Supreme Court scales back civil rights attorneys' fees statute

This decision will be of great interest to civil rights lawyers. It will also be of interest to the municipalities that defend civil rights cases. The Supreme Court holds that a plaintiff who wins a preliminary injunction under Section 1983 is not a prevailing party for purposes of recovering an attorneys' fees award. 

The case is Lackey v. Stinnie, issued on February 25. Under 42 U.S.C. 1988, "prevailing parties" in civil rights cases, usually brought under 42 U.S.C. 1983 and the employment discrimination statutes, will recover attorneys' fees from the losing side. The statute provides for this to encourage lawyers to bring meritorious civil rights cases even if their clients have little if any money to finance these cases. Normally, the prevailing party recovers fees following a favorable jury verdict. But over the years, nearly all the federal circuits have said you can recover attorneys' fees even if you win a preliminary injunction, which is an early victory in the case because the judge thinks you have a strong case and the plaintiff will suffer irreparable harm without an injunction. The order granting the preliminary injunction would entitle you to fees. Those cases, including those in the Second Circuit, are now all overruled.

In this case, the plaintiffs won a preliminary injunction challenging a Department of Motor Vehicles rule allowing the State of Virginia to issue certain fines against people with suspended drivers' licenses. They won the case under the Due Process Clause. The Fourth Circuit said plaintiffs were prevailing parties and their lawyers could recover attorneys' fees for their efforts. The state took the case to the Supreme Court.

The fee-shifting statute does not squarely address this particular issue. Lawyers know, but the general public does not know, that much of constitutional law and even statutory analysis is judge-made. Judges will use precedent and logic to reach their conclusions, but any case that reaches the Supreme Court can go either way. This is one of those cases. As I mentioned, nearly all the Circuit Courts have sided with the plaintiffs on whether preliminary injunctions entitle you to "prevailing party" attorneys' fees. But in many instances, the Supreme Court does not defer to the 13 Circuit Courts, and the Supreme Court rarely employs the logic from lower courts to justify its conclusions. The Supreme Court usually decides cases from scratch and draws from whatever Supreme Court precedent that might speak to the issue, even if those cases do so on the periphery.

In this case, the Supreme Court, by a 7-2 vote, reverses the Fourth Circuit and interprets the phase "prevailing parties" to mean you have to prevail in the lawsuit overall, and not at the injunction stage, to recover attorneys' fees. The analysis draws from the statutory construction: what does "prevailing party" mean? The Chief Justice says that dictionary definitions in place when the fee-shifting statute was enacted in 1976 suggest that "prevail" means winning the case overall, not a huge win early in the case that produces a court order favoring the plaintiff on the merits. "Temporary success" early in the case is not enough to qualify as a "prevailing party."

This ruling also follows from prior Supreme Court rulings in attorneys' fees cases. In 2001, the Court held in Buckhannon v. West Virginia, that you are not a prevailing party if your lawsuit compels the government to change the challenged policy in your favor before the court has a chance to rule in the case. These were called "catalyst fees." You don't hear the phrase "catalyst fees" anymore because the Court in a 5-4 vote, said you need a court order to qualify for attorneys' fees, and if the government moots out the case by changing the challenged policy, there is no court order or judgment and the case withers away without fees for the lawyers who did all the work that led to the changed policy. Buckhannon also rejected the views of nearly all the Circuit Courts that held that Section 1988 recognizes catalyst fees. 

Justices Jackson and Sotomayor dissent. The third liberal on the Court, Kagan, voted with the six conservatives. The dissenters interpret the contemporary dictionary definitions of "prevailing party" quite differently from the majority. The dissenting opinion says the majority is missing the point of the fee-shifting statutes: to allow plaintiffs access to the courthouse by allowing their lawyers to recover attorneys' fees when they win the case and/or achieve a great result for their clients. When Justice Jackson joined the Court, people were excited that someone with her credentials and background would have a voice on the Court for the first time. I said that it would mostly mean that we would be reading good dissents like this one.

I wonder how this case will affect civil rights litigation in the future. Bear in mind that a permanent injunction will entitle you to fees, even if a preliminary injunction will not. Plaintiffs' lawyers, especially non-profits who bring these cases without charge, rely on Section 1988 to pay the bills when they win the case. Injunctions are sought with the understanding that the court will award attorneys' fees when the plaintiffs recover an early injunction due to the strength of the case. Justice Jackson cites an amicus brief that says that "losing the ability to recoup fees for securing interim relief will jeopardize their missions." She adds that "there is thus every reason to believe that the net result of today's decision will be less civil rights enforcement in the long run."