Reply 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

_______________________________________________

REPLY BRIEF FOR PETITIONER

_______________________________________________

JASON S. MIYARES

Attorney General of Virginia

MAYA M. ECKSTEIN

TREVOR S. COX

DAVID M. PARKER

HUNTON ANDREWS

KURTH LLP

Riverfront Plaza, East Tower

951 E. Byrd Street

Richmond, Virginia 23219

ERIKA L. MALEY

Solicitor General

Counsel of Record

KEVIN M. GALLAGHER

Principal Deputy Solicitor

General

GRAHAM K. BRYANT

Deputy Solicitor General

M. JORDAN MINOT

Assistant Solicitor General

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

EMaley@oag.state.va.us

Counsel for Petitioner

TABLE OF CONTENTS

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

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

INTRODUCTION ........................................................1

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

I.

Interlocutory orders that do not resolve the

merits of any claim do not render plaintiffs

the “prevailing party” .......................................3

A. Text and precedent confirm that Section

1988 requires a conclusive resolution on

the merits or final judgment..........................3

B. Respondents’ appealable-order test is

erroneous ........................................................9

II.

Relief must be enduring to warrant fees,

not just have “real-world effect” .....................13

III.

Respondents’ proposed rule creates

perverse incentives and penalizes

defendants who did not violate the law .........17

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

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott v. Perez, 585 U.S. 579 (2018) ......................... 11

Astrue v. Ratliff, 560 U.S. 586 (2010) ......................... 3

Brotherhood of Maintenance of Way Emps. v.

Chicago & Nw. Transp. Co.,

827 F.2d 330 (8th Cir. 1987) ................................ 20

Buckhannon Bd. & Care Home, Inc. v. West

Va. Dep’t of Health & Human Res.,

532 U.S. 598 (2001) ..................... 1, 4, 5, 6, 7, 9, 11,

14, 15, 19, 21, 22, 23, 25

Chambers v. NASCO, Inc., 501 U.S. 32 (1991) ........ 10

Clancy v. Geb, 104 N.W. 746 (Wis. 1905) ................... 8

Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949) .............................................. 10

De Jesus Nazario v. Morris Rodriguez,

554 F.3d 196 (1st Cir. 2009) ................................ 14

DiMartile v. Hochul,

80 F.4th 443 (2d Cir. 2023) ................ 14, 15, 18, 19

Dupuy v. Samuels, 423 F.3d 714 (7th Cir. 2005) ..... 18

Epic Sys. Corp. v. Lewis, 584 U.S. 497 (2018) ............ 8

Exxon Mobil Corp. v. Allapattah Servs., Inc.,

545 U.S. 546 (2005) ................................................ 8

Farrar v. Hobby, 506 U.S. 103 (1992)..... 1, 6, 7, 14, 24

Federal Bureau of Investigation v. Fikre,

601 U.S. 234 (2024) .............................................. 22

Fleming v. Gutierrez,

785 F.3d 442 (10th Cir. 2015) .............................. 20

Fowler v. Benson,

924 F.3d 247 (6th Cir. 2019) .......................... 11, 12

George v. McDonough, 596 U.S. 740 (2022) ............... 4

iii

Hanrahan v. Hampton, 446 U.S. 754 (1980)........ 8, 16

Hewitt v. Helms, 482 U.S. 755 (1987) ......... 5, 6, 13, 16

Independent Fed’n of Flight Attendants v. Zipes,

491 U.S. 754 (1989) ................................................ 6

Kentucky v. Graham, 473 U.S. 159 (1985) ................. 6

Lefemine v. Wideman, 568 U.S. 1 (2012) ................... 7

Lewis v. Continental Bank Corp.,

494 U.S. 472 (1990) .............................................. 17

Marceaux v. Lafayette City-Par. Consol. Gov’t,

731 F.3d 488 (5th Cir. 2013) ................................ 14

MCI Telecomms. Corp. v. American Tel. & Tel. Co.,

512 U.S. 218 (1994) ................................................ 4

McQueary v. Conway,

614 F.3d 591 (2010).................................. 10, 18, 19

New York State Rifle & Pistol Ass’n, Inc. v.

City of New York, 590 U.S. 336 (2020) .......... 22, 23

Niz-Chavez v. Garland, 593 U.S. 155 (2021) ............. 4

Northern Cheyenne Tribe v. Jackson,

433 F.3d 1083 (8th Cir. 2006) .............................. 18

People Against Police Violence v. City of Pittsburgh,

520 F.3d 226 (3d Cir. 2008) ................................. 14

Roman Catholic Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020) ................................................ 22

Rufo v. Inmates of Suffolk Cnty. Jail,

502 U.S. 367 (1992) ................................................ 9

Sandifer v. U.S. Steel Corp., 571 U.S. 220 (2014) ...... 4

SecurityPoint Holdings, Inc. v. Transportation Sec.

Admin., 836 F.3d 32 (D.C. Cir. 2016) .................... 7

Shalala v. Schaefer, 509 U.S. 292 (1993) ................... 7

Singer Mgmt. Consultants, Inc. v. Milgram,

650 F.3d 223 (3d Cir. 2011) ................................. 18

iv

Sole v. Wyner,

551 U.S. 74 (2007) ................ 1, 2, 11, 13, 14, 16, 19

South Bay United Pentecostal Church v. Newsom,

141 S. Ct. 716 (2021) ............................................ 22

Starbucks Corp. v. McKinney,

144 S. Ct. 1570 (2024) .......................................... 12

Stinnie v. Holcomb,

396 F. Supp. 3d 653 (W.D. Va. 2019) .................. 25

Tennessee State Conf. of NAACP v. Hargett,

53 F.4th 406 (6th Cir. 2022) ................................ 14

Texas State Teachers Ass’n v. Garland Indep.

Sch. Dist., 489 U.S. 782 (1989) .................... 5, 6, 15

University of Tex. v. Camenisch,

451 U.S. 390 (1981) ........................................ 12, 20

Uzuegbunam v. Preczewski, 141 S. Ct. 792 (2021)... 23

Statutes

28 U.S.C. § 1292 ........................................................ 10

42 U.S.C. § 1988 .......................................................... 5

Other Authorities

Black’s Law Dictionary

(4th rev. ed. 1968) .................................. 4, 5, 11, 13

Black’s Law Dictionary (5th ed. 1979)........................ 4

11A Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure

(3d. ed. 2024) .................................................. 10, 15

Fed. R. Civ. P. 23 ....................................................... 10

Fed. R. Civ. P. 65 ....................................................... 23

INTRODUCTION

Respondents agree that no circuit currently uses

the correct test to determine whether a preliminary

injunction renders a plaintiff the “prevailing party”

under 42 U.S.C. § 1988. They jettison the test the

Fourth Circuit adopted below and do not contend this

Court should adopt any of the other circuits’ varying

tests. Instead, Respondents invent a novel test. Although their formulations of it vary, they appear to

contend that an “appealable” order with “real-world

effect” confers prevailing-party status. Resp.Br.25-27.

Respondents’ test is unmoored from the plain meaning of “prevailing party” and this Court’s precedents.

This Court should reject it.

First, Respondents do not defend the Fourth Circuit’s erroneous holding that a preliminary injunction

provides “relief on the merits.” Pet.App.22a. Instead,

Respondents attempt to erase any requirement that a

prevailing party prove the merits, replacing it with a

requirement of an unreversed appealable order. See

Resp.Br.30-31. But this Court has repeatedly held

that, “to qualify as a prevailing party, a civil rights

plaintiff must obtain at least some relief on the merits

of his claim” or a final judgment in his favor. Farrar

v. Hobby, 506 U.S. 103, 111 (1992); Sole v. Wyner, 551

U.S. 74, 78 (2007). An interlocutory order that does

not establish liability on the merits does not show that

the plaintiff has won the lawsuit. Just as in Buckhannon, the Court should reject Respondents’ attempt to

“abrogate the ‘merit’ requirement” for attorney’s fees.

Buckhannon Bd. & Care Home, Inc. v. West Va. Dep’t

of Health & Human Res., 532 U.S. 598, 606 (2001).

2

Second, Respondents similarly make little attempt

to defend the Fourth Circuit’s incorrect ruling that a

preliminary injunction provides “enduring” relief.

Pet.App.25a. Instead, they again urge the Court to delete the requirement, replacing it with a “real-world

effect” test. Resp.Br.25,36. But the statutory text and

this Court’s precedents provide that transient success

on interlocutory orders does not make a party prevailing. Sole, 511 U.S. at 82 n.3, 86. And Respondents’

“real-world effect” test is both unclear and overbroad,

apparently sweeping beyond preliminary injunctions

to numerous other interlocutory orders, such as temporary restraining orders, stays, gag orders, and receiverships.

Finally, Respondents’ contention that their rule is

administrable because it follows the “circuit consensus” fails. Resp.Br.14. There is no circuit consensus,

and no circuit has adopted Respondents’ proposed

rule—including the Fourth Circuit below. Respondents’ rejection of any requirement for a ruling on the

merits or enduring relief would burden defendants

with large fee awards when they violated no law and

lacked an adequate opportunity to defend themselves

in “hasty and abbreviated” emergency procedures.

Sole, 551 U.S. at 84. Respondents’ fears of “gamesmanship” are misplaced, Resp.Br.42, as both the separation of powers and mootness doctrine will generally prevent executive branch defendants from strategically mooting cases between a preliminary injunction and a ruling on the merits. Respondents’ parade

of horribles is thus highly implausible. And their contention that plaintiffs’ counsel “have better things to

3

do” than prove the merits of their claims, Resp.Br.48,

is no reason to award attorney’s fees in partially litigated cases.

This Court should reverse.

ARGUMENT

I.

Interlocutory orders that do not resolve the merits of any claim do not

render plaintiffs the “prevailing party”

A.

Text and precedent confirm that

Section 1988 requires a conclusive resolution on the merits or

final judgment

Respondents would dramatically expand the

meaning of “prevailing party” by allowing fee awards

without any ruling on the merits, if plaintiffs obtain

some “appealable” order with “real-world effect.”

Resp.Br.25-26,30-31. This interpretation is contrary

to the plain meaning of “prevailing party” and this

Court’s precedents.

1. First, Respondents’ novel rule is contrary to the

text of Section 1988. Legal dictionaries from the time

Congress enacted Section 1988 make clear that “prevailing party” requires a conclusive ruling on the merits or final judgment. See Pet.Br.16-18. Respondents

do not dispute that “prevailing party” is a “legal term

of art.” Resp.Br.15; Astrue v. Ratliff, 560 U.S. 586, 591

(2010) (“We have long held that the term ‘prevailing

party’ in fee statutes is a ‘term of art.’”). Yet Respondents urge the Court to look to non-legal dictionaries

and supposed “common sense,” not the term’s legal

4

meaning. Resp.Br.1,15. But a term of art “depart[s]

from ordinary meaning.” George v. McDonough, 596

U.S. 740, 752 (2022). It has “acquired a specialized

meaning in the legal context [and] must be accorded

[its] legal” meaning. Buckhannon, 532 U.S. at 615

(Scalia, J., concurring); see id. at 603.

Legal dictionaries define “prevailing party” as

“[t]he party ultimately prevailing when the matter is

finally set at rest.” Black’s Law Dictionary 1352 (4th

rev. ed. 1968). They explain that prevailing-party status depends on the outcome “at the end of the suit,”

not “the degree of success at different stages of the

suit.” Ibid. Thus, the plaintiff has not prevailed until

the suit has reached either final judgment, or at least

a conclusive determination that the defendant is liable on the merits. Pet.Br.16-18; U.S.Br.12-13.

Respondents chide the Commissioner for

“lean[ing] on a dictionary predating § 1988(b).”

Resp.Br.17. But this Court “normally seeks to afford

the law’s terms” their meaning “at the time Congress

adopted them.” Niz-Chavez v. Garland, 593 U.S. 155,

160 (2021). Thus, the most relevant dictionaries are

“dictionaries from the era of [the statute’s] enactment.” Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227

(2014); see MCI Telecomms. Corp. v. American Tel. &

Tel. Co., 512 U.S. 218, 228 (1994) (describing the year

a disputed statute “became law” as “the most relevant

time for determining a statutory term’s meaning”). In

any event, the subsequent edition of Black’s Law Dictionary contained substantially the same definition.

Black’s Law Dictionary 1069 (5th ed. 1979).

5

Respondents rely on non-legal dictionaries and asserted “common sense” to define “prevailing” as “successful.” See Resp.Br.14-17. But because “prevailing

party” is a legal term of art, these non-legal sources

are irrelevant, showing only that “the word ‘prevailing’ can have other meanings in other contexts.” Buckhannon, 532 U.S. at 615 (Scalia, J., concurring). Section 1988 requires a specific type of “prevailing”: as a

“party” in an “action or proceeding to enforce” specified federal statutes. 42 U.S.C. § 1988(b). Thus, the

“prevailing party” must succeed in the lawsuit “when

the matter is finally set at rest.” Black’s Law Dictionary 1352 (4th rev. ed. 1968). “Respect for ordinary language requires that a plaintiff receive at least some

relief on the merits of his claim before he can be said

to prevail.” Buckhannon, 532 U.S. at 603 (quoting

Hewitt v. Helms, 482 U.S. 755, 760 (1987)).

2. Respondents’ proposed rule is also contrary to

this Court’s precedents. Respondents point to this

Court’s holdings that the “touchstone of the prevailing

party inquiry” is a “material alteration of the legal relationship of the parties.” Resp.Br.21. They overlook,

however, this Court’s repeated explanation of what a

“material alteration” means: “the plaintiff must be

able to point to a resolution of the dispute which

changes the legal relationship between itself and the

defendant.” Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989) (emphasis

added). Thus, as Buckhannon explains, this Court has

found a material alteration in only two circumstances:

“enforceable judgments on the merits and court-ordered consent decrees create the ‘material alteration

6

of the legal relationship of the parties’ necessary to

permit an award of attorney’s fees.” 532 U.S. at 604

(emphasis added).

The cases Respondents rely upon similarly define

“material alteration.” Farrar, for instance, holds that

“to qualify as a prevailing party, a civil rights plaintiff

must obtain at least some relief on the merits of his

claim” or “comparable relief through a consent decree

or settlement.” 506 U.S. at 111; see Buckhannon, 532

U.S. at 604 (clarifying that only settlements incorporated into court orders qualify). “Only under these circumstances can civil rights litigation effect ‘the material alteration of the legal relationship of the parties’

and thereby transform the plaintiff into a prevailing

party.” Farrar, 506 U.S. at 111. Similarly, Garland

and Hewitt both hold that Section 1988 “requires that

a plaintiff receive at least some relief on the merits of

his claim before he can be said to prevail.” Garland,

489 U.S. at 792 (quoting Hewitt, 482 U.S. at 760).

Section 1988 imposes a merit requirement because

“liability on the merits and responsibility for fees go

hand in hand.” Kentucky v. Graham, 473 U.S. 159, 165

(1985). Respondents attempt to distinguish Graham

as holding “that a government is not liable for fees

when a plaintiff fails to procure a judgment against

that government or its employees in any official capacity.” Resp.Br.32. But this Court repeated the same

holding in multiple other contexts. Independent Fed’n

of Flight Attendants v. Zipes, 491 U.S. 754, 762 (1989)

(“Our cases have emphasized the crucial connection

7

between liability for violation of federal law and liability for attorney’s fees under federal fee-shifting

statutes.”); Farrar, 506 U.S. at 109 (similar).

As in Buckhannon, this Court should reject Respondents’ attempt to “abrogate the ‘merit’ requirement of [the Court’s] prior cases.” 532 U.S. at 606.

3. Respondents’ remaining arguments likewise do

not support deleting the merit requirement. Respondents point to Lefemine v. Wideman, 568 U.S. 1 (2012)

(per curiam), holding that an injunction conferred prevailing-party status. See Resp.Br.22-23. But “the injunction in Lefemine was permanent.” Resp.Br.23.

Unlike a preliminary injunction, a permanent injunction requires a “determin[ation] that the defendants

had infringed [plaintiff]’s rights.” Lefemine, 568 U.S.

at 3. Indeed, Lefemine reiterated that a plaintiff “prevails” only “when actual relief on the merits of his

claim” creates a material alteration. Id. at 4.

Respondents also rely on Shalala v. Schaefer, 509

U.S. 292 (1993) (cited at Resp.Br.31-32). But the

plaintiff there obtained both a favorable final judgment and a conclusive ruling on the merits when the

district court reversed an agency’s adverse decision.

Id. at 300-01. Although the court remanded to the

agency for additional proceedings, the court’s final

judgment “terminate[d] the litigation with a victory

for the plaintiff.” Ibid.; see SecurityPoint Holdings,

Inc. v. Transportation Sec. Admin., 836 F.3d 32, 37-39

(D.C. Cir. 2016). Thus, Schaefer stands for the opposite of Respondents’ position: a plaintiff can be a prevailing party without necessarily securing “real-

8

world” benefits (as the agency may again deny relief

on remand), but he must obtain a final judgment or

conclusive ruling on the merits.

Respondents next argue that “the ‘prevailing

party’ concept does not require finality.” Resp.Br.17;

see Resp.Br.18-21. This argument is a straw man; the

Commissioner expressly noted that “Section 1988 allows interim fee awards.” Pet.Br.21. The statute, however, “permit[s] the interim award of counsel fees only

when a party has prevailed on the merits of at least

some of his claims.” Hanrahan v. Hampton, 446 U.S.

754, 758 (1980) (emphasis added). “[O]nly in that

event has there been a determination of the ‘substantial rights of the parties,’ which Congress determined

was a necessary foundation for departing from the

usual rule in this country that each party is to bear

the expense of his own attorney.” Ibid.

Respondents argue that there is a “venerable equitable tradition of awarding interim costs” for preliminary injunctions. Resp.Br.19. But they cite only a single century-old state-court case in support. Resp.Br.21

(citing Clancy v. Geb, 104 N.W. 746 (Wis. 1905)). And

to the extent legislative history suggests that Section

1988 authorizes interim fees without a conclusive

merits ruling, see Resp.Br.40, any such statements

are contrary to this Court’s precedents and entitled to

no weight. “[L]egislative history is not the law,” Epic

Sys. Corp. v. Lewis, 584 U.S. 497, 523 (2018); rather,

it often devolves into “looking over a crowd and picking out your friends,” Exxon Mobil Corp. v. Allapattah

Servs., Inc., 545 U.S. 546, 568 (2005).

9

Respondents also contend that because this Court

has held fee awards are available for consent decrees,

“a determination on the merits” is not part of the prevailing-party analysis. Resp.Br.30-31. But “a consent

decree is a final judgment.” Rufo v. Inmates of Suffolk

Cnty. Jail, 502 U.S. 367, 391 (1992). Section 1988 requires a conclusive ruling on the merits or a final judgment; a party prevails when it “wins the suit” by obtaining a final judgment in its favor. Buckhannon, 532

U.S. at 615; see Pet.Br.15-22. Although a final judgment for the plaintiff typically requires a merits ruling, there are exceptions when the defendant fails to

contest its liability by defaulting or consenting to the

entry of judgment against it. U.S.Br.15-16. Preliminary injunctions are different: they are not final judgments, are entered over defendants’ objections, and do

not resolve whether defendants are liable on the merits. See U.S.Br.16.n.2. They do not confer prevailingparty status.

B.

Respondents’ appealable-order

test is erroneous

1. Respondents contend that “enforceable judgments,” rather than merits rulings, confer prevailingparty status. Resp.Br.12,30-31. An order is enforceable, they argue, if it is “backed by the threat of criminal contempt.” Resp.Br.12. And a “judgment” is “any

order from which an appeal lies,” including “interlocutory appeals.” Resp.Br.27. No court has accepted this

broad and atextual interpretation of “prevailing

party,” and it is erroneous.

10

First, Respondents’ test that the order be enforceable through contempt power provides no limitation

at all. “The power to punish for contempts is inherent

in all courts,” and thus essentially every court order is

enforceable by contempt. Chambers v. NASCO, Inc.,

501 U.S. 32, 44 (1991) (quotation marks omitted).

Second, Respondents’ test that the order be immediately appealable is contrary to the statutory text

and this Court’s precedent, which demonstrate that

only a final judgment, or a conclusive ruling on the

merits, can confer prevailing-party status. See Section

I.A, supra. Whether an interlocutory order is immediately appealable has “nothing to do with success on

the merits.” McQueary v. Conway, 614 F.3d 591, 601

(2010). An order may determine that the defendant is

liable on the merits without being immediately appealable. See 11A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure, § 3914.28 (3d.

ed. 2024) [hereinafter Wright & Miller] (“[A] summary

judgment that determines liability but leaves damages or other relief open for further proceedings is not

final.”). Conversely, many appealable orders have little or nothing to do with the merits. Indeed, many interlocutory orders are appealable precisely because

they are “separate from and ‘collateral to’ the merits

of the claims.” Id. § 3911; see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 547 (1949); 28 U.S.C.

§ 1292(a)(2) (order appointing a receiver, or refusing

orders to wind up receiverships); Fed. R. Civ. P. 23(f)

(class certification).

11

Thus, far from showing that a preliminary injunction is a conclusive victory, Congress’s separate authorization of an interlocutory appeal underscores

that preliminary injunctions do not provide “relief on

the merits of [the plaintiff’s] claim.” Buckhannon, 532

U.S. at 603. Rather, Congress authorized interlocutory appeals of preliminary injunctions because “[i]f

an interlocutory injunction is improperly granted or

denied, much harm can occur before the final decision

in the district court,” including that “[l]awful and important conduct may be barred.” Abbott v. Perez, 585

U.S. 579, 595 (2018). Such interlocutory rulings are “a

battle,” not “the war.” Sole, 551 U.S. at 86. They do

not show that a party will be “ultimately prevailing

when the matter is finally set at rest.” Black’s Law

Dictionary 1352 (4th rev. ed. 1968).

2. Despite contending that the merits are irrelevant, Respondents spend significant time disputing

them. See, e.g., Resp.Br.4-11. But their arguments underscore the importance of the merit requirement to

ensuring that defendants who never broke the law are

not penalized with massive liability for fees.

Respondents do not defend the district court’s ruling that they were likely to succeed on their

standalone procedural due process claim. See

Pet.Br.27-31. They admit that inability to pay was not

a statutory defense, making an indigency hearing

pointless “procedure for procedure’s sake.” Fowler v.

Benson, 924 F.3d 247, 259 (6th Cir. 2019); see

Resp.Br.4. Respondents contend that such procedure

was nonetheless required by substantive due process,

12

arguing that States cannot “depriv[e] those who cannot pay of life, liberty, or property.” Resp.Br.6. But the

district court expressly declined to consider whether

Respondents were likely to succeed on their substantive due process claim. J.A.376.n.9. Respondents cannot contend that they “prevailed” on a claim on which

the district court never ruled. Without such a ruling,

the district court’s procedural due process analysis

cannot stand.

Nor was Respondents’ substantive due process

claim meritorious. The statute provided defendants

opportunities to raise their indigency in court. See

Pet.Br.4,6. And as other courts of appeals held in rejecting similar claims, there is no constitutionally protected property interest for “the indigent, who cannot

pay court debt, to be exempt from driver’s-license suspension on the basis of unpaid court debt.” Fowler, 924

F.3d at 258; see Pet.Br.28-29.

Because preliminary injunctions involve only an

initial prediction of the likelihood of success designed

“to preserve the relative positions of the parties until

a trial on the merits can be held,” Starbucks Corp. v.

McKinney, 144 S. Ct. 1570, 1576 (2024) (quoting University of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)),

they do not “definitively decide the merits of anything,” Pet.App.61a (Quattlebaum, J., dissenting).

They therefore do not render the plaintiff a prevailing

party.

13

II.

Relief must be enduring to warrant

fees, not just have “real-world effect”

Respondents also err in erasing the “requirement

of ‘enduring change.’’’ Resp.Br.36. Respondents argue

that any unreversed appealable order confers prevailing-party status if it has “real-world effect.”

Resp.Br.25. No circuit has adopted this unclear and

unbounded standard. Nor should this Court; it is contrary to the statutory text and precedent.

1. Respondents assert that a prevailing party need

obtain no “enduring” change, so long as a court order

“materially chang[es] the parties’ legal relationship.”

Resp.Br.2. Although their formulation of their test

varies, they appear to define a “material alteration” as

a “real-world effect,” even if temporary. Resp.Br.25.

This argument is contrary to the statutory text;

whether a party prevails turns upon its status at “the

end of the suit,” not whether it achieved temporary

“success at different stages.” Black’s Law Dictionary

1352 (4th rev. ed. 1968). It is also contrary to this

Court’s precedent holding that the change in the parties’ legal relationship must be “enduring.” Sole, 551

U.S. at 86; see Hewitt, 482 U.S. at 760-61 (holding favorable “interlocutory ruling” insufficient). And although Sole reserved the question presented here, it

unanimously recognized that “temporary relief

gained” does not render a party prevailing. 551 U.S.

at 82 n.3.

Thus, since Sole, the circuits have uniformly recognized that the alteration of the legal relationship

must be “enduring.” See, e.g., Pet.App.13a

14

(“[P]laintiff’s success must be ‘enduring’ rather than

‘ephemeral.’”); De Jesus Nazario v. Morris Rodriguez,

554 F.3d 196, 203 (1st Cir. 2009) (holding the plaintiff’s “relationship with the defendants has changed in

the requisite enduring manner”); DiMartile v. Hochul,

80 F.4th 443, 452 (2d Cir. 2023) (similar); People

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

226, 234 (3d Cir. 2008) (similar); Tennessee State Conf.

of NAACP v. Hargett, 53 F.4th 406, 410 (6th Cir. 2022)

(similar).

Conversely, this Court has not held that an order

must have “real-world effect” to confer prevailingparty status. Schaefer, for instance, held that the

plaintiff was a prevailing party without requiring

proof that the judgment would confer “real-world”

benefits. See pp.7-8, supra. And although the “dissenters in Buckhannon” would have held that a plaintiff

prevails when it obtains “the real-world outcome it

sought,” the majority disagreed. Sole, 551 U.S. at 82

n.3; see Buckhannon, 532 U.S. at 605-06. In addition,

Farrar held that “the ‘technical’ nature of a nominal

damages award or any other judgment does not affect

the prevailing party inquiry.” 506 U.S. at 114.

Respondents’ proposed “real-world effect” rule is

overbroad and unclear. Numerous appealable interlocutory orders may have some “real-world effect,” including stays, temporary restraining orders, gag orders, and orders appointing receivers, in addition to

preliminary injunctions. See, e.g., Marceaux v. Lafayette City-Par. Consol. Gov’t, 731 F.3d 488, 490 (5th

Cir. 2013) (allowing interlocutory appeal of gag order);

15

Wright & Miller § 3922.1 (although temporary restraining orders do not fall within § 1292(a)(1), “appellate review often can be achieved”); id. § 3914.13

(“appeal is permitted from an order granting a stay”

“[i]n some circumstances”); see p.10, supra. Again,

many such interlocutory orders have little or nothing

to do with the merits or with which party will ultimately prevail in the suit. And although Respondents

emphasize the “longevity” of some preliminary injunctions, their rule would apparently apply equally to orders that become moot shortly after they are entered.

Resp.Br.28,35; see, e.g., DiMartile, 80 F.4th at 449.

Respondents’ proposed rule also lacks “ready administrability.” Buckhannon, 532 U.S. at 610. Respondents make little attempt to explain what constitutes “real-world effect.” Resp.Br.25. Instead, Respondents simply assert that a court will “be []able to

tell whether it has ordered a material alteration.”

Resp.Br.25-26. But if the test is whether the order

“matters” to the plaintiff in some practical sense, that

creates the same administrability problems that led

this Court to reject the “central issue” test: “By focusing on the subjective importance of an issue to the litigants, it asks a question which is almost impossible

to answer.” Garland, 489 U.S. at 791. Alternatively,

Respondents sometimes suggest that the question is

whether the order altered an existing status quo.

Resp.Br.52 (arguing that the preliminary injunction

constituted a “material change” because “Plaintiffs’ licenses were suspended, and the injunction ordered the

Commissioner to ‘remove any current suspensions’”).

If so, Respondents fail to explain how their version of

16

the status quo test functions, and how it differs from

the Fourth Circuit test that Respondents dismiss as

“a red herring.” Resp.Br.25; see Pet.Br.38-41.

In addition, after eliminating any requirement of

“relief on the merits,” see Section I, supra, Respondents insert an inquiry into whether the order was “undone on the merits,” Resp.Br.11 (emphasis added). Respondents provide no support for this atextual test.

Sole held that prevailing-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. It did not hold

that plaintiffs prevail unless an order is “undone on

the merits.” To the contrary, plaintiffs do not prevail

when the court ultimately enters judgment for defendants on non-merits grounds, such as immunity or untimeliness. Hewitt, 482 U.S. at 762. And where, as

here, the court dismisses a case as moot, that final

judgment dissolves the preliminary injunction.

Pet.Br.36; J.A.420. Thus, when a case is dismissed as

moot before a final merits judgment or conclusive determination, neither party has “prevailed” in the lawsuit. 1

1 Mootness after a final merits judgment or conclusive determination—such as when a permanent injunction subsequently

becomes moot, see Resp.Br.38—presents entirely different questions. The plaintiff would then have “established his entitlement

to some relief on the merits of his claim” before the dispute was

resolved. Hanrahan, 446 U.S. at 757. This Court has noted, however, that the availability of fees where a case becomes moot “be-

17

Here, any enduring change in the parties’ relationship came not from the preliminary injunction, but

“because the General Assembly of Virginia decided to

change the law,” a decision that lacks judicial imprimatur. Pet.App.62a (Quattlebaum, J., dissenting). Respondents are not prevailing parties under Section

1988.

III.

Respondents’ proposed rule creates

perverse incentives and penalizes defendants who did not violate the law

Respondents’ test also would create perverse incentives and impede judicial efficiency while penalizing defendants who never violated the law. Respondents’ assertion that their test is necessary to prevent

“gamesmanship,” Resp.Br.42, is unfounded.

1. Respondents argue that “no . . . problem” would

arise from their test because “unanimous circuit law

now holds that preliminary injunctions can suffice for

fees.” Resp.Br.42. But no “circuit consensus” exists;

the circuits have adopted a wide variety of tests. See

Pet.13-23. And Respondents reject all of these tests—

including the test the Fourth Circuit adopted below—

instead proposing a novel test that no circuit has ever

followed. See pp.9-10,13-14, supra.

Under Respondents’ proposed test, an appealable

order with real-world effect confers prevailing-party

fore the losing party could challenge its validity on appeal” presents a “question of some difficulty.” Lewis v. Continental Bank

Corp., 494 U.S. 472, 483 (1990).

18

status. Resp.Br.25-26. This test is ill-defined but appears to be extremely broad, potentially encompassing

a host of interlocutory orders such as stays, temporary

restraining orders, gag orders, and receiverships, in

addition to preliminary injunctions. See pp.14-15, supra.

Respondents’ test would eliminate significant restrictions that many circuits have adopted. The Third

Circuit, for instance, has held that “merely a finding

of a likelihood of success” is insufficient for fee-shifting; the district court must include a definitive merits

holding in its preliminary injunction ruling. Singer

Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223,

230 n.4 (3d Cir. 2011); see McQueary, 614 F.3d at 598

(requiring an “unambiguous indication of probable

success”). Some circuits deny fees if a preliminary injunction was “hastily entered.” DiMartile, 80 F.4th at

453. Others require that the preliminary relief be “not

defeasible,” Dupuy v. Samuels, 423 F.3d 714, 719 (7th

Cir. 2005), or “sufficiently akin to final relief on the

merits,” Northern Cheyenne Tribe v. Jackson, 433

F.3d 1083, 1086 (8th Cir. 2006). Under several of these

standards, preliminary injunctions rarely confer prevailing-party status. See, e.g., McQueary, 614 F.3d at

601.

Respondents would sweep away all of these limits.

They deny that prevailing-party status requires any

examination of the merits at all, much less a more

searching inquiry than likelihood of success. See Section I, supra. They also deny that there is any requirement that the relief be enduring. See Section II, supra.

19

Respondents’ test would thus be a sweeping change,

not a continuation of a nationwide “consensus.”

This change would be highly problematic. By deleting any merits requirement, Respondents would allow fees based on orders providing “no insight into

whether one party or the other will prevail at the end

of the case.” McQueary, 614 F.3d at 600. They would

also allow fees based on orders that are “hastily entered” in an emergency posture. DiMartile, 80 F.4th

at 453. Such emergency settings frequently give “defendants little opportunity to oppose,” and “no time for

discovery, nor for adequate review of documents or

preparation and presentation of witnesses.” Sole, 551

U.S. at 84. The “rapid timeline” for such motions also

“restrict[s] the time available for the district court to

consider the legal issues,” sometimes to mere “hours.”

DiMartile, 80 F.4th at 454.

Respondents’ proposed rule would thus vastly increase the number of cases in which defendants will

be held liable for fees even though they never violated

federal law. And it would encourage plaintiffs’ counsel

to bring cases in an emergency posture, “resulting in

a hurried litigation timeline that enable[s] them to obtain provisional relief at the threshold of their case.”

DiMartile, 80 F.4th at 458. Such emergency motions

burden courts and deprive defendants of a full opportunity to respond. Section 1988 does not allow “the law

to be the very instrument of wrong—exacting the payment of attorney’s fees to the extortionist” who obtains

provisional relief on faulty claims. Buckhannon, 532

U.S. at 618 (Scalia, J., concurring).

20

Respondents contend that a “judge who feels

gamed or rushed can just deny” emergency relief.

Resp.Br.35. But denying emergency relief can leave

plaintiffs irreparably harmed. Camenisch, 451 U.S. at

395. Rushed and uncertain rulings for provisional relief based on limited records are thus sometimes necessary. Ibid. That does not make them conclusive merits determinations sufficient to trigger fee liability.

Respondents’ argument that “if defendants think

they are right, they can appeal,” also offers no panacea. Resp.Br.14. An appeal “is limited to the record before the district court at the time it issued the preliminary injunction.” Brotherhood of Maintenance of Way

Emps. v. Chicago & Nw. Transp. Co., 827 F.2d 330,

337 n.6 (8th Cir. 1987). An appeal also considers the

“likelihood of success,” a much lower threshold than

actual success on the merits. Pet.Br.24-25. An appeal

of a preliminary injunction thus perpetuates rather

than solves the procedural disadvantages to defendants. See Camenisch, 451 U.S. at 396. And in some

cases, defendants lack any opportunity to appeal because the orders become moot shortly after they are

issued. See, e.g., Fleming v. Gutierrez, 785 F.3d 442,

445 (10th Cir. 2015).

Even where defendants can appeal, forcing appeals of preliminary injunctions to avoid fee liability

is unwarranted and judicially inefficient. See

Pet.Br.49-50; States.Br.21-23. Here, for instance, the

preliminary injunction was extremely limited, requiring the Commissioner simply to alter a database not

to reflect the court suspensions of a few individual Respondents’ licenses. See Pet.Br.32. It thus made far

21

more sense for the Commissioner to litigate summary

judgment than to pursue interlocutory appeal. Indeed,

the fuller factual record demonstrated that the district court erred in preliminarily finding that the

Commissioner, rather than the state courts, suspended licenses. Pet.Br.29.n.6. Had actual litigation

on the merits occurred, it would have demonstrated

that the statute was constitutional. See Pet.Br.27-29;

pp.11-12, supra.

Respondents’ test would also perversely “disincentiv[ize]” a government “to voluntarily change its conduct, conduct that may not be illegal.” Buckhannon,

532 U.S. at 608. As here, governments may wish to

change a challenged law or rule for reasons apart from

the litigation, such as changed circumstances or policy

decisions. See Pet.Br.49-50. Respondents’ test incentivizes the prolonged existence of laws that no one

wants on pain of transferring taxpayer dollars to the

pockets of plaintiffs’ counsel.

2. By contrast, Respondents’ policy concerns with

the Commissioner’s bright-line test are misplaced.

First, Respondents contend that their proposed

rule is necessary because “governments . . . have

proved adept” at strategically mooting claims.

Resp.Br.44-45. But Respondents’ citations are not to

cases that became moot after courts issued preliminary injunctions; their proposed rule would thus have

no effect. If anything, these cases demonstrate that

litigation can become moot at any stage, and that “fear

22

of mischievous defendants” provides no basis to “abrogate the ‘merit’ requirement of [this Court’s] prior

cases.” Buckhannon, 532 U.S. at 606, 608.

Regardless, these cases do not suggest a widespread problem with governments “strategically

mooting cases.” Resp.Br.42. South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021), for

example, is not a mootness case at all. And Roman

Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14

(2020), refused to dismiss the case as moot because the

challenged COVID restriction was likely to recur. Id.

at 20. The case thus confirms that a proper application

of mootness doctrine will typically prevent defendants

from strategically altering their conduct to moot cases

before a merits ruling. “[A] defendant’s voluntary cessation of a challenged practice will moot a case only if

the defendant can show that the practice cannot reasonably be expected to recur.” Federal Bureau of Investigation v. Fikre, 601 U.S. 234, 241 (2024) (cleaned

up). This standard is a “formidable burden” for “governmental defendants no less than for private ones.”

Ibid.

The dissent in New York State Rifle & Pistol Ass’n,

Inc. v. City of New York, 590 U.S. 336 (2020), expressed concerns with defendants raising “a spurious

claim of mootness” to avoid fees. Id. at 360 (Alito, J.,

dissenting). But it also remarked that “[a] defendant’s

voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by

the lawsuit, lacks the necessary judicial imprimatur

on the change” for fee-shifting. Ibid. (quoting Buckhannon, 532 U.S. at 605). And it further explained

23

that a “case is not dead” where plaintiffs “got most,

but not all, of the prospective relief they wanted,” or

could seek damages—including “nominal damages”—

for a constitutional violation. Id. at 354-55. The majority did not disagree, remanding the case for the

lower courts to consider claims for additional prospective relief or damages. Id. at 339. Thus, far from showing rampant government “gamesmanship” evading

fees, the case demonstrates that even where the law

changes during litigation, the availability of damages

for most constitutional claims typically prevents

mootness. See Buckhannon, 532 U.S. at 608-09. 2

Second, Respondents offer a parade of horribles,

positing “hypothetical plaintiffs—whose cases become

moot after they succeed” on a preliminary injunction.

Resp.Br.16-17,23-24. But Respondents fail to explain

why most of these cases would be moot at all. Some—

such as a Governor’s unilateral change to a declaration, Resp.Br.16—appear to be classic examples of voluntary cessation of challenged conduct. Others—such

as exclusions from school on the basis of race, or violations of constitutional rights to free speech, free exercise, or bear arms—would give rise to damages

claims, including for nominal damages. Uzuegbunam

v. Preczewski, 141 S. Ct. 792, 796 (2021) (“an award of

2

Courts also have discretion in appropriate cases to “consolidate” preliminary injunction proceedings “with the trial on the

merits.” Fed. R. Civ. P. 65(a)(2). Such an order would confer prevailing-party status. Thus, attorney’s fees could be available

even in time-limited disputes involving only prospective relief.

24

nominal damages by itself” prevents mootness); Farrar, 506 U.S. at 112 (“[A] plaintiff who wins nominal

damages is a prevailing party under § 1988.”). Respondents’ only answer is that plaintiffs’ counsel have

“better things to do than litigate nominal damages.”

Resp.Br.48. Counsel may well prefer not to have to

prove their claims before seeking hefty fee awards.

But this preference provides no basis to erase Section

1988’s merit requirement.

Respondents’ contention that “the government” engaged in “gamesmanship” here also fails. Resp.Br.44.

Respondents ignore the separation of powers. The

case became moot because the legislature repealed the

statute. Pet.App.8a. The legislature is not a party to

the suit; it is a separate and independent branch of

government. Pet.Br.42. The defendant Commissioner

had no power to decide whether or when the legislature would act. See Pet.Br.44.n.7. The possibility that

an independent branch of government may repeal a

statute during litigation is not gamesmanship, much

less “a free pass” for executive officials “to violate civil

rights . . . and still evade attorney’s fees.” Resp.Br.13.

Further, the record does not support Respondents’

contention that the legislature repealed the statute to

moot the litigation. Respondents point to a remark by

a single legislator—who had sponsored repeal bills before the preliminary injunction—that he “hope[d]” the

injunction would bolster his efforts. Resp.Br.7. But in

fact, a subcommittee continued to block repeal bills,

and the statute was not repealed until well over a year

after the preliminary injunction, hardly showing that

the legislature “sped” to moot the case. Resp.Br.7;

25

Pet.Br.8-9. “[S]hifting political winds” caused the repeal, not the preliminary injunction. Stinnie v. Holcomb, 396 F. Supp. 3d 653, 658-59 (W.D. Va. 2019).

Following the 2019 election, new leadership who opposed the license-suspension policy came to power and

repealed the entire statutory regime—not just the

narrow aspects that Respondents challenged.

Pet.Br.9. Respondents also point to a letter from the

Commissioner to the repeal bill’s sponsor, Resp.Br.89, suggesting that the bill include an “emergency enactment clause” so that “the pending litigation [would

be] dismissed,” Pet.Br.44.n.7. But Respondents fail to

mention that the legislature rejected that suggestion.

Thus, the letter only underscores the legislature’s independence.

The plain text of Section 1988, as well as this

Court’s precedent, requires that a plaintiff actually

prevail on the merits or obtain final judgment before

the defendant can be on the hook for a potentially

massive fee award. Pet.Br.16-18. Where the merits

“will never be determined” because a case becomes

moot, the default American Rule applies. Buckhannon, 532 U.S. at 606.

CONCLUSION

The Court should reverse the decision below.

Respectfully submitted,

26

JASON S. MIYARES

Attorney General of Virginia

MAYA M. ECKSTEIN

TREVOR S. COX

DAVID M. PARKER

HUNTON ANDREWS

KURTH LLP

Riverfront Plaza, East Tower

951 E. Byrd Street

Richmond, Virginia 23219

ERIKA L. MALEY

Solicitor General

Counsel of Record

KEVIN M. GALLAGHER

Principal Deputy Solicitor

General

GRAHAM K. BRYANT

Deputy Solicitor General

M. JORDAN MINOT

Assistant Solicitor General

OFFICE OF THE VIRGINIA

ATTORNEY GENERAL

202 North Ninth Street

Richmond, Virginia 23219

(804) 786-2071

EMaley@oag.state.va.us

Counsel for Petitioner