Justices Show Support for Flexible Rule on Attorneys’ Fee (1)

The US Supreme Court seemed likely to reject a categorical rule that would limit when civil rights plaintiffs can get attorneys’ fees.

The justices at argument on Tuesday considered what it means to be a “prevailing party” under a federal law intended to both ensure that attorneys would be incentivized to take on civil rights cases and deter state officials from violating constitutional rights.

The case involves a group of indigent Virginia drivers who challenged a state law that automatically suspended their licenses for failure to pay certain court fees.

A federal trial court initially agreed and granted the plaintiffs a preliminary injunction. But before the case went to trial, the state legislature repealed the law and mooted the case.

Virginia Solicitor General Erika Maley told the justices the preliminary injunction by the judge wasn’t enough to qualify the plaintiffs as a prevailing party and obtain attorneys’ fees. “It is simply a threshold prediction of the likelihood of success based on a truncated record and an initial, often hasty assessment of the law that may well prove to be faulty as the case proceeds,” Maley said.

If the plaintiffs “got as much relief as they needed,” Chief Justice John Roberts asked, “I wonder why that doesn’t fit?”

Justice Elena Kagan said that every court of appeals now agrees a preliminary injunction can support a fee award. Noting that courts recently encountered similar situations with temporary Covid-19 orders, she said, “there’s quite a lot of recent law that cuts against you here from circuits pretty much all across the US.”

Who Pays?

The Justice Department sided with Virginia in the case. DOJ attorney Anthony Yang told the justices that “prevailing party” is “a longstanding term of art” that’s focused on what happened at the end of the litigation.

Justice Neil Gorsuch was the only justice who appeared to fully embrace that thinking. Here, the case was ruled moot, meaning that the preliminary injunction went away, Gorsuch said. “At the end, it disappears.”

But Justice Sonia Sotomayor said that much of the argument was missing the “essence of the question, which is that the money has been spent, and the issue is who bears the cost of that expenditure.”

“And why should it be a plaintiff who has received relief, all the relief that he or she wanted, and is now stuck with paying for that, when it was the other side and one of its agents” that “decides to make a change?” Sotomayor asked.

Yang pointed to the so-called American rule in which “each party, win or lose, bears their own fees. And this court has made clear that you need express statutory authority to depart from that rule.”

“And isn’t that the statute we’re talking about here?” Justice Ketanji Brown Jackson countered.

The case is Lackey v. Stinnie, U.S., No. 23-621, argued 10/8/24.