In Lackey v. Stinnie (No. 23-621), the Supreme Court addressed a question that had divided the circuits: If a plaintiff sues under Section 1983 and obtains a preliminary injunction, but subsequent events moot the suit before the district court can make that temporary relief permanent, is the plaintiff a “prevailing party” entitled to attorney’s fees under Section 1988(b)? Rejecting the approach favored by most lower courts, a 7-2 Supreme Court held that they are not.

The case began in Virginia, where state law required courts to suspend the license of any driver who had failed to pay “any fine, costs, forfeitures, restitution, or penalty lawfully assessed against him.” Such suspensions remain in effect until the driver paid the amount due in full or entered into a payment plan approved by a court. In 2016, a group of drivers whose licenses were suspended under this provision and alleged that they could not pay the fines required to reinstate their license sued the Commissioner of the Virginia Department of Motor Vehicles in federal court under Section 1983. The drivers alleged that the law violated the due process and equal protection clauses because it did not provide them with adequate notice before their licenses were suspended, and it applied even to people who were financially unable to pay the fines. The drivers sought declaratory relief, preliminary and permanent injunctive relief, and attorney’s fees under 42 U.S.C. § 1988(b). 

In December 2018, the District Court entered a preliminary injunction against the law, holding (among other things) that the drivers were likely to prevail on the merits. Although Virginia could have appealed the preliminary injunction, it didn’t, so the case moved toward a full trial on the merits. In April 2019, a few months before trial was scheduled to begin, Virginia moved to stay the suit, arguing that it would soon become moot because the Virginia General Assembly was likely to pass a law eliminating the fines in an upcoming legislative session. The District Court entered the stay, and the next year, the General Assembly repealed the law and reinstated any licenses that had been suspended under it. Given that legislative change, the parties agreed the case was moot and stipulated to a dismissal, but the drivers asserted they were “prevailing parties” entitled to recover their attorney’s fees under Section 1988(b). The District Court refused to award fees, concluding that a party who obtains just a preliminary injunction (with no final relief) is not a prevailing party under Section 1988(b). Relying on circuit precedent, a Fourth Circuit panel affirmed, but the en banc Fourth Circuit then took up the case and overruled its precedent. In doing so, it joined the majority of the other courts of appeals in holding that a plaintiff who obtains “concrete, irreversible relief” on the merits of their claim via a preliminary injunction can be a prevailing party if the suit then becomes moot before a final judgment. Because the lower courts had divided on how to apply Section 1988(b)’s prevailing-party standard to cases like this one, the Court granted cert.

A 7-2 Court reversed the Fourth Circuit in an opinion written by Chief Justice Roberts. The Chief began by reciting the familiar “American Rule,” which provides that a prevailing party is generally not entitled to recover their attorney’s fees unless a statute expressly authorizes the court to award them. Section 1988(b) obviously is such a statute, as it provides that a “court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” But the statute doesn’t define when someone is a “prevailing party.” So Roberts looked to legal dictionaries, which generally define the term as looking at who prevailed at “the end of the suit . . . when the matter is finally set at rest.” A preliminary injunction, by contrast, requires a party to show only that they are “likely to succeed on the merits,” meaning that a party who obtains a preliminary injunction may nonetheless go on to lose the suit on the merits. Preliminary injunctions are thus at most a “transient victory.” And that transient victory does not become any more final when some “external event” (like the legislature changing the law) makes it impossible to obtain enduring, court-ordered relief. In short, because a preliminary injunction does not conclusively resolve a case, a party obtaining a preliminary injunction, without more, is not a prevailing party entitled to recover fees.

Justice Jackson, joined by Justice Sotomayor, dissented. She emphasized that Section 1988(b) was enacted precisely because Congress wished to depart from the American Rule in civil rights litigation. Under both the plain language and the Court’s precedent, she concluded that securing a preliminary injunction is enough for a plaintiff to qualify as a prevailing party so long as the preliminary injunction is never reversed by a final ruling on the merits. She also objected to the significant practical consequences of the majority’s approach: It is hardly unique for civil-rights cases to be mooted out either by settlement or legislative action, and depriving successful litigants of attorney’s fees in those cases may deter the filing of meritorious suits, deter settlements, and reward gamesmanship from defendants.