Merits-based preliminary injunctions that materially alter the relationship between the parties can, under appropriate circumstances, constitute a basis for a “prevailing party” and an award of attorney’s fees, said the New Jersey State Bar Association to the United States Supreme Court in its amicus curiae brief filed earlier this month. The NJSBA joined parties in requesting certification of the question in a brief written by Justice Gary Stein (Ret.), with assistance from Dominique Kilmartin, NJSBA past-president Robert B. Hille, Peter J. Gallagher and James A. Lewis, V.
“Undeniably, Respondents prevailed on their claim. The preliminary injunction reinstated their licenses without a penalty and enjoined enforcement of the statute, based on their demonstrated likelihood of success, until the cases was mooted eighteen months after the preliminary injunction was entered,” the NJSBA said in its brief. “But for the stay of trial sought and obtained by the Commissioner, and the subsequent repeal of the statute, Respondents undoubtedly would have succeeded at trial and secured a Final Judgment. In that context, the lack of a Final Judgment cannot reasonably or justifiably preclude Respondents from designation as a prevailing party.”
In the matter of Lackey v. Stinnie, No. 23-621, the Court is asked to address the question of whether a “prevailing party” in preliminary injunction cases where the offending statute had been repealed before a final injunction was entered and therefore the case dismissed. Lackey challenged a Virginia statute that suspended driver licenses, without notice or hearing, automatically upon an indigent person’s failure to pay fines for motor vehicle violations. Individuals whose licenses were suspended under the statute sued for injunctive relief and following an evidentiary hearing, such relief was granted based on a substantial likelihood of succeeding on the merits of their claim that the statute failed to provide procedural due process. They argued that the statute made no provision for either notice or a hearing prior to the license suspension.
The Commissioner of the Department of Motor Vehicles did not challenge the preliminary injunction, but after discovery and prior to trial sought a stay pending legislation that eliminated the suspension provision of the statute. That legislative action did not repeal the underlying statute. The stay was granted pending the next legislative session, which ultimately repealed the statute.
The parties stipulated that the litigation should be dismissed as moot, however the respondents argue they prevailed on their claim and are entitled to attorney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976.
The NJSBA joins others in asking the Supreme Court to affirm the determination of a number of Circuit Courts that despite the lack of a final ruling from the court, “under appropriate circumstances a preliminary injunction based on a finding of likelihood of success on the merits could support a prevailing party finding.”
The NJSBA argued that the petitioner’s claim that there is “confusion and uncertainty” is contrary to the Circuit Courts’ “consistent precedents that require a judicial decision that alters the parties’ relationship in a manner directly benefitting the plaintiff to serve as the sine qua non of a prevailing party finding… but that have pragmatically declined to require a final judgment on the merits as a predicate for that finding.”
Oral argument is scheduled for the fall.