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 AMICI CURIAE

ALLIANCE DEFENDING FREEDOM &

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF RESPONDENTS

JOHN J. BURSCH

TRAVIS C. BARHAM

ALLIANCE DEFENDING

FREEDOM

440 First Street, NW, Suite 600

Washington, D.C. 20001

CYNTHIA FLEMING CRAWFORD

AMERICANS FOR PROSPERITY

FOUNDATION

4201 Wilson Blvd., Suite 1000

Arlington, Virginia 22203

ALLYSON N. HO

ELIZABETH A. KIERNAN

Counsel of Record

JAIME R. BARRIOS

ANDREW R. MITCHELL

GIBSON, DUNN & CRUTCHER LLP

2001 Ross Avenue, Suite 2100

Dallas, Texas 75201

(214) 698-3100

EKiernan@gibsondunn.com

CHRISTINE A. BUDASOFF

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, NW

Washington, D.C. 20046

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

Table of Authorities .............................................. ii

Interest of Amici Curiae ........................................ 1

Statement ............................................................... 2

Argument ............................................................... 6

I.

Attorneys’ Fees Are Indispensable In

Civil-Rights Litigation. ............................. 6

II. Exaggerated Policy Concerns Cannot

Override The Text Of Section 1988. ....... 10

Conclusion ............................................................ 16

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alyeska Pipeline Service Co. v. Wilderness Society,

421 U.S. 240 (1975) ............................................. 2

Arthur Andersen LLP v. Carlisle,

556 U.S. 624, 629 (2009) ................................... 10

Beta Upsilon Chi v. Machen,

446 F. App’x 192 (11th Cir. 2011)....................... 9

Beta Upsilon Chi v. Machen,

522 F. App’x 471 (11th Cir. 2013)....................... 9

Beta Upsilon Chi v. Machen,

586 F.3d 908 (11th Cir. 2009) ............................. 9

Beta Upsilon Chi v. Machen,

601 F. App’x 917 (11th Cir. 2015)....................... 9

Buckhannon Bd. & Care Home, Inc. v.

West Virginia Dep’t of Health & Human

Resources,

532 U.S. 598 (2001) ............................. 4, 5, 14, 15

Carey v. Piphus,

435 U.S. 247 (1978) ....................................... 7, 11

City of Riverside v. Rivera,

477 U.S. 561 (1986) ................... 3, 6, 7, 11, 13, 15

Common Cause/Georgia v. Billups,

554 F.3d 1340 (11th Cir. 2009) ......................... 12

Dearmore v. City of Garland,

519 F.3d 517 (5th Cir. 2008) ............................. 12

Dupuy v. Samuels,

423 F.3d 714 (7th Cir. 2005) ............................. 12

iii

Farrar v. Hobby,

506 U.S. 103 (1992) ............................................. 3

Fleischmann Distilling Corp. v. Maier Brewing

Co.,

386 U.S. 714 (1967) ........................................... 11

Haley v. Pataki,

106 F.3d 478 (2d Cir. 1997) .............................. 12

Hensley v. Eckerhart,

461 U.S. 424 (1983) ............................................. 3

Hewitt v. Helms,

482 U.S. 755 (1987) ............................................. 4

Higher Taste, Inc. v. City of Tacoma,

717 F.3d 712 (9th Cir. 2013) ............................. 12

Kansas Judicial Watch v. Stout,

653 F.3d 1230 (10th Cir. 2011) ......................... 12

Maher v. Gagne,

448 U.S. 122 (1980) ............................................. 4

McQueary v. Conway,

614 F.3d 591 (6th Cir. 2010) ............................. 12

National Black Police Ass’n v. District of

Columbia Bd. of Elections & Ethics,

168 F.3d 525 (D.C. Cir. 1999). .......................... 12

Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400 (1968) ............................................. 2

Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air,

478 U.S. 546 (1986) ........................................... 13

People Against Police Violence v. City of

Pittsburgh,

520 F.3d 226 (3d Cir. 2008) .............................. 12

iv

Rogers Group, Inc. v. City of Fayetteville,

683 F.3d 903 (8th Cir. 2012) ............................. 12

Savidge v. Fincannon,

836 F.2d 898 (5th Cir. 1988) ............................... 3

Su v. Bowers,

89 F.4th 1169 (9th Cir. 2024) ........................... 14

Tennessee State Conference of NAACP v. Hargett,

53 F.4th 406 (6th Cir. 2022) ............................. 15

Texas State Teachers Ass’n v. Garland

Independent School District,

489 U.S. 782 (1989) ................................. 4, 13, 15

Truck Insurance Exchange v. Kaiser Gypsum Co.,

144 S. Ct. 1414 (2024) ....................................... 10

Uzuegbunam v. Preczewski,

592 U.S. 279 (2021) ......................................... 1, 2

Washington State Dep’t of Licensing v. Cougar

Den, Inc.,

586 U.S. 347 (2019) ........................................... 10

Statutes, Rules, & Other Authorities

5 U.S.C. § 504 ......................................................... 14

15 U.S.C. § 1117 ..................................................... 14

28 U.S.C. § 2412 ..................................................... 13

35 U.S.C. § 285 ....................................................... 14

42 U.S.C. § 1983 ................................................... 2, 3

42 U.S.C. § 1988 ..................................................... 11

H.R. Rep. No. 94-1558 (1976)......................... 3, 4, 13

S. Rep. No. 94-1011 (1976),

as reprinted in 1976 U.S.C.C.A.N. 5908 ........ 3, 4

Sup. Ct. R. 37.6 ......................................................... 1

INTEREST OF AMICI CURIAE *

Alliance Defending Freedom is a nonprofit, publicinterest legal organization providing strategic planning, training, funding, and litigation services to protect Americans’ constitutional rights—including the

rights to freedom of speech, free exercise of religion,

freedom of association, and equal protection. Since its

founding in 1994, Alliance Defending Freedom has

played a role in dozens of cases before this Court, and

many hundreds more before lower courts.

Americans for Prosperity Foundation is a

501(c)(3) nonprofit organization committed to educating and empowering Americans to address the most

important issues facing our country, including the

preservation of our civil liberties and constitutionally

limited government. As part of this mission, it often

participates as a party or amicus curiae in cases involving government actors.

Alliance Defending Freedom and Americans for

Prosperity Foundation submit this brief to highlight

the importance of attorneys’ fees when a party safeguards constitutional or civil rights by winning a preliminary injunction against an unlawful federal or

state policy. Amici have often litigated to protect civilrights plaintiffs’ ability to recover some measure of

their expenditures after successfully challenging a

government actor’s unlawful policies and practices.

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

Pursuant to Supreme Court Rule 37.6, amici represent that

this brief was not authored in whole or in part by any party or

counsel for any party. No person or party other than amici or

their counsel made a monetary contribution to the preparation

or submission of this brief.

*

2

(holding that nominal damages were available to address violation of the constitutional rights of Alliance

Defending Freedom’s client); Br. for Amici Curiae

Americans for Prosperity Foundation et al. in Support

of Pet’rs, ibid.

STATEMENT

The government asks for a “get-out-of-jail-free”

card. In petitioner’s view, the government can promulgate a policy or practice that violates its citizens’

constitutional rights, and then, after an injured party

spends considerable time and thousands of dollars to

persuade a court to enjoin the behavior, simply revise

the policy and avoid responsibility. That can’t be

right. Section 1988 and longstanding practice prove

it isn’t.

1. Civil-rights litigation benefits everyone—not

just the courageous individuals and counsel shouldering that litigation’s burdens. This Court has long recognized that civil-rights plaintiffs are akin to “private

attorney[s] general, vindicating a policy that Congress

considered of the highest priority.” Newman v. Piggie

Park Enterprises, Inc., 390 U.S. 400, 402 (1968) (per

curiam) (quotation marks omitted). Yet few citizens

could take up that mantle and “advance the public interest” if “forced to bear their own attorneys’ fees.”

Ibid. That’s why courts often awarded attorneys’ fees

to prevailing plaintiffs in civil-rights cases. See generally Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975).

So when this Court reversed course to hold that

section 1983 plaintiffs couldn’t recover attorneys’ fees

under the then-statutory framework, Alyeska Pipeline, 421 U.S. at 241, Congress’s reaction was swift

3

and decisive. Within a month, Congress began work

on what would become the Civil Rights Attorneys’

Fees Award Act, S. Rep. No. 94-1011, at 1 (1976), as

reprinted in 1976 U.S.C.C.A.N. 5908, which amended

section 1988 to allow fee-shifting when plaintiffs prevail in myriad civil-rights cases, including those under

42 U.S.C. § 1983. By allowing “a prevailing plaintiff

‘[to] ordinarily recover an attorney’s fee [absent] special circumstances,’ ” Congress “ensure[d] ‘effective access to the judicial process’ for persons with civil

rights grievances.” Hensley v. Eckerhart, 461 U.S.

424, 429 (1983) (quoting H.R. Rep. No. 94-1558, at 1

(1976) & S. Rep. No. 94-1011, at 4).

2. This Court has acknowledged that “awarding

counsel fees to prevailing plaintiffs” in civil-rights “litigation is particularly important and necessary if Federal civil and constitutional rights are to be adequately protected.” City of Riverside v. Rivera, 477

U.S. 561, 577 (1986) (plurality) (quoting H.R. Rep. No.

94-1558, at 9). Without a possible fee recovery, citizens who otherwise lack the means “to assert their

civil rights” would never challenge unconstitutional

policies, allowing those who “violate the Nation’s fundamental laws” to do so “with impunity.” Id. at 578

(quoting S. Rep. No. 94-1011, at 2). The recovery of

attorneys’ fees “is necessary ‘[i]f our civil rights laws

are not to become mere hollow pronouncements which

the average citizen cannot enforce.’ ” Savidge v. Fincannon, 836 F.2d 898, 905 (5th Cir. 1988) (quoting S.

Rep. No. 94-1011, at 6).

In keeping with section 1988’s empowerment of

citizens to vindicate civil rights, this Court has afforded the term “prevailing party” a “generous formulation.” Farrar v. Hobby, 506 U.S. 103, 109 (1992)

4

(quoting Hensley, 461 U.S. at 433). A plaintiff need

not prevail after “full litigation,” Maher v. Gagne, 448

U.S. 122, 129 (1980), or even on the “central issue”—

“interim fee awards [are] available ‘where a party has

prevailed on an important matter in the course of litigation,’ ” Texas State Teachers Ass’n v. Garland Independent School District, 489 U.S. 782, 790 (1989)

(quoting S. Rep. No. 94-1011, at 5) (emphasis added).

Put differently, “[t]he touchstone of the prevailing

party inquiry must be the material alteration of the

legal relationship of the parties in a manner which

Congress sought to promote in the fee statute.” Id. at

792–793.

In Maher, for example, the Court recognized that

a civil-rights plaintiff may be considered “prevailing”

after a settlement. 448 U.S. at 129. The Court explained that “ ‘for purposes of the award of counsel

fees, parties may be considered to have prevailed

when they vindicate rights through a consent judgment or [even] without formally obtaining relief.’ ”

Ibid. (quoting S. Rep. No. 94-1011, at 5).

This Court has reiterated these principles. In

Hewitt v. Helms, the Court observed that a plaintiff

may prevail where “[a] lawsuit * * * produces voluntary action by the defendant that affords the plaintiff

all or some of the relief he sought through a judgment.” 482 U.S. 755, 760 (1987). 1 And in Buckhannon, which held that a plaintiff doesn’t prevail when

Accord H.R. Rep. No. 94-1558, at 7 (“Similarly, after a complaint is filed, a defendant might voluntarily cease the unlawful

practice. A court should still award fees even though it might

conclude, as a matter of equity, that no formal relief, such as an

injunction, is needed.”).

1

5

a defendant ends a challenged policy once suit is filed

but before any judicial decision is rendered, this Court

explained that a plaintiff may be “prevailing” when

the government enters into a consent decree with no

admission of liability, because the agreement has the

court’s stamp of approval—its “imprimatur.” Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t

of Health & Human Resources, 532 U.S. 598, 605–606

(2001) (“a judicial pronouncement that the defendant

has violated the Constitution [not] unaccompanied by

‘judicial relief’ ” may suffice).

3. Both the statutory history of section 1988 and

this Court’s precedent confirm the importance of recompensing citizens and their counsel who stand firm

in the face of civil-rights violations and effect change.

Yet petitioner now asks this Court to ignore that history and precedent by forbidding attorneys’ fees to

plaintiffs who have obtained “judicial relief” via a preliminary injunction. Buckhannon, 532 U.S. at 606.

Petitioner asserts that even when civil-rights

plaintiffs succeed in preliminarily enjoining the government’s exercise of an unconstitutional statute, if

the government moots the case by repealing the statute, the plaintiffs aren’t entitled to recoup attorneys’

fees. See Pet’r’s Br. at 2. This means a government

entity can avoid section 1988 if, after reading the room

(and the injunction), it voluntarily does permanently

what the trial court ordered it to do preliminarily.

Adopting petitioner’s rule would discourage civilrights litigation and lead to anomalous outcomes, as

plaintiffs who successfully litigate a preliminary injunction are left holding the bag for attorneys’ fees.

See Pet. App. 21a (noting that these proceedings were

6

“long, contentious, and no doubt costly”) (quoting Stinnie v. Holcomb, 396 F. Supp. 3d 653, 660 (W.D. Va.

2019)). It takes little foresight to anticipate how government actors will respond to adverse preliminaryinjunction rulings in the future. This case is Exhibit

A. As the en banc Fourth Circuit observed, after four

years of litigation, in an “eleventh-hour capitulation”

post-injunction, the government “game[d] the system”

by obtaining a stay to change its “clear[ly]” unconstitutional law and “insulate it[self] from a fee award.”

Pet. App. 20a–22a. Nothing in section 1988’s text,

structure, or history justifies this result.

ARGUMENT

I. ATTORNEYS’ FEES ARE INDISPENSABLE IN

CIVIL-RIGHTS LITIGATION.

The availability of attorneys’ fees in civil-rights

cases is vitally important to protect the civil rights of

all. Civil-rights cases are different from typical private litigation because “[u]nlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be

valued solely in monetary terms.” Rivera, 477 U.S. at

574 (plurality). “Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often

secures important social benefits that are not reflected in nominal or relatively small damages

awards,” including deterring future misconduct by

government officials. Ibid.

Especially in cases like this one—involving indigent plaintiffs and limited damages—attorneys’ fees

are essential to enforcing civil rights, both for the individual plaintiff and the general public. Without the

possibility of attorneys’ fees, individuals would often

7

not have the resources necessary to mount litigation

to protect their civil rights, effectively denying them

their day in court. This Court recognized as much in

Rivera, explaining that civil-rights plaintiffs “ordinarily cannot afford to purchase legal services at the rates

set by the private market.” 477 U.S. at 576–577 (plurality).

Moreover, “competent counsel” are unlikely to

take on the burden of civil-rights litigation absent the

possibility of attorneys’ fees, because these cases require “substantial expenditures of time and effort,”

and, even when successful, result in “only small monetary recoveries.” Rivera, 477 U.S. at 576–578 (plurality). Without a means to recover attorneys’ fees, a

“citizen [who] does not have the resources[ has] his

day in court * * * denied him; the congressional policy

which he seeks to assert and vindicate goes unvindicated; and the entire Nation, not just the individual

citizen, suffers.” Id. at 575.

But attorneys’ fees aren’t just a carrot to incentivize citizens and counsel. They’re also a stick to incentivize the government to quickly resolve civil-rights

claims or avoid civil-rights litigation entirely. The

mere “potential” for attorneys’ fees “provides additional—and by no means inconsequential”—incentives to the government to address unconstitutional

conduct. Carey v. Piphus, 435 U.S. 247, 257 n.11

(1978).

This case underscores the importance of this incentive structure. Indigent plaintiffs were able to obtain counsel willing to challenge a law that deprived

citizens of their driver’s licenses if they couldn’t afford

to pay court-ordered debts. Resps.’ Opp. to Pet. at 4–

8

5. When the government refused to acknowledge its

unconstitutional conduct, and the cost of litigation

soared, plaintiffs and their counsel stayed the course,

even pursuing an appeal after the initial wrongful dismissal of the suit. Pet. App. 6a–7a & n.1. That tenacity was vindicated when the Fourth Circuit revived

the suit and the district court held that plaintiffs

made a “clear showing” of a constitutional violation.

J.A.367, 372, 380–381.

Only then, reading the preliminary injunction and

facing potential liability for attorneys’ fees, did the

government repeal the statute. Although that act

moots the case, section 1988 provides that if the

change is attributable to plaintiffs obtaining an order

enjoining the unlawful activity, plaintiffs are still entitled to attorneys’ fees. But petitioner found a way to

“game the system”—by ceasing the challenged conduct after plaintiffs obtained the preliminary injunction. Pet. App. 20a–22a (“And because Virginia is in

the Fourth Circuit and not anywhere else in the country, the Commonwealth could rest assured”—under

then-controlling precedent—“that this eleventh-hour

capitulation would insulate it from a fee award.”).

Reversing the Fourth Circuit here would reward

government gamesmanship. Under petitioner’s proposed rule, one of the major incentives for government

entities to avoid litigation altogether would no longer

apply, while for plaintiffs the risk of unrecoverable expenditures would increase. Once government conduct

is challenged in court, the government has no incentive to revise unconstitutional laws or policies until after they take a costly (for plaintiffs) peek at the district court’s view on the merits. Meanwhile, the government benefits by potentially outlasting plaintiffs

9

who fear they will end up “holding the bag” even if

their suit successfully alters the government’s conduct. Pet. App. 21a.

This case is hardly an outlier. ADF, for example,

has experienced such gamesmanship firsthand. ADF

assisted in a case in which a Christian fraternity challenged a University of Florida policy that prohibited

the group from only permitting leaders who were

Christians. Beta Upsilon Chi v. Machen, 586 F.3d

908, 913–914 (11th Cir. 2009). When the district court

denied its motion for a preliminary injunction, the fraternity sought an injunction pending appeal, which

the Eleventh Circuit granted. Id. at 914. The Eleventh Circuit then held oral argument, where it became clear the fraternity would prevail on its preliminary-injunction motion on remand. See id. at 915.

Five weeks later, the University changed its policy

and moved to dismiss the case as moot, explaining the

policy change gave the fraternity “the relief sought in

its complaint.” Ibid. The Eleventh Circuit agreed and

dismissed the case as moot. Ibid.

Thankfully, the fraternity was in the Eleventh

Circuit. When it sought attorneys’ fees and the district court ruled it hadn’t prevailed, the Eleventh Circuit reversed. See Beta Upsilon Chi v. Machen, 446 F.

App’x 192, 193 (11th Cir. 2011) (per curiam); Beta Upsilon Chi v. Machen, 522 F. App’x 471, 472 (11th Cir.

2013) (per curiam). After four years of litigation, the

fraternity finally received its attorneys’ fees. See Beta

Upsilon Chi v. Machen, 601 F. App’x 917 (11th Cir.

2015) (per curiam). So reversing the Fourth Circuit

here would only make the already complicated endeavor of pursuing civil-rights litigation more daunting.

10

The University has also filed an amicus brief in

this case that confirms the necessity of attorneys’ fees

in civil-rights litigation. The University admits it was

only after the Eleventh Circuit issued a preliminary

injunction, entertained briefing, and held oral argument that the University finally changed course and

altered its (unconstitutional) policy. Br. for Amicus

Curiae University of Florida Board of Trustees in Support of Pet’r at 4–5. The University may not like that

it had to pay attorneys’ fees after defending an unconstitutional policy in court, but had the Eleventh Circuit not acted as it did, the University would almost

certainly still have that policy in place. The University’s amicus brief shows why the availability of attorneys’ fees in this context is so important.

II. EXAGGERATED POLICY CONCERNS CANNOT

OVERRIDE THE TEXT OF SECTION 1988.

Lacking textual, historical, or practical support

for their bright-line rule, petitioner and its amici retreat behind exaggerated policy concerns. Putting

aside that their “parade of horribles” can’t “surmount

the plain language of the statute,” Truck Insurance

Exchange v. Kaiser Gypsum Co., 144 S. Ct. 1414, 1427

(2024) (quoting Arthur Andersen LLP v. Carlisle, 556

U.S. 624, 629 (2009)), their speculative fears are overblown. Indeed, their “hypothetical parade of horribles

has yet to take its first step in the real world.” Washington State Dep’t of Licensing v. Cougar Den, Inc.,

586 U.S. 347, 376 (2019) (Gorsuch, J., concurring in

the judgment).

1. Petitioner and its amici first argue that allowing attorneys’ fees to parties who successfully obtain

a preliminary injunction would perversely incentivize

11

plaintiffs to prolong litigation to increase potential attorneys’ fees, while also disincentivizing government

defendants from voluntarily changing their policies.

Pet’r’s Br. at 49–50; Br. for Amici Curiae Local Government Legal Center et al. in Support of Pet’r at 13–

14. As demonstrated above, the opposite is true.

There’s no evidence that plaintiffs seeking to vindicate their civil rights either have or would inflate

litigation expenses in the hope of eventually recovering attorneys’ fees at the end of a case. For good reason. As petitioner notes in his merits brief (at 53), the

result of litigation “is at best uncertain.” Fleischmann

Distilling Corp. v. Maier Brewing Co., 386 U.S. 714,

718 (1967). And the idea that a plaintiff seeking to

vindicate his civil rights would inflate litigation

costs—with no guarantee of attorneys’ fees—defies reality.

In any event, these concerns conflate the threshold question whether a party is “prevailing,” with the

secondary question whether the attorneys’ fees sought

are “reasonable.” Congress entitled plaintiffs only to

“reasonable” attorneys’ fees. 42 U.S.C. § 1988(b); accord Rivera, 477 U.S. at 567 (plurality). So any concern that a plaintiff has unnecessarily run up attorneys’ fees can be dealt with when the district court determines the reasonableness of those fees.

Moreover, petitioner misconstrues (at 49–50) the

incentives here. Like any litigant subject to a preliminary injunction, the government can read the writing

on the wall on its likelihood of prevailing and mitigate

attorneys’ fees by ceasing its unlawful activity. See

Carey, 435 U.S. at 257 n.11 (the prospect of attorneys’

fees can provide a not “inconsequential” inducement

12

to cease unlawful actions). Far from being incentivized to litigate further, state officials would instead be

incentivized to resolve meritorious cases earlier and

reduce their liability for attorneys’ fees. Conversely,

adopting petitioner’s rule incentivizes government officials to prolong litigation until the brink of a final

judgment.

In fact, the understanding that preliminary injunctions can confer prevailing-party status has been

the majority view across the circuits for decades. Yet

petitioner identifies no evidence of a government defendant being discouraged from repealing a law out of

fear of paying attorneys’ fees. See, e.g., Haley v.

Pataki, 106 F.3d 478, 483 (2d Cir. 1997); People

Against Police Violence v. City of Pittsburgh, 520 F.3d

226, 233–234 (3d Cir. 2008); Dearmore v. City of Garland, 519 F.3d 517, 526 (5th Cir. 2008); McQueary v.

Conway, 614 F.3d 591, 601 (6th Cir. 2010); Dupuy v.

Samuels, 423 F.3d 714, 719–720 (7th Cir. 2005); Rogers Group, Inc. v. City of Fayetteville, 683 F.3d 903,

910–911 (8th Cir. 2012); Higher Taste, Inc. v. City of

Tacoma, 717 F.3d 712, 717–718 (9th Cir. 2013); Kansas Judicial Watch v. Stout, 653 F.3d 1230, 1237–

1238, 1240–1241 (10th Cir. 2011); Common

Cause/Georgia v. Billups, 554 F.3d 1340, 1355–1356

(11th Cir. 2009); National Black Police Ass’n v. District of Columbia Bd. of Elections & Ethics, 168 F.3d

525, 528–529 (D.C. Cir. 1999).

If anything, petitioner’s apprehension about how

government defendants might respond to an award of

attorneys’ fees turns section 1988 on its head. As this

Court has explained, Congress enacted section 1988

because “awarding counsel fees to prevailing plaintiffs

* * * is particularly important and necessary if

13

Federal civil and constitutional rights are to be adequately protected.” Rivera, 477 U.S. at 577 (plurality)

(quoting H.R. Rep. No. 94-1558, at 9). Congress’s focus, then, was on protecting private citizens’ ability to

challenge unlawful government action.

Attorneys’ fees are the mechanism by which Congress furthers this purpose and ensures that “private

citizens have a meaningful opportunity to vindicate

their rights protected by the Civil Rights Acts.” Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 478 U.S. 546, 559 (1986) (emphasis added).

Allowing plaintiffs to recover attorneys’ fees for obtaining relief by means of a preliminary injunction

furthers the goals “Congress sought to promote in the

fee statute.” Texas State Teachers Ass’n, 489 U.S. at

792–793.

2. Petitioner and amici’s next argument—that allowing a preliminary injunction to confer prevailingparty status would lead to a “second major litigation”—is similarly overblown. Pet’r’s Br. at 46–49; Br.

for Amici Curiae Georgia et al. in Support of Pet’r at

20.

That section 1988 requires district courts to conduct a fact-specific inquiry to determine whether a

party is entitled to recover attorneys’ fees is nothing

new. Courts are routinely tasked with analyzing the

facts to decide whether a party is prevailing for purposes of awarding attorneys’ fees. For example, the

Equal Access to Justice Act allows nongovernment litigants to recover attorneys’ fees and expenses if

they’re prevailing parties in a suit against federal

agencies—but only where the government’s litigation

position isn’t “substantially justified.” 28 U.S.C.

14

§ 2412(d)(1)(A); see also 5 U.S.C. § 504(a)(1) (awarding attorneys’ fees to a “prevailing party,” unless the

government’s position was “substantially justified” or

“special circumstances make an award unjust”). So on

top of determining which party is the prevailing party,

courts must decide whether the government’s arguments were “substantially justified”—another standard requiring a context-specific inquiry that courts

must nevertheless conduct. E.g., Su v. Bowers, 89

F.4th 1169, 1176–1179 (9th Cir. 2024) (extensively reviewing facts to determine whether the government

was “substantially justified”).

The Equal Access to Justice Act isn’t the only statute that requires two layers of inquiry. The United

States Code is replete with similar statutes requiring

inquiries that extend far beyond simply determining

whether a party prevailed. E.g., 35 U.S.C. § 285

(awarding attorneys’ fees to the “prevailing party”

only in “exceptional cases”); 15 U.S.C. § 1117(a)

(same). Yet none of these statutes conflicts with this

Court’s instruction that the determination of attorneys’ fees shouldn’t result in a “second major litigation.”

Neither does section 1988. In fact, the circuits’

now-uniform approach to determining prevailingparty status confirms that petitioner’s concerns are

overstated. To be sure, that approach requires a casespecific analysis to determine whether a preliminary

injunction, in fact, confers prevailing-party status.

But that analysis hardly prompts a “second major litigation.” Buckhannon, 532 U.S. at 609.

Indeed, as this Court has explained, courts need

determine only whether a preliminary injunction has

15

caused a “material alteration of the legal relationship

of the parties.” Texas State Teachers Ass’n, 489 U.S.

at 792–793. In many cases, performing this analysis

will require no more than reviewing the complaint

and the preliminary-injunction ruling. E.g., Tennessee State Conference of NAACP v. Hargett, 53 F.4th

406, 410 (6th Cir. 2022) (awarding attorneys’ fees

where the preliminary-injunction ruling provided the

relief plaintiffs sought in their complaint and the injunction “was never reversed, dissolved, or even vacated”). That sensible analysis is a far cry from the

“highly factbound inquiry” this Court has previously

warned against. Buckhannon, 532 U.S. at 609.

*****

“Congress enacted § 1988 specifically because it

found that the private market for legal services failed

to provide many victims of civil rights violations with

effective access to the judicial process.” Rivera, 477

U.S. at 576 (plurality). Yet petitioner and its amici

ask this Court to upset the consensus among the circuits and rule that a preliminary injunction can never

confer prevailing-party status—all so petitioner can

avoid reimbursing plaintiffs the money it cost to hold

him accountable for his illegal policies. The Court

should reject that request. Nothing in section 1988’s

text, history, or practice supports it.

16

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

JOHN J. BURSCH

ALLYSON N. HO

ELIZABETH A. KIERNAN

TRAVIS C. BARHAM

Counsel of Record

ALLIANCE DEFENDING

JAIME R. BARRIOS

FREEDOM

440 First Street, NW, Suite 600 ANDREW R. MITCHELL

GIBSON, DUNN & CRUTCHER LLP

Washington, D.C. 20001

2001 Ross Avenue, Suite 2100

CYNTHIA FLEMING CRAWFORD

Dallas, TX 75201

(214) 698-3100

AMERICANS FOR PROSPERITY

FOUNDATION

EKiernan@gibsondunn.com

4201 Wilson Blvd., Suite 1000

Arlington, VA 22203

CHRISTINE A. BUDASOFF

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Avenue, NW

Washington, D.C. 20046

Counsel for Amici Curiae

August 12, 2024