Motorists suing Virginia urged the U.S. Supreme Court on Aug. 5 to require the state to pay their attorney fees after they met with partial success in a civil rights lawsuit challenging a policy on driver’s license suspensions.
The case centers on a now-repealed Virginia statute that mandated the automatic suspension—without notice or a hearing—of driver’s licenses for people who fail to pay court fines and fees.
If the Supreme Court ends up ruling against Virginia, it could be a boost for citizens suing governments in civil rights actions, said the Legal Aid Justice Center of Charlottesville, Virginia, which is co-counsel for the motorists.
Counsel for Virginia, by contrast, said that precedent is on its side and that it would be wrong to award legal costs to litigants who secured an injunction against a state statute but did not complete the litigation. The state says the drivers are not entitled to attorney’s fees, because they failed to secure a final judgment in court.
The court is scheduled to hear oral arguments in the case, Lackey v. Stinnie, on Oct. 8.
Petitioner Gerald Lackey is the Commissioner of the Virginia Department of Motor Vehicles. Lead respondent Damian Stinnie is one of several Virginia drivers who sued the state.
The case hinges on the meaning of the phrase “prevailing party.”
In the U.S. justice system, each party in a lawsuit typically pays his own attorney’s fees, whether he wins or loses. However, some statutes require the payment of “a reasonable attorney’s fee” to the “prevailing party” in litigation.
For example, 42 U.S.C. Section 1988 provides that the unsuccessful party must pay the attorney’s fees of parties who succeed in civil rights lawsuits.
In the case at hand, several Virginia residents filed suit in federal court to invalidate, on equal protection and due process grounds, the Virginia statute that ended up being repealed before the litigation was completed.
A federal district court issued a preliminary injunction blocking the statute in 2018, finding that the drivers would probably succeed on the merits. Virginia did not appeal the ruling, and in 2020 the Virginia General Assembly rescinded the law before the case could be tried.
But the motorists still wanted the state to cover their attorney’s fees, so they sued 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 because the drivers, whose case was never adjudicated on the merits, didn’t qualify as prevailing parties.
The district court denied the drivers’ petition in June 2021, holding that the granting of a preliminary injunction was insufficient to make the citizens a “prevailing party.”
“Because the plaintiffs here ‘prevailed’ in every sense needed to make them eligible for a fee award, we vacate the district court’s denial of attorney’s fees and remand for further proceedings,” the circuit court stated.
Not requiring the government to pay may allow “government defendants to game the system,” as the government continues to press lawsuits in the hope of “outlast[ing] an indigent plaintiff.”
“The predictable outcome of this gamesmanship is fewer attorneys willing to represent civil rights plaintiffs in even clearly meritorious actions—particularly those whose urgent situations call for interim relief,” the court said.
Virginia then appealed to the Supreme Court, which granted the state’s petition without comment on April 22.
The litigant must secure an “enduring” and “judicially sanctioned change in the legal relationship of the parties,” the brief states.
“Preliminary injunctions bear none of these hallmarks. They are not a determination on the merits or a final judgment. Rather, they merely predict the ‘probability of’ the party’s ‘ultimate success.’”
“The test to determine a ‘prevailing party’ is whether a plaintiff wins tangible relief from a court order that is never undone on the merits. A preliminary injunction can satisfy that test, as every circuit [court] to address the issue holds.”
“A plaintiff that persuades a court to grant the relief requested by the lawsuit ‘prevails’ in any ordinary sense of the word.”
The Supreme Court has “always construed the term ‘prevailing party’ with a view to that ordinary meaning,” and legal dictionaries say the same thing, the brief states.
Lackey would impose “two new requirements to this Court’s test,” which the justices should reject, the brief says.
One would require a full adjudication of the merits of the case, a requirement the Supreme Court rejected in Maher v. Gagne (1980). The other would require “a final-judgment requirement,” which the court has not insisted upon, the brief states.
Accepting the idea that “preliminary injunction winners are prevailing parties creates the right litigation incentives,” while Lackey’s approach would give governments “a free pass to violate civil rights, stop only when the courts order it, and still evade attorney’s fees,” according to the brief.
Governments have, as part of their legal strategy, been able to end “cases late in the game. And civil rights plaintiffs have little recourse to stop them,” Stinnie’s brief states.
