The Supreme Court recently granted Virginia’s request to consider whether a plaintiff who wins a preliminary injunction but fails to secure a final judgment is entitled to be awarded attorney’s fees.
If the court ends up ruling against Virginia, it could be a boost for citizens suing governments in civil rights actions.
Led by Georgia, 19 states supported Virginia’s bid to have the case heard.
Civil rights groups said that not requiring the attorney’s fees to be paid would lead to abuse.
Under what is known as the “American rule,” each party in a lawsuit typically pays his own attorney’s fees, whether he wins or loses. However, some statutes allow the payment of “a reasonable attorney’s fee” to “the prevailing party” in litigation. For example, 42 U.S.C. Section 1988 requires the payment of attorney’s fees to parties who succeed in civil rights lawsuits, according to a SCOTUSblog summary.
In this case, a group of Virginia residents filed a suit in federal court to invalidate, on equal protection and due process grounds, a Virginia statute that mandated the automatic suspension of driver’s licenses for people who fail to pay court fines and fees, without notice or a hearing.
A federal district court issued a preliminary injunction against the state statute, finding that the drivers would probably succeed on the merits. Virginia did not appeal the injunction, and the Virginia General Assembly later repealed the law before the case could be tried.
The citizens were able to drive again but sued to recover their attorney’s fees under Section 1988. However, the state argued it could not be forced to pay the plaintiffs’ attorneys for the time they spent on the case.
The district court denied the citizens’ petition, referring to a decision by the U.S. Court of Appeals for the Fourth Circuit that held that the granting of a preliminary injunction was insufficient to make the citizens a “prevailing party.”
“Faced with a suit challenging a potentially or even very probably unlawful practice, a [government] defendant may freely litigate the case through the preliminary injunction phase, hoping for the best or, perhaps, to outlast an indigent plaintiff,” the court held.
“And when the court confirms the likely merit of the plaintiff’s claim, the government will have ample time to cease the challenged conduct, moot the case, and avoid paying fees. That leaves the plaintiff, who likely devoted considerable resources to obtaining the preliminary injunction, holding the bag.”
Virginia then appealed to the Supreme Court.
The petitioner is Gerald F. Lackey, who is being sued in his official capacity as the commissioner of the Virginia Department of Motor Vehicles. The lead respondent is Virginia resident Damian Stinnie.
The Rutherford Institute, a conservative public interest law firm, argued in an amicus brief, joined by other groups and filed with the Fourth Circuit, that Virginia had to be compelled to pay the other side’s attorney’s fees. The brief stated that not insisting on the payment would give the government an incentive to wreak havoc in the civil justice system.
The “categorical” prohibition against giving prevailing party status to a civil rights plaintiff who succeeds in obtaining a preliminary injunction should be rejected, the brief said.
“First, the prohibition contravenes clearly articulated intervening Supreme Court precedent and cannot be reconciled with the position reached on this issue by the other federal appellate courts,” it read.
“Second, the prohibition undermines Congressional intent as embodied in the fee-shifting provisions of 42 U.S.C. [Section] 1988.
“Third, and finally, the prohibition needlessly diminishes the practical utility of preliminary injunctive relief as a device pursuant to which Section 1983 actions [i.e., civil rights lawsuits] may be resolved more efficiently and expeditiously.”
The Supreme Court is expected to hold oral arguments in Lackey v. Stinnie in its new term that begins in October. A decision is likely to follow by June 2025.
The Epoch Times repeatedly reached out this week to Erika Maley, principal deputy solicitor general for Virginia, and Matthew Fitzgerald of McGuire Woods in Richmond, Virginia, who is counsel for Mr. Stinnie, for comment but received no replies by press time.
