A recent Law.com story by Avalon Zoppo, “Federal Appeals Cour Lifts Attorney Fees Limitation in Civil Rights Cases”, reports that, in a win for plaintiffs, the full U.S. Court of Appeals for the Fourth Circuit lifted its decades-old rule that barred litigants who win a preliminary injunction in subsequently moot civil rights cases from being considered a prevailing party and entitled to attorney fees.  The Richmond, Virginia-based appeals court said its bright-line rule had become “a complete outlier,” with other circuits holding that preliminary injunctions can confer prevailing party status.

The judges put forward a new rule: If a party in a civil rights case wins a preliminary injunction that provides “concrete, irreversible relief on the merits,” they may be entitled to attorney fees even if the case later becomes moot.

“Although many preliminary injunctions represent only ‘a transient victory at the threshold of an action,’ some provide enduring, merits-based relief that satisfies all the requisites of the prevailing party standard,” wrote Judge Pamela Harris, joined by Chief Judge Albert Diaz and Judges Paul Niemeyer, Robert King, Roger Gregory, James Wynn and Stephanie Thacker.

“Our sister circuits have carefully and thoughtfully engaged with this question … and the Supreme Court, we note, has not intervened, except to flag the question as one it has left open,” Harris continued.

Precedent Overturned

In its 7-4 decision, the en banc court said attorney fees are available for the low-income Virginians who brought a class action over a now-repealed state law that required the automatic suspension of their driver’s licenses for unpaid court fines.  A lower court blocked the law from being enforced against the plaintiffs, finding it likely violated due process rights under the Constitution’s 14th Amendment.  But the state legislature later repealed the law, and a judge dismissed the case as moot.

A Fourth Circuit panel last year denied the plaintiffs’ bid to be recognized as the prevailing party, finding that the circuit’s precedent in Smyth v. Rivero foreclosed such recognition.  But the majority said developments in the years since 1992—such as the Supreme Court establishing more stringent merits requirements for issuing preliminary injunctions—meant the Fourth Circuit should revisit its rule.

The majority also worried that Smyth could allow government defendants to avoid paying fees by litigating a case through the preliminary injunction phase and then ending their potentially illegal conduct if the court sides with plaintiffs early on.  Here, the majority said the plaintiffs fit the Supreme Court’s definition of a prevailing party— one who gets concrete benefit on the merits of their claim.  As part of the preliminary injunction order, the court told the state’s Department of Motor Vehicles commissioner to reinstate the driver’s licenses.

“No matter what happened at the conclusion of the litigation, this injunction, for the time it remained in effect, allowed the plaintiffs to again drive to their jobs and personal engagements, providing concrete, irreversible economic and non-economic benefits that the plaintiffs sought in bringing suit,” Harris wrote, noting that not all preliminary injunctions satisfy that standard.

Dissenting, four Republican-appointed judges said a preliminary injunction isn’t enough to make a party prevail.  They pointed, in part, to the definition of “prevailing party” in Black’s Law Dictionary.  Based on that definition, the dissenters said a party must achieve final success and not only the “likely success” acknowledged by preliminary injunctions.  “A court must resolve at least one issue once and for all on the merits, not merely predict how issues are likely to be resolved,” wrote Judge A. Marvin Quattlebaum Jr., joined by Judges G. Steven Agee, Julius Richardson and Allison Rushing.

Quattlebaum used a sports reference to drive home his point.  “If anyone doubts that there is a difference between actually prevailing and having a likelihood of success, just ask the Atlanta Falcons—or better yet, their fans. Mid-way through the third quarter of the 2017 Super Bowl, the Falcons had achieved a great deal of success. … By any measure, the Falcons were likely to succeed.  But they had not prevailed,” he wrote.  “The Patriots came back to win 34-28, the largest comeback in Super Bowl history.  Likelihood of success is just not the same thing as prevailing.”

The plaintiffs were represented by McGuireWoods attorneys Jonathan T. Blank and John J. Woolard, Smithfield Foods attorney Tennille J. Checkovich and the Legal Aid Justice Center.  “We are gratified by the Court’s decision, which overturned the outlier rule in Smyth and adopted the rule we were seeking.  This decision upholds our clients’ rights and will benefit other civil rights plaintiffs in the future,” said Pat Levy-Lavelle, senior intake attorney at Legal Aid Justice Center.

The Fourth Circuit’s ruling represents a major win for civil rights plaintiffs.  University of Virginia School of Law professor Daniel Ortiz previously told Law.com that the circuit’s precedent has long been used to stifle civil rights litigation and made it less likely individuals would challenge potentially unconstitutional policies in the first place.

And several civil rights organizations acting as amici, including the American Civil Liberties Union of Virginia, Center for Civil Justice and Equal Justice Under Law, argued in papers filed with the Fourth Circuit that the court’s past precedent undermined the benefit of preliminary injunctions as a way to get quick resolution of civil rights actions.

In a statement, the ACLU of Virginia’s Legal Director Eden Heilman said the Fourth Circuit’s ruling helps ensure civil rights claimants have access to the courts.  “Even if the case doesn’t move forward, it is critical to the financial viability of public interest and nonprofit civil rights organizations to be able to seek attorneys’ fee awards and costs in civil rights cases where the plaintiff has achieved a successful outcome at the preliminary injunction phase of the case,” Heilman said.  “We’re working for equal access to justice under the law for every person in this country, but until we achieve that, the unfortunate reality for too many plaintiffs is that they can’t access the courts without meaningful resources. This ruling is part of how we ensure they’ll get them.”