Respondents 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 briefAug 5, 2024

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No. 23-621

IN THE

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 RESPONDENTS

_______________

Angela A. Ciolfi

LEGAL AID JUSTICE

CENTER

1000 Preston Avenue

Suite A

Charlottesville, VA 22903

(434) 529-1810

Brian D. Schmalzbach

Counsel of Record

Matthew A. Fitzgerald

John J. Woolard

MCGUIREWOODS LLP

Gateway Plaza

800 East Canal Street

Richmond, VA 23219

(804) 775-4746

bschmalzbach@

mcguirewoods.com

(Additional counsel on inside cover)

Patrick Levy-Lavelle

LEGAL AID JUSTICE

CENTER

626 East Broad Street

Suite 200

Richmond, VA 23219

(804) 643-1086

Jonathan T. Blank

MCGUIREWOODS LLP

323 Second Street SE

Suite 700

Charlottesville, VA 22902

(434) 977-2509

Counsel for Respondents Damian Stinnie, Melissa

Adams, Adrainne Johnson, Williest Bandy, and

Brianna Morgan

QUESTION PRESENTED

Are plaintiffs who win a court order that grants

their requested relief and is never reversed

nevertheless ineligible to be “prevailing parties”

under 42 U.S.C. § 1988(b) when that order is a

preliminary injunction?

TABLE OF CONTENTS

QUESTION PRESENTED .................................................. i

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

INTRODUCTION ............................................................. 1

STATUTORY BACKGROUND ........................................... 3

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

Virginia’s court-debt scheme suspended

Plaintiffs’ licenses automatically with no

right to be heard. ............................................. 4

II.

Plaintiffs won a preliminary injunction. ......... 5

III.

The Commissioner sought a stay while the

General Assembly repealed the offending

statute as he urged. ......................................... 7

IV.

The court of appeals adopted the circuit

consensus and held that Plaintiffs were

prevailing parties. ............................................ 9

SUMMARY OF ARGUMENT ........................................... 11

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

The text and history of § 1988(b) recognize

preliminary injunction winners as

“prevailing parties.” ....................................... 15

The ordinary meaning of “prevailing

party” includes preliminary

injunction winners. ............................. 15

Congress required finality in other

statutes but excluded it from

§ 1988(b). ............................................. 17

iii

II.

III.

In equity, courts granted prevailing

parties interim costs, including for

preliminary injunctions. ..................... 19

Preliminary injunctions can satisfy all

the prevailing party requirements under

this Court’s precedent. ................................... 21

Preliminary injunctions often

meaningfully change legal

relationships. ....................................... 22

Preliminary injunctions are

enforceable judgments bearing

judicial imprimatur. ............................ 26

The Court should reject the

Commissioner’s additional

“prevailing party” requirements. ........ 29

Full merits adjudication

is not required........................... 30

In any event, preliminary

injunctions are sufficiently

based on the merits. ................. 33

Prevailing party status

requires no enduring change

beyond what a preliminary

injunction can accomplish. ....... 36

The circuit consensus optimizes

litigation incentives. ...................................... 42

The Commissioner’s rule invites

gamesmanship that would

undermine civil rights

enforcement. ........................................ 42

IV.

The circuit consensus discourages

unnecessary post-injunction

proceedings. ......................................... 47

The circuit consensus is readily

administrable. ..................................... 50

These Plaintiffs are prevailing parties. ........ 51

CONCLUSION .............................................................. 53

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

585 U.S. 579 (2018) ............................................. 27

Agency for International Development v.

Alliance for Open Society

International, Inc.,

570 U.S. 205 (2013) ............................................. 28

Agostini v. Felton,

521 U.S. 203 (1997) ............................................. 38

Allee v. Medrano,

416 U.S. 802 (1974) ............................................. 38

Alyeska Pipeline Service Co. v. Wilderness

Society,

421 U.S. 240 (1975) ............................................... 3

Amawi v. Paxton,

956 F.3d 816 (5th Cir. 2020) ............................... 46

Arizona v. California,

530 U.S. 392 (2000) ............................................. 31

Ashcroft v. ACLU,

542 U.S. 656 (2004) ............................................. 28

Avery v. Wilson,

20 F. 856 (C.C.W.D.N.C. 1884) ........................... 20

Baltimore Contractors v. Bodinger,

348 U.S. 176 (1955), overruled on other

grounds by Gulfstream Aerospace Corp. v.

Mayacamas Corp., 485 U.S. 271 (1988) ............. 27

Bearden v. Georgia,

461 U.S. 660 (1983) ............................................... 6

Bell v. Burson,

402 U.S. 535 (1971) ............................................... 6

Benham v. Willmer,

207 P. 592 (1922) ................................................. 20

Boston Bit Labs, Inc. v. Baker,

11 F.4th 3 (1st Cir. 2021) .................................... 45

Bradley v. Sch. Bd. of City of Richmond,

416 U.S. 696 (1974) ........................................ 18-19

Brooks v. Byam,

4 F. Cas. 271 (C.C.D. Mass. 1843) ...................... 20

Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health and Human Res.,

532 U.S. 598 (2001) ................ 15-16, 22, 26-27, 31,

33, 39, 42, 46, 48-50

Christiansburg Garment Co. v. EEOC,

434 U.S. 412 (1978) ............................................. 41

City of Riverside v. Rivera,

477 U.S. 561 (1986) ............................................... 4

City of San Antonio, Texas v. Hotels.com, L.P.,

593 U.S. 330 (2021) ............................................. 50

Clancy v. Geb,

104 N.W. 746 (1905) ............................................ 21

Consol. California & V. Min. Co. v. Baker,

131 F. 989 (C.C.D. Nev. 1904) ............................ 20

vii

Corley v. United States,

556 U.S. 303 (2009) ............................................. 18

CRST Van Expedited v. EEOC,

578 U.S. 419 (2016) ..................................21, 41, 53

Davis v. PBGC,

571 F.3d 1288 (D.C. Cir. 2009) ........................... 34

Eastburn v. Kirk,

1817 WL 1578 (N.Y. Ch. 1817) ........................... 20

Erlenbaugh v. United States,

409 U.S. 239 (1972) ............................................. 18

Evans v. Jeff D.,

475 U.S. 717 (1986) ............................................. 48

Farrar v. Hobby,

506 U.S. 103 (1992) ............................22, 27, 33, 53

Fowler v. Benson,

924 F.3d 247 (6th Cir. 2019) ............................... 35

Freedom from Religion Found., Inc. v. Abbott,

58 F.4th 824 (5th Cir. 2023)................................ 38

Fusari v. Steinberg,

419 U.S. 379 (1975) ............................................. 46

Garland v. Cargill,

602 U.S. 406 (2024) ............................................. 15

Hanrahan v. Hampton,

446 U.S. 754 (1980) ........................................25, 40

Hawse v. Page,

7 F.4th 685 (8th Cir. 2021).................................. 45

viii

Hensley v. Eckerhart,

461 U.S. 424 (1983) ..................................25, 29, 53

Hewitt v. Helms,

482 U.S. 755 (1987) .................................. 16, 24-25

Initiative & Referendum Inst. v. U.S.

Postal Serv.,

794 F.3d 21 (D.C. Cir. 2015) ............................... 39

Kansas Jud. Rev. v. Stout,

562 F.3d 1240 (10th Cir. 2009) ........................... 24

Kentucky v. Graham,

473 U.S. 159 (1985) ............................................. 32

Kirtsaeng v. John Wiley & Sons, Inc.,

579 U.S. 197 (2016) ............................................. 32

Kremens v. Bartley,

431 U.S. 119 (1977) ............................................. 46

Lefemine v. Wideman,

568 U.S. 1 (2012) ................................ 22-23, 27, 38

Lewis v. Continental Bank Corp.,

494 U.S. 472 (1990) ............................................. 38

Lighthouse Fellowship Church v. Northam,

20 F.4th 157 (4th Cir. 2021)................................ 45

Maher v. Gagne,

448 U.S. 122 (1980) ............................ 13, 30-31, 40

McLaughlin by McLaughlin v. Bos. Sch. Comm.,

938 F. Supp. 1001 (D. Mass. 1996) ..................... 23

Memphis Cmty. Sch. Dist. v. Stachura,

477 U.S. 299 (1986) ............................................. 46

Munaf v. Geren,

553 U.S. 674 (2008) ............................................. 36

Muniz v. Hoffman,

422 U.S. 454 (1975) ............................................. 28

N.Y. State Rifle & Pistol Ass’n, Inc. v.

City of New York,

590 U.S. 336 (2020) ..............................4, 43, 45, 48

Newton v. Consol. Gas Co. of New York,

265 U.S. 78 (1924) ............................................... 20

Pasadena City Bd. of Ed. v. Spangler,

427 U.S. 424 (1976) ............................................. 28

Pennsylvania v. Del. Valley Citizens’

Council for Clean Air,

478 U.S. 546 (1986) ............................................... 4

Pennsylvania v. Wheeling & Belmont

Bridge Co.,

59 U.S. 460 (1855) ............................................... 20

People Against Police Violence v. Pittsburgh,

520 F.3d 226 (3d Cir. 2008)................................. 23

Perdue v. Kenny A. ex rel. Winn,

559 U.S. 542 (2010) ............................................... 4

Planned Parenthood Ass’n of Utah v. Herbert,

839 F.3d 1301 (10th Cir. 2016) ........................... 34

Pleasant View Baptist Church v. Beshear,

838 F. App’x 936 (6th Cir. 2020) ......................... 45

Pulliam v. Allen,

466 U.S. 522 (1984) ........................................ 46-47

Resurrection Sch. v. Hertel,

35 F.4th 524 (6th Cir. 2022)................................ 45

Roberts v. Neace,

65 F.4th 280 (6th Cir. 2023)................................ 39

Roberts v. Neace,

958 F.3d 409 (6th Cir. 2020) ............................... 24

Roman Catholic Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) ............................................... 45

S. Bay United Pentecostal Church v. Newsom,

141 S. Ct. 716 (2021) ........................................... 44

Schenck v. Pro-Choice Network of West

New York,

519 U.S. 357 (1997) ............................................. 28

Select Milk Producers, Inc. v. Johanns,

400 F.3d 939 (D.C. Cir. 2005) ............................. 27

Shalala v. Schaefer,

509 U.S. 292 (1993) ........................................ 31-32

Smyth ex rel. Smyth v. Rivero,

282 F.3d 268 (4th Cir. 2002) ...................... 9-10, 44

Sole v. Wyner,

551 U.S. 74 (2007) ............ 13, 21-22, 29, 36-39, 41,

49, 52

Starbucks Corp. v. McKinney,

144 S. Ct. 1570 (2024) .................................... 33-35

Stinnie v. Holcomb,

77 F.4th 200 (4th Cir. 2023)........ 10-11, 17, 25, 29,

31, 33, 37, 39-40, 43-44, 47, 51-53

Stinnie v. Holcomb,

37 F.4th 977 (4th Cir. 2022)................................ 10

Stinnie v. Holcomb,

No. 3:16-CV-00044, 2021 WL 2292807

(W.D. Va. June 4, 2021) ........................................ 9

Stinnie v. Holcomb,

396 F. Supp. 3d 653 (W.D. Va. 2019).................... 8

Stinnie v. Holcomb,

355 F. Supp. 3d 514 (W.D. Va. 2018).................. 51

Stinnie v. Holcomb,

734 F. App’x 858 (4th Cir. 2018) ........................... 5

Sys. Fed’n No. 91 v. Wright,

364 U.S. 642 (1961) ............................................. 38

Tex. State Teachers Ass’n v. Garland,

489 U.S. 782 (1989) ........... 22-23, 29, 33, 40-41, 50

Thornburgh v. Am. Coll. of

Obstetricians & Gynecologists,

476 U.S. 747 (1986) ............................................. 36

Univ. of Texas v. Camenisch,

451 U.S. 390 (1981) ............................................. 24

xii

Van Tieghem v. Sushenka,

254 Ill. App. 409 (Ill. App. Ct. 1929) ................... 20

Veasey v. Wilkins,

158 F. Supp. 3d 466 (E.D.N.C. 2016).................. 24

Williams v. Illinois,

399 U.S. 235 (1970) ............................................... 6

Williams v. Wallace,

240 F. Supp. 100 (M.D. Ala. 1965)...................... 23

Winter v. Natural Resources Defense

Council, Inc.,

555 U.S. 7 (2008) ............................................. 5, 33

Statutes

5 U.S.C. § 504(a)(2) ................................................... 19

15 U.S.C. § 6104(d) ................................................... 19

16 U.S.C § 460tt(c)(1) ............................................... 19

20 U.S.C. § 1617 ..................................................12, 18

20 U.S.C. § 1681 et seq. .............................................. 3

28 U.S.C. § 1292(a)(1) ..........................................12, 27

28 U.S.C. § 2412(d)(2)(H) ......................................... 19

33 U.S.C. § 1910 ....................................................... 19

42 U.S.C. § 1983 ......................................................... 3

xiii

Civil Rights Attorney’s Fees Award Act of 1976,

42 U.S.C. § 1988(b) ...................... 1-3, 11-12, 14-15,

17-19, 21-23, 30, 37, 40-43, 46-47, 53

42 U.S.C. § 2000bb et seq. .......................................... 3

42 U.S.C. § 2000cc et seq. ........................................... 3

49 U.S.C. § 30171 ..................................................... 19

49 U.S.C. § 60129(B)................................................. 19

Telemarketing and Consumer Fraud and

Abuse Prevention Act, Pub. L. No.

103-297, § 5, 108 Stat. 1545 (1994) .................... 19

Virginia Code § 46.2-395 ............................ 4-10, 51-52

Other Authorities

117 Cong. Rec. 11,523 (1971) ................................... 18

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

Black’s Law Dictionary (7th ed. 1999) ..................... 27

The Compact Edition of the Oxford

English Dictionary (1971) ................................... 15

Matthew Chaney, Virginia License

Suspension Law Faces New Challenges,

Va. Law. Wkly. (Jan. 9, 2019),

https://valawyersweekly.com/2019/01/09/v

a-license-suspension-law-faces-newchallenges/ .......................................................... 7-8

Fed. R. Civ. P. 54(a) .................................................. 27

xiv

Fed. R. Civ. P. 60(b)(5) ............................................. 38

Fed. R. Civ. P. 65 ...................................................... 48

H.R. Rep. No. 94-1558 (1976) ............. 3, 18-19, 31, 40,

46-47

Interlocutory Injunction Appeals—In General,

16 Fed. Prac. & Proc. Juris. § 3921 (3d ed.) ....... 27

John Leubsdorf, The Standard for

Preliminary Injunctions,

91 Harv. L. Rev. 525 (1978) ................................ 24

Office of Virginia Governor, Gov. Northam

Announces Budget Amendment to

Eliminate Driver’s License Suspensions

for Nonpayment of Court Fines and Costs

(Mar. 26, 2019),

http://bit.ly/GovNorthamBudget........................... 8

S. Rep. No. 94-1011 (1976) ........................3, 31, 40, 46

Webster’s New International Dictionary

(3d ed. 1961) ........................................................ 15

INTRODUCTION

Text, history, precedent, and common sense all

agree: the winner of a preliminary injunction can

qualify as a “prevailing party” eligible for fees under

42 U.S.C. § 1988(b). Yet Petitioner proposes to

categorically exclude such winners from fee

awards. Every circuit to consider the issue rejects

Petitioner’s proposal. This Court should too.

Respondents are the plaintiffs who won a lifechanging injunction ending the suspension of their

driver’s licenses under a vindictive Virginia law. That

injunction proved to be all the judicial relief Plaintiffs

would ever need. Rather than defend the statute,

Petitioner

(the

Commissioner

Virginia’s

Department of Motor Vehicles) sought a stay and then

ran out the clock. The statute was repealed before

Plaintiffs could try their case. The injunction thus

barred the Commissioner from enforcing that statute

against Plaintiffs as long as it remained on the books.

The court below recognized that the preliminary

injunction gave Plaintiffs meaningful relief for as long

as they needed it. That relief made them prevailing

parties. So the lower court abandoned its outlier

precedent excluding all preliminary injunction

winners, joining instead the consensus of other

circuits.

Yet the Commissioner insists that winning all the

relief a plaintiff needs does not make a prevailing

party. That defies common sense.

Like many preliminary injunction winners, these

Plaintiffs got the judicial relief they needed. But the

Commissioner says that Congress excluded them

because they won that relief too soon in the litigation.

In fact, the Commissioner says that governments

should be able to use their powers over legislation and

policy to moot these cases and insulate themselves

from fee-shifting.

But § 1988(b) was meant to

encourage attorneys to enter the fray against

governments. The Commissioner’s rule does the

opposite. That is a recipe for more constitutional

violations, and less enforcement.

There is no good reason to interpret § 1988(b) that

way. Nothing in the text discriminates against

plaintiffs who win the relief they need before final

judgment. The historical background confirms that

Congress drew no such line. And this Court’s

precedent makes winning the requested relief the

touchstone of “prevailing party” status.

So this Court should keep its existing prevailingparty rule: the winner of an unreversed judgment

materially changing the parties’ legal relationship has

prevailed. That same rule applies to preliminary

injunctions, which are often unreversed judgments

that materially change the parties’ legal relationship.

For instance, these Plaintiffs won an injunction lifting

the automatic statutory suspension of the licenses

necessary to accomplish life’s necessities.

That

change was material and never undone on the merits.

Plaintiffs thus qualify as prevailing parties. That

threshold question of eligibility is the only one before

this Court. On remand, the District Court has

discretion to determine a reasonable amount of fees.

That is the time to consider the Commissioner’s

critique of the extent and duration of the relief

Plaintiffs won. For now, this Court should reject the

Commissioner’s categorical eligibility bar, and affirm.

STATUTORY BACKGROUND

The Civil Rights Attorney’s Fees Award Act of

1976, 42 U.S.C. § 1988(b), provides that in certain

federal civil rights actions:

[T]he court, in its discretion, may allow the

prevailing party, other than the United States,

a reasonable attorney’s fee as part of the costs.

The impetus for § 1988(b) was Alyeska Pipeline

Service Co. v. Wilderness Society, 421 U.S. 240 (1975),

which held that federal courts could not award

attorney’s fees to prevailing parties absent

congressional authorization. The next year, § 1988(b)

provided that authorization, effectively overruling

Alyeska Pipeline for civil rights claims. S. Rep. No. 941011, at 4 (1976) (“Senate Report”); H.R. Rep. No. 941558, at 2-3 (1976) (“House Report”).

Section 1988(b) originally applied to claims under

“the civil rights acts which Congress ha[d] passed

since 1866” like 42 U.S.C. § 1983 and Title IX, 20

U.S.C. § 1681 et seq. Senate Report 2. Congress later

expanded § 1988(b) to civil rights statutes like the

Religious Freedom Restoration Act of 1993 and the

Religious Land Use and Institutionalized Persons Act

of 2000. 42 U.S.C. § 2000bb et seq.; 42 U.S.C. § 2000cc

et seq.

Section 1988 aims “to [e]nsure that private citizens

have a meaningful opportunity to vindicate their

rights protected by the Civil Rights Acts.”

Pennsylvania v. Del. Valley Citizens’ Council for Clean

Air, 478 U.S. 546, 559 (1986). “Congress enacted

§ 1988 specifically because it found that the private

market for legal services failed to provide many

victims of civil rights violations with effective access

to the judicial process.” City of Riverside v. Rivera,

477 U.S. 561, 576 (1986). “Section 1988 serves an

important public purpose by making it possible for

persons without means to bring suit to vindicate their

rights.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,

559 (2010); see also N.Y. State Rifle & Pistol Ass’n, Inc.

v. City of New York, 590 U.S. 336, 360-61 (2020) (Alito,

J., dissenting) (“The prospect of an award of attorney’s

fees ensures that private attorneys general can

enforce the civil rights laws through civil litigation,

even if they cannot afford legal counsel.”).

STATEMENT OF THE CASE

Virginia’s court-debt scheme suspended

Plaintiffs’ licenses automatically with no

right to be heard.

This case challenged a statute disabling indigent

Virginians from driving because of their indigency.

Virginia Code § 46.2-395 required the Commissioner

to automatically suspend driver’s licenses for “failure

or refusal” to pay court debt, without offering any

process to determine ability to pay. Under this

scheme, the Commissioner would not reinstate a

license unless that individual satisfied all court debt

or obtained payment plans from each creditor court.

Even then, the Commissioner would extract a steep

$145 reinstatment fee. J.A.82-83. Plaintiffs argued

that the statute blindfolded the Commissioner to their

inability to pay and so violated due process.

The District Court dismissed the initial complaint

on jurisdictional grounds. On appeal, the Fourth

Circuit “remand[ed] the case to the district court with

instructions to allow Plaintiffs to amend.” Stinnie v.

Holcomb, 734 F. App’x 858, 860-63 (4th Cir. 2018).

The dissent would have gone further, concluding on

the merits that Virginia’s “license-for-payment

scheme” violated the Fourteenth Amendment by

failing to “differentiate between those unable to pay

from those unwilling to pay.” Id. at 863-64.

II.

Plaintiffs won a preliminary injunction.

On remand, Plaintiffs amended their complaint

and requested a preliminary injunction (1) barring the

Commissioner from enforcing § 46.2-395 against them

without notice and a determination of ability to pay;

(2) removing any current suspensions of Plaintiffs’

driver’s licenses imposed under § 46.2-395; and (3)

preventing the Commissioner from charging a fee to

reinstate Plaintiffs’ licenses if otherwise eligible. The

Commissioner had six weeks to file a response to that

motion, three weeks to prepare for the preliminary

injunction hearing, and then hours to offer its own

witnesses and cross-examine Plaintiffs’. J.A.20-24,

172-349.

The District Court granted that injunction under

the “govern[ing]” test from Winter v. Natural

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

J.A.366, 381.

The District Court first held that Plaintiffs made a

“clear showing that [they are] likely to succeed” on the

merits of their procedural due process claim. J.A.36676. Plaintiffs had a protected interest in their driver’s

licenses. J.A.368 & 376 (citing Bell v. Burson, 402

U.S. 535 (1971)). Section 46.2-395 deprived Plaintiffs

of that interest without due process. In particular,

§ 46.2-395 allowed no hearing to contest license

revocations. J.A.372 (“The Court determines that

Plaintiffs are likely to succeed because the procedures

in place are not sufficient to protect against the

erroneous deprivation of the property interest

involved. Indeed, § 46.2-395, on its face, provides no

procedural hearing at all.”).

Plaintiffs thus were prevented from proving that

their court debt persisted because they could not pay

rather than would not pay. Their demonstrated

inability to pay (J.A.362) was relevant because

schemes depriving those who cannot pay of life,

liberty, or property violate the Fourteenth

Amendment. See, e.g., Bearden v. Georgia, 461 U.S.

660, 668 (1983); see also Williams v. Illinois, 399 U.S.

235, 242-44 nn.19-20 (1970) (distinguishing between

“inability to pay court costs” and “willful refusal to pay

fines or court costs”). So the lack of any hearing to

prove their indigency as a defense to Virginia’s

scheme deprived Plaintiffs of due process. The

District Court thus found a sufficient showing on the

merits to satisfy Winter. J.A.372.

The other Winter factors favored an injunction too.

“Irreparable harm [was] clearly demonstrated

through the facts surrounding Plaintiff Stinnie.”

J.A.377. And for the balance of equities and the public

interest, Virginia had no interest “furthered by a

license suspension scheme that neither consider[ed]

an individual’s ability to pay nor provide[d] him with

an opportunity to be heard on the matter. ” J.A.378.

So the harm to Plaintiffs from § 46.2-395

“outweigh[ed] any harm the issuance of a preliminary

injunction would cause others.” Ibid.

The District Court thus upended the status quo in

three ways.

First, the Commissioner was

“preliminarily enjoined from enforcing … § 46.2-395

against Plaintiffs unless or until … a hearing

regarding license suspension and … adequate notice

thereof.” J.A.381. Second, he had to “remove any

current suspensions of the Plaintiffs’ driver’s licenses

imposed under … § 46.2-395.” Ibid. Third, the

Commissioner was “enjoined from charging a fee to

reinstate Plaintiffs’ driver’s licenses if there [were] no

other restrictions on their licenses.” Ibid.

The Commissioner did not appeal that injunction.

Nor did he ever ask the District Court to reconsider or

vacate it. Instead, he acquiesced in the relief the

District Court awarded to Plaintiffs.

III.

The Commissioner sought a stay while the

General Assembly repealed the offending

statute as he urged.

That preliminary injunction sped to the Virginia

General Assembly’s attention. Less than a month

later, Senator William M. Stanley (R), who sponsored

legislation

repealing

§ 46.2-395,

remarked:

“Hopefully with the preliminary injunction being

granted, anybody who has doubts about [the bill to

end the required license suspensions for nonpayment

of court debt] will remove them. I hope the House of

Delegates will join the Senate in fixing this problem.”

Matthew Chaney, Virginia License Suspension Law

Faces New Challenges, Va. Law. Wkly. (Jan. 9, 2019),

https://valawyersweekly.com/2019/01/09/va-license-

suspension-law-faces-new-challenges/

Aug. 4, 2024).

(last

visited

Soon after, the General Assembly adopted a

Budget Amendment providing temporary relief to

victims of Virginia’s automatic suspension scheme.

Office of Virginia Governor, Gov. Northam Announces

Budget Amendment to Eliminate Driver’s License

Suspensions for Nonpayment of Court Fines and Costs

(Mar. 26, 2019), http://bit.ly/GovNorthamBudget (last

visited Aug. 4, 2024).

Weeks later, the Commissioner moved to dismiss

the case as moot, or to stay it so the General Assembly

could achieve permanent repeal.

J.A.384-85.

Plaintiffs opposed the motion, reiterating their

request for a prompt trial. J.A.429. The District

Court granted a stay pending the General Assembly’s

2020 session (which would not start for six months).

Stinnie v. Holcomb, 396 F. Supp. 3d 653, 661 (W.D.

Va. 2019). The same day, the court canceled the trial

set for August 2019. J.A.52.

During that 2020 session, the General Assembly

considered legislation permanently eliminating the

statute’s unconstitutional mandate, including

Senator Stanley’s SB1. The Commissioner sent a

letter to Senator Stanley regarding the legislation.

J.A.407. That letter advocated how to repeal § 46.2395 effectively and the need for repeal given this

litigation:

As you are aware DMV is currently a party to

the Stinnie v. Holcomb case, in which the issue

under consideration is driver’s license

suspensions for failure to pay court fines and

costs pursuant to § 46.2-395. On June 28, 2019,

the Court stayed the litigation until after the

close of the 2020 General Assembly Session to

allow the legislature to repeal § 46.2-395. An

emergency enactment clause is needed to

demonstrate to the Court that matters at issue

in Stinnie v. Holcomb litigation have been

addressed by the General Assembly. This

should result in the pending litigation being

dismissed, relieving the Department from

continuing to incur costly legal fees.

J.A.408-09 (emphasis added).

The General Assembly enacted SB1, repealing

§ 46.2-395 for good.

IV.

The court of appeals adopted the circuit

consensus and held that Plaintiffs were

prevailing parties.

The parties then stipulated that this action was

moot—over sixteen months after the preliminary

injunction granted Plaintiffs the relief they sought.

J.A.412. After the repeal mooted this case, the

District Court retained jurisdiction to consider

Plaintiffs’ attorney’s fees. J.A.420. The parties first

briefed the threshold “prevailing party” issue.

J.A.423. The amount of any award was reserved for

later briefing. Ibid. It has yet to occur.

The District Court denied the fee petition under

then-existing Fourth Circuit precedent in Smyth ex

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

Stinnie v. Holcomb, No. 3:16-CV-00044, 2021 WL

2292807 (W.D. Va. June 4, 2021). Under Smyth, a

preliminary injunction victory in a case later mooted

could never make a “prevailing party.” 282 F.3d at

277.

Plaintiffs appealed. A three-judge panel of the

Fourth Circuit affirmed under Smyth. 37 F.4th 977,

982-83 (4th Cir. 2022). But en banc, the Fourth

Circuit reversed course. 77 F.4th 200, 203 (4th Cir.

2023). Smyth was an “outlier”; “[e]very other circuit

to consider the issue has held that a preliminary

injunction may confer prevailing party status in

appropriate circumstances.” Ibid. The Fourth Circuit

held instead that Plaintiffs “‘prevailed’ in every sense

needed to make them eligible for a fee award.” Ibid.

The Fourth Circuit stated:

The plaintiffs here secured a preliminary

injunction based on a “clear showing” that Va.

Code § 46.2-395 was likely unconstitutional ….

And after years of “long, contentious, and no

doubt costly” litigation, the plaintiffs were

eager to proceed to summary judgment …. But

over the plaintiffs’ protests, the Commissioner

secured a stay so that the General Assembly

could repeal the statute and moot the case ….

Moreover,

the

Commissioner

provided

significant input on how to structure the repeal

—including a draft bill—so that it would “result

in the pending litigation being dismissed,

relieving” the government’s obligation to “incur

costly legal fees.” And because Virginia is in

the Fourth Circuit and not anywhere else in the

country, the Commonwealth could rest assured

that this eleventh-hour capitulation would

insulate it from a fee award. As this case so

unfortunately demonstrates, instead of opening

the courthouse doors to meritorious civil rights

claimants, Smyth’s rule gives the government

the key, allowing it to lock out civil rights

plaintiffs whenever their success seems

imminent. This cannot have been Congress’s

intent in passing § 1988(b).

Id. at 210.

The Fourth Circuit remanded to determine the

amount of Plaintiffs’ reasonable fees.

Those

proceedings remain pending.

SUMMARY OF ARGUMENT

The test to determine a “prevailing party” is

whether a plaintiff wins tangible relief from a court

order that is never undone on the merits.

preliminary injunction can satisfy that test, as every

circuit to address the issue holds. This Court should

reject the Commissioner’s contrary categorical rule

that preliminary injunctions never create a prevailing

party.

I. The traditional tools of statutory construction

support the circuit consensus: preliminary injunction

winners can be “prevailing parties.” First, the text

compels that result. A plaintiff that persuades a court

to grant the relief requested by the lawsuit “prevails”

in any ordinary sense of the word. And this Court has

always construed the term “prevailing party” with a

view to that ordinary meaning. Legal dictionaries

defining “prevailing party” only confirm that result.

Next, related statutes confirm that a prevailing

party needs no final judgment. A predecessor to

§ 1988(b) conditioned fee eligibility on a prevailing

party obtaining a “final order.” 20 U.S.C. § 1617.

Since Congress omitted that finality requirement

from § 1988(b), this Court should not smuggle it back

in.

The history of prevailing party awards also

bolsters the circuit consensus. In equity, courts

exercised discretion to award interim costs, including

for winning a preliminary injunction.

So the

historical backdrop of § 1988(b) dispels any finality

requirement.

II. Preliminary injunctions can meet all prevailing

party qualifications under this Court’s precedent. The

touchstone of that inquiry is achieving a material

alteration of the parties’ legal relationship.

Preliminary injunctions often unmistakably do that.

They are responsible for righting countless

constitutional wrongs by their own force, often

providing all the relief that plaintiffs need.

Preliminary injunctions satisfy this Court’s

“judicial imprimatur” requirement because they are

enforceable judgments. Preliminary injunctions are

judgments because they are appealable by right under

28 U.S.C. § 1292(a)(1). Congress’s decision to make

them appealable is sensible, because preliminary

injunctions can transform legal relationships and last

for years. And those judgments are enforceable

because they are backed by the threat of criminal

contempt.

The Commissioner would affix two new

requirements to this Court’s test. The Court should

reject both.

First, the Commissioner would add a requirement

for a full merits adjudication. But this Court squarely

rejected that requirement in approving merits-free

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

Consent decrees (and default judgments) can make

prevailing parties because they can materially change

legal relationships—no conclusive merits adjudication

is necessary. Besides, preliminary injunctions do

require a clear showing of likely success on the merits.

That element is enough to satisfy any merits

requirement.

Second, the Commissioner would add a finaljudgment requirement. No case from this Court

imposes such a requirement. Of course, a preliminary

injunction undone on the merits will not do; the loser

is not the prevailing party. Sole v. Wyner, 551 U.S.

74, 84 (2007). But the unrealized possibility that an

injunction might have been reversed does not devalue

the relief it afforded. And this Court’s rejection of the

“catalyst theory” is irrelevant to plaintiffs who have

won a ruling from a court that orders the relief they

sought.

III.

Recognizing that preliminary injunction

winners are prevailing parties creates the right

litigation incentives. The Commissioner’s rule would

invite governments to insulate themselves from fee

liability after being enjoined. That means a free pass

to violate civil rights, stop only when the courts order

it, and still evade attorney’s fees. Governments have

proved willing and able to strategically moot cases

late in the game. And civil rights plaintiffs have little

recourse to stop them. The Commissioner invites

more unconstitutionality and less enforcement,

flipping § 1988(b) on its head.

By contrast, the circuit consensus encourages no

more litigation than necessary.

Preliminary

injunction winners who received the desired relief

need not fight any longer just to trigger fee eligibility.

Defendants will still have a powerful incentive to

settle before an injunction. They have no artificial

incentive to fight through trial since a preliminary

injunction means they are unlikely to prevail. And if

defendants think they are right, they can appeal. The

result is a sound, easily administrable rule.

IV. These Plaintiffs are prevailing parties under

any common-sense rule. They won an injunction

materially changing their relationship with the

Commissioner, who had to remove the statutory

suspension of their licenses without charging any fee.

That judgment was enforceable and bore the judicial

imprimatur. And it was never undone on the merits.

To the contrary, it lasted as long as it was needed.

That is more than enough to cross the threshold of

eligibility.

ARGUMENT

The text and history of § 1988(b) recognize

preliminary

injunction

winners

“prevailing parties.”

The

ordinary

meaning

“prevailing

party”

includes

preliminary injunction winners.

“As always, we start with the statutory text.”

Garland v. Cargill, 602 U.S. 406, 415 (2024). Section

1988(b) empowers district courts to award fees to any

“prevailing party” as part of the costs. When a court

awards a party the relief it seeks, that party “prevails”

in the ordinary sense of the word. See Webster’s New

International Dictionary (3d ed. 1961) (“to be or

become effective or effectual: be successful”); The

Compact Edition of the Oxford English Dictionary

2293 (1971) (“To be effectual or efficacious; to be

successful, to succeed”; “to succeed in doing, attaining,

etc.”; “to succeed in persuading, inducing, or

influencing”). So a plaintiff who challenges a law,

requests an injunction halting the law’s effect, and

then receives that court-ordered relief has prevailed

in any ordinary sense of the term. That the enjoined

government capitulates before final judgment makes

it more obvious that the plaintiff prevailed—not less.

Any theory that a party winning its requested relief is

still not a prevailing party has lost its moorings.

“Prevailing party” may be a legal term of art.

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of

Health and Human Res., 532 U.S. 598, 603 (2001).

But this Court has always construed it with a close

eye on “[r]espect for ordinary language.”

Ibid.

(quoting Hewitt v. Helms, 482 U.S. 755, 760 (1987)).

“[T]he normal meaning of ‘prevailing party’ in

litigation” is the winner of an “enforceable ‘alteration

of the legal relationship of the parties.’” Buckhannon,

532 U.S. at 622 (Scalia, J., concurring). “[T]here is no

proper basis for departing from that normal

meaning.” Ibid.

Yet the Commissioner’s argument that no

preliminary injunction creates a prevailing party

throws “respect for ordinary language” out the

window. Under his categorical rule, none of these

fully successful hypothetical plaintiffs—whose cases

become moot after they succeed—could ever “prevail”:



A student is excluded from a school on the basis

of race. He sues the school and wins a

preliminary injunction requiring his admission.

He then enrolls and earns his diploma before

trial.



A churchgoer is barred from services by her

governor’s COVID-19 declaration. She sues

and wins a preliminary injunction that allows

her to worship on Easter. Afterward, the

governor revokes the declaration, re-opening

all church doors.



An activist is prohibited from protesting

outside a political party convention. He sues

and wins a preliminary injunction allowing him

to protest there. He then carries out the protest

as planned.



A gun owner is prevented by local ordinance

from buying a gun in common use. She sues

and wins a preliminary injunction letting her

complete that purchase.

The offending

ordinance is later repealed.

Of course all these plaintiffs are prevailing parties.

Each obtained the relief they sought, by a court’s

judgment, which was never overturned when the

cases became moot by happenstance, passage of time,

or government surrender. Yet the Commissioner

urges that none of those plaintiffs qualify.

The Commissioner leans on a dictionary predating

§ 1988(b)—and never cited in this Court’s precedent

defining “prevailing party”—to contend that “a

conclusive ruling on the merits or final judgment” is

required. Br. 17 (“[t]he party ultimately prevailing

when the matter is finally set at rest.” (quoting Black’s

Law Dictionary 1352 (4th rev. ed. 1968)). But even

that definition supports Plaintiffs: when a case

becomes moot after a preliminary injunction,

plaintiffs have already received relief that “lasts for as

long as it is needed.” 77 F.4th at 217. And setting the

matter at rest as moot just means that “the injunction

by definition cannot be reversed, dissolved, or

otherwise undone by a later order.” Id. at 209.

Plaintiffs here—just like the ones in the examples

above—won substantive relief in court and never lost

it.

Congress required finality in other

statutes but excluded it from

§ 1988(b).

The history of civil rights fee-shifting statutes

confirms that the “prevailing party” concept does not

require finality. Contra Br. 22.

When § 1988(b) became law in 1976, the text of a

closely related statute expressly required finality.

The Emergency School Aid Act of 1972 authorized feeshifting for the “prevailing party” in certain private

discrimination actions only “[u]pon the entry of a final

order by a court” against a government.1 20 U.S.C.

§ 1617 (emphasis added). That statute thus “ma[de]

the existence of a final order a prerequisite to the

award.” Bradley v. Sch. Bd. of City of Richmond, 416

U.S. 696, 722 (1974); see also 117 Cong. Rec. 11,523

(1971) (Statement of Sen. Allen) (fee-shifting under

§ 1617 requires that a lawsuit “be prosecuted to a

successful conclusion”). Adding that “final order”

prerequisite to § 1617 thus confirmed that the

“prevailing party” concept did not already require

finality. See Corley v. United States, 556 U.S. 303, 314

(2009) (“[A] statute should be construed so that effect

is given to all its provisions, so that no part will be

inoperative or superfluous, void or insignificant.”).

Just four years later, Congress omitted that “final

order” requirement from § 1988(b). That omission is

meaningful because § 1617 and § 1988(b) overlapped

considerably, and Congress “generally uses a

particular word with a consistent meaning in a given

context.” Erlenbaugh v. United States, 409 U.S. 239,

243-44 (1972). The House Report highlighted this

difference between the existing statute and the new

§ 1988(b): “[T]he word ‘prevailing’ is not intended to

require the entry of a final order before fees may be

That Act provides: “Upon the entry of a final order … 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.”

recovered.” House Report 8 (emphasis in original;

citing Bradley, 416 U.S. at 723).

Congress has continued to condition fee-shifting on

a “final order” in other statutes since then. See, e.g.,

Telemarketing and Consumer Fraud and Abuse

Prevention Act, Pub. L. No. 103-297, § 5, 108 Stat.

1545, 1549 (1994) (codified at 15 U.S.C. § 6104(d))

(“The court, in issuing any final order in any action

brought under subsection (a), may award costs of suit

and reasonable fees for attorneys and expert

witnesses to the prevailing party.”); see also 16 U.S.C

§ 460tt(c)(1); 33 U.S.C. § 1910; 49 U.S.C. § 30171; 49

U.S.C. § 60129(B). And the Equal Access to Justice

Act specifies that the “‘prevailing party,’ in the case of

eminent domain proceedings, means a party who

obtains a final judgment” of a certain amount. 28

U.S.C. § 2412(d)(2)(H); see also 5 U.S.C. § 504(a)(2)

(requiring a “final disposition in [an] adversary

adjudication” for EAJA fees). So when Congress

wants to impose a finality requirement, it knows how.

The Commissioner would rewrite § 1988(b) to insert

that requirement where Congress left it out.

In equity, courts granted prevailing

parties interim costs, including for

preliminary injunctions.

The historical background of awarding costs to

“prevailing parties” imputes no finality requirement

excluding preliminary injunctions either. Contra U.S.

Br. 12-13. That historical background included a

venerable equitable tradition of awarding interim

costs, including for a preliminary injunction. That

history overcomes the United States’ argument that

attorney’s-fees-as-costs can be awarded only based on

a final judgment. U.S. Br. 22-25.

In equity, from “the time of the emigration of our

ancestors [from England], and down to the period

when our constitution was formed,” courts of equity

“constantly exercised” the “discretion to award or

refuse costs.” Pennsylvania v. Wheeling & Belmont

Bridge Co., 59 U.S. 460, 462 (1855). The award of

costs in equity rested “not upon express statutory

enactment by Congress, but upon usage long

continued.” Newton v. Consol. Gas Co. of New York,

265 U.S. 78, 83 (1924).

This had long been the rule. Relying on an 1817

case, one court explained, “Costs in equity ‘do not

depend upon any statute, nor do they absolutely

depend upon the event of a cause. They depend upon

conscience, and upon a full and satisfactory view and

determination of the whole merits of a case. They rest

in sound discretion, to be exercised under a

consideration of all the circumstances.’” Consol.

California & V. Min. Co. v. Baker, 131 F. 989, 990

(C.C.D. Nev. 1904) (quoting Eastburn v. Kirk, 1817

WL 1578 (N.Y. Ch. 1817)); see also Brooks v. Byam, 4

F. Cas. 271, 271 (C.C.D. Mass. 1843) (Story, J., as

circuit justice) (“costs in equity are altogether in the

discretion of the court”).

And in equity, it was well understood that courts

“frequently give costs in intermediate stages of a

cause, without waiting for the final decree.” Avery v.

Wilson, 20 F. 856, 859-60 (C.C.W.D.N.C. 1884); see

also Van Tieghem v. Sushenka, 254 Ill. App. 409, 413

(Ill. App. Ct. 1929); Benham v. Willmer, 207 P. 592,

594 (1922).

That tradition of interim cost-shifting includes

preliminary injunctions. For example, in Clancy v.

Geb, the plaintiff won a temporary injunction, an

“interlocutory remedy” by which “the protection of

plaintiff ’s rights [was] fully accomplished.” 104 N.W.

746, 747 (1905). The Supreme Court of Wisconsin

held that the temporary injunction made the plaintiff

“entitled to the usual favorable consideration of a

prevailing party on the question of costs.” Id. at 748

(emphasis added). Exercising its equitable authority,

the court concluded “[w]e find nothing in the case that

negatives the justness of plaintiff ’s claim to his costs,

and they should in equity be awarded him.” Ibid. So

the equitable backdrop against which Congress wrote

§ 1988(b) rejects a finality requirement. Instead, it

confirms that preliminary injunctions can warrant

fees “as part of the costs.”

II.

Preliminary injunctions can satisfy all the

prevailing party requirements under this

Court’s precedent.

The parties and the United States largely agree on

the test that this Court has developed under § 1988.

All agree that the “touchstone of the prevailing party

inquiry” is a “material alteration of the legal

relationship of the parties.” CRST Van Expedited v.

EEOC, 578 U.S. 419, 422 (2016); see also Br. 19, 33;

U.S. Br. 21. All agree that the “change must be

marked by judicial imprimatur.”

CRST Van

Expedited, 578 U.S. at 422. And all agree that if the

plaintiff ’s victory and gains are reversed, the plaintiff

is not a prevailing party. Sole, 551 U.S. at 82.

Preliminary injunctions can satisfy each part of this

test.

Preliminary injunctions often

meaningfully change legal

relationships.

Preliminary injunctions often create a “material

alteration of the legal relationship of the parties.”

Sole, 551 U.S. at 82. That material alteration is “the

touchstone of the prevailing party inquiry.” Tex. State

Teachers Ass’n v. Garland, 489 U.S. 782, 792-93

(1989). This “generous formulation” ensures that

parties prevail “if they succeed on any significant

issue in litigation which achieves some of the benefit

the parties sought in bringing suit.” Farrar v. Hobby,

506 U.S. 103, 109 (1992); see also Buckhannon, 532

U.S. at 603 (distilling from prior cases “[t]his view

that a prevailing party is one who has been awarded

some relief by the court”).

But a prevailing party need not achieve all

litigation objectives. Rather, “[i]f the plaintiff has

succeeded on ‘any significant issue in litigation which

achieve[d] some of the benefit the parties sought in

bringing suit,’ the plaintiff has crossed the threshold

to a fee award of some kind.” Garland, 489 U.S. at

791-92. “Once civil rights litigation materially alters

the legal relationship between the parties, the degree

of the plaintiff ’s overall success goes to the

reasonableness of a fee award.” Farrar, 506 U.S. at

114.

1. Preliminary injunctions often materially alter

the parties’ legal relationship. In cases involving

§ 1988(b), they can restore plaintiffs’ civil rights.

Lefemine v. Wideman, for example, held that the

winner of an injunction guaranteeing his right to

protest using graphic signs was a prevailing party.

568 U.S. 1, 4 (2012). As this Court explained, “[b]efore

the ruling, the police intended to stop Lefemine from

protesting with his signs; after the ruling, the police

could not prevent him from demonstrating in that

manner.” Ibid. He was thus entitled to fees under

§ 1988(b) “[b]ecause the injunction ordered the

defendant officials to change their behavior in a way

that directly benefited [him].” Id. at 2. Although the

injunction in Lefemine was permanent, a preliminary

injunction would have caused the same “change [in]

behavior,” ibid., and thus provided at least “some of

the benefit the [plaintiff] sought in bringing suit,”

Garland, 489 U.S. at 791-92.

Preliminary injunctions often stop the government

from violating civil rights:



Williams v. Wallace, 240 F. Supp. 100, 109-10

(M.D. Ala. 1965) (prohibiting governor and

state officials from interfering with civil rights

marches from Selma to Montgomery).



McLaughlin by McLaughlin v. Bos. Sch.

Comm., 938 F. Supp. 1001, 1018 (D. Mass.

1996) (enforcing Fourteenth Amendment rights

not to be excluded from school on the basis of

race; ordering a school to admit an eighth

grader).



People Against Police Violence v. Pittsburgh,

520 F.3d 226, 230 (3d Cir. 2008) (protecting

First Amendment rights to speech and gather

in public marches and protests).



Kansas Jud. Rev. v. Stout, 562 F.3d 1240 (10th

Cir. 2009) (guaranteeing the right of judicial

candidates to make political speech in the form

of campaign pledges).



Veasey v. Wilkins, 158 F. Supp. 3d 466, 468

(E.D.N.C. 2016) (enforcing Second Amendment

rights against a citizenship requirement).



Roberts v. Neace, 958 F.3d 409, 416 (6th Cir.

2020) (ordering the government to allow inperson worship).

Injunctions like these do not just maintain the status

quo or preserve the parties’ positions. Contra Br. 23;

U.S. Br. 25. Instead, preliminary injunctions often

ensure that plaintiffs can exercise key rights already

violated before the injunction. See John Leubsdorf,

The Standard for Preliminary Injunctions, 91 Harv.

L. Rev. 525, 526 (1978) (observing that “the old

chestnut that preliminary injunctions are always

prohibitory rather than mandatory” is “demonstrably

untrue”); see also Univ. of Texas v. Camenisch, 451

U.S. 390, 392-93 (1981) (addressing a preliminary

injunction compelling a university to provide a

previously refused interpreter).

2. Because preliminary injunctions can materially

change real-world relationships, they are easily

distinguished from everyday orders on internal

litigation procedure. Br. 20-21.

In Hewitt v. Helms, for example, the plaintiff won

reversal of summary judgment, but his case became

moot before any judgment in his favor. 482 U.S. at

758-59.

Since he received “[n]o injunction or

declaratory judgment” or “relief without benefit of a

formal judgment—for example, through a consent

decree,” ibid., the plaintiff received no “relief on the

merits of his claim.” Id. at 760-61.

The same lack of real-world effect doomed the fee

claim in Hanrahan v. Hampton, where the plaintiff

won only reversal of a directed verdict. 446 U.S. 754,

759 (1980). That new trial was a chance for a material

alteration—not the material alteration itself. Thus,

“[a]s is true of other procedural or evidentiary

rulings,” that reversal of a directed verdict “may affect

the disposition on the merits,” but was not itself a

“matter[] on which a party could ‘prevail’ for purposes

of shifting his counsel fees.” Ibid. Preliminary

injunctions can themselves change legal relationships

in ways that remands for new trials cannot.

3. The Commissioner warns that accepting

preliminary injunction winners as prevailing parties

would require fine distinctions between status quo

and non-status quo injunctions. Br. 38-39. No such

parsing is necessary. Rather, courts simply ask

whether the injunction materially changes the

relationship between the parties. See 77 F.4th at 212

n.8 (“For our purposes, however, what matters is

whether the injunction itself provided ‘some of the

benefit’ the plaintiff ultimately ‘sought in bringing

suit.’” (quoting Hensley v. Eckerhart, 461 U.S. 424,

433 (1983)). To be sure, some “so-called status quo

injunctions … may not provide the plaintiff any of the

relief he ultimately seeks at the conclusion of the

litigation.” Id. at 212. But the status quo vs. nonstatus quo distinction is a red herring.

The

touchstone remains material alteration. And there is

no reason to think that the enjoining district court will

be unable to tell whether it has ordered a material

alteration in the parties’ relationship.

Preliminary injunctions are

enforceable judgments bearing

judicial imprimatur.

Buckhannon made clear that a prevailing party

not only must achieve that material alteration, but

must do so by a court order. 532 U.S. at 605 (requiring

“judicial imprimatur”); accord U.S. Br. 19 (“To qualify

as a ‘prevailing party’ in a lawsuit, a plaintiff must

obtain a favorable judgment and tangible relief from

the court.”). Preliminary injunctions easily satisfy

this rule.

Buckhannon was a challenge to a state law

governing assisted-living facilities. 532 U.S. at 60001.

The challengers achieved no preliminary

injunction or other appealable judgment. Before that

could happen, the state legislature repealed the

challenged statute. Id. at 601. The challengers

sought attorney’s fees as the “catalyst” of that repeal.

Id. at 601-02.

This Court rejected that “catalyst theory.” Id. at

602 n.3. A prevailing party must be “one who has been

awarded some relief by the court.” Id. at 603; id. at

605 (requiring a “judicially sanctioned change in the

legal relationship of the parties”). Voluntary changes

in government behavior, without any court order,

“lack[ed] the necessary judicial imprimatur on the

change.” Id. at 605.

Preliminary injunctions carry the necessary

judicial imprimatur. “[A]n enforceable judgment

against the defendant” satisfies that requirement.

Farrar, 506 U.S. at 111; Buckhannon, 532 U.S. at 607

n.9 (“an enforceable judgment permits an award of

attorney’s fees”).

Preliminary

injunctions

are

enforceable

judgments. See Lefemine, 568 U.S. at 4 (“[W]e have

repeatedly held that an injunction … , like a damages

award, will usually satisfy that test.”). “The term

‘judgment’ includes ‘a decree and any order from

which an appeal lies.’” Select Milk Producers, Inc. v.

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

Black’s Law Dictionary 846 (7th ed. 1999)); accord

Fed. R. Civ. P. 54(a). Preliminary injunctions are

appealable by right under 28 U.S.C. § 1292(a)(1)

(conferring jurisdiction over “[i]nterlocutory orders …

granting, continuing, modifying, refusing or

dissolving injunctions, or refusing to dissolve or

modify injunctions”); see also Abbott v. Perez, 585 U.S.

579, 595 (2018) (preliminary injunctions are

appealable).

The rationale for “allowing interlocutory appeals

from injunction orders should be readily apparent”:

they are a big deal.

Interlocutory Injunction

Appeals—In General, 16 Fed. Prac. & Proc. Juris.

§ 3921 (3d ed.). Their statutory appellate jurisdiction

thus “seem[s] plainly to spring from a developing need

to permit litigants to effectually challenge

interlocutory orders of serious, perhaps irreparable

consequence.” Baltimore Contractors v. Bodinger, 348

U.S. 176, 181 (1955), overruled on other grounds by

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485

U.S. 271 (1988); see also Abbott, 585 U.S. at 595 (“If

an interlocutory injunction is improperly granted or

denied, much harm can occur before the final decision

in the district court.”).

Their longevity magnifies the significance of

preliminary injunction judgments. The injunction

here lasted over sixteen months.

Preliminary

injunctions often last even longer. Schenck v. ProChoice Network of West New York addressed a fiveyear preliminary injunction. 519 U.S. 357 (1997).

Ashcroft v. ACLU upheld one that lasted eight years.

542 U.S. 656 (2004). And in Agency for International

Development v. Alliance for Open Society

International, Inc., this Court affirmed a preliminary

injunction that would remain in effect for eight and a

half years. 570 U.S. 205 (2013).

Preliminary injunctions are also just as

enforceable as their permanent-injunction siblings—

including by criminal contempt. See, e.g., Muniz v.

Hoffman, 422 U.S. 454, 476-77 (1975) (affirming

contempt conviction for violating a preliminary

injunction). What is more, a preliminary injunction is

enforceable by contempt even if that injunction is

later found to be issued in error: “‘[U]ntil [the lower

court’s] decision is reversed for error by orderly

review, either by itself or by a higher court, its orders

based on its decision are to be respected, and

disobedience of them is contempt of its lawful

authority, to be punished.’” Pasadena City Bd. of Ed.

v. Spangler, 427 U.S. 424, 439 (1976). That threat of

jail generally makes litigants obey injunctions.

* * *

In sum, history proves that preliminary

injunctions often materially change the legal

relationship of the parties. And common sense shows

that preliminary injunctions—which are appealable

judgments fully enforceable by contempt—carry

judicial imprimatur.

This Court’s “generous

formulation” of eligibility requires nothing more.

Of course, governments can argue against fees by

asserting that a certain injunction did not materially

change the parties’ legal relationship. See, e.g.,

Garland, 489 U.S. at 792. Or that a preliminary

injunction lost its judicial imprimatur when it was

later undone on the merits. Sole, 551 U.S. at 83; see

also 77 F.4th at 216. They are also welcome to

contend that a preliminary injunction awarding only

partial relief warrants a smaller award. See Hensley,

461 U.S. at 439-40 (“extent of a plaintiff ’s success”

shapes the reasonableness of a fee award); see also 77

F.4th at 218.

But nothing supports the

Commissioner’s proposal to exclude preliminary

injunction winners altogether.

The Court should reject the

Commissioner’s additional

“prevailing party” requirements.

An unreversed judgment materially changing the

relationship between the parties is sufficient under

this Court’s precedent. Yet the Commissioner would

graft onto that test new requirements gerrymandered

to exclude preliminary injunctions. He urges that 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.” Br. 2.

Neither text, history, nor precedent supports those

requirements.

Full merits adjudication is not

required.

The Commissioner would limit prevailing parties

unless “a ruling that conclusively decides the merits

in [a plaintiff ’s] favor.” Br. i. That limit would flout

this Court’s precedent. This Court has recognized

that both consent decrees and default judgments—

neither of which must decide the merits of a cause of

action—can confer prevailing party status.

Maher v. Gagne held that obtaining a consent

decree suffices to prevail under § 1988(b). 448 U.S. at

129. Yet consent decrees do not require any sort of

merits adjudication. See id. at 126 n.8 (“As is

customary, the consent decree did not purport to

adjudicate respondent’s statutory or constitutional

claims.”). The consent decree at issue in Maher even

“explicitly stated that ‘[n]othing in this Consent

Decree is intended to constitute an admission of

fault.’” Ibid.

Still, this Court held that a consent decree could

qualify based on the plain language of the statute:

“Nothing in the language of § 1988(b) conditions the

district court’s power to award fees on full litigation of

the issues or on a judicial determination that the

plaintiff ’s rights have been violated.” Maher, 448 U.S.

at 129. That holding was unanimous. See id. at 134

(Powell, J., concurring in judgment) (“§ 1988(b) does

not require an adjudication on the merits of the

constitutional claims. I agree with this conclusion”).

Maher thus confirms that the touchstone of prevailing

party status is a judicial order changing the parties’

relationship—not a determination on the merits.2

The Commissioner’s attempts to limit Maher fail.

First, the Commissioner accuses Maher of relying

entirely on a Senate Report. Br. 21. But the Maher

Court examined the plain text of the statute for the

“merits” requirement the Commissioner now

demands—and found no basis for it. The Senate

Report merely confirmed that conclusion. 448 U.S. at

129. In any event, the House Report too confirms that

there is no freestanding merits requirement outside

the consent decree context. See House Report 7 (“The

phrase ‘prevailing party’ is not intended to be limited

to the victor only after entry of a final judgment

following a full trial on the merits.”).

Second, the Commissioner contends that a consent

decree uniquely suffices without a merits adjudication

because the “parties are no longer free to dispute the

merits.” Br. 22. But of course the parties remain free

to dispute the merits elsewhere—a consent decree

(unlike a final adjudication) generally has no issue

preclusive effect. See Arizona v. California, 530 U.S.

392, 414 (2000).

This Court too has forgone any post-Maher merits

requirement. Shalala v. Schaefer, 509 U.S. 292

(1993), addressed a Social Security claimant whose

district court challenge to a benefits denial won a

remand to the agency for further proceedings. At that

The Commissioner touts a reference in Buckhannon to “the

‘merit’ requirement of our prior cases.” Br. 20 (citing 532 U.S. at

606). In context—including a citation to Maher’s holding—that

requirement just restates the need for “judicial relief.” 532 U.S.

at 606; 77 F.4th at 212-13.

point, the district court had made no determination of

the ultimate merits of his benefits claim. Id. at 294.

And the remand “contemplate[d] additional

administrative proceedings that will determine the

merits of the claimant’s application.” Id. at 311

(Stevens, J., concurring in the judgment). Yet that

claimant was still a prevailing party because (unlike

in Hanrahan or Hewitt) he won an appealable

judgment that forced the agency to change its

behavior outside that civil action. Id. at 297-98. The

claimant’s success in the civil action—before final

resolution of the merits—was enough to be a

prevailing party. Id. at 302.

Default judgments also disprove any requirement

for merits adjudication. As the United States admits,

default judgments are “types of judicial orders that

can confer prevailing-party status,” even though they

require no “independent judicial determination” of the

merits. U.S. Br. 8; see also id. at 16 (citing Kirtsaeng

v. John Wiley & Sons, Inc., 579 U.S. 197, 208 n.3

(2016)). After all, default judgments can materially

alter the legal relationship of the parties, and they

carry judicial imprimatur.

The Commissioner also tries to divine a merits

requirement from the observation in Kentucky v.

Graham, 473 U.S. 159, 165 (1985), that “‘liability on

the merits and responsibilit[ies] for fees go hand in

hand.’” Br. 19. But that observation resolved a

different question: who is responsible for attorney’s

fees. This Court thus held that a government is not

liable for fees when a plaintiff fails to procure a

judgment against that government or its employees in

any official capacity. 473 U.S. at 163. That holding is

irrelevant to whether a plaintiff who does win such a

judgment has prevailed.

In sum, consent decrees and default judgments

suffice for prevailing party status because they are

court-ordered “chang[es][in] the legal relationship

between [the plaintiff] and the defendant.”

Buckhannon, 532 U.S. at 604. This Court has treated

those enforceable grants of tangible relief as sufficient

“relief on the merits.” Farrar, 506 U.S. at 111. So

although “respect for ordinary language requires that

a plaintiff receive at least some relief on the merits of

his claim before he can be said to prevail,” such relief

on the merits merely requires “resolution of the

dispute which changes the legal relationship between

itself and the defendant.” Garland, 489 U.S. at 792;

77 F.4th at 212-13 (“In Buckhannon, the Supreme

Court held that relief ‘on the merits’ requires a

‘judicially sanctioned change in the legal relationship

of the parties.’”). A preliminary injunction provides

that judicially sanctioned change.

In any event, preliminary

injunctions are sufficiently

based on the merits.

At any rate, preliminary injunctions are deeply

enmeshed in the merits, as befits such powerful

orders.

To win a preliminary injunction, a plaintiff “must

make a clear showing that ‘he is likely to succeed on

the merits.’” Starbucks Corp. v. McKinney, 144 S. Ct.

1570, 1576 (2024) (quoting Winter, 555 U.S. at 20, 22).

That requirement has real teeth. Mere “reasonable

cause” to expect success on the merits (among other

merits showings less than likely success) is

insufficient. Id. at 1578. “There is an obvious

difference between” that reasonable-cause standard

and having the movant “show that it is ‘likely’ to

succeed on the merits.”

Ibid.

Even then, “a

preliminary injunction is an ‘extraordinary’ equitable

remedy that is ‘never awarded as of right.’” Id. at

1576.

The Commissioner contends that some probability

of success less than a likelihood may still suffice for a

preliminary injunction. Br. 24-25. Not so. However

strongly other factors favor injunctive relief, success

on the merits must be more likely than not, and by a

“clear showing.” Starbucks, 144 S. Ct. at 1576. Laxer

circuit standards under pre-Winter precedent (e.g.,

Br. 25 n.2) do not survive that requirement. See Davis

v. PBGC, 571 F.3d 1288, 1296 (D.C. Cir. 2009)

(Kavanaugh, J., concurring) (“[T]he old sliding-scale

approach to preliminary injunctions—under which a

very strong likelihood of success could make up for a

failure to show a likelihood of irreparable harm, or

vice versa—is no longer controlling, or even viable”);

Planned Parenthood Ass’n of Utah v. Herbert, 839

F.3d 1301, 1310 (10th Cir. 2016) (Gorsuch, J.,

dissenting) (Winter “cast doubt” on the notion that

“the plaintiff ’s burden on the likelihood of success

factor may be relaxed when the other preliminary

injunction factors are satisfied”).

The Commissioner also suggests that preliminary

injunction procedures can be too rushed, informal, or

otherwise inadequate to make a genuine

determination based on the merits. Br. 23-24. This

contention fails.

First, many preliminary injunctions are not

rushed or informal.

Consider this case.

The

Commissioner litigated for 27 months before briefing

the preliminary injunction. J.A.1-23. He then

received six weeks to oppose Plaintiffs’ motion for

preliminary injunction, J.A.153-71, and nine weeks to

prepare for a trial on that motion. J.A.20-24. That

trial involved the testimony of six witnesses, each of

whom the Commissioner could examine or crossexamine. J.A.175. The transcript of that trial runs

nearly one-hundred eighty pages. J.A.172-349. The

Commissioner could have developed any factual or

legal arguments he wanted. His failure cannot be

blamed on any lack of opportunity to present his case.

Br. 24.

Second, many avenues can avoid trouble from

overly rushed preliminary injunction motions. A

judge who feels gamed or rushed can just deny the

“extraordinary remedy” of a preliminary injunction.

Starbucks, 144 S. Ct. at 1576. A defendant who feels

the same can seek a stay and expedited appeal, or

litigate onward and try to win the case (as in Sole).

Again, nothing here warrants categorically excluding

preliminary injunctions from prevailing party status.

Next, the Commissioner claims that had he fought

onward, he might have won based on a subsequent

split decision turning on Michigan law. Br. 28 (citing

Fowler v. Benson, 924 F.3d 247, 259 (6th Cir. 2019)).

But that post hoc bravado is misplaced. Unlike the

government in Fowler, the Commissioner chose not to

appeal his injunction. 924 F.3d at 256. Then he

ditched both his fully briefed summary judgment

motion and plan to proceed to trial. J.A.46-52.

Instead, the Commissioner obtained a stay over

Plaintiffs’ objection and worked with the legislature to

repeal the law. After jumping ship is not the time for

a collateral attack on the merits.

Anyway, this Court has recognized that a final

merits adjudication can be made in addressing a

preliminary injunction. See, e.g., Munaf v. Geren, 553

U.S. 674, 691 (2008) (“There are occasions … when it

is appropriate to proceed further and address the

merits.”); Thornburgh v. Am. Coll. of Obstetricians &

Gynecologists, 476 U.S. 747, 757 (1986) (final merits

determination appropriate when a preliminary

injunction “rests solely on a premise as to the

applicable rule of law”). The Commissioner and the

United States do not dispute it. Br. 31; U.S. Br. 26

n.5.

That ability to resolve the merits at the

preliminary injunction stage thus confirms that the

Commissioner’s proposed categorical rule is wrong.

See U.S. Br. 26 n.5. In any event, such a final merits

determination is unnecessary to achieve prevailing

party status because it does not affect whether the

plaintiff receives an enforceable judgment that

materially changes the parties’ relationship.

Prevailing

party

status

requires no enduring change

beyond what a preliminary

injunction can accomplish.

The Commissioner contends that Sole created a

new requirement of “enduring change” that rules out

preliminary injunctions altogether. Br. 33. But Sole

does not support his categorical rule. Neither does

any other decision from this Court.

1. Sole itself announces that it does not address

the question posed here.

The Court reserved

“whether, in the absence of a final decision on the

merits of a claim for permanent injunctive relief,

success in gaining a preliminary injunction may

sometimes warrant an award of counsel fees.” 551

U.S. at 86. Rather than address that question, this

Court “h[e]ld only that a plaintiff who gains a

preliminary injunction does not qualify for an award

of counsel fees under § 1988(b) if the merits of the case

are ultimately decided against her.” Ibid. (emphasis

added).

2. Sole’s unanimous holding that the loser is not

the winner does not help the Commissioner either.

In response to Ms. Wyner’s initial “motion for

temporary restraining order/preliminary injunction,”

she received temporary relief allowing a nude

performance as long as defendants could set up a

barrier to protect unwilling viewers. 551 U.S. at 80.

That barrier proved ineffective because the

performers “ignored” it. Ibid. The district court later

denied a permanent injunction because their

“deliberate failure … to remain behind the screen”

confirmed that the nudity ban was necessary enough

to withstand First Amendment scrutiny. Id. at 80-81.

That “dispositive adjudication on the merits” is

what prevented that plaintiff from being “a ‘prevailing

party’ within the compass of § 1988(b).” Id. at 77.

Thus, “the plaintiff ’s preliminary victory was deemed

‘fleeting’ not because it failed to reach final judgment,

but because the plaintiff ’s ‘temporary success rested

on a premise the District Court ultimately rejected.’”

77 F.4th at 215 (quoting Sole, 551 U.S. at 85); see also

U.S. Br. 28 (acknowledging that a mootness dismissal

rather than a resolution “against [plaintiffs] on the

merits” is a “significant” difference from Sole). A

preliminary injunction is not “enduring” when its

premise is rejected on the merits in that same case.3

3. Anyway, Sole does not say that the possibility

of eventual undoing on the merits bars a plaintiff from

prevailing. If it did, then even a permanent injunction

would fall short (contra Lefemine, 568 U.S. at 4)

because it could be appealed or the district court itself

could reopen it. See, e.g., Agostini v. Felton, 521 U.S.

203, 214-16 (1997) (addressing district courts’

obligation to modify an injunction in light of “‘a

significant change either in factual conditions or in

law’” (quoting Fed. R. Civ. P. 60(b)(5))). Indeed, a

permanent injunction might be vacated as moot for

the same reason as a preliminary injunction. See, e.g.,

Allee v. Medrano, 416 U.S. 802 (1974) (repeal of

permanently enjoined statute renders judgment

moot); Freedom from Religion Found., Inc. v. Abbott,

58 F.4th 824, 837 (5th Cir. 2023) (“Ordinarily, a

permanent injunction relating to a challenged law or

regulation cannot continue after the law or regulation

is removed.” (citing Sys. Fed’n No. 91 v. Wright, 364

U.S. 642, 652 (1961)).

So too in Lewis v. Continental Bank Corp., 494 U.S. 472 (1990);

Br. 35. While a bank’s initially successful Commerce Clause

challenge to a state law discriminating against out-of-state bank

holding companies was on appeal, Congress passed an

amendment blessing that discrimination. Id. at 478. That

legislative change made the plaintiff lose, rather than cement a

win. Of course prevailing party fees were unavailable. Id. at

480.

And there is no practical difference between a

preliminary injunction mooted the day before final

judgment versus a permanent injunction mooted the

day after. In the case of the former, “the relief the

plaintiff receives is as ‘enduring’ as if she has received

a permanent injunction to the same effect.” 77 F.4th

at 215.

4. Nor does Buckhannon combine with Sole to

undermine prevailing parties at the preliminary

injunction stage. Br. 33. All Buckhannon requires is

that the relief itself carry a “judicial imprimatur.” 532

U.S. at 605; see also Initiative & Referendum Inst. v.

U.S. Postal Serv., 794 F.3d 21, 24 (D.C. Cir. 2015)

(Kavanaugh, J.) (appellate remand order that

prompted the defendant to amend the challenged

regulation was sufficient judicial imprimatur). A

preliminary

injunction

bears

that

judicial

imprimatur. And “[o]nce a plaintiff earns ‘some

relief ’” by a preliminary injunction, “he steps outside

Buckhannon’s domain.” Roberts v. Neace, 65 F.4th

280, 285 (6th Cir. 2023) (Sutton, C.J.) (quoting

Buckhannon, 532 U.S. at 603).

The Commissioner argues that voluntary repeal of

the law is what made the relief “enduring” and

implicates the “catalyst theory” from Buckhannon.

Br. 33. But a judicial order—not any voluntary act—

gave Plaintiffs the tangible relief that makes them

prevailing parties. And that preliminary injunction

was never undone on the merits. Indeed, it cannot be

undone on the merits because the case is over. 77

F.4th at 215. So unlike the misbegotten injunction in

Sole, the relief here was enduring. Ibid. Both

Buckhannon and Sole thus are satisfied in cases like

this.

5. Other precedent refutes any need for a final

judgment to become a prevailing party. 77 F.4th at

225 (Quattlebaum, J., dissenting) (admitting that “the

Supreme Court may not have expressly said that

relief must be final”).

Maher’s plain-language

interpretation of § 1988(b) also rejects that

requirement because “[n]othing in the language of

§ 1988(b) conditions the district court’s power to

award fees on full litigation of the issues.” 448 U.S. at

129.

Indeed, this Court has recognized that the oft-cited

legislative history of § 1988(b) rejects any finaljudgment requirement. In Hanrahan, for example,

the Court observed that “[t]he legislative history of

[§ 1988(b)] indicates that a person may in some

circumstances be a ‘prevailing party’ without having

obtained a favorable ‘final judgment following a full

trial on the merits.’” 446 U.S. at 756-57 (quoting

House Report 7; citing Senate Report 5).

particular, the Court noted that “Congress

contemplated the award of fees pendente lite.” Id. at

757. And as Garland confirmed, “Congress clearly

contemplated that interim fee awards would be

available ‘where a party has prevailed on an

important matter in the course of litigation, even

when he ultimately does not prevail on all issues.’”

489 U.S. at 790 (quoting Senate Report 5).

Nor is the validation of fee awards for interim

orders mere dicta. U.S. Br. 18. To the contrary, the

availability of interim fee awards was a key reason

why Garland rejected the “central issue” test. The

Court rejected the idea that plaintiffs must succeed on

their “central theory” because of the “clear

congressional intent that interim fee awards be

available to partially prevailing civil rights plaintiffs.”

489 U.S. at 790. Thus, the Court held that a

“prevailing party [is] one who has succeeded on any

significant claim affording it some of the relief sought,

either pendente lite or at the conclusion of the

litigation.” Id. at 791.4

For its part, the United States seems to admit that

sometimes a plaintiff can prevail at the preliminary

injunction stage. U.S. Br. 26 n.5 (suggesting that in

some cases, legal rulings on a preliminary injunction

appeal would create a prevailing party). But the

United States’ test for when a preliminary injunction

winner prevails is murky: when is such an injunction

sufficiently “analogous” to “partial summary

judgment on liability”? And there is no principled

reason to limit fees to the “rare” preliminary

injunction winners whose cases are reviewed by the

Supreme Court. Ibid.5 But the United States at least

4 The United States argues (at 20) that a defendant cannot

become a prevailing party until the litigation’s close, so a plaintiff

cannot either. But § 1988(b) and other civil rights fee-shifting

statutes treat plaintiffs and defendants wildly differently.

Plaintiffs assume the mantle “of ‘a private attorney general,’

vindicating a policy that Congress considered of the highest

priority.” Christiansburg Garment Co. v. EEOC, 434 U.S. 412

(1978). So they “should ordinarily recover an attorney’s fee

unless special circumstances would render such an award

unjust.” Ibid. Prevailing defendants, by contrast, cannot recover

fees unless the “the plaintiff ’s claim was frivolous, unreasonable,

or groundless.” CRST Van Expedited, 578 U.S. at 431. It makes

little sense to draw on the stingy rule for defendants to

hamstring prevailing plaintiffs.

Sole stated in dicta that a “fee request at the initial stage”

would have been “premature.” 551 U.S. at 84. The United States

confuses this reference to the logistics of a fee application with

recognizes that there is nothing intrinsic to the

preliminary injunction stage that excludes it from the

prevailing party threshold.

III.

The circuit consensus optimizes litigation

incentives.

In enacting § 1988(b), Congress did not burden the

courts with a fee-shifting standard that creates

perverse incentives for government behavior. See

Buckhannon, 532 U.S. at 608-09. Since unanimous

circuit law now holds that preliminary injunctions can

suffice for fees, the evidence shows that the circuit

consensus creates no such problem.

The

Commissioner, by contrast, seeks to undo settled law

nationwide and impose a new rule that would prolong

litigation and encourage government defendants to

game the system by strategically mooting cases.

Those incentives would undermine the enforcement

§ 1988(b) is meant to promote.

The Commissioner’s rule invites

gamesmanship

that

would

undermine civil rights enforcement.

Carving preliminary injunctions out of § 1988(b)

would encourage “governmental defendants to game

the system” by strategically mooting cases once a

preliminary injunction puts the writing on the wall.

That gamesmanship would defeat the statutory

eligibility for fees. U.S. Br. 29. But when a plaintiff may request

fees does not control whether the plaintiff can ever make that

request. Anyway, Plaintiffs requested fees after all other

proceedings were complete. J.A.56.

mechanism of promoting compensation for bringing

civil rights claims. 77 F.4th at 210.

1. Accepting the Commissioner’s rule would let

defendants insulate themselves from fees after

plaintiffs already won tangible relief. “[A] defendant

may freely litigate the case through the preliminary

injunction phase.” 77 F.4th at 210. But once the court

telegraphs its view of the merits, “the government will

have ample time to cease the challenged conduct,

moot the case, and avoid paying fees.” Ibid. The

plaintiff is left “holding the bag.” Ibid.; see also, e.g.,

N.Y. State Rifle & Pistol Ass’n, 590 U.S. at 360 (Alito,

J., dissenting) (“dismissing the case as moot means

that petitioners are stuck with the attorney’s fees they

incurred in challenging a rule that the City ultimately

abandoned”). That predictable result is a powerful

disincentive for attorneys to take up the enforcement

§ 1988(b) is meant to encourage.

The Commissioner demurs that strategic mootness

is “generally impracticable.” Br. 15. But government

defendants have proved able and willing to put that

tactic to use.

This case is a good example. After winning their

preliminary injunction, Plaintiffs were eager to press

on to trial to vindicate all indigent Virginians’ rights.

77 F.4th at 210. In fact, Plaintiffs would have had

their final day in court before the statute was

repealed. J.A.52. But the Commissioner obtained a

stay over their objection. J.A.385. During that stay,

he “provided significant input on how to structure the

repeal.” 77 F.4th at 210. The Commissioner thus

prevented the final judgment that he now says is

necessary.

That behavior was savvy strategy at the time. The

Commissioner managed to litigate until a judge told

him his case was a loser, then stop the litigation, fix

the problem, and evade all attorney’s fees. Congress

did not intend to foment such gamesmanship. 77

F.4th at 210 (the Commissioner’s rule allows the

government to cut off “civil rights plaintiffs whenever

their success seems imminent”).

Smyth itself illustrates the gamesmanship of the

rule named after that case. Br. 46. Those plaintiffs

won a preliminary injunction barring Virginia’s

Commissioner of Social Services from enforcing a

benefits restriction against them. 282 F.3d at 272.

The government chose not to appeal. Id. at 273-74.

Instead, the government modified the challenged

restriction so that it would continue to apply, but not

to the plaintiffs. Id. at 273. The government kept its

offending rule, yet the plaintiffs’ case was dismissed

as moot. The government thus avoided fees for the

half-decade of successful legal work for the named

plaintiffs. Id. at 277.

2. Other governments also have proved adept at

mooting civil rights claims.

For instance, the COVID pandemic highlighted

governments’ mooting prowess. “Government actors

have been moving the goalposts on pandemic-related

sacrifices for months, adopting new benchmarks that

always seem to put restoration of liberty just around

the corner.” S. Bay United Pentecostal Church v.

Newsom, 141 S. Ct. 716, 720 (2021) (Gorsuch, J.).

Defendants moved goalposts with great success to

moot lawsuits standing up to restrictions on worship

and other gatherings.

Even after this Court

intervened in Roman Catholic Diocese of Brooklyn v.

Cuomo, 592 U.S. 14, 20 (2020) (per curiam) (holding

that COVID-related suits are not per se moot after

regulatory changes), courts continued to hold that

Free Exercise and other challenges were moot when

governmental defendants changed the rules.6

This Court’s own experience with strategic

mootness shows government defendants’ success with

the tactic.

Consider N.Y. State Rifle & Pistol

Association, Inc. v. City of New York, 590 U.S. 336

(2020). Soon after this Court granted the petition, the

city amended the challenged firearm licensing

statute, mooting the lawsuit. Id. at 337-39. The city’s

strategy was not subtle: after fighting the challenge

“tooth and nail” to that point, it “essentially attempted

to impose a unilateral settlement.” Id. at 361 (Alito,

J., dissenting). As a result, the challengers were

“stuck with the attorney’s fees they incurred in

challenging a rule that the City ultimately

abandoned—and which it now admits was not needed

for public safety.” Id. at 360.

See, e.g., Resurrection Sch. v. Hertel, 35 F.4th 524 (6th Cir.

2022) (en banc) (Free Exercise Clause challenge to Michigan’s

mask mandate moot when Michigan repealed all mask

mandates); Lighthouse Fellowship Church v. Northam, 20 F.4th

157 (4th Cir. 2021) (Free Exercise challenge to Virginia

gathering restriction moot after state of emergency declared

over); Boston Bit Labs, Inc. v. Baker, 11 F.4th 3 (1st Cir. 2021)

(challenge to arcade closure moot after governor lifted closure;

Hawse v. Page, 7 F.4th 685 (8th Cir. 2021) (challenge to county

gathering restrictions moot when the county lifted COVID

emergency orders); Pleasant View Baptist Church v. Beshear, 838

F. App’x 936, 939 (6th Cir. 2020) (challenge to Kentucky’s social

gatherings limitations moot after the Governor denied intent to

impose additional restrictions).

The Commissioner scarcely addresses strategic

mootness generally, spotlighting instead mootness by

legislative repeal. Br. 50-52. But it makes no sense

to craft a rule for the mootness genus based on that

species alone.

Anyway, the Commissioner’s

suggestion that strategic repeals “will typically be

impracticable” is overstated. Br. 51. Buckhannon

itself involved the West Virginia legislature’s repeal

of the challenged law weeks after an adverse ruling.

532 U.S. at 601; id. at 624 (Ginsburg, J., dissenting).

Other examples are legion.7

Plaintiffs have little defense to such

gamesmanship.

Damages are an inadequate

safeguard against mootness. Br. 52. Often, as here,

“immunity doctrines and special defenses, available

only to public officials, preclude or severely limit the

damage remedy.” Pulliam v. Allen, 466 U.S. 522, 528

n.4 (1984) (quoting House Report 9).

Even when defendants lack immunity, the rights

at issue may not support damages. See Memphis

Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 (1986)

(“[T]he abstract value of a constitutional right may

not form the basis for § 1983 damages.”); Senate

Report 6 (“the rights involved may be nonpecuniary in

nature”). And in any event, “in a large number of

cases brought under the provisions covered by

See, e.g., Kremens v. Bartley, 431 U.S. 119, 128 (1977) (“The

fact that the [Pennsylvania] Act was passed after the decision

below does not save the named appellees’ claims from

mootness.”); Fusari v. Steinberg, 419 U.S. 379, 385 (1975)

(“[f]ollowing our notation of probable jurisdiction, the

Connecticut legislature enacted major revisions”); Amawi v.

Paxton, 956 F.3d 816, 821 (5th Cir. 2020) (mootness by state

statutory amendment).

[§ 1988(b)], only injunctive relief is sought.” Pulliam,

466 U.S. at 528 n.4 (quoting House Report 9). Because

more easily mooted equitable claims are the primary

(if not exclusive) relief in much civil rights litigation,

governmental mootness tactics are deadly. Those

tactics would suppress the incentive to enforce civil

rights since counsel could expect to be regularly

mooted out of fees.

The Commissioner’s rule would also eliminate that

incentive in some categories of cases. The threat from

allowing mootness to defeat prevailing party status is

most acute for “those whose urgent situations call for

interim relief.” 77 F.4th at 210. Consider the

“canonical” plaintiff “who wins a preliminary

injunction permitting a protest at a specific event.”

Id. at 215. Once the event ends, the litigation will be

moot “because the plaintiff has received all the courtordered assistance required.” Ibid. Such plaintiffs

have been able to obtain counsel because the “circuits

have little difficulty finding prevailing party status in

such circumstances.” Ibid. But the Commissioner

admits that his rule categorically bars the winners of

such injunctions. For them, § 1988(b) would be a dead

letter.

The circuit consensus discourages

unnecessary

post-injunction

proceedings.

The Commissioner’s rule also creates incentives

for unnecessary litigation that the circuit consensus

avoids.

1. Under the circuit consensus, plaintiffs need not

prolong the fight for remedies they care little about.

Single-event plaintiffs may care little for permanent

injunctions once their events are complete. And

damages may be beside the point (or not worth the

candle) for many civil rights plaintiffs. Because those

plaintiffs are already prevailing parties once they win

preliminary injunctions under the circuit consensus,

there is no incentive to drag out the litigation after

that.

The Commissioner, by contrast, would make their

fees contingent on winning some final judgment, no

matter how tangential to their litigation strategy. But

most parties have better things to do than litigate

nominal damages, as he recommends. Br. 52. And

why bother contesting mootness to make a

preliminary injunction permanent when the plaintiff

already has all the relief sought? Ibid. (citing Fed. R.

Civ. P. 65). Congress meant to encourage the

litigation of civil rights remedies that plaintiffs care

about—not makeweights to trigger fees.

2. The Commissioner suggests that current law

discourages repeals or the voluntary cessation of

challenged policy. Br. 49. Not so. Buckhannon still

insulates voluntary changes before a judgment (like a

preliminary injunction) is entered. 532 U.S. at 605;

N.Y. State Rifle & Pistol Ass’n, 590 U.S. at 360 (Alito,

J., dissenting). If anything, the circuit consensus

encourages prompter changes in conduct: government

defendants avoid fee liability only if they avoid

burdening courts with the need to resolve preliminary

injunction motions. Or they could settle the dispute

and negotiate fees then. See Evans v. Jeff D., 475 U.S.

717, 735-37 (1986).

Nor does the circuit consensus encourage

defendants to pursue unnecessary trials. Br. 50.

Quite the contrary. A prudent defendant is unlikely

to throw good money after bad for fee purposes when

the court has already found the plaintiff likely to

succeed. That defendant has his own fees to worry

about too. The Commissioner, for example, has been

spending to deploy his own AmLaw 100 firm

throughout this case. And a defendant who remains

convinced of the merits of his own case after a

preliminary injunction can appeal rather than force a

case all the way to trial. If the circuit consensus were

bloating trial calendars, there would be ample

evidence since that rule has been operative in most

circuits for many years.

To the contrary, history bears out that the circuit

consensus correctly aligns litigation incentives. And

the Commissioner identifies no practical reason to

scramble them.

Instead, the Commissioner’s steps highlight his

wasted opportunities to defeat or minimize any fee

award. During the 29 months of litigation before the

preliminary injunction, he could have worked for

repeal, freeing him from any fees under Buckhannon.

After the injunction, he could have appealed if he were

so confident on the merits. Or he could have asked the

District Court to rule on his fully briefed summary

judgment motion, as in Sole. 551 U.S. at 80. And the

Commissioner could have negotiated a consent decree

at any time to address fees.

The Commissioner took none of those off-ramps.

He litigated doggedly through the preliminary

injunction. When beaten, he obeyed the injunction

without appealing. Then he begged for a stay and ran

out the clock. Eventually the General Assembly

repealed the law, ending the lawsuit and vindicating

Plaintiffs. That litigation strategy is a not a blueprint

for what defendants should be encouraged to do.

The circuit consensus is readily

administrable.

Applying the ordinary meaning and this Court’s

corresponding interpretation of “prevailing party” to

preliminary

injunctions

entails

“ready

administrability.” Buckhannon, 532 U.S. at 610. All

unreversed preliminary injunctions are enforceable

judgments bearing judicial imprimatur. Part II.B. So

the only question left is whether the legal change

wrought by the injunction is material. Part II.A. This

Court’s precedent already requires that inquiry, and

has for decades. See Garland, 489 U.S. at 792-93. So

it entails no “second litigation of significant

dimension.” Buckhannon, 532 U.S. at 609.

Given the circuit consensus, “[e]xperience proves

the point.” City of San Antonio, Texas v. Hotels.com,

L.P., 593 U.S. 330, 342 (2021). Most circuits have long

recognized that preliminary injunction winners can be

prevailing parties. Yet Petitioner and his amici

“ha[ve] not identified any substantial number of

cases” in which factual disputes “have imposed real

difficulties.” Ibid. Instead, they offer “entirely

speculative” assertions about what may come to pass

if this Court agrees with what the lower courts are

largely doing already. Buckhannon, 532 U.S. at 608.

The lack of any substantial administrability problems

favors maintaining current law.

Besides, the putative simplicity of the

Commissioner’s “bright-line” rule is overstated. Br.

46. He and the United States acknowledge that

sometimes the merits are finally adjudicated at the

preliminary injunction stage. Br. 31; U.S. Br. 26 n.5.

And the United States seems to agree that sometimes

preliminary injunctions lead to prevailing parties.

But which times? The United States offers no clear

test to separate the final wheat from the non-final

chaff. See Br. 21 (proposing a “comparable to a

judgment on the merits” test that includes consent

decrees); U.S. Br. 16 & n.2 (similar for default

judgments).

IV.

These Plaintiffs are prevailing parties.

Plaintiffs are prevailing parties within the

ordinary meaning of the term, under historical and

modern precedent, and by any plausible rule short of

the Commissioner’s categorical bar.

First, the injunction materially changed the legal

relationship

between

Plaintiffs

and

the

Commissioner. Before the injunction, Va. Code § 46.2395 imposed on Plaintiffs a legal disability preventing

them from driving. That inability to drive cost

Plaintiffs jobs and promotions; prevented them from

reaching the grocery store; and even left them unable

to meet medical needs. 355 F. Supp. 3d 514, 520-23

(W.D. Va. 2018); 77 F.4th at 211 n.7. The injunction

removed that disability. 77 F.4th at 211. Regaining

the right to drive is not just material—it is lifechanging. Ibid. (“[N]o matter what happened at the

conclusion of the litigation, this injunction, for the

time it remained in effect, allowed the plaintiffs to

again drive to their jobs and personal engagements,

providing concrete, irreversible economic and noneconomic benefits that the plaintiffs sought in

bringing suit.”).

The Commissioner misstates that the “injunction

did no more than prevent the suspension of

[Plaintiffs’] driver’s licenses while the suit was

pending.” Br. 40. In fact, Plaintiffs’ licenses were

suspended, and the injunction ordered the

Commissioner to “remove any current suspensions of

the Plaintiffs’ driver’s licenses imposed under Va.

Code § 46.2-395.” J.A.381 (emphasis added). And it

barred him “from charging a fee to reinstate Plaintiffs’

driver’s licenses if there are no other restrictions on

their licenses.” Ibid. That reinstatement fee alone

was a significant—“and possibly insurmountable”—

obstacle to Plaintiffs driving legally. J.A.362-63.

Second, Plaintiffs won an enforceable judgment.

The Commissioner had the right to appeal the

preliminary injunction order, but never did. (The

United States thus errs in assuming that “judgment

was never entered against him.” U.S. Br. 31.)

Instead, he complied with that order and ceased

depriving Plaintiffs of the ability to drive under

§ 46.2-395. Had he failed to comply, he would be

exposed to contempt sanctions.

Third, the material relief from that injunctive

judgment had the necessary judicial imprimatur

because the District Court did the awarding. And the

judgment never lost that judicial imprimatur because

it was never “reversed, dissolved, or otherwise

undone” by a later decision on the merits. Sole, 551

U.S. at 83. To the contrary, Plaintiffs received that

relief “for as long as [they] need[ed] it,” i.e. “for as long

as the statute remain[ed] on the books.” 77 F.4th at

215.8

Plaintiffs thus cross the prevailing party

threshold. On remand, the District Court “in its

discretion” should address the “reasonable” amount of

fees. 42 U.S.C. § 1988(b). See Farrar, 506 U.S. at 114

(“[O]nce civil rights litigation materially alters the

legal relationship between the parties, the degree of

the plaintiff ’s overall success goes to the

reasonableness of a fee award.”). Then the District

Court will have ample discretion to consider at the

reasonableness

stage

many

arguments

the

Commissioner mistakenly asserts against eligibility.

See Hensley, 461 U.S. at 437; 77 F.4th at 218; see also

Br. 41.

CONCLUSION

The judgment should be affirmed, and the case

should be remanded for determination of a reasonable

attorney’s fee.

No party asks this Court to adopt the Fifth Circuit’s inquiry

into the cause of mootness. Yet if the Court incorporates a

causation inquiry, this record offers ample evidence from the

repeal’s timing and the Commissioner’s participation in that

process to find the low bar of causation satisfied. Pet.App.21a22a. But in that event, this Court may wish to remand “in view

of the district court’s superior understanding of the litigation.”

Hensley, 461 U.S. at 437; see also CRST Van Expedited, 578 U.S.

at 435 (remanding to let the district court “reach and settle [a]

fact-sensitive issue” in the first instance).

Respectfully submitted,

Brian D. Schmalzbach

Counsel of Record

Matthew A. Fitzgerald

John J. Woolard

MCGUIREWOODS LLP

Gateway Plaza

800 East Canal Street

Richmond, VA 23219

(804) 775-4746

bschmalzbach@

mcguirewoods.com

Jonathan T. Blank

MCGUIREWOODS LLP

323 Second Street SE

Suite 700

Charlottesville, VA 22902

(434) 977-2509

Angela A. Ciolfi

Legal Aid Justice Center

1000 Preston Avenue

Suite A

Charlottesville, VA 22903

(434) 529-1810

Patrick Levy-Lavelle

Legal Aid Justice Center

626 East Broad Street

Suite 200

Richmond, VA 23219

(804) 643-1086

August 5, 2024

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.