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

FIRST LIBERTY INSTITUTE

IN SUPPORT OF RESPONDENTS IN NO. 23-621

Kelly J. Shackelford

Counsel of Record

Jeffrey C. Mateer

David J. Hacker

Jeremiah G. Dys

Camille P. Varone

FIRST LIBERTY INSTITUTE

2001 West Plano Parkway.

Suite 1600

Plano, TX 75075

(972) 941-4444

August 12, 2024

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF CONTENTS .............................................. i

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

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ............................................................ 3

ARGUMENT ................................................................ 4

I.

As it is currently enforced, Section 1988 is

an important tool for obtaining civil rights

relief for aggrieved plaintiffs. ........................... 4

II. Under this Court’s precedent, where a

court orders all enduring relief requested

by a plaintiff, no later, out-of-court actions

by a defendant should negate plaintiff’s

prevailing-party status. .................................... 8

A. Buckhannon and Sole have already

provided sufficient guidance to

evaluate prevailing-party status. .............. 8

B. A plaintiff achieves prevailing-party

status when he obtains preliminary

injunctive relief that is not “reversed,

dissolved, or otherwise undone.” ............. 10

C. A plaintiff also achieves prevailingparty status when he wins preliminary

relief enjoining a statute or practice,

but such policy is abandoned or

repealed before final judgment. .............. 14

ii

III. Interpreting “prevailing party” to impose a

new, higher threshold than stated in

Buckhannon and Sole would harm

plaintiffs seeking to vindicate their

constitutional and statutory rights. ............... 18

CONCLUSION .......................................................... 21

iii

TABLE OF AUTHORITIES

Cases

Archdiocese of Wash. v.

Wash. Metro. Area Transit Auth.,

897 F.3d 314 (D.C. Cir. 2018) ............................... 11

Baker & Hostetler LLP v.

U.S. Dep’t of Commerce,

473 F.3d 312 (D.C. Cir. 2006) ........................... 5, 11

Bond v. Stanton,

630 F.2d 1231 (7th Cir. 1980) ................................. 6

Buckhannon Bd. & Care Home, Inc. v.

W. Va. Dep’t of Health & Human Res.,

532 U.S. 598 (2001) ........................ 3, 4, 8, 9, 11, 12,

....................................................... 13, 15, 16, 17, 18

Cacchillo v. Insmed, Inc.,

638 F.3d 401 (2d Cir. 2011) .................................. 11

City of Riverside v. Rivera,

477 U.S. 561 (1986) ................................................. 6

Common Cause/Georgia v. Billups,

554 F.3d 1340 (11th Cir. 2009) ............................. 15

Dearmore v. City of Garland,

519 F.3d 517 (5th Cir. 2008) ........................... 15, 16

Doe v. Snyder,

28 F.4th 103 (9th Cir. 2022) ................................. 12

Dominion Video Satellite, Inc. v. EchoStar

Satellite Corp.,

269 F.3d 1149 (10th Cir. 2001) ............................. 12

Dupuy v. Samuels,

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

iv

Farrar v. Hobby,

506 U.S. 103 (1992) ................................... 3, 8, 9, 11

Hanrahan v. Hampton,

446 U.S. 754 (1980) ............................................... 10

Hensley v. Eckerhart,

461 U.S. 424 (1983) ..................................... 9, 21, 22

Hewitt v. Helms,

482 U.S. 755 (1987) ................................................. 9

Higher Taste, Inc. v. City of Tacoma,

717 F.3d 712 (9th Cir. 2013) ................................. 15

Kirtsaeng v. John Wiley & Sons, Inc.,

579 U.S. 197 (2016) ............................................... 19

Lefemine v. Wideman,

568 U.S. 1 (2012) ..................................................... 9

Maher v. Gagne,

448 U.S. 122 (1980) ................................................. 9

McQueary v. Conway,

614 F.3d 591 (6th Cir. 2010) ..................... 12, 14, 17

N. Cheyenne Tribe v. Jackson,

433 F.3d 1083 (8th Cir. 2006) ............................... 12

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

New York,

590 U.S. 336 (2020) ......................................... 16, 19

Ne. Women’s Ctr. v. McMonagle,

889 F.2d 466 (3d Cir. 1989) .................................... 6

Newman v. Piggie Park Enters., Inc.,

390 U.S. 400 (1968) ....................................... 5, 7, 17

v

Pennsylvania v.

Del. Valley Citizens’ Council for Clean Air,

478 U.S. 546 (1986) ............................................. 5, 6

People Against Police Violence v.

City of Pittsburgh,

520 F.3d 226 (3d Cir. 2008) ............................ 12, 19

Perdue v. Kenny A.,

559 U.S. 542 (2010) ............................................. 6, 7

Pierce v. N.C. St. Bd. of Elections,

97 F.4th 194 (4th Cir. 2024) ................................. 11

Rhodes v. Stewart,

488 U.S. 1 (1988) ..................................................... 9

Roberts v. Neace,

65 F.4th 280 (6th Cir. 2023) ........................... 15, 17

Select Milk Producers, Inc. v. Johanns,

400 F.3d 939 (D.C. Cir. 2005) ............................... 12

Sole v. Wyner,

551 U.S. 74 (2007) ........... 3, 8, 10, 12, 13, 14, 15, 18

Tex. State Tchrs. Ass’n v.

Garland Indep. Sch. Dist.,

489 U.S. 782 (1989) ........................................... 8, 21

Watson v. County of Riverside,

300 F.3d 1092 (9th Cir. 2002),

cert. denied, 538 U.S. 923 (2003) .......................... 12

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008) ................................................... 11

Statutes, Rules and Regulations

28 U.S.C. § 1291(a)(1) ............................................... 13

42 U.S.C. § 1983 ........................................... 1, 6, 8, 16

vi

42 U.S.C. § 1988 ...................... 2, 3, 4, 5, 6, 7, 8, 9, 10,

................................................. 13, 14, 15, 17, 18, 20

42 U.S.C. § 1988(b) ............................................... 6, 20

42 U.S.C. §§ 2000bb et seq. ..................................... 1, 6

42 U.S.C. §§ 2000cc et seq. ..................................... 1, 6

Fed. R. Civ. P. 65(a)(2) ............................................. 14

S. Ct. Rule 37.6 ........................................................... 1

Other Authorities

H.R. Rep. No. 94-1558 (1976) ................................. 5, 7

S. Rep. No. 94-1011 (1976) ..................................... 7, 9

1

INTEREST OF AMICUS CURIAE1

As a nonprofit, public interest law firm dedicated

to defending religious liberty for all Americans, First

Liberty Institute maintains a strong interest in the

outcome of this case. First Liberty provides pro bono

legal representation to individuals and institutions of

all faiths—Catholic, Jewish, Muslim, Native

American, Protestant, the Falun Gong, and others.

In the regular course of its practice, First Liberty

frequently litigates and settles civil rights cases

involving the fee provisions at issue in this matter,

including actions under 42 U.S.C. § 1983 and

statutory challenges under the Religious Freedom

Restoration Act, 42 U.S.C. §§ 2000bb et seq. (“RFRA”),

and the Religious Land Use and Institutionalized

Persons Act, 42 U.S.C. §§ 2000cc et seq. (“RLUIPA”).

First Liberty regularly partners with outside

counsel from private law firms who provide an

excellent quality of legal services on a pro bono basis

to represent religious liberty plaintiffs who could

never afford to defend their First Amendment rights

without such help. The fee provisions at issue in this

matter have played an important role in helping offset

sometimes significant hours expended by both First

Liberty and co-counsel. While First Liberty and many

Pursuant to this Court’s Rule 37.6, counsel for amicus

curiae certify that this brief was not authored in whole or in part

by counsel for any party and that no person or entity other than

amicus curiae or its counsel has made a monetary contribution to

the preparation or submission of this brief.

1

2

public interest firms like it rely on the gracious

donations of supporters, awards of attorney’s fees in

meritorious cases can provide seed money to help the

firm represent the next plaintiffs who need legal

assistance and access to the courts. As an amicus,

First Liberty maintains an interest both in seeking

clarification in the law related to attorneys’ fees under

42 U.S.C. § 1988 and in ensuring that people of all

faith traditions continue to receive meaningful access

to federal courts in civil rights litigation.

3

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

Section 1988 ensures that private citizens have a

meaningful opportunity to vindicate their civil rights

by providing prevailing parties an award of attorney’s

fees. This law is a vital tool for providing private

citizens effective access to the judicial process with

quality legal representation by allowing them to

recover what it costs to vindicate their rights at court.

Unfortunately, the instant petition invites this

Court to restrict that access, narrowing Section 1988’s

scope by adopting new per se rules limiting what

procedural victories may confer prevailing-party

status. These new proposed rules are at odds with this

Court’s precedent, the purpose of Section 1988, and

the statutory text.

Whether a party has prevailed under Section 1988

should remain a case-specific question. Under some

circumstances, relief in the form of a preliminary

injunction materially alters the legal relationship of

the parties to the benefit of the prevailing party in an

enduring way that is not later undone by judicial

order. See Buckhannon Bd. & Care Home, Inc. v. W.

Va. Dep’t of Health & Human Res., 532 U.S. 598, 603–

04 (2001); Farrar v. Hobby, 506 U.S. 103, 111–12

(1992); Sole v. Wyner, 551 U.S. 74, 86 (2007). While

not an exhaustive list, this can be the case with

mandatory preliminary injunctions or injunctions that

provide the exact relief requested in such a way that

renders the lawsuit moot. Such plaintiffs have

received enduring judicial relief to be a prevailing

party. This Court should reject any per se rule that a

4

preliminary injunction can never confer prevailingparty status.

Likewise, a non-prevailing defendant should not

be allowed to engage in gamesmanship to avoid paying

a Section 1988 fee award. Once a plaintiff achieves

the requisite, enduring court-awarded relief to satisfy

Buckhannon, he should be considered the prevailing

party, regardless of the defendant’s efforts out of court

to moot his claims. That is, a defendant should not be

able to fairly claim that he voluntarily amended his

behavior, but only at a strategically advantageous

time: after being subjected to an adverse court

injunction. Enduring relief is rendered effectively

meaningless if a defendant might simply sidestep its

statutory obligations.

ARGUMENT

I.

As it is currently enforced, Section 1988 is

an important tool for obtaining civil rights

relief for aggrieved plaintiffs.

For many victims of constitutional grievances,

meaningful access to court is illusory without counsel

who are willing to represent their cause pro bono.

Some may brave the legal system pro se without the

information, advice, and representation needed to

enforce their rights. Some may pour their life savings

into costly billing rates to access the courts. Others

may simply forego taking any legal action because

they find the system too daunting or expensive. While

public interest firms like First Liberty offer pro bono

legal services to enable such plaintiffs an avenue to

vindicate their religious liberty rights, such firms

5

cannot begin to handle the number of meritorious

legal requests that they receive each year.

After passing historic civil rights legislation in the

1960s, Congress realized it must craft incentives to

encourage the bar to represent civil rights plaintiffs,

as the “effective enforcement of Federal civil rights

statutes depends largely on the efforts of private

citizens,’ and unless reasonable attorney’s fees could

be awarded for bringing these actions, Congress found

that many legitimate claims would not be redressed.”

Pennsylvania v. Del. Valley Citizens’ Council for Clean

Air, 478 U.S. 546, 560 (1986) (quoting H.R. Rep. No.

94-1558, at 1 (1976)). Because the public benefits

when private plaintiffs are empowered to enforce civil

rights laws, Section 1988’s attorney’s fee provision

serves a vital function in incentivizing both paid

counsel and pro bono counsel to represent aggrieved

civil rights plaintiffs. See Baker & Hostetler LLP v.

U.S. Dep’t of Commerce, 473 F.3d 312, 325 (D.C. Cir.

2006) (Kavanaugh, J.) (“The attorney’s fees provision

was designed … to enable potential plaintiffs to obtain

the assistance of competent counsel in vindicating

their rights.” (quotation omitted)). As this Court

explained it, “[i]f successful plaintiffs were routinely

forced to bear their own attorneys’ fees, few aggrieved

parties would be in a position to advance the public

interest by invoking the injunctive powers of the

federal courts.” Newman v. Piggie Park Enters., Inc.,

390 U.S. 400, 402 (1968) (per curiam).

In recognition that victims of civil rights violations

could not access the legal system effectively using the

private market, Congress enacted Section 1988, which

provides that, in federal civil rights litigation—for

6

example, in cases under 42 U.S.C. § 1983, RFRA, and

RLUIPA—the court of jurisdiction, “in its discretion,

may allow the prevailing party, other than the United

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

42 U.S.C. § 1988(b). Congress “considered that the

potential recovery of attorneys’ fee in civil rights cases

would encourage litigants to act as private attorneys

general, vindicating the important policies behind our

civil rights laws.” Ne. Women’s Ctr. v. McMonagle, 889

F.2d 466, 474 (3d Cir. 1989) (citing City of Riverside v.

Rivera, 477 U.S. 561, 575–76 (1986)); see also Perdue

v. Kenny A., 559 U.S. 542, 559 (2010) (“Section 1988

serves an important public purpose by making it

possible for persons without means to bring suit to

vindicate their rights.”); Del. Valley Citizens’ Council,

478 U.S. at 559 (“Section 1988 was enacted to insure

that private citizens have a meaningful opportunity to

vindicate their rights protected by the Civil Rights

Acts.”).

Whether or not Congress intended Section 1988

to serve as a deterrent against civil rights violations,

the practical impact is at least a reverse incentive to

government entities to steer clear of violating the civil

rights of its citizens. When government entities are

found to have violated the civil rights of an American,

requiring them to fund the fees of that citizen’s

attorney provides “the consequent deterrence of civil

rights violations presumably fostered by these actions

[which] are of greater weight than the hypothetical

reluctance of defendants to pursue potentially

meritorious objections (to fee awards) for fear of

having to pay additional attorney's fees in the event

their arguments prove unsuccessful.”

Bond v.

Stanton, 630 F.2d 1231, 1236 (7th Cir. 1980).

7

Congress anticipated that Section 1988 would

facilitate

the

vindication

of

these

critical

constitutional and civil rights by incentivizing

attorneys to take cases for clients who would

otherwise be unable to afford legal representation.

See Kenny A., 559 U.S. at 550 (“Congress enacted 42

U.S.C. § 1988 in order to ensure that federal rights are

adequately enforced.”); Piggie Park, 390 U.S. at 402

(Congress “enacted the provision for counsel fees … to

encourage individuals injured by [] discrimination to

seek judicial relief”); H.R. Rep. No. 94-1558, at 1

(1976) (“Because a vast majority of the victims of civil

rights violations cannot afford legal counsel, they are

unable to present their cases to courts. … [Section

1988] is designed to give such persons effective access

to the judicial process.”); S. Rep. No. 94-1011, at 2

(1976) (“If private citizens are to be able to assert their

civil rights, and if those who violate the Nation’s 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.”). That such paid-inpublic attorney’s fees cannot be shielded from the

citizenry—and are often the subject of media intrigue,

retained as public records, the subject of intense public

debate, and even the political motivation for electoral

change—serves to warn future public servants of their

duty to carefully steward the limited power vested in

their governance. Any restriction to such practical

accountability would lessen the impact of Section

1988—which remains as important a tool today as it

was at its earlier inception.

8

II. Under this Court’s precedent, where a

court orders all enduring relief requested

by a plaintiff, no later, out-of-court actions

by a defendant should negate plaintiff’s

prevailing-party status.

A.

Buckhannon and Sole have already

provided

sufficient

guidance

to

evaluate prevailing-party status.

This Court has already provided sufficient

guidance interpreting Section 1988 to answer the

questions presented in this case. As a legal term of

art, “prevailing party” maintains readily discernible

characteristics: (1) the prevailing party “has been

awarded some relief by the court” that creates a

“material alteration of the legal relationship of the

parties,” Buckhannon, 532 U.S. at 603–04; (2) the

relief “modif[ied] the defendant’s behavior in a way

that directly benefits the plaintiff,” Farrar, 506 U.S.

at 111–12; and (3) the relief is “enduring” in nature,

and is not “reversed, dissolved, or otherwise undone”

by later judicial acts, Sole, 551 U.S. at 86.

For a plaintiff to “prevail,” he need not achieve his

“central goal”; rather, if “the plaintiff has succeeded on

any significant issue in litigation which achieved some

of the benefit the parties sought in bringing suit, the

plaintiff has crossed the threshold to a fee award of

some kind.” Tex. State Tchrs. Ass’n v. Garland Indep.

Sch. Dist., 489 U.S. 782, 791–92 (1989) (cleaned up).

Because “[t]his is a generous formulation” that only

brings a plaintiff “across the statutory threshold” to

eligibility for a fee award, Hensley v. Eckerhart, 461

U.S. 424, 433 (1983), this Court has found various

forms of partial relief to be sufficient to establish

9

prevailing-party status under Section 1988. See, e.g.,

Lefemine v. Wideman, 568 U.S. 1, 4 (2012) (permanent

injunction); Farrar, 506 U.S. at 112 (nominal

damages); Rhodes v. Stewart, 488 U.S. 1, 4 (1988)

(declaratory judgment); Maher v. Gagne, 448 U.S. 122,

130 (1980) (settlement enforced via consent decree).

On the other end of the spectrum, this Court has

made clear that where a plaintiff “obtained no relief”

on the merits of his claim, he cannot be a “prevailing

party” under Section 1988. Hewitt v. Helms, 482 U.S.

755, 760 (1987). As Justice Scalia reasoned in Hewitt,

where no damages were awarded, “no injunction or

declaratory judgment” entered in his favor, and no

“relief without the benefit of a formal judgment—for

example, through a consent decree or settlement,”

“respect for ordinary language requires” finding that

the plaintiff had not prevailed. Id.

Allowing for attorney’s fees upon a sufficient

degree of success but before final judgment or a

damages award is consistent with Congressional

intent. “In appropriate circumstances, counsel fees

under [Section 1988] may be awarded pendente lite,”

that is, during the pendency of the litigation. S. Rep.

No. 94-1011, at 5 (1976). “Such awards are especially

appropriate where a party has prevailed on an

important matter in the course of litigation, even

when he ultimately does not prevail on all issues,” and

importantly, “for 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.” Id.; see

also Buckhannon, 532 U.S. at 603 (explaining that “we

reviewed the legislative history of § 1988 and found

10

that ‘Congress intended to permit the interim award

of counsel fees only when a party has prevailed on the

merits of at least some of his claims”) (quoting

Hanrahan v. Hampton, 446 U.S. 754, 758 (1980) (per

curiam)).

Notwithstanding Section 1988’s purpose and clear

outer limits for the prevailing party test, Petitioner

now seeks to limit Section 1988’s reach to prevent

otherwise availing civil rights plaintiffs from the

legislation’s benefits.

B.

A plaintiff achieves prevailing-party

status when he obtains preliminary

injunctive relief that is not “reversed,

dissolved, or otherwise undone.”

Petitioner first asks this Court to categorically bar

civil rights plaintiffs who win preliminary injunctive

relief but do not secure a final judgment from

recovering fees. He argues for a hardline rule that a

preliminary injunction cannot provide a conclusive

ruling on the merits or final judgment to confer

prevailing-party status. Pet. Br. 23. For several

reasons, the Court should reject this interpretation of

Section 1988 and clarify that winning a preliminary

injunction can confer prevailing-party status when the

order provides sufficiently concrete change in the legal

relationship of the parties and is not “reversed,

dissolved, or otherwise undone.” See Sole, 551 U.S. at

86. While not every preliminary injunction will satisfy

this standard, some such orders will. In some

circumstances, preliminary injunctive relief suffices to

provide “actual relief” “by modifying the defendant’s

behavior in a way that directly benefits the plaintiff,”

Farrar, 506 U.S. at 111–12, in a manner that

11

“material[ly] alter[s] the legal relationship of the

parties.” Buckhannon, 532 U.S. at 603–04 (2001).

Upon an award of some preliminary injunctions

(albeit not all of them), the plaintiff irreversibly gains

the benefit of the relief sought, and later judgment

would not change that the plaintiff substantially

prevailed on a central issue.

As an initial matter, it bears reminding that

plaintiffs face a significant uphill climb to obtain

preliminary injunctive relief at all.

It is “an

extraordinary remedy that may only be awarded upon

a clear showing that the plaintiff is entitled to such

relief” and one not easily given. Winter v. Nat. Res.

Def. Council, Inc., 555 U.S. 7, 22 (2008).

This is particularly true in civil rights litigation

where issuing a preliminary injunction would alter,

rather than preserve, the status quo ante. For

instance, when a plaintiff seeks a mandatory

preliminary injunction, especially against a

governmental body, federal courts across the country

often apply an additional hurdle or heightened

scrutiny before applying this disfavored remedy. See,

e.g., Archdiocese of Wash. v. Wash. Metro. Area Transit

Auth., 897 F.3d 314, 319 (D.C. Cir. 2018); Cacchillo v.

Insmed, Inc., 638 F.3d 401, 406 (2d Cir. 2011); Pierce

v. N.C. St. Bd. of Elections, 97 F.4th 194, 209 (4th Cir.

2024); Doe v. Snyder, 28 F.4th 103, 111–12 (9th Cir.

2022); Dominion Video Satellite, Inc. v. EchoStar

Satellite Corp., 269 F.3d 1149, 1154–55 (10th Cir.

2001). A mandatory preliminary injunction can

render concrete, irreversible, judicially sanctioned

relief on the merits. Under such circumstances, the

“court-ordered change in the legal relationship”

12

between the parties is “enduring” rather than

“ephemeral.” Sole, 551 U.S. at 86. This type of courtordered relief should easily satisfy Buckhannon’s test,

but Petitioners would exclude such relief from serving

as the foundation for attorney’s fees.

Likewise, a plaintiff should be able to establish

prevailing-party status where a preliminary

injunction provides him with exactly the merits-based

relief he needed at the time he needed it, and as a

result, the “court-ordered success and the passage of

time” moot the case. McQueary v. Conway, 614 F.3d

591, 599 (6th Cir. 2010); see also People Against Police

Violence v. City of Pittsburgh, 520 F.3d 226, 233–34

(3d Cir. 2008) (awarding attorney’s fees to prevailing

party where the “ultimate mooting” resulted “from the

results of the legal process”); Select Milk Producers,

Inc. v. Johanns, 400 F.3d 939, 945–50 (D.C. Cir. 2005)

(same); Watson v. County of Riverside, 300 F.3d 1092,

1095–96 (9th Cir. 2002), cert. denied, 538 U.S. 923

(2003) (same); Dupuy v. Samuels, 423 F.3d 714, 718–

25 (7th Cir. 2005). Where the “party’s claim for a

permanent injunction is rendered moot by the impact

of the preliminary injunction,” the “preliminary

injunction functions much like the grant of an

irreversible partial summary judgment on the merits,”

and should suffice to establish prevailing-party status.

See N. Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1086

(8th Cir. 2006).

As these examples show, preliminary injunctions

of various forms can, and should, satisfy Buckhannon.

Prevailing-party status may be appropriate in civil

rights cases that successfully obtain injunctive relief,

pausing a newly enacted statute from going into effect.

13

To take a hypothetical, assume the status quo in a

municipal jurisdiction has been to allow a certain type

of free speech, but the municipality enacts a new

policy facially restricting that civil right. A private

plaintiff sues and obtains a preliminary injunction to

maintain the status quo and exercises his free speech

rights. Under this scenario, the plaintiff obtained the

relief sought, the legal relationship between the

parties changed by disallowing the government to

enact its policy, and no later ruling would undo the

plaintiff’s speech made in reliance on the preliminary

injunction. No meaningful distinction justifies why

this plaintiff would not be a prevailing party simply

because he challenged a new policy as it went into

effect, rather than wait for it to become established,

allow the law to violate his civil rights for a time, and

then file the same challenge.

In these circumstances, the preliminary injunctive

relief did far more than give an initial prediction of the

merits, but rather, rendered concrete, judicially

sanctioned relief.

The award of a preliminary

injunction is, of course, immediately appealable and

subject to judicial enforcement. 28 U.S.C. § 1291(a)(1).

Under such circumstances, there is no risk that the

preliminary relief would be later reversed or dissolved

by a superseding judicial decision, and thus, no

likelihood that the plaintiff would lose its prevailingparty status under Section 1988. This should carry all

of the “judicial imprimatur” necessary to satisfy

Buckhannon and be the type of enduring nature

required under Sole. After obtaining such concrete

relief from a court, surely a plaintiff has already

prevailed for purposes of Section 1988.

14

In such cases, a “preliminary” injunction provides

ultimate relief, regardless of nomenclature or label.

While plaintiffs may ask a court to convert his motion

for preliminary injunction to a motion for final

judgment, see Fed. R. Civ. P. 65(a)(2), this step has

never been mandatory, nor do courts have to grant

Rule 65 requests. See McQueary, 614 F.3d at 599–600.

“[N]othing about the nature of the prevailing-party

inquiry suggests that it should turn on whether a

district court happens to embrace this administrative

streamlining device.” Id. at 600. Nothing in the text

of Section 1988 suggests that adding perfunctory

administrative or procedural hurdles is required, nor

would adding such new requirements serve the law’s

purpose.

C.

A plaintiff also achieves prevailingparty status when he wins preliminary

relief enjoining a statute or practice,

but such policy is abandoned or

repealed before final judgment.

Under Sole, this Court has made clear that

“[p]revailing party status … does not attend

achievement of a preliminary injunction that is

reversed, dissolved, or otherwise undone by the final

decision in the same case.” 551 U.S. at 83 (emphasis

added). Petitioner now seeks to extend that holding to

block attorney’s fees if the governmental defendant

moots the plaintiff’s victory through actions outside

court. Governmental defendants should not be able to

violate a civil right and then deprive civil rights

plaintiffs of the benefit of federal law or their

prevailing-party

status

through

extrajudicial

conduct—conduct typically motivated by looming civil

15

rights litigation. They cannot fairly claim to have

voluntarily amended their behavior after a court

enjoined their offending policies or practices. Rather,

this Court should clarify that a party’s efforts to game

the system out of court cannot allow them to skirt

obligations to pay fees otherwise awardable under

Section 1988. Once a plaintiff earns “some [enduring]

relief” by court order, he steps outside Buckhannon’s

domain, and later actions outside of court should not

change the calculus. See Roberts v. Neace, 65 F.4th

280, 285 (6th Cir. 2023) (citing Buckhannon, 532 U.S.

at 605); see also Sole, 551 U.S. at 86.

Strategically timed mooting is an unfortunate but

common call from the government defendant

playbook. Indeed, in courts across the country, state,

local, and municipal governments have regularly

repealed or abandoned unconstitutional or illegal

statutes and practices in the face of an unfavorable

preliminary injunction.

See, e.g., Common

Cause/Georgia v. Billups, 554 F.3d 1340, 1356 (11th

Cir. 2009) (the state repealed the enjoined statute and

then opposed counsel fees on that basis); Roberts, 65

F.4th at 283, 285; Dearmore v. City of Garland, 519

F.3d 517, 523 (5th Cir. 2008) (same); Higher Taste, Inc.

v. City of Tacoma, 717 F.3d 712, 717–18 (9th Cir. 2013)

(similar).

For example, during the COVID-19 pandemic,

some Christians celebrated Easter at Maryville

Baptist Church in Kentucky. But that placed them at

odds with orders issued by the state governor to

curtail the spread of COVID-19. Roberts, 65 F.4th at

283. The plaintiffs won preliminary injunctions,

enjoining any prosecutions stemming from attending

16

that Easter service. While the preliminary injunction

was still in place, the governor issued new orders

allowing faith-based gatherings and shortly after, the

State legislature curtailed his authority to issue

future COVID-19 orders. Although the plaintiffs had

received all the requested benefit of the lawsuit

through the injunction, the defendants claimed the

suit was now moot by virtual of their own conduct

outside of court, and thus the plaintiffs could not be

prevailing parties for purposes of fees. Id.

Consider a similar situation in New York State

Rifle & Pistol Association, Inc. v. City of New York, 590

U.S. 336, 360–61 (2020) (Alito, J., dissenting, joined by

Gorsuch, J. and Thomas, J.). The plaintiffs there

brought a 1983 constitutional challenge against a city

ordinance that the City of New York “went to great

lengths to defend” through five years of litigation. Id.

Late in the litigation, after a petition for certiorari was

granted but before this Court could make a decision,

the City “ultimately abandoned” its challenged

ordinance in an effort to moot the case, “now

admit[ting the ordinance] was not needed for public

safety.” Id. This effort “to impose a unilateral

settlement” would have “deprived petitioners of

attorney’s fees.” Id. at 361.

“Buckhannon does not stand for the proposition

that a defendant should be allowed to moot an action

to avoid the payment of the plaintiff’s attorney’s fees

when a district court grants a preliminary injunction

based upon an unambiguous indication of probable

success on the merits.” Dearmore, 519 F.3d at 523. To

adopt Petitioner’s proposed rules would incentivize

gamesmanship to the disadvantage of civil rights

17

plaintiffs. A government defendant could fight tooth

and nail for its doomed policy, only to change course at

the last minute to moot the challenge. Even if—

technically—the plaintiffs in such situations gain the

benefit of the government’s new law change, such

artful dodging to avoid paying the fees that would

otherwise be due undermines the purpose of Section

1988: to “enable potential plaintiffs to obtain the

assistance of competent counsel in vindicating their

rights,” see Baker & Hostetler LLP, 473 F.3d at 325

(Kavanaugh, J.), and to put “aggrieved parties … in a

position to advance the public interest by invoking the

injunctive powers of the federal courts.” Piggie Park,

390 U.S. at 402.

Petitioner argues that finding prevailing-party

status in such a circumstance simply smuggles in a

catalyst theory. Not so. In these cases, none of the

inquiry has been about whether the plaintiff’s lawsuit

was a primary reason or otherwise contributing factor

to the government changing its conduct. These cases

have not asked the courts to determine to what degree

a plaintiff helped create a change in law or policy.

Rather, these cases stand for a different principle

entirely: “Once a plaintiff earns ‘some relief’ … he

steps outside Buckhannon’s domain,” Roberts, 65

F.4th at 285, and thus, the only question is whether

“[a]n immediately enforceable preliminary injunction

compelled [the government] to” amend its behavior,”

McQueary, 614 F.3d at 599. The question is not about

whether a plaintiff’s action in bringing the lawsuit

was an impetus in changing course, but rather,

whether the nature of the underlying preliminary

injunction materially altered the legal relationship of

the parties in an enduring way. What the non-

18

prevailing party does in response outside or on top of

the scope of the injunction—such as taking additional

steps to rescind or abandon the statute or policy at

issue—does not erase the preliminary injunction from

the books. Nor should it mean that relief granted

through the injunction itself could bar prevailingparty status. Instead, in these cases, the plaintiffs did

not “leave[] the courthouse emptyhanded,” Sole, 551

U.S. at 78, but rather enjoyed enduring relief from a

merits-based preliminary injunction that remained in

effect, unaltered.

III. Interpreting “prevailing party” to impose a

new, higher threshold than stated in

Buckhannon and Sole would harm

plaintiffs seeking to vindicate their

constitutional and statutory rights.

Although Buckhannon and Sole adequately lay

out the contours of what concrete measures of success

are necessary to become a prevailing party, Petitioner

now seeks to have this court impose a new, higher

threshold. In his view, no plaintiff who has otherwise

satisfied Buckhannon and Sole but fails to check the

right procedural boxes should receive the counsel fees

anticipated in Section 1988. His proposed rule would

make civil rights plaintiffs go through rigidly

prescribed procedural steps in every litigation, and if

those checkboxes are procedurally unavailable

because of the plaintiff’s own earlier success in the

litigation, then the plaintiff is out of luck for fees.

Petitioners’ preferred rule would thus dramatically

narrow the scope of Section 1988, limit the number of

meritorious civil rights plaintiffs who could receive

attorney’s fees, and ultimately undermine the quick

19

resolution of such cases. Petitioner’s proposed rule

would undercut the availability of attorney’s fees,

which could significantly impair the ability of

individuals whose constitutional rights have been

harmed to vindicate those fundamental rights.

Petitioner argues that imposing a heightened

standard for a plaintiff to become a “prevailing party”

is necessary to protect the “public fisc,” prevent

taxpayer waste, and encourage quicker resolution of

civil rights litigation. Pet. Br. 49; Pet. Cert. Br. 24.

But experience does not bear this out. Rather,

allowing for fees at a preliminary injunction stage

(when appropriate, as laid out earlier) may stop an

otherwise intransigent defendant from further

entrenchment. See, e.g., N.Y. State Rifle & Pistol

Ass’n, Inc., 590 U.S. at 360–61 (Alito, J. dissenting,

joined by Gorsuch, J. and Thomas, J.) (“Relief would

be particularly appropriate here because the City’s

litigation strategy caused petitioners to incur what are

surely very substantial attorney’s fees in challenging

the constitutionality of a City ordinance that the City

went to great lengths to defend.”); Kirtsaeng v. John

Wiley & Sons, Inc., 579 U.S. 197, 205 (2016) (Kagan,

J.) (unanimous opinion of the Court) (explaining

reasonableness test for fee awards “encourages parties

with strong legal positions to stand on their rights and

deters those with weak ones from proceeding with

litigation.”); People Against Police Violence, 520 F.3d

at 236 (“We see no reason why plaintiffs should be

denied fees merely because they participated in a more

efficient, cooperative process; a contrary result would

force future litigants in plaintiffs’ position to prolong

litigation unnecessarily to assure entitlement to

fees.”).

20

Indeed, the earlier in litigation that a party

prevails for purposes of Section 1988 fees, the lower

those fees will necessarily be, because fewer attorney

hours will have been exerted. Conversely, prolonged,

scorched-earth litigation will almost certainly result

in many more hours worked and higher demanded

fees. So, it stands to reason, fees awarded upon relief

through a qualifying preliminary injunction will likely

be less—and thus less costly to the taxpayer—

compared to fees awarded upon the entry of final

judgment after discovery, motions practice, and a

possible trial. In either circumstance, a governmental

defendant is only on the hook if it loses on the merits.

But a rule that incentivizes earlier resolution would

ultimately benefit both the prevailing plaintiff, the

losing governmental entity, and its taxpayer base.

The Petitioner’s proposed rule would have the opposite

effect by requiring civil rights plaintiffs to push

litigation longer to final judgment, unnecessarily

adding attorney hours, and inevitably precluding

some plaintiffs from fee awards whose cases are

mooted only by virtue of their early success.

Petitioner worries that without a per se rule

against awarding fees in circumstances like those

presented here, governmental defendants will face

exorbitant fee awards. But the statutory text and this

Court’s precedent make clear that adequate restraints

prevent windfall awards or unjust counsel fees.

Section 1988 allows only “reasonable fees,” 42

U.S.C. § 1988(b), to be awarded at the court’s

discretion. Once a civil rights plaintiff crosses the

statutory threshold to establish prevailing-party

status, he must still demonstrate that his fees are

21

“reasonable.” Hensley, 461 U.S. at 433. Courts may

choose not to award all fees expended, particularly in

circumstances where a plaintiff “achieved only partial

or limited success.” Id. at 436. When a prevailing

party only achieves partial success, courts “should

exercise their equitable discretion” to adjust the fee

award “to account for the limited success of the

plaintiff,” rather than denying a fee award altogether.

Tex. State Tchrs. Ass’n, 489 U.S. at 789–90.

Nothing at issue in this matter would upend the

guidance that protects governmental defendants in

civil rights litigation from excessive fee awards.

CONCLUSION

For these reasons, the Court should affirm the

Fourth Circuit’s decision.

Respectfully submitted,

Kelly Shackelford

Counsel of Record

Jeffrey C. Mateer

David J. Hacker

Jeremiah G. Dys

Camille P. Varone

FIRST LIBERTY INSTITUTE

2001 West Plano Parkway,

Suite 1600

Plano, TX 75075

(972) 941-4444

kelly.shackelford@firstliberty.org

Counsel for Amicus Curiae

August 12, 2024