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

No. 23-621

IN THE

Supreme Court of the United States

___________

GERALD F. LACKEY, IN HIS OFFICIAL CAPACITY

AS THE COMMISSIONER OF THE VIRGINIA

DEPARTMENT OF MOTOR VEHICLES,

Petitioner,

v.

DAMIAN STINNIE, ET AL.,

Respondents.

___________

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

___________

BRIEF OF CONSTITUTIONAL ACCOUNTABILITY

CENTER AS AMICUS CURIAE IN

SUPPORT OF RESPONDENTS

___________

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

JESS ZALPH

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

August 12, 2024

* Counsel of Record

TABLE OF CONTENTS

Page

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

ii

INTEREST OF AMICUS CURIAE ........................

1

INTRODUCTION AND SUMMARY OF

ARGUMENT ........................................................

1

ARGUMENT ...........................................................

6

I.

When Section 1988’s Fees Provision Was

Enacted, “Prevailing Party” Meant a

Party That Succeeded in Achieving Its

Litigation Goals, With or Without a Final

Judgment or Conclusive Merits Ruling ........

6

II. Federal Case Law Interpreting Identically

Worded Fees Provisions Also Defined

“Prevailing Party” as a Party That

Succeeded in Achieving Its Litigation

Goals, With or Without a Final Judgment

or Conclusive Merits Ruling ......................... 12

III. Congress Adopted the Ordinary Meaning

and Well-Established Judicial

Interpretation of “Prevailing Party” in

Section 1988................................................... 17

CONCLUSION ....................................................... 25

(i)

ii

TABLE OF AUTHORITIES

Page(s)

Cases

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

421 U.S. 240 (1975) ................................ 17, 18, 24

Am. Fed’n of Gov’t Emp., AFL-CIO v. Rosen,

418 F. Supp. 205 (N.D. Ill. 1976) ................

16

Aspira of New York, Inc. v. Bd. of Educ.,

65 F.R.D. 541 (S.D.N.Y. 1975) .................... 14, 15

Bangor & Piscataquis R.R. Co. v.

Chamberlain,

60 Me. 285 (1872) ........................................

11

Borden v. United States,

593 U.S. 420 (2021) .....................................

8

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

416 U.S. 696 (1974) .....................................

21

Bragdon v. Abbott,

524 U.S. 624 (1998) .....................................

5, 12

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

Dep’t of Health & Hum. Res.,

532 U.S. 598 (2001) .....................................

1

Chickasaw Nation v. United States,

534 U.S. 84 (2001) .......................................

6

Foster v. Boise-Cascade, Inc.,

420 F. Supp. 674 (S.D. Tex. 1976) ..............

15

Foster v. Boise-Cascade, Inc.,

577 F.2d 335 (5th Cir. 1978) .......................

15

iii

TABLE OF AUTHORITIES – cont’d

Page(s)

George v. McDonough,

596 U.S. 740 (2022) .....................................

8

Goldstein v. Levi,

415 F. Supp. 303 (D.D.C. 1976) ..................

4, 15

Grubbs v. Butz,

548 F.2d 973 (D.C. Cir. 1976) .....................

22

Hanrahan v. Hampton,

446 U.S. 754 (1980) .................................... 6, 19, 21

Hensley v. Eckerhart,

461 U.S. 424 (1983) .....................................

6

Hewitt v. Helms,

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

5

Howerton v. Miss. Cnty., Ark.,

361 F. Supp. 356 (E.D. Ark. 1973) ..............

15

Incarcerated Men of Allen Cnty. Jail v. Fair,

507 F.2d 281 (6th Cir. 1974) .......................

14

Johnson v. Ga. Highway Exp., Inc.,

488 F.2d 714 (5th Cir. 1974) ......................

16

Klock Produce Co. v. Diamond Ice & Storage

Co.,

168 P. 476 (Wash. 1917) ..............................

10

Kopet v. Esquire Realty Co.,

523 F.2d 1005 (2d Cir. 1975) .......................

3, 13

iv

TABLE OF AUTHORITIES – cont’d

Page(s)

Lamar, Archer & Cofrin, Llp v. Appling,

584 U.S. 709 (2018) .....................................

12

Lorillard v. Pons,

434 U.S. 575 (1978) .....................................

12

Mills v. Elec. Auto-Lite Co.,

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

21

Newman v. Piggie Park Enter., Inc.,

390 U.S. 400 (1968) ................................. 16, 23, 24

Newport News Fire Fighters Ass’n Local 794

v. City of Newport News, Va.,

339 F. Supp. 13 (E.D. Va. 1972)..................

4, 16

Northcross v. Bd. of Ed. of Memphis City Sch.,

412 U.S. 427 (1973) ..................................... 17, 20

Parker v. Califano,

561 F.2d 320 (D.C. Cir. 1977) ................... 3, 14, 16

Parker v. Matthews,

411 F. Supp. 1059 (D.D.C. 1976) .............. 3, 14, 15

Perrin v. United States,

444 U.S. 37 (1979) .......................................

7

Richardson v. Civ. Serv. Comm’n,

420 F. Supp. 64 (S.D.N.Y. 1976) .................

14

Sandifer v. U.S. Steel Corp.,

571 U.S. 220 (2014) .....................................

7

v

TABLE OF AUTHORITIES – cont’d

Page(s)

United States v. Minneapolis, St. P. & S. S. M.

Ry. Co.,

235 F. 951 (D. Minn. 1916). ........................

10

W. Va. Univ. Hospitals, Inc. v. Casey,

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

8

Wis. Cent. Ltd. v. United States,

585 U.S. 274, 284 (2018) .............................

7

Statutes and Legislative Materials

42 U.S.C. § 1988 .............................................

1

H.R. Rep. No. 94-1558 (1976) .............. 4-6, 13, 17-24

S. Rep. No. 94-1011 (1976)....... 4, 5, 13, 17-21, 23, 24

Other Authorities

American Heritage Dictionary of the English

Language (1969) ..........................................

2, 7

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

2, 11

Black’s Law Dictionary (4th ed. 1968) .......... 2, 9, 10

Black’s Law Dictionary (12th ed. 2024) ........

8

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

11

John Leubsdorf, Toward a History of the

American Rule on Attorney Fee Recovery,

47 L. & Contemp. Prob. 9 (1984) ................

13

Merriam-Webster Dictionary (1974) ..............

7

vi

TABLE OF AUTHORITIES – cont’d

Page(s)

Oxford English Dictionary (1970 ed.) ............

7, 8

Random House Dictionary of the English

Language (coll. ed. 1968) .............................

7, 8

Stuart M. Speiser, Attorneys’ Fees (1973) .....

11

Webster’s New World Dictionary of the

American Language (2d coll. ed. 1970) .......

8

Webster’s Third New International Dictionary

of the English Language Unabridged

(1966) ........................................................... 2, 7, 8

1

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC works in our courts, through

our government, and with legal scholars to improve

understanding of the Constitution and to preserve the

rights and freedoms it guarantees. CAC has a strong

interest in ensuring that important federal statutes,

like 42 U.S.C. § 1988, are interpreted in accordance

with their text and history and therefore has an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

To prevail is to succeed. And by any sensible

measure, Respondents succeeded in this case. In their

suit challenging Virginia’s suspension of their driver’s

licenses, a court ordered Virginia to undo those suspensions, and Respondents “were once again free to

drive.” Pet. App. 7a. That court order—a “judicially

sanctioned change in the legal relationship of the parties,” Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health & Hum. Res., 532 U.S. 598, 605 (2001)

—was never overturned, and Respondents remain free

to drive today.

Under the original public meaning of the attorney’s fees provision in 42 U.S.C. § 1988, Respondents

are eligible for fees to compensate them for the costs of

securing this victory. That result is compelled by the

language of Section 1988, as well as the legal backdrop

1 No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution intended

to fund its preparation or submission. No person other than amicus or its counsel made a monetary contribution to its preparation

or submission.

2

against which Congress selected that language. Nothing in the statute’s text or history supports Petitioner’s

claim that a “prevailing party” must secure “a conclusive merits ruling or final judgment.” Pet. Br. 14.

In 1976, when Congress added Section 1988’s feeshifting provision, the term “prevailing party” had a

straightforward meaning in both common parlance

and legal discourse. It simply meant a party that succeeded in achieving its goals. To “prevail” was to “be

successful,” to “win mastery,” or to “triumph.” Webster’s Third New International Dictionary of the English Language Unabridged 1797 (1966); accord American Heritage Dictionary of the English Language 1038

(1969) (to “become effective; succeed; win out” or “be

greater in strength or influence”). A “prevailing”

party, in short, was a party that achieved its desired

outcome. See infra Part I.A.

Contemporary legal sources gave “prevailing

party” the same intuitive definition: a party that succeeded in achieving its litigation goals. Contrary to

Petitioner’s assertion, these sources did not limit the

type of success that could confer prevailing-party status to a final judgment or conclusive merits ruling.

Black’s Law Dictionary, for instance, defined “prevailing party” as “[t]hat one of the parties to a suit who

successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even

though not to the extent of his original contention.”

Black’s Law Dictionary 1352 (4th ed. rev. 1968).

Other sources gave the same broad definition—

“the party who is successful or partially successful in

an action,” Ballentine’s Law Dictionary 985 (3d ed.

1969)—which easily covers plaintiffs who win a preliminary injunction based on a court’s preliminary conclusion that the defendant acted unlawfully, when

that injunction is no longer at risk of being overturned.

3

The limits that Petitioner would impose on the types

of success that qualify for prevailing-party status are

nowhere to be found in these sources. What mattered

was simply whether, at the end of the day, a party

achieved a litigation victory that was no longer in jeopardy. See infra Part I.B.

The capacious definition of “prevailing party” in

dictionaries and treatises reflected the contemporary

judicial consensus on the meaning of that term. See

infra Part II. By 1976, dozens of federal statutes authorized fee awards to a prevailing party, and the

courts had extensively interpreted those provisions.

Congress was deeply familiar with this case law and

used the same term in Section 1988 to incorporate the

same standards.

Under this case law, a “prevailing party” was, consistent with ordinary meaning, a party that achieved

its desired outcome in a case. In construing the feeshifting provisions that predated Section 1988’s

amendment, courts gave “prevailing party” an expansive scope reflecting a common-sense understanding of

those words. Whether parties “prevailed” turned on

whether they succeeded in obtaining their desired litigation outcomes.

Success did not require a final judgment or conclusive merits ruling. Indeed, there was “no question . . .

that federal courts may award counsel fees based on

benefits resulting from litigation efforts even where

adjudication on the merits is never reached.” Kopet v.

Esquire Realty Co., 523 F.2d 1005, 1008 (2d Cir. 1975).

“[T]he operative factor [was] success, not at which

stage or how that success [was] achieved, i.e. trial or

settlement.” Parker v. Matthews, 411 F. Supp. 1059,

1063 (D.D.C. 1976), aff’d sub nom. Parker v. Califano,

561 F.2d 320 (D.C. Cir. 1977). If a case became moot

before final judgment, therefore, courts were not shy

4

about awarding fees to plaintiffs who were “successful”

in securing the relief they sought, Goldstein v. Levi,

415 F. Supp. 303, 305 (D.D.C. 1976), and who likely

“would have prevailed had the matter been ultimately

decided,” Newport News Fire Fighters Ass’n Local 794

v. City of Newport News, Va., 339 F. Supp. 13, 17 (E.D.

Va. 1972).

When Congress used the term “prevailing party”

in Section 1988, it incorporated the settled meaning of

that term. See infra Part III. Congress knew it was

not creating “a new remedy,” but simply fixing “anomalous gaps in our civil rights laws” by authorizing “the

familiar remedy of reasonable counsel fees to prevailing parties” under the laws that did not already permit

such fees. S. Rep. No. 94-1011, at 1-4 (1976). Demonstrating a thorough knowledge of the “existing judicial

standards” construing “prevailing party” in other statutes, Congress expected that courts applying Section

1988 would be “guided of course by the case law interpreting similar attorney’s fee provisions.” H.R. Rep.

No. 94-1558, at 8 (1976).

Citing that case law, Congress was clear that the

term “prevailing party” was “not intended to be limited

to the victor only after entry of a final judgment following a full trial on the merits.” Id. at 7. Rather, this

term would “include a litigant who succeeds even if the

case is concluded prior to a full evidentiary hearing before a judge or jury.” Id. Based on precedent, for instance, Congress understood that “parties may be considered to have prevailed when they vindicate rights

through a consent judgment or without formally obtaining relief.” S. Rep. No. 94-1011, supra, at 5.

In sum, Congress recognized that courts had uniformly construed the term “prevailing party” to allow

fees awards to plaintiffs who achieved the goals of

their litigation—with or without a final judgment or

5

conclusive merits ruling. By replicating the language

of the earlier statutes, Congress sought to ensure that

Section 1988 would be given the same interpretation.

See Bragdon v. Abbott, 524 U.S. 624, 645 (1998) (“repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its

. . . judicial interpretations as well”).

Adopting this standard promoted Congress’s aims

in amending Section 1988. Recognizing that fee-shifting provisions had been “successful in enabling vigorous enforcement of modern civil rights legislation,”

S. Rep. No. 94-1011, supra, at 1, Congress mimicked

those earlier provisions in Section 1988 “to achieve

uniformity in the remedies provided by Federal laws

guaranteeing civil and constitutional rights,” H.R.

Rep. No. 94-1558, supra, at 1. Congress, in short, “intended that the standards for awarding fees [would] be

generally the same” as under those earlier statutes, S.

Rep. No. 94-1011, supra, at 4, and Congress chose the

most direct means of achieving that goal: using the

same language.

As originally understood, therefore, Section 1988’s

fee-shifting provision authorized fees awards whenever plaintiffs achieved the desired outcome of their

litigation. Success did not require a final judgment or

conclusive merits ruling.

And that makes sense. “In all civil litigation, the

judicial decree is not the end but the means. At the

end of the rainbow lies not a judgment, but some action

(or cessation of action) by the defendant that the judgment produces.” Hewitt v. Helms, 482 U.S. 755, 761

(1987). “Redress is sought through the court, but from

the defendant.” Id. As this Court has long recognized,

therefore, “a person may in some circumstances be a

‘prevailing party’ without having obtained a favorable

‘final judgment following a full trial on the merits.’”

6

Hanrahan v. Hampton, 446 U.S. 754, 756-57 (1980)

(quoting H.R. Rep. No. 94-1558, supra, at 7). Indeed,

“plaintiffs may be considered ‘prevailing parties’ for attorney’s fees 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) (quotation marks

omitted).

Ultimately, the goal of statutory interpretation is

to “determine the Legislature’s intent as embodied in

particular statutory language.” Chickasaw Nation v.

United States, 534 U.S. 84, 94 (2001). Here, Congress’s

language and intent could hardly have been clearer.

The term “prevailing party” was used because courts

had already construed it to permit fees awards when

plaintiffs victimized by unlawful conduct succeeded in

obtaining the redress they sought. Both Congress and

the courts rejected any requirement of a final judgment or conclusive merits determination. This Court

should do the same.

ARGUMENT

I.

When Section 1988’s Fees Provision Was

Enacted, “Prevailing Party” Meant a Party

That Succeeded in Achieving Its Litigation

Goals, With or Without a Final Judgment or

Conclusive Merits Ruling.

Whether “prevailing party” is given the ordinary

meaning those words had in 1976, or whether it is understood as being a term of art, the result is the same:

a “prevailing” party was simply a party that succeeded

in achieving the goals of its litigation, or a portion of

those goals. There is no support for Petitioner’s claim

that prevailing-party status required “a conclusive ruling on the merits or a final judgment.” Pet. Br. 18.

7

A. It is a “‘fundamental canon of statutory construction’ that words generally should be ‘interpreted

as taking their ordinary, contemporary, common

meaning . . . at the time Congress enacted the statute.’” Wis. Cent. Ltd. v. United States, 585 U.S. 274,

284 (2018) (quoting Perrin v. United States, 444 U.S.

37, 42 (1979)). To identify the ordinary public meaning

of statutory language, this Court consults “[d]ictionaries from the era of [the statute]’s enactment.” Sandifer

v. U.S. Steel Corp., 571 U.S. 220, 227 (2014).

In 1976, when Section 1988’s fee provision was enacted, to “prevail” was universally defined as succeeding, achieving a desired outcome, or gaining advantage

over an opponent. To prevail meant to “be successful,”

“triumph,” “win mastery,” or “gain victory by virtue of

strength or superiority.” Webster’s Third New International Dictionary of the English Language Unabridged

1797 (1966); accord American Heritage Dictionary of

the English Language 1038 (1969) (to “become effective; succeed; win out,” “to be greater in strength or influence,” “to triumph or win a victory”); Random House

Dictionary of the English Language 1050 (coll. ed.

1968) (“to become dominant or win out,” to “prove superior in power or influence”); Merriam-Webster Dictionary 550 (1974) (to “become effective; succeed,” “to

win mastery: triumph”).

Thus, the word “prevail” had the same intuitive

meaning in 1976 that it has today: it simply meant “to

be superior in strength or influence; to have or gain the

superiority or advantage; to get the better, gain the

mastery or ascendancy; to be victorious,” to “have superiority over, outstrip,” or “to be effectual or efficacious; to be successful, to succeed.” 8 Oxford English

Dictionary 1884 (1970 ed.). To prevail, in common parlance, simply meant “to produce or achieve the desired

8

effect; be effective; succeed.” Webster’s New World Dictionary of the American Language 1127 (2d coll. ed.

1970).

While contemporary definitions of “prevailing”

largely focused on irrelevant uses of that word—e.g.,

“generally current,” Webster’s Third New International Dictionary, supra, at 1797—the relevant definitions were all in accord with the understanding of “prevail” described above. See, e.g., id. (defining “prevailing” as “having superior force or influence: efficacious”); Random House Dictionary, supra, at 1050

(“having superior power or influence,” “effectual”); Oxford English Dictionary, supra, at 1884 (“the having or

gaining of the mastery or predominance,” “[one] [t]hat

is or proves to be superior in any contest; victorious;

ruling; effective, influential”).

Under the ordinary meaning of the word, therefore, a party that “prevailed” in a contest was the party

that succeeded, triumphed, won out, gained the advantage, or was more effective or influential than its

opponent. In short, it was the party that achieved its

desired outcome.

B. Although ordinary meaning normally governs

statutory interpretation, Congress also uses terms of

art—a “phrase having a specific, precise meaning in a

given specialty, apart from its general meaning in ordinary contexts.” Black’s Law Dictionary (12th ed.

2024). Terms of art sometimes “depart from ordinary

meaning.” George v. McDonough, 596 U.S. 740, 752

(2022) (quoting W. Va. Univ. Hospitals, Inc. v. Casey,

499 U.S. 83, 92, n.5 (1991)).

Not here, though. Legal dictionaries and treatises

that defined “prevailing party” in 1976 show that there

was no “distinctly legal meaning associated with that

language.” Borden v. United States, 593 U.S. 420, 435

9

(2021) (emphasis added). Instead, the legal meaning

of “prevailing party” was the same as its ordinary

meaning: a party that succeeded in achieving a desired

outcome.

Petitioner claims that “prevailing party” was “consistently defined to require a conclusive ruling on the

merits or final judgment.” Pet. Br. 16-17. Untrue.

Here is the complete definition of “prevailing party” in

Black’s Law Dictionary at the time:

That one of the parties to a suit who successfully prosecutes the action or successfully

defends against it, prevailing on the main issue, even though not to the extent of his original contention.

Black’s Law Dictionary 1352 (4th ed. rev. 1968). This

definition requires neither a final judgment nor a conclusive merits determination. For instance, a plaintiff

who wins a preliminary injunction that is never overturned—based on a court’s preliminary finding that

the defendant acted unlawfully—can certainly be said

to have “successfully prosecute[d] the action” and “prevail[ed] on the main issue, even though not to the extent of his original contention.” Id.

Petitioner, probably recognizing as much, blows

past the actual definition of “prevailing party” in

Black’s Law Dictionary and selectively quotes from the

summary of decisions that follows it—portraying these

quotes as coming from the definition itself. See Pet.

Br. 17. But even this questionable approach doesn’t

yield the result Petitioner needs.

Only a single comment on the term “prevailing

party” in the summary of decisions from which Petitioner quotes makes any reference to judgment—and

a fleeting reference at that. See Black’s Law Diction-

10

ary, supra, at 1352 (“The one in whose favor the decision or verdict is rendered and judgment entered.”). 2

The text goes on to make clear that prevailing-party

status did not require securing a final judgment or conclusive merits ruling in one’s favor: “where the court

grants defendant a new trial after verdict for plaintiff,

defendant is the ‘prevailing party’ on that trial, and

entitled to costs, although the plaintiff again gets verdict on retrial.” Id. (emphasis added) (citing Klock Produce Co. v. Diamond Ice & Storage Co., 168 P. 476, 478

(Wash. 1917)).

Far from reflecting any technical focus on the specific type of relief obtained, what mattered was simply

whether, at the end of the day, a party achieved a victory that was not in jeopardy: “The party ultimately

prevailing when the matter is finally set at rest.” Id.

(emphasis added). To be a prevailing party hinged on

“whether, at the end of the suit, or other proceeding,

the party who has made a claim against the other, has

successfully maintained it.” Id. (emphasis added).

Just like under the ordinary meaning of “prevailing,” therefore, the touchstone was whether a party

could reasonably be judged to have succeeded in its efforts.

This view—that a prevailing party was the one

that succeeded in the litigation—was echoed in other

contemporary legal dictionaries. Ballentine’s Law Dictionary, for example, defined “prevailing party” as

“[t]he party who is successful or partially successful in

2 In the cases cited for this proposition, the courts did not discuss the need for a final judgment or conclusive merits determination. Instead, they simply rejected the contention that plaintiffs should be denied costs if they prevailed on only some of their

claims. E.g., United States v. Minneapolis, St. P. & S. S. M. Ry.

Co., 235 F. 951, 955 (D. Minn. 1916).

11

an action, so as to be entitled to costs.” Ballentine’s

Law Dictionary 985 (3d ed. 1969) (citing 20 Am. Jur.

2d Costs §§ 14, 15). Like Black’s, Ballentine’s emphasized the importance of the outcome at the end of the

suit, but it did not suggest that a final judgment or

conclusive merits determination was necessary to

make one a “prevailing party.”

Instead, the question was simply whether the

party had achieved “success” at the end of the litigation: “To be a prevailing party does not depend upon

the degree of success at different stages of the suit; but

upon whether at the end of the suit or other proceeding, the party, who has made a claim against the other,

has successfully maintained it. If he has, he is the prevailing party.” Id. (citing Bangor & Piscataquis R.R.

Co. v. Chamberlain, 60 Me. 285, 286 (1872)); accord

Pet. Br. 18 (citing the identical definition in 3 Bouvier’s

Law Dictionary (8th ed. 1914) for the proposition that

a “prevailing party” is a party that, “‘at the end of the

suit,’ had ‘successfully maintained’ its claim”).

To the extent that legal treatises addressed the

term “prevailing party,” they agreed. For example,

Speiser’s treatise on attorney’s fees, discussing the fee

provisions of the Civil Rights Act of 1964, repeatedly

characterized “prevailing part[ies]” as “successful

plaintiffs,” without suggesting that the plaintiffs

needed to have succeeded in any specific way. See Stuart M. Speiser, Attorneys’ Fees § 12:61, at 549-51

(1973).

In sum, both general-use dictionaries and specialized legal sources offered the same broad definition of

“prevailing” party in 1976—a party that succeeded in

achieving its desired outcome. Nothing in these

sources corroborates the notion that the term meant

only “the party who had obtained a conclusive ruling

on the merits or a final judgment in its favor.” Pet. Br.

12

18. That definition is one of Petitioner’s own invention.

The broad understanding of “prevailing party” reflected in contemporary dictionaries and treatises was

mirrored in the case law addressing fee-shifting statutes, as the next section discusses.

II. Federal Case Law Interpreting Identically

Worded Fees Provisions Also Defined

“Prevailing Party” as a Party That

Succeeded in Achieving Its Litigation

Goals, With or Without a Final Judgment

or Conclusive Merits Ruling.

Congress amended Section 1988 to provide for attorney’s fees against a backdrop of judicial decisions

that interpreted the term “prevailing party” in other

fee-shifting statutes. Under those decisions, a “prevailing” party was simply a party that succeeded in

achieving its desired outcome in a case. By using this

familiar term in Section 1988, Congress incorporated

its settled meaning.

When Congress uses language that courts have

“consistently construed” as having a particular meaning in other statutes, Congress “presumptively was

aware of the longstanding judicial interpretation of the

phrase and intended for it to retain its established

meaning.” Lamar, Archer & Cofrin, Llp v. Appling,

584 U.S. 709, 721-22 (2018) (citing Lorillard v. Pons,

434 U.S. 575, 580 (1978)); see Bragdon v. Abbott, 524

U.S. 624, 645 (1998) (“[R]epetition of the same language in a new statute indicates, as a general matter,

the intent to incorporate its . . . judicial interpretations

as well.”).

And here no presumption is even necessary. We

know that Congress was familiar with the judicial con-

13

struction of “prevailing party,” and used the same language in Section 1988 to incorporate the same expansive meaning. See H.R. Rep. No. 94-1558, at 8 (1976)

(“[E]xisting judicial standards, to which ample reference is made in this report, should guide the courts in

construing H.R. 15460.”); S. Rep. No. 94-1011, at 2

(1976) (describing “fees to prevailing parties” as a “familiar remedy”); see also infra Part III.

A. When Congress used the term “prevailing

party” in Section 1988, it was not writing on a blank

slate. Congress began using fee-shifting provisions in

1870. See S. Rep. No. 94-1011, supra, at 3. Their use

expanded during the 1960s and 1970s, when Congress

incorporated fee-shifting provisions into most civil

rights and environmental legislation.

See John

Leubsdorf, Toward a History of the American Rule on

Attorney Fee Recovery, 47 L. & Contemp. Prob. 9, 30

(1984). By 1976, a “wide variety of statutes” contained

attorney’s fees provisions. H.R. Rep. No. 94-1558, supra, at 3.

B. In construing the fee-shifting provisions that

predated Section 1988’s amendment, the judiciary

gave “prevailing party” an expansive scope reflecting

a common-sense understanding of those words.

Whether parties “prevailed” turned on whether they

achieved their desired litigation outcomes. In essence,

the prevailing party was the party that “succeeded.”

Success could take many forms and did not require

a final judgment or conclusive ruling on the merits.

See Kopet v. Esquire Realty Co., 523 F.2d 1005, 1008

(2d Cir. 1975) (“There is no question . . . that federal

courts may award counsel fees based on benefits resulting from litigation efforts even where adjudication

on the merits is never reached, e.g., after a settlement.”). As explained in one case cited by the House

report on Section 1988, “the operative factor is success,

14

not at which stage or how that success is achieved, i.e.

trial or settlement.” Parker v. Matthews, 411 F. Supp.

1059, 1063 (D.D.C. 1976), aff’d sub nom. Parker v.

Califano, 561 F.2d 320 (D.C. Cir. 1977); see id. (“the

same conclusion has been reached by other courts”).

Instead of demanding a final merits determination, courts simply asked whether, in the end, the

plaintiffs achieved the goals sought by their litigation.

That meant obtaining a desired outcome that was not

at risk of being reversed—an enduring victory.

As illustrated by another case referenced in the

House report on Section 1988, this standard called for

a straightforward appraisal of a party’s success. See

Aspira of New York, Inc. v. Bd. of Educ., 65 F.R.D. 541,

542-43 (S.D.N.Y. 1975) (concluding that the plaintiffs

were “prevailing parties” because “[t]he [consent] decree gives the relief they sought . . . after more than a

year and half of bitter resistance”). Plaintiffs “prevailed” and were entitled to fees when they achieved

their basic litigation goals. See Richardson v. Civ.

Serv. Comm’n, 420 F. Supp. 64, 67 (S.D.N.Y. 1976)

(“Plaintiffs sought placement in the position of Drug

Abuse Rehabilitation Counselor. This they achieved.

Also, plaintiffs sought and achieved the implementation of procedures for attaining the position of Rehabilitation Counselor based on prior work experience.”);

see id. (rejecting requirement of “an adjudication on

the merits after the trial of the action”).

Illustrating that a definitive ruling on the merits

was unnecessary, settlement agreements could confer

prevailing-party status if the outcome was what the

plaintiffs had sought. See Incarcerated Men of Allen

Cnty. Jail v. Fair, 507 F.2d 281, 283 (6th Cir. 1974)

(finding attorney’s fees permissible following consent

order to remediate county jail conditions). This was

true of private settlement of civil rights lawsuits where

15

the settlement equated to a victory for the plaintiffs.

See Parker, 411 F. Supp. at 1064 (examining terms of

settlement and whether plaintiffs succeeded “with respect to the central issue—discrimination”). And this

was also true of settlement agreements enforced

through consent decrees. See Aspira, 65 F.R.D. at 54243; Foster v. Boise-Cascade, Inc., 420 F. Supp. 674, 683

(S.D. Tex. 1976), aff’d, 577 F.2d 335 (5th Cir. 1978)

(“[T]he Court has no difficulty in determining that the

named plaintiff has prevailed in this litigation. The

proposed Consent Decree permanently enjoins defendant from engaging in any employment practice which

has the purpose or effect of discriminating against any

female on the basis of sex.”).

In short, under the contemporary judicial consensus, a party was successful, and thus prevailing, when

it achieved the outcome it desired—whether or not

that outcome resulted from a final judgment or conclusive merits determination.

C. This broad view of prevailing-party status was

consistently applied in cases that became moot after

plaintiffs achieved their litigation goals—as here. For

example, in Goldstein v. Levi, 415 F. Supp. 303 (D.D.C.

1976), a Freedom of Information Act (FOIA) suit was

resolved at an early stage of litigation after the government turned over the requested documents.

Awarding fees, the court described the plaintiff as

“successful” and thus as satisfying FOIA’s fee-shifting

standard of having “substantially prevailed.” Id. at

305. Although no court ordered the government to release the documents, it was evident that the release

resulted from the litigation: “plaintiff was unsuccessful in obtaining the information for three years but

was successful within a few weeks of filing a court action.” Id.; accord Howerton v. Miss. Cnty., Ark., 361 F.

16

Supp. 356 (E.D. Ark. 1973) (awarding costs to plaintiffs where defendants made the changes plaintiffs

sought after a class action suit against them was filed);

see also Am. Fed’n of Gov’t Emp., AFL-CIO v. Rosen,

418 F. Supp. 205 (N.D. Ill. 1976) (similar).

Likewise, in a case resembling this one, policemen

and firemen sued the city of Newport News, Virginia,

for issuing regulations that banned them from joining

labor unions. This claim became moot after the city

changed the rules deep into the discovery process. But

the court later deemed the plaintiffs the prevailing

party and awarded them fees, based largely on the

court’s determination of “which party would have prevailed had the matter been ultimately decided.” Newport News Fire Fighters Ass’n Local 794 v. City of Newport News, Va., 339 F. Supp. 13, 17 (E.D. Va. 1972).

D. More generally, the courts consistently interpreted fee-shifting provisions in civil rights statutes

generously, to effectuate Congress’s plan in adopting

such provisions. As this Court explained in Newman

v. Piggie Park Enter., Inc., 390 U.S. 400, 402 (1968),

Congress “enacted the provision for counsel fees . . . to

encourage individuals injured by racial discrimination

to seek judicial relief under Title II.” Therefore, “one

who succeeds in obtaining an injunction . . . should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Id.

Lower courts followed this Court’s lead. See, e.g.,

Califano, 561 F.2d at 330 (“Courts construing the fees

and costs provisions of Title VII have adopted the Piggie Park rationale that statutes authorizing award of

attorneys’ fees as part of private enforcement schemes

in the Civil Rights Act should be broadly interpreted.”); Johnson v. Ga. Highway Exp., Inc., 488 F.2d

714, 716 (5th Cir. 1974) (“This Court . . . has liberally

17

applied the attorney’s fees provision of Title VII, recognizing the importance of private enforcement of civil

rights legislation.”). Not long before Section 1988 was

amended, this Court reiterated that “the award [of attorney’s fees] should be made to the successful plaintiff

absent exceptional circumstances.” Alyeska Pipeline

Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 262 (1975);

see also Northcross v. Bd. of Ed. of Memphis City Sch.,

412 U.S. 427, 428 (1973) (same).

In sum, at the time Congress passed Section

1988’s fees provision, prevailing-party status did not

require a conclusive merits determination or final

judgment. A prevailing party was the party that succeeded in achieving its litigation goals. When Congress amended Section 1988 to make attorney’s fees

available under the civil rights laws that lacked feeshifting provisions, it incorporated this governing

standard, as the next section discusses.

III. Congress Adopted the Ordinary Meaning

and Well-Established Judicial Interpretation of “Prevailing Party” in Section 1988.

The “purpose and effect” of Section 1988’s fees provision was “simple—it [was] 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.”

S. Rep. No. 94-1011, supra, at 2. The legislation addressed “anomalous gaps in our civil rights laws”

whereby fees awards were not expressly authorized

under some of the nation’s most venerable civil rights

statutes. Id. at 4. “In order to achieve uniformity in

the remedies provided by Federal laws guaranteeing

civil and constitutional rights, it [was] necessary to

add an attorney fee authorization to those civil rights

acts which [did] not presently contain such a provision.” H.R. Rep. No. 94-1558, supra, at 1.

18

In other words, Congress amended Section 1988

“to achieve consistency” in the availability of attorney’s fees awards across federal civil rights statutes,

recognizing that fee-shifting provisions were “successful in enabling vigorous enforcement of modern civil

rights legislation, while at the same time limiting the

growth of the enforcement bureaucracy.” S. Rep.

No. 94-1011, supra, at 1, 4. To that end, Congress

mimicked the language of the civil rights statutes that

already permitted fees awards—seeking to ensure that

Section 1988 would be given the same generous interpretation as those earlier provisions.

A. The impetus for Section 1988’s fees provision

was this Court’s decision in Alyeska Pipeline Service

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

held that awards of attorney’s fees must be expressly

authorized by legislation. See H.R. Rep. No. 94-1558,

supra, at 2-3; S. Rep. No. 94-1011, supra, at 2. The

Alyeska decision ended the practice of awarding fees

under the courts’ equitable powers based on a “private

attorney general” rationale, reasoning that it was the

role of Congress, not the courts, to determine “the circumstances under which attorney’s fees are to be

awarded.” 421 U.S. at 262.

Heeding this Court’s call for “legislative guidance”

as to when fees awards should be allowed, id. at 26364, Congress responded, explaining that Section

1988’s fee-shifting provision would make attorney’s

fees available under seven specifically identified civil

rights laws. S. Rep. No. 94-1011, supra, at 1; see id. at

4 (noting that after Alyeska, attorney’s fees awards

were “suddenly unavailable in the most fundamental

civil rights cases”); see also H.R. Rep. No. 94-1558, supra, at 2 (describing hearing testimony which “indicated that civil rights litigants were suffering very severe hardships because of the Alyeska decision”).

19

B. In amending Section 1988 and explicitly making attorney’s fees available under the civil rights laws

that previously lacked fee-shifting provisions, Congress was, of course, doing nothing new. See S. Rep.

No. 94-1011, supra, at 3 (observing that the use of feeshifting to encourage private enforcement was not “a

new remedy”). Indeed, Congress intentionally modeled Section 1988 on the modern civil rights laws that

allowed fee-shifting to “prevailing parties.” See id. at

2 (explaining that the bill “follows the language of Titles II and VII of the Civil Rights Act of 1964 . . . and

section 402 of the Voting Rights Act Amendments of

1975”); H.R. Rep. No. 94-1558, supra, at 5 (same); Hanrahan v. Hampton, 446 U.S. 754, 758 n.4 (1980) (explaining that Section 1988’s fees provision “was patterned upon” these earlier statutes).

By replicating the language of these fee-shifting

provisions, Congress sought to ensure consistency not

only in the availability of attorney’s fees, but also in

the standards that courts would apply in awarding

them: “Because other statutes follow this approach,

the courts are familiar with these terms and in fact

have reviewed, examined, and interpreted them at

some length.” H.R. Rep. No. 94-1558, supra, at 6; see

id. at 8 (noting that courts applying Section 1988

would be “guided of course by the case law interpreting

similar attorney’s fee provisions”).

Congress, in short, “intended that the standards

for awarding fees [would] be generally the same as under the fee provisions of the 1964 Civil Rights Act,”

S. Rep. No. 94-1011, supra, at 4, and it chose the most

direct means of achieving that goal: using the same

language. As this Court had only recently explained,

“The similarity of language” between two fee-shifting

provisions “is, of course, a strong indication that the

20

two statutes should be interpreted pari passu.” Northcross, 412 U.S. at 428; cf. H.R. Rep. No. 94-1558, supra,

at 6 (citing Northcross).

C. Congress understood the existing legal standards to permit fees awards in a wide range of circumstances—without requiring a final judgment or conclusive merits determination. Consistent with the established case law applying identical language, see supra

Part II, Congress expected Section 1988 to be generously construed to authorize fee awards to plaintiffs

that achieved the goals of their litigation.

Indeed, the House report was unmistakably clear

that the term “prevailing party” was “not intended to

be limited to the victor only after entry of a final judgment following a full trial on the merits.” H.R. Rep.

No. 94-1558, supra, at 7. Instead, the term would “include a litigant who succeeds even if the case is concluded prior to a full evidentiary hearing before a judge

or jury.” Id. An award of attorney’s fees would be

proper, for example, if “the litigation terminates by

consent decree.” Id.; see id. (“A ‘prevailing’ party

should not be penalized for seeking an out-of-court settlement, thus helping to lessen docket congestion.”).

The Senate Report agreed: “[F]or purposes of the

award of counsel fees, parties may be considered to

have prevailed when they vindicate rights through a

consent judgment or without formally obtaining relief.” S. Rep. No. 94-1011, supra, at 5 (citing cases).

In some situations, Congress recognized, it would

even be proper to award attorney’s fees while a case

was still ongoing. See id. (“In appropriate circumstances, counsel fees under S. 2278 may be awarded

pendente lite.”). Such interim awards, the Senate Report explained, were “especially appropriate where a

party has prevailed on an important matter in the

21

course of litigation, even when he ultimately does not

prevail on all issues.” Id. (citing Bradley v. Sch. Bd. of

City of Richmond, 416 U.S. 696 (1974), and Mills v.

Elec. Auto-Lite Co., 396 U.S. 375 (1970)); accord H.R.

Rep. No. 94-1558, supra, at 8.

D. Although Petitioner otherwise ignores Section

1988’s history, he argues that the congressional reports’ reference to Bradley and Mills means that fees

awards were considered proper without a final judgment only if a party had “established his entitlement

to some relief on the merits.” Pet. Br. 21 (quoting Hanrahan, 446 U.S. at 757). Those cases, however, simply

made clear that, during the course of ongoing litigation, courts “must have discretion to award fees and

costs incident to the final disposition of interim matters.” H.R. Rep. No. 94-1558, supra, at 8 (quoting

Bradley, 416 U.S. at 723). Neither Bradley, Mills, nor

the congressional reports suggested that the only interim matter that could justify a fee award during the

course of litigation was an order establishing entitlement to relief on the merits. As the House report explained, “the courts have not yet formulated precise

standards as to the appropriate circumstances under

which such interim awards should be made” while a

case was still in the middle of “protracted litigation.”

Id.

Moreover, this entire discussion and the quoted

passage of Bradley were exclusively concerned with

fees awards that were based on interim rulings while a

case was still being litigated—“pendente lite.” S. Rep.

No. 94-1011, supra, at 5. Even if it were true that an

order determining “substantial rights of the parties,”

H.R. Rep. No. 94-1558, supra, at 8 (quoting Bradley,

416 U.S. at 722 n.28), was the only recognized justification for a fees award in the midst of continuing litigation—an assertion not supported by Bradley or the

22

congressional reports—it still would not follow that

this was the only justification for a fees award after a

case ended. Indeed, that rule would flatly contradict

the judicial consensus, which Congress endorsed, that

parties could obtain attorney’s fees after achieving

their litigation goals through settlement, consent decree, or without any formal relief.

Taking a restrained approach to fee awards during

the course of ongoing litigation made sense, because

while litigation is ongoing, it is impossible to know

which party will succeed in the end. See Grubbs v.

Butz, 548 F.2d 973, 976-77 (D.C. Cir. 1976) (“If attorneys’ fees were assessed against [a party] at this point

in the litigation, the ultimately successful party might

end up having subsidized a large segment of the losing

party’s suit against him.” (emphasis added)). But once

a case is over, that problem evaporates—enabling the

court to decide which party, if any, was ultimately successful in achieving its goals and thus entitled to fees.

Far from supporting Petitioner’s narrow approach,

therefore, these decisions and Congress’s reference to

them only underscore the contemporary understanding that “prevailing party” was to be interpreted in a

generous, common-sense fashion that allowed fees

awards when plaintiffs achieved success in their cases.

E. Adopting the then-governing standard for the

award of attorney’s fees was consistent with Congress’s plan in amending Section 1988, which was to

ensure that the availability of attorney’s fees would

help realize effective enforcement of the nation’s civil

rights laws.

Congress recognized that “[t]he effective enforcement of Federal civil rights statutes depends largely

on the efforts of private citizens.” H.R. Rep. No. 941558, supra, at 1; see S. Rep. No. 94-1011, supra, at 5

23

(“In several hearings held over a period of years, the

Committee has found that fee awards are essential if

the Federal statutes to which [the proposed legislation] applies are to be fully enforced.”). Ensuring the

availability of attorney’s fees to prevailing parties was

“designed to give [victims of civil rights violations] effective access to the judicial process.” H.R. Rep. No.

94-1558, supra, at 1; see id. at 9 (“[T]hese standards

will insure that reasonable fees are awarded to attract

competent counsel in cases involving civil and constitutional rights, while avoiding windfalls to attorneys.”).

In short, Congress understood that “civil rights

laws depend heavily upon private enforcement, and

fee awards have proved an essential remedy if private

citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these

laws contain.” S. Rep. No. 94-1011, supra, at 2.

Congress was particularly concerned about the injustice imposed upon “victims of unlawful discrimination or unconstitutional conduct” by “the additional

burden of counsel fees when they seek to invoke the

jurisdiction of the federal courts.” H.R. Rep. No. 941558, supra, at 6. After all, “[i]f 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.” S. Rep. No. 94-1011, supra, at 2. Otherwise, “few aggrieved parties would be in a position

to advance the public interest by invoking the injunctive powers of the Federal courts.” Id. at 3 (quoting

Newman, 390 U.S. at 402).

Congress was aware, moreover, that under the existing fee-shifting statutes, awarding attorney’s fees to

24

successful plaintiffs was the default. Although a prevailing party’s entitlement to fees was within “the discretion of the court,” this Court had repeatedly recognized that “Congress intended that the award should

be made to the successful plaintiff absent exceptional

circumstances.” Alyeska, 421 U.S. at 261-62. Congress expected the same default rule to apply under

Section 1988’s identical language. See S. Rep. No. 941011, supra, at 4 (“A party seeking to enforce the rights

protected by the statutes covered by [Section 1988], if

successful, ‘should ordinarily recover an attorney’s fee

unless special circumstances would render such an

award unjust.’” (quoting Newman, 390 U.S. at 402));

see H.R. Rep. No. 94-1558, supra, at 6 (same).

Congress’s plan, in sum, was to “promote the enforcement of the Federal civil rights acts” and “achieve

uniformity in those statutes and justice for all citizens.” H.R. Rep. No. 94-1558, supra, at 9. There is no

support for Petitioner’s restrictive gloss on “prevailing

party” in the language of Section 1988, the history of

its fees provision, or the backdrop of case law against

which Congress acted.

***

In Alyeska, this Court recognized that it was up to

Congress, not the courts, to determine when attorney’s

fees should be available. Congress responded to this

Court’s call for action by passing Section 1988’s fees

provision. In doing so, Congress could scarcely have

been clearer about its aims and its understanding of

how Section 1988 would operate. It could also scarcely

have chosen language better suited to those goals.

Just like under the identically worded statutes that

courts had already construed, a “prevailing party”

would be a party that succeeded in achieving its desired outcome. No final judgment or conclusive merits

25

determination would be required. This Court should

respect Congress’s judgment now.

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be affirmed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

BRIAN R. FRAZELLE

JESS ZALPH

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

August 12, 2024

* Counsel of Record