purportedly brought about nonjudicial

relief. See id. at 605 (“A defendant’s voluntary change

in conduct, although perhaps accomplishing what the

23

plaintiff sought to achieve by the lawsuit, lacks the

necessary judicial imprimatur on the change.”).

This is not to say this Court’s current precedents

leave no opening for a preliminary injunction to ever

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

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

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

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

preliminary injunction that itself moots the suit by

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

where that is the only thing the plaintiff sought from

the lawsuit—presents a slightly harder question (although even there, it seems that without a final judgment on the merits, there is no prevailing party). But,

consistent with the plain language of § 1988, the

Court’s precedents always require a plaintiff to win (1)

court-ordered (2) enduring relief before they are a “prevailing party.” Buckhannon, 532 U.S. at 605–06 (explaining that the “plain language of the statutes”

forbids awarding “attorney’s fees for a nonjudicial ‘alteration of actual circumstances’ ” (citation omitted));

Garland, 489 U.S. at 792 (holding that the “ordinary”

meaning of § 1988 means that the plaintiff prevails

only if he can “point to a resolution of the dispute

which changes the legal relationship between itself

and the defendant”); Hewitt v. Helms, 482 U.S. 755, 760

(1987) (“Respect for ordinary language requires that a

plaintiff receive at least some relief on the merits of his

claim before he can be said to prevail.”). Allowing fee

24

awards when a preliminary injunction order does not

fit that bill exceeds the authority granted to courts under that statute.

CONCLUSION

For the reasons stated above, the Court should

grant the Commissioner’s petition.

JANUARY 2024

Respectfully submitted,

CHRISTOPHER M. CARR

Attorney General

STEPHEN J. PETRANY

Solicitor General

Counsel of Record

PAUL R. DRAPER

Deputy Solicitor General

OFFICE OF THE GEORGIA

ATTORNEY GENERAL

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3546

spetrany@law.ga.gov

Counsel for Amici Curiae

25

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

of Alabama

TIM GRIFFIN

Attorney General

of Arkansas

ASHLEY MOODY

Attorney General

of Florida

RAÚL R. LABRADOR

Attorney General

of Idaho

THEODORE E. ROKITA

Attorney General

of Indiana

BRENNA BIRD

Attorney General

of Iowa

JEFF LANDRY

Attorney General

of Louisiana

LYNN FITCH

Attorney General

of Mississippi

AUSTIN KNUDSEN

Attorney General

of Montana

MICHAEL T. HILGERS

Attorney General

of Nebraska

DAVE YOST

Attorney General

of Ohio

GENTNER DRUMMOND

Attorney General

of Oklahoma

ALAN WILSON

Attorney General

of South Carolina

MARTY J. JACKLEY

Attorney General

of South Dakota

JONATHAN SKRMETTI

Attorney General and

Reporter of Tennessee

KEN PAXTON

Attorney General

of Texas

SEAN D. REYES

Attorney General

of Utah

PATRICK MORRISSEY

Attorney General

of West Virginia