Amicus Curiae Brief — Gerald F. Lackey, in His Official Capacity as the Commissioner of the Virginia Department of Motor Vehicles, Petitioner v. Damian Stinnie, et al.
Supreme Court briefJun 27, 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
v.
DAMIAN STINNIE, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
MALCOLM L. STEWART
Deputy Solicitor General
ANTHONY A. YANG
Assistant to the Solicitor
General
CHARLES W. SCARBOROUGH
THOMAS PULHAM
DANA KAERSVANG
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTIONS PRESENTED
The plaintiffs in this case initially obtained a preliminary injunction, but their claims for relief were ultimately dismissed as moot after the state legislature repealed the statutory provision that their suit challenged. The plaintiffs then sought an award of attorney’s fees under 42 U.S.C. 1988(b). The questions presented are as follows:
1. Whether a plaintiff ’s success in obtaining a preliminary injunction can be sufficient to render him a
“prevailing party” eligible for an award of attorney’s
fees under Section 1988(b) if the plaintiff does not ultimately obtain a judicial ruling that decides the merits
in his favor.
2. Whether a plaintiff must obtain an enduring
change in the parties’ legal relationship from a judicial
act, as opposed to a non-judicial event that moots the
case, to prevail under Section 1988(b).
(I)
TABLE OF CONTENTS
Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 1
Summary of argument ................................................................. 7
Argument:
Respondents are not “prevailing parties” entitled to an
award of attorney’s fees under Section 1988(b) ................. 11
A. “Prevailing party” is a legal term of art that has
long been understood to refer to a party who
obtains a favorable court judgment and is awarded
tangible relief ................................................................... 12
B. This Court’s precedents reflect the settled
understanding that a plaintiff qualifies as a
“prevailing party” only if the court enters judgment
in his favor and awards tangible relief .......................... 14
C. Congress has long awarded costs and attorney’s
fees incident to a judgment entered in favor of the
prevailing party ............................................................... 22
D. Neither the district court’s entry of a preliminary
injunction, nor the court’s subsequent dismissal of
respondents’ suit in light of intervening state
legislation, conferred “prevailing party” status upon
respondents ...................................................................... 25
Conclusion ................................................................................... 33
Appendix — Statutory provisions and rules .......................... 1a
TABLE OF AUTHORITIES
Cases:
Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,
421 U.S. 240 (1975).................................................. 13, 23, 24
Astrue v. Ratliff, 560 U.S. 586, 591 (2010) .......................... 12
Baker Botts L.L.P. v. ASARCO LLC,
576 U.S. 121 (2015)........................................................ 13, 14
(III)
IV
Cases—Continued:
Page
Benisek v. Lamone, 585 U.S. 155 (2018) ............................. 25
Bradley v. School Bd. of the City of Richmond,
416 U.S. 696 (1974).............................................................. 18
Buckhannon Bd. & Care Home, Inc. v.
West Va. Dep’t of Health & Human Res.,
532 U.S. 598 (2001).............................. 7, 12-16, 18-20, 30, 32
Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437 (1987).............................................................. 24
CRST Van Expedited, Inc. v. EEOC,
578 U.S. 419 (2016).............................................................. 20
Edgar v. MITE Corp., 457 U.S. 624 (1982) ......................... 26
Farrar v. Hobby, 506 U.S. 103 (1992) ................ 15, 16, 21, 22
Fleischmann Distilling Corp. v. Maier Brewing Co.,
386 U.S. 714 (1967).............................................................. 23
Fourco Glass Co. v. Transmirra Prods. Corp.,
353 U.S. 222 (1957).............................................................. 24
Frew ex rel. Frew v. Hawkins, 540 U.S. 431 (2004) ........... 16
Hanrahan v. Hampton, 446 U.S. 754 (1980) ................. 16-18
Hewitt v. Helms, 482 U.S. 755 (1987) ...................... 15, 17, 18
Independent Fed’n of Flight Attendants v. Zipes,
491 U.S. 754 (1989).............................................................. 15
Kansas v. Colorado, 556 U.S. 98 (2009)............................... 13
Kentucky v. Graham, 473 U.S. 159 (1985) .............. 15, 17, 31
Kirtsaeng v. John Wiley & Sons, Inc.,
579 U.S. 197 (2016).............................................................. 16
Local No. 93, Int’l Ass’n of Firefighters v. City of
Cleveland, 478 U.S. 501 (1986) .......................................... 15
Maher v. Gagne, 448 U.S. 122 (1980) ................................... 15
Marek v. Chesny, 473 U.S. 1 (1985) ..................................... 24
Martin v. Franklin Capital Corp.,
546 U.S. 132 (2005).............................................................. 15
Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) .... 18, 19
V
Cases—Continued:
Page
Rufo v. Inmates of Suffolk Cnty. Jail,
502 U.S. 367 (1992).............................................................. 15
Smyth ex rel. Smyth v. Rivero, 282 F.3d 268
(4th Cir.), cert. denied, 537 U.S. 825 (2002),
overruled by Stinnie v. Holcomb, 77 F.4th 200
(4th Cir. 2023) (en banc), cert. granted,
144 S. Ct. 1390 (2024) ........................................................... 4
Sole v. Wyner, 551 U.S. 74, 81 (2007) ............................ 27, 29
Supreme Court of Va. v. Consumers Union of the
United States, Inc., 446 U.S. 719 (1980) ........................... 15
Taniguchi v. Kan Pac. Saipan, Ltd.,
566 U.S. 560 (2012)........................................................ 13, 23
Texas State Teachers Ass’n v. Garland Indep. Sch.
Dist., 489 U.S. 782 (1989) .............................................. 20-22
The Baltimore, 75 U.S. (8 Wall.) 377 (1869)........................ 23
Thornburgh v. American Coll. of Obstetricians &
Gynecologists, 476 U.S. 747 (1986) ................................... 26
Trump v. International Refugee Assistance Project,
582 U.S. 571 (2017).............................................................. 25
University of Tex. v. Camenisch,
451 U.S. 390 (1981)............................................. 11, 25-27, 31
Constitution, statutes, and rules:
U.S. Const.:
Amend. I ........................................................................... 21
Amend. XIV ....................................................................... 2
Act of Mar. 1, 1793, ch. 20, § 4, 1 Stat. 333 .......................... 23
Act of Feb. 26, 1853, ch. 80, § 3, 10 Stat. 168 ................ 23, 2a
Freedom of Information Act, 5 U.S.C. 552 ......................... 32
5 U.S.C. 552(a)(4)(E)(ii)(II) ............................................ 32
Judiciary Act of 1789, ch. 20, 1 Stat. 73 ........................... 9, 23
§§ 11-12, 1 Stat. 78-80 ..................................................... 23
VI
Statutes and rules—Continued:
Page
§ 17, 1 Stat. 83 .................................................................. 23
§§ 20-23, 1 Stat. 83-85 ..................................................... 23
§ 35, 1 Stat. 92-93 ............................................................. 23
The Civil Rights Attorney’s Fees Awards Act of
1976, Pub. L. No. 94-559, § 2, 90 Stat. 2641...................... 25
Rev. Stat. (2d ed. 1878):
§ 823 .................................................................................. 23
§ 824 .................................................................................. 23
§ 983 .................................................................................. 23
28 U.S.C. 382 (1934)......................................................... 27, 2a
28 U.S.C. 571-572 (1946) ....................................................... 23
28 U.S.C. 830 (1946)......................................................... 23, 3a
28 U.S.C. 1447(c) .................................................................... 32
28 U.S.C. 1920 .................................................................. 24, 3a
28 U.S.C. 1920-1924 reviser’s notes (Supp. II 1948) .......... 24
28 U.S.C. 1923(a) ............................................................. 23, 4a
28 U.S.C. 2412(b) ..................................................................... 1
28 U.S.C. 2412(d)(1)(A) ........................................................... 1
28 U.S.C. p. 878 (Supp. V 1939) ............................................ 24
42 U.S.C. 300aa-15(e)(1) ........................................................ 32
42 U.S.C. 1983 ...................................................................... 1, 4
42 U.S.C. 1988 ................................................................ 1, 8, 18
42 U.S.C. 1988(b) ................ 1, 4, 7, 9, 12, 22, 24, 28, 29, 33, 5a
42 U.S.C. 2000e-5(k) ................................................................ 1
42 U.S.C. 2000e-16(d) .............................................................. 1
2019 Va. Acts ch. 854, § 3-6.03 ............................................ 3, 4
2020 Va. Acts ch. 965, § 2 ........................................................ 4
Virginia Code Ann. (2017):
§ 46.2-395 ................................. 2, 3, 4, 10, 22, 25, 28, 30, 31
§ 46.2-395(B) ...................................................................... 2
VII
Statute and rules—Continued:
Page
§ 46.2-395(C) ...................................................................... 3
Fed. R. Civ. P.:
Rule 54 (1939) .................................................................. 24
Rule 54(d) (1939).............................................................. 24
Rule 54(d) ................................................................... 24, 6a
Rule 54(d)(1) .............................................................. 24, 6a
Rule 55(a) ......................................................................... 16
Rule 55(b) ......................................................................... 16
Rule 65(a)(2) ............................................................... 27, 6a
Rule 65(c) ............................................................. 26, 27, 7a
Miscellaneous:
Anderson’s Law Dictionary (1889) ..................................... 13
Ballentine’s Law Dictionary (3d ed. 1969) ........................ 12
Black’s Law Dictionary:
(3d ed. 1933) ..................................................................... 13
(rev. 4th ed. 1968) ............................................................ 12
(5th ed. 1979) .................................................................... 12
(7th ed. 1999) .............................................................. 12, 14
3 William Blackstone, Commentaries (1768)...................... 13
2 Bouvier’s Law Dictionary (new Rawle ed. 1897) ........... 13
S. Rep. No. 698, 63d Cong., 2d Sess. (1914) ........................ 27
In the Supreme Court of the United States
No. 23-621
GERALD F. LACKEY, IN HIS OFFICIAL CAPACITY
AS THE COMMISSIONER OF THE VIRGINIA
DEPARTMENT OF MOTOR VEHICLES, PETITIONER
v.
DAMIAN STINNIE, ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
This case concerns the meaning of the term “prevailing party” in 42 U.S.C. 1988(b). That phrase is a legal
term of art that appears in numerous fee-shifting statutes, including statutes under which the United States
may be ordered to pay attorney’s fees. See, e.g., 28 U.S.C.
2412(b) and (d)(1)(A), 42 U.S.C. 2000e-5(k), 2000e-16(d).
In addition, Section 1988 authorizes attorney’s-fee awards
in private civil rights suits that complement the government’s own enforcement efforts. The United States
therefore has a substantial interest in the Court’s resolution of this case.
STATEMENT
1. a. This attorney’s-fee dispute arises from a district court action filed under 42 U.S.C. 1983 by five in(1)
2
dividual plaintiffs, respondents here, against the Commissioner of the Commonwealth of Virginia’s Department of Motor Vehicles (DMV), petitioner here. See
J.A. 71-123 (amended complaint). Respondents’ classaction complaint asserted five claims for relief, alleging
that the suspensions of respondents’ driver’s licenses
under Virginia Code § 46.2-395 (repealed 2020) violated
their procedural-due-process, substantive-due-process,
and equal-protection rights under the Fourteenth
Amendment. J.A. 113-121. Respondents sought (1) a
“judgment declaring” that Section 46.2-395 is “unconstitutional” “on its face and as applied to [respondents]
and Class Members”; and (2) injunctive relief enjoining
petitioner from enforcing Section 46.2-395 and ordering
petitioner to remove any suspensions imposed under
that statute without charging DMV reinstatement fees.
J.A. 121-122.
At the time respondents filed suit, Section 46.2-395
addressed situations in which a criminal defendant in
Virginia state court was assessed a fine or costs upon
conviction but “fail[ed] or refuse[d] to provide for immediate payment in full” or “fail[ed] to make deferred
payments or installment payments as ordered by the
court.” Va. Code Ann. § 46.2-395(B) (2017). In those
circumstances, the statute provided that “the court
shall forthwith suspend the person’s privilege to drive a
motor vehicle.” Ibid.
Section 46.2-395 required
“the clerk of the court that convicted the person” to provide “written notice”—either “at the time of trial” or
by mail “within five business days” after the “date of
conviction”—informing the defendant “of the suspension of his license * * * , effective 30 days from the date
of conviction, if the fine” or “costs” were “not paid prior
3
to the effective date of the suspension as stated on the
notice.” Id. § 46.2-395(C).
On December 21, 2018, the district court granted respondents’ motion for preliminary relief. J.A. 350-381.
The court concluded that respondents were “likely to
succeed on the merits of their procedural due process
claim because [petitioner] suspends licenses without an
opportunity to be heard.” J.A. 351; see J.A. 372-376, 379;
cf. J.A. 376 n.9 (declining to consider the other claims).
The district court’s preliminary injunction ordered petitioner to remove any current suspensions of the five
respondents’ licenses; enjoined petitioner from charging respondents a reinstatement fee; and further enjoined petitioner from applying Section 46.2-395 to respondents unless a hearing regarding a license suspension was first provided with adequate notice. J.A. 381.
b. Intervening events prevented the district court
from considering the record later developed through
discovery or resolving the parties’ summary-judgment
motions. On April 3, 2019, the Virginia legislature enacted budget legislation providing that, from July 1,
2019 through June 30, 2020 (J.A. 389), “no court shall
suspend any person’s privilege to drive a motor vehicle
solely for failure to pay any fines[ or] court costs,”
and instructing the DMV to reinstate without fee any
driver’s license “suspended prior to July 1, 2019, solely
pursuant to [Section] 46.2-395.” 2019 Va. Acts ch. 854,
§ 3-6.03 (2019 Act). The district court determined that
the 2019 Act did not moot the case, finding a “reasonable
expectation” that plaintiffs would “be subjected to the
same action again” because Section 46.2-395 had not
been repealed. C.A. App. 950 (citation omitted). Over
respondents’ objection, however, the court stayed proceedings until March 2020. Id. at 955.
4
In April 2020, the Virginia legislature repealed Section 46.2-395. 2020 Va. Acts ch. 965, § 2 (2020 Act). The
repealing legislation, like the 2019 Act, required the
DMV to reinstate (without charging a fee) licenses that
had been suspended before July 1, 2019, based solely on
Section 46.2-395. Id. § 3. The parties then filed a stipulation that, in light of the 2020 Act, “this case is moot”
and “should be dismissed.” J.A. 412.
In May 2020, the district court adopted the stipulation and ordered that “[t]his action is dismissed as
moot.” J.A. 420 (capitalization and emphasis omitted).
c. Respondents petitioned for an award of attorney’s fees under Section 1988(b), which provides that in
Section 1983 actions “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). Respondents’ petition and accompanying brief (C.A. App. 1020-1057) argued that respondents
were “prevailing parties” eligible for an attorney’s-fee
award. Id. at 1041-1055.
The district court denied the petition. Pet. App. 93a106a. Based on the Fourth Circuit’s decision in Smyth
ex rel. Smyth v. Rivero, 282 F.3d 268, cert. denied, 537
U.S. 825 (2002), the court held that “a plaintiff who wins
a preliminary injunction is not a prevailing party under
§ 1988.” Pet. App. 96a; see id. at 102a, 106a.
2. A panel of the court of appeals affirmed. Pet.
App. 73a-92a. Like the district court, the panel determined that under Smyth, a preliminary injunction does
not confer “prevailing party” status. Id. at 81a-82a, 86a.
3. a. A divided en banc court of appeals overruled
Smyth and vacated the district court’s ruling, holding
that the preliminary injunction here rendered respondents “prevailing parties.” Pet. App. 1a-70a. The major-
5
ity expressed concern that Smyth’s rule would deter attorneys from taking civil-rights cases because it “allow[s] government defendants to game the system” by
mooting cases after an award of preliminary relief. Id.
at 20a-22a. The majority held that a plaintiff who obtains a preliminary injunction is a prevailing party when
(1) the “preliminary injunction provides the plaintiff
concrete, irreversible relief on the merits of her claim”
by “materially altering the parties’ legal relationship”;
and (2) the case “becomes moot before final judgment
because no further court-ordered assistance proves necessary,” such that “the injunction cannot be ‘reversed,
dissolved, or otherwise undone’ by a later decision.” Id.
at 22a, 35a-36a (citation omitted); see id. at 22a-37a.
The majority explained that the preliminary injunction here provided “ ‘actual relief ’ by ordering a ‘material alteration’ of the parties’ legal relationship” and
provided “ ‘some of the benefit’ ” respondents sought in
their suit by ordering “reinstatement of their suspended licenses.” Pet. App. 24a (citation omitted). The
court stated that the injunction thus had provided respondents “concrete, irreversible” benefits because “no
matter what happened at the conclusion of the litigation,” respondents were allowed to drive “for the time
[the preliminary injunction] remained in effect.” Id. at
24a-25a. The court added that, although “distinguishing between status quo and non-status quo injunctions
* * * often proves difficult,” “so-called status quo injunctions, which simply maintain the ‘last uncontested
status between the parties,’ ” will not “confer prevailing
party status” if they are “ ‘holding-pattern injunction[s]’ ”
that do “not provide the plaintiff any of the relief he ultimately seeks.” Id. at 26a & n.8 (citations omitted).
6
The majority also determined that the preliminary
injunction here had provided “relief sufficiently on the
merits to justify prevailing party status” because, like
“all preliminary injunctions,” it could be granted only
upon “a ‘clear showing’ that the plaintiffs’ claim was
likely meritorious.” Pet. App. 27a-28a (citation omitted). The majority rejected as irrelevant petitioner’s
contention that the likelihood-of-success standard for a
preliminary injunction “is only an ‘initial prediction’ ”
that a plaintiff will prevail on the merits when the case
is finally adjudicated, rather than an actual merits adjudication. Id. at 29a. The majority explained that respondents “do not allege that they would have prevailed
on the merits” if the case had proceeded to “final judgment”; “they claim that they did prevail on the merits”
when they received the preliminary injunction, which
constituted a “ ‘court-ordered change in the legal relationship’ ” between the parties. Id. at 29a-30a (citation
omitted).
Finally, the majority determined that the preliminary injunction here had effected an “enduring” “courtordered change in the [parties’] legal relationship.”
Pet. App. 31a (citation omitted). The majority reasoned
that—unlike a preliminary injunction that is later “revisited” and overturned by a court’s “final decision”—
the consequence of “moot[ness]” here was that “no subsequent final judgment [could] supersed[e] the preliminary ruling,” which the majority viewed as providing
“precisely the merits-based relief [respondents] need[ed] for precisely as long as [they] need[ed] it,” i.e., “for
as long as the statute remain[ed] on the books.” Id. at
32a-33a; see id. at 35a. The majority stated that such
relief is “as ‘enduring’ as if [respondents] had received
a permanent injunction to the same effect.” Id. at 33a.
7
b. Judge Quattlebaum, joined by three judges, dissented. Pet. App. 42a-70a. Those judges concluded
that, under Section 1988(b), a “prevailing party” is one
who secures “final, not temporary, success” by obtaining a favorable judgment at the end of a case. Id. at 42a,
47a. They explained that legal dictionaries define “prevailing party” to mean the party who “successfully prosecutes [or defends against] the action” and for whom
“ ‘judgment is rendered’ ” “ ‘at the end of the suit.’ ” Id.
at 46a-47a & n.1 (citations omitted). The dissenting
judges found further support for that interpretation in
the principle that departures from the common-law rule
that each party pays its own litigation expenses must be
“construed narrowly.” Id. at 62a, 66a-67a. They read
this Court’s decisions as establishing that a party can
“prevail” in litigation only by securing a judicial decision “like a judgment or a consent decree” that “irreversibly alter[s] the [parties’] legal rights” by “resolv[ing] at least one issue on the merits.” Id. at 57a;
see id. at 47a-56a. The dissenting judges also observed
that preliminary injunctions confer only “provisional”
relief; are based on less formal procedures than a court’s
final adjudication of the case; and are premised on a
finding of “likelihood of success on the merits,” which
“only predicts the outcome” and “does not definitively
decide the merits of anything.” Id. at 58a-61a.
SUMMARY OF ARGUMENT
A. This Court has repeatedly recognized that the
phrase “prevailing party” is a legal term of art with a
well-established meaning. As legal dictionaries establish, that term has long been used to refer to the “party
in whose favor a judgment is rendered.” E.g., Buckhannon Bd. & Care Home, Inc. v. West Va. Dep’t of Health
& Human Res., 532 U.S. 598, 603 (2001) (citation omit-
8
ted). Statutory fee-shifting provisions, moreover, are
an exception to the longstanding American Rule, under
which each party to litigation presumptively bears its
own litigation costs. The Court therefore has required
“ ‘explicit statutory authority’ ” before construing the
term “prevailing party” to extend beyond its traditional
scope. Id. at 608 (citation omitted).
B. This Court’s precedents reflect the settled understanding that a plaintiff qualifies as a “prevailing party”
only if the Court enters judgment in his favor and
awards tangible relief. Plaintiffs most frequently acquire prevailing-party status by obtaining final judicial
rulings that defendants have violated federal law. This
Court has also identified consent and default judgments
as types of judicial orders that can confer prevailingparty status. Those judgments finally resolve the plaintiff ’s claims and result in tangible relief, even though
the defendant’s own litigation conduct (in agreeing to
entry of relief against it, or in failing to defend against
the suit) obviates the need for an independent judicial
determination whether the plaintiff ’s claims have merit.
Favorable interlocutory rulings, including meritsbased rulings such as orders that reverse directed verdicts or direct that a case go to trial, are generally insufficient to confer “prevailing party” status. Even a
judicial determination that the plaintiff ’s legal rights
were violated will not confer prevailing-party status if
the plaintiff is not awarded tangible relief. This Court
has indicated in dicta that Section 1988 permits the
award of fees pendente lite in some circumstances even
while other aspects of a case remain ongoing. Such
awards are appropriate, however, only when the court
has finally resolved the merits of particular claims.
9
This Court’s precedents also make clear that a plaintiff must obtain a favorable judgment and tangible relief
from the court in order to qualify as a prevailing party.
The Court in Buckhannon rejected the “catalyst theory,” under which a plaintiff can become a prevailing
party if his lawsuit induces the defendant to voluntarily
discontinue its allegedly unlawful conduct.
Although most of this Court’s prevailing-party cases
have involved fee requests by plaintiffs, prevailing defendants likewise can qualify for fee awards in appropriate circumstances, even for a non-merits reason. At
a minimum, however, the defendant must obtain a favorable final judgment to acquire prevailing-party status; favorable interlocutory rulings, such as the denial
of a plaintiff ’s request for a preliminary injunction, will
not suffice.
A plaintiff need not obtain total or even predominant
success in order to qualify as a “prevailing party.” But
while partial success may be sufficient, that partial
success must be reflected in a judicial order that finally
resolves at least one claim in the plaintiff ’s favor and
awards him tangible relief. The sort of partial success
that respondents claim here—a temporary courtordered cessation of the defendant’s allegedly unlawful
conduct—does not confer prevailing-party status.
C. Section 1988(b) authorizes the district court to
award “the prevailing party * * * a reasonable attorney’s fee as part of the costs” of the action. 42 U.S.C.
1988(b) (emphasis added). From the Judiciary Act of
1789 to the present, federal law has consistently provided for awards of litigation costs—including attorney’s fees—as part of, or incident to, the judgment in a
case. Costs therefore have traditionally been awarded
after the trial court finally decides the merits of the
10
plaintiff ’s claims. Section 1988(b)’s directive that an attorney’s-fee award be made “as part of the costs” accordingly reinforces the conclusion that a “prevailing
party” is a litigant in whose favor judgment is entered
after the merits have been finally resolved.
D. Respondents did not obtain prevailing-party status based on the district court’s entry of a preliminary
injunction or the ensuing events that terminated the
suit—that is, the Virginia legislature’s repeal of Section
46.2-395 and the district court’s consequent dismissal of
the case as moot. A preliminary injunction does not resolve the merits of the plaintiff ’s claims or produce a final judgment, but simply defines the parties’ respective
rights during the pendency of the suit. And while a
showing of likely success on the merits is a prerequisite
to entry of a preliminary injunction, that showing is
quite different from the actual success on the merits
that a favorable judgment provides. By the same token,
entry of a preliminary injunction does not reflect
any judicial determination that the defendant has actually violated federal law—a usual prerequisite to an
attorney’s-fee award.
The district court’s final disposition of this suit likewise did not make respondents prevailing parties. The
court did not enter judgment in respondents’ favor or
find that petitioner had violated federal law, and it did
not award respondents any tangible relief. Rather, the
court dismissed respondents’ case as moot. And while
the district court did not reject respondents’ constitutional arguments, the fact that respondents did not lose
on the merits does not make them prevailing parties.
Finally, the Virginia legislature’s repeal of Section
46.2-395 did not make respondents prevailing parties.
Although the repeal gave respondents the same practi-
11
cal benefit they had hoped to achieve through litigation,
it did not reflect any judicial determination of the merits
of respondents’ constitutional claims, and it did not constitute court-ordered relief.
In holding that the preliminary injunction made respondents “prevailing parties,” the en banc majority described this case as one in which “a preliminary injunction has provided the plaintiff with precisely the meritsbased relief she need[ed] for precisely as long as she
need[ed] it.” Pet. App. 33a. But the preliminary injunction gave respondents relief “for precisely as long as
[they] need[ed] it” only because of legislative action. As
the dissenting judges below recognized, that approach
is simply “a new spin on the catalyst theory.” Id. at 62a
(Quattlebaum, J., dissenting). And while the majority
expressed concern that government agencies may moot
cases strategically to avoid attorney’s-fee liability, see
id. at 20a-21a, such policy arguments are better addressed to Congress.
ARGUMENT
RESPONDENTS ARE NOT “PREVAILING PARTIES” ENTITLED TO AN AWARD OF ATTORNEY’S FEES UNDER SECTION 1988(b)
Under settled legal principles, a “prevailing party”
in the litigation-cost context is one who is awarded relief
at the end of the action when a court renders judgment
in his favor. A preliminary injunction, by contrast, is
merely an interim order that addresses “the relative positions of the parties” pending the adjudication of a
plaintiff ’s claims for relief. University of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). At the end of this suit,
the district court did not award respondents any relief
and did not finally determine the merits of their claims,
but rather dismissed those claims as moot. Respond-
12
ents therefore are not “prevailing parties” under Section 1988(b).
A. “Prevailing Party” Is A Legal Term Of Art That Has
Long Been Understood To Refer To A Party Who Obtains A Favorable Court Judgment And Is Awarded Tangible Relief
1. The operative statutory phrase in this case is “prevailing party,” a term this Court has “long held * * * is
a ‘term of art’ ” when used “in fee statutes.” Astrue v.
Ratliff, 560 U.S. 586, 591 (2010) (citing Buckhannon Bd.
& Care Home, Inc. v. West Va. Dep’t of Health & Human Res., 532 U.S. 598, 603 (2001) (Buckhannon)).
More specifically, that “legal term of art” refers to the
“ ‘party in whose favor a judgment is rendered.’ ” Buckhannon, 532 U.S. at 603 (quoting Black’s Law Dictionary 1145 (7th ed. 1999) (Black’s 7th Edition)).
Legal dictionaries reflected the same understanding
in 1976, when Congress enacted Section 1988(b). See
Black’s Law Dictionary 1069 (5th ed. 1979) (Black’s 5th
Edition) (defining “prevailing party” as the party for
whom “judgment [is] entered”—i.e., the party who
“successfully prosecutes the action or successfully defends against it,” and who therefore is “ultimately prevailing when the matter is finally set at rest”); Black’s
Law Dictionary 1352 (rev. 4th ed. 1968) (same). Under
that definition, a litigant’s prevailing-party status “does
not depend upon the degree of success at different
stages of the suit”; it turns simply on “whether, at the
end of the suit, * * * the party who has made a claim
against the other[] has successfully maintained it.”
Black’s 5th Edition 1069; accord Ballentine’s Law Dictionary 985 (3d ed. 1969). Legal dictionaries from the
19th and early 20th centuries likewise defined “ ‘prevailing party’ ” to mean the party who “successfully prose-
13
cutes [or defends] the action” and for whom “judgment
[is] entered,” Black’s Law Dictionary 1412 (3d ed.
1933), i.e., the party who “at the end of the suit” has
“successfully maintained” (or defended against) the
plaintiff ’s “claim,” ibid.; accord 2 Bouvier’s Law Dictionary 738 (new Rawle ed. 1897); Anderson’s Law Dictionary 809 (1889); cf. Buckhannon, 532 U.S. at 610
(Scalia, J., concurring) (“ ‘Prevailing party’ is not some
newfangled legal term invented for use in late-20thcentury fee-shifting statutes.”).
2. The “ ‘basic point of reference when considering
the award of attorney’s fees is the bedrock principle
known as the American Rule,’ ” which “has roots in our
common law reaching back to at least the 18th century.”
Baker Botts L.L.P. v. ASARCO LLC, 576 U.S. 121, 126
(2015) (citation omitted). “[A]t common law” in England, “the taxation of costs was not allowed.” Taniguchi
v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 564 (2012) (citing Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421
U.S. 240, 247-248 (1975) (Alyeska Pipeline)); see 3 William Blackstone, Commentaries 399 (1768) (Blackstone’s Commentaries). And in this country, the American Rule likewise directs that parties to litigation must
“bear their own expenses”—including “not only * * *
attorney’s fees but also other costs of litigation,” Kansas v. Colorado, 556 U.S. 98, 102-103 (2009)—unless a
“statute or enforceable contract” provides otherwise.
Alyeska Pipeline, 421 U.S. at 247, 257.
A court’s task when construing a federal statute that
authorizes an award of attorney’s fees therefore is to
determine the extent to which it departs from the common law. But a statute “which invade[s] the common
law” is interpreted “with a presumption favoring the retention of long-established and familiar legal princi-
14
ples.” Baker Botts L.L.P., 576 U.S. at 126 (citation and
brackets omitted). The Court therefore has required
“ ‘explicit statutory authority’ ” before construing the
term “prevailing party” to extend beyond its traditional
scope. Buckhannon, 532 U.S. at 608 (citation omitted).
B. This Court’s Precedents Reflect The Settled Understanding That A Plaintiff Qualifies As A “Prevailing
Party” Only If The Court Enters Judgment In His Favor
And Awards Tangible Relief
Consistent with the legal dictionaries cited above,
this Court’s decisions reflect the settled understanding
that a “prevailing party” is the “ ‘party in whose favor a
judgment is rendered.’ ” Buckhannon, 532 U.S. at 603
(quoting Black’s 7th Edition 1145). The Court has identified three ways in which a plaintiff can qualify as a
“prevailing party” under that longstanding definition.
This Court itself has “only awarded attorney’s fees”
under prevailing-party statutes to plaintiffs who have
(1) “received a judgment on the merits” or (2) “obtained
a court-ordered consent decree.” Id. at 605. The Court
has also indicated in dicta that a plaintiff may qualify as
a “prevailing party” by (3) obtaining a default judgment
when the defendant fails to defend against the plaintiff ’s claims.
1. The Court’s prevailing-party decisions have largely focused on the most common type of prevailing plaintiff: a plaintiff who obtains a favorable final judgment
on the merits of a claim for relief, based on a determination that the defendant has violated the law, and who
is awarded actual, enduring relief in the form of damages, a permanent injunction, or other equitable relief
such as a formal declaratory judgment.
The Court has repeatedly stated that “respect for ordinary language requires that a plaintiff receive at least
15
some relief on the merits of his claim before he can be
said to prevail.” Farrar v. Hobby, 506 U.S. 103, 110
(1992) (quoting Hewitt v. Helms, 482 U.S. 755, 760
(1987)) (brackets omitted); accord, e.g., Buckhannon,
532 U.S. at 605. The Court has similarly stated that establishing “liability for violation of federal law” is “crucial” to rendering the defendant responsible for attorney’s fees. Independent Fed’n of Flight Attendants v.
Zipes, 491 U.S. 754, 762 (1989); see Martin v. Franklin
Capital Corp., 546 U.S. 132, 137 (2005) (presumption in
favor of fees in civil rights cases applies only when the
defendant has “violated federal law”). And the Court
has repeatedly observed that “liability on the merits
and responsibility for fees go hand in hand.” Kentucky
v. Graham, 473 U.S. 159, 165 (1985); see, e.g., Farrar,
506 U.S. at 109; Zipes, 491 U.S. at 763; Supreme Court
of Va. v. Consumers Union of the United States, Inc.,
446 U.S. 719, 738-739 (1980). Courts impose such merits
liability only in a final judgment.
The Court has also determined that “the entry of a
consent decree” can render a plaintiff a prevailing party
even without “full litigation of the issues” or “a judicial
determination that the plaintiff ’s rights have been violated.” Maher v. Gagne, 448 U.S. 122, 124, 129 (1980).
A “consent decree is a final judgment,” Rufo v. Inmates
of Suffolk Cnty. Jail, 502 U.S. 367, 391 (1992), that “is
entered [by the court] as a judgment” and bears “some
of the earmarks of judgments entered after litigation,”
but that also has a contractual component because “[its]
terms are arrived at through mutual agreement of the
parties,” Local No. 93, Int’l Ass’n of Firefighters v. City
of Cleveland, 478 U.S. 501, 518-519 (1986). A “consent
decree does not always include an admission of liability
by the defendant.” Buckhannon, 532 U.S. at 604. But
16
“[o]nce entered, a consent decree may be enforced,”
just as a court may enforce the relief it awards in any
other final judgment. Frew ex rel. Frew v. Hawkins,
540 U.S. 431, 440 (2004). 1
This Court has additionally indicated in dicta that
“default judgments” can give rise to statutory attorney’sfee awards to the “prevailing party.” Kirtsaeng v. John
Wiley & Sons, Inc., 579 U.S. 197, 202, 208 n.3 (2016); see
Fed. R. Civ. P. 55(a) and (b). Like a defendant’s agreement to a consent judgment, a defendant’s failure to defend against a suit obviates the need for the court to
make an independent determination of the merits. But
the court can still enter a final judgment and award tangible relief (and “costs”) in the plaintiff ’s favor. See
Fed. R. Civ. P. 55(b). 2
2. By contrast, favorable interlocutory rulings are
generally insufficient to confer “prevailing party” status.
Thus, in Hanrahan v. Hampton, 446 U.S. 754 (1980)
(per curiam), the Court determined that, although favorable “procedural or evidentiary rulings may affect the
The Court in Farrar referred more generally to a “settlement”
as a possible basis for prevailing-party status. See 506 U.S. at 111.
The Court has since clarified, however, that only those settlements
that become court-ordered “consent decrees” can have that effect.
See Buckhannon, 532 U.S. at 604 n.7.
2
Consent and default judgments are exceptions to the general
rule that, under statutes that authorize attorney’s-fee awards to
“prevailing parties,” a defendant may be required to pay its opponent’s fees only if it is found to have violated federal law. See p. 15,
supra. In each of those contexts, however, it is the defendant’s own
litigation conduct, in agreeing to a consent decree or in failing to
defend against the suit, that subjects it to potential fee liability.
Where the defendant contests a suit and does not consent to entry
of judicial relief against it, a finding of liability is an essential predicate to an attorney’s-fee award.
1
17
disposition on the merits,” those rulings are “themselves
not matters on which a party could ‘prevail’ for purposes
of shifting his counsel fees to the opposing party under
§ 1988.” Id. at 759. Even interlocutory orders that address merits issues, such as orders that reverse directed verdicts or direct that a case go to trial, id. at
756-758, are insufficient to make the plaintiff a prevailing party. It thus is “the party legally responsible for
relief on the merits”—the losing defendant—“who must
pay the costs of the litigation” and who bears “fee liability” as an “ ‘incident of the judgment’ ” entered against
it. Graham, 473 U.S. at 164 & n.7 (citation omitted).
A judicial determination that the plaintiff ’s legal
rights were violated will not confer prevailing-party status if the court does not award the plaintiff tangible relief. In Hewitt, supra, the court of appeals held that
prison officials in imposing punishment had denied the
plaintiff constitutional due process, but the district
court on remand granted the officials summary judgment on immunity grounds. 482 U.S. at 757-758. In a
subsequent attorney’s-fee appeal, this Court held that
the plaintiff was not a “prevailing party” because he
“never took the steps necessary to have a declaratory
judgment or [injunctive] order [directing that his record be expunged] properly entered.” Id. at 760. The
Court explained that “[t]he real value of [a favorable]
judicial pronouncement—what makes it a proper judicial resolution of a ‘case or controversy’ rather than an
advisory opinion—is in the settling of some dispute
which affects the behavior of the defendant towards the
plaintiff,” i.e., an “action (or cessation of action) by the
defendant that the [court’s] judgment produces.” Id. at
761. The Court observed that the plaintiff in Helms had
“obtained nothing from the defendants” as a result of
18
the suit, id. at 761-762, and it “conclude[d] that a favorable statement of law in the course of litigation that results in judgment against the plaintiff does not suffice
to render him a ‘prevailing party,’ ” id. at 763.
Relying on legislative history, the Court in Hanrahan stated that Congress in enacting Section 1988 had
“contemplated the award of fees pendente lite in some
cases.” 446 U.S. at 757 (dicta). The Court thus indicated that a district court’s consideration of fee requests need not invariably be deferred until the entire
action has concluded. The Court further observed, however, that “Congress intended to permit the interim
award of counsel fees only when a party has prevailed
on the merits of at least some of his claims.” Id. at 758;
see id. at 757 (explaining that in two prior cases where
the Court had approved interim fee awards, “the party
to whom fees were awarded had established the liability
of the opposing party, although final remedial orders
had not been entered”); see also Buckhannon, 532 U.S.
at 603.3 The Court thus indicated that interim fee
In one decision cited in the legislative history, the Court concluded that although injunctive remedies in school-desegregation
cases may require “frequent modifications,” so that multiple “final
orders may issue in the course of litigation,” the possibility of such
post-judgment modifications should not forestall a fee award to the
prevailing plaintiff in whose favor judgment was entered. Bradley
v. School Bd. of the City of Richmond, 416 U.S. 696, 723-724 (1974);
see id. at 699-705. In the other decision, the Court itself definitively
resolved the merits of the plaintiff-shareholders’ “cause of action”
by directing the court of appeals to affirm the district court’s
“partial summary judgment on the issue of liability.” Mills v. Electric Auto-Lite Co., 396 U.S. 375, 389 (1970); see id. at 381-385.
The Court then concluded that a common-law exception to the
American Rule—which did not involve a statutory prevailing-party
requirement—allowed an award of attorney’s fees, id. at 390-392,
against the “other shareholders” who had obtained important bene3
19
awards may occasionally be appropriate when particular claims are definitively resolved in the plaintiff ’s favor, even though other matters remain to be adjudicated. But the Court did not suggest that a fee award
may be premised on a ruling that does not finally resolve the merits of any claim.
3. To qualify as a “prevailing party” in a lawsuit, a
plaintiff must obtain a favorable judgment and tangible
relief from the court. The plaintiffs in Buckhannon
alleged that state-law restrictions on the operation of
assisted-living facilities violated two federal statutes.
See 532 U.S. at 600-601. After “the West Virginia Legislature enacted two bills eliminating the” challenged
restrictions, the district court dismissed the case as
moot, “finding that the [new] legislation had eliminated
the allegedly offensive provisions and that there was no
indication that the West Virginia Legislature would repeal the amendments.” Id. at 601.
The plaintiffs then sought attorney’s fees under a
federal statute that authorized the court to award fees
to the “prevailing party.” Buckhannon, 532 U.S. at 601.
They “argued that they were entitled to attorney’s fees
under the ‘catalyst theory,’ which posits that a plaintiff
is a ‘prevailing party’ if it achieves the desired result
because the lawsuit brought about a voluntary change
in the defendant’s conduct.” Ibid. This Court rejected
the ”catalyst theory,” holding that the theory was inconsistent with the Court’s prevailing-party precedents because “[i]t allows an award where there is no judicially
sanctioned change in the legal relationship of the parties.” Id. at 605. The Court explained that “[a] defendfits from the plaintiffs’ litigation, id. at 392-396. See id. at 396 (emphasizing that the fee award did “not * * * saddle the unsuccessful
party with the expenses”).
20
ant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the
lawsuit, lacks the necessary judicial imprimatur on the
change.” Ibid.
4. Although most of this Court’s prevailing-party
cases have involved fee requests submitted by plaintiffs,
a defendant likewise cannot become a prevailing party
unless and until final judgment is entered in its favor.
The Court has recognized that “[p]laintiffs and defendants come to court with different objectives”: “A plaintiff seeks a material alteration in the legal relationship
between the parties,” whereas a “defendant seeks to
prevent this alteration to the extent it is in the plaintiff ’s favor.” CRST Van Expedited, Inc. v. EEOC, 578
U.S. 419, 431 (2016). For that reason, a “defendant may
prevail even if the court’s final judgment rejects the
plaintiff ’s claim for a nonmerits reason.” Ibid. But no
one would suggest that a defendant becomes a prevailing party by successfully opposing a plaintiff ’s request
for a preliminary injunction, thereby temporarily avoiding any change in the parties’ legal relationship. Instead, a defendant, like a plaintiff, prevails and can potentially become eligible for an attorney’s-fee award under statutes authorizing such awards “when the case is
resolved in [its] favor.” Id. at 432. This Court has reserved the question whether a “defendant must obtain
a preclusive judgment”—thereby preventing the plaintiff from reasserting the same claims in the future—“in
order to prevail.” Id. at 434 (emphasis added). But at a
minimum, the defendant must obtain a favorable final
judgment to acquire “prevailing party” status.
5. A plaintiff need not achieve total or even predominant success in order to qualify as a “prevailing party.”
In Texas State Teachers Ass’n v. Garland Independent
21
School District, 489 U.S. 782 (1989) (Garland), the
Court rejected a lower court’s view that a plaintiff claiming prevailing-party status must “succeed on the ‘central issue’ in the litigation and achieve the ‘primary relief sought.’ ” Id. at 784-786. The Court observed that
“[t]he touchstone of the prevailing party inquiry must
be the material alteration of the legal relationship of the
parties.” Id. at 792-793. It concluded that the plaintiffs
in that case—who had “obtained a judgment” on their
First Amendment claim—had “prevailed on a significant issue in the litigation and ha[d] obtained some of
the relief they sought and [we]re thus ‘prevailing parties’ within the meaning of § 1988.” Id. at 793.
Similarly in Farrar, the Court held that “a plaintiff
who wins nominal damages is a prevailing party under
§ 1988.” 506 U.S. at 112. The Court reached that conclusion even though the plaintiffs in Farrar had received only nominal damages after seeking $17 million
in compensatory damages. Id. at 106, 114. The Court
explained that “a plaintiff ‘prevails’ when actual relief
on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Id. at 111-112. The Court concluded that a nominaldamages award confers prevailing-party status under
that standard because “[a] judgment for damages in any
amount, whether compensatory or nominal, modifies
the defendant’s behavior for the plaintiff ’s benefit by
forcing the defendant to pay an amount of money he
otherwise would not pay.” Id. at 113.
The Court’s decisions in Garland and Farrar, however, provide no sound basis for expanding prevailingparty status beyond its traditional application to the
party in whose favor judgment is rendered. In particu-
22
lar, nothing in those decisions suggests that the partial
success claimed by respondents here—i.e., the temporary restriction on enforcement of Section 46.2-395 that
the preliminary injunction imposed—should be viewed
as analogous to the partial success that the plaintiffs in
Garland and Farrar obtained. The lower courts in both
of those cases had entered final judgments that awarded tangible relief in the plaintiffs’ favor, even though the
relief was less extensive than what the plaintiffs had
sought. See Garland, 489 U.S. at 786-787; Farrar, 506
U.S. at 107; Pet. App. 51a-52a (Quattlebaum, J., dissenting). And the Farrar Court observed that, for purposes
of the prevailing-party inquiry, “[n]o material alteration
of the legal relationship between the parties occurs until
the plaintiff becomes entitled to enforce a judgment,
consent decree, or settlement against the defendant.”
Farrar, 506 U.S. at 113; see p. 16 n.1, supra. The Court
thus made clear that, while partial successes may be
sufficient to confer prevailing-party status, any such
partial success must be reflected in a judicial order that
finally resolves the plaintiff ’s claim and awards tangible
relief.
C. Congress Has Long Awarded Costs And Attorney’s Fees
Incident To A Judgment Entered In Favor Of The Prevailing Party
Section 1988(b) authorizes the district court to award
“the prevailing party * * * a reasonable attorney’s fee
as part of the costs” of the action. 42 U.S.C. 1988(b)
(emphasis added). Because litigation “costs,” including
attorney’s fees, have traditionally been awarded as an
incident to the court’s judgment, that language reinforces the understanding that the “prevailing party” is
a party who obtains a favorable judgment.
23
In 1789, when the First Congress established the
lower federal courts in the first Judiciary Act, ch. 20,
1 Stat. 73, multiple sections of the Act recognized “[t]axable costs * * * as a part of a judgment or decree in a
Federal court,” reflecting that “Congress intended to
allow costs to the prevailing party, as incident to the
judgment.” The Baltimore, 75 U.S. (8 Wall.) 377, 388,
390 (1869); see id. at 389-390 (discussing Sections 11-12,
17, 20-23, and 35 of the Act); see also Taniguchi, 566
U.S. at 564 (discussing 1793 Act authorizing awards of
certain costs, including attorney’s fees, by federal
courts “ ‘in favour of the parties obtaining judgments
therein’ ” as the “prevailing parties”) (citation omitted).
“In 1853, Congress undertook to standardize the
costs allowable in federal litigation.” Alyeska Pipeline,
421 U.S. at 251; see Taniguchi, 566 U.S. at 565. The
1853 Act provided that “costs * * * recoverable in favor
of the prevailing party”—including the “fees of * * *
attorneys”—“shall be taxed * * * and be included in and
form a portion of a judgment or decree against the losing party.” Act of Feb. 26, 1853, ch. 80, § 3, 10 Stat. 168.
The language specifying that costs and attorney’s fees
awarded to the “prevailing party” shall be included as
part of the “judgment or decree against the losing
party” was reenacted in the Revised Statutes, Rev.
Stat. § 983 (2d ed. 1878), and remained in force until the
1948 codification of Title 28 into positive law, see 28
U.S.C. 830 (1946); see also 28 U.S.C. 571-572 (1946) (authorizing fees to be “taxed and allowed to attorneys, solicitors, and proctors” in fixed amounts ranging from
$2.50 to $100); Rev. Stat. §§ 823-824.4
The 1853 Act’s authorization to grant (small sums of ) attorney’s
fees as part of the costs continues today as 28 U.S.C. 1923(a). See
Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714,
4
24
“By the time the Federal Rules of Civil Procedure
were adopted in 1938, federal statutes had authorized
and defined awards of costs to prevailing parties for
more than 85 years.” Marek v. Chesny, 473 U.S. 1, 7-8
(1985). Rule 54 accordingly provided that “costs shall
be allowed as of course to the prevailing party” unless
the court or a statute provided otherwise. Fed. R. Civ.
P. 54(d) (1939), available at 28 U.S.C. p. 878 (Supp. V
1939). Today, Rule 54(d) similarly provides that, “[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—
should be allowed to the prevailing party.” Fed. R. Civ.
P. 54(d)(1).
In 1948, when Congress codified the provisions of
Title 28 into positive law, “[t]he sweeping reforms of the
1853 Act [were] carried forward * * * ‘without any apparent intent to change the controlling rules.’ ” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 440
(1987) (quoting Alyeska Pipeline, 421 U.S. at 255); see
28 U.S.C. 1920-1924 reviser’s notes (Supp. II 1948); see
also Fourco Glass Co. v. Transmirra Prods. Corp., 353
U.S. 222, 227 (1957) (explaining that “changes of language” in the 1948 codification make “no changes of law
or policy” absent a “clearly expressed” intent to do so).
Section 1920 of Title 28 states that the “costs” taxed by
the court shall be “included in the judgment or decree,”
28 U.S.C. 1920, which—as Rule 54(d) reflects—is a
judgment or decree in favor of the “prevailing party.”
See Crawford Fitting Co., 482 U.S. at 440-442.
Accordingly, when Congress enacted Section 1988(b)
in 1976, it acted against a long history of awarding costs
incident to a court’s judgment to the party in whose fa718 n.11 (1967); see also Alyeska Pipeline, 421 U.S. at 255 & n.27, 257
& n.30.
25
vor judgment was rendered. Congress’s authorization
to award attorney’s fees “as part of the costs,” The Civil
Rights Attorney’s Fees Awards Act of 1976, Pub. L. No.
94-559, § 2, 90 Stat. 2641, therefore reinforces the most
natural understanding of the term “prevailing party.”
D. Neither The District Court’s Entry Of A Preliminary Injunction, Nor The Court’s Subsequent Dismissal Of Respondents’ Suit In Light Of Intervening State Legislation, Conferred “Prevailing Party” Status Upon Respondents
Respondents’ success in obtaining a preliminary injunction did not make them prevailing parties. The district court’s issuance of the injunction did not reflect
any definitive resolution of respondents’ claims, but
simply defined the parties’ respective rights during the
pendency of the lawsuit. The court’s ultimate disposition of respondents’ case was to dismiss it as moot, not
to enter judgment for respondents or to award them
tangible relief. And while the Virginia legislature’s repeal of Section 46.2-395 gave respondents the same practical benefit they sought to obtain through the litigation,
that repeal did not make respondents prevailing parties
because it was not court-ordered relief.
1. “The purpose” of “a preliminary injunction” is
“not to conclusively determine the rights of the parties.”
Trump v. International Refugee Assistance Project,
582 U.S. 571, 580 (2017) (per curiam). Rather, it “is
merely to preserve the relative positions of the parties
until a trial on the merits can be held.” Camenisch, 451
U.S. at 395; accord Benisek v. Lamone, 585 U.S. 155,
161 (2018) (per curiam). A “preliminary injunction is
customarily [adjudicated] on the basis of procedures
that are less formal and evidence that is less complete
than in a trial on the merits.” Camenisch, 451 U.S. at
26
395. And it requires only a “likelihood of success on the
merits”—a showing that is “significantly different”
from the actual “success” on the merits that a favorable
judgment provides. Id. at 393-394. By the same token,
a preliminary injunction does not reflect any judicial determination that the defendant has actually violated
federal law—a usual prerequisite to a fee award to the
plaintiff. See pp. 15, 16 n.2, supra.5
The Federal Rules of Civil Procedure reflect the inherently interim and tentative nature of preliminary injunctions. “Since a preliminary injunction may be granted on a mere probability of success on the merits, generally the moving party must demonstrate confidence in
his legal position by posting bond in an amount sufficient to protect his adversary from loss in the event that
future proceedings prove that the injunction issued
wrongfully.” Edgar v. MITE Corp., 457 U.S. 624, 649
(1982) (Stevens, J., concurring in part and concurring in
the judgment). Rule 65(c) states that “[t]he court may
issue a preliminary injunction * * * only if the movant
An appellate court reviewing a preliminary injunction ordinarily
does not determine the ultimate merits of the plaintiff ’s claim, but
instead addresses whether the district court abused its discretion in
finding that “the plaintiff[] would [likely] succeed on the merits.”
Thornburgh v. American Coll. of Obstetricians & Gynecologists,
476 U.S. 747, 755 (1986). On rare occasions, however, this Court has
conducted “plenary review” of the merits in that procedural posture
when “a district court’s ruling rest[ed] solely on a premise as to the
applicable rule of law, and the facts [we]re established or of no controlling relevance.” Id. at 756-757 (identifying two such decisions in
1897 and 1952). If this Court definitively resolved the legal merits
of such a claim in a plaintiff ’s favor in a preliminary-injunction appeal, such a decision would be analogous (for purposes of the “prevailing party” inquiry) to this Court definitively resolving partial
summary judgment on liability.
5
27
gives security in an amount the court considers proper
to pay the costs and damages sustained by any party
found to have been wrongfully enjoined or restrained.”
Fed. R. Civ. P. 65(c); cf. 28 U.S.C. 382 (1934) (repealed
1948); S. Rep. No. 698, 63d Cong., 2d Sess. 21, 77-78
(1914). The Rule thus expressly contemplates, and provides for, the possibility that a plaintiff who obtains a
preliminary injunction may not ultimately succeed on
the merits of his claims.
In circumstances where “an expedited decision on
the merits [is] appropriate,” Rule 65(a)(2) establishes a
“means of securing one.” Camenisch, 451 U.S. at 395.
That Rule authorizes the district court to “advance the
trial on the merits and consolidate it with the [preliminaryinjunction] hearing,” Fed. R. Civ. P. 65(a)(2), where
clear “notice” “afford[s] the parties a full opportunity to
present their respective cases.” Camenisch, 451 U.S. at
395 (citation omitted). To be sure, such acceleration is
“generally inappropriate” because the truncated procedures and the “less complete” evidence available before
discovery can be barriers to a fair adjudication. Ibid.
But that simply underscores that the grant of temporary relief under such circumstances is a far cry from
an appropriate final resolution of the merits of a plaintiff ’s claims.
2. In Sole v. Wyner, 551 U.S. 74 (2007), the plaintiffs
(collectively Wyner) challenged the application of certain Florida-law restrictions to their proposed activities
in Florida state parks. Id. at 78-79. Their complaint
sought preliminary and permanent injunctive relief. Id.
at 79. The district court granted a preliminary injunction, which allowed the plaintiffs to engage in activities
the next day that the challenged state law would otherwise have prohibited. Id. at 79-80. The court ultimately
28
granted summary judgment for the defendants, however, id. at 80, and therefore did not award permanent
injunctive relief.
Wyner then sought attorney’s fees under Section
1988(b), arguing that the plaintiffs had “prevailed at the
preliminary injunction stage, and therefore qualif[ied]
for a fee award for their counsels’ efforts to obtain that
interim relief.” Sole, 551 U.S. at 77-78. This Court disagreed, holding “that a final decision on the merits
denying permanent injunctive relief ordinarily determines who prevails in the action for purposes of
§ 1988(b).” Id. at 78. The Court held that Wyner was
“not a prevailing party” because “her initial victory was
ephemeral.” Id. at 86. The Court did not resolve whether
“success in gaining a preliminary injunction may sometimes warrant an award of counsel fees” “in the absence
of a final decision on the merits of a claim for permanent
injunctive relief.” Ibid.
The circumstances of this case differ in two significant respects from the circumstances of Sole. First, respondents’ lawsuit was ultimately dismissed as moot rather than decided against them on the merits. Second,
the Virginia legislature’s repeal of Section 46.2-395 gave
respondents the practical benefit they had sought to
achieve through their lawsuit, whereas the district
court’s grant of summary judgment for the defendants
in Sole meant that the plaintiffs were again subject
to the disputed Florida-law restrictions. The Sole
Court’s analysis nevertheless sheds light on the proper
resolution of the question presented here. And neither
of those factual differences between the two cases supports the conclusion that respondents are “prevailing
parties.”
29
3. a. The court of appeals in this case stated that “a
preliminary injunction entails a ‘judicially sanctioned
change’ in the parties’ legal relationship.” Pet. App. 28a
(citation omitted). The court also asserted that respondents’ “claim to fees rests entirely on their victory at
the preliminary injunction stage, and not on the General
Assembly’s subsequent repeal of § 46.2-395.” Sole
makes clear, however, that respondents could not credibly have claimed to have become prevailing parties at
the moment the district court entered the preliminary
injunction. The Court in Sole observed that “the provisional relief granted” by the preliminary injunction in
that suit “terminated only the parties’ opening engagement” in a case where “the litigation to definitively resolve the controversy” would continue after the injunction issued. 551 U.S. at 84. The Court explained that a
“fee request at the initial stage” when the preliminary
injunction was granted therefore would have been
“premature.” Ibid. Respondents’ claim to prevailingparty status in this case therefore necessarily depends
on events that occurred after the injunction issued.
b. The district court’s final disposition of this case
likewise could not have made respondents “prevailing
parties.” The court did not enter judgment in respondents’ favor or award them any relief, and it did not find
that petitioner had violated federal law. The court instead dismissed the case as moot. To be sure, the district court in this case (unlike the district court in Sole)
did not reject the plaintiffs’ claims on the merits. But
Section 1988(b) does not authorize fee awards to nonlosing parties. It authorizes awards to prevailing parties, and respondents no more prevailed in the final disposition of their suit than did the plaintiffs in Sole.
30
c. Also unlike the plaintiffs in Sole, respondents ultimately achieved the practical objectives of their suit
when the Virginia legislature repealed the statutory
provision they had challenged. But the Virginia legislature’s repeal of Section 46.2-395—the event that caused
this case to become moot—could not make respondents
prevailing parties. Although that repeal gave respondents the same practical benefit that a favorable court
judgment would have provided, it did not reflect any judicial determination of the merits of respondents’ constitutional claims, and it did not constitute court-ordered relief. See Buckhannon, 532 U.S. at 605 (explaining that “[a] defendant’s voluntary change in conduct
lacks the necessary judicial imprimatur” to confer
“prevailing party” status.). That is so even if the Court
assumes arguendo that respondents’ success in obtaining a preliminary injunction played an important causal
role in inducing the legislature to act. See id. at 610
(rejecting the “catalyst theory” as a ground for holding
that non-judicial action can confer prevailing-party status); pp. 19-20, supra.
4. The en banc court of appeals made no attempt to
reconcile its holding with the long-established term-ofart understanding of “prevailing party,” i.e., the party
in whose favor the court enters judgment after finally
resolving the plaintiff ’s claim. Cf. Pet. App. 46a-47a
(Quattlebaum, J., dissenting). The majority instead emphasized that a preliminary injunction is premised on a
finding of likely success on the merits, and it concluded
that such a finding is “sufficiently on the merits to justify prevailing party status.” Id. at 27a-28a. This Court
has made clear, however, that it would be “improper[]”
to “equate[] ‘likelihood of success’ with ‘success’ ” on a
claim because an order granting a preliminary injunc-
31
tion is not “tantamount to [a] decision[] on the underlying merits.” Camenisch, 451 U.S. at 394. Attorney’s
fees are awarded to a prevailing plaintiff because the
losing defendant is “the party legally responsible for relief on the merits” and bears “fee liability” as an “ ‘incident of the judgment’ ” against it. Graham, 473 U.S. at
164 & n.7 (citation omitted). In this case, petitioner was
never found to have violated the law, and judgment was
never entered against him.
In holding that the preliminary injunction here gave
respondents “prevailing party” status, the en banc majority described this case as one in which “a preliminary
injunction has provided the plaintiff with precisely the
merits-based relief she need[ed] for precisely as long as
she need[ed] it,” i.e., until the Virginia legislature repealed Section 46.2-395. Pet. App. 33a. But such temporary relief during a discrete period while litigation is
pending bears no relevant relationship to the enduring,
enforceable relief that a final decision on the merits or
a consent decree provides. The only enduring relief secured by respondents came from the Virginia legislature, which repealed Section 46.2-395 and directed the
no-fee restoration of suspended licenses. See pp. 3-4,
supra.
The fact that legislation enacted during the pendency
of the suit obviated the need for a favorable court judgment does not mean that the district court’s preliminary
injunction conferred prevailing-party status. And the
preliminary injunction gave respondents relief “for precisely as long as [they] need[ed] it,” Pet. App. 33a, only
because of that legislative action. Thus, while the en
banc court of appeals purported to base its prevailingparty determination solely on the preliminary injunction rather than on the legislature’s repeal of the chal-
32
lenged statute, see id. at 28a, 30a, the repeal was central
to the court’s conclusion that respondents had prevailed. See id. at 63a-64a (Quattlebaum, J., dissenting).
That approach is simply “a new spin on the catalyst theory.” Id. at 62a (Quattlebaum, J., dissenting).
Finally, the majority’s concern that government
agencies may moot cases strategically to avoid fee liability (see Pet. App. 20a-21a) does not justify an exception to established prevailing-party principles. This
Court in Buckhannon characterized similar “policy arguments” about “unilateral[] mooting” acts as both
“speculative” and irrelevant to the proper interpretation of the term “prevailing party.” 532 U.S. at 608, 610
(noting that “the possibility of being assessed attorney’s
fees may well deter a defendant from altering its conduct”). Such policy concerns are better directed to Congress, which “is free, of course, to revise” Section
1988(b) if it concludes that a different balance among
competing values is appropriate. Id. at 622 (Scalia, J.,
concurring).
After the Buckhannon Court rejected the catalyst
theory, Congress enacted a targeted amendment to the
Freedom of Information Act, 5 U.S.C. 552, that now authorizes attorney’s-fee awards where the complainant
has “obtained relief ” through “a voluntary or unilateral
change in position by the agency, if the complainant’s
claim is not insubstantial.” 5 U.S.C. 552(a)(4)(E)(ii)(II).
In certain other limited contexts as well, Congress has
enacted attorney’s-fee provisions that do not limit
awards to “prevailing parties.” See, e.g., 28 U.S.C.
1447(c) (authorizing court to award “just” costs, including attorney’s fees, that are “incurred as a result of the
removal” of a case when the case is remanded to state
court); 42 U.S.C. 300aa-15(e)(1) (authorizing recovery of
33
attorney’s fees for a vaccine-compensation petition,
even if the court awards no compensation, if “the petition was brought in good faith and there was a reasonable basis for the claim”). If Congress concludes that the
established term-of-art understanding of “prevailing
party” is ill-suited to Section 1988(b), it can amend the
statute accordingly.
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
MALCOLM L. STEWART
Deputy Solicitor General
ANTHONY A. YANG
Assistant to the Solicitor
General
CHARLES W. SCARBOROUGH
THOMAS PULHAM
DANA KAERSVANG
Attorneys
JUNE 2024
APPENDIX
TABLE OF CONTENTS
Page
Statutes:
Act of Feb. 26, 1853, ch. 80, 10 Stat. 161 ......................... 1a
28 U.S.C. 382 (1934) ............................................................. 2a
28 U.S.C. 830 (1946) ............................................................. 3a
28 U.S.C. 1920 ....................................................................... 3a
28 U.S.C. 1923 ....................................................................... 4a
42 U.S.C. 1988 ....................................................................... 5a
Rules:
Fed. R. Civ. P. 54.................................................................. 6a
Fed. R. Civ. P. 65.................................................................. 6a
APPENDIX
1. The Act of Feb. 26, 1853, ch. 80, 10 Stat. 161, provided in pertinent part:
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in lieu of the compensation now allowed
by law to attorneys, solicitors, and proctors in the
United States courts, to United States district attorneys, clerks of the district and circuit courts, marshals,
witnesses, jurors, commissioners, and printers, in the
several States, the following and no other compensation
shall be taxed and allowed. But this act shall not be construed to prohibit attorneys, solicitors, and proctors
from charging to and receiving from their clients, other
than the Government, such reasonable compensation
for their services, in addition to the taxable costs, as
may be in accordance with general usage in their respective States, or may be agreed upon between the
parties.
Fees of Attorneys, Solicitors, and Proctors. In a trial
before a jury, in civil and criminal causes, or before referees, or on a final hearing in equity or admiralty, a
docket fee of twenty dollars: Provided, That in cases in
admiralty and maritime jurisdiction, where the libellant
shall recover less than fifty dollars the docket fee of his
proctor shall be but ten dollars.
In cases at law, where judgment is rendered without
a jury, ten dollars, and five dollars where a cause is discontinued.
For scire facias and other proceedings on recognizances, five dollars.
(1a)
2a
For each deposition taken and admitted as evidence
in the cause, two dollars and fifty cents.
A compensation of five dollars shall be allowed for
the services rendered in cases removed from a district
to a circuit court by writ of error or appeal.
* * * * *
SEC. 3. And be it further enacted, * * * *
* * * * *
The bill of fees of clerk, marshal, and attorneys, and
the amount paid printers, and witnesses, and lawful fees
for exemplifications and copies of papers necessarily
obtained for use on trial in cases where by law costs are
recoverable in favor of the prevailing party, shall be
taxed by a judge or clerk of the court, and be included
in and form a portion of a judgment or decree against
the losing party. Such taxed bills shall be filed with the
papers in the cause.
* * * * *
2.
28 U.S.C. 382 (1934) (repealed 1948) provided:
[Injunctions]; security on issuance of. Except as oth-
erwise provided in section 26 of Title 15, no restraining
order or interlocutory order of injunction shall issue,
except upon the giving of security by the applicant in
such sum as the court or judge may deem proper, conditioned upon the payment of such costs and damages
as may be incurred or suffered by any party who may
be found to have been wrongfully enjoined or restrained
thereby.
3a
3.
28 U.S.C. 830 (1946) provided:
[Costs]; bill of; taxation.
The bill of fees of the clerk, marshal, and attorney,
and the amount paid printers and witnesses, and lawful
fees for exemplifications and copies of papers necessarily obtained for use on trials in cases where by law
costs are recoverable in favor of the prevailing party,
shall be taxed by a judge or clerk of the court, and be
included in and form a portion of a judgment or decree
against the losing party. Such taxed bills shall be filed
with the papers in the cause.
4.
28 U.S.C. 1920 provides:
Taxation of costs
A judge or clerk of any court of the United States
may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded
transcripts necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
4a
A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.
* * * * *
HISTORICAL AND REVISION NOTES
Based on title 28, U.S.C., 1940 ed., §§ 9a(a) and 830
(R.S. § 983; Mar. 3, 1911, ch. 231, § 5a, as added Jan. 20,
1944, ch. 3, § 1, 58 Stat. 5).
For distribution of other provisions of section 9a of
title 28, U.S.C., 1940 ed., see table at end of reviser’s
notes.
Word ‘‘may’’ was substituted for ‘‘shall’’ before ‘‘tax
as costs,’’ in view of Rule 54(d) of the Federal Rules of
Civil Procedure, providing for allowance of costs to the
prevailing party as of course ‘‘unless the court otherwise directs’’.
Changes were made in phraseology.
5.
28 U.S.C. 1923 provides in pertinent part:
Docket fees and costs of briefs
(a) Attorney’s and proctor’s docket fees in courts of
the United States may be taxed as costs as follows:
$20 on trial or final hearing (including a default judgment whether entered by the court or by the clerk) in
civil, criminal, or admiralty cases, except that in cases
of admiralty and maritime jurisdiction where the libellant recovers less than $50 the proctor’s docket fee shall
be $10;
$20 in admiralty appeals involving not over $1,000;
$50 in admiralty appeals involving not over $5,000;
5a
$100 in admiralty appeals involving more than
$5,000;
$5 on discontinuance of a civil action;
$5 on motion for judgment and other proceedings on
recognizances;
$2.50 for each deposition admitted in evidence.
* * * * *
6.
42 U.S.C. 1988 provides in pertinent part:
Proceedings in vindication of civil rights
* * * * *
(b) Attorney’s fees
In any action or proceeding to enforce a provision of
sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this
title, title IX of Public Law 92-318 [20 U.S.C. 1681
et seq.], the Religious Freedom Restoration Act of 1993
[42 U.S.C. 2000bb et seq.], the Religious Land Use and
Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc
et seq.], title VI of the Civil Rights Act of 1964 [42
U.S.C. 2000d et seq.], or section 12361 of title 34, 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, except that in any action
brought against a judicial officer for an act or omission
taken in such officer’s judicial capacity such officer shall
not be held liable for any costs, including attorney’s
fees, unless such action was clearly in excess of such officer’s jurisdiction.
* * * * *
6a
7. Rule 54 of the Federal Rules of Civil Procedure provides in pertinent part:
Judgment; Costs
* * * * *
(d) COSTS; ATTORNEY’S FEES.
(1) Costs Other Than Attorney’s Fees. Unless a
federal statute, these rules, or a court order provides
otherwise, costs—other than attorney’s fees—should
be allowed to the prevailing party. But costs against
the United States, its officers, and its agencies may
be imposed only to the extent allowed by law. The
clerk may tax costs on 14 days’ notice. On motion
served within the next 7 days, the court may review
the clerk’s action.
* * * * *
8. Rule 65 of the Federal Rules of Civil Procedure provides in pertinent part:
Injunctions and Restraining Orders
(a) PRELIMINARY INJUNCTION.
(1) Notice. The court may issue a preliminary injunction only on notice to the adverse party.
(2) Consolidating the Hearing with the Trial on
the Merits. Before or after beginning the hearing on
a motion for a preliminary injunction, the court may
advance the trial on the merits and consolidate it
with the hearing. Even when consolidation is not ordered, evidence that is received on the motion and
that would be admissible at trial becomes part of the
trial record and need not be repeated at trial. But
7a
the court must preserve any party’s right to a jury
trial.
(b) TEMPORARY RESTRAINING ORDER.
* * * * *
(c) SECURITY. The court may issue a preliminary
injunction or a temporary restraining order only if the
movant gives security in an amount that the court considers proper to pay the costs and damages sustained
by any party found to have been wrongfully enjoined or
restrained. The United States, its officers, and its agencies are not required to give security.
* * * * *
NOTES OF ADVISORY COMMITTEE ON RULES—1937
Note to Subdivisions (a) and (b). These are taken
from U.S.C., Title 28, [former] § 381 (Injunctions; preliminary injunctions and temporary restraining orders).
Note to Subdivision (c). Except for the last sentence, this is substantially U.S.C., Title 28, [former]
§ 382 (Injunctions; security on issuance of ). * * * *
* * * * *
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.