The prevailing party in litigation can seek attorney fees from the losing side in civil rights lawsuits, so a broader interpretation would give public interest groups a better chance of forcing government agencies to foot the bill when they're defeated. (iStock.com/Jon Frederick)
Being declared the "prevailing party" allows litigants to seek attorney fees from the losing side in civil rights lawsuits, meaning a broader interpretation would give public interest groups a better chance of forcing government agencies to foot the bill when they're defeated in court.
But the determination usually hinges on a final judgment that's the result of a ruling on the merits, not a preliminary judgment that's decided on the less stringent likelihood-of-success standard.
"A likelihood of success is better than an unlikelihood of success, and we have to decide who's going to pay these fees," Justice Sonia Sotomayor said, paraphrasing the argument in favor of a more generous interpretation of "prevailing party."
The underlying lawsuit is a civil rights class action filed on behalf of indigent Virginia drivers, challenging a state law that automatically suspended residents' driver's licenses if they failed to pay traffic fines and court fees.
Represented by the nonprofit Legal Aid Justice Center and a McGuireWoods team, the drivers argued the law left poor Virginians trapped — unable to pay off fees and fines without driving to work, and unable to drive to work without paying off fees and fines.
The drivers won a preliminary injunction. The Virginia Legislature then repealed the law and the district court dismissed the case as moot, making it impossible for the drivers to secure a final judgment despite achieving their aims.
That left the question of who would pay for "six years of research and individual casework, five years of legislative and administrative advocacy" and "four years of litigation," as the LAJC described its efforts in a 2020 announcement.
On appeal, a Fourth Circuit panel initially said the drivers could not be considered the "prevailing party" because they hadn't secured a final judgment. But after agreeing to rehear the case en banc, the entire Fourth Circuit ruled in August 2023 the circuit's old, one-size-fits-all rule had "become a complete outlier" and overturned it, siding with the drivers.
The new rule adopted by the Fourth Circuit holds that a litigant can be considered a "prevailing party" if "a plaintiff obtains a preliminary injunction that (a) provides her with concrete, irreversible relief on the merits of her claim by materially altering the parties' legal relationship, and (b) becomes moot before final judgment such that the injunction cannot be reversed, dissolved or otherwise undone by a later decision."
Gerald F. Lackey, commissioner of the Virginia Department of Motor Vehicles, took the case to the Supreme Court, claiming that analysis is too permissive because it rewards litigants for prevailing on a simple likelihood-of-success standard and gives too much weight to nonjudicial acts, in this case the repeal of a law.
On Tuesday the justices had tough questions for both sides.
Erika L. Maley, principal deputy solicitor general of the Virginia Attorney General's Office, parried several questions by Justice Samuel Alito and Justice Elena Kagan about whether a strict interpretation of "prevailing party" could incentivize government agencies to moot civil rights cases in order to avoid paying attorney fees.
Maley responded that in most instances that's not feasible, as only the legislature can repeal a law, not a government agency.
At which point Justice Sotomayor chimed in.
"I think the problem that I'm having is … you're evading the essence of the question, which is that the money has been spent, and the issue is who bears the cost of that expenditure," Justice Sotomayor said.
"Why shouldn't the plaintiff receive some recompense?" she added.
Brian D. Schmalzbach of McGuireWoods, arguing on behalf of the drivers, had to fend off just as many pointed questions.
In a case that's ultimately dismissed as moot, Justice Neil Gorsuch said, there's no final ruling on whether a preliminary injunction was proper or improper.
"At the end, it disappears. It's withdrawn. It's moot. It's gone," Justice Gorsuch said.
"And we normally think of all preliminary orders in a case as merging into and superseded by the final judgment," Justice Gorsuch added.
Schmalzbach responded by arguing that even if a case is ultimately dismissed as moot, a preliminary injunction doesn't lose "its judicial imprimatur … It's just that the court can't order any additional relief because there's no need for it."
The drivers are represented by Jonathan Todd Blank, Matthew A. Fitzgerald and John Justin Woolard of McGuireWoods LLP, and Angela Adair Ciolfi and Patrick Stephen Levy-Lavelle of the Legal Aid Justice Center.
Lackey is represented by Virginia Attorney General Jason S. Miyares and Andrew Nathan Ferguson, Erika L. Maley, M. Jordan Minot and Graham K. Bryant of the Virginia Attorney General's Office, and Maya M. Eckstein, Trevor S. Cox and David M. Parker of Hunton Andrews Kurth LLP.
The case is Gerald F. Lackey v. Damian Stinnie et al., case number 23-621, in the U.S. Supreme Court.
--Editing by Alex Hubbard.
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