Amicus Curiae Brief — Gerald F. Lackey, in His Official Capacity as the Commissioner of the Virginia Department of Motor Vehicles, Petitioner v. Damian Stinnie, et al.
Supreme Court briefAug 12, 2024
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No. 23-621
IN THE
Supreme Court of the United States
d
GERALD F. LACKEY, IN HIS OFFICIAL CAPACITY
AS THE COMMISSIONER OF THE
VIRGINIA DEPARTMENT OF MOTOR VEHICLES ,
Petitioner,
—v.—
DAMIAN STINNIE , et al.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
BRIEF FOR AMICUS CURIAE
NEW JERSEY STATE BAR ASSOCIATION
IN SUPPORT OF RESPONDENTS
WILLIAM H. MERGNER JR.
Of Counsel and President
ROBERT B. HILLE
PETER J. GALLAGHER
JAMES A. LEWIS V
NEW JERSEY STATE
BAR ASSOCATION
One Constitution Square
New Brunswick, New Jersey 08901
(732) 249-5000
wmergner@lbmblaw.com
GARY S. STEIN
Counsel of Record
DOMINIQUE KILMARTIN
PASHMAN STEIN WALDER
HAYDEN, P.C.
21 Main Street, Suite 200
Hackensack, New Jersey 07601
(201) 488-8200
gstein@pashmanstein.com
Counsel for Amicus Curiae New Jersey State Bar Association
TABLE OF CONTENTS
INTEREST OF AMICUS CURIAE ............................ 1
SUMMARY OF ARGUMENT .................................... 2
ARGUMENT ............................................................... 5
I. CONSISTENT AND CLEAR SUPREME
COURT PRECEDENT HAS LED TO
UNANIMOUS AGREEMENT AMONG THE
CIRCUITS THAT A MERITS-BASED
PRELIMINARY INJUNCTION—NOT AN
INJUNCTION SIMPLY INTENDED TO
PRESERVE THE STATUS QUO, BUT AN
INJUNCTION
THAT
MATERIALLY
ALTERS THE RELATIONSIP BETWEEN
THE PARTIES—CAN CONSTITUTE THE
BASIS FOR A “PREVAILING PARTY”
RECOGNITION PURSUANT TO THE
FEDERAL FEE-SHIFTING STATUTES .......... 5
A. The Fourth Circuit Held that a
Preliminary Injunction Based on a
Likelihood of Success on the Merits
that Fundamentally Alters the Parties’
Relationship is a Sufficient Basis for a
Prevailing Party Determination when
the Case is Mooted by the Defendant’s
Capitulation before Final Judgment.
That Holding is Thoroughly Consistent
with this Court’s Prior Decisions, and
the Unanimous Agreement of the
Circuits with that Holding Reflects the
Clarity and Soundness of this Court’s
Prevailing Party Jurisprudence .............. 7
i
B. Whether or Not a Preliminary
Injunction Qualifies as a “Judicially
Sanctioned Change in the Relationship
Between the Parties” Depends on
Whether the Grounds for Relief, the
Time and Resources Expended, and the
Overall Quality of the Preliminary
Injunction Proceeding Measure Up to
the Demands of a Cognizable
“Prevailing Party” Designation ............. 19
CONCLUSION.......................................................... 33
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Buckhannon Bd. & Care Home, Inc. v. W. Virginia
Dep't of Health & Hum. Res.,
532 U.S. 598 (2001) ...............9, 10, 11, 25, 26, 28, 29
Dearmore v. City of Garland,
400 F. Supp. 2d 894 (N.D. Tex. 2005) ............. 24, 25
Dearmore v. City of Garland,
519 F.3d 517 (5th Cir. 2008) ................ 23, 24, 25, 26
Farrar v. Hobby,
506 U.S. 103 (1992) ................................ 4, 14, 15, 17
Hanrahan v. Hampton,
446 U. S. 754 (1980) ......................................... 17, 18
Hensley v. Eckerhart,
461 U.S. 424 (1983) ................................ 9, 14, 15, 28
Hewitt v. Helms,
482 U.S. 755 (1987) .................................... 11, 12, 13
Lefemine v. Wideman,
568 U.S. 1 (2012) ........................................ 15, 16, 17
McQueary v. Conway,
614 F.3d 591 (6th Cir. 2010) ............................ 21, 22
Nadeau v. Helgemoe,
581 F.2d 275 (1st Cir. 1978) .................................... 9
iii
People Against Police Violence v. City of Pittsburgh,
520 F.3d 226 (3d Cir. 2008) ................. 26, 27, 28, 30
Roberts v. Neace,
65 F. 4th 280 (6th Cir. 2023) ........................... 19, 20
Sole v. Wyner,
551 U.S. 74 (2007) ................................ 19, 25, 28, 29
Stinnie v. Holcomb,
355 F. Supp. 3d 514 (W.D. Va. 2018) .................. 8, 9
Stinnie v. Holcomb,
396 F. Supp. 3d 653 (W.D. Va. 2019) ...................... 3
Stinnie v. Holcomb,
77 F.4th 200 (4th Cir. 2023) .................... 3, 4, 31, 32
Tex. State Tchrs. Ass’n v. Garland Indep. Sch. Dist.,
489 U.S. 782 (1989) .............................. 11, 13, 14, 15
Weinberger v. Romero-Barcelo,
456 U.S. 305 (1982) ................................................ 19
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ................................................ 8, 19
Statutes
42 U.S.C. § 12101 et seq ...................................... 10, 11
42 U.S.C. § 1988 .......................................................... 5
42 U.S.C. § 3601 et seq .............................................. 10
Va. Code § 46.2-395 ............................................ 7, 8, 9
iv
W. Va. Code §§ 16-5H-1, 16-5H-2 ............................. 10
Other Authorities
S.Rep. No. 94-1011, (1976). .................................... 6, 7
11A Charles Alan Wright and Arthur R. Miller,
Federal Practice and Procedure, § 2948 (3d ed.
2023) ....................................................................... 19
Black’s Law Dictionary, Prevailing Party (rev. 4th ed.
1968) ....................................................................... 31
v
INTEREST OF AMICUS CURIAE 1
Amicus Curiae New Jersey State Bar
Association (NJSBA) is an avid advocate for members
of the New Jersey bar. As a voluntary membership
organization, the NJSBA serves, protects, fosters and
promotes the personal and professional interests of
over 16,000 members, and functions as the voice of
New Jersey attorneys to other organizations,
governmental entities and the public regarding the
law, legal profession and legal system. The promotion
of access to the justice system is a critical element of
the NJSBA’s Mission Statement.
The interest of the NJSBA in this matter is in
furtherance of its strong commitment to ensuring the
courthouse doors remain open to all as a means to
resolve legal grievances. This same interest is at the
heart of the public policy supporting fee shifting
statutes. Such statutes are designed to ensure that
litigants, who would otherwise not be able to bring
their cause of action, can file their grievances with the
court as a means of arriving at a resolution. The issue
in this case will impact access to the courts in fee
shifting cases by addressing whether and when
statutorily-permitted attorney’s fees may be
considered when a case is rendered moot because of a
lasting policy or other sustaining change made by a
defendant before a final judicial determination.
Amicus curiae affirms that no counsel for any party authored
this brief, in whole or in part. No person or entity other than
amicus curiae contributed monetarily to its preparation or
submission.
1
1
It is equally critical that there be clarity in the
law so the NJSBA’s member attorneys, whether
prosecuting or defending claims, can adequately
advise and provide effective representation to their
clients. Here, the Circuits are consistent in their
interpretation and parties have relied on the existing
caselaw addressing when a prevailing party status
exists in a preliminary injunction setting for an award
of counsel fees. The case at issue does not warrant a
departure from that well-established precedent.
SUMMARY OF ARGUMENT
For two reasons, this Court will have no
difficulty in concluding that the Fourth Circuit’s
“prevailing party” determination should be affirmed.
First, that result is a matter of common sense
and simple fairness. By virtue of a crudely drafted
Virginia statute, Respondents’ driver’s licenses were
suspended, without notice or hearing, automatically
upon their failure to timely pay fines for motor vehicle
violations, fines that they could not afford to pay.
Respondents sued and sought injunctive relief. The
District Court judge held an evidentiary hearing, and
in a detailed and well-reasoned opinion concluded that
Respondents had demonstrated a substantial
likelihood of succeeding on the merits of their claim
that the statute failed to provide procedural due
process because it made no provision for either notice
or hearing prior to the license suspension. In fact, the
court found that the Virginia Department of Motor
Vehicles automatically suspends the licenses of
drivers who fail to timely pay court fines and costs
upon receipt of a computer notification from the court
system that a payment is delinquent. The court
granted a preliminary injunction, enjoining
2
enforcement of the statute, reinstating Respondents’
driver’s licenses and prohibiting collection of the $145
reinstatement fee that the statute authorized. See
Stinnie v. Holcomb, 355 F. Supp. 3d 514, 527-33 (W.D.
Va. 2018).
The Commissioner of the Department of Motor
Vehicles (the “Commissioner” or “Petitioner”) did not
appeal the preliminary injunction. After discovery,
and five weeks before trial, the Commissioner sought
a stay of the trial, noting that the Legislature had
enacted Budget Amendment No. 33, which eliminated
the suspension of driver’s licenses for failure to pay
court fees and costs through July 1, 2020, but did not
repeal the underlying statute. The Commissioner
represented that the Legislature was likely to repeal
the statute during the next legislative session. See
Stinnie v. Holcomb, 396 F. Supp. 3d 653, 656 (W.D.
Va. 2019).
Over Respondents’ “strenuous objections,”
Stinnie v. Holcomb, 77 F.4th 200, 204 (4th Cir. 2023),
the court stayed the trial pending the next session of
the Legislature. At that session, the Legislature
repealed the offending statute from the Virginia Code,
effective as of July 1, 2020. Based on the legislative
repeal of the license suspension statute, in May 2020
the parties stipulated that the litigation should be
dismissed as moot. Accordingly, the preliminary
injunction had provided continuing relief to
Respondents from December 2018 until May 2020.
Undeniably, Respondents prevailed on their
claim. The preliminary injunction reinstated their
licenses without a penalty and enjoined enforcement
of the statute, based on their demonstrated likelihood
of success, until the case was mooted eighteen months
3
after the preliminary injunction was entered. But for
the stay of trial sought and obtained by the
Commissioner, and the subsequent repeal of the
statute, Respondents undoubtedly would have
succeeded at trial and secured a Final Judgment. In
that context, the lack of a Final Judgment cannot
reasonably or justifiably preclude Respondents from
designation as a prevailing party.
Second, this Court’s decisions on the criteria for
prevailing party designation have been clear,
consistent and relatively uncontroversial. As a result,
the Circuit Courts of Appeal decisions, contrary to
Petitioner’s claim of confusion and uncertainty, have
been remarkably uniform and harmonious. In fact,
prior to Stinnie, all of the Circuit Courts of Appeal,
except for the Fourth Circuit, had agreed—even
without a ruling from this Court—that under
appropriate circumstances a preliminary injunction
based on a finding of likelihood of success on the
merits could support a prevailing party finding. In
Stinnie, by virtue of the en banc decision reversing the
three-judge panel, the Fourth Circuit has joined all of
the other Circuits in adopting that holding. The
uniformity among the Circuits on this question is not
coincidental. It results directly from this Court’s
consistent precedents that require a judicial decision
that alters the parties’ relationship in a manner
directly benefiting the plaintiff to serve as the sine qua
non of a prevailing party finding, Farrar v. Hobby, 506
U.S. 103, 111-12 (1992), but that have pragmatically
declined to require a final judgment on the merits as
a predicate for that finding.
This Court should credit its own jurisprudence
as the source of the Courts of Appeals’ unanimity on
the issue posed by this matter, and affirm the sound
4
and eminently sensible disposition by the Fourth
Circuit.
ARGUMENT
I.
CONSISTENT AND CLEAR SUPREME
COURT PRECEDENT HAS LED TO
UNANIMOUS AGREEMENT AMONG THE
CIRCUITS THAT A MERITS-BASED
PRELIMINARY INJUNCTION—NOT AN
INJUNCTION SIMPLY INTENDED TO
PRESERVE THE STATUS QUO, BUT AN
INJUNCTION
THAT
MATERIALLY
ALTERS THE RELATIONSHIP BETWEEN
THE PARTIES—CAN CONSTITUTE THE
BASIS FOR A “PREVAILING PARTY”
RECOGNITION PURSUANT TO THE
FEDERAL FEE-SHIFTING STATUTES.
Senate Report (Judiciary Committee) No. 941011, issued in support of the Civil Rights Attorney’s
Fees Awards Act of 1976, 42 U.S.C. § 1988, the statute
at issue in Stinnie, explains clearly the congressional
purpose in enacting fee-shifting statutes in the civil
rights field. The Statement included in the Senate
Report succinctly and clearly explained the statutory
purpose:
The purpose and effect of S. 2278 are
simple—it is designed to allow courts to
provide the familiar remedy of
reasonable counsel fees to prevailing
parties in suits to enforce the civil rights
acts which Congress has passed since
1866.
...
5
In many cases arising under our civil
rights laws, the citizen who must sue to
enforce the law has little or no money
with which to hire a lawyer. If private
citizens are to be able to assert their civil
rights, and if those who violate the
Nation’s fundamental laws are not to
proceed with impunity, then citizens
must have the opportunity to recover
what it costs them to vindicate these
rights in court.
...
When a plaintiff brings an action under
(Title II) he cannot recover damages. If
he obtains an injunction, he does so not
for himself alone but also as a “private
attorney general,” vindicating a policy
that Congress considered of the highest
priority. If successful plaintiffs were
routinely forced to bear their own
attorneys’ fees, few aggrieved parties
would be in a position to advance the
public interest by invoking the injunctive
powers of the Federal courts. Congress
therefore enacted the provision for
counsel fees . . . to encourage individuals
injured by racial discrimination to seek
judicial relief under Title II.
...
Not to award counsel fees in cases such
as this would be tantamount to repealing
the Act itself by frustrating its basic
purpose. Without counsel fees the grant
6
of Federal jurisdiction is but an empty
gesture.
S.Rep. No. 94-1011, pp. 2-3 (1976) (citations omitted).
The Senate Judiciary Committee recognized
that fee shifting would be an important incentive for
attorneys to represent individuals unable to otherwise
afford to bring civil rights cases. Had they anticipated
the legal issue presented in this case, they may have
more specifically addressed the criteria needed to
achieve “prevailing party” status to account for
situations such as the one presented here.
A. The Fourth Circuit Held that a
Preliminary Injunction Based on a
Likelihood of Success on the Merits
that Fundamentally Alters the Parties’
Relationship is a Sufficient Basis for a
Prevailing Party Determination when
the Case is Mooted by the Defendant’s
Capitulation before Final Judgment.
That Holding is Thoroughly Consistent
with this Court’s Prior Decisions, and
the Unanimous Agreement of the
Circuits with that Holding Reflects the
Clarity and Soundness of this Court’s
Prevailing Party Jurisprudence.
Before reviewing this Court’s decisions on the
essence of its “prevailing party” holdings, the District
Court’s ruling on Respondents’ preliminary injunction
application provides the necessary context for that
review.
Respondents, indigent Virginia residents
whose driver’s licenses were automatically suspended
for failure to pay motor vehicle violation fines they
could not afford, sued to enjoin enforcement of Va.
7
Code § 46.2-395, the statute authorizing those
suspensions. Respondents moved for a preliminary
injunction seeking to (1) enjoin the Commissioner
from enforcing § 46.2-395 against Respondents; (2)
remove the current suspensions of their driver’s
licenses; and (3) enjoin the Commissioner from
charging a fee to reinstate their licenses. Stinnie, 355
F. Supp. 3d at 519-20.
Following briefing and an evidentiary hearing
that included expert testimony, the District Court
concluded that Va. Code § 46.2-395 did not honor the
notice and hearing demands of procedural due
process:
The evidence before the Court suggests
that Plaintiffs may succeed on showing
notice is deficient in this case. However,
the Court need not reach a definitive
conclusion on this issue because
Plaintiffs have made a clear showing
that they are likely to establish that they
are not provided an opportunity to be
heard.
...
Even if the notice provided here was
more than a mere gesture, Plaintiffs are
likely to show § 46.2-395 does not provide
any hearing, much less one that satisfies
due process.
Id. at 529.
The District Court also determined that the
other factors enumerated in Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7 (2008)—“irreparable harm,
the balance of equities, and the public interest”—all
8
were weighted in Respondents’ favor. Stinnie, 355 F.
Supp. 3d at 532. The District Court granted the
preliminary injunction and ordered that: (1) the
Commissioner was “preliminarily enjoined from
enforcing . . . § 46.2-395 against Plaintiffs unless or
until the Commissioner or another entity provide[d] a
hearing regarding license suspension and provide[d]
adequate notice thereof”; (2) the Commissioner had to
“remove any current suspensions of the Plaintiffs’
driver’s licenses imposed under . . . § 46.2-395”; and
(3) the Commissioner was “enjoined from charging a
fee to reinstate Plaintiffs’ driver’s licenses. . . .”
J.A.381.
The Commissioner did not appeal the
preliminary injunction. Five weeks before trial, at the
Commissioner’s request, and over Respondents’
objections, the trial was adjourned pending the 2020
session of Virginia’s General Assembly, in the course
of which Va. Code § 46.2-395 was repealed, mooting
the litigation. See Stinnie, 396 F. Supp. 3d at 661.
This Court’s jurisprudence on the requirements
for a “prevailing party” determination that supports a
counsel fee award under a fee shifting statute has
been clear, consistent and relatively easy to apply.
One formulation, focused on the need for success in
the litigation, stated that “plaintiffs may be
considered ‘prevailing parties’ for attorney’s fee
purposes if they succeed on any significant issue in
litigation which achieves some of the benefit the
parties sought in bringing suit.” Hensley v. Eckerhart,
461 U.S. 424, 433 (1983) (quoting Nadeau v.
Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)).
A consistent but more precise version of that
principle is found in Buckhannon Bd. and Care Home,
9
Inc. v. West Virginia Department of Health and
Human Resources, 532 U.S. 598 (2001). Plaintiff
Buckhannon Board and Care Home, Inc.
(Buckhannon) operated assisted living facilities for its
residents, some of whom were not capable of “selfpreservation” under a West Virginia statute that
required such residents to be capable of moving
themselves “from situations involving imminent
danger, such as fire.” Id. at 600 (quoting W. Va. Code
§§ 16-5H-1, 16-5H-2 1407 (1998)). After it received
cease-and-desist orders requiring closure of its
residential facilities within thirty days, Buckhannon
sued the State, two of its agencies and various
individuals, alleging that the “self-preservation”
requirement violated the Fair Housing Amendments
Act of 1988, 42 U.S.C. § 3601 et seq., and the
Americans with Disabilities Act of 1990, 42 U.S.C. §
12101 et seq. Id. at 600-01.
The respondents stayed enforcement of the
cease-and-desist orders pending discovery and trial.
Id. at 601. While the case was pending, the West
Virginia Legislature passed laws that repealed the
“self-preservation” requirement, and the respondents
moved to dismiss the case as moot. Id. The District
Court granted the motion. Id.
Buckhannon requested counsel fees as the
“prevailing party.” Id. The District Court denied fees,
and the Fourth Circuit affirmed, rejecting the
“catalyst theory,” which holds that if the lawsuit
induced a voluntary change in the defendant’s conduct
that causes the plaintiff to achieve its desired result
without
judicial
intervention,
the
plaintiff
nevertheless is entitled to claim “prevailing party”
status. Id. at 601-02. This Court affirmed in a 5-to-4
decision.
10
At the heart of this Court’s rationale for
rejecting the catalyst theory was the recognition that
that theory allows a counsel fee award “where there is
no judicially sanctioned change in the legal
relationship of the parties.” Id. at 605. Citing the
Court’s prior precedents, the Court held that
“enforceable judgments on the merits and courtordered consent decrees create the ‘material
alteration of the legal relationship of the parties’
necessary to permit an award of attorney’s fees.” Id.
at 604 (quoting Tex. State Tchrs. Ass’n v. Garland
Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989)).
Emphasizing that judicial intervention is an
indispensable condition of prevailing party status, the
Court concluded that “[a] defendant’s voluntary
change in conduct, although perhaps accomplishing
what the plaintiff sought to achieve by the lawsuit,
lacks the necessary judicial imprimatur on the
change. Our precedents counsel against holding that
the term ‘prevailing party’ authorizes an award of
attorney’s fees without a corresponding alteration in
the legal relationship of the parties.” Id. at 605.
This Court’s other precedents concerning
prevailing party status are thoroughly consistent with
Buckhannon’s mandate that any material alteration
in the legal relationship of the parties must be
judicially sanctioned, and that the required judicial
intervention is indispensable to a prevailing party
determination.
Hewitt v. Helms, 482 U.S. 755 (1987), is a
procedurally complex case involving an inmate, Aaron
Helms, who after a prison riot was placed in
restrictive custody pending investigation of his role in
the riot. A hearing committee that relied solely on an
officer’s report based on hearsay testimony of an
11
undisclosed informant convicted Helms of misconduct
during the riot and sentenced him to six months
restrictive confinement. Id. at 757. Helms sued,
alleging that both the lack of a prompt hearing on his
misconduct charges prior to his being placed in
restrictive custody, and his conviction based on
uncorroborated hearsay testimony, violated his due
process rights. Id. The prison officials asserted an
immunity defense and contested the constitutional
claims. Id. Helms was paroled prior to the District
Court’s decision. Id.
The
District
Court
rejected
Helms’
constitutional claims without resolving the immunity
issue. Id. at 757-58. The Third Circuit reversed,
concluding that his placement in restrictive custody
without a hearing, and his conviction of misconduct
based only on the hearsay testimony of an
unidentified informant, violated his due process
rights. Id. at 758. The Court of Appeals directed the
District Court to enter summary judgment for Helms
on the misconduct conviction unless the defendants
established their immunity defense. Id.
Prior to the remand proceedings, this Court
granted certiorari only on whether Helms’ placement
in restrictive custody violated due process, and
reversed the Third Circuit on that issue, holding that
the process afforded Helms by the prison officials was
sufficient. Id. On remand to the Third Circuit, that
court reiterated its mandate that the District Court
enter summary judgment for Helms on the
misconduct claim unless the prison officials prevailed
on their sovereign immunity defense. Id.
On remand, the District Court found in favor of
the prison officials on their immunity defense, and the
12
Third Circuit affirmed. Id. at 758-59. While that
appeal was pending, the Pennsylvania Bureau of
Corrections revised its regulations and adopted
previously non-existent procedures for use of
confidential source information in inmate disciplinary
proceedings. Id. at 759.
Helms sought counsel fees, which were denied
by the District Court. Id. The Third Circuit reversed,
noting that its prior holding that Helms’
constitutional rights were violated by the defendants’
reliance on the hearsay testimony of an unidentified
informant was a sufficient judicial intervention to
justify treating Helms as a prevailing party. Id.
This Court reversed in a split decision, holding
that because Helms obtained no relief on the merits of
his claim due to judicial intervention, he could not be
regarded as a prevailing party. Id. at 759-60. The
Court determined that because the Third Circuit’s due
process ruling was overridden by the District Court’s
immunity determination, the Third Circuit’s decision
had provided no judicial relief to Helms. The Court
observed that “[t]he most that he obtained was an
interlocutory ruling that his complaint should not
have been dismissed for failure to state a
constitutional claim. That is not the stuff of which
legal victories are made.” Id. at 760.
In Texas State Teachers Ass’n v. Garland
Independent School Dist., 489 U.S. 782 (1989),
teachers unions sued the defendant school district
challenging the constitutionality of its policy limiting
communications
with
teachers
and
union
representatives during school hours. The so-called
“central issue” in the case was the constitutionality of
the school board’s policy to limit the unions’ access to
13
teachers and school facilities during school hours. Id.
at 785. Although the District Court denied relief on
the “central issue” and most of the unions’ other
claims, the Fifth Circuit reversed in part, granting the
unions summary judgment on their claims that the
school district’s prohibition of teacher-to-teacher
discussions of unions during the school day, and of
teachers’ use of internal mail and billboards to discuss
unions, was unconstitutional. Id. at 786-87. After this
Court summarily affirmed, the unions sought counsel
fees. Id. at 787. The District Court denied fees, noting
that although the unions had been successful on some
of their claims, they had not prevailed on the “central
issue” and therefore were not prevailing parties. Id.
A divided panel of the Fifth Circuit affirmed. Id.
This Court reversed, rejecting the “central
issue” test and holding that plaintiffs may qualify as
“prevailing parties” provided that they “succeed on
any significant issue in litigation which achieves some
of the benefit [they] sought in bringing the suit.” Id.
at 789 (quoting Hensley, 461 U.S. at 433).
In Farrar v. Hobby, 506 U.S. 103 (1992),
Plaintiffs Joseph and Dale Farrar, who operated a
Texas school for delinquent and disabled teenagers,
sued various public officials who were instrumental in
efforts leading to the school’s closure after a student’s
death allegedly caused by inadequate medical care.
Id. at 105-06. The suit alleged that the school’s
closure constituted a deprivation of property without
due process and sought damages of $17 million. Id. at
106. The jury found that one of the officials charged,
acting under the color of State law, had deprived
Joseph Farrar of his civil rights, but that that action
was not a proximate cause of any damages. Id. at 106.
Accordingly, the jury awarded no damages to the
14
plaintiffs. Id. at 106-07. The Fifth Circuit reversed in
part, concluding that because the jury found that
Joseph Farrar had been deprived of a civil right by one
of the defendants, the court should enter judgment in
the plaintiffs’ favor for nominal damages. Id. at 107.
The plaintiffs sought counsel fees, and the
District Court awarded $280,000 in fees against the
defendant who had violated plaintiff Joseph Farrar’s
civil rights. Id. A divided panel of the Fifth Circuit
reversed, holding that the plaintiffs were not
prevailing parties. Id. at 107-08.
This Court reversed in part, holding that even
an award of “nominal damages” was sufficient to
constitute the plaintiffs “prevailing parties” for
purposes of a fee award, since the award altered the
legal relationship between the parties by forcing one
of the defendants “to pay an amount of money he
otherwise would not pay.” Id. at 112-13. However, the
Court explained that “‘the degree of the plaintiff’s
overall success goes to the reasonableness’ of a fee
award under Hensley v. Eckerhart,” id. at 114 (quoting
Tex. State Tchrs. Ass’n, 489 U.S. at 793), which is “‘the
most critical factor’ in determining the reasonableness
of a fee award,” id. (quoting Hensley, 461 U.S. at 436).
Accordingly, the Court concluded that “[w]hen a
plaintiff recovers only nominal damages because of his
failure to prove an essential element of his claim for
monetary relief, . . . the only reasonable fee is usually
no fee at all.” Id. at 115 (internal citation omitted).
The Court therefore affirmed the Fifth Circuit’s
judgment reversing the District Court’s counsel fee
award. Id. at 116.
In Lefemine v. Wideman, 568 U.S. 1 (2012), a
most significant and more recent opinion, this Court
15
unanimously reversed a Fourth Circuit decision
denying “prevailing party” recognition and counsel
fees to a plaintiff who had secured a permanent
injunction in his favor from the District Court. In
2005, Plaintiff Steven Lefemine and members of
Columbia Christians for Life held a demonstration at
a busy intersection in Greenwood County, South
Carolina, in which they displayed pictures of aborted
fetuses to protest the availability of abortions. Id. at
2. A Greenwood County Police Officer threatened
Lefemine with prosecution for breach of the peace,
causing the demonstrators to disband. Id. at 3.
About a year later, an attorney for Lefemine
wrote a letter to the Greenwood County Sheriff,
threatening litigation if future demonstrations were
disrupted. Id. The Sheriff’s Chief Deputy responded
that any similar demonstrations also would face
criminal sanctions. Id.
In 2008, Lefemine sued several Greenwood
County Police Officers alleging violation of his First
Amendment rights, and seeking nominal damages, a
declaratory judgment, a permanent injunction and
counsel fees. Id. The District Court found that the
defendants had violated Lefemine’s rights and
permanently enjoined the defendants from imposing
content-based restrictions on similar demonstrations
led by Lefemine but denied Lefemine’s claim for
nominal damages based on a finding that the officers
had immunity. Id. The District Court also denied
counsel fees. Id. at 3-4.
The Fourth Circuit affirmed, holding that the
relief granted did not “alte[r] the relative positions of
the parties” or otherwise make Lefemine a prevailing
party. Id. at 4 (citation and quotation marks omitted).
16
This Court unanimously reversed, holding that “when
actual relief on the merits of his claim materially
alters the legal relationship between the parties by
modifying the defendant’s behavior in a way that
directly benefits the plaintiff,” that is sufficient to
constitute the plaintiff a “prevailing party.” Id.
(quoting Farar, 506 U.S. at 111-12). The Court also
noted that “an injunction or declaratory judgment,
like a damages award, will usually satisfy that test.”
Id.
In Hanrahan v. Hampton, 446 U. S. 754 (1980),
civil rights litigation was instituted after execution of
a judicial warrant to search for and seize illegal
weapons allegedly located in an apartment occupied
by members of the Black Panther Party. The District
Court granted a directed verdict in favor of the
defendants. Id. at 755. The Seventh Circuit reversed,
remanded for a new trial, and awarded attorney’s fees
to the plaintiffs as prevailing parties. Id. The basis
for that court’s prevailing party determination was
several of its rulings on appeal, including (1) reversal
of the District Court’s ruling directing verdicts against
the defendants; (2) reversal of the District Court’s
denial of the defendants’ motion to discover the
identity of an informant; and (3) that court’s order to
the District Court to allow further discovery, and to
conduct a hearing on whether sanctions should be
imposed on certain defendants for violation of
discovery orders. Id. at 756.
In reversing the fee award, this Court’s per
curiam opinion first acknowledged that
[t]he legislative history of the Civil
Rights Attorney’s Fees Awards Act of
1976 indicates that a person may in some
17
circumstances be a prevailing party
without having obtained a favorable
final judgment following a full trial on
the merits[.]
...
It is evident also that Congress
contemplated the award of fees pendente
lite in some cases. But it seems clearly to
have been the intent of Congress to
permit such an interlocutory award only
to a party who has established his
entitlement to some relief on the merits
of his claims, either in the trial court or
on appeal.
Id. at 756-57 (internal citations and quotations
omitted).
Notwithstanding that highly significant
acknowledgement of Congress’ intent to authorize
prevailing party determinations based on certain trial
court rulings in advance of final judgment, this Court
reversed the Circuit Court’s counsel fee award
because
[t]he respondents have of course not
prevailed on the merits of any of their
claims. The Court of Appeals held only
that the respondents were entitled to a
trial of their cause. As a practical
matter, they are in a position no different
from that they would have occupied if
they had simply defeated the defendants’
motion for a directed verdict in the trial
court.
Id. at 758-59.
18
B. Whether or Not a Preliminary
Injunction Qualifies as a “Judicially
Sanctioned Change in the Relationship
Between the Parties” Depends on
Whether the Grounds for Relief, the
Time and Resources Expended, and the
Overall Quality of the Preliminary
Injunction Proceeding Measure Up to
the
Demands
of
a
Cognizable
“Prevailing Party” Designation.
Petitioner argues that preliminary injunction
proceedings invariably lack the substance, depth and
effect required for a “prevailing party” determination.
That generalization simply cannot bear the weight
imposed on it by Petitioner. It is well settled that a
preliminary injunction is an “extraordinary and
drastic remedy, one that should not be granted unless
the movant, by a clear showing, carries the burden of
persuasion.” 11A Charles Alan Wright and Arthur R.
Miller, Federal Practice and Procedure, § 2948 (3d ed.
2023). See, e.g., Winter, 555 U.S. at 24 (“A preliminary
injunction is an extraordinary remedy never awarded
as of right.”); Weinberger v. Romero-Barcelo, 456 U.S.
305, 312 (1982) (urging courts to “pay particular
regard for the public consequences in employing the
extraordinary remedy of injunction”).
However, as this Court has acknowledged, in
some preliminary injunction cases, “little time and
resources are spent on the threshold contest.” Sole v.
Wyner, 551 U.S. 74, 84 (2007). In others, the result is
fleeting, “especially when the relief is principally
designed to preserve the status quo relationship of the
parties and has little to do with the merits.” Roberts
v. Neace, 65 F. 4th 280, 284 (6th Cir. 2023). “An illconsidered, hastily entered, or tentative injunction
19
points against enduring relief,” and “[t]he same holds
true for an injunction that is later overturned,
repudiated or vacated.” Id.
In Roberts v. Neace, Executive Orders issued by
Kentucky Governor Andy Beshear and designed to
limit COVID-19 transmissions prohibited mass
gatherings, including religious services. Id. at 283.
Violations constituted a criminal misdemeanor. Id.
The plaintiffs-congregants violated the Governor’s
Order by attending Easter services at Maryville
Baptist Church and were warned that future
violations could lead to criminal charges. Id. The
congregants sued, seeking declaratory and injunctive
relief, and moved to enjoin any prosecution based on
their attendance at the Easter service. Id. They also
challenged the Governor’s Order prohibiting travel in
or out of Kentucky, subject to certain exceptions. Id.
The District Court granted preliminary
injunctive relief against the travel restriction but
denied relief from the restriction on religious
gatherings. Id. However, the Sixth Circuit reversed
and granted the preliminary injunction regarding the
religious gatherings restriction, reasoning that the
Governor’s Order violated the Free Exercise clause by
treating “religious gatherings less favorably than
comparable secular gatherings.” Id.
Subsequently, the Governor issued new Orders
allowing interstate travel and faith-based gatherings,
and the Kentucky Legislature limited the Governor’s
authority to issue similar COVID-19 Orders. Id.
Accordingly, the District Court dismissed the
congregants’ suit as moot. Id. The congregants then
sought counsel fees, which were granted by the
20
District Court. Id. The Governor appealed, and the
Sixth Circuit affirmed.
The court acknowledged that not all
preliminary injunctions are sufficient to confer
prevailing party status:
Ordinarily, a preliminary injunction by
itself does not suffice, especially when
the relief is principally designed to
maintain the status quo relationship of
the parties and has little to do with the
merits. But a preliminary injunction
may well suffice if it mainly turns on the
likelihood-of-success
inquiry
and
changes the parties’ relationship in a
material and enduring way.
Id. at 284. Concluding that the congregants were
“prevailing parties,” the Sixth Circuit observed that
“[b]oth injunctions changed the legal relationship
between the congregants and Governor Beshear
because they stopped the Governor from enforcing his
orders and allowed the congregants to act in ways that
he had ‘previously resisted.’” Id. (quoting McQueary
v. Conway, 614 F.3d 591, 600 (6th Cir. 2010)). The
court added as follows:
They were not fleeting or hasty opinions
that merely preserved the status quo
until time allowed for a closer look.
Instead, the injunctions, entered after
briefing and argument, focused on the
legal reality that the congregants would
likely succeed on the merits. We have
labeled similar preliminary injunctions
as final in all but name.
21
Id. (internal citations and quotation marks omitted)
(emphasis added).
The Sixth Circuit also commented extensively
on the enduring nature of the injunctions, noting that
“at least seventy cases cite the Sixth Circuit’s
preliminary injunction. The rationale in that case
remains the law of the circuit, now indeed the law of
the nation.” Id. at 285 (emphasis added). The court
added:
Time also looked favorably on the
preliminary injunctions.
No later
decision reversed or vacated the
injunctions. Instead, the view expressed
in the Sixth Circuit injunction informed
the analysis of other COVID-19
restrictions, both in this circuit and
beyond.
And it guided other cases
addressing Governor Beshear’s orders.
...
The statutory inquiry, we appreciate,
refers to prevailing parties, not
prevailing opinions. But the continued
invocation of this published opinion
within and outside the circuit confirms
that there is little prospect—none,
really—that the court would reverse
course, and enter judgment in favor of
the defendants.
The longevity of the relief points the
same way. The Sixth Circuit’s injunction
held for six months, and the district
court’s injunction lasted for over a year.
During those periods, the congregants
could attend faith-based gatherings and
22
travel out of state, all without the threat
of enforcement. Those benefits qualify as
enduring.
The relief endured in another tangible
way.
The injunctions prevented
Governor Beshear and other officials
from prosecuting [the congregants] for
violating the mass-gatherings order
when they attended church on April 12,
2020. By precluding prosecution, the
injunctions materially altered the
congregants’
relationship
with
Kentucky. And that alteration endured
because the statute of limitations
expired while the injunctions tied
Kentucky’s hands.
Id. at 284-85 (internal citations and quotation marks
omitted).
Other Court of Appeals decisions finding that a
preliminary injunction is a sufficiently merits-based
judicial intervention to warrant a prevailing party
determination are squarely based on this Court’s clear
and consistent prevailing party jurisprudence. For
example, in Dearmore v. City of Garland, 519 F.3d 517
(5th Cir. 2008), the plaintiff’s amended complaint
challenged, on Fourth and Fourteenth Amendment
grounds, the constitutionality of a portion of a Garland
City Ordinance, Section 32.09(F), that required any
property owner who rents or leases a single-family
dwelling to allow that property to be inspected by City
officials as a condition of the owner’s receipt of a
permit allowing rental of the property. Id. at 519.
After denying the plaintiff’s request for a temporary
restraining order, the District Court granted his
23
motion for a preliminary injunction, enjoining the City
from enforcing Section 32.09(F). Id. at 519. On the
same date, the court issued a scheduling order
establishing discovery deadlines and setting a trial
date. Id. at 520. The District Court summarized its
conclusion that the City Ordinance violated the
Fourth Amendment rights of property owners:
Inspections and searches of unoccupied
property would clearly infringe on the
property owner’s right under the Fourth
Amendment to the United States
Constitution
to
be
free
from
unreasonable search and seizure. In
these limited situations, where the
property is unoccupied, the protections
guaranteed by the Fourth Amendment to
the United States Constitution to the
property owner outweigh any interest
that the government has in protecting
the health, safety or welfare of the
public. . . . The court fully understands
that the City has a valid and important
governmental interest in protecting the
public, however, the court sees no reason
why this should be done at the expense
of infringing on rights guaranteed by the
Fourth Amendment to the United States
Constitution.
Id. at 525 (quoting Dearmore v. City of Garland, 400
F. Supp. 2d 894, 903 (N.D. Tex. 2005)).
Following issuance of the preliminary
injunction, the City’s counsel informed the plaintiff
that he would not have to post the bond required to
enforce the preliminary injunction because the City
24
planned to amend the ordinance to conform with the
District Court’s ruling. Id. at 520. Shortly thereafter,
the City amended the Ordinance to remove the
unconstitutional provisions, and also clarified the
conditions in which the City could seek a warrant to
inspect the subject properties when consent had not
been obtained or refused. Id. The City notified the
District Court of the amendments and also moved to
dismiss the plaintiff’s action as moot. Id. Without
opposition from the plaintiff, the District Court
granted the City’s motion. Id. Subsequently, the
District Court found that the plaintiff was a prevailing
party and granted his motion for counsel fees. Id. The
City appealed. Id.
The Fifth Circuit carefully reviewed this
Court’s precedents, noting at the outset that this
Court had “never expressed a view ‘on whether . . .
success in gaining a preliminary injunction may. . .
warrant an award of counsel fees.’” Id. at 521 (quoting
Sole, 551 U.S. at 86). The court quoted this Court’s
guidance that “[t]he touchstone of the prevailing party
inquiry . . . is the material alteration of the legal
relationship of the parties in a manner which
Congress sought to promote in the fee statute.” Id.
(quoting Sole, 551 U.S. at 82) (quotation marks
omitted). It also cited this Court’s recognition in
Buckhannon that “‘Congress intended to permit the
interim award of counsel fees only when a party has
prevailed on the merits of at least some of his claims,’”
and that such a “material alteration [of the legal
relationship of the parties] must have the ‘necessary
judicial imprimatur.’” Id. (quoting Buckhannon, 532
U.S. at 603, 05).
The Fifth Circuit observed that “[t]he
Buckhannon Court did not expressly define ‘judicial
25
imprimatur’ but stated that enforceable judgments on
the merits and consent decrees are sufficient for
prevailing party status.” Id. (citing Buckhannon, 532
U.S. at 604). The court added that Buckhannon
“rejected the ‘catalyst theory,’ explaining that a
defendant’s voluntary change in conduct in response
to the plaintiff’s lawsuit and not a court order,
although perhaps accomplishing what the plaintiff
sought to achieve, lacks the necessary judicial
imprimatur to establish prevailing party status.” Id.
(citing Buckhannon, 532 U.S. at 601, 605.)
Accordingly, and based on this Court’s clear mandate
for a judicial intervention that “materially alters the
legal relationship of the parties,” the Fifth Circuit
ruled that the District Court’s preliminary injunction
enjoining the City from enforcing its ordinance was a
sufficient judicial intervention to support the
plaintiff’s designation as a prevailing party. See id. at
524-26.
Similarly, in People Against Police Violence v.
City of Pittsburgh, 520 F.3d 226 (3d Cir. 2008), the
Third Circuit Court of Appeals affirmed the District
Court’s prevailing party determination and counsel
fee award in the context of litigation initiated by a
rally organizer against the City of Pittsburgh. The
lawsuit challenged the constitutionality of Chapter
603 of the Pittsburgh City Code, pursuant to which
the plaintiff’s application to hold a rally and a parade
to the Allegheny County Courthouse would be denied
unless it prepaid the City its estimated costs for police
protection required by the rally and parade. Id. at
229. The plaintiff sought a determination that
Chapter 603 was unconstitutional, as well as a
permanent injunction preventing the City from
charging event sponsors for security related costs. Id.
26
The plaintiff also moved for a temporary restraining
order and a preliminary injunction. Id.
On October 31, 2003, at the first hearing before
the District Court, the City’s counsel represented that
the City no longer was enforcing Chapter 603, and was
in the process of preparing a revised Ordinance to
replace it. Id. The District Court granted the
plaintiff’s motion for a temporary injunction on the
ground
that
Chapter
603
was
facially
unconstitutional, and that a permit regime without
any standards also would be unconstitutional. Id.
The court ordered the parties to meet and confer
concerning the City’s proposed revision to its
ordinance and ordered the City to submit its proposed
revisions to the court. Id. at 230. At a subsequent
hearing, the court indicated that several aspects of the
City’s proposed revision to the Ordinance were
“constitutionally problematic.”
Id.
The court
converted its temporary restraining order to a
preliminary injunction, from which the City took no
appeal. Id.
In February 2004, the City repealed Chapter
603 and moved to lift the preliminary injunction and
dismiss the suit as moot. Id. The court denied the
motion, finding that because the repeal was
unaccompanied by a new ordinance, the suit was not
moot, and the Court continued the preliminary
injunction. Id. Over the ensuing two years, the
parties continued their meet-and-confer process
concerning the content of the proposed revised
Ordinance, which the City ultimately passed in early
2006, and which met all of the plaintiff’s concerns. Id.
The court lifted the preliminary injunction and
dismissed the plaintiff’s suit. Id.
27
The plaintiff moved for counsel fees, which the
district court granted. Id. The City appealed. Id. The
Third Circuit, relying on this Court’s precedents,
unanimously affirmed.
The court noted that a
prerequisite for a prevailing party determination is
that the party “succeed on any significant issue in
litigation which achieves some of the benefits the
parties sought in bringing suit.” Id. at 232 (citation
omitted). The Third Circuit noted that “[t]o ‘succeed’
under this standard, a party must achieve a ‘court
ordered change in the legal relationship between the
plaintiff and the defendant.’”
Id. (quoting
Buckhannon, 532 U.S. at 604).
The Third Circuit observed that “a plaintiff
does not become a ‘prevailing party’ solely because his
lawsuit causes a voluntary change in a defendant’s
conduct. In that situation, the change in legal
relationship lacks the requisite ‘judicial imprimatur.’”
Id. (quoting Buckhannon, 532 U.S. at 601). The court
also cited Sole for the principle that “[s]uccess
achieved in a preliminary injunction . . . does not
render a party ‘prevailing’ if that success is ultimately
‘reversed, dissolved or otherwise undone by the final
decision in the same case.’” Id. (quoting Sole, 551 U.S.
at 83).
The Third Circuit noted that this Court in
Buckhannon affirmed that “litigation need not
progress to a final judgment on the merits for a § 1988
fee award to be proper,” and stated by way of example
that “a settlement agreement enforced through a
consent decree can serve as the basis for an award of
attorney’s fees in an appropriate situation.” Id. (citing
Buckhannon, 532 U.S. at 604). The court also
recognized, however, the important principle that
“[r]espect for ordinary language requires that a
28
plaintiff receive at least some relief on the merits of
his claims before he can be said to prevail.” Id.
(quoting Buckhannon, 532 U.S. at 603-04).
Based on its careful review of this Court’s
“prevailing party” precedents, the Third Circuit
affirmed the District Court’s counsel fee award:
This is a case in which (1) the trial court,
based upon a finding of a likelihood of
plaintiffs’ success on the merits, entered
a judicially enforceable order granting
plaintiffs virtually all the relief they
sought, thereby materially altering the
legal relationship between the parties;
(2) the defendant, after opposing interim
relief, chose not to appeal from that order
and remained subject to its restrictions
for a period of over two years; and (3) the
defendant ultimately avoided final
resolution of the merits of plaintiffs’ case
by enacting new legislation giving
plaintiffs virtually all of the relief sought
in the complaint.
...
A preliminary injunction issued by a
judge carries all of the judicial
imprimatur
necessary
to
satisfy
Buckhannon, and this preliminary
injunction placed a judicial imprimatur
on plaintiffs’ entitlement to substantially
all the relief they sought in the
complaint. This was not a case where the
filing of the lawsuit resulted in voluntary
change on the part of the City. It was
precisely because the Court believed
29
voluntary change was not to be expected
that it ordered the City not to engage in
the practices of which plaintiffs
complained.
There was nothing
voluntary about the City’s giving up
those practices. And the preliminary
injunction was not dissolved for lack of
entitlement. Rather, it was terminated
only when the new statute was enacted
after the preliminary injunction had
done its job.
Id. at 233-34 (internal citations and quotation marks
omitted).
Significantly, in the case at bar, the Fourth
Circuit, previously the only Circuit Court that
declined to award “prevailing party” status to a party
that obtained durable preliminary injunctive relief
based on a likelihood of success on the merits, held en
banc, by a 7-to-4 vote, that: (i) Respondents were
entitled to prevailing party status based on the
significant and durable success they achieved as a
result of the preliminary injunction granted by the
District Court; and (ii) the District Court’s Order
enjoined Virginia from enforcing its license
suspension statute on due process grounds, restored
Respondents’ driver’s licenses, and barred Virginia
from collecting the statutory license restoration fee
from them, an Order that materially altered the
parties’ relationship and afforded Respondents
virtually all of the relief they sought in the litigation.
See Stinnie, 77 F. 4th at 211, 13. But the dissenting
opinion in the Fourth Circuit vehemently criticized
the majority’s holding, contending that only a final
judgment on the merits was sufficient to confer
prevailing party status, a position that this Court has
30
never adopted. Citing to the definition of “prevailing
party” in Black’s Law Dictionary at the time Congress
enacted the Civil Rights Attorney’s Fees Awards Act
of 1976, the dissenting opinion stated:
These definitions reveal that to prevail,
a party must achieve final, not
temporary, success. Absent that, it is not
clear whether a party has “successfully
prosecute[d]” an action. Without final
success, no “decision or verdict is
rendered and judgment entered” and the
matter is not “set at rest.” In sum,
Black’s tells us to look to the “end of the
suit” to see if a party has “successfully
maintained” a claim, not to interim
events.
Id. at 221 (Quattlebaum, J., dissenting) (quoting
Black’s Law Dictionary, Prevailing Party (rev. 4th ed.
1968)).
The dissenters, however, did not address the
strong policy concerns advanced by the majority that
argued that the “final judgment” standard adopted by
the dissenters would undermine the Congressional
policies underlying the fee-shifting status “by allowing
government defendants to game the system.” Id. at
210. The majority observed:
Congress enacted § 1988(b), we have
noted, in furtherance of the policy of
facilitating access to judicial process for
the redress of civil rights grievances.
Our circuit rule, however, may
undermine that policy by allowing
government defendants to game the
system. Faced with a suit challenging a
31
potentially or even very probably
unlawful practice, a defendant may
freely litigate the case through the
preliminary injunction phase, hoping for
the best or, perhaps, to outlast an
indigent plaintiff. And when the court
confirms the likely merit of the plaintiff’s
claim, the government will have ample
time to cease the challenged conduct,
moot the case, and avoid paying fees.
That leaves the plaintiff, who likely
devoted considerable resources to
obtaining the preliminary injunction,
holding the bag.
The predictable
outcome of this gamesmanship is fewer
attorneys willing to represent civil rights
plaintiffs in even clearly meritorious
actions – particularly those whose
urgent situations call for interim relief.
And that result, instead of furthering the
goals of § 1988(b), contravenes the
statute’s entire purpose.
Id. at 210 (internal citations and quotation marks
omitted).
The majority’s warning must be heeded here.
Specifically, the majority opinion cautions against an
interpretation
of
“prevailing
party”
that
inappropriately restricts recognition to receipt of a
final judgment on the merits. Such an interpretation
will have a chilling effect on aggrieved parties who
cannot afford costly legal fees and discourage
attorneys from taking these cases given the
significant time, expense, and resources needed to
litigate a civil rights case seeking systemic change, no
matter how meritorious the plaintiffs’ claims may be.
32
The rule of law advocated by the dissent in
Stinnie, and never suggested by this Court, runs the
serious risk of undermining Congress’ goal of
supporting civil rights and related litigation by
providing a sound statutory mechanism for payment
of Respondents’ reasonable legal fees in appropriate
cases. That untoward result should not be condoned
by this Court. It should affirm the Fourth Circuit.
CONCLUSION
For the foregoing reasons, this Court should
affirm the decision below.
Dated: August 12, 2024
Respectfully submitted,
William H. Mergner Jr.
Of Counsel and President
Robert B. Hille
Peter J. Gallagher
James A. Lewis V
NEW JERSEY STATE BAR
ASSOCIATION
One Constitution Square
New Brunswick, NJ 08901
(732) 249-5000
wmergner@lbmblaw.com
Gary S. Stein
Counsel of Record
Dominique Kilmartin
PASHMAN STEIN WALDER
HAYDEN, P.C.
21 Main Street, Suite 200
Hackensack, NJ 07601
(201) 488-8200
gstein@pashmanstein.com
33
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.