May 9, 2024 | Volume 31, Issue 11
This Report summarizes cases granted review on April 19 and 26, 2024 (Part I).
Case Granted Review
Lackey v. Stinnie, 23-621.
Under 42 U.S.C. §1988(b), the “prevailing party” in certain civil rights actions can recover reasonable attorney’s fees. The questions presented relate to the definition of “prevailing party” and ask: (1) “Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the merits under 42 U.S.C. §1988”; and (2) “[w]hether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under 42 U.S.C. §1988.”
Under Virginia Code §46.2-395, a resident’s driver’s license faced automatic suspension if she failed to satisfy specific court fines and fees. Respondents, a group of indigent citizens who had their licenses revoked due to an inability to cover court debts, filed suit against petitioner, the Virginia Department of Motor Vehicles Commissioner (the Commissioner). Respondents challenged the constitutionality of §46.2-395 under the Fourteenth Amendment, alleging that the automatic suspension without prior notice or a hearing infringed upon their due process rights. They sought a preliminary injunction, which the district court granted after determining that their procedural due process claim was likely to succeed on its merits. The injunction enjoined the statute’s enforcement as to respondents and ordered the Commissioner to remove any current suspension of respondents’ driver’s licenses under §46.2-395. Following the issuance of the injunction, the Commissioner recommended to the General Assembly that the law be repealed. Before trial, the Virginia General Assembly passed a Budget Amendment pausing the enforcement of §46.2-395 for a year. At the Commissioner’s request, the district court stayed the case until the next legislative session, during which time the General Assembly fully repealed the statute. Consequently, respondents no longer required relief ordered by the court. The parties stipulated that the action was moot, and the court dismissed it.
Respondents then petitioned for attorney’s fees under §1988(b), alleging they were a “prevailing party.” The district court denied the motion based on the Fourth Circuit precedent Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002), which created a bright-line rule that a plaintiff who is awarded a preliminary injunction is never a prevailing party. Respondents appealed, and a panel of the Fourth Circuit affirmed, stating that Smyth remained good law. The Fourth Circuit then granted respondents’ petition for rehearing en banc and determined that Smyth’s categorical bar went too far. 77 F.4th 200. The en banc court ruled that a prediction of the likelihood of success is sufficiently on the merits to justify prevailing-party status, and that the “court-ordered change” from a preliminary injunction is sufficiently “enduring.” Applying its approach here, the court held that respondents “prevailed,” making them eligible for a fee award, and remanded to the district court to determine the specific fee to which respondents are entitled.
The two key precedents are Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep’t of Health & Human Res., 532 U.S. 598 (2001), and Sole v. Wyner, 551 U.S. 74 (2007). In Buckhannon the Court clarified that for a party to prevail, the relief obtained must be “judicially sanctioned,” indicating that a defendant’s voluntary change in behavior “lacks the necessary judicial imprimatur on the change.” Then, in Sole, the Court emphasized that the success must also be “enduring” rather than “ephemeral,” meaning that a preliminary injunction that is later “reversed, dissolved, or otherwise undone by the final decision in the same case” does not qualify a party as prevailing. But the Court in Sole left open the possibility that success in obtaining a preliminary injunction might, in some cases, justify an award of counsel fees.
The Commissioner argues in his petition that the Fourth Circuit’s answer to both questions presented was erroneous. First, he argues that a decision based on the likelihood of success merely constitutes a prediction and does not definitively decide the merits. The Commissioner maintains that permitting fees based on a “likelihood” of success lacks the ready administrability required by Buckhannon. That is because it leaves unanswered questions regarding the threshold of likelihood necessary for relief on the merits and the level of rigor in the procedures leading to the prediction, given that preliminary injunctions are typically granted with less formal procedures and incomplete evidence compared to a trial on the merits. Second, the Commissioner claims that the Fourth Circuit erred by finding that the preliminary injunction itself need not provide enduring relief, stating that the decision conflicts with the Court’s precedent. Here, he says, respondents received enduring relief when the Virginia General Assembly repealed §46.2-395, meaning the lasting change did not come from the court, which is insufficient for prevailing-party status.
Respondents argue that 11 circuits recognize that a preliminary injunction can establish prevailing-party status when the case becomes moot, provided the injunction alters the legal relationship between the parties beyond maintaining the status quo, and that until this case the Fourth Circuit was the sole outlier. On the merits, respondents assert that the Fourth Circuit’s analysis aligns well with the Court’s precedent, which emphasizes a “generous formulation” for prevailing-party status. They insist that “[t]he preliminary injunction hearing was merits-based, as shown by the district court’s own extensive decision—one reached after a full evidentiary hearing involving exhibits and live testimony from six witnesses (some of whom were experts). The preliminary injunction changed the legal relationship between the parties, as it immediately shielded [r]espondents from the unconstitutional application of Virginia Code §46.2-395. The relief was concrete. And the relief was enduring. After the preliminary injunction, the Commissioner did everything in his power to stop Respondents from having a trial and lobbied the General Assembly for reform.” (Internal citations omitted.) Respondents distinguish Buckhannon because there, “[t]he plaintiff never won a preliminary injunction or any other judicial relief.”
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Melissa Patterson, Supreme Court Fellow
- Amanda Schwartz, Supreme Court Fellow
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