The United States Supreme Court heard oral argument on whether merits-based preliminary injunctions that materially alter the relationship between the parties can constitute a basis for a “prevailing party” designation for the purpose of attorney’s fees. The New Jersey State Bar Association joined parties in urging the Court in the matter of Lackey v. Stinnie, No. 23-621, to affirm the Fourth Circuit’s en banc decision conferring prevailing party status on the plaintiffs. The Association did not participate in oral argument. Justice Gary Stein (Ret.) wrote the brief with assistance from Dominique Kilmartin, NJSBA past-president Robert B. Hille, Peter J. Gallagher and James A. Lewis, V.
“The winner of an unreversed favorable judgment and tangible relief from the court is a prevailing party under Section 1988,” Brian D. Schmalzbach, attorney for the plaintiff-respondents, said before the Court.
The Fourth Circuit was the only holdout finding that a preliminary injunction did not confer prevailing party status under Section 1988. It reversed itself following the plaintiffs-respondents’ appeal of the District Court’s decision to deny attorney’s fees based on the Fourth Circuit’s holding that established a bright line rule that preliminary injunction awardees are not prevailing parties.
The underlying matter involves a challenge by plaintiffs against the Commissioner of the Virginia Department of Motor Vehicles to the constitutionality of a statute that required the Department to suspend a convicted criminal’s driver’s license for failure to pay court-ordered debts without any notice or opportunity for a hearing. The plaintiffs sought and were awarded a preliminary injunction to enjoin the Commissioner from enforcing the statute in a “detailed and well-reasoned opinion” that concluded the plaintiffs “had demonstrated a substantial likelihood of succeeding on the merits of their claim.” the NJSBA said in its brief.
The trial was stayed over the objection of the plaintiffs pending legislative action on the statute. While the preliminary injunction was in effect, the Virginia General Assembly passed a law suspending enforcement of the statute, ostensibly rendering the lawsuit moot. Following the District Court’s denial, the Fourth Circuit granted a rehearing en banc and in a 7-4 ruling it reversed and remanded the matter.
The NJSBA advocated for “clarity in the law so the NJSBA’s member attorneys, whether prosecuting or defending claims, can adequately advise and provide effective representation to their clients.” It argued that to affirm the Fourth Circuit’s en banc ruling “is a matter of common sense and simple fairness” because but for the stay of the trial sought following the issuance of the preliminary injunction, the respondents “undoubtedly would have succeeded at trial and secured a Final Judgment.” It further argued that the other Circuit Courts of Appeals decisions upholding prevailing party status in preliminary injunction matters in certain circumstances begs the Court’s decision to affirm to reinforce the Circuit Courts’ “remarkably uniform and harmonious” decisions on the issue.
“This Court should credit its own jurisprudence as the source of the Courts of Appeals’ unanimity on the issue posed by this matter, and affirm the sound and eminently sensible disposition by the Fourth Circuit,” the NJSBA said in its brief.
The oral argument can be heard here. The briefs can be found here.
District Ethics Committee Volunteer Attorneys Sought
The Office of Attorney Ethics (OAE) seeks a volunteer to serve as secretary to the District Ethics committees (DEC) in Bergen and Essex counties. The position requires the attorney to perform specific duties including record keeping of all DEC proceedings; maintaining files of all inquiries and grievances received and investigations undertaken; and timely responding to inquiries from the OAE, the public, attorneys, courts, DEC officers and members, and/or interested parties about the ethics process and attorney discipline system.
The attorney will receive four continuing legal education credits that satisfy an annual pro bono service Madden exemption as well as reimbursement for costs and expenses. Those interested may access the Notice to the Bar here to apply or for further inquiries.