Petitioners Brief — 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 briefJun 20, 2024

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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,

DAMIAN STINNIE, ET AL.,

Respondents.

_______________________________________________

On Writ of Certiorari to the United States Court of

Appeals for the Fourth Circuit

_______________________________________________

BRIEF FOR PETITIONER

_______________________________________________

JASON S. MIYARES

Attorney General of Virginia

MAYA M. ECKSTEIN

TREVOR S. COX

DAVID M. PARKER

HUNTON ANDREWS

KURTH LLP

Riverfront Plaza, East Tower

951 E. Byrd Street

Richmond, Virginia 23219

ERIKA L. MALEY

Solicitor General

Counsel of Record

KEVIN M. GALLAGHER

Principal Deputy Solicitor

General

GRAHAM K. BRYANT

Deputy Solicitor General

M. JORDAN MINOT

Assistant Solicitor General

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

EMaley@oag.state.va.us

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether a party must obtain a ruling

that conclusively decides the merits

in its favor, as opposed to merely predicting a likelihood of later success, to

prevail on the merits under 42 U.S.C.

§ 1988.

2. Whether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a nonjudicial event that

moots the case, to prevail under 42

U.S.C. § 1988.

PARTIES TO THE PROCEEDINGS BELOW

Petitioner (defendant-appellee below) is Gerald F.

Lackey, in his official capacity as the Commissioner of

the Virginia Department of Motor Vehicles. Mr.

Lackey was automatically substituted as the defendant after the former Commissioner, Richard D. Holcomb, left office. See Fed. R. Civ. P. 25(d).

Respondents (plaintiffs-appellants below) are

Damian Stinnie, Melissa Adams, Adrainne Johnson,

Williest Bandy, and Brianna Morgan.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDINGS BELOW .......... ii

TABLE OF CONTENTS ........................................... iii

TABLE OF AUTHORITIES ........................................ v

OPINIONS BELOW ....................................................1

JURISDICTIONAL STATEMENT .............................1

RELEVANT STATUTORY PROVISION ...................1

INTRODUCTION ........................................................2

STATEMENT OF THE CASE ....................................4

Respondents’ challenge to Virginia Code

§ 46.2-395 ..........................................................4

II.

The Virginia General Assembly repeals

Section 46.2-395, mooting the lawsuit .............8

III.

Respondents seek attorney’s fees ...................10

SUMMARY OF ARGUMENT ...................................14

ARGUMENT .............................................................15

Respondents did not prevail “on the merits” .15

A. The statute’s plain language and this Court’s

precedents demonstrate that Section 1988

requires a conclusive ruling on the merits or

final judgment ..............................................15

B. A likelihood-of-success ruling cannot confer

prevailing-party status ................................23

II.

Respondents did not obtain a judicially

sanctioned “enduring change” in the parties’

legal relationship ............................................33

A. Any enduring change was not judicially

sanctioned ....................................................33

B. The circuits’ various contrary tests are

deeply flawed................................................37

III.

The Fourth Circuit’s remaining contentions

are inconsistent with the purposes of Section

1988 .................................................................46

CONCLUSION ..........................................................54

TABLE OF AUTHORITIES

Cases

Page(s)

Advantage Media, L.L.C. v. City of Hopkins,

Minn., 511 F.3d 833 (8th Cir. 2008) .................... 35

Alliance for the Wild Rockies v. Cottrell,

632 F.3d 1127 (9th Cir. 2011) .............................. 25

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,

421 U.S. 240 (1975) .............................................. 27

Amawi v. Paxton, 48 F.4th 412 (5th Cir. 2022)........ 42

American Libr. Ass’n v. Barr, 956 F.2d 1178

(D.C. Cir. 1992) .................................................... 50

Baker Botts L.L.P. v. ASARCO LLC,

576 U.S. 121 (2015) ........................................ 16, 26

Board of Trustees of Glazing Health & Welfare Tr.

v. Chambers, 941 F.3d 1195 (9th Cir. 2019) ....... 51

Borden v. United States, 593 U.S. 420 (2021) .......... 16

Bradley v. Richmond School Board, 416 U.S.

696 (1974) ............................................................. 21

Buckhannon Bd. & Care Home, Inc. v. West

Va. Dep’t of Health & Human Res.,

532 U.S. 598 (2001) ......... 2, 3, 13-17, 19-22, 33-35,

39, 41-43, 45-49, 52-54

Campaign for Fam. Farms v. Glickman,

200 F.3d 1180 (8th Cir. 2000) .............................. 52

Chicago United Indus., Ltd. v. City of Chicago,

445 F.3d 940 (7th Cir. 2006) ................................ 39

City of Burlington v. Dague, 505 U.S. 557 (1992) .... 22

Clinton v. Jones, 520 U.S. 681 (1997) ....................... 52

Cuomo v. Clearing House Ass’n, L.L.C.,

557 U.S. 519 (2009) .............................................. 18

Curtis v. Thompson,

840 F.2d 1291 (7th Cir. 1988) .............................. 25

Dearmore v. City of Garland,

519 F.3d 517 (5th Cir. 2008) .............. 13, 41, 42, 47

DiMartile v. Hochul, 80 F.4th 443 (2d Cir. 2023) .... 47

Dixon v. Love, 431 U.S. 105 (1977) ........................... 30

Dupuy v. Samuels,

423 F.3d 714 (7th Cir. 2005) .................... 38, 44, 48

Evans v. Jeff D., 475 U.S. 717 (1986) ................. 49, 50

Farrar v. Hobby, 506 U.S. 103 (1992)................. 19, 21

Federal Sav. & Loan Ins. Corp. v. Dixon,

835 F.2d 554 (5th Cir. 1987) ................................ 23

Fleischmann Distilling Corp. v. Maier Brewing Co.,

386 U.S. 714 (1967) .............................................. 53

Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)........... 26

Foreman v. Dallas Cnty.,

193 F.3d 314 (5th Cir. 1999) ................................ 43

Fowler v. Benson,

924 F.3d 247 (6th Cir. 2019) .............. 28, 29, 30, 49

Fowler v. Johnson, No. 17-11441, 2017 WL

6379676 (E.D. Mich. Dec. 14, 2017) ................ 7, 28

Getir US, Inc. v. Doe, No. 1:21-cv-1237, 2023 WL

3898933 (E.D. Va. June 8, 2023) ......................... 30

Glaxo Grp., Ltd. v. Apotex, Inc.,

376 F.3d 1339 (Fed. Cir. 2004) ............................ 26

Green Haven Prison Preparative Meeting of the

Religious Soc’y of Friends v. New York

State Dep’t of Corr. & Cmty. Supervision,

16 F.4th 67 (2d Cir. 2021) .................................... 25

Hanrahan v. Hampton, 446 U.S. 754 (1980)............ 21

Hensley v. Eckerhart, 461 U.S. 424 (1983) ......... 41, 46

Hewitt v. Helms, 482 U.S. 755 (1987) ....................... 20

vii

Higher Taste, Inc. v. City of Tacoma,

717 F.3d 712 (9th Cir. 2013) .................... 34, 40, 46

Higuchi Int’l Corp. v. Autoliv ASP, Inc.,

103 F.4th 400, 2024 WL 2744687

(6th Cir. 2024) ...................................................... 31

Independent Fed’n of Flight Attendants v. Zipes,

491 U.S. 754 (1989) ........................................ 19, 20

Kansas Jud. Watch v. Stout,

653 F.3d 1230 (10th Cir. 2011) ............................ 47

Kellogg Brown & Root Servs., Inc. v.

United States ex rel. Carter,

575 U.S. 650 (2015) .............................................. 18

Kentucky v. Graham, 473 U.S. 159 (1985) ..... 2, 19, 20

Landis v. North Am. Co., 299 U.S. 248 (1936) ......... 52

Lewis v. Continental Bank Corp.,

494 U.S. 472 (1990) .............................................. 35

M Welles & Assocs., Inc. v. Edwell, Inc.,

69 F.4th 723 (10th Cir. 2023) .............................. 52

Maher v. Gagne, 448 U.S. 122 (1980) ....................... 21

Mastrio v. Sebelius, 768 F.3d 116 (2d Cir. 2014) ..... 48

McQueary v. Conway,

614 F.3d 591 (6th Cir. 2010) .......................... 47, 48

Mendoza v. Strickler,

51 F.4th 346 (9th Cir. 2022) .......................... 28, 30

Mills v. Electric Auto-Lite Co.,

396 U.S. 375 (1970) .............................................. 21

Mock v. Garland, 75 F.4th 563 (5th Cir. 2023) ........ 25

Mullins v. City of New York,

626 F.3d 47 (2d Cir. 2010) ................................... 23

National Black Police Ass’n v. District of Columbia,

108 F.3d 346 (D.C. Cir. 1997) .............................. 51

viii

Northern Cheyenne Tribe v. Jackson,

433 F.3d 1083 (8th Cir. 2006) .................. 37, 44, 49

People Against Police Violence v. City of Pittsburgh,

520 F.3d 226 (3d Cir. 2008) ................................. 31

Real Truth About Obama, Inc. v. Federal Elec.

Comm’n, 575 F.3d 342 (4th Cir. 2009) ................ 10

Rector v. City & Cnty. of Denver,

348 F.3d 935 (10th Cir. 2003) .............................. 28

In re Revel AC, Inc., 802 F.3d 558 (3d Cir. 2015) ..... 25

Rhodes v. Stewart, 488 U.S. 1 (1988) ....................... 35

Roberts v. Neace, 65 F.4th 280 (6th Cir. 2023)......... 38

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

683 F.3d 903 (8th Cir. 2012) ................................ 48

Select Milk Producers, Inc. v. Johanns,

400 F.3d 939 (D.C. Cir. 2005) ...... 25, 35, 38, 40, 47

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

910 F.3d 544 (1st Cir. 2018) ................................ 47

Singer Mgmt. Consultants, Inc. v. Milgram,

650 F.3d 223 (3d Cir. 2011) ................ 14, 31-32, 48

Smyth ex rel. Smyth v. Rivero,

282 F.3d 268 (4th Cir. 2002) .......................... 10, 24

Sole v. Wyner,

551 U.S. 74 (2007) ............... 2, 3, 14, 19, 24, 27, 33,

34, 36, 38, 39, 45

Soon Hing v. Crowley, 113 U.S. 703 (1885) .............. 42

Stanley v. University of S. Cal.,

13 F.3d 1313 (9th Cir. 1994) ................................ 23

Starbucks Corp. v. McKinney, __ U.S. __,

2024 WL 2964141 (June 13, 2024) ................ 24, 34

Stinnie v. Holcomb,

396 F. Supp. 3d 653 (W.D. Va. 2019) .. 9, 32, 43, 51

Stinnie v. Holcomb,

734 Fed. Appx. 858 (4th Cir. 2018) ................... 5, 6

Stinnie v. Holcomb, No. 3:16-cv-44, 2017

WL 963234 (W.D. Va. Mar. 13, 2017) ............. 5, 29

Supreme Ct. of Va. v. Consumers Union

of the U.S., Inc., 446 U.S. 719 (1980) .................. 20

Taniguchi v. Kan Pac. Saipan, Ltd.,

566 U.S. 560 (2012) .............................................. 18

Tennessee State Conf. of NAACP v. Hargett,

53 F.4th 406 (6th Cir. 2022) .......................... 35, 38

Tenney v. Brandhove, 341 U.S. 367 (1951)............... 42

Texas State Teachers Ass’n v. Garland Indep.

Sch. Dist., 489 U.S. 782 (1989) .......... 19, 22, 33, 46

Trump v. Hawaii, 585 U.S. 667 (2018) ..................... 31

Tully v. Okeson, 78 F.4th 377 (7th Cir. 2023) .......... 26

United States v. Hansen, 599 U.S. 762 (2023) ......... 18

University of Tex. v. Camenisch,

451 U.S. 390 (1981) ........................ 3, 23, 24, 26, 34

Uzuegbunam v. Preczewski, 592 U.S. 279 (2021) ..... 52

Valero Terrestrial Corp. v. Paige,

211 F.3d 112 (4th Cir. 2000) ................................ 50

West Va. Univ. Hosps., Inc. v. Casey,

499 U.S. 83 (1991) ................................................ 16

Winter v. Natural Resources Defense Council, Inc.,

555 U.S. 7 (2008) ............................................ 10, 25

Withrow v. Larkin, 421 U.S. 35 (1975) ..................... 34

Young v. City of Chicago,

202 F.3d 1000 (7th Cir. 2000) .............................. 44

Statutes

5 U.S.C. § 552 ............................................................ 54

28 U.S.C. § 1254 .......................................................... 1

28 U.S.C. § 2412 ........................................................ 16

42 U.S.C. § 1983 ........................................................ 52

42 U.S.C. § 1988 ................................................ 1, 2, 18

Alaska National Interest Lands

Conservation Act, 16 U.S.C. § 3117 .................... 16

Equal Access to Justice Act,

5 U.S.C. § 504 ....................................................... 16

Fair Housing Act, 42 U.S.C. § 3612 .......................... 16

Va. Code § 19.2-354 ................................................. 4, 5

Va. Code § 19.2-354.1 .................................................. 4

Va. Code § 19.2-355 ..................................................... 4

Va. Code § 46.2-395 (2017) ................................ 4, 5, 29

Other Authorities

2 The Compact Edition of the Oxford

English Dictionary (1971) .................................... 18

3 Bouvier’s Law Dictionary (8th ed. 1914) ............... 18

Ballentine’s Law Dictionary (3d ed. 1969) ............... 18

Black’s Law Dictionary (4th rev. ed. 1968) ........ 17, 33

Black’s Law Dictionary (7th ed. 1999)...................... 17

11A Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure,

§ 2949 (3d. ed. 2024) ..................... 23-26, 36, 39, 40

Dave Ress, Virginia Licenses Won’t Be

Suspended for Unpaid Fines,

Virginian-Pilot (Feb. 28, 2020) .............................. 9

Fatma Marouf et al., Justice on the Fly:

The Danger of Errant Deportations,

75 Ohio St. L.J. 337, 385 (2014) .......................... 30

Fed. R. Civ. P. 65 ................................................. 26, 52

H.J. Res. 69, Va. Gen. Assemb. (Reg. Sess.

2016), https://tinyurl.com/5e3td8tt ....................... 8

7 James William Moore et al.,

Moore’s Federal Practice (2d ed. 1994) ................ 36

Jimmy O’Keefe, Bill Preventing License

Suspension Over Court Debt Unanimously

Passes Va. Senate, Capital News Serv.

(Feb. 12, 2020), https://tinyurl.com/mrxcye4y .... 43

Laura C. Tharney et al., Legislation and Law

Revision Commissions: One Option for the

Management and Maintenance of EverIncreasing Bodies of Statutory Law,

41 Seton Hall Legis. J. 329 (2017)....................... 51

Legal Aid Justice Center, Driven by Dollars: A

State-by-State Analysis of Driver’s License

Suspension Laws for Failure to Pay Court Debt

(Fall 2017), https://tinyurl.com/388ravb4. ............ 5

Merriam-Webster’s Collegiate Dictionary

(10th ed. 1993)...................................................... 18

Ronald J. Ventola II & Samuel W. Silver, The Value

of First Impressions, 7 Landslide 8 (2014) .......... 30

S. Doc. No. 1, Va. Gen. Assemb. (Reg. Sess. 2017),

https://tinyurl.com/5n7yx6rn ................................. 8

S. Rep. 94-1011, reprinted in 1976

U.S.C.C.A.N. 5908................................................ 21

Thomas R. Lee, Preliminary Injunctions

and the Status Quo, 58 Wash. Lee L.

Rev. 109 (2001) ..................................................... 39

Va.’s Legis. Info. Sys., H.B. 1700 (Reg. Sess. 2019),

https://tinyurl.com/2fc3v9j6 ................................... 9

Va.’s Legis. Info. Sys., S.B. 1 (Reg. Sess. 2020),

https://tinyurl.com/msxk6x2u ................................ 9

Va.’s Legis. Info. Sys., S.B. 1280 (Reg. Sess. 2017),

https://tinyurl.com/2y6hkvrc ................................. 8

OPINIONS BELOW

The Fourth Circuit’s en banc opinion (Pet.App.1a70a) is reported at 77 F.4th 200. The Fourth Circuit’s

prior panel opinion (Pet.App.73a-92a) is reported at

37 F.4th 977. The district court’s opinion denying attorney’s fees (Pet.App.95a-106a) is not reported but is

available at 2021 WL 2292807 (W.D. Va. June 4,

2021).

JURISDICTIONAL STATEMENT

The en banc Fourth Circuit entered judgment on

August 7, 2023. Petitioner timely filed a petition for

certiorari by extension on November 20, 2023, which

this Court granted. The Court has jurisdiction under

28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISION

The Civil Rights Attorney’s Fees Awards Act of

1976, as amended, provides in pertinent part:

In any action or proceeding to enforce a

provision of section[] . . . 1983 . . . of this

title, . . . 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).

INTRODUCTION

The plain text of Section 1988 and this Court’s

precedent demonstrate that a preliminary injunction

does not render a party “the prevailing party” eligible

for an award of attorney’s fees. 42 U.S.C. § 1988(b).

The Fourth Circuit erred in holding otherwise.

The plain meaning of “prevailing party” in feeshifting statutes is the party that ultimately prevails

“on the merits” in the litigation or obtains a final judgment in its favor. Sole v. Wyner, 551 U.S. 74, 77

(2007). The party must obtain an “enduring,” id. at 86,

and “judicially sanctioned change in the legal relationship of the parties,” Buckhannon Bd. & Care Home,

Inc. v. West Va. Dep’t of Health & Human Res., 532

U.S. 598, 605 (2001).

Preliminary injunctions bear none of these hallmarks. They are not a determination on the merits or

a final judgment. Rather, they merely predict the

“probability of ” the party’s “ultimate success.” Sole,

551 U.S. at 84. They do so at the outset of the case,

based on abbreviated procedures and an incomplete

evidentiary record. Such unreliable predictions of success do not justify fee awards against defendants who

may well have never violated the law. “Section 1988

simply does not create fee liability where merits liability is non-existent.” Kentucky v. Graham, 473 U.S.

159, 165 (1985). A defendant may be liable for fees

only once a court has conclusively held that the defendant is liable on the merits or entered final judgment against it.

Preliminary injunctions are also not an enduring

and judicially sanctioned change in the parties’ legal

relationship. Preliminary injunctions are, by design,

“fleeting” and “ephemeral.” Sole, 551 U.S. at 83, 86.

They are intended only “to preserve the relative positions of the parties until a trial on the merits can be

held.” University of Tex. v. Camenisch, 451 U.S. 390,

395 (1981). This Court has rejected the “catalyst theory,” which treated a plaintiff as the prevailing party

if its lawsuit caused “a voluntary change in the defendant’s conduct.” Buckhannon, 532 U.S. at 601. Yet

the Fourth Circuit’s rule treats a plaintiff as a prevailing party when a “nonjudicial” act—such as repeal of

the challenged law—moots a case. Id. at 606. This rule

is little more than “a new spin on the catalyst theory.”

Pet.App.62a (Quattlebaum, J., dissenting).

A bright-line rule that preliminary injunctions do

not confer prevailing-party status also comports with

this Court’s repeated holdings that fee-shifting standards must be readily administrable. Buckhannon, 532

U.S. at 609-10. The Fourth Circuit and other circuits,

by contrast, have created fact-intensive and unpredictable standards that often lead to a “second major

litigation” over fee eligibility. Id. at 609. These rules

also create perverse incentives for defendants not to

change challenged laws, and to continue litigating to

final judgment, unnecessarily burdening the judicial

system. This Court should reverse.

STATEMENT OF THE CASE

Respondents’ challenge to Virginia

Code § 46.2-395

Under Section 46.2-395 of the Virginia Code, payment of fines, court costs, restitution, and penalties

assessed against defendants for violating Virginia law

was a condition of driving a motor vehicle. Va. Code

§ 46.2-395(A) (2017) (repealed 2020). Virginia courts

provided opportunity for hearings before assessing

these sums and provided notice that defendants’ failure to pay could result in suspension of their driver’s

licenses. J.A.355, 370 (citing Va. Code § 46.2-395). Defendants could petition the court to restore their driving privileges and enter a deferred or installment payment plan, based on their “financial condition.” Va.

Code §§ 19.2-355, 19.2-354, 19.2-354.1. Defendants

could petition the court for a modification “at any time

during the duration of a payment agreement.” Id.

§ 19.2-354.1. Courts also notified defendants of the option to provide community service hours in lieu of payment. Id. § 19.2-354(C).

If the defendant failed to pay court debts, the court

would “suspend the person’s privilege to drive a motor

vehicle on the highways in the Commonwealth.” Id.

§ 46.2-395(B). The clerk of court provided notice to the

defendant of “the suspension of his license . . . effective 30 days from the date of conviction, if the [debt]

is not paid.” Id. § 46.2-395(C). If the defendant failed

to pay within 40 days, the court would notify Virginia’s Department of Motor Vehicles of the suspension. J.A.356.

The Department automatically updated its records

to reflect the license suspension and notified the

driver. J.A.357. The Department’s Commissioner had

“no discretion” to decide whether the license should be

suspended and made no determination as to the

driver’s ability to pay. J.A.362; see Va. Code

§ 46.2-395(C). The Commissioner did not provide a

hearing regarding the suspension. See Va. Code

§ 46.2-395(C). The suspension continued until the

driver paid the fines or costs, id. § 46.2-395(B), or entered into a payment agreement, id. § 19.2-354(I).

Several advocacy organizations lobbied the Virginia General Assembly for years to reform or repeal

Section 46.2-395, contending that the law was poor

policy. Respondents’ counsel, for instance, argued that

the legislature should repeal the law because “driver’s

license suspension is a misguided and counterproductive tool for collecting court debt.” Legal Aid Justice

Center, Driven by Dollars: A State-by-State Analysis

of Driver’s License Suspension Laws for Failure

to Pay Court Debt 10-11 (Fall 2017), https://tinyurl.com/388ravb4.

Respondents’ counsel pursued litigation in addition to their lobbying strategy. They filed a putative

class action lawsuit against the Commissioner of the

Department of Motor Vehicles on behalf of four named

plaintiffs, challenging the statute’s constitutionality.

Stinnie v. Holcomb, 734 Fed. Appx. 858, 860 (4th Cir.

2018). The district court dismissed the original complaint without prejudice, holding that it lacked jurisdiction because, as drafted, the complaint challenged

orders issued by state courts. Stinnie v. Holcomb, No.

3:16-cv-44, 2017 WL 963234, at *1 (W.D. Va. Mar. 13,

2017). Although the dismissal was without prejudice,

the plaintiffs attempted to appeal rather than amend

their complaint, and the Fourth Circuit dismissed

their appeal for lack of appellate jurisdiction. Stinnie,

734 Fed. Appx. at 858.

Respondents’ counsel then filed an amended complaint on behalf of a largely new group of plaintiffs

and moved for a preliminary injunction. J.A.71-76.

Respondents claimed, among other things, that the

Commissioner violated their procedural due process

rights by not providing a hearing on their ability to

pay the court debts before suspending their licenses.

J.A.71-73. Respondents also claimed that the statute

violated the Equal Protection Clause because it lacked

an indigency exception. J.A.116-17.

The Commissioner opposed the motion, explaining

that he automatically updated driving records to reflect license suspensions pursuant to state court orders. J.A.156-57. Further, the state court provided extensive procedural safeguards in issuing those orders,

including the sentencing hearing and the ability to petition the court for a payment plan or alternative community service. J.A.163. An additional hearing before

the Commissioner in which Respondents could raise

their alleged indigency “would add virtually nothing

to the procedural safeguards already in place,” particularly given that indigency was not relevant to the

Commissioner’s obligation to update driving records

to reflect the court’s license suspension. Ibid.

The district court granted a preliminary injunction

in 2018. It held that, “[b]ased on the current record,”

Respondents were likely to succeed on the merits of

the procedural due process claim “because the Commissioner suspends licenses without an opportunity to

be heard,” and the other equitable factors weighed in

Respondents’ favor. J.A.351, 377-78. The district court

noted the availability of state court hearings to “address the underlying conviction and assessment of

costs,” as well as “to reduce or forgive court debt.”

J.A.373-74. The district court, however, held that

these hearings were not constitutionally adequate because the Commissioner had “no mechanisms in place

that allow individuals to be heard regarding their inability to pay court fines and costs” before suspension.

J.A.376. The district court pointed to Fowler v. Johnson, No. 17-11441, 2017 WL 6379676 (E.D. Mich. Dec.

14, 2017), which “grant[ed] a preliminary injunction

enjoining . . . an allegedly unconstitutional license

suspension scheme based only on the likelihood of success on plaintiffs’ due process claim.” J.A.376-77 n.9.

The district court noted that Respondents had not

shown a “‘certainty of success.’” J.A.367. Rather, it

held that Respondents appeared “likely to succeed” on

their due process claim, based on what it predicted Respondents were “likely to show” at “trial.” J.A.368,

372, 376. The district court preliminarily enjoined the

Commissioner to remove the suspensions of the five

Respondents’ driver’s licenses and not to enforce the

statute against Respondents without providing a

hearing. J.A.381.

II.

The Virginia General Assembly repeals

Section 46.2-395, mooting the lawsuit

Following the 2019 election, the General Assembly

repealed Section 46.2-395 in its entirety, thereby

mooting Respondents’ claims.

Political pressure for the repeal had been building

for years. Before Respondents filed suit, the General

Assembly established a joint committee to study the

statute, remarking that “the possession of a valid

driver’s license is often essential for persons to secure

and maintain employment,” and therefore “the use of

license suspension as a collection method may in fact

adversely affect the ability to collect unpaid fines and

costs.” H.J. Res. 69, Va. Gen. Assemb. (Reg. Sess.

2016), https://tinyurl.com/5e3td8tt.

Both before and after the dismissal of Respondents’ first complaint and appeal, the General Assembly considered bills to repeal Section 46.2-395. Despite

broad support from legislators and the Governor, a

2017 repeal bill failed because the leadership of a subcommittee opposed it and indefinitely postponed its

consideration. See S. Doc. No. 1, at 9, Va. Gen. Assemb. (Reg. Sess. 2017), https://tinyurl.com/5n7yx6rn;

Va.’s Legis. Info. Sys., S.B. 1280 (Reg. Sess. 2017),

https://tinyurl.com/2y6hkvrc. After subsequent repeal

efforts also failed in subcommittee, then-Governor

Ralph Northam proposed budget language, which the

full General Assembly overwhelmingly passed in

2019, suspending enforcement of Section 46.2-395 for

one year. Va.’s Legis. Info. Sys., H.B. 1700 at Amendment 33 (Reg. Sess. 2019), https://tinyurl.com/

2fc3v9j6.

With enforcement of the statute paused, and potential for a permanent repeal in the next legislative

session, the district court stayed the case in 2019 over

Respondents’ objection. J.A.52. The court held that

the legislature’s vote to suspend enforcement “indicates political hostility towards § 46.2-395.” Stinnie v.

Holcomb, 396 F. Supp. 3d 653, 658 (W.D. Va. 2019).

As a matter of “judicial restraint,” the court concluded

that it should not unnecessarily “weigh in on sensitive

constitutional questions about license suspension

schemes about which other courts have disagreed.” Id.

at 660.

A different political party then “took control” of the

General Assembly following the 2019 election. Dave

Ress, Virginia Licenses Won’t Be Suspended for Unpaid Fines, Virginian-Pilot (Feb. 28, 2020), https://tinyurl.com/5avdbnec. The election led to new subcommittee leadership, including in the subcommittee that

had repeatedly blocked prior repeal bills. Ibid. The

General Assembly then permanently repealed Section

46.2-395 in 2020. Va.’s Legis. Info. Sys., S.B. 1 (Reg.

Sess. 2020), https://tinyurl.com/msxk6x2u.

Respondents stipulated that the General Assembly’s decision to “eliminate[] § 46.2-395 from the Code

of Virginia” mooted their claims. Pet.App.80a. The

district court dismissed the case, retaining jurisdiction only to consider attorney’s fees. J.A.420-21.

III.

Respondents seek attorney’s fees

Respondents sought attorney’s fees under 42

U.S.C. § 1988(b), claiming to be “prevailing parties”

based on the preliminary injunction. J.A.422-23. The

district court denied Respondents’ request for attorney’s fees under Smyth ex rel. Smyth v. Rivero, 282

F.3d 268, 276 (4th Cir. 2002), which established “a

bright line rule that preliminary injunction awardees

are not prevailing parties.” Pet.App.105a. Smyth held

that a preliminary injunction is “best understood as a

prediction of a probable, but necessarily uncertain,

outcome,” and is an “unhelpful guide to the legal determination of whether a party has prevailed.” 282

F.3d at 276-77.

The district court rejected Respondents’ argument

that Winter v. Natural Resources Defense Council,

Inc., 555 U.S. 7 (2008), which postdated Smyth, directly undermined its reasoning. Pet.App.103a. Winter clarified that preliminary injunctions require a

likelihood of success on the merits, causing the Fourth

Circuit to modify its prior precedent that a particularly strong equitable showing could be sufficient.

Pet.App.104a; see Real Truth About Obama, Inc. v.

Federal Elec. Comm’n, 575 F.3d 342, 346-47 (4th Cir.

2009). But many preliminary injunction rulings had

already required likelihood of success, and Smyth

“clearly considered—and rejected—[Respondents’] argument that some preliminary injunctions are sufficiently based on the merits to serve as a basis for an

award of attorneys’ fees.” Pet.App.103a-04a (quotation marks omitted).

Respondents appealed. A panel of the Fourth Circuit unanimously affirmed, holding that Smyth

barred Respondents’ request for attorney’s fees.

Pet.App.76a. It concluded that Respondents’ “argument that Smyth is untenable considering the

changed merits standard following Winter is unpersuasive.” Pet.App.83a-84a. Smyth “primarily turned

on the nature of preliminary injunctions—which remains unchanged—not the standard for obtaining a

preliminary injunction.” Ibid.

The Fourth Circuit then granted rehearing en

banc, overruled Smyth, and reversed. Pet.App.1a-58a.

In place of Smyth’s bright-line rule, the majority imposed a new standard: “[w]hen 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.” Pet.App.22a.

The majority remarked that Smyth was “a complete outlier” among the circuits. Pet.App.5a. “Every

other circuit to consider the issue,” the majority observed, “has held that a preliminary injunction may

confer prevailing party status in appropriate circumstances.” Ibid. The majority hypothesized that Smyth

“allow[s] government defendants to game the system”

by “freely litigat[ing] [a] case through the preliminary

injunction phase” and then strategically mooting

it before a merits ruling to “avoid paying fees.”

Pet.App.21a.

The majority then considered two “recurrent questions” that arose when departing from “Smyth’s

bright-line rule.” Pet.App.23a. First, the Fourth Circuit majority considered when relief from a preliminary injunction is “sufficiently on the merits to justify

prevailing party status.” Pet.App.27a. The majority

held that a prediction of “likely” success suffices.

Pet.App.28a. And because all preliminary injunctions

require a “likelihood” of success under Winter, the

court concluded that “all preliminary injunctions”

should qualify as “solidly merits-based.” Ibid.

Second, the majority considered when the “courtordered change” from a preliminary injunction is sufficiently “enduring” to confer prevailing-party status.

Pet.App.31a. It held that the change is sufficiently

“enduring” when a preliminary injunction “provid[ed]

concrete, irreversible . . . benefits that the plaintiffs

sought” during “the time it remained in effect,” if the

case subsequently becomes moot. Pet.App.25a. The

court stated that “status quo injunctions” do “not satisfy this standard.” Pet.App.26a. It held that a preliminary injunction can confer prevailing-party status,

however, regardless of whether the case becomes moot

due to the “passage of time,” or a nonjudicial act such

as legislative repeal. Pet.App.32a-33a.

Judge Quattlebaum, joined by three other judges,

dissented. The dissent explained that “the majority’s

decision misconstrues the meaning of ‘prevailing

party’ under § 1988(b) and strays from Supreme Court

precedent,” whereas “Smyth is faithful to both.”

Pet.App.42a. And while other circuits disagreed with

Smyth, “[t]here is no unanimity of the circuit courts”:

the circuits “have announced fact-specific standards

that are anything but uniform.” Pet.App.68a-69a

(quoting Dearmore v. City of Garland, 519 F.3d 517,

521-22 (5th Cir. 2008)).

The dissent disagreed with the majority as to both

recurring questions. First, the dissent reasoned that

to confer prevailing-party status, “the judicial decision

must resolve at least one issue on the merits,” which

“means deciding who ultimately wins.” Pet.App.57a58a. By contrast, a “likelihood of success” ruling “only

predicts the outcome of a future decision,” and “does

not definitively decide the merits of anything.”

Pet.App.61a. Therefore, “preliminary injunctions—by

their very nature—are insufficient to confer prevailing party status,” because “showing a likelihood of

success on the merits is a far cry from the ‘actual success’” required to prevail. Pet.App.60a-61a.

Second, the dissent explained that a prevailing

party “must obtain enduring judicially-sanctioned relief.” Pet.App.47a. A preliminary injunction is not sufficiently “enduring” because it does not order any “permanent relief.” Pet.App.62a-64a. Rather, although

Respondents “ultimately got what they wanted,” “they

did not get what they wanted because a federal court

decided the merits of their challenge,” but because the

Virginia legislature repealed the law. Pet.App.62a.

The repeal “lacks the necessary judicial imprimatur

on the change.” Pet.App.64a (quoting Buckhannon,

532 U.S. at 605).

This Court granted a writ of certiorari. 144 S. Ct.

1390.

SUMMARY OF ARGUMENT

Section 1988 does not permit fee awards based

only on a preliminary injunction.

First, preliminary injunctions do not provide the

required “relief on the merits.” Sole, 551 U.S. at 82.

The statute’s plain text and this Court’s precedents

require that a plaintiff must obtain an actual ruling

on the merits or a final judgment in its favor to “prevail” under Section 1988. A plaintiff cannot prevail

based solely on an inherently unreliable prediction of

“likely” future success. Because preliminary injunctions are not a conclusive merits ruling or final judgment, they cannot confer prevailing-party status. Alternatively, a preliminary injunction could confer prevailing-party status only in a rare instance in which a

court could properly issue a conclusive merits ruling

at that stage. See, e.g., Singer Mgmt. Consultants, Inc.

v. Milgram, 650 F.3d 223, 229-30 (3d Cir. 2011) (en

banc). This is not such a rare case; the preliminary

injunction here was based only on an unreliable prediction of likely future success.

Second, preliminary injunctions do not confer prevailing-party status because they do not create an “enduring change in the [parties’] legal relationship.”

Sole, 551 U.S. at 86 (alterations and quotation marks

omitted). Preliminary injunctions, by their very nature, are temporary. A fee award is especially inappropriate in cases, like this one, that are mooted by “a

nonjudicial alteration of actual circumstances.” Buckhannon, 532 U.S. at 606 (quotation marks omitted).

Any enduring change comes not from the court’s order, but from the legislature’s decision to repeal the

challenged law, and therefore lacks the required “judicial imprimatur.” Id. at 605.

Third, a bright-line rule that preliminary injunctions do not confer prevailing-party status provides

the necessary “ready administrability” of fee-shifting

determinations. Buckhannon, 532 U.S. at 610. By contrast, the “factbound” standards that many circuits

have adopted are complex and unpredictable, often requiring a “second major litigation.” Id. at 609. These

standards also create perverse incentives not to

change a challenged law even if the government would

otherwise prefer to do so. Further, the Fourth Circuit’s concerns about “gamesmanship” are misplaced:

strategic attempts to moot a case between a preliminary injunction ruling and a merits ruling are generally impracticable, particularly where the case becomes moot because an independent branch of government repeals the challenged law.

ARGUMENT

Respondents did not prevail “on the

merits”

The statute’s plain language and

this Court’s precedents demonstrate that Section 1988 requires

a conclusive ruling on the merits

or final judgment

1. To prevail, a party must obtain a conclusive ruling on the merits of at least one claim, or a final judg-

ment, not merely a prediction of “likely” future success. This is the “clear meaning of ‘prevailing party.’”

Buckhannon, 532 U.S. at 610.

Under the “bedrock principle known as the American Rule,” which “has roots in our common law reaching back to at least the 18th century,” each party “pays

his own attorney’s fees, win or lose, unless a statute

or contract provides otherwise.” Baker Botts L.L.P. v.

ASARCO LLC, 576 U.S. 121, 126 (2015). Congress has

authorized the award of attorney’s fees to the “prevailing party” in numerous statutes, including Section 1988. 1

The key statutory language is “‘prevailing party,’

a legal term of art.” Buckhannon, 532 U.S. at 603; see

id. at 610 (Scalia, J., concurring) (“‘Prevailing party’

is not some newfangled legal term invented for use in

late-20th-century fee-shifting statutes.”). Legal

“terms of art ‘depart from ordinary meaning’” when

used in a statute and are thus interpreted according

to their “distinctly legal meaning.” Borden v. United

States, 593 U.S. 420, 434-35 (2021) (quoting West Va.

Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 92 n. 5

(1991)).

When Congress enacted Section 1988, the term of

art “prevailing party” was consistently defined to re-

1 See also, e.g., Equal Access to Justice Act, 5 U.S.C.

§ 504(a)(1); 28 U.S.C. § 2412(b); Alaska National Interest Lands

Conservation Act, 16 U.S.C. § 3117(a); Fair Housing Act, 42

U.S.C. § 3612(p).

quire a conclusive ruling on the merits or final judgment. Black’s Law Dictionary contemporaneously defined “prevailing party” as “[t]he party ultimately prevailing when the matter is finally set at rest.” Black’s

Law Dictionary 1352 (4th rev. ed. 1968) (emphasis

added); see Buckhannon, 532 U.S. at 603 (relying on

Black’s Law Dictionary definition of “prevailing

party”). 2 Black’s Law Dictionary further explained

that whether a party prevails “does not depend upon

the degree of success at different stages of the suit,”

but on the outcome “at the end of the suit.” Black’s

Law Dictionary 1352 (4th rev. ed. 1968). Thus, the

prevailing party is “[t]hat one of the parties to a suit

who successfully prosecutes the action . . . . The one in

whose favor the decision or verdict is rendered and

judgment entered.” Ibid. Interlocutory or preliminary

victories, however significant, do not confer prevailing-party status.

Other contemporary legal dictionaries set forth

substantially the same definition. For instance, Ballentine’s provided that “[t]o be a prevailing party does

not depend upon the degree of success at different

stages of the suit; but upon whether at the end of the

suit or other proceeding, the party, who has made a

claim against the other, has successfully maintained

2 Buckhannon considered a different edition of Black’s, applicable when the statute at issue there was enacted. 532 U.S. at

603. That edition similarly defines “prevailing party” as “a party

in whose favor a judgment is rendered, regardless of the amount

of damages awarded.” Ibid. (alteration omitted) (quoting Black’s

Law Dictionary 1145 (7th ed. 1999)).

it.” Ballentine’s Law Dictionary 985 (3d ed. 1969).

Bouvier’s likewise limited “prevailing party” to the

party who, “at the end of the suit,” had “successfully

maintained” its claim. 3 Bouvier’s Law Dictionary

2682 (8th ed. 1914). 3 Contemporary legal dictionaries

therefore demonstrate that when Congress enacted

Section 1988, the “prevailing party” was the party

who had obtained a conclusive ruling on the merits or

a final judgment in its favor.

The statute’s use of the phrase “the prevailing

party”—rather than a prevailing party—provides a

further textual indication that the prevailing party

must obtain a conclusive victory. 42 U.S.C. 1988(b).

The definite article “the” further shows that only one

side can “prevail” on a claim. See Merriam-Webster’s

Collegiate Dictionary 1221 (10th ed. 1993) (“the” indicates “that a following noun . . . is a unique or particular member of its class”); 2 The Compact Edition of

the Oxford English Dictionary 3279 (1971) (“the” ordinarily “refer[s] to an individual object”). Thus, the

plain meaning of “the prevailing party” is the party

who obtains a conclusive merits ruling or final judgment in its favor.

3 This Court has relied upon Ballentine’s and Bouvier’s Law

Dictionaries as authorities on the meaning of legal terms of art.

See, e.g., Kellogg Brown & Root Servs., Inc. v. United States ex

rel. Carter, 575 U.S. 650, 659 (2015) (citing Ballentine’s); Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 567 (2012) (citing Ballentine’s); United States v. Hansen, 599 U.S. 762, 772 (2023) (citing Bouvier’s); Cuomo v. Clearing House Ass’n, L.L.C., 557 U.S.

519, 526 (2009) (citing Bouvier’s).

2. This same plain meaning can also be “distilled

from [this Court’s] prior cases.” Buckhannon, 532 U.S.

at 603. A substantial body of this Court’s precedent

defines when a litigant is the prevailing party. The

“touchstone” requirement is a “material alteration of

the legal relationship of the parties.” Texas State

Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.

782, 792-93 (1989). This “material alteration” must result from “relief on the merits” or a final judgment.

Sole, 551 U.S. at 82. This Court has held that “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.” Buckhannon, 532 U.S. at

604 (quoting Garland, 489 U.S. at 792-93); see Farrar

v. Hobby, 506 U.S. 103, 113 (1992) (“No 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.”). 4

This Court has also consistently held that “liability

on the merits and responsibility for fees go hand in

hand.” Graham, 473 U.S. at 165; see Farrar, 506 U.S.

at 109 (same); Independent Fed’n of Flight Attendants

v. Zipes, 491 U.S. 754, 763 (1989) (same). “Section

1988 simply does not create fee liability where merits

4 Buckhannon clarified that only “settlement agreements enforced through a consent decree may serve as the basis for an

award of attorney’s fees.” 532 U.S. at 604 (emphasis added). “Private settlements do not entail the judicial approval and oversight

involved in consent decrees,” and thus lack the necessary judicial

imprimatur. Id. at 604 n.7.

liability is non-existent.” Graham, 473 U.S. at 168;

Supreme Ct. of Va. v. Consumers Union of the U.S.,

Inc., 446 U.S. 719, 738-39 (1980) (denying fees where

immunity barred consideration of merits). Precedents

have repeatedly “emphasized the crucial connection

between liability for violation of federal law and liability for attorney’s fees.” Zipes, 491 U.S. at 762.

Accordingly, this Court has consistently held that

fees are not appropriate in cases where a court has not

resolved the merits. Buckhannon rejected the “catalyst theory,” under which a plaintiff “prevailed” if its

lawsuit caused “a voluntary change in the defendant’s

conduct.” 532 U.S. at 601. “[M]ost Courts of Appeals”—all but one—had adopted the catalyst theory.

Id. at 602. But the Court explained that the theory

would erroneously “abrogate the ‘merit’ requirement

of [this Court’s] prior cases.” Id. at 606. For these reasons, Buckhannon could not “agree that the term ‘prevailing party’ authorizes federal courts to award attorney’s fees” to a plaintiff who files a “nonfrivolous”

lawsuit in which the merits “will never be determined.” Id. at 606.

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

held that a favorable “interlocutory ruling” does not

confer prevailing-party status. Id. at 760. There, the

plaintiff successfully reversed on appeal a ruling that

dismissed his complaint. Id. at 757-58. The plaintiff

obtained no conclusive ruling on the merits; rather,

“[t]he most that he obtained was an interlocutory ruling that his complaint should not have been dismissed.” Id. at 760. And “[t]hat is not the stuff of

which legal victories are made.” Ibid.

Likewise, Hanrahan v. Hampton, 446 U.S. 754

(1980), held that Section 1988 allows interim fee

awards “only to a party who has established his entitlement to some relief on the merits.” Id. at 757. The

legislative history of Section 1988 “described what

were considered to be appropriate circumstances for

such an award by reference to” Bradley v. Richmond

School Board, 416 U.S. 696 (1974), and Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970). See Hanrahan,

446 U.S. at 757. And “[i]n each of those cases the party

to whom fees were awarded had established the liability of the opposing party, although final remedial orders had not been entered.” Ibid. Thus, “a determination of the ‘substantial rights of the parties’ . . . was a

necessary foundation for departing from the usual

rule in this country that each party is to bear the expense of his own attorney.” Id. at 758.

Accordingly, decades of this Court’s precedent

show that a prevailing party “must obtain at least

some relief on the merits of the claim” or “comparable

relief.” Farrar, 506 U.S. at 111. And the only relief this

Court has held to be “comparable” to a conclusive ruling on the merits is a “consent decree.” Ibid. In holding

that the statute allowed fees for consent decrees, this

Court relied “entirely on language in a [Senate] Report” which specifically mentioned consent decrees.

Buckhannon, 532 U.S. at 618 (Scalia, J., concurring);

see also Maher v. Gagne, 448 U.S. 122, 129 (1980); S.

Rep. 94-1011, at 5, reprinted in 1976 U.S.C.C.A.N.

5908, 5912. Although consent decrees “do[] not always

include an admission of liability,” they are comparable

to a judgment on the merits because they constitute a

final “court-ordered ‘change in the legal relationship

between the plaintiff and the defendant.’” Buckhannon, 532 U.S. at 604 (quoting Garland, 489 U.S. at

792) (cleaned up)). The parties are no longer free to

dispute the merits—the defendant has conclusively

consented to a final, judicially sanctioned judgment

against it.

This Court has also long held that courts must consider the “judicial administration of § 1988” in “defining the term ‘prevailing party.’” Garland, 489 U.S. at

791. The Court has accordingly rejected glosses on the

term that would “[c]reat[e] . . . an unstable threshold

to fee eligibility” and “provoke prolonged litigation,

thus deterring settlement of fee disputes and ensuring

that the fee application will spawn a second litigation

of significant dimension.” Ibid. It has defined the term

in light of this critical “interest in ready administrability,” and “the related interest in avoiding burdensome satellite litigation.” City of Burlington v. Dague,

505 U.S. 557, 566 (1992). Here, as discussed further

below, the bright-line rule that preliminary injunctions do not confer prevailing-party status is a rule of

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

610 (quoting City of Burlington, 505 U.S. at 566). By

contrast, the contrary approaches the circuits have

adopted are far from readily administrable, and frequently provoke prolonged litigation. See Section II.B,

infra.

Thus, both the text of the statute and this Court’s

precedents demonstrate that a “prevailing party”

must obtain a conclusive ruling on the merits or final

judgment in its favor as to at least one claim.

A likelihood-of-success ruling

cannot confer prevailing-party

status

1. Preliminary injunctions do not provide the conclusive ruling on the merits or final judgment required to confer prevailing-party status within the

meaning of Section 1988.

A preliminary injunction is a non-binding prediction about the merits, made merely to “preserve the

relative positions of the parties until a trial on the

merits can be held.” Camenisch, 451 U.S. at 395.

These predictions are “not binding at trial on the merits.” Ibid. A preliminary injunction “neither replaces

the trial nor represents an adjudication of the merits.”

11A Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure, § 2949 (3d. ed. 2024) [hereinafter Wright & Miller].

Further, courts award preliminary injunctions at

the beginning of a case, based on “procedures that are

less formal and evidence that is less complete than in

a trial on the merits.” Camenisch, 451 U.S. at 395.

Discovery is limited (or foreclosed altogether), see

Stanley v. University of S. Cal., 13 F.3d 1313 (9th Cir.

1994), and Seventh Amendment jury trial rights are

unavailable, see Federal Sav. & Loan Ins. Corp. v.

Dixon, 835 F.2d 554, 558 (5th Cir. 1987). Courts also

“routinely consider hearsay” or other inadmissible evidence when deciding whether a preliminary injunction is warranted. See Mullins v. City of New York,

626 F.3d 47, 52 (2d Cir. 2010) (collecting cases). And

because preliminary injunctions are designed to avoid

imminent irreparable harm, the parties and court are

often under severe time pressure. Accordingly, the

parties lack “a full opportunity to present their cases,”

Camenisch, 451 U.S. at 396, and the court often must

employ “hasty and abbreviated” procedures, Sole, 551

U.S. at 84. For these reasons, this “preliminary, incomplete examination of the merits” is inherently unreliable. Smyth, 282 F.3d at 276-77 & n.8.

In addition, a likelihood of success on the merits is

a significantly lower bar than ultimate actual success.

Plaintiffs must show only some “probability” of success, Sole, 551 U.S. at 84; they “need not show a certainty of winning,” Wright & Miller § 2948.3. This

merits prediction “by no means represents a determination that the claim . . . will or ought to succeed ultimately; that determination is to be made upon the ‘deliberate investigation’ that follows.” Smyth, 282 F.3d

at 276. Thus, a preliminary injunction “does not definitively decide the merits of anything”—it merely “predicts the outcome of a future decision.” Pet.App.61a

(Quattlebaum, J., dissenting). It is therefore “closely

analogous . . . to the examples of judicial relief deemed

insufficient in Buckhannon,” such as other “interlocutory ruling[s]” that confer “preliminary successes” on

a party. Smyth, 282 F.3d at 275-76.

In several circuits, the “likelihood” bar can be lowered further based on the remaining three equitable

factors: whether the plaintiff “is likely to suffer irreparable harm in the absence of preliminary relief, that

the balance of equities tips in his favor, and that an

injunction is in the public interest.” Starbucks Corp.

v. McKinney, __ U.S. __, 2024 WL 2964141, at *3

(June 13, 2024) (quoting Winter, 555 U.S. at 20).

These circuits hold that a comparatively weak “likelihood of success” suffices under Winter if the equitable

factors “tip[] decidedly in favor of the moving party.”

Green Haven Prison Preparative Meeting of the Religious Soc’y of Friends v. New York State Dep’t of Corr.

& Cmty. Supervision, 16 F.4th 67, 78 (2d Cir. 2021). 5

“[A]lthough a showing that plaintiff will be more severely prejudiced by a denial of the injunction than

defendant would be by its grant does not remove the

need to show some probability of winning on the merits, it does lower the standard that must be met.”

Wright & Miller § 2948.3 (emphasis added). Treating

a preliminary injunction as a ruling on the merits

therefore rests on two fundamental errors: “first collaps[ing] the standard four-factors test for granting

preliminary injunctive relief into one factor—likelihood of success—and then equat[ing] likelihood of success with success.” Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 957 (D.C. Cir. 2005) (Henderson,

J., dissenting).

5 See also In re Revel AC, Inc., 802 F.3d 558, 568-70 (3d Cir.

2015) (“[T]he more likely the plaintiff is to win, the less heavily

need the balance of harms weigh in its favor; the less likely it is

to win, the more need it weigh in its favor” (cleaned up)); Mock v.

Garland, 75 F.4th 563, 587 (5th Cir. 2023) (A “sliding scale is

utilized”); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127,

1134-35 (9th Cir. 2011) (preliminary injunction appropriate

when “serious questions going to the merits were raised and the

balance of hardships tips sharply in the plaintiff’s favor”); Curtis

v. Thompson, 840 F.2d 1291, 1296 (7th Cir. 1988) (plaintiff may

have a sufficient “likelihood” of success “even though a plaintiff

has less than a 50 percent chance of prevailing on the merits”).

Doctrines and rules governing preliminary injunctions reflect the unreliability of the merits prediction.

A preliminary injunction “does not preclude the parties in any way from litigating the merits of the case.”

Wright & Miller § 2962. Rather, “legal and factual rulings made as part of a preliminary-injunction analysis

are not binding upon panels when they later consider

the matter on the merits.” Tully v. Okeson, 78 F.4th

377, 381 (7th Cir. 2023) (citing Camenisch, 451 U.S.

at 395); see Glaxo Grp., Ltd. v. Apotex, Inc., 376 F.3d

1339, 1346 (Fed. Cir. 2004) (similar). The federal rules

require parties seeking a preliminary injunction to

post “security” sufficient to “pay the costs and damages sustained by any party found to have been

wrongfully enjoined or restrained.” Fed. R. Civ. P.

65(c). This rule is specifically designed to protect defendants “against a court order granted without the

full deliberation a trial offers.” Camenisch, 451 U.S. at

397. Because a preliminary injunction is not “a final

judicial decision based on the actual merits of the controversy,” to “equate[] ‘likelihood of success’ with ‘success’” would be “improper.” Id. at 390.

The principle that “[s]tatutes which invade the

common law are to be read with a presumption favoring the retention of long-established and familiar [legal] principles” further confirms that preliminary injunctions do not confer prevailing-party status. Baker

Botts L.L.P., 576 U.S. at 126 (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)). Because awarding attorney’s fees is in derogation of the common law,

fee-shifting statutes must be sufficiently “specific and

explicit” to override the American Rule. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 260

(1975). Section 1988 does not meet that standard with

respect to awarding fees based on preliminary injunctions. See Pet.App.62a (Quattlebaum, J., dissenting).

Thus, “preliminary injunctions—by their very nature—are insufficient to confer prevailing party status.” Pet.App.60a (Quattlebaum, J., dissenting).

2. Multiple cases illustrate the unreliability of preliminary injunction merits predictions. Sole, for instance, reversed an award of fees to a plaintiff who

obtained a preliminary injunction but ultimately lost

the case. 551 U.S. at 86. The preliminary injunction

hearing there was “[h]eld one day after the complaint

was filed and one day before the event” in question.

Id. at 84. Defendants thus had “little opportunity to

oppose” the motion, with “no time for discovery, nor

for adequate review of documents or preparation and

presentation of witnesses.” Ibid. Based on the record

and argument before it, the district court predicted a

“likelihood of success” for the plaintiff. Id. at 82. But

that prediction was wrong. With the benefit of a full

evidentiary record and arguments, the district court

granted summary judgment for defendants. Id. at 80.

Although the plaintiff “won a battle,” she ultimately

“lost the war.” Id. at 86 (alterations omitted).

The preliminary injunction ruling in this case also

shows the unreliability of merits predictions. The district court held that Respondents were “likely to succeed” on their procedural due process claim, on the

ground that the Commissioner did not provide “an opportunity to be heard on the fact of license suspension”

or “inability to pay court fines and costs.” J.A.374, 376.

This merits prediction was incorrect.

The district court pointed to Fowler, 2017 WL

6379676, which had found a likelihood of success on a

highly similar procedural due process claim. J.A.37677 n.9. But six months later, the Sixth Circuit reversed that decision. It explained that, because

“[p]laintiffs’ indigency is not relevant to the state’s underlying decision to suspend their licenses, then giving them a hearing—or any other procedural opportunity—where they can raise their indigency would be

pointless.” Fowler v. Benson, 924 F.3d 247, 259 (6th

Cir. 2019). The requested hearing would be nothing

more than “‘procedure for procedure’s sake,’” which

the Due Process Clause does not require. Ibid. (quoting Rector v. City & Cnty. of Denver, 348 F.3d 935, 943

(10th Cir. 2003)).

The Ninth Circuit also subsequently rejected a

highly similar due process claim. It held that there

was no “basis for concluding that the Constitution required Defendants to consider [plaintiff’s] inability to

pay her traffic debt in deciding to suspend her license

and to continue that suspension.” Mendoza v. Strickler, 51 F.4th 346, 361 (9th Cir. 2022). Rather, “[t]he

procedural aspects of the Due Process Clause do not

require that the State afford a process for evaluating

a factor that, under the applicable substantive law, is

not relevant to the ultimate decision at issue.” Ibid.

For the same reasons, the Commissioner would ultimately have prevailed on the merits here. Virginia

courts assessed the fines and costs at issue, and they

provided an opportunity to be heard both as to that

assessment and as to any request for a payment plan

based on a defendant’s financial hardship. See pp. 4,

6, supra. The statute, however, required the Commissioner automatically to record the court’s suspension

of the defendant’s driver’s license. See p.5, supra; Va.

Code § 46.2-395(B). “[I]ndigency [was] not relevant to

the [Commissioner’s] underlying decision” to record

the license suspensions. Fowler, 924 F.3d at 259. Indeed, the Commissioner had no discretion at all. See

Va. Code § 46.2-395(B) (requiring “the court” to suspend licenses); id. § 46.2-395(C) (requiring court clerk

to send the Commissioner a record “of the license suspension”). 6

6 The district court found that “[w]hen suspension occurs

pursuant to § 46.2-395, neither a judge nor a clerk enters an order suspending the license,” based on testimony from the Charlottesville circuit court clerk at the preliminary injunction hearing. J.A.355. But evidence in the summary judgment record

showed that other Virginia courts had different practices and ordered license suspensions, including of the Respondents’ licenses. See, e.g., Dkt. 196-18 at 27-28, 35-37; Dkt. 204-1, 204-3;

Dkt. 207-3, 207-4, Stinnie v. Holcomb, No. 3:16-cv-44 (W.D. Va.

Jun. 3, 2019); Va. Code § 46.2-395 (when a person defaults on

court debt, “the court shall forthwith suspend the person’s privilege to drive a motor vehicle” (emphasis added)). Thus, this finding illustrates the unreliability of a merits prediction due to the

truncated record available in a preliminary injunction proceeding. See pp. 23-24, supra. In any event, even where a court does

not enter a formal separate order, as the district court stated,

“[t]he Commissioner has no discretion as to whose license is suspended,” but rather simply “records the suspension” based on the

circuit court’s determination that the person defaulted. J.A.362;

see p. 5, supra.

Thus, the Due Process Clause did not require the

Commissioner to “afford a process for evaluating a factor that, under the applicable substantive law, is not

relevant[.]” Mendoza, 51 F.4th at 361; see Fowler, 924

F.3d at 259. An additional hearing before the Commissioner might have made Respondents “feel that [they

have] received more personal attention, but it would

not serve to protect any substantive rights.” Dixon v.

Love, 431 U.S. 105, 114 (1977). The district court erred

in predicting that the Commissioner likely violated

the Due Process Clause by failing to provide a hearing

regarding Respondents’ ability to pay their court

debts—the sole basis on which the district court held

Respondents had a likelihood of success.

Numerous other authorities similarly reflect the

unreliability of preliminary injunction merits predictions. It “is not unusual for courts to deny a permanent injunction to an applicant who was already successful in procuring the exact same injunction on a

preliminary basis,” due to the court’s intervening ability “to thoroughly analyze the alleged facts and applicable law.” Getir US, Inc. v. Doe, No. 1:21-cv-1237,

2023 WL 3898933, at *3 (E.D. Va. June 8, 2023). One

study, for instance, found that several circuits

“granted about twice as many stays” of removal based

on a “likelihood of success” analysis as ultimate relief

on “petitions for review.” Fatma Marouf et al., Justice

on the Fly: The Danger of Errant Deportations, 75

Ohio St. L.J. 337, 385 (2014). Another study found

that in intellectual property cases, “16 percent of the

defendants that were preliminarily enjoined” did not

have an “adverse final judgment.” Ronald J. Ventola

II & Samuel W. Silver, The Value of First Impressions,

7 Landslide 8, 11 (2014). And, of course, this Court

and other appellate courts may disagree with the

lower court on the merits prediction. See, e.g., Trump

v. Hawaii, 585 U.S. 667, 710 (2018) (reversing the

court of appeals’ likelihood of success on the merits determination); Higuchi Int’l Corp. v. Autoliv ASP, Inc.,

103 F.4th 400, 2024 WL 2744687, at *6 (6th Cir. 2024)

(vacating preliminary injunction based on likelihood

of success).

A preliminary prediction of the likelihood of success is simply not the same as an actual ruling on the

merits.

3. Alternatively, if there were ever an appropriate

circumstance where a preliminary injunction could

confer prevailing-party status, it would be only in

“that rare situation where a merits-based determination is made at the injunction stage.” Singer, 650 F.3d

at 229. For example, the Third Circuit has allowed

fees based on a preliminary injunction where a district

court definitively held that the challenged ordinance

“was facially unconstitutional,” enjoined its enforcement, and ordered the defendant to propose a replacement. Id. at 229-30 (discussing People Against Police

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

2008)). In such a case, the party claiming fees has convinced the court that the law was unconstitutional,

not just that it was likely to succeed on the merits, and

the court both enjoined enforcement of the challenged

law and affirmatively created judicially mandated

procedures going forward. Id. at 230.

Even if fees were permitted in such “rare” situations, this case is not one. Respondents never received

a ruling definitively “concluding that the [challenged

law] was facially unconstitutional.” Singer, 650 F.3d

at 229 (cleaned up). Rather, the district court held

that Respondents were “likely to succeed,” based on

what it predicted Respondents were “likely to show”

at “trial.” J.A.368, 372, 376. The district court did not

issue sweeping relief reflecting a conclusive ruling

that the law was facially unconstitutional; rather, it

simply preliminarily enjoined the Commissioner from

enforcing Section § 46.2-395 against the five individual Respondents while the litigation proceeded.

J.A.381. And the district court clearly did not regard

its preliminary injunction ruling as a final decision on

the merits of the constitutional claim. To the contrary,

it held a stay to be appropriate under principles of “judicial economy” and “restraint,” to avoid the need to

“weigh in on sensitive constitutional questions about

license suspension schemes about which other courts

have disagreed.” Stinnie, 396 F. Supp. 3d at 660.

In short, this case involves no more than a typical

preliminary injunction ruling that merely predicts a

likelihood of success. Such a preliminary merits prediction does not render Respondents the prevailing

parties. The judgment below should therefore be reversed.

II.

Respondents did not obtain a judicially

sanctioned “enduring change” in the

parties’ legal relationship

Any enduring change was not judicially sanctioned

Respondents are not prevailing parties for the independent reason that they did not obtain enduring

judicially sanctioned relief. The only enduring change

here had no judicial imprimatur, and the only change

with a judicial imprimatur was not enduring. The

Fourth Circuit’s holding to the contrary is “little more

than a new spin on the catalyst theory” that Buckhannon rejected. Pet.App.62a (Quattlebaum, J., dissenting).

1. The “touchstone” requirement for a “prevailing

party” is a “material alteration of the legal relationship of the parties.” Garland, 489 U.S. at 792-93. This

alteration must be “enduring,” Sole, 551 U.S. at 86,

because whether a party “prevails” depends on the

outcome “at the end of the suit,” not “the degree of success at different stages of the suit,” Black’s Law Dictionary 1352 (4th rev. ed. 1968).

Further, the enduring alteration in the legal relationship between the parties must be “judicially sanctioned.” Buckhannon, 532 U.S. at 605. Buckhannon

specifically prohibited fee awards “where there is no

judicially sanctioned change in the legal relationship

of the parties.” Ibid. It rejected the “catalyst theory,”

under which nearly all circuits had held that a plaintiff was the prevailing party where it “achieved the de-

sired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” Id. at 60001.

Preliminary injunctions do not provide an enduring, judicially sanctioned change in the legal relationship between the parties. Rather, the change preliminary injunctions provide “is, by its very nature, intended to be temporary.” Higher Taste, Inc. v. City of

Tacoma, 717 F.3d 712, 716 (9th Cir. 2013). A preliminary injunction is a procedural device—a placeholder

until a court actually decides the merits. Withrow v.

Larkin, 421 U.S. 35, 43 (1975) (“[A] preliminary injunction is granted a plaintiff to protect his interests

during the ensuing litigation.”); Starbucks, __ U.S. at

__, 2024 WL 2964141, at *4 (The purpose of a preliminary injunction “‘is merely to preserve the relative

positions of the parties until a trial on the merits can

be held.’” (quoting Camenisch, 451 U.S. at 395)). Because preliminary injunctions do not conclusively decide the merits, they are not binding in subsequent

phases of a proceeding. See p. 23, supra. Thus, obtaining a preliminary injunction is merely a “fleeting success.” Sole, 551 U.S. at 83.

Conversely, while repeal of a challenged statute

may cause enduring change for plaintiffs as a practical matter, it is not judicially sanctioned relief. Thus,

the only “lasting change” “did not come from the

court.” Pet.App.62a, 64a (Quattlebaum, J., dissenting). Rather, Respondents here “got what they wanted

because the General Assembly of Virginia decided to

change the law.” Pet.App.62a (Quattlebaum, J., dis-

senting). This Court has “never” held that such a “nonjudicial ‘alteration of actual circumstances’” can supply a basis for awarding attorney’s fees. Buckhannon,

532 U.S. at 606 (citation omitted). The “prevailing

party” must prevail in the litigation.

Accordingly, this Court has held that when “the

judgment . . . is vacated on the basis of an event that

mooted the controversy” on appeal, that order “would

deprive [a plaintiff] of its claim for attorney’s fees under 42 U.S.C. § 1988 . . . because such fees are available only to a [prevailing] party.” Lewis v. Continental

Bank Corp., 494 U.S. 472, 480, 483 (1990); see Rhodes

v. Stewart, 488 U.S. 1, 4 (1988) (rejecting attorney’s

fees under § 1988 because “[t]he case was moot before

judgment issued, and the judgment therefore afforded

the plaintiffs no relief whatsoever”). The “subsequent

mooting of the . . . lawsuit—not by adjudication but by

voluntary regulatory change”—cannot confer prevailing-party status. Select Milk, 400 F.3d at 955-56 (Henderson, J., dissenting). And where “[w]hat mooted the

case was the State-Defendants’ own actions,” then

“[g]ranting the fees . . . promotes the very thing Buckhannon cast aside—the catalyst theory.” Tennessee

State Conf. of NAACP v. Hargett, 53 F.4th 406, 412-13

(6th Cir. 2022) (Nalbandian, J., dissenting); see Advantage Media, L.L.C. v. City of Hopkins, Minn., 511

F.3d 833, 838 (8th Cir. 2008) (“Although [plaintiff]’s

lawsuit resulted in alteration of several potentially

unconstitutional provisions of the [City’s] sign ordinance, the Supreme Court has rejected the ‘catalyst’

theory of fee recovery as a means of attaining prevailing party status.” (citation omitted)). Respondents

“cannot be prevailing parties. Buckhannon is crystal

clear on this point.” Pet.App.62a (Quattlebaum, J.,

dissenting).

2. The Fourth Circuit majority contended that it

was not adopting a catalyst theory because the prevailing-party determination was based “entirely” on

the preliminary injunction, “and not on the General Assembly’s subsequent repeal of § 46.2-395.”

Pet.App.28a. Not so. The majority relied on the repeal

to satisfy the second part of its test: that the claim “becomes moot before final judgment such that the injunction cannot be reversed, dissolved, or otherwise

undone.” Pet.App.36a.

Indeed, the majority had no choice but to rely on

the repeal, because the preliminary injunction itself

did not provide an “enduring change in the [parties’]

legal relationship.” Sole, 551 U.S. at 86 (citation omitted). Rather, the preliminary injunction lost all force

when the district court dismissed the case as moot,

and thus had no “enduring” effect at all. 7 James William Moore et al., Moore’s Federal Practice ¶ 65.07 at

65-144 to 65-145 (2d ed. 1994) (“A preliminary injunction is ipso facto dissolved by a dismissal of the complaint or the entry of a final decree in the cause.”); see

Wright & Miller § 2947 (A “preliminary injunction

normally lasts until the completion of the trial on the

merits, unless it is dissolved earlier[.]”). And absent

the repeal, Respondents’ claims could well have

foundered at summary judgment, at trial, or on appeal, and Respondents would have obtained nothing

more than the “fleeting” relief that Sole held insufficient. 551 U.S. at 83; see p. 27, 34, supra. Thus, “the

relief that the plaintiffs received under the preliminary injunction is every bit as ‘ephemeral’ as the relief

afforded in Sole.” Pet.App.63a (Quattlebaum, J., dissenting).

Because “[t]he majority needs something more”

than the preliminary injunction, it held that a “legislative, not judicial, action” could provide the enduring

change. Pet.App.63a-64a (Quattlebaum, J., dissenting); see Northern Cheyenne Tribe v. Jackson, 433

F.3d 1083, 1086-87 (8th Cir. 2006) (“In the end, the

[plaintiffs] achieved their desired result because of a

regulatory action taken by [the agency] . . . and because of voluntary decisions by the other defendants

. . . . Accordingly, under Buckhannon, the [plaintiffs]

may not be awarded attorneys’ fees as prevailing parties.”). Thus, “either way the majority turns, its conclusion conflicts with Supreme Court precedent”—Respondents obtained no enduring change to the parties’

relationship that was judicially sanctioned.

Pet.App.63a (Quattlebaum, J. dissenting). They are

therefore not prevailing parties.

The circuits’ various contrary

tests are deeply flawed

The Courts of Appeals have adopted a variety of

tests governing when they consider preliminary injunctions to be “enduring change.” Each of these tests

has fundamental conceptual problems. In addition,

under several, the preliminary injunction here would

not qualify as an enduring change.

1. The Fourth Circuit and other circuits ask

whether the preliminary injunction provided “irrevocable” relief “that is not defeasible by further proceedings.” Dupuy v. Samuels, 423 F.3d 714, 719 (7th Cir.

2005); Pet.App.22a, 36a (a preliminary injunction confers prevailing-party status if it provides “concrete

and irreversible judicial relief ”); Select Milk, 400 F.3d

at 948 (same); see Hargett, 53 F.4th at 410 (“[T]he

court’s relief was ‘irrevocable’ [because] as a result of

the preliminary injunction in this case, plaintiffs were

able to conduct voter-registration drives for seven

months[.]”). These circuits contrast such “irrevocable”

relief with “so-called status quo injunctions, which

simply maintain the ‘last uncontested status between

the parties.’” Pet.App.26a; see, e.g., Roberts v. Neace,

65 F.4th 280, 284 (6th Cir. 2023) (contrasting preliminary injunctions that are “final in all but name” with

those that “merely preserved the status quo until time

allowed for a closer look”).

This test is fundamentally flawed. It is unclear

whether it provides any meaningful distinction; if so,

the line is exceedingly difficult to discern. In one

sense, preliminary relief will almost always be “not

defeasible” and “irrevocable,” because subsequent

events cannot change the past: the plaintiff will have

had the benefit of the preliminary relief during the period that the preliminary injunction was in force. The

plaintiff in Sole, for instance, was able to hold a particular demonstration due to the preliminary injunction. Sole, 551 U.S. at 83. Nonetheless, the plaintiff

did not achieve any “enduring change in the [parties’]

legal relationship.” Id. at 86 (citation omitted). To the

contrary, the plaintiff ultimately lost, and the defendant remained free to enforce the challenged law in the

future. Ibid. The Fourth and other circuits would apparently deem this relief “irrevocable” if the case had

become moot before judgment, but any enduring

change would clearly have lacked “judicial imprimatur.” Buckhannon, 532 U.S. at 605.

In addition to its inconsistency with Buckhannon,

this distinction between “status quo” and “irrevocable” preliminary injunctions is extremely difficult to

discern. The Fourth Circuit majority itself, in adopting the test, remarked that “distinguishing between

status quo and non-status quo injunctions—and identifying the ‘last uncontested status between the parties’—often proves difficult.” Pet.App.26a-27a n.8. Indeed, this distinction has been “much, and rightly,

criticized,” often leaving courts “deeply uncertain

what the status quo was before [the] suit.” Chicago

United Indus., Ltd. v. City of Chicago, 445 F.3d 940,

944 (7th Cir. 2006) (Posner, J.) (collecting authorities);

Wright & Miller § 2948 (“It often is difficult to determine what date is appropriate for fixing the status

quo.”); Thomas R. Lee, Preliminary Injunctions and

the Status Quo, 58 Wash. Lee L. Rev. 109, 166 (2001)

(discussing circuit split regarding the standard for

“status quo” injunctions and concluding that “[c]ontinued retention of the hollow inquiry into the nature of

an injunction or its effect on the status quo will give

rise to additional costs without producing any offsetting benefits”).

It is also unclear why the Fourth Circuit concluded

that the preliminary injunction here is not a “status

quo” injunction. The standard definition of the “status

quo” is “‘the last peaceable uncontested status’ existing between the parties before the dispute developed.”

Wright & Miller § 2948. Respondents were contesting

the suspension of their driver’s licenses; thus, the

“‘last peaceable uncontested status’” before the dispute developed was prior to the suspension of their

driver’s licenses. Ibid.; J.A.85. And the preliminary injunction did no more than prevent the suspension of

Respondents’ driver’s licenses while the suit was

pending. See p. 7, supra; J.A.381. The same conceptual gap appears in other cases applying this standard. See, e.g., Select Milk, 400 F.3d at 954-55 (Henderson, J., dissenting) (noting that while the majority

characterized the preliminary injunction as providing

“permanent” relief, it simply “preserve[d] the status

quo” by “restoring the regulatory landscape that existed before the [challenged] Order”).

The Fourth Circuit majority elsewhere suggests

that a “status quo” preliminary injunction is one that

“does not provide some of the benefit the plaintiff ultimately seeks in bringing suit.” Pet.App.26a, 33a34a. It contrasts a “concrete and irreversible” preliminary injunction that provides “precisely the meritsbased relief ” the plaintiff needs “for precisely as long

as she needs it.” Ibid.; see Higher Taste, 717 F.3d at

717 (“[T]he preliminary injunction ended up affording

all the relief that proved necessary.”). Again, it is difficult to discern what line, if any, this test draws.

Nearly every preliminary injunction will provide at

least “some of the benefit” that the plaintiff sought

during the period when the preliminary injunction is

in effect. Pet.App.33a (emphasis added).

If the test compares the extent of the relief that the

plaintiff ultimately sought with the extent of the relief

the preliminary injunction granted, that factor is irrelevant to fee eligibility. Indeed, the majority elsewhere observed that “considerations that bear on the

‘extent of a plaintiff’s success’” have “no relevance to

the legal question before us of whether a party has

prevailed in the first place.” Pet.App.39a-40a & n.13

(citing Hensley v. Eckerhart, 461 U.S. 424, 439-40

(1983)). And it is again unclear why the Fourth Circuit

concluded that the preliminary injunction here satisfied this test when “it gave the plaintiffs so little of

what they wanted”: they obtained “only reinstatement

of their own licenses,” while they ultimately sought

“also class certification, a declaratory judgment that

§ 46.2-395 was unconstitutional, and hence permanent license reinstatement for hundreds of thousands

of Virginians.” Pet.App.39a; see J.A.108-13, 121-22.

In short, the circuits’ attempts to distinguish between preliminary injunctions based on the nature of

relief they grant is contrary to this Court’s precedent

and conceptually incoherent.

2. The Fifth Circuit has a different test, holding

that a preliminary injunction confers prevailing-party

status when it “causes the defendant to moot the action.” Dearmore, 519 F.3d at 524. But this test is

simply a “new spin on the catalyst theory,”

Pet.App.62a (Quattlebaum, J., dissenting): it awards

fees “because the lawsuit brought about a voluntary

change in the defendant's conduct,” Buckhannon, 532

U.S. at 600. The Fifth Circuit contends that its causation requirement “satisfies Buckhannon” because it

mandates that “the defendant moots the plaintiff’s action in response to a court order, not just in response

to the filing of a lawsuit.” Dearmore, 519 F.3d at 524.

But the test has the same central problem: the only

“enduring” change is a “nonjudicial ‘alteration of actual circumstances,’” the defendant’s voluntary

change in conduct. Buckhannon, 532 U.S. at 606 (citation omitted).

And like the catalyst theory, the Fifth Circuit test

improperly “requir[es] analysis of the defendant’s subjective motivations in changing its conduct.” Buckhannon, 532 U.S. at 609. This is the kind of “highly factbound inquiry” that Buckhannon specifically rejected.

Ibid. This inquiry is particularly problematic if applied to parse the subjective motivations of a state legislature, even if the evidence is limited to supposedly

“objective metrics.” Amawi v. Paxton, 48 F.4th 412,

419 (5th Cir. 2022). As an initial matter, because the

legislature is a separate and independent branch of

government, its repeal of a statute should not be

treated as “the defendant . . . moot[ing] the action” at

all. Dearmore, 519 F.3d at 524; see pp. 50-51, infra.

In addition, as this Court has long recognized, because the passage of laws requires the agreement of

numerous legislators, “[t]he diverse character of such

motives . . . precludes all such inquiries [into legislative motive] as impracticable and futile.” Soon Hing v.

Crowley, 113 U.S. 703, 710-11 (1885); see Tenney v.

Brandhove, 341 U.S. 367, 377 (1951) (“The holding of

this Court in Fletcher v. Peck, 6 Cranch 87, 130 . . .

that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned.”); Foreman v. Dallas Cnty., 193 F.3d 314, 321-22 (5th Cir. 1999) (attribution of a “causal connection” between a lawsuit and

a legislative act is a “formidable task” because the legislative process is “fraught with compromises, competing concerns, and unspoken motives”). At best, attempting to determine what “caused” a legislature to

act would be a difficult inquiry, involving careful parsing of the legislative history. That is hardly a recipe

for avoiding a “second major litigation” over fee eligibility. Buckhannon, 532 U.S. at 609.

Respondents also would not be the “prevailing parties” under the Fifth Circuit test. The defendant, Commissioner Lackey, did not moot the action; the General Assembly did. And even if the General Assembly

could somehow be treated as equivalent to “the defendant,” the preliminary injunction did not cause it

to repeal Section 46.2-395. See pp. 8-9, supra. Longrunning repeal efforts, which pre-dated the litigation,

came to fruition when a different political party took

control of a legislative subcommittee. Ibid. Indeed, in

holding a stay appropriate, the district court recognized the “shifting political winds” and mounting “political hostility towards § 46.2-395.” Stinnie, 396 F.

Supp. 3d at 658-59. Respondents’ counsel likewise attributed the repeal to “the new makeup of the General

Assembly” following an election. Jimmy O’Keefe, Bill

Preventing License Suspension Over Court Debt

Unanimously Passes Va. Senate, Capital News Serv.

(Feb. 12, 2020), https://tinyurl.com/mrxcye4y. Further, the General Assembly could have mooted the litigation by simply providing an indigency exception

and associated procedures, see p. 6, supra; instead, it

repealed the statute entirely. That decision was a policy judgment, not a strategic response to the preliminary injunction order. 7

3. The Seventh and Eighth Circuits have adopted

yet a different test, holding that preliminary relief is

“sufficiently akin to final relief on the merits” where

“the party’s claim [for a] permanent injunction is rendered moot by the impact of the preliminary injunction.” Northern Cheyenne Tribe, 433 F.3d at 1086.

This test is satisfied where a preliminary injunction

provided the plaintiffs with “everything [they] asked

for in the lawsuit,” and what mooted the case was this

“court-ordered success and the passage of time.”

Pet.App.19a. For instance, a case may become moot

where the plaintiff sued seeking to hold a particular

event, and the event occurs under the preliminary in-

7 The Fourth Circuit pointed to a letter from the Commissioner to the General Assembly, which it stated “provided significant input on how to structure the repeal” so as to “result in the

pending litigation being dismissed.” Pet.App.21a-22a. But there

is no evidence that this letter—or anything other than the

change to the General Assembly’s political makeup—caused the

repeal. The letter was written years after the sponsor first introduced a repeal measure, see p. 8, supra, and the General Assembly did not adopt the Commissioner’s suggestion relating to the

litigation, see J.A.408-09.

junction. See, e.g., Dupuy, 423 F.3d at 719-20 (discussing Young v. City of Chicago, 202 F.3d 1000 (7th Cir.

2000)).

This test avoids some of the flaws discussed above:

it is far more administrable than the Fourth Circuit

test. See pp. 38-41, supra. It also bears less resemblance to the catalyst theory, because it does not turn

on the suit having caused the defendant voluntarily to

change its conduct. See p. 41-42, supra. Nonetheless,

it still erroneously treats a nonjudicial “alteration of

actual circumstances” as transforming provisional

preliminary relief into an “enduring change.” Buckhannon, 532 U.S. at 606. It also erroneously allows

fees without a conclusive determination of the merits.

See Section I.A, supra. And where a party seeks a preliminary injunction for an imminently planned event,

the preliminary injunction procedures will frequently

be “hasty and abbreviated,” presenting a serious risk

that the preliminary ruling will be incorrect and that

attorney’s fees will punish a defendant for lawful conduct. Sole, 551 U.S. at 84; see pp. 23-24, supra.

In the alternative, if this Court were to adopt a

standard distinguishing preliminary injunctions

mooted only by the passage of time, Respondents here

would not be prevailing parties. What mooted this

case was not only the passage of time, but the General

Assembly’s independent decision to repeal the challenged statute. Any “enduring change” provided by

nonjudicial acts, such as this legislative repeal, lacks

the “judicial imprimatur” Buckhannon requires. 532

U.S. at 605.

As in Buckhannon, this Court should correct the

circuits’ erroneous gloss on “prevailing party.” See 532

U.S. at 602. Respondents obtained no enduring judicially sanctioned relief, and the judgment should be

reversed.

III.

The Fourth Circuit’s remaining contentions are inconsistent with the purposes of Section 1988

Finally, the Fourth Circuit majority’s arguments

that its test is needed to secure Section 1988’s purposes also fail. This Court does not “disregard the

clear legislative language and the holdings of [its]

prior cases on the basis of such policy arguments.”

Buckhannon, 532 U.S. at 610. The Fourth Circuit also

overlooks the critical guidepost of ready administrability, which strongly favors Smyth’s bright-line rule

over its complex and fact-intensive test.

1. Smyth’s bright-line rule that preliminary injunctions do not confer prevailing-party status conforms to the critical requirement that fee-shifting

standards must be readily administrable. See p. 22,

supra. This Court has repeatedly instructed that “[a]

request for attorney’s fees should not result in a second major litigation.” Buckhannon, 532 U.S. at 609

(quoting Hensley, 461 U.S. at 437). Smyth’s bright-line

rule is clear and easy to administer, and will not

“spawn a second litigation.” Garland, 489 U.S. at 791.

By contrast, circuits have adopted dizzyingly complicated inquiries, frequently leading to “‘a second

major litigation.’” Buckhannon, 532 U.S. at 609 (quoting Hensley, 461 U.S. at 437). By their own admission,

courts have “struggled to decide whether the requirements for prevailing-party status are met.” Higher

Taste, 717 F.3d at 715. Many have adopted a “contextual and case-specific inquiry” that is inherently difficult to administer. McQueary v. Conway, 614 F.3d

591, 601 (6th Cir. 2010); see also DiMartile v. Hochul,

80 F.4th 443, 458 (2d Cir. 2023) (“Determining

whether a district court’s grant of interim relief confers prevailing party status under Section 1988 is often a fact-intensive inquiry.”); Dearmore, 519 F.3d at

521 (circuits have “fact-specific standards”).

For instance, many circuits deny fees if preliminary injunction proceedings were “hasty and abbreviated,” Sinapi v. Rhode Island Bd. of Bar Exam’rs, 910

F.3d 544, 551 (1st Cir. 2018), or where there was no

“serious examination” of the merits, Kansas Jud.

Watch v. Stout, 653 F.3d 1230, 1238 (10th Cir. 2011);

see DiMartile, 80 F.4th at 453 (similar). But courts

struggle to draw the line between “hasty and abbreviated” and “thorough” or “serious” examination. The

standard is unpredictable and fact-intensive, turning

on a “constellation of factors,” including the duration

of the briefing schedule and hearing, DiMartile, 80

F.4th at 458, the extent of the evidentiary record, Sinapi, 910 F.3d at 548, and the thoroughness of the district court’s reasoning, Kansas Jud. Watch, 653 F.3d

at 1239. This is “clearly not a formula for ‘ready administrability.’” Buckhannon, 532 U.S. at 610 (citation omitted).

Likewise, courts struggle to define “[h]ow much of

a ‘likelihood of success’ is enough.” Select Milk, 400

F.3d at 957 (Henderson, J., dissenting); see ibid.

(“Will a 75 per cent likelihood do? How about 50 per

cent with a strong public interest showing to boot?”);

Singer, 650 F.3d at 235 n.3 (Roth, J., dissenting) (noting that “courts use a bewildering variety of formulations of the need for showing some likelihood of success” (quotation marks omitted)). Deciding when this

ill-defined threshold has been crossed necessarily “requires close analysis” of the “reasoning underlying the

grant of preliminary relief.” Mastrio v. Sebelius, 768

F.3d 116, 120 (2d Cir. 2014) (citation omitted). This

“contextual and case-specific inquiry” leaves litigants

and appellate courts parsing language in preliminaryinjunction opinions like the text of a statute.

McQueary, 614 F.3d at 601; see, e.g., Dupuy, 423 F.3d

at 722 (“Although certain language in the district

court’s fee order can be read to suggest that the court

had adopted a particular view of the merits of the

case, when the writings of the district court are read

in their totality, we cannot say that they make it sufficiently clear”).

Further, the circuits’ attempts to decide when preliminary injunctions are sufficiently “enduring” have

led to equally thorny and fact-intensive questions. For

instance, some circuits struggle with fraught and

“highly factbound” causation questions. Buckhannon,

532 U.S. at 609; see p. 42, supra. Others face similarly

unpredictable and complex attempts to distinguish

between “stay-put or status quo injunctions” and preliminary injunctions that provide “irrevocable” relief.

Rogers Grp., Inc. v. City of Fayetteville, Ark., 683 F.3d

903, 910 (8th Cir. 2012) (quoting McQueary, 614 F.3d

at 600); see p. 39, supra.

A bright-line rule that preliminary injunctions do

not confer prevailing-party status would eliminate all

these complexities. It would replace the current confusion with a principle of “‘ready administrability,’”

thereby avoiding a “‘second major litigation’” over fee

requests. Buckhannon, 532 U.S. at 609-10.

2. Holding that preliminary injunctions confer prevailing-party status also creates perverse incentives.

It imposes a “disincentive” for a government “to voluntarily change its conduct, conduct that may not be

illegal.” Buckhannon, 532 U.S. at 608. Governmental

defendants or legislatures may want to change a challenged practice or law for reasons independent of the

litigation—for instance, because it has unintended

downsides or costs, or the expected public benefits

have not materialized. See, e.g., Northern Cheyenne

Tribe, 433 F.3d at 1084 (federal agency independently

determined that challenged shooting range “would not

generate necessary public benefits”); Fowler, 924 F.3d

at 262-63 (noting that “[p]erhaps Plaintiffs are right

that the policy [of suspending driver’s licenses due to

unpaid court debt] is unwise, even counterproductive,” but that “misguided laws may nonetheless be

constitutional” (citation omitted)). But potential fee

awards can have heavy impacts on the public fisc,

“‘sometimes even more significant than[] . . . potential

liability on the merits.’” Buckhannon, 532 U.S. at 608

(quoting Evans v. Jeff D., 475 U.S. 717, 734 (1986)).

Thus, “the possibility of being assessed attorney’s fees

may well deter a defendant from altering its conduct.”

Ibid.

It also creates perverse incentives for defendants

to continue litigating when a case could otherwise easily be resolved. Evans, 475 U.S. at 736-37. Such a result would “forc[e] more cases to trial, unnecessarily

burdening the judicial system, and disserving civil

rights litigants.” Ibid.

3. Finally, the Fourth Circuit majority’s concern

that its rule is necessary to prevent governmental

“gamesmanship” is misplaced.

The majority asserts that a bright-line rule would

allow “government defendants to game the system” by

strategically mooting a case before final judgment after a district court grants a preliminary injunction.

Pet.App.21a. But government defendants cannot

“game the system” by repealing laws. Only legislatures can repeal laws, and legislatures are not the defendants in civil rights cases. See, e.g., Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 121 (4th Cir. 2000)

(“[T]he mootness was . . . caused by the state legislature’s amendment of statutory provisions that it had

earlier enacted, and not by the actions of any of the

defendants before this court, all of whom are state executive officials[.]”). These two separate branches of

government are independent of each other and may be

controlled by different parties. They make their own

assessments of both the litigation and the wisdom of

the underlying public policy. The actions of a legislature represent “responsible lawmaking, not manipulation of the judicial process.” American Libr. Ass’n v.

Barr, 956 F.2d 1178, 1187 (D.C. Cir. 1992).

Indeed, repeal of a statute moots a case precisely

because the executive official defendant has no control

over the legislative process; thus, the defendant cannot be said to have voluntarily ceased any conduct.

Board of Trustees of Glazing Health & Welfare Tr. v.

Chambers, 941 F.3d 1195, 1199 (9th Cir. 2019). When

the legislature repeals a challenged law, “the executive branch is in a position akin to a party who finds

its case mooted . . . by ‘happenstance,’ rather than

events within its control.” National Black Police Ass’n

v. District of Columbia, 108 F.3d 346, 353 (D.C. Cir.

1997).

In addition, attempting to coordinate with the legislature to time a repeal strategically will typically be

impracticable, given the pace of litigation and competing demands of the legislative schedule. For instance,

some state legislatures meet only biennially, and others are in session for four months or fewer throughout

the year. See Laura C. Tharney et al., Legislation and

Law Revision Commissions: One Option for the Management and Maintenance of Ever-Increasing Bodies

of Statutory Law, 41 Seton Hall Legis. J. 329, 331-32

(2017). An executive official gambling that the legislature will strategically repeal a law to moot a case between the issuance of a preliminary injunction and a

ruling on the merits is at best making an extremely

risky bet.

Here, for instance, the General Assembly repealed

the challenged statute eighteen months after the district court issued the preliminary injunction. See

pp. 8-9, supra. The repeal mooted the case before a

ruling on the merits only because the district court

granted a stay pending the potential repeal. Stinnie,

396 F. Supp. 3d at 656. Decisions to stay litigation rest

within the sound discretion of district courts, and

courts can deny stay motions that they conclude are

unfair attempts at gamesmanship. See, e.g., Clinton

v. Jones, 520 U.S. 681, 706 (1997) (district court has

“broad discretion to stay proceedings”); Landis v.

North Am. Co., 299 U.S. 248, 254-55 (1936) (power to

stay proceedings “calls for the exercise of judgment,

which must weigh competing interests and maintain

an even balance”). Where appropriate, a district court

also has discretion to “consolidat[e]” preliminary injunction proceedings “with the trial on the merits.”

Fed. R. Civ. P. 65. The court could then enter a permanent rather than preliminary injunction. See, e.g.,

Campaign for Fam. Farms v. Glickman, 200 F.3d

1180, 1189 (8th Cir. 2000); M Welles & Assocs., Inc. v.

Edwell, Inc., 69 F.4th 723, 729 (10th Cir. 2023).

The Fourth Circuit’s concern with gamesmanship

is overblown even where the defendant can unilaterally cease the challenged conduct. This concern “only

materializes in claims for equitable relief.” Buckhannon, 532 U.S. at 608. Defendants cannot moot a claim

for damages by ceasing the challenged conduct, ibid.,

including a claim for “nominal damages,” see Uzuegbunam v. Preczewski, 592 U.S. 279, 283 (2021). Many

government defendants are subject to damages

claims. See, e.g., 42 U.S.C. § 1983. And even for equitable claims, “it is not clear how often courts will find

a case mooted,” as “[i]t is well settled that a defendant’s voluntary cessation” will not moot a case unless

it is “absolutely clear” that the challenged behavior

will not “recur.” Buckhannon, 532 U.S. at 609. Given

the risk that a case will not be mooted, a defendant

has a “strong incentive to enter a settlement agreement, where it can negotiate attorney’s fees and

costs.” Ibid.

Finally, Smyth’s bright-line rule is unlikely to discourage attorneys from “represent[ing] civil rights

plaintiffs in even clearly meritorious actions.”

Pet.App.21a. Buckhannon rejected a highly similar

argument that the catalyst theory was necessary to

avoid “deter[ing] plaintiffs with meritorious but expensive cases from bringing suit,” finding the concern

“entirely speculative.” 532 U.S. at 608. When an attorney brings suit, her ultimate eligibility for fee-shifting

is necessarily uncertain; the plaintiff may never obtain a ruling on the merits, or the ruling may not be

in its favor. See, e.g., Fleischmann Distilling Corp. v.

Maier Brewing Co., 386 U.S. 714, 718 (1967) (observing that the “American rule” exists because “litigation

is at best uncertain”). The possibility that a case may

become moot following a preliminary injunction is just

one uncertainty among many and is unlikely to have

a significant effect upon attorneys’ decisions to sue. In

addition, even if a bright-line rule would “sometimes

den[y] fees to the plaintiff with a solid case,” allowing

fees based on preliminary injunctions would “sometimes reward[] the plaintiff with a phony claim (there

is no way of knowing).” Buckhannon, 532 U.S. at 618

(Scalia, J., concurring). Ultimately, “the evil of the former far outweighs the evil of the latter.” Ibid. Denying

“the extraordinary boon of attorney’s fees” is far better

than allowing “the law to be the very instrument of

wrong—exacting the payment of attorney’s fees to the

extortionist.” Ibid.

If Congress desires a different tradeoff, it “is free,

of course, to revise” Section 1988. Buckhannon, 532

U.S. at 622 (Scalia, J., concurring). Indeed, after

Buckhannon, Congress amended the Freedom of Information Act to broaden fee eligibility. 5 U.S.C.

§ 552(a)(4)(E)(ii)(I-II) (FOIA complainants are eligible

for fees due to “a voluntary or unilateral change in position by the agency.”). Congress, however, has not

similarly amended Section 1988.

This Court should follow the plain text of Section

1988 and its precedents, and hold that preliminary injunctions do not confer prevailing-party status.

CONCLUSION

The Court should reverse the decision below.

Respectfully submitted,

JASON S. MIYARES

Attorney General of Virginia

MAYA M. ECKSTEIN

TREVOR S. COX

DAVID M. PARKER

HUNTON ANDREWS

KURTH LLP

Riverfront Plaza, East Tower

951 E. Byrd Street

Richmond, Virginia 23219

ERIKA L. MALEY

Solicitor General

Counsel of Record

KEVIN M. GALLAGHER

Principal Deputy Solicitor

General

GRAHAM K. BRYANT

Deputy Solicitor General

M. JORDAN MINOT

Assistant Solicitor General

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

EMaley@oag.state.va.us

Counsel for Petitioner

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.