Precedent on attorneys’ fees for injunction wins overruled

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The en banc court overruled its prior precedent and joined every other circuit to decide the issue in holding that when a preliminary injunction provides the plaintiff concrete, irreversible relief on the merits of her claim and becomes moot before final judgment because no further court-ordered assistance proves necessary, the subsequent mootness of the case does not preclude an award of attorneys’ fees.

Background

Under 42 U.S.C. § 1988(b), the “prevailing party” in certain civil rights actions is eligible to recover reasonable attorney’s fees. Two decades ago, this court held in Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002), that a plaintiff who wins a preliminary injunction but – for whatever reason – does not secure a final judgment may never qualify as a prevailing party.

In the years since, this categorical rule has become a complete outlier: Every other circuit to consider the issue has held that a preliminary injunction may confer prevailing party status in appropriate circumstances. Rehearing en banc was granted to reassess this bright-line approach.

Analysis

Three developments in the years since this court decided Smyth now compel the court to revisit its holding. First, there was the Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), which merits requirement means that this court may revisit Smyth without opening the door to the risk that so concerned the court there: that a plaintiff may prevail, and thus be entitled to fees, based on a preliminary injunction that had virtually nothing to do with the merits of her claim.

Second, since this court decided Smith, every other circuit to consider the question has concluded that a plaintiff whose case is rendered moot after she wins a preliminary injunction – so that the injunction by definition cannot be “reversed, dissolved, or otherwise undone” by a later order may qualify as a prevailing party in appropriate circumstances. While these circuits vary slightly in their formulations of when, precisely, preliminary relief satisfies this standard, every court disagrees with Smyth’s conclusion that a preliminary injunction always acts as a mere “prediction of a probable, but necessarily uncertain, outcome.”

Finally, one more practical observation impacts this court’s thinking.  Congress enacted § 1988(b) “in furtherance of the policy of facilitating access to judicial process for the redress of civil rights grievances.” This circuit’s rule, however, may undermine that policy by allowing government defendants to game the system. Faced with a suit challenging a potentially or even very probably unlawful practice, a defendant may freely litigate the case through the preliminary injunction phase, hoping for the best or, perhaps, to outlast an indigent plaintiff.

And when the court confirms the likely merit of the plaintiff’s claim, the government will have ample time to cease the challenged conduct, moot the case and avoid paying fees. That leaves the plaintiff, who likely devoted considerable resources to obtaining the preliminary injunction, holding the bag. This case illustrates the point.

Having overruled Smyth, the court adopts the following test: When a preliminary injunction provides the plaintiff concrete, irreversible relief on the merits of her claim and becomes moot before final judgment because no further court-ordered assistance proves necessary, the subsequent mootness of the case does not preclude an award of attorney’s fees.

It remains for the district court to determine what fee is ‘reasonable.’” In other words, that the plaintiffs here are prevailing parties means that they are “eligible for, rather than entitled to, an award of attorney’s fees.” What constitutes a “reasonable fee” in this case is committed to the district court’s “broad discretion.”

Vacated and remanded.

Dissenting opinion

Quattlebaum, J., Agee, J., Richardson, J. and Rushing, J., dissenting:

In my view, the majority’s decision misconstrues the meaning of “prevailing party” under § 1988(b) and strays from Supreme Court precedent. In contrast, Smyth is faithful to both. So, I respectfully dissent.

Stinnie v. Newcomb, Case No. 21-1756, Aug. 7, 2023. 4th Cir. (Harris), from WDVA at Charlottesville (Moon). Tennille Jo Checkovich for Appellants. Trevor Stephen Cox for Appellee. VLW 023-2-210. 58 pp.