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
__________
CORRECTED BRIEF OF CHRISTIAN LEGAL SOCIETY,
AGUDATH ISRAEL OF AMERICA, BECKET FUND FOR
RELIGIOUS LIBERTY, CENTER FOR PUBLIC JUSTICE,
INSTITUTIONAL RELIGIOUS FREEDOM ALLIANCE, ISLAM
AND RELIGIOUS FREEDOM ACTION TEAM OF THE
RELIGIOUS FREEDOM INSTITUTE, JEWISH COALITION
FOR RELIGIOUS LIBERTY, AND NATIONAL ASSOCIATION
OF EVANGELICALS AS AMICI CURIAE IN SUPPORT OF
RESPONDENTS
__________
Douglas Laycock
Counsel of Record
John Greil
Steven T. Collis
Law & Religion Clinic
University of Texas
School of Law
727 E. Dean Keeton St.
Austin, TX 78705
512-475-9090
dlaycock@law.utexas.edu
John.greil@law.utexas.edu
Steven.collis@law.utexas.edu
QUESTION PRESENTED
This brief addresses whether plaintiffs are prevailing parties under the Civil Rights Attorney’s Fee
Awards Act of 1976 when they obtain a preliminary
injunction and defendants abandon further litigation,
thereby accepting the preliminary injunction as dispositive.
i
TABLE OF CONTENTS
Interest Of Amici........................................................ 1
Summary Of Argument ............................................. 2
Argument.................................................................... 5
I. The Civil Rights Attorney’s Fees Awards
Act of 1976 is an exercise of Congress’s
primary responsibility for the law of feeshifting under the American Rule. ................. 6
II. The American Rule, together with the Fees
Act, makes it possible for private parties
to enforce important legislative policies. ........ 9
A. The American Rule protects civil-rights
and civil-liberties plaintiffs from
overwhelming liability for defendants’
attorney’s fees. ........................................... 9
B. The Fees Act enables plaintiffs to pay
their own attorneys so that the
enumerated statutes can be enforced...... 10
III. Plaintiffs that obtain a preliminary
injunction have materially altered the
legal relationship of the parties, and are
prevailing parties if the defendant
acquiesces in the preliminary injunction
so that it effectively ends the case. ............... 14
A. Unlike the cases on which Petitioner
relies, Respondents benefited from a
court-ordered change in Petitioner’s
behavior. ................................................... 14
B. Unlike the plaintiffs in Sole v. Wyner,
Respondents obtained judicial relief
that turned out to be dispositive. ............ 16
ii
IV. It would frustrate the policy of the Act to
preclude attorney’s fees to plaintiffs who
have obtained a preliminary injunction that
defendant accepts as effectively dispositive . 20
V. Religious individuals and organizations
will be particularly harmed by Petitioner’s
rule. ................................................................ 23
A. Guaranteeing student free exercise and
free religious speech ................................. 24
B. Ensuring access to a sacred river ............ 26
C. Protecting Easter worship ....................... 27
D. Preserving home prayer meetings........... 28
VI. Petitioner’s proposed rule is undertheorized
and does not grapple with the significant
reliance interests at issue. ............................ 29
CONCLUSION ......................................................... 33
iii
TABLE OF AUTHORITIES
Cases:
Alyeska Pipeline Serv. Co. v. Wilderness
Soc’y, 421 U.S. 240 (1975) ........................ 8, 9, 13, 14
Arcambel v. Wiseman, 3 U.S. 306 (1796) .................... 7
Buckhannon Bd. & Care Home, Inc. v.
W. Va. Dep’t of Health & Hum. Res.,
532 U.S. 598 (2001) .......................... 5, 15, 22, 28, 32
Christian Legal Soc’y v. Martinez,
561 U.S. 661 (2010) ................................................ 24
Christiansburg Garment Co. v. EEOC,
434 U.S. 412 (1978) ................................................ 21
City of Riverside v. Rivera, 477 U.S. 561 (1986) .... 2, 9
Cutter v. Wilkinson, 544 U.S. 709 (2005) .................. 11
Evans v. Jeff D, 475 U.S. 717 (1986) ......................... 22
Fellowship of Christian Athletes v. San Jose
Unified Sch. Dist. Bd. of Educ.,
46 F.4th 1075 (9th Cir. 2022) ................................. 24
Fellowship of Christian Athletes v. San Jose
Unified Sch. Dist. Bd. of Educ.,
59 F.4th 997 (9th Cir. 2023) ................................... 24
Fellowship of Christian Athletes v. San Jose
Unified Sch. Dist. Bd. of Educ.,
82 F.4th 664 (2023) ................................................. 24
Fleischmann Distilling Corp. v.
Maier Brewing Co., 386 U.S. 714 (1967) ................. 9
FNU Tanzin v. Tanvir, 592 U.S. 43 (2020) ............... 11
iv
Fulton v. City of Philadelphia,
593 U.S. 522 (2021) ................................................ 31
Gallardo By & Through Vassallo v. Marstiller,
596 U.S. 420 (2022) ................................................ 14
Haaland v. Brackeen, 599 U.S. 255 (2023) ............... 30
Hanrahan v. Hampton, 446 U.S. 754 (1980) ............ 16
Hewitt v. Helms, 482 U.S. 755 (1987) ........................ 15
Holt v. Hobbs, 574 U.S. 352 (2015) ............................ 11
Internal Imp. Fund Trustees v. Greenough,
105 U.S. 527 (1881) .................................................. 7
Kendall v. Doster, 144 S. Ct. 481 (2023).................... 29
Maher v. Gagne, 448 U.S. 122 (1980) ........................ 18
McDonald v. City of Chicago,
561 U.S. 742 (2010) .......................................... 31, 32
McDonald v. City of Chicago,
646 F.3d 992 (7th Cir. 2011) ............................ 31, 32
MCI Telecommunications Corp. v.
Am. Tel. & Tel. Co., 512 U.S. 218 (1994) ............... 22
Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400 (1968) ................................................ 10
Perez v. City of San Antonio, No. 23-50746
(5th Cir. 2023)......................................................... 26
Perez v. City of San Antonio,
98 F.4th 586 (5th Cir. 2024) ................................... 26
Roberts v. Neace,
958 F.3d 409 (6th Cir. 2020) .................................. 27
Roberts v. Neace,
65 F.4th 280 (6th Cir. 2023) ............................. 27, 28
v
Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 1972),
aff’d mem., 409 U.S. 942 (1972) ............................... 8
Sinclair v. San Jose Unified Sch. Dist. Bd. of Educ.,
No. 4:20-cv-2798 (N.D. Cal. 2024) .......................... 25
Sole v. Wyner, 551 U.S. 74 (2007) ........ 3, 16, 17, 18, 19
Tandon v. Newsom, 593 U.S. 61 (2021)............... 28, 29
Tandon v. Newsom, No. 5:20-cv-07108
(N.D. Cal. 2021) ...................................................... 29
Tex. State Teachers Ass’n v. Garland Indep.
Sch. Dist., 489 U.S. 782 (1989)............................... 14
Trinity Lutheran Church v. Comer,
582 U.S. 449 (2017) ................................................ 31
United States v. Munsingwear, Inc.,
340 U.S. 36 (1950) ............................................ 29, 30
Constitutional Provisions and Statutes:
Civil Rights Act of 1866, 42 U.S.C. §1982 ................. 13
Civil Rights Act of 1871, 42 U.S.C. §1983 ....... 2, 23, 32
Civil Rights Act of 1968, 42 U.S.C. §3613(c)(2)......... 13
Civil Rights Attorney’s Fees Award Act of 1976,
42 U.S.C. §1988(b) .......................................... passim
Equal Access Act, 20 U.S.C. 4071 et seq.................... 24
Free Exercise Clause, U.S. Const.,
amend. I ...................................................... 24, 27, 31
Free Speech Clause, U.S. Const., amend. I............... 24
Religious Freedom Restoration Act, ..............................
42 U.S.C. §2000bb et seq. . 2, 5, 11, 13, 14, 23, 29, 32
vi
Religious Land Use and Institutionalized Persons
Act. 42 U.S.C. §2000cc et seq. ............. 2, 5, 14, 23, 32
Right to Bear Arms Clause, U.S. Const.,
amend. II ........................................................... 31, 32
Statute of Gloucester, 6 EDW. I. c. 1 (1275)................. 6
Other Authorities:
Catherine R. Albiston & Laura Beth Nielsen,
The Procedural Attack on Civil Rights: The
Empirical Reality of Buckhannon for the
Private Attorney General,
54 UCLA L. REV. 1087 (2007)................................. 22
Amy Coney Barrett, Precedent and Jurisprudential
Disagreement, 91 TEX. L. REV. 1711 (2013)............ 30
MARK CHAVES, CONGREGATIONS IN AMERICA (2004) . 11
Comment, Court Awarded Attorney’s Fees
and Equal Access to the Courts,
122 U. PA. L. REV. 636 (1974) ................................... 8
Joseph C. Davis & Nicholas R. Reaves, The Point
Isn’t Moot: How Lower Courts Have Blessed
Government Abuse of the Voluntary-Cessation
Doctrine, 129 YALE L.J.F. 325 (2019) ........... 20, 21
Mary Frances Derfner, The Civil Rights
Attorney’s Fees Awards Act of 1976, in
PUBLIC INTEREST PRACTICE AND FEE AWARDS
(Herbert B. Newberg ed., 1980) ....................... 12, 13
Arthur L. Goodhart, Costs,
38 YALE L.J. 849 (1929) ............................................ 6
John Greil, The Unfranchised Competitor
Doctrine, 66 VILL. L. REV. 357 (2021)..................... 12
vii
F. A. Hayek, The Use of Knowledge in Society,
35 AM. ECON. REV. 519 (1945) ................................ 12
Harold J. Krent, Explaining One-Way
Fee Shifting, 79 VA. L. REV. 2039 (1993) ............... 11
DOUGLAS LAYCOCK & RICHARD L. HASEN,
MODERN AMERICAN REMEDIES
(5th ed. 2019) ...................................... 7, 9, 10, 21, 22
John Leubsdorf, Toward a History of the
American Rule on Attorney Fee Recovery,
47 LAW & CONTEMP. PROBS. (1984) .......................... 7
Senate Report No. 94-1011 (1976) ................. 11, 12, 13
ADAM SMITH, THE WEALTH OF NATIONS
(Laurence Dickey ed. 1993) (1776) .................. 22, 23
Steve West, Settlement confirms Fellowship of
Christian Athletes students’ right to choose
leaders, WORLD (May 7, 2024),
https://wng.org/roundups/settlement-confirmsfellowship-of-christian-athletes-studentsright-to-choose-leaders-1715108675
[https://perma.cc/95L3-P76J] ................................. 25
viii
INTEREST OF AMICI
Amici are Christian, Jewish, Muslim, and secular
not-for-profit organizations committed to religious
liberty for all. Each of these amici engages in public
education and advocacy and assists with litigation on
behalf of religious liberty. Some of these amici have
staff attorneys, or cooperating attorneys in private
practice, who directly represent plaintiffs in litigation
that heavily depends on potential fee awards under
the statute at issue in this case. As described in Part
V, the lead amicus has recently represented religious
individuals or associations in cases directly implicating the question presented.1
The organizations joining in this brief are:
The Christian Legal Society, https://www.christianlegalsociety.org/,
Agudath Israel of America, https://agudah.org/,
The Becket Fund for Religious Liberty, https://
www.becketlaw.org/,
The Center for Public Justice, https://cpjustice.org/, and its affiliate, the Institutional Religious
Freedom Alliance, https://cpjustice.org/what-we-do/
institutional-religious-freedom-alliance/,
The Islam and Religious Freedom Action Team of
the Religious Freedom Institute, https://religiousfreedominstitute.org/islam-religious-freedom-actionteam/,
1 This brief was prepared and funded entirely by amici and
their counsel. No counsel for a party authored this brief in whole
or in part.
1
The Jewish Coalition for Religious Liberty, https://
www.jcrl.org/, and
The National Association of Evangelicals, https://
www.nae.org/.
SUMMARY OF ARGUMENT
I. Under the American Rule, “absent express
statutory authorization to the contrary, each party to
a lawsuit ordinarily shall bear its own attorney’s
fees.” City of Riverside v. Rivera, 477 U.S. 561, 567
(1986). This Court has long recognized that the
allocation of litigation costs is for legislative, and not
judicial, determination.
II. The Civil Rights Attorney’s Fees Awards Act of
1976, codified at 42 U.S.C. §1988(b), provides that
legislative determination. The statute enumerates
specific civil-rights statutes that allow plaintiffs to
recover attorney’s fees. Through the Fees Act, Congress identified important legislative priorities, including the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act,
and 42 U.S.C. §1983. And it identified private litigation as a principal means for their enforcement.
The American Rule and the Fees Act thus work together to implement congressional policy. The American Rule eliminates the fear that plaintiffs will be
bankrupted by unsuccessfully suing to enforce their
rights, and the Fees Act creates a fund from which
prevailing plaintiffs can pay their attorneys.
Congress rightly determined that this approach is
necessary for religious plaintiffs, who often lack financial means and often seek only injunctive relief.
2
The damages they sometimes seek are often modest,
compensating intangible harms or the losses from a
single wrongful transaction. Such litigation cannot
support contingent-fee litigation on the usual model
familiar from personal-injury litigation. But such
litigation is necessary to ensure that individuals can
freely exercise their religion without government
interference.
III. Respondents obtained a preliminary injunction that materially altered the legal relationship of
the parties. Petitioner acquiesced in that injunction
by mooting the case. He chose to treat that preliminary injunction as dispositive and to concede—
through his actions—that Respondents had prevailed.
Petitioner could have attempted to overturn that
injunction through continued litigation; he chose not
to.
Unlike the cases on which Petitioner relies, Respondents personally and permanently benefited
from enforceable judicial action. Under Sole v. Wyner,
a plaintiff has not prevailed “if, at the end of the
litigation, her initial success is undone and she leaves
the courthouse emptyhanded.” 551 U.S. 74, 77 (2007).
But here, none of the plaintiffs’ success was undone.
They left the courthouse victorious.
Defendants still have choices under Sole. If they
believe the preliminary injunction can be undone,
they can continue the litigation until “a dispositive
adjudication on the merits,” id., or they can attempt
to negotiate a settlement that does not provide for
fees. But if a defendant has offered the best facts and
arguments that it has and has evaluated its chance of
succeeding if it continues to litigate, it may accept the
preliminary injunction as dispositive and act to make
3
the case moot. This choice acknowledges that the
plaintiff has prevailed.
IV. The Petitioner’s proposed alternative would
devastate civil-rights enforcement. A defendant could
lose at every stage of the litigation—preliminary
injunction (plus appeal, en banc, and certiorari
petitions), even partially litigate about a permanent
injunction (with appeal, etc.)—complying with the
preliminary injunction throughout, and still leave
plaintiffs not “prevailing” and plaintiffs’ attorneys
emptyhanded so long as it moots the case just short of
final judgment. Only a foolish defendant would ever
pay fees in an injunction case, and only a foolish
plaintiff’s attorney would ever take an injunction
case.
V. The Federal Reporter is full of decisions where
religious plaintiffs vindicated their rights with a
preliminary injunction, and defendants acquiesced in
that injunction by mooting the case. With recalcitrant
government defendants, these cases can take years to
litigate and thousands of attorneys’ hours. Petitioner’s proposed rule would make it economically
foolish for plaintiff’s counsel to take on one of these
cases. That consequence would nullify Congress’s considered judgment that private enforcement is an
essential mechanism for specified statutes.
VI. Petitioner’s rule would dramatically disrupt
countless attorney-client relationships. Yet Petitioner
is silent about the reliance interests that its legal
revolution would upset. The proposed revolution is
also undertheorized. How could a plaintiff challenging a temporary order or one-time future event
ever “prevail”? And Petitioner’s theory reaches far
4
beyond preliminary injunctions, but he does not
discuss that reach.
Today, many people of faith can practice their religion only because they obtained enforceable judicial
relief. But according to Petitioner, many of those believers still have not “prevailed.” That construction
has no basis in the Fees Act or in common sense.
ARGUMENT
Congress authorizes federal courts to award “the
prevailing party … a reasonable attorney’s fee as part
of the costs” “[i]n any action or proceeding to enforce
a provision” of enumerated civil-rights statutes,
including “the Religious Freedom Restoration Act of
1993 [RFRA], [and] the Religious Land Use and Institutionalized Persons Act of 2000 [RLUIPA].” 42
U.S.C. §1988(b).
This Court has explained that a party has not
“prevailed” just because a “lawsuit brought about a
voluntary change in the defendant’s conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Hum. Res., 532 U.S. 598, 600 (2001).
Instead, a change must carry a “judicial imprimatur,”
with a plaintiff obtaining “a corresponding alteration
in the legal relationship of the parties.” Id.
But Petitioner’s proposed interpretation would
deprive plaintiffs of attorney’s fees even when those
parties have obtained a judicially enforceable court
order (a preliminary injunction) that orders a defendant to cease its unlawful practice and induces the defendant to permanently do so. Such an order alters
the legal relationship between the parties by making
defendant subject to sanctions for contempt of court if
5
it disobeys the injunction—a legal relationship that
did not exist before.
Petitioner’s interpretation is at odds with statutory context, structure, and purpose, and is potentially devastating to civil-rights and civil-liberties litigants, including people of faith who may be unable to
obtain attorneys to vindicate their rights and who will
frequently be unable to offer those attorneys any
meaningful compensation. A brief review of the law
and policy of §1988(b) will help place this case in
essential context.
I. The Civil Rights Attorney’s Fees Awards Act
of 1976 is an exercise of Congress’s primary
responsibility for the law of fee-shifting under
the American Rule.
Congress, not the judiciary, is primarily
responsible for the law of fee-shifting under the
American Rule. That rule is best understood against
the long Anglo-American tradition of statutory
regulation of attorney’s fees.
In England, the Statute of Gloucester, 6 EDW. I. c.
1 (1275), was the first statute that awarded plaintiffs
costs, and “the whole law on the subject was based [on
this Act] until 1875.” Arthur L. Goodhart, Costs, 38
YALE L.J. 849, 852 (1929).2
That statute provided that in cases pursuant to certain
listed writs, “whereas before time Damages were not taxed, but
to the Value of the Issues of the Land; it is provided, that the
Demandant may recover against the Tenant the Costs of his
Writ purchased, together with the Damages abovesaid.”
Goodhart at 852 (quoting 6 EDW. I. c. 1 (1275)). This legislative
approach of authorizing fees only for certain listed claims is the
same approach that the American Congress used 700 years later
2
6
Almost all the colonies regulated attorney’s fees by
statute. These statutes governed “both the fees a lawyer could charge his client and those that could be
recovered from a defeated adversary.” John Leubsdorf, Toward a History of the American Rule on Attorney Fee Recovery, 47 LAW & CONTEMP. PROBS. 9, 10-11
(1984).
This Court recognized the primacy of legislatures,
not courts, in allocating costs and fees from the early
days of the Republic. In Arcambel v. Wiseman, 3 U.S.
306 (1796), a plaintiff received $1,600 as attorney’s
fees in damages, so that he would be made whole after
paying his attorney. The Court rejected that award,
and entered a remittitur: “[t]he general practice of the
United States is in opposition to it; and even if that
practice were not strictly correct in principle, it is
entitled to the respect of the court, till it is changed,
or modified, by statute.” Id. at 306.
The Court eventually carved out a small number
of exceptions. See DOUGLAS LAYCOCK & RICHARD L.
HASEN, MODERN AMERICAN REMEDIES 925-28 (5th ed.
2019) (collecting exceptions to the American Rule).
For instance, under the “common fund” exception, the
Court relied on equitable precedent that it is unjust
for one of many parties in a trust to solely bear the
cost of litigation for all beneficiaries, concluding that
all beneficiaries of the judgment must share in the
cost of plaintiff’s attorney’s fees. See Internal Imp.
Fund Trustees v. Greenough, 105 U.S. 527, 533 (1881).
The common-fund exception does not involve feeshifting. Common-fund plaintiffs do not recover fees
from the defendant, but rather a pro rata share of fees
in the statute at issue here. In both eras, the legislature decided
which claims were appropriate for fee-shifting.
7
from fellow plaintiffs who benefited from the work of
the first plaintiff’s attorneys.
In the twentieth century, the lower federal courts
developed a broader, more novel concept for awarding
attorney’s fees without statutory authorization: the
private attorney-general theory. Under that theory,
courts awarded fees against defendants if “plaintiffs
have benefited their class and have effectuated a
strong congressional policy.” Sims v. Amos, 340
F.Supp. 691, 694 (M.D. Ala. 1972) (awarding fees to
plaintiffs in legislative apportionment case), aff’d
mem., 409 U.S. 942 (1972).
Critics argued that this inquiry “requires a
subjective evaluation on the part of a judge … to
distinguish important rights from less important ones
and thereby invites usurpation of the legislative
function.” Comment, Court Awarded Attorney’s Fees
and Equal Access to the Courts, 122 U. PA. L. REV. 636,
670 (1974).
This Court soon rejected this judicially created
private attorney-general theory, reiterating the primacy of Congress in directing the law of fee-shifting.
Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421
U.S. 240 (1975). The Court denied attorney’s fees to a
prevailing plaintiff in a suit brought under two
environmental statutes. The Court reasoned that “it
would be inappropriate for the Judiciary, without
legislative guidance, to reallocate the burdens of
litigation.” Id. at 247.
Congress immediately responded to Alyeska and
provided that legislative guidance.
8
II. The American Rule, together with the Fees
Act, makes it possible for private parties to
enforce important legislative policies.
A. The American Rule protects civil-rights and
civil-liberties plaintiffs from overwhelming
liability for defendants’ attorney’s fees.
Congress responded to Alyeska with the Civil
Rights Attorney’s Fees Awards Act of 1976 (the Fees
Act, or the Act), authorizing one-way fee-shifting in
claims under certain listed statutes. The Act works
hand in hand with the American Rule. The American
Rule protects impecunious plaintiffs, as explained below, and also defers to Congress. Congress acted to facilitate litigation by such plaintiffs in cases it judged
appropriate.
Under the American Rule, “absent express statutory authorization to the contrary, each party to a
lawsuit ordinarily shall bear its own attorney’s fees.”
City of Riverside v. Rivera, 477 U.S. 561, 567 (1986).
This rule avoids penalizing a party for merely
being involved in litigation, reduces fee litigation that
taxes judicial resources, and lessens the risk of fee
liability that would discourage litigants with limited
means. See Fleischmann Distilling Corp. v. Maier
Brewing Co., 386 U.S. 714, 718 (1967). “The fear of
deterring litigation is the most important of these
reasons.” LAYCOCK & HASEN, REMEDIES, at 924.
Congress most commonly enacts one-way feeshifting for civil-rights legislation, consumer-protection legislation, and labor and employment legislation. These laws protect plaintiffs who are generally
of modest means against violations of law by defendants who generally have deeper pockets—sometimes
9
much deeper pockets. Compensating defendants’ often highly paid counsel on an hourly or lodestar basis
would frequently bankrupt individuals and small notfor-profit organizations, including small religious
organizations like these amici. “These plaintiffs simply couldn’t litigate if there were any substantial risk
of liability for defendant’s fees.” Id.
B. The Fees Act enables plaintiffs to pay their
own attorneys so that the enumerated statutes can be enforced.
1. Few of these plaintiffs could even pay their own
attorneys without some sort of arrangement that
makes payment contingent on winning. But in the
civil-rights and civil-liberties cases covered by
§1988(b), the relief sought is often an injunction, not
damages. Even when damages are sought, they are
often modest, compensating intangible harms or the
losses from a single wrongful transaction. Such cases
cannot support contingent-fee litigation on the usual
model familiar from personal-injury litigation.
The prevailing plaintiff’s right to recover attorney’s fees under §1988(b) creates a fund out of which
counsel can be paid. Without the statutory ability to
recover fees, there would be no financial incentive for
attorneys to represent plaintiffs seeking to vindicate
violations of civil and constitutional rights that cause
nonpecuniary or small-dollar injuries. See Newman v.
Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968)
(“If successful plaintiffs were routinely forced to bear
their own attorneys’ fees, few aggrieved parties would
be in a position to advance the public interest by
invoking the injunctive powers of the federal courts.”).
Our Constitution and laws recognize these injuries as
10
fundamental, despite their often being suffered in
nonpecuniary contexts or in small transactions.
Among the small and often impecunious plaintiffs
protected by §1988(b) are religious individuals and
small religious organizations. See, e.g., FNU Tanzin
v. Tanvir, 592 U.S. 43 (2020) (individual plaintiffs);
Holt v. Hobbs, 574 U.S. 352 (2015) (No. 13-6827)
(individual plaintiff litigating in forma pauperis);
Cutter v. Wilkinson, 544 U.S. 709 (2005) (No. 03-9877)
(same). According to the largest-scale empirical
study, half of all religious congregations in the United
States have 75 or fewer regular participants, and 50
or fewer regular adult participants. MARK CHAVES,
CONGREGATIONS IN AMERICA 18-19 & Table 2.1 (2004).
The median congregation has only $1,000 in a savings
account, and a total annual budget of $56,000. Id. at
19-20. Such organizations cannot pay for expensive
litigation, whether in 2004 (when the book appeared)
or today. Even national organizations such as these
amici generally operate on shoestring budgets and
cannot afford to pay the hourly rates of American
lawyers.
Congress’s choice to provide fee-shifting, even
against its own pecuniary interest in the case of
statutes such as RFRA, which applies to the federal
government, “increase[s] monitoring of agencies and
private firms, deterrence of agency and private
wrongdoing, and more complete compensation of
injured parties.” Harold J. Krent, Explaining OneWay Fee Shifting, 79 VA. L. REV. 2039, 2074 (1993).
2. Another reason Congress has enacted one-way
fee-shifting is a policy judgment that private enforcement will often be more effective than government enforcement. Cf. S. Rep. No. 94-1011 at 2 (1976) (“All of
11
these civil rights laws depend heavily upon private
enforcement, and fee awards have proved an essential
remedy if private citizens are to have a meaningful
opportunity to vindicate the important Congressional
policies which these laws contain.”).
Unlike with government attorneys, the profit motive incentivizes private attorneys to find, take, and
win meritorious cases. The affected parties often have
greater information available to them than do public
enforcers—an especially important factor for religious
organizations and individuals with unfamiliar beliefs
and practices. See F. A. Hayek, The Use of Knowledge
in Society, 35 AM. ECON. REV. 519, 521-22 (1945). And
private parties, unlike government actors, need not
worry about the political implications of pursuing
their cases, or the allocation of human capital to other
legislative or executive priorities. See John Greil, The
Unfranchised Competitor Doctrine, 66 VILL. L. REV.
357, 407-08 (2021). Lawyers in private practice are
not dependent on often inadequate legislative appropriations, and private enforcement does not require expansion of government bureaucracies.
3. Before 1976, Congress had enacted fee-shifting
provisions for particular statutes, one statute at a
time. The Fees Act was Congress’s “first bill ever
passed dealing solely with the question of attorney’s
fees.” Mary Frances Derfner, The Civil Rights Attorney’s Fees Awards Act of 1976, in PUBLIC INTEREST
PRACTICE AND FEE AWARDS 23 (Herbert B. Newberg
ed., 1980). The bill that became the Act was originally
12
drafted in May 1975, less than a month after Alyeska
was decided. Id. at 14 n.4.3
The Act, codified at 42 U.S.C. §1988(b), enumerates specific statutes that allow plaintiffs to recover
attorney’s fees. The Act’s rationale was unambiguous:
fee awards were “an essential remedy” for the listed
civil-rights and civil-liberties statutes. S. Rep. No. 941011 at 2 (1976).
In many cases arising under our civil rights
laws, the citizen who must sue to enforce the
law has little or no money with which to hire a
lawyer. If private citizens are to be able to
assert their civil rights, and if those who violate
the Nations’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.
Ibid.
The Act also eliminated “anomalous gaps” in the
post-Alyeska landscape. Id. at 4. For instance, the
Senate Report noted that “fees are allowed in a
housing discrimination suit brought under Title VIII
of the Civil Rights Act of 1968 [because expressly
authorized by 42 U.S.C. §3613(c)(2)], but not in the
same suit brought under 42 U.S.C. § 1982, a
Reconstruction Act protecting the same rights,” but
not mentioning fees. Id. To avoid creating new gaps,
the original list of statutes in §1988(b) has repeatedly
been expanded, as with the addition of RFRA in 1993,
3 For a recounting of the drafting history of the Act, see Derf-
ner at 24-32.
13
see 107 STAT. 1488, §4, and RLUIPA in 2000, see 114
STAT. 803, §4(d).
Just as this Court honored and enforced congressional policy in Alyeska, before Congress thought to
authorize fee awards for many of these statutes, so it
must honor and enforce congressional policy now,
when Congress has expressly authorized fees and
found them to be an “essential remedy.”
This is the “statutory context” that must “inform”
the meaning of “prevailing party” under the Act.
Gallardo By & Through Vassallo v. Marstiller, 596
U.S. 420, 430 (2022).
III. Plaintiffs that obtain a preliminary injunction have materially altered the legal relationship of the parties, and are prevailing parties if
the defendant acquiesces in the preliminary injunction so that it effectively ends the case.
A. Unlike the cases on which Petitioner relies,
Respondents benefited from a court-ordered
change in Petitioner’s behavior.
“The touchstone of the prevailing party inquiry
must be the material alteration of the legal relationship of the parties in a manner which Congress
sought to promote in the fee statute.” Tex. State
Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.
782, 792-93 (1989). In this case, Respondents legally
altered the relationship of the parties by obtaining a
preliminary injunction, requiring Petitioner to
change his behavior or face contempt proceedings. To
fully spell out the alteration of the legal relationship:
Petitioner was not subject to contempt proceedings
before the preliminary injunction; after the preliminary injunction, he was. That Petitioner recognized
14
this and permanently changed his behavior reinforces
the reality that Respondents prevailed.
This posture—enforceable judicial action not
overturned by further litigation—sets this case apart
from Petitioner’s preferred precedents.
First, Respondents personally and permanently
benefited from the judicial action.
That distinguishes this case from Hewitt v. Helms,
where the lawsuit ultimately led to prison reform, but
the plaintiff did not benefit from the reforms because
“[b]efore any decision was rendered, [he] was released
from prison on parole.” 482 U.S. 755, 757 (1987); cf.
Pet. Br. at 20. The plaintiff in Hewitt “obtained no
relief. … No injunction or declaratory judgment was
entered in his favor.” 482 U.S. at 760 (emphasis
added). “The most that he obtained” was a denial of
defendants’ motion to dismiss. Id. Here, by contrast,
Respondents obtained affirmative relief in the form of
a preliminary injunction that turned out to be dispositive.
Second, Respondents’ actions are not merely “a
voluntary change in the defendant’s conduct.” Contra
Pet. Br. at 20 (quoting Buckhannon Bd. & Care Home,
532 U.S. at 601).
In Buckhannon, the legislature responded to the
lawsuit—not to a court order—by repealing the
challenged law. 532 U.S. at 609. As in Hewitt, the
plaintiffs never obtained an injunction that altered
the legal relationship between the parties. If the
present case looked like Buckhannon, then the statutory change would have occurred before any injunction was issued. But that is not what happened. Instead, Petitioner litigated, and Petitioner lost.
15
Third, Respondents obtained affirmative relief: an
enforceable injunction. By contrast, the plaintiffs in
Hanrahan v. Hampton did not “prevail,” because they
merely obtained an appellate reversal of a directed
verdict. 446 U.S. 754, 758 (1980); contra Pet. Br. at
21. They were thus “in a position no different from
that they would have occupied if they had simply
defeated the defendants’ motion for a directed verdict”
in the trial court. Hanrahan, 446 U.S. at 758-59.
Here, Respondents did not merely survive a motion to
dismiss or a motion for summary judgment. They
obtained a court order, enforceable against defendants had defendants failed to comply.
B. Unlike the plaintiffs in Sole v. Wyner,
Respondents obtained judicial relief that
turned out to be dispositive.
1. Most important, plaintiffs obtained vastly more
than did the plaintiffs in Sole v. Wyner, 551 U.S. 74
(2007), on which Petitioner principally relies. The
Court in Sole unambiguously stated what it was
deciding:
This case presents a sole question: Does a
plaintiff who gains a preliminary injunction
after an abbreviated hearing, but is denied a
permanent injunction after a dispositive adjudication on the merits, qualify as a “prevailing
party” within the compass of § 1988(b)? … A
plaintiff who achieves a transient victory at the
threshold of an action can gain no award under
that fee-shifting provision if, at the end of the
litigation, her initial success is undone and she
leaves the courthouse emptyhanded.
Id. at 77 (emphasis added).
16
Petitioner’s brief never quotes any of the key
phrases from the language we have italicized. Neither
does the United States, nor any of the other amicus
briefs supporting Petitioner. They cannot quote that
language, because they have no answer to it.
Petitioner’s brief discusses characteristics of preliminary injunctions in the abstract. It says little or nothing about the particular preliminary injunctions in
Sole and in this case. Petitioner relies on a stylized
version of Sole that has little connection to the judgment the Court actually rendered in Sole.
Unlike defendants in Sole, Petitioner did not
continue litigating to any adjudication of the merits
more “dispositive” than the preliminary injunction.
Unlike in Sole, no court ever “denied a permanent
injunction.” Unlike in Sole, Respondents’ “initial success” was final success; it was never “undone.” Unlike
in Sole, Respondents here achieved permanent success, not “transient” success.
Petitioner does quote the phrase “on the merits”
from Sole, Pet. Br. 2, but he inverts what Sole actually
said. Petitioner writes as though Sole said that a
plaintiff who obtains a preliminary injunction is not a
prevailing party unless plaintiff later and further prevails on the merits at final judgment. But what Sole
actually said is that a plaintiff who obtains a
preliminary injunction is not a prevailing party if
defendant later prevails on the merits at final judgment, so that plaintiff’s “initial success is undone and
she leaves the courthouse emptyhanded.” 551 U.S. at
77.
Earlier cases using the phrase “on the merits” did
not address the issue presented here. None of those
cases involved a plaintiff who had obtained a
17
preliminary injunction that defendant had accepted
as dispositive.
And long ago this Court unanimously rejected
Petitioner’s claim that no plaintiff can be a prevailing
party without first obtaining a final judgment on the
merits. A consent decree makes plaintiff a prevailing
party even though it contains not even a preliminary
determination of the merits. Maher v. Gagne, 448 U.S.
122 (1980). “Nothing in the language of §1988 conditions the District Court’s power to award fees on full
litigation of the issues or on a judicial determination
that the plaintiff’s rights have been violated.” Id. at
129. “I agree with this conclusion” that “the award of
attorney’s fees under §1988 does not require an adjudication on the merits of the constitutional claims.”
Id. at 134 (Powell, J., concurring in the judgment).
2. The litigation leading to a preliminary injunction was much more extensive in this case than in
Sole. In Sole, plaintiffs filed the complaint on Day 1,
the court granted the preliminary injunction on Day
2, the event protected by the preliminary injunction
occurred on Day 3, and the preliminary injunction
then expired by its own terms. Sole, 551 U.S. at 84.
Here, there were two years of litigation under a
complaint that was dismissed without prejudice. Jt.
App. 1-20 (docket entries), 351 (District Court opinion). Both sides no doubt learned much from that
phase of the litigation. Plaintiffs filed an amended
complaint on September 11, 2018. Id. at 71, 121
(showing the date). Both sides filed extensive briefs.
Id. at 124-71. The Court conducted a preliminaryinjunction hearing with live witness testimony and
oral argument. Id. at 172-349. And on December 21,
it granted the preliminary injunction with an opinion
18
that fills thirty pages in the Joint Appendix. Id. at
350-79.
3. But the Court need not consider these kinds of
details. It need not devise a line-drawing rule about
how much consideration of a motion for preliminary
injunction makes the resulting preliminary injunction sufficiently authoritative to support an award of
attorney’s fees. It can just let defendants decide.
If a defendant believes that a preliminary-injunction decision leaves more to be litigated, it can simply
continue the litigation. It can move for summary judgment, or demand a trial and require plaintiff to move
forward with the motion for a permanent injunction.
It can attempt to reverse the initial result in “a dispositive adjudication on the merits,” as in Sole, 551 U.S.
at 77. Or if it has sufficient remaining arguments to
give it any bargaining leverage, it can attempt to negotiate a settlement that is not embodied in a consent
decree and does not include attorney’s fees.
But a defendant may know that it has offered all
or most of the facts and argument that it has.
Defendant may know that it has lost, that the small
odds of success in continued litigation are not worth
the expense, and that it has little or nothing left with
which to bargain. Then it can accept the preliminary
injunction as dispositive and act to make the case
moot.
The court need not evaluate defendant’s reasoning
or how much it litigated the preliminary injunction.
All the court needs to know is defendant’s final
decision. When defendant surrenders after the preliminary injunction, it acknowledges defeat and makes
the preliminary injunction dispositive and effectively
19
final. It acknowledges, implicitly but unambiguously,
that plaintiff has prevailed. That is what happened
here.
IV. It would frustrate the policy of the Act to
preclude attorney’s fees to plaintiffs who have
obtained a preliminary injunction that defendant accepts as effectively dispositive.
A. Under Petitioner’s theory, defendants can litigate a preliminary injunction to the limits permitted
by the Federal Rules, exhaust all their arguments of
both law and fact, lose on every significant issue—and
still not lose. Look at this case, where Petitioner
dragged Respondents through more than two years of
litigation and a trip to the Court of Appeals before
Respondents obtained a preliminary injunction granting the very relief they sought, with an opinion that
was so well grounded that Petitioner chose not to appeal. Yet Petitioner claims that he still hasn’t lost.
Under Petitioner’s proposed rule, only a foolish or
profligate defendant’s counsel, having reviewed the
District Court’s legal analysis finding government
action unlawful, would proceed to a settlement or
final decree that requires paying plaintiffs’ attorney’s
fees. Instead, a simple mootness procedure saves
thousands or occasionally millions of dollars.
For defendants, the economically rational course
will be to vigorously litigate any motion for preliminary injunction, get an effective ruling on the law, and
then moot the case if the ruling goes against them.
Heads defendants win; tails the plaintiffs’ lawyers
lose and go unpaid. The lengths to which this strategy
could be pursued are illustrated in the cases reviewed
in Parts V and VI of this brief. See also Joseph C.
20
Davis & Nicholas R. Reaves, The Point Isn’t Moot:
How Lower Courts Have Blessed Government Abuse of
the Voluntary-Cessation Doctrine, 129 YALE L.J.F.
325, 329-31 (2019) (surveying strategic mooting in
religious prisoner cases).
Potential plaintiff’s lawyers will soon get the
message. Either never take a case that depends on
fees under §1988(b), or if you do, never move for a
preliminary injunction. Leave your potential client
unrepresented, or accept the case but let the client
suffer continuing irreparable injury, unable to exercise his asserted constitutional rights, while defendant drags out the case and delays final judgment as
long as possible. Otherwise, even if you win for your
client, you will leave the case with nothing after the
defendant fully litigates the issues at the preliminary
injunction stage, loses, and then moots the case.
A preliminary injunction often ends the case.
Defendant may see the writing on the wall—or in the
court’s opinion—and end the unlawful practice. The
preliminary injunction may also force the government
to try an accommodation or program it had previously
resisted, and then realize that the sky does not fall
with those changes in place.
B. This Court has observed that the risk of twoway fee-shifting would “discourage all but the most
airtight claims, for seldom can a prospective plaintiff
be sure of ultimate success.” Christiansburg Garment
Co. v. EEOC, 434 U.S. 412, 422 (1978). But Petitioner’s rule is worse in one important way: even with an
airtight claim, attorneys may avoid a case where
getting paid is mostly or entirely in defendant’s
hands. “The strongest cases are less attractive,
because defendant is more likely to change its illegal
21
practice without a formal settlement.” LAYCOCK &
HASEN, REMEDIES, at 936 (citing a study of Buckhannon’s effects in Catherine R. Albiston & Laura Beth
Nielsen, The Procedural Attack on Civil Rights: The
Empirical Reality of Buckhannon for the Private
Attorney General, 54 UCLA L. REV. 1087 (2007)).
Albiston and Neilsen note how Buckhannon can
disincentivize defendants from early settlement and
delay providing any relief, because defendants can
always avoid the risk of paying a larger fee award, or
any fees at all, by surrendering later. Albiston &
Nielson at 1109. Or they can play it the other way,
forcing plaintiffs to trade away complete relief to
obtain partial compensation for their attorneys. Buckhannon thus interacts with Evans v. Jeff D, 475 U.S.
717 (1986), on waiving fees in settlement negotiations, to further increase defendants’ leverage. The
Court should not extend Buckhannon to bar fees even
when defendant accepts the practical finality of a
preliminary injunction.
C. In the Fees Act, Congress authorized attorney’s
fees to enable law enforcement through private litigation. “Congress expected fee shifting to attract competent counsel to represent citizens deprived of their
civil rights….” Evans, 475 U.S. at 731. Petitioner’s
theory of prevailing plaintiffs therefore not only finds
no basis in the statutory text; it also undermines the
purpose and structure of the statute. Cf. MCI Telecommunications Corp. v. Am. Tel. & Tel. Co., 512 U.S.
218, 228-29 (1994) (rejecting proposed meaning of
“modify” that would undermine statutory structure
and context).
“It is not from the benevolence of the butcher, the
brewer, or the baker that we expect our dinner, but
22
from their regard to their own interest.” ADAM SMITH,
THE WEALTH OF NATIONS 11 (Laurence Dickey ed.
1993) (1776). Congress understood that the same goes
for many attorneys vindicating civil and constitutional rights. And even those attorneys with altruistic
motivations must still earn a living and support their
families.
V. Religious individuals and organizations will
be particularly harmed by Petitioner’s rule.
People of faith depend on their constitutional and
statutory rights to freely exercise their religion.
Congress recognized the importance of private enforcement of these rights by including 42 U.S.C. §1983
(the vehicle for enforcing free-exercise rights against
state and local governments) in the Fees Act and
later, by amending the Act to include RFRA and
RLUIPA. Indeed, given the almost infinite variety of
religious practices in our nation, along with government officials’ frequent unfamiliarity with minority
faiths, and their occasional hostility to traditional
faiths, it is hard to imagine public enforcement ever
sufficing to protect religious liberty for all.
Often, the governmental barrier to religious exercise is unnecessary and easy to remedy, but unless remedied, completely destructive of a particular religious practice. Removing those obstacles can be
expensive and resource intensive. A few examples
may help.
These examples also reveal the error in Petitioner’s suggestion that the impact of his rule would be
minimal because strategic mooting “will typically be
impracticable.” Pet. Br. at 51. Mooting this case required legislation, but that is not the norm. Very
23
often, the challenged rule or practice is local not statewide; is based on a regulation, not a statute; or is
merely an administrative practice not even embodied
in a regulation.
A. Guaranteeing student free exercise and free
religious speech
Petitioner’s rule would directly affect amicus
Christian Legal Society. Student chapters of CLS
have been parties in litigation, e.g. Christian Legal
Soc’y v. Martinez, 561 U.S. 661 (2010), and CLS staff
serve as co-counsel assisting other attorneys in
protecting students’ rights to religious liberty.
In San Jose, California, Pioneer High School
derecognized the student chapter of the Fellowship of
Christian Athletes, which eliminated funding opportunities and priority access to campus meeting
spaces, because the group set creed and conduct standards for student leaders of the club. Amicus CLS
served as co-counsel for the plaintiffs. The District
Court denied a preliminary injunction, and the Ninth
Circuit reversed, holding that the school selectively
enforced its non-discrimination policy in violation of
the Equal Access Act and the First Amendment.
Fellowship of Christian Athletes v. San Jose Unified
Sch. Dist. Bd. of Educ., 46 F.4th 1075 (9th Cir. 2022).
The school successfully petitioned for rehearing en
banc. 59 F.4th 997 (9th Cir. 2023) (vacating the panel
opinion). But then the en banc court also reversed the
District Court’s denial of the preliminary injunction,
finding likely violations of the Free Exercise and Free
Speech Clauses and of the Equal Access Act. 82 F.4th
664, 696 (9th Cir. 2023) (en banc). On remand, the
school district settled, agreeing to a consent judgment
24
and payment of a portion of plaintiffs’ attorney’s fees
and costs. See Revised Consented Entry of Judgment
and Permanent Injunction, Sinclair v. San Jose
Unified Sch. Dist. Bd. of Educ., No. 4:20-cv-2798, ECF
No. 237 (N.D. Cal., May 6, 2024).
This peripatetic journey just to secure the rights of
a high-school student group was arduous and expensive. The school district ultimately agreed to pay $5.8
million in attorney’s fees and expenses. Steve West,
Settlement confirms Fellowship of Christian Athletes
students’ right to choose leaders, WORLD (May 7,
2024), https://wng.org/roundups/settlement-confirmsfellowship-of-christian-athletes-students-right-tochoose-leaders-1715108675 [https://perma.cc/95L3P76J].
But if Petitioner’s rule became the law of the land,
plaintiffs might never have recovered fees at all. The
school district could have simply allowed the student
group to operate and thereby have mooted the case.
And it could do that after it had forced plaintiffs’ attorneys to invest thousands of hours in the case, litigating through rehearing en banc in the Court of
Appeals.
Part of the fee petition might have been saved by
a damage claim in the case, but plaintiffs still would
not have been prevailing parties with respect to the
part of the litigation devoted to the injunction claim.
Separating damages hours from injunction hours
would have complicated the fee litigation and weakened plaintiffs’ bargaining position in any attempt to
settle the fee litigation. And often there will be no
plausible damage claim to help salvage a fee petition.
25
Bargaining under the shadow of Petitioner’s rule,
only a foolish government defendant would agree to a
consent decree. That would either include plaintiff’s
fees or entitle plaintiffs to prevailing-party status.
The cheaper and more strategic option is to fully
litigate the legal issues in a preliminary-injunction
posture, and then if defendants lose, moot the case.
B. Ensuring access to a sacred river
At a sacred bend in the San Antonio River, two
members of the Native American Church could not
perform important religious ceremonies because city
officials had fenced off the area. See Perez v. City of
San Antonio, 98 F.4th 586, 595 (5th Cir. 2024).
Plaintiffs sued and obtained a preliminary injunction
that prohibited the City from blocking access for
religious ceremonies and required the City to remove
a hanging branch that endangered visitors, or so the
City said. Id. With the only alleged danger (the
hanging branch) gone, the City removed the fencing
around the area.
On appeal, the Fifth Circuit found that the issue
of access was moot—but again, it was moot only
because of the enforceable judicial intervention. The
City had refused to grant access before the lawsuit
was filed, refused to grant access on a prior emergency motion for a temporary restraining order, and appealed the District Court’s preliminary injunction
granting access (dropping that issue on appeal only
after plaintiffs filed their merits brief). See Perez v.
City of San Antonio, No. 23-50746, ECF No. 146 (5th
Cir. Nov. 21, 2023) (motion for partial dismissal of
appeal). That is not what “voluntary” action looks
like.
26
But under Petitioner’s rule, a government has
chance after chance to seek a win, before mooting the
case after a defeat that it accepts as final. The government could file a motion to reconsider in the District
Court, then appeal the preliminary injunction to the
Court of Appeals (perhaps with a motion to stay the
preliminary injunction pending appeal), lose at the
Court of Appeals, see how an en banc petition and
even a cert petition turn out, losing at every step but
also driving up costs for the plaintiff and plaintiff’s
attorneys, and then moot the case—all without ever
turning plaintiff into a “prevailing party.”
C. Protecting Easter worship
In April 2020, worshipers celebrated an Easter
service at Maryville Baptist Church in Kentucky.
State officials responded by notifying the attendees
“of future ‘enforcement measures,’ including misdemeanor charges” for violating COVID-19 restrictions
on gathering and travel. Roberts v. Neace, 65 F.4th
280, 283 (6th Cir. 2023) (Roberts II). The congregants
sued under the First Amendment and obtained a
preliminary injunction covering part of their claim.
On appeal, plaintiffs obtained a much broader
preliminary injunction that prohibited defendants
from banning services at their church. Roberts v.
Neace, 958 F.3d 409, 416 (6th Cir. 2020) (per curiam).
The regulations likely violated the Free Exercise
Clause, because they contained “four pages of exceptions.” Id. at 413. After a partial voluntary dismissal
and a legislative change limiting state executive
power, the case was moot. Roberts II, 65 F.4th at 283.
Chief Judge Sutton held that the plaintiffs were
prevailing parties under §1988(b). “A defendant may
not fairly claim that he voluntarily amended his
27
behavior after a court enjoins his old ways.” 65 F.4th
at 285. “Once a plaintiff earns ‘some relief,’ … he steps
outside Buckhannon’s domain.” Id. (quoting 532 U.S.
at 603). The plaintiffs had obtained “a material, courtordered change” that “stopped the Governor from
enforcing his orders and allowed congregants to act in
ways that he had previously resisted.” Id. at 284
(citation omitted). This meant that plaintiffs prevailed and were entitled to attorney’s fees.
Under Petitioner’s rule, plaintiffs’ attorneys would
have come up empty. They would have no incentive to
take on the next religious-liberty plaintiff in need of
their services.
D. Preserving home prayer meetings
This Court may recall the in-home Bible studies
and prayer meetings protected in Tandon v. Newsom,
593 U.S. 61, 62 (2021) (per curiam). This is another
case in which a preliminary injunction turned out to
be dispositive. And it illustrates an important point
about challenges to short-term or interim measures
that are likely unconstitutional.
In Tandon, the plaintiffs filed an emergency
application for relief in this Court on April 2, 2021;
the defendants responded by “chang[ing] the challenged policy shortly after this application was filed”
so that the policy would expire on April 15, 2021.
Id. This Court held that the case was not moot,
because state officials with a “track record of moving
the goalposts retain authority to reinstate those
heightened restrictions at any time.” Id. at 64
(internal quotation marks omitted). And the Court
held that plaintiffs were “entitled to an injunction
pending appeal.” Id.
28
On remand to the District Court, the parties
agreed to a permanent injunction and an award of
attorney’s fees. See Tandon v. Newsom, No. 5:20-cv07108, ECF Nos. 73-75 (N.D. Cal. 2021).
But under Petitioner’s rule, even an order for relief
in this Court would not have made plaintiffs prevailing parties, and a settlement negotiation following
this Court’s order would have been unlikely. California had many ways to moot the case. It could have
ended its Covid restrictions, exempted religious worship, or exempted a narrow class of home worshipers
drafted to include plaintiffs.
Under Petitioner’s rule, it is hard to imagine how
any challenge to a temporary measure could result in
a prevailing plaintiff. Cf. Kendall v. Doster, 144 S. Ct.
481 (2023) (RFRA-based preliminary injunction
against temporary vaccine mandate vacated under
United States v. Munsingwear, Inc., 340 U.S. 36
(1950)). Under Petitioner’s rule, plaintiffs will be “entitled to relief” by the courts, Tandon, 593 U.S. at 64,
will obtain that relief from the courts, and still not be
considered “prevailing parties” within the meaning of
the Fees Act, because defendant can always abandon
its challenged measure without further litigation.
That is not the best reading of the statute.
VI. Petitioner’s proposed rule is undertheorized and does not grapple with the significant
reliance interests at issue.
A. All eleven circuits that have considered
Petitioner’s proposed rule have rejected it. See Pet.
App. 19a (collecting cases). Adopting it would upset
the civil-rights and civil-liberties landscape of Ameri-
29
can litigation. Yet Petitioner’s brief is mostly silent on
this upheaval.
Adopting Petitioner’s rule would cause hardship to
countless parties that have structured their decisions
on the current state of the law. What will happen to
plaintiffs, who may be years into a case, if their counsel must withdraw out of newly created economic necessity? “The need to take account of reliance interests forces a justice to think carefully about whether
she is sure enough about her rationale for overruling
to pay the cost of upsetting institutional investment
in the prior approach.” Amy Coney Barrett, Precedent
and Jurisprudential Disagreement, 91 TEX. L. REV.
1711, 1722 (2013). But Petitioner offers this Court no
guidance about those costs.
Petitioner’s rule is also undertheorized. For instance, how can a plaintiff ever “prevail” when the
challenged action is a temporary order or one-time
future event? Is every case—even where plaintiffs receive complete relief through a preliminary injunction—subject to defendant’s unilateral power to accept the preliminary injunction as dispositive without
making plaintiff a prevailing party? Are many such
cases going to result in expensive Munsingwear briefing on appeal, unnecessarily taxing the parties and
the courts? “[P]etitioners’ strategy for dealing with
the confusion is not to offer a theory for rationalizing
this body of law.” Haaland v. Brackeen, 599 U.S. 255,
279 (2023). It is just to pretend that these theoretical
gaps do not exist and hope that no one notices.
B. Moreover, nothing in Petitioner’s theory is limited to preliminary injunctions. If defendants are free
to moot a case at any time before a final judgment is
entered on the merits, they can lose on a motion for
30
permanent injunction and then moot the case before
that injunction is formally entered as a final judgment. They can moot the case even after finally and
authoritatively losing in this Court.
In Fulton v. City of Philadelphia, 593 U.S. 522, 543
(2021), this Court held that the City’s rule “cannot
survive strict scrutiny, and violates the First Amendment.” In Trinity Lutheran Church v. Comer, 582 U.S.
449, 467 (2017), the Court held that the State’s rule
“is odious to our Constitution all the same, and cannot
stand.” These opinions unambiguously decided the
two cases. Yet Fulton merely reviewed decisions
refusing a preliminary injunction, and Trinity
reviewed decisions granting a motion to dismiss.
Under Petitioner’s theory, neither plaintiff had
prevailed.
For such an example where the fee issue was
litigated, see McDonald v. City of Chicago, 646 F.3d
992 (7th Cir. 2011). The District Court had dismissed
the complaint on defendants’ motion, the Court of
Appeals affirmed, and this Court reversed with an
opinion resolving the only seriously disputed issue in
the case. 561 U.S. 742 (2010) (holding that the Second
Amendment applies to the states). Chicago repealed
its challenged ordinance four days later; the other
defendant soon followed. 646 F.3d at 993. Both
ordinances were repealed even before this Court
issued its mandate on July 30, and more than a month
before the Court of Appeals remanded the case to the
District Court.
The District Court dismissed the case as moot, and
both defendants then argued that the mootness
holding meant that plaintiffs had not prevailed. Chief
31
Judge Easterbrook, writing for the Court of Appeals,
sensibly rejected that argument:
Whether the second amendment applies to the
states and subsidiary units of government was
the issue in this litigation. … This litigation
was over except for the entry of an injunction
by the district court. Chicago and Oak Park
capitulated, which made the exercise unnecessary. … If a favorable decision of the Supreme
Court does not count as “the necessary judicial
imprimatur” on the plaintiffs’ position (Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835), what
would?
Id. at 994.
Here, Petitioner “capitulated” after losing in a wellreasoned opinion on a motion for preliminary injunction. Under Petitioner’s formalistic approach, that
preliminary injunction granted far more relief than
this Court’s opinion in McDonald, which merely “remanded for further proceedings.” 561 U.S. at 791. But
what should matter in either procedural posture is
that plaintiffs had so clearly won that defendants
finally and authoritatively capitulated.
* * *
People of faith need attorneys to vindicate their
rights. Their cases generally do not demand money,
but only the ability to exercise their religion, which
they deem infinitely more valuable. Many will lack
the means to pay an attorney out of pocket. Congress
recognized all of this, which is why §1988(b)
enumerates RFRA, RLUIPA, and §1983 as statutes
Congress wants privately enforced. California’s faithbased student groups and in-home worshipers,
32
Texas’s indigenous worshipers, and Kentucky’s Easter worshipers could practice their religion only because they obtained enforceable judicial relief. But
according to Petitioner, they still did not “prevail.”
That construction has no basis in statutory text or in
common sense.
CONCLUSION
The Court should affirm the judgment below and
hold that a defendant’s permanent compliance with
an enforceable judicial order makes the plaintiff a
prevailing party under the Fees Act.
Respectfully submitted,
Douglas Laycock
Counsel of Record
John Greil
Steven T. Collis
Law & Religion Clinic
University of Texas
School of Law
727 E. Dean Keeton St.
Austin, TX 78705
512-475-9090
dlaycock@law.utexas.edu
John.greil@law.utexas.edu
Steven.collis@law.utexas.edu
August 19, 2024
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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.