The Supreme Court’s Decision in Lackey v. Stinnie and What It Means for Plaintiffs’ Access to Courts

On Tuesday, February 25th, the U.S. Supreme Court ruled in Lackey v. Stinnie that plaintiffs who obtain a preliminary injunction that provides plaintiffs concrete, irreversible relief are not “prevailing parties” under 42 U.S.C. § 1988(b) and are therefore ineligible for attorney’s fees.  Stanford Law Professor Nora Freeman Engstrom and Rhode Center Civil Justice Fellow Kelsea Jeon (SLS ‘25) examine the ruling and its implications for plaintiffs’ access to justice.

Who are the plaintiffs in this case?

Damain Stinnie is one of the lead plaintiffs in the class action filed against the Commissioner of the Virginia Department of Motor Vehicles.  About a decade ago, Stinnie amassed over $1000 in court fines and fees from three traffic infractions.  As those penalties piled up, Virginia suspended his drivers’ license, pursuant to a state statute that authorized such suspensions.  On behalf of a class of similarly situated Virginians, Stinnie sued under 42 U.S.C. § 1983, contending that, in authorizing the suspension of his drivers’ license without sufficient notice or a hearing, the statute violated due process.

What did the plaintiffs seek in the class action?

Stinnie and his fellow plaintiffs sought a preliminary and permanent injunction to prevent the statute’s enforcement and to reinstate fellow Virginians’ licenses.  In 2018, the District Court granted a preliminary injunction, which offered temporary relief.  Then, in 2020, the Virginia General Assembly repealed the controversial law and required the permanent reinstatement of drivers’ licenses.  That capitulation mooted the case and, in a round-about way, led to the Supreme Court’s recent action.

If the case was moot, what was the issue before the Supreme Court?

Here, Stinnie and his fellow plaintiffs achieved significant victories.  They won a preliminary injunction—and they also drove the law’s repeal.  Given these victories, plaintiffs’ counsel invoked § 1988(b), claiming that plaintiffs were “prevailing” parties, entitled to recover their fees from the defendant.

But that teed up the following question: Were plaintiffs really “prevailing parties” for purposes of § 1988(b)?  More to the point, was the preliminary injunction, followed by the permanent law change, sufficient to grant plaintiffs “prevailing party” status?

Had previous cases interpreted § 1988(b)?

Many prior cases have parsed § 1988(b), but, for our purposes, two are most relevant.

The first was Buckhannon Board & Home Health Care, Inc. v. West Virginia Department of Health & Human Resources (2001).  There, the Supreme Court rejected the so-called “catalyst theory,” which, previously, had allowed plaintiffs to claim prevailing party status, as long as their lawsuit “catalyzed” a favorable result.  It wasn’t enough, said the Buckhannon Court, for the lawsuit to precipitate “a voluntary change in the defendant’s conduct.”  Instead, in order to count, the change had to be “judicially sanctioned.”

Then, in Sole v. Wyner (2007), the Court added another requirement: To qualify as a prevailing party, the plaintiff had to engender a change that was not just “judicially sanctioned,” but also “enduring.”  In Sole, a plaintiff got a preliminary injunction, but, in subsequent merits adjudication, the court did a 180 and rejected plaintiff’s claim. This raised the question of whether the preliminary injunction, on its own, was enough to render the plaintiff a prevailing party.  The Court said no dice.  A “plaintiff who secures a preliminary injunction then loses on the merits” is not a “prevailing party” because she “has won a battle but lost the war.”

Hence, one way to look at Stinnie is that it was a mash up of Buckhannon and Sole.  Here, there was both a “judicially sanctioned” change, through the preliminary injunction, and the change was “enduring,” because the injunction was never reversed, and Virginia repealed the law at issue.

What did the Court decide?

In a 7-2 decision, the Court ruled that even plaintiffs who obtain a preliminary injunction that provides concrete and ultimately durable relief aren’t “prevailing parties” for purposes of § 1988(b).  In so holding, the Court reversed the Fourth Circuit and broke with “[e]very other circuit to consider the issue,” to draw a bright-line rule, reasoning that preliminary injunctions merely preserve the status quo until a trial can occur, and external events that moot a case do not transform a temporary order into a final adjudication.

Dissenting, Justice Jackson argued that the majority erroneously “conflate[d] the requirement for success when the suit ends . . . with a requirement that the suit end by virtue of a ‘conclusive’ judicial ruling on the merits of the plaintiff’s claims.”  Justice Jackson also maintained that the majority’s interpretation “ignores Congress’s clear intent to expand access to justice via fee shifting in civil rights cases,” perversely “eliminat[ing] fee eligibility for all preliminary injunctions—even those that effectively resolve the case.”

Now, who qualifies as a prevailing party?   

Now, a party “prevails” only when a court grants enduring relief that alters the legal relationship between the parties.  In other words, a party that obtains a preliminary injunction, even if that injunction effectively ends the case, is still not a “prevailing part[y]” for purposes of § 1988(b).

What does this decision mean for future plaintiffs, especially civil rights plaintiffs?

Civil rights plaintiffs now face a Catch-22.  Justice Jackson highlighted the irony: Virginia scrapped the offending law precisely because of “the strength of [plaintiffs’] challenge.”  If plaintiffs hadn’t so convincingly demonstrated that the law didn’t pass constitutional muster, then Virginia might not have capitulated—and plaintiffs’ counsel might have gotten paid.

Furthermore, this decision undermines the incentives for private plaintiffs—and their attorneys—to bring future enforcement actions.  If defendants can moot a case through voluntary conduct, lawyers may be discouraged from litigating claims—even when the claims have merit.

Finally, this case’s impact likely extends beyond civil rights litigation.  Section 1988(b) is one of over 150 fee-shifting statutes enacted by Congress.  These statutes cover areas ranging from the Freedom of Information Act to the Endangered Species Act, the Rehabilitation Act, the Voting Rights Act, and more.  Further, as the Fourth Circuit observed in its opinion below, the phrase “[p]revailing party,” tends to be interpreted “consistently across all federal fee-shifting statutes.”  Recognizing this, even advocacy groups such as the Firearms Policy Coalition filed briefs in Stinnie, expressing concern that a narrower view of “prevailing parties” would “further entrench and expand hurdles to fee recovery for victorious Second Amendment plaintiffs” and “lend a perverse incentive to defendants to ‘game’ the system by altering their behavior when an adverse ruling seemed imminent.”

Fee-shifting provisions are crucial for ensuring access to justice by allowing regular individuals to challenge unlawful government actions.  As the Court chips away at these provisions, marginalized groups’ ability to secure legal representation and hold institutions to account is increasingly uncertain.

Nora Freeman Engstrom is the Ernest W. McFarland Professor of Law at Stanford Law School. A nationally recognized expert in both tort law and legal ethics, she explores the day-to-day operation of the tort system, including the system’s interaction with alternative compensation mechanisms, such as no-fault automobile insurance and the Vaccine Injury Compensation Program.