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
__________________
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 AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION
OF VIRGINIA, AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE, THE
BUCKEYE INSTITUTE, THE GOLDWATER INSTITUTE, INSTITUTE FOR JUSTICE, PUBLIC
CITIZEN, THE RODERICK & SOLANGE MACARTHUR JUSTICE CENTER, AND THE RUTHERFORD INSTITUTE AS AMICI CURIAE
SUPPORTING RESPONDENTS
__________________
JONATHAN D. STAHL
ANDREW J. PINCUS
Mayer Brown LLP
Counsel of Record
1221 Ave. of the
Mayer Brown LLP
Americas
1999 K Street, NW
New York, NY 10020 Washington, DC 20006
(212) 506-2500
(202) 263-3000
apincus@mayerbrown.com
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES...................................... iii
INTEREST OF THE AMICI CURIAE .......................1
INTRODUCTION AND SUMMARY OF
ARGUMENT ...............................................................4
ARGUMENT ...............................................................6
A Plaintiff Who Obtains A Preliminary
Injunction Generally Will Qualify As A
Prevailing Party When The Case Ends
Without A Final Ruling On The Merits. ....................6
A. The Issue Here Arises In a Variety of
Settings In Which Circumstances
Prevent the District Court From
Making a Final Merits Decision.......................7
B. A Plaintiff Who Obtains A Preliminary
Injunction Is A Prevailing Party When
The Injunction Alters The Parties’ Legal
Relationship And Provides The Plaintiff
With Relief Sought In The Complaint. .......... 14
1. A plaintiff “prevails” when the
plaintiff wins a preliminary
injunction based on a judicial
determination that the plaintiff is
likely to succeed on the merits, even
though the case ends without a final
merits determination. ............................... 14
2. Preliminary injunctions generally
change the parties’ legal relationship
and give the plaintiff enforceable
judicial relief. ............................................. 17
ii
TABLE OF CONTENTS—continued
Page
C. Denying Fees To Plaintiffs Who Win
Preliminary Injunctions Would Burden
The Courts With Increased Litigation
And Prevent Vindication Of Crucial
Constitutional And Statutory Rights. ........... 25
CONCLUSION .......................................................... 30
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Benham v. City of Jackson,
No. 19-cv-911, 2022 WL 2033333
(S.D. Miss. June 5, 2022) ....................................... 8
Buckhannon Bd. & Care Home, Inc. v.
West Virginia Dep’t of Health &
Human Res., 532 U.S. 598 (2001) ..... 15, 16, 18-19,
........................................................21-22, 26-27, 29
Carey v. Piphus,
435 U.S. 247 (1978) .............................................. 29
Christiansburg Garment Co. v.
E.E.O.C.,
434 U.S. 412 (1978) .............................................. 23
City of Riverside v. Rivera,
477 U.S. 561 (1986) ........................................ 28, 29
Coal. for Basic Human Needs v. King,
691 F.2d 597 (1st Cir. 1982) .......................... 22, 24
Common Cause/Ga. v. Billups,
554 F.3d 1340 (11th Cir. 2009) ............................ 25
CRST Van Expedited, Inc. v. E.E.O.C.,
578 U.S. 419 (2016) .......................................... 4, 17
iv
TABLE OF AUTHORITIES—continued
Page(s)
Dahlem by Dahlem v. Bd. of Educ. of
Denver Pub. Sch.,
901 F.2d 1508 (10th Cir. 1990) ............................ 11
Davis v. City & Cnty. of San Francisco,
135 F. Supp. 3d 1053 (N.D. Cal.
2015) ..................................................................... 10
Dearmore v. City of Garland,
519 F.3d 517 (5th Cir. 2008) ................................ 24
Dupuy v. Samuels,
423 F.3d 714 (7th Cir. 2005) ................................ 24
Estiverne v. Esernio-Jenssen,
908 F. Supp. 2d 305 (E.D.N.Y. 2012) .................. 13
Fleming v. Gutierrez,
785 F.3d 442 (10th Cir. 2015) .............................. 12
Garbett v. Herbert,
458 F. Supp. 3d 1328 (D. Utah 2020) .................. 11
Haley v. Pataki,
106 F.3d 478 (2d Cir. 1997) ................................. 24
Hanrahan v. Hampton,
446 U.S. 754 (1980) .................................. 16, 18, 20
Hewitt v. Helms,
482 U.S. 755 (1987) .................................. 19, 21, 23
v
TABLE OF AUTHORITIES—continued
Page(s)
Higher Taste, Inc. v. City of Tacoma,
717 F.3d 712 (9th Cir. 2013) .................................. 8
HomeAway.com, Inc. v. City of New
York,
523 F. Supp. 3d 573 (S.D.N.Y. 2021) ..................... 8
Jersey Central Power & Light Co. v.
New Jersey,
772 F.2d 35 (3d Cir. 1985) ................................... 10
Kan. Jud. Watch v. Stout,
653 F.3d 1230 (10th Cir. 2011) ............................ 24
Maher v. Gagne,
448 U.S. 122 (1980) .............................................. 16
Memphis Cmty. Sch. Dist. v. Stachura,
477 U.S. 299 (1986) .............................................. 29
Newman v. Piggie Park Enters., Inc.,
390 U.S. 400 (1968) .............................................. 23
Pasaye v. Dzurenda,
No. 17-cv-2574, 2019 WL 2905044
(D. Nev. July 5, 2019) .......................................... 12
People Against Police Violence v. City of
Pittsburgh,
520 F.3d 226 (3d Cir. 2008) ................................. 24
vi
TABLE OF AUTHORITIES—continued
Page(s)
Planned Parenthood Sw. Ohio Region v.
Dewine,
931 F.3d 530 (6th Cir. 2019) ................................ 24
Rhodes v. Stewart,
488 U.S. 1 (1988) ............................................ 19, 20
Rogers Grp., Inc. v. City of Fayetteville,
683 F.3d 903 (8th Cir. 2012) ................................ 24
Select Milk Producers, Inc. v. Johanns,
400 F.3d 939 (D.C. Cir. 2005) ...................... 7, 8, 25
Sole v. Wyner,
551 U.S. 74 (2007) ........................... 6, 14-18, 21, 26
Starbucks Corp. v. McKinney,
144 S. Ct. 1570 (2024) .......................................... 22
Stinnie v. Holcomb,
77 F.4th 200 (4th Cir. 2023) (en
banc) ..................................................................... 24
Tennessee State Conference of NAACP v.
Hargett,
53 F.4th 406 (6th Cir. 2022) .................................. 9
Thomas v. National Science
Foundation,
330 F.3d 486 (D.C. Cir. 2003) ........................ 23, 24
Veasey v. Wilkins,
158 F. Supp. 3d 466 (E.D.N.C. 2016) .................... 9
vii
TABLE OF AUTHORITIES—continued
Page(s)
Watson v. County of Riverside,
300 F.3d 1092 (9th Cir. 2002) ........................ 12, 24
Worldwide Street Preachers’ Fellowship
v. Peterson,
388 F.3d 555 (7th Cir. 2004) ................................ 11
Yates v. United States,
574 U.S. 528 (2015) .............................................. 15
Statutes
28 U.S.C. § 1292(a)(1) ............................................... 22
42 U.S.C.
§ 1983...................................................................... 2
§ 1988................. 2-4, 6, 13-14, 18-19, 25, 27, 29-30
Miscellaneous
Samuel R. Bagenstos, Mandatory Pro
Bono and Private Attorneys General,
101 N.W. U. L. Rev. Colloquy 182
(2007) .................................................................... 28
Black’s Law Dictionary (5th rev. ed.
1979) ..................................................................... 15
Cong. Res. Serv., Awards of Attorneys’
Fees by Federal Courts and Federal
Agencies (Oct. 22, 2009) ....................................... 25
H.R. Rep. No. 94-1558 (1976).............................. 16, 29
viii
TABLE OF AUTHORITIES—continued
Page(s)
Randal S. Jeffrey, Facilitating Welfare
Rights Class Action Litigation:
Putting Damages and Attorney’s Fees
To Work, 69 Brook. L. Rev. 281
(2003) .................................................................... 28
S. Rep. No. 94-1011 (1976), reprinted in
1976 U.S.C.C.A.N. 5908....................................... 28
Carl Tobias, Rule 11 & Civil Rights
Litigation, 37 Buff. L. Rev. 485
(1989) .................................................................... 28
11A Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal
Practice & Procedure 3d § 2947
(2024) .................................................................... 22
INTEREST OF THE AMICI CURIAE
Amici are public interest organizations that litigate in federal court on behalf of plaintiffs whose constitutional or statutory rights are violated by federal,
state, and local governments.1
The American Civil Liberties Union (ACLU) is
a nationwide, nonprofit, nonpartisan organization
dedicated to the principles of liberty and equality embodied in the Constitution and our nation’s civil rights
laws. The American Civil Liberties Union of Virginia is a state affiliate of the national organization.
The ACLU and its affiliates have frequently appeared
in civil rights and civil liberties cases in this Court,
both as direct counsel and as amici curiae. As a nonprofit organization, the ACLU does not charge its clients, and is dependent upon attorney’s fees where it
prevails to support its work.
Americans United for Separation of Church
and State is a national, nonsectarian public-interest
organization that is dedicated to protecting the right
of individuals and religious communities to worship
as they see fit and to preserving the separation of
church and state as a vital component of democratic
government. Americans United files lawsuits in federal court to promote these principles and often seeks
preliminary injunctions in these cases. Americans
United does not charge its clients for its services and
regularly seeks attorney’s fees under fee-shifting statutes.
Pursuant to Rule 37.6, amici affirm that no counsel for a party
authored this brief in whole or in part and that no person other
than amici, their members, and their counsel made a monetary
contribution to its preparation or submission.
1
2
The Buckeye Institute is an independent research and educational institution—a think tank—
that formulates and promotes free-market policy in
the states. Additionally, The Buckeye Institute works
to restrain governmental overreach at all levels of government. In fulfillment of that purpose, The Buckeye
Institute files lawsuits and submits amicus briefs.
The Buckeye Institute is a nonpartisan, nonprofit,
tax-exempt organization, as defined by Internal Revenue Code § 501(c)(3). As it pertains to this case, The
Buckeye Institute supports the fee shifting statutes
that encourage lawyers and their clients to take legal
action to vindicate important constitutional and statutory rights.
The Goldwater Institute was established in
1988 as a nonpartisan public policy and research foundation dedicated to advancing the principles of limited
government, economic freedom, and individual liberty
through litigation, research papers, editorials, policy
briefings, and forums. Through its Scharf-Norton
Center for Constitutional Litigation, the Institute litigates and files amicus briefs when its or its clients’
objectives are implicated. This includes providing pro
bono representation and filing public interest cases in
federal court, where it may seek attorney fees under
42 U.S.C. § 1988.
The Institute for Justice (IJ) is a nonprofit,
public interest law firm that litigates for individuals’
constitutional rights. IJ sues governmental bodies on
behalf of its clients pursuant to 42 U.S.C. § 1983 and
recovers fees pursuant to 42 U.S.C. § 1988. Fee-shifting mitigates IJ’s cost of bringing claims, which can
include significant expenditures involved in obtaining
preliminary injunctions, including hearings, testimony, briefing, and argument. IJ also often deals
3
with defendants who violate constitutional rights for
as long as possible while avoiding paying attorney’s
fees. IJ has a substantial interest in this Court affirming the ruling below.
Public Citizen is a nonprofit consumer advocacy
organization with members in all 50 states. Public
Citizen appears before Congress, administrative
agencies, and courts on a wide range of issues, and
works for the enactment and enforcement of laws protecting consumers, workers, and the public. Reflecting its longstanding interest in preserving access to
the courts in civil litigation, Public Citizen has filed
many briefs in this Court and the lower courts addressing issues arising under civil rights statutes.
Public Citizen submits this brief because it believes
that a plaintiff’s eligibility for attorney’s fees under 42
U.S.C. § 1988 plays a critical role in securing civil
rights.
The Roderick & Solange MacArthur Justice
Center (MJC) is a public interest law firm founded in
1985 by the family of J. Roderick MacArthur to advocate for human rights and social justice through litigation. MJC attorneys have played a key role in important civil rights battles, and understand the meaningful role that preliminary injunctions play in litigation.
Indeed, MJC has obtained numerous
preliminary injunctions in its cases, and the availability of attorney’s fees is what allows MJC to continue
its important work.
The Rutherford Institute is a nonprofit civil
liberties organization headquartered in Charlottesville, Virginia. Founded in 1982 by its President, John W. Whitehead, the Institute provides legal
assistance at no charge to individuals whose constitutional rights have been threatened or violated and
4
educates the public about constitutional and human
rights issues affecting their freedoms.
INTRODUCTION AND
SUMMARY OF ARGUMENT
Amici frequently find themselves on opposite
sides of cases involving the interpretation of the Constitution and federal statutes. But they agree on the
proper resolution of the question presented here: attorney’s fees are available under 42 U.S.C. § 1988 to
plaintiffs who prevail in litigation by obtaining a preliminary injunction when that injunction materially
alters the legal relationship between the parties, provides the plaintiff with court-ordered relief sought in
the complaint, and is never reversed on the merits.
Amici also agree that precluding fees in that situation would dramatically narrow current law, burden
the federal courts with lengthier and more costly litigation designed solely to establish a right to fees, and
significantly chill the enforcement of constitutional
and statutory rights.
This Court has identified two factors that determine whether a plaintiff’s success in litigation confers
prevailing party status, permitting an award of attorney’s fees. First, the relief obtained by the plaintiff
must change the legal relationship between the parties. Second, the plaintiff must obtain enforceable judicial relief. CRST Van Expedited, Inc. v. E.E.O.C.,
578 U.S. 419, 422 (2016). Preliminary injunctions often satisfy both criteria.
In a variety of situations, a district court issues a
preliminary injunction granting relief to the plaintiff
but the case ends without a final judgment on the merits. For example, a defendant that loses at the preliminary injunction stage may capitulate by adopting
5
new regulations or practices that moot the case or
eliminate the plaintiff’s need to proceed. Here, for example, after the state legislature changed the law in
response to the preliminary injunction, the case was
dismissed as moot—on petitioner’s own motion and
over respondents’ objection—foreclosing respondents’
ability to obtain a final judgment on the merits. A
preliminary injunction may also vindicate the plaintiff’s claim with respect to a one-time event—such as
a parade or meeting—and the case may end because
the plaintiff obtained all of the relief sought. Likewise, intervening factors—including just the passage
of time—may moot a case after the issuance of a preliminary injunction but before the case is finally adjudicated.
In these situations, fees should be available to the
plaintiff who obtained a preliminary injunction. The
preliminary injunction awards judicially enforceable
relief that changes the parties’ legal relationship
while it is in effect, and the preliminary injunction,
and underlying judicial determinations, are never reversed on the merits.
Awarding fees for a preliminary injunction in
these circumstances is consistent with the ordinary
meaning of “prevailing party,” promotes efficient resolution of claims, and avoids perverse incentives to
continue litigation solely to recover fees. Moreover,
Congress intended fee-shifting to create incentives for
attorneys to represent plaintiffs in cases vindicating
important constitutional and statutory rights. Many
such plaintiffs are represented by solo and small-firm
practitioners and by public interest law firms, all of
whom rely, at least in part, on fee-shifting to be able
to provide or supplement their ability to provide representation in these cases. Categorically denying fees
6
to those who prevail at the preliminary injunction
stage would dramatically undermine Congress’s purpose and run counter to the statute’s plain meaning.
ARGUMENT
A Plaintiff Who Obtains A Preliminary Injunction Generally Will Qualify As A Prevailing
Party When The Case Ends Without A Final Ruling On The Merits.
In Sole v. Wyner, 551 U.S. 74 (2007), this Court
held that a plaintiff who loses a case on the merits
cannot qualify as a “prevailing party,” even if the
plaintiff obtained a preliminary injunction earlier in
the case. Id. at 86. But Sole left open the question
whether “in the absence of a final decision on the merits of a claim for permanent injunctive relief, success
in gaining a preliminary injunction may sometimes
warrant an award of counsel fees.” Ibid.
This case requires the Court to address that question. The Court should hold that a plaintiff who obtained a preliminary injunction is a “prevailing party”
entitled to attorney’s fees when that injunction materially alters the legal relationship between the parties
by providing the plaintiff with some of the relief
sought in the complaint and is not reversed on the
merits.
We first explain the varied factual settings in
which this issue can, and does, arise. We then demonstrate that the text of Section 1988 and this Court’s
precedents make clear that a plaintiff typically “prevail[s]” when the plaintiff obtains a preliminary injunction that provides specific relief requested in the
complaint and is not reversed on final judgment. Finally, we discuss the greatly diminished incentives for
enforcement of constitutional and statutory rights,
7
and the increased litigation burden on the federal
courts, that would result from barring awards of attorney’s fees in these situations.
A. The Issue Here Arises In a Variety of Settings In Which Circumstances Prevent
the District Court From Making a Final
Merits Decision.
In many cases brought to vindicate constitutional
and statutory rights, the dispute can end following entry of a preliminary injunction in the plaintiff’s favor—without a final judgment on the merits. In these
cases, the plaintiffs have prevailed by obtaining courtordered relief sought in the complaint that materially
altered the legal relationship of the parties. They
therefore qualify as “prevailing parties.”
1. The defendant capitulates. Defendants
that lose at the preliminary injunction stage often reassess the strength of their position and choose to
cease the challenged conduct rather than continue litigating. That action may moot the case; or, as a practical matter, it may eliminate any need for the plaintiff to proceed with the litigation. In such cases, the
plaintiffs clearly “prevailed” because they obtained relief sought in their complaint as a result of a judicial
decision in their favor.
For example, in Select Milk Producers, Inc. v. Johanns, 400 F.3d 939 (D.C. Cir. 2005), milk marketing
cooperatives obtained a preliminary injunction prohibiting implementation of a new price regulation.
Before final adjudication, the defendant withdrew the
challenged rule, rendering the case moot. The D.C.
Circuit held that the plaintiffs were prevailing parties
entitled to attorney’s fees because the “preliminary injunction effected a substantial change in the legal
8
relationship between the parties and provided plaintiffs with concrete and irreversible relief.” Id. at 946.
In Benham v. City of Jackson, No. 19-cv-911, 2022
WL 2033333 (S.D. Miss. June 5, 2022), the plaintiff
challenged a city ordinance that outlawed protesting
activities near health care facilities. The district court
granted a preliminary injunction and enjoined the ordinance. Before final adjudication, however, the defendant repealed the challenged ordinance, and the
case became moot.
In HomeAway.com, Inc. v. City of New York, 523
F. Supp. 3d 573 (S.D.N.Y. 2021), an online home-sharing platform challenged under the Fourth Amendment a city ordinance that required the platform to
produce data about its users to the city. The district
court issued a preliminary injunction, and the city
subsequently repealed the ordinance. The district
court dismissed the case as moot but awarded attorney’s fees to the plaintiff as the “prevailing party.”
And in Higher Taste, Inc. v. City of Tacoma, 717
F.3d 712 (9th Cir. 2013), the plaintiff was a non-profit
religious organization that sought to sell apparel near
a public zoo “adorned with messages related to its
spiritual mission.” Id. at 714. The city adopted an
ordinance that banned the organization from selling
apparel near zoo grounds. The district court granted
a preliminary injunction enjoining the ordinance. Before final adjudication, the city capitulated and executed a settlement agreement with the plaintiff in
which the city agreed to allow the plaintiff to sell its
apparel near the public zoo, mooting the case. The
court of appeals affirmed an award of attorney’s fees
to the plaintiff because the preliminary injunction
provided the plaintiff with the relief it sought: the
ability to sell apparel near the public zoo.
9
Similarly, a state may capitulate by repealing a
law after a court preliminarily enjoins state officials
from enforcing that law but before the court issues a
final judgment—as Virginia did here. Thus, in Tennessee State Conference of NAACP v. Hargett, 53 F.4th
406 (6th Cir. 2022), cert. denied, 143 S. Ct. 2609
(2023), the plaintiffs brought suit against state election officials and the district court issued a preliminary injunction prohibiting those officials from enforcing a statute that imposed requirements on voter-registration activities. Following the issuance of the preliminary injunction, the state legislature repealed the
challenged law “so as to render the case moot.” Id. at
411. But “as a result of the preliminary injunction in
[that] case, plaintiffs were able to conduct voter-registration drives for seven months during the run-up to
the 2020 election, unburdened by the requirements of”
the challenged statute. Id. at 410-411.
And in Veasey v. Wilkins, 158 F. Supp. 3d 466
(E.D.N.C. 2016), the plaintiff obtained a preliminary
injunction prohibiting a county sheriff from enforcing
against lawful permanent residents a state law that
required applicants to demonstrate American citizenship in order to obtain a concealed carry permit. The
plaintiff then applied for and obtained a concealed
carry permit from the county sheriff. Thereafter, the
state legislature repealed the challenged statute, and
the district court subsequently dismissed the case as
moot. But the plaintiff had successfully obtained
through litigation the desired relief: to have the
county sheriff assess her application for a concealed
carry permit without conditioning approval on a citizenship requirement.
2. Plaintiffs seek relief for a one-time event.
Plaintiffs often file suit seeking judicial relief with
10
respect to a specific event that requires an injunction
on an expedited basis. For example, a student may
seek to require a school to permit a religious group to
meet or to prevent a school-sponsored prayer at a public-school graduation; or citizens may seek a permit to
gather to protest current events. The plaintiff may
learn that a defendant plans to prevent the planned
activity only a short time before the event is scheduled
to occur. In such a case the preliminary injunction
ruling fully determines the plaintiff’s rights—there is
no time for a trial or summary judgment proceeding.
And once the event has taken place, the case is often
moot or neither party may have an ongoing interest in
pressing it forward.
For example, in Jersey Central Power & Light Co.
v. New Jersey, 772 F.2d 35 (3d Cir. 1985), a public utility sought a preliminary injunction after being denied
permission to ship nuclear fuel through New Jersey.
The district court found that the state had violated the
Hazardous Materials Transportation Act and granted
the utility a preliminary injunction, allowing the shipment to go forward. At that point, “[t]he offending conduct and thus the case for a[] [permanent] injunction
dissolved with the subsequent completion of this
unique shipment.” Id. at 40. The public utility secured the entire relief sought through the preliminary
injunction: the ability to ship the nuclear fuel.
A similar situation occurs when an organization
seeks a preliminary injunction to obtain a permit for
a demonstration. In Davis v. City & County of San
Francisco, 135 F. Supp. 3d 1053 (N.D. Cal. 2015), for
instance, the plaintiffs won a preliminary injunction
requiring the city to issue a previously denied parade
permit. Following the event, the parties voluntarily
dismissed the case.
11
Likewise, in Worldwide Street Preachers’ Fellowship v. Peterson, 388 F.3d 555 (7th Cir. 2004), a religious organization obtained a preliminary injunction
preventing a municipality from restricting its preaching activities during a then-upcoming parade. Once
the parade was over, the suit no longer presented a
live controversy and was dismissed as moot. Again,
the injunction changed the plaintiff organization’s
members’ legal relationship vis-à-vis the municipality
by allowing them to preach at the parade. Once they
had done so, further relief was unnecessary. The
plaintiff had “prevailed.”
A plaintiff may also seek time-limited preliminary
injunctive relief in the run-up to an election. In Garbett v. Herbert, 458 F. Supp. 3d 1328 (D. Utah 2020),
the plaintiff, a candidate seeking her party’s nomination for Utah’s 2020 gubernatorial election, obtained
a preliminary injunction—“[o]nly as to [the plaintiff]
and only for the current election cycle”—that reduced
the number of signatures needed to appear on the primary ballot. Id. at 1353. The district court dismissed
the case as moot after the 2020 election.
3. Changed circumstances resulting from
the passage of time. A preliminary injunction may
remain in effect until the passage of time, or a change
in factual circumstances, either moots the case or renders permanent injunctive relief unnecessary.
For example, a case brought by a student plaintiff
may become moot when the student graduates. In
Dahlem by Dahlem v. Board of Education of Denver
Public Schools, 901 F.2d 1508 (10th Cir. 1990), the
plaintiff obtained a preliminary injunction that ordered the board of education to allow him to play on
his high school’s gymnastics team. The board of education appealed the preliminary injunction, but
12
during the pendency of the appeal, the gymnastics
season ended, and the plaintiff graduated. Although
the case became moot, the district court had granted
the plaintiff all the relief that he sought in his lawsuit.
Other intervening factors may have a similar effect. In Fleming v. Gutierrez, 785 F.3d 442 (10th Cir.
2015), the plaintiffs obtained a preliminary injunction
that required the county to increase the number of
voter centers and voting machines during the 2014
election. The county appealed, but the Tenth Circuit
dismissed the case as moot because “the issues raised
by the grant of the preliminary injunction ha[d] been
mooted by the passage of the 2014 election.” Id. at
443. The preliminary injunction had provided the
plaintiffs with all the relief that they sought: the 2014
election “went off without a hitch.” Ibid.
In Watson v. County of Riverside, 300 F.3d 1092
(9th Cir. 2002), the plaintiff police officer was ordered
to write a report about an incident in which he was
accused of using excessive force. He requested a consultation with an attorney prior to writing the report,
but his request was denied, and he was subsequently
fired. The officer filed suit and obtained a preliminary
injunction to prevent the county from using his report
during the administrative appeal of his termination.
Ibid. Nearly two years later, the district court dismissed his claims for damages, and, because the administrative process had long since concluded, the
court held that the claim for permanent injunctive relief was moot. Nevertheless, the preliminary injunction provided the entire injunctive relief the plaintiff
sought: his report had been excluded from the administrative proceeding.
In Pasaye v. Dzurenda, No. 17-cv-2574, 2019 WL
2905044 (D. Nev. July 5, 2019), the plaintiff was
13
incarcerated and obtained a preliminary injunction
compelling prison officials to allow him to participate
in Native American religious ceremonies. Later, the
plaintiff was released on parole. The district court
then dissolved the preliminary injunction as moot.
The preliminary injunction, however, had allowed the
plaintiff to participate in those ceremonies until the
last day he was incarcerated.
And in Estiverne v. Esernio-Jenssen, 908 F. Supp.
2d 305 (E.D.N.Y. 2012), the plaintiff sued state officials, alleging that they violated her due process
rights by failing to provide her with a “name-clearing
hearing” concerning a complaint of child abuse in advance of a prospective employer’s inquiry. Id. at 308.
The plaintiff successfully moved for a preliminary injunction requiring the defendants to hold the hearing.
After the hearing, the state agency concluded that the
allegation of child abuse was unfounded and sealed
the report of abuse. Although the district court then
dismissed the action as moot, the preliminary injunction provided the relief sought: a name-clearing hearing in advance of an employer inquiry.
*
*
*
In each of these situations, the preliminary injunction gave the plaintiffs relief sought in the complaint that materially altered the legal relationship of
the parties—and permanent relief was not necessary
because the dispute between the parties ended after
the preliminary injunction issued. By obtaining judicial relief never reversed on the merits, these plaintiffs “prevailed” and therefore qualified for attorney’s
fees under Section 1988.
14
B. A Plaintiff Who Obtains A Preliminary
Injunction Is A Prevailing Party When
The Injunction Alters The Parties’ Legal
Relationship And Provides The Plaintiff
With Relief Sought In The Complaint.
“The 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.” Sole, 551 U.S. at 82 (citation
omitted). Preliminary injunctions generally do just
that: they provide the plaintiff with meaningful, concrete, judicially enforceable relief that changes the
parties’ legal relationship.
That a case ends without a final judgment on the
merits for either party does not alter the reality that
the plaintiff “prevailed.” The preliminary injunction
still effected a change in the parties’ relationship that,
in virtually every case, will have provided the plaintiff
with some of the relief sought in the complaint. And
that judicial determination was not negated by a subsequent adverse court decision. The plaintiff should
therefore be eligible for a fee award.
1. A plaintiff “prevails” when the plaintiff wins a preliminary injunction
based on a judicial determination
that the plaintiff is likely to succeed
on the merits, even though the case
ends without a final merits determination.
Section 1988 authorizes awards of attorney’s fees
to a “prevailing party.” Respondents here and similarly situated plaintiffs are “prevailing parties” under
the plain meaning of those words.
15
As respondents explain, “prevail[]” in ordinary
parlance means “to succeed.” Resp. Br. 15 (citing dictionary definitions). A plaintiff who has been awarded
judicial relief based on a likely-to-prevail determination that is never reversed has certainly “succeeded.”
Petitioner and the Solicitor General seek to avoid
that obvious conclusion by pointing to legal definitions
that suggest a specialized, narrower meaning of that
term. Pet. Br. 16-18; U.S. Br. 12-13. But they fail to
acknowledge other definitions from legal dictionaries
that define “prevailing party” far more broadly, including as one “who successfully prosecutes the action
or successfully defends against it, prevailing on the
main issue, even though not necessarily to the extent of
his original contention.” Black’s Law Dictionary (5th
rev. ed. 1979) (emphasis added); see also ibid. (“The
party ultimately prevailing when the matter is finally
set at rest.”). That definition plainly encompasses
cases like this one, in which a plaintiff obtains significant relief sought in the complaint but, because the
defendant moved to dismiss the case for mootness, the
plaintiff could not pursue the case to final judgment.
In any event, “although dictionary definitions of ”
words in a statute “bear consideration,” they often are
“not dispositive of the meaning” of those words. Yates
v. United States, 574 U.S. 528, 538 (2015). That is
particularly true when, as here, this Court’s decisions
define the term differently. Sole, 551 U.S. at 82; see
Buckhannon Bd. & Care Home, Inc. v. West Virginia
Dep’t of Health & Human Res., 532 U.S. 598, 616
(2001) (Scalia, J., concurring) (discussing cases in
which this Court “rejected Black’s definition” of a term
“because it conflicted with our precedent.”).
The Court has explained that the “touchstone of
the prevailing party inquiry” is “the material
16
alteration of the legal relationship of the parties in a
manner which Congress sought to promote in the fee
statute.” Sole, 551 U.S. at 82 (citation omitted).
Plaintiffs who secure a preliminary injunction virtually always satisfy that test: they have prevailed on
their claim for preliminary relief and obtained a court
order that altered the legal relationship of the parties,
albeit not a final ruling on the merits. And that success has not been negated by a subsequent adverse
merits ruling.
Importantly, this Court has already made clear
that a plaintiff may be a “‘prevailing party’ without
having obtained a favorable ‘final judgment following
a full trial on the merits.’” Hanrahan v. Hampton, 446
U.S. 754, 756-757 (1980) (quoting H.R. Rep. No. 941558, at 7 (1976)). Thus, a consent decree—which, by
definition, is not a judicial determination of the merits
of a plaintiff’s claim—makes the plaintiff a “prevailing
party” eligible for a fee award. See Maher v. Gagne,
448 U.S. 122, 129-130 (1980); see also Buckhannon,
532 U.S. at 604. These precedents foreclose petitioner’s attempt to add the additional requirement
that a plaintiff must obtain a final merits determination in order to qualify as a prevailing party. See Pet.
Br. 15-32.
Petitioner relies on this Court’s decision in Buckhannon, but the Court’s reasoning there supports respondents. The Court held that a plaintiff challenging
a state law did not qualify as a prevailing party when
the state legislature repealed the law after the plaintiff filed its complaint. Buckhannon, 532 U.S. at 600602. Critically, the law was repealed without the
plaintiff obtaining a preliminary injunction or any
comparable judicially ordered relief based on a finding
that the plaintiff was likely to succeed on the merits.
17
Id. at 601. Here, by contrast, respondents did “prevail”—they won significant relief from the court. And
that victory was not negated by a subsequent adverse
court decision. Rather, the case ended on mootness
grounds.
Finally, the situation here—where the preliminary injunction is terminated because the litigation
ends without a merits decision—is fundamentally different from Sole, where the district court ultimately
ruled for the defendants. 551 U.S. at 80. In the latter
situation, the plaintiff’s preliminary victory is overturned and final judgment is entered for the defendant. A plaintiff that loses a case has not “prevailed.”
But where the preliminary injunction is not overturned on the merits and the case ends because it is
moot, no subsequent ruling has negated the plaintiff’s
victory. Because the court’s only grant of relief was to
the plaintiff, the plaintiff “prevailed.”
This Court therefore should hold that a plaintiff
“prevails” when the plaintiff wins a preliminary injunction with a judicial finding that the plaintiff is
likely to succeed on the merits that is never reversed,
even when the case is dismissed before final judgment.
2. Preliminary injunctions generally
change the parties’ legal relationship
and give the plaintiff enforceable judicial relief.
To be fee-eligible, the plaintiff’s success must also
change the legal relationship between the parties and
provide the plaintiff with enforceable judicial relief.
See CRST Van Expedited, Inc. v. E.E.O.C., 578 U.S.
419, 422 (2016).
18
Some litigation victories—such as securing a favorable ruling on a discovery issue or defeating a motion to dismiss—do not satisfy those requirements because they fail to alter the legal relationship between
the parties or to provide the plaintiff with judicially
enforceable relief sought in the complaint. See Hanrahan, 446 U.S. at 758-759. By contrast, preliminary
injunctions generally alter the legal relationship between the parties and provide judicially enforceable
relief. They therefore provide a proper basis for
awards of attorney’s fees, unless they are subsequently reversed on the merits.
a. Altering the parties’ legal relationship. To
qualify as a prevailing party, a plaintiff must obtain a
“material alteration of the legal relationship of the
parties in a manner which Congress sought to promote in the fee statute.” Sole, 551 U.S. at 82 (citation
omitted). Concurring in Buckhannon, Justice Scalia
explained that the Court’s holding in that case focused
on this alteration of the parties’ legal relationship:
The Court today concludes that a party cannot
be deemed to have prevailed, for purposes of
fee-shifting statutes such as 42 U.S.C.
[§ 1988], unless there has been an enforceable
“alteration of the legal relationship of the parties.” That is the normal meaning of “prevailing party” in litigation, and there is no proper
basis for departing from that normal meaning.
532 U.S. at 622 (Scalia, J., concurring).
To determine whether a judicial order alters the
relationship between the parties, this Court has instructed courts to examine the order’s effect:
In all civil litigation, the judicial decree is not
the end but the means. At the end of the
19
rainbow lies not a judgment, but some action
(or cessation of action) by the defendant that
the judgment produces—the payment of damages, or some specific performance, or the termination of some conduct. Redress is sought
through the court, but from the defendant. * * * The real value of the judicial pronouncement—what makes it a proper judicial
resolution of a “case or controversy” rather
than an advisory opinion—is in the settling of
some dispute which affects the behavior of the
defendant towards the plaintiff.
Hewitt v. Helms, 482 U.S. 755, 761 (1987).
Preliminary injunctions satisfy this standard
when the award of preliminary relief is not negated by
a subsequent reversal on the merits. Preliminary injunctions allow plaintiffs to take some action that they
otherwise could not take, or preclude defendants from
taking some action that they otherwise would take.
And because the injunction is issued by a judge, it carries the “judicial imprimatur” required by Buckhannon. 532 U.S. at 605. A plaintiff who obtains a preliminary injunction does not leave “the courthouse
emptyhanded.” Id. at 614 (Scalia, J., concurring).
To be sure, there can be rare situations in which
an injunction does not alter the legal relationship between the parties. In Rhodes v. Stewart, 488 U.S. 1
(1988), for instance, two prisoners sought injunctive
relief claiming that they had a constitutional right to
a particular magazine subscription. The district court
ultimately
granted
some
relief—“order[ing]
compliance” with “the proper procedural and
substantive standards.” Id. at 2. At the time that the
district court issued its order, however, it was not
aware that one of the plaintiffs had died and that the
20
other had been released from prison. Id. at 3. In light
of those facts, this Court denied a request for attorney’s fees, explaining that the district court’s order
failed to “affect[] the behavior of the defendant towards the plaintiff[s].” Id. at 4 (quoting Hewitt, 482
U.S. at 761).
Hanrahan, on which petitioner and the Solicitor
General rely, did not address preliminary injunctions.
The district court in Hanrahan had directed a verdict
for the defendants, but the court of appeals reversed
and remanded, allowing the case to proceed. 446 U.S.
at 755. The court of appeals awarded attorney’s fees
to the plaintiffs. Ibid. But because reversal of the directed verdict did not alter the legal relationship between the parties, this Court reversed the fee award.
Id. at 758-759. By contrast, a preliminary injunction
generally does alter the legal relationship between the
parties.
Finally, petitioner argues that a plaintiff who obtains a preliminary injunction is not “prevailing” because the relief is not “enduring” when the case ends
without issuance of a permanent injunction. Pet. Br.
33. But the judicial relief “endures” while the case
lasts and only ends because there is no longer a live
dispute to be addressed by continuing the injunctive
relief. That is particularly true here, because it is petitioner that ensured that the district court’s preliminary injunction could never be reversed by moving to
dismiss the case as moot—over the objection of respondents, who wished to proceed to trial on the merits.
Petitioner attempts to ground his argument in
Sole, but the cases are fundamentally different: The
preliminary injunction in Sole was reversed, and
therefore the plaintiffs did not prevail. In holding that
21
the plaintiffs there were not “prevailing parties,” this
Court explained that the plaintiffs’ “initial victory was
ephemeral” and not “enduring” because “[a]t the end
of the fray”—that is, after the district court ultimately
rejected the plaintiffs’ claims and entered final judgment on the merits in favor of the defendants—the
challenged law “remained intact.” Sole, 551 U.S. at
86.
When a case ends because, sometime after entry
of a preliminary injunction, there is no longer a live
dispute between the parties, the plaintiff has benefitted from a change in the legal relationship of the parties that was ordered, and not thereafter undone, by
the court. Indeed, as was the case here, the only reason many plaintiffs do not have the opportunity to obtain a final judgment is because defendants cut off the
plaintiffs’ ability to do so. As the Fourth Circuit put
it, “the plaintiff’s victory is now sure to be enduring,
as there is no longer any risk that the court-ordered
relief will lose its judicial imprimatur.” Pet. App. 35a
(footnote omitted).
b. Court-ordered relief sought in the complaint. In addition to altering the legal relationship
between the parties, a plaintiff, to be eligible for fees
as a prevailing party, must obtain some of the relief
sought in the complaint from a court that is never reversed on the merits. “[R]espect for ordinary language
requires that a plaintiff receive at least some relief on
the merits of his claim before he can be said to prevail.” Buckhannon, 532 U.S. at 603-604 (quoting
Hewitt, 482 U.S. at 760).
Thus, in Hewitt, the plaintiff who had obtained a
judicial statement that his rights were violated, but
had not obtained either injunctive relief or damages,
was not a prevailing party. 482 U.S. at 760; see also
22
Coal. for Basic Human Needs v. King, 691 F.2d 597,
600 (1st Cir. 1982) (Breyer, J.) (“The requirement that
the legal success ‘achieve some of the benefit the parties sought’ merely distinguishes cases in which plaintiffs obtain some substantive relief from those in
which the ‘victories’ are purely procedural.”).
Preliminary injunctions—like the injunction
here—generally provide the plaintiff with some concrete relief sought in the complaint. They also qualify
as enforceable, judicial relief: “[A] preliminary injunction has all of the force of a permanent injunction during its period of effectiveness. * * * [T]he sanctions of
civil and criminal contempt * * * are available to punish any violation of a preliminary injunction.” 11A
Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, Federal Practice & Procedure 3d § 2947 (2024).
Indeed, Congress has recognized the significant
effect of preliminary injunctions by authorizing
interlocutory appeals as of right from a district court’s
decision granting or denying a preliminary injunction.
28 U.S.C. § 1292(a)(1). And to grant a preliminary injunction, a court must conclude that the plaintiff
made a “clear showing that he is likely to succeed on
the merits.” Starbucks Corp. v. McKinney, 144 S. Ct.
1570, 1576 (2024) (citation and internal quotation
marks omitted).
The relief provided by preliminary injunctions is
therefore categorically different from the “catalyst”
scenario rejected in Buckhannon. As noted, the state
legislature there repealed the challenged law before
the district court granted the plaintiff any relief
sought in the complaint based on a finding that the
plaintiff was likely to succeed on the merits. Buckhannon, 532 U.S. at 601-602. This Court declined to
apply the term “prevailing party” “to a plaintiff who,
23
by simply filing a nonfrivolous but nonetheless potentially meritless lawsuit (it will never be determined),
has reached the ‘sought-after destination’ without obtaining any judicial relief.” Id. at 605-606. By contrast, what changed petitioner’s behavior here was
not the filing of a lawsuit, but a judicial decision.
Likewise, a defendant who defeats a plaintiff’s motion for a preliminary injunction does not obtain any
judicially enforceable relief. The Solicitor General’s
observations that a defendant in such a case is not eligible for attorney’s fees, see U.S. Br. 9, 20, thus has
no bearing on the eligibility of a plaintiff that successfully obtained a preliminary injunction that does provide the plaintiff with court-ordered relief sought in
the complaint.
Moreover, any asymmetries in the availability of
attorney’s fees to plaintiffs and defendants reflect
Congress’s intent to encourage plaintiffs to “vindicat[e] a policy that Congress considered of the highest
priority” and ensure that plaintiffs are not disincentivized from “advanc[ing] the public interest by invoking the injunctive powers of the federal courts.” Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402
(1968); see Christiansburg Garment Co. v. E.E.O.C.,
434 U.S. 412, 419-422 (1978).
Of course, some preliminary injunctions may not
provide judicial relief “towards the plaintiff.” Hewitt,
482 U.S. at 761. For example, in Thomas v. National
Science Foundation, 330 F.3d 486 (D.C. Cir. 2003), the
plaintiff claimed that an agreement between the National Science Foundation and a private contractor regarding Internet domain registration fees constituted
an illegal tax because it had not been approved by
Congress. The plaintiffs sought restitution of the fees,
which were deposited into a fund to pay for future
24
projects relating to the Internet. Id. at 488. The district court issued a preliminary injunction temporarily preventing the defendants from spending any
money from the fund. Ibid. Ultimately, Congress
passed legislation ratifying the fee system, which
mooted the case. Although the plaintiffs obtained a
preliminary injunction, the D.C. Circuit denied a request for attorney’s fees because the injunction did not
“afford[] appellees the relief they sought in their lawsuit.” Id. at 493. The plaintiffs’ complaint sought restitution, but the injunction did no more than temporarily freeze the fund.
A district court that issues preliminary relief will
have no trouble distinguishing these sorts of orders
from the vast majority of preliminary injunctions that
grant plaintiffs some of the relief sought in the complaint.
*
*
*
The courts of appeals have uniformly held that obtaining a preliminary injunction may make a plaintiff
a “prevailing party” for purposes of fee-shifting—even
when the case does not end with a judgment on the
merits, as long as the preliminary injunction is not reversed on the merits. See, e.g., Coal. For Basic Human Needs v. King, supra; Haley v. Pataki, 106 F.3d
478 (2d Cir. 1997); People Against Police Violence v.
City of Pittsburgh, 520 F.3d 226 (3d Cir. 2008); Stinnie
v. Holcomb, 77 F.4th 200 (4th Cir. 2023) (en banc);
Dearmore v. City of Garland, 519 F.3d 517 (5th Cir.
2008); Planned Parenthood Sw. Ohio Region v.
Dewine, 931 F.3d 530 (6th Cir. 2019); Dupuy v. Samuels, 423 F.3d 714 (7th Cir. 2005); Rogers Grp., Inc. v.
City of Fayetteville, 683 F.3d 903 (8th Cir. 2012); Watson v. County of Riverside, 300 F.3d 1092 (9th Cir.
2002); Kan. Jud. Watch v. Stout, 653 F.3d 1230 (10th
25
Cir. 2011); Common Cause/Ga. v. Billups, 554 F.3d
1340 (11th Cir. 2009); Select Milk Producers, Inc. v.
Johanns, 400 F.3d 939 (D.C. Cir. 2005).
There is a reason for that—it is the correct interpretation of the statute. This Court should agree, and
hold that when a plaintiff wins a preliminary injunction providing court-ordered relief sought in the complaint that changes the parties’ legal relationship, and
the case ends without a final judgment on the merits,
the plaintiff qualifies as a “prevailing party” entitled
to attorney’s fees.
C. Denying Fees To Plaintiffs Who Win Preliminary Injunctions Would Burden The
Courts With Increased Litigation And
Prevent Vindication Of Crucial Constitutional And Statutory Rights.
Recognizing that plaintiffs who obtain preliminary injunctions are eligible for attorney’s fees not
only gives force to the ordinary meaning of “prevailing
party.” It also promotes judicial economy and effectuates Congress’s goal of creating incentives for attorneys to represent individuals seeking to vindicate constitutional and statutory rights.
Holding preliminary injunctions categorically insufficient to justify a fee award, on the other hand,
would burden the federal courts with lengthier and
more expensive litigation as well as substantially undermine the congressional determinations embodied
in 42 U.S.C. § 1988 and other federal fee-shifting statutes.2 And such a ruling would undermine the
2 Congress has enacted the “prevailing party” standard in many
other fee-shifting provisions. See generally Cong. Res. Serv.,
Awards of Attorneys’ Fees by Federal Courts and Federal Agencies 57-117 (Oct. 22, 2009), https://bit.ly/3yeKwm7.
26
incentives created by Congress to encourage legal representation of people whose rights are violated. Cf.
Sole, 551 U.S. at 82 (courts should be guided by the
outcomes that “Congress sought to promote in the fee
statute” when undertaking the “prevailing party inquiry” (citation omitted)).
1. The unanimous view of the courts of appeals—
that plaintiffs who obtain preliminary injunctions
may be eligible for attorney’s fees as “prevailing parties” in appropriate cases—provides incentives to resolve constitutional and statutory claims efficiently.
The rule advocated by petitioner, by contrast, would
produce substantial additional burdens on the already-strained resources of the federal courts.
Under petitioner’s approach, a plaintiff who wins
a preliminary injunction would be incentivized to pursue a claim for nominal damages simply to obtain attorney’s fees. And plaintiffs would have incentives to
refuse to stipulate to dismissals on mootness grounds
to ensure that their entitlement to fees is not stripped
away, which would produce additional (and often complex) follow-on motions practice about whether there
is a reasonable likelihood that the challenged conduct
will recur.
Not only would this approach waste judicial resources by producing scores of “second major litigation[s],” Buckhannon, 532 U.S. at 609 (citation omitted), but the legal fees of all parties would inevitably
increase while they are litigating nominal damages or
mootness. Ruling that preliminary injunctions are
fee-eligible, by contrast, removes any incentive to continue litigating a case in which the legal issue has
been effectively resolved, thereby decreasing the burden on the courts and the costs to parties.
27
Moreover, preliminary injunctions themselves are
judicially efficient. They are typically decided at the
outset of a lawsuit, at which point both sides have expended relatively little time and few resources on the
case. Accordingly, fees incurred in connection with
preliminary injunctions necessarily will be lower than
fees incurred if the litigation must be pressed through
final judgment.
Finally, allowing fees for preliminary injunctions
encourages defendants to settle before a court adjudicates the preliminary injunction. As this court held in
Buckhannon, a plaintiff is not fee-eligible if a defendant voluntarily changes its behavior following the filing of a lawsuit but before the court grants any relief
based on a finding that a plaintiff is likely to succeed
on the merits. When a defendant believes that the
plaintiff is likely to prevail on a preliminary-injunction motion, therefore, the defendant will have an incentive to resolve the dispute before the court issues a
preliminary injunction—in order to avoid liability for
fees if the plaintiff wins the preliminary injunction
and the defendant then capitulates.
If, however, fees are no longer available based on
the issuance of a preliminary injunction, defendants
have every reason to take “one free shot” at litigating
the preliminary injunction: they can capitulate following entry of the preliminary injunction and still avoid
liability for fees. As a result, courts will be burdened
by more contested preliminary injunction actions—
even in cases in which the defendant’s chances of winning are remote.
2. “Congress enacted § 1988 specifically to enable
plaintiffs to enforce the civil rights laws even where
the amount of damages at stake would not otherwise
make it feasible for them to do so: * * * ‘If private
28
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.’” City of Riverside v. Rivera,
477 U.S. 561, 577-578 (1986) (quoting S. Rep. No. 941011, at 2 (1976), reprinted in 1976 U.S.C.C.A.N.
5908, 5910).
In many cases, the vindication of constitutional
and statutory rights occurs solely through issuance of
a preliminary injunction—these cases do not end with
final judgments on the merits. Fee-shifting is particularly important in cases challenging government action because most plaintiffs are represented “by individual lawyers who are trying to make a living” and
must be able to obtain attorney’s fees in order to take
these cases. Samuel R. Bagenstos, Mandatory Pro
Bono and Private Attorneys General, 101 N.W. U. L.
Rev. Colloquy 182, 184-85 (2007). Institutional litigators, such as amici, account for a minority of all constitutional cases. Id. at 184 (noting that “[p]ublic interest organizations tend to focus on the few largescale law reform cases” rather than “the important
day-to-day enforcement work of individual cases”).
Many institutional litigators that bring suits often
rely substantially on solo practitioners and small
firms—who depend upon the availability of fee
awards—to act as local counsel and co-counsel. See
Randal S. Jeffrey, Facilitating Welfare Rights Class
Action Litigation: Putting Damages and Attorney’s
Fees To Work, 69 Brook. L. Rev. 281, 283 (2003)
(“[E]conomic incentives play a critical role in what litigation attorneys choose to pursue.”); Carl Tobias,
Rule 11 & Civil Rights Litigation, 37 Buff. L. Rev. 485,
486 n.41 (1989) (“The civil rights bar is comprised
29
essentially of specialized, solo practitioners, who depend on fee shifting and contingency fees for their income.”). Moreover, many public interest organizations rely on fee-shifting statutes to make it possible
to represent indigent plaintiffs in lawsuits seeking to
vindicate their civil rights.
Given those realities, if a preliminary injunction
is the only practical form of relief—such as in cases
relating to one-time events—it may be especially difficult to obtain counsel if fees are unavailable for work
undertaken in obtaining the preliminary injunction.
Further, in cases involving preliminary injunctions, plaintiffs are generally focused on obtaining equitable, rather than monetary, relief. Although a civil
rights action is not rendered moot “so long as the
plaintiff has a cause of action for damages,”
Buckhannon, 532 U.S. at 608-609, suits vindicating
constitutional rights—such as those involving the religion clauses, due process, free speech, and free association—often may have little or no potential for a
compensatory damages award. See Carey v. Piphus,
435 U.S. 247, 266 (1978); Memphis Cmty. Sch. Dist. v.
Stachura, 477 U.S. 299, 308-309 (1986).
In addition, “immunity doctrines and special defenses, available only to public officials, preclude or
severely limit the damage remedy” in some cases. Rivera, 477 U.S. at 577 (quoting H.R. Rep. No. 94-1558,
at 9 (1976)). A plaintiff’s attorney therefore often cannot obtain fees through a percentage-of-recovery, contingency-fee agreement. The fee-shifting provisions of
Section 1988 and similar statutes therefore may be
the sole means for compensating attorneys in those
cases. Eliminating fee awards will therefore decrease
lawyers’ ability to file such actions and remove a significant deterrent that prevents government officials
30
from committing constitutional violations in the first
place.
In sum, adopting petitioner’s rule and denying
fees in the circumstances at issue would significantly
undermine Congress’s purpose in enacting Section
1988. This Court should therefore hold that a plaintiff
who prevails in litigation by obtaining a preliminary
injunction is fee-eligible when the injunction materially alters the legal relationship between the parties
based on a finding that the plaintiff is likely to succeed
on the merits, provides the plaintiff with court-ordered relief sought in the complaint, and is never reversed.
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted.
JONATHAN D. STAHL
ANDREW J. PINCUS
Mayer Brown LLP
Counsel of Record
1221 Ave. of the Amer- Mayer Brown LLP
icas
1999 K Street, NW
New York, NY 10020
Washington, DC 20006
(212) 506-2500
(202) 263-3000
apincus@mayerbrown.com
Counsel for Amici Curiae
AUGUST 2024
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.