The U.S. Supreme Court’s recent opinion in Lackey v. Stinnie, No. 23-621 (U.S. Feb. 25, 2025), clarified for plaintiffs what it means to be a “prevailing party” for recovery of attorney’s fees. While the case arose under the attorney’s fee provision for civil rights cases – 42 U.S.C. § 1988(b) – the holding has broader implications for federal court litigation, particularly where the only relief sought by the plaintiff is injunctive relief.
The case was a civil rights challenge by Virginia automobile drivers pursuant to 42 U.S.C. § 1983, claiming that they were denied due process by a Virginia statute that required suspension of their drivers’ licenses without sufficient notice or hearing for failure to pay parking tickets and the like, with the suspension lasting until the fine was paid or a payment plan established. The district court granted a preliminary injunction, finding that plaintiffs were likely to prevail on their constitutional claim. Before the case could be tried, the state legislature repealed the statute at issue, and the parties, agreeing that the case was moot, stipulated to dismissal. Plaintiffs then sought recovery of their attorney’s fees under section 1988(b), which permits an attorney’s fee award to a “prevailing party,” inter alia, in a section 1983 case. Plaintiffs argued that, by obtaining a preliminary injunction that, in all likelihood, led to the repeal of the statute, they were “prevailing parties.” The Fourth Circuit, sitting en banc, agreed with plaintiffs, but the Supreme Court, in an opinion by Chief Justice Roberts, reversed.
Relying on a legal dictionary definition of “prevailing party” contemporaneous with the enactment of section 1988(b) – a party who successfully prosecutes the action – the Court reasoned that, because a preliminary injunction is based only on a likelihood of success on the merits, the plaintiff who obtains such relief has not “prevailed:”
Because preliminary injunctions do not conclusively resolve the rights of parties on the merits, they do not confer prevailing party status. A plaintiff who secures a preliminary injunction has achieved only temporary success at an intermediary “stage[ ] of the suit.” Black’s Law dictionary 1352. It cannot yet be said that he will “ultimately prevail[] when the matter is finally set at rest” or that he will have “successfully maintained” his claim “at the end.” Ibid. And external events that render a dispute moot do not convert a temporary order designed to preserve the status of the parties into a conclusive adjudication of their rights. [Slip op. at 7.]
According to the Court, its ruling “serves the interests of judicial economy. A straightforward, bright-line rule is easy to administer, reducing the risk of a ‘second major litigation’ over attorney’s fees.” [Slip op. at 10]. In this regard, the Court dismissed the plaintiffs’ concern that a defendant could “strategically moot” a case and avoid an award of attorneys’ fees if it feared ultimately losing the case. The Court noted that plaintiffs with damage claims would not face that threat and, even in cases seeking only injunctive relief, the case does not become moot if the challenged conduct is capable of repetition yet evading review. [Slip op. at 10]. At bottom, it is up to Congress to decide whether attorney’s fees should be awarded to plaintiffs who achieve some success but do not prevail – as is the case with Freedom of Information Act claims where plaintiffs can seek legal fees if they “substantially prevail[].” Id. at 11 (citing 5 U.S.C. § 552(a)(4)).
The Court did, however, limit its ruling to prevailing plaintiffs:
Our decision today should not be read to affect our previous holding that a defendant need not obtain a favorable judgment on the merits to prevail, nor to address the question we left open whether a defendant must obtain a preclusive judgment in order to prevail. See CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419, 431-434 (2016). As we have explained, “[p]laintiffs and defendants come to court with different objectives.” Id., at 431. [Slip op. at 9 n.*].
The decision in Lackey is likely to have implications beyond section 1988(b). Several federal statutes award legal fees to “prevailing parties.” In some regulatory cases, the preliminary injunction is in fact the main event of the case. For example, animal rights activists often file lawsuits under the National Environmental Policy Act or the Endangered Species Act, seeking to enjoin individual transactions or other activities by businesses who use animals for various purposes. The granting of a preliminary injunction, even though it is not a final determination of the merits of the case, could spell the end of the defendant’s project, either because the opportunity for the transaction has come and gone or the defendant does not have the resources to further litigate the case. Yet, in such circumstances, the plaintiff would not be entitled to seek attorney’s fees under the rationale of the Lackey case.
Whether Lackey has the result of cutting down on litigation by plaintiffs in in the regulatory sphere remains to be seen. However, that is what the dissenting opinion by Justice Jackson predicts. She points to research on the effect of the Court’s rejection of the “catalyst theory” in Buckhannon Bd. & Care Home, Inc. v. West Va. Dep’t of Health & Hum. Resources, 532 U.S. 598 (2001), i.e., the theory that a plaintiff “prevails” if its suit was the catalyst for the defendant’s change in conduct. According to the dissent, Buckhannon “had the predictable practical effect of discouraging public interest organizations and private attorneys from taking on civil rights actions.” [Dissenting op. at 18].
