Lackey v. Stinnie: What, Exactly, Is a Preliminary Injunction?

Next week the U.S. Supreme Court will hear oral argument in Lackey v. Stinnie, a case that presents two questions about whether and when a party who receives a preliminary injunction may recover attorneys' fees as a "prevailing party" under 42 U.S.C. § 1988. An en banc decision of the Fourth Circuit said yes to prevailing party status for the plaintiff who secured a preliminary injunction before the challenged statutory provision was repealed.

The case is interesting for many reasons. One is the unusual split among the amici. The government amici, including conservative states and the Biden administration, lined up in support of the petitioner (arguing that the PI-receiving plaintiff was not a prevailing party). The public interest organizations lined up in support of the defendant (arguing for prevailing party status). That might not seem surprising--after all, fee shifting is an important part of the latter group's business model.

But below the surface two points are worthy of note. One is that many challenges to rules and statutes, at least at the federal level, are now led by coalitions of states. In this case, the states revert to form as paradigmatic defendants, instead of being challengers. The other point of note is that the public interest organizations that engaged in the case, although from across the political spectrum, tended to be more conservative ones. Attorneys' fees help drive public interest litigation, and the valence of a substantial portion of that litigation has shifted remarkably from what the amici would have looked like, say, ten years ago. And, of course, it will shift again.

More interesting, though, are the alternative visions of the preliminary injunction sketched out by the parties and their amici. The petitioners argue that the nature of the preliminary injunction is inconsistent with treating it as a judgment or final determination on the merits. No one has prevailed yet. The respondents treat the preliminary injunction as a judgment, a full determination of the merits. And they need to treat it that way so it is the judicial action itself, not the legislature's response to it, that is decisive.

I don't think it's really open to question who is right on this point. The petitioners (and the SG) correctly state the law of the preliminary injunction, and the respondents do not correctly describe what it is. I understand that one could come at this case in terms of incentives for strategic behavior, thinking about the political economy of public interest litigation and legislative responses. And that could open up a range of normative judgments (and that is the approach taken by some amici supporting the respondents). But if we approach it from the perspective of what a preliminary injunction is, and what consequences should follow from it, there is no room for doubt.

In a paper called The Purpose of the Preliminary Injunction, I work through the characteristics of the preliminary injunction and what it is for. Those characteristics, or design features, include that the preliminary injunction is temporary (with its outer bound demarcated by the litigation), that it decides nothing, and that it is based on partial evidence (pp. 8-15). Every single one of these design features fits the argument of the petitioners, and none of them is consistent with the argument of the respondents. The purpose of the preliminary injunction is not to decide the merits, but to protect the court's ultimate remedial options (pp. 34-51). Again, that strongly supports the argument that someone who obtains this interim measure is not a prevailing party.

A few further notes on the briefs:

• The petitioners note that some circuits apply a sliding scale to preliminary injunctions, allowing in some cases a lesser showing on the merits if there is a very strong case on irreparable injury and the balance of hardships. That approach has strong support in traditional equitable principles (and, by the way, it was the favored approach of Judge Friendly). The respondents' view of a preliminary injunction is inconsistent with this traditional equitable approach; indeed, it threatens the existence of the sliding scale. If the Court were to decide for the respondents (which I think is unlikely), and the Court were not careful in how it treated the merits factor in the preliminary injunction test, it could wipe out the sliding scale used in one form or another by at least three circuits. And that is so even though that question has not been briefed and adequately presented to the court.
• The petitioners note that the statutory language refers to "the prevailing party" and suggest that supports their position. Just to go a little further: although unusual, there can be cross motions for preliminary injunctions, and both preliminary injunctions can be granted (e.g., imagine contestation of property ownership and both claimants are forbidden to access it during the litigation). Similarly, a court could grant a preliminary injunction that constrains the defendant, while also placing conditions on the plaintiff. Now this is not a decisive argument for petitioners; one could just retreat to case by case decisionmaking. But the point is that once we see the litigation-stabilizing function of the preliminary injunction, we will be less likely to fall into thinking that getting one makes you a prevailing party.
• To allow plaintiffs who get preliminary injunctions to receive attorneys' fees skews the incentives toward seeking injunctions rather than damages, since preliminary injunctions are available only for claims for equitable final relief (Grupo Mexicano).
• The respondents' argument about the broad discretion to require costs in equity (e.g., p. 21) does not need to be resolved in this case. In this case the question is about the interpretation of Section 1988.
• A plaintiff who gets a preliminary injunction has a sharply reduced incentive to settle. (For a model showing this, see Thomas D. Jeitschko & Byung-Cheol Kim, Signaling, Learning, and Screening Prior to Trial: Informational Implications of Preliminary Injunctions, 29 J. L. Econ. & Org. 1085 (2013).) That effect would be exacerbated by a victory for the respondents in this case. If plaintiffs can get a preliminary injunction, have the provisional policy win they want, drag their feet during the rest of the litigation, and get attorneys' fees if the defendant eventually gives up and makes a legislative change--then we will get even less incentive for plaintiffs who get a PI to settle or proceed expeditiously with the litigation.
• Where petitioners make a concession about the "rare case" that might generate prevailing party status (p. 31), I see no need to make a concession, since such a case is a misuse of the preliminary injunction. If a court wants to decide the case, it can. It just needs to accelerate the trial of the merits under FRCP 65(a)(2)--if all the evidence and argument are there, go ahead and decide the merits, and then the plaintiff, if successful, has prevailed. There is no reason to cram a merits determination into a preliminary injunction. Its purpose is not merits determination, but rather preserving the ultimate remedial options of the court (as explored at length in The Purpose of the Preliminary Injunction).

Comments

[John F. Carr]

Allowing defendants to evade attorney's fees by mooting the case may be bad policy. I remember the Institute for Justice ranting against that practice in forfeiture cases.

[Lee Moore]

I agree with you and Davy C, as a matter of policy. But since IANAL that probably puts you on the wrong side.

As Davy C and Jett's Pop argue, in common sense (if not the law) when you win you have prevailed.

[Davy C]

On the other hand, if I sue you for $100K, and 2 years into the litigation you cut me a check for $100K and then move to dismiss the suit as moot, have I not prevailed? Similarly, if I sue a state to enjoin a law from being enforced, and partway into the litigation the state repeals the law and then moves to dismiss the suit as moot, have I not prevailed?

I don't think it's the preliminary injunction that makes one side "prevailing". I agree that such an injunction is temporary. It's the capitulation of one side resulting in the other side getting everything it asked for.

Of course, the Supreme Court pretty much rejected this argument 5-4 in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001).

[Jett's Pop]

I agree with most of what you said. The post focuses on what is a "preliminary injunction," instead of what is a "prevailing party." A party that has obtained an order based upon a conclusion that it is likely to succeed on the merits, and where the other side has essentially caved, has "prevailed" in any reasonable sense of the term.

I don't think the Court addressed that precise set of facts in Buckhannon. (If it had, the lower courts wouldn't be split over the issue.)

[LawTalkingGuy]

I really appreciate Professor Bray’s point about the nature of preliminary injunctions, but I think he’s fighting a losing battle. He’s completely right about the ideal but I think practice, whether high stakes fights about federal laws and programs, or more every day matters, will tend to making the preliminary injunction the be all end all.

It becomes the trial on the merits because the civil rules essentially force it to. And even if they didn’t allow consolidation it’s hard to undo what’s already been done at a hearing.

Quick preliminary relief is still a thing, but it’s a bastardized of the ideal: TROs that aren’t TROs. In my experience TROs applications become de facto (de jure even?) because most judges don’t like ex parte proceedings and it’s actually pretty easy to contact the other side via phone to discuss it the matter, TRO motions become informal hearings about preliminary relief.

Preliminaries are the new permanents and TROs are the new prelims.

Should fee shifting apply? No idea. But our theoretical conception of the remedies at issue do not line up with practice.

[Rossami]

I can see the argument that a preliminary injunction alone does not make you a prevailing party but the legislature changing the law in response to your litigation does. The fact that the legislature made the merits decision instead of a court still means that the merit decision was made.

[Davy C]

But the legislature repealing a law is not ordinarily a merits decision on the constitutionality of the law. Most of the time, if a law is repealed or amended, it's not due to litigation or unconstitutionality. Figuring out the intent of a member state legislature is no easy task; they could have had 99 different reasons for changing the law. And you don't want major secondary litigation delving into legislative intent just to decide who pays the fees in the case.

[EMS]

First, the party who prevails at a preliminary injunction stage goes get an order from a court that changes the legal relationship of the parties — which is the legal test enunciated in Buchannon.
Second, there are many civil rights cases where the only possible relief is injunctive relief — for example, suits against state government officials because of the Eleventh Amendment.
Third, providing fees for preliminary injunctions promotes settlements; without statutory fees for preliminary injunction, plaintiffs would have incentives to get a final judgment that would provide for fees.
Fourth, in many cases, the preliminary injunction may moot the case. So the preliminary injunction is the most important battle.

[Bored Lawyer]

First, the party who prevails at a preliminary injunction stage goes get an order from a court that changes the legal relationship of the parties — which is the legal test enunciated in Buchannon.

Thank you. The author of this post seems to forget that "prevailing party" in the statute is not synonymous with "achieved a final judgment on the merits." A PI is definitely not a final judgment. Which is why it is not res judicata, and is only appealable at the federal level because there is a special statute allowing for such, rather than the general final-judgment-appeal statute.

I also react to the following:

The petitioners note that the statutory language refers to "the prevailing party" and suggest that supports their position. Just to go a little further: although unusual, there can be cross motions for preliminary injunctions, and both preliminary injunctions can be granted (e.g., imagine contestation of property ownership and both claimants are forbidden to access it during the litigation). Similarly, a court could grant a preliminary injunction that constrains the defendant, while also placing conditions on the plaintiff.

But this can happen at the end of litigation as well. The plaintiff can prevail on one claim or claims and the defendant on other claims that were asserted. There is case law as to how to navigate this situation, but it is by no means unique to a PI decision.

[JEP41]

Accepting the author’s conclusion that under current law, no legal fees are due when only a preliminary injuction is obtained: to me this seems like a problem that could use a fix – a new, or revised law governing the payment of legal fees in such cases.

As it stands, when the government passes a law that it ultimately can’t/won’t defend – then fixes/repeals the law when faced with a legal challenge to the law; those who are, or would be, harmed by that law must incur legal fees to get the law changed/repealed.

It seems like this incentivizes politicians to pass laws that are bad laws for which the government will pay no price, they can force the cost of fixing those bad laws on others.

If governments knew that when their laws are successfully challenged, they would have to pay the legal fees of the challengers – regardless of whether there was ever a final judgement and regardless of whether the government “fixed” the laws after the suit was brought); I think governments would be more likely to give greater thought to the laws they pass. I see that as a good thing.

It seems like something that would be conceptually easy to do, though likely politically difficult.

[Devin Watkins 2]

If a preliminary injunction is not enough, then a repeal should not moot the case for declaratory judgment as real legal consequences will still flow from that determination.

[ReaderY]

I tend to agree that the question here is not what is a preliminary injunction, but what is a prevailing party. Professor Bray appears to simply assume that “prevailing” can never take into account what happens outside the courtroom. But I think this would have to be justified rather than simply assumed.

[Bored Lawyer]

Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001)
https://supreme.justia.com/cases/federal/us/532/598/

seems to point in that direction. It requires a "judicially sanctioned change in the legal relationship of the parties." It's not totally dispositive of this new question, but it sure points that way.