Whether a plaintiff who obtains a preliminary injunction that becomes moot can be considered a 'prevailing party' entitled to attorney's fees under 42 U.S.C. § 1988 when the underlying legal challenge results in legislative change

No question identified. : 1. This case raises important questions about the meaning of “prevailing party” under 42 U.S.C. § 1988. It arises from a constitutional challenge to nowrepealed Virginia Code § 46.2-395, which required courts to revoke drivers’ licenses of those convicted of a crime for failure to pay court fees. Respondents (“Plaintiffs”) brought a putative class action in the United States District Court for the Western District of Virginia (“District Court”), which granted a preliminary injunction enjoining the enforcement of the statute against the named Plaintiffs and removing current suspensions on their licenses where there were no other restrictions. Stinnie v. Holcomb, 355 F.3d 514, 520 (W.D. Va. 2018). While this injunction was in effect, summary judgment and class certification motions were pending, and the case was awaiting trial, the Virginia General Assembly repealed the law, mooting the case and leading to a stipulation of dismissal. 2. Plaintiffs then sought fees under 42 U.S.C. § 1988, asserting that they achieved “prevailing party” status as a result of the limited preliminary injunction. Relying on Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002), the District Court denied Plaintiffs’ petition for fees, as Smyth held that the entry of a preliminary injunction, by itself, does not confer prevailing party status under 42 U.S.C. § 1988. Stinnie v. Holcomb, No. 3:16-cv-00044, 2021 WL 2292807 (W.D. Va. 2021). Plaintiffs appealed, and a panel of the Court of Appeals for the Fourth Circuit affirmed. Stinnie v. Holcomb, 37 F.4th 977 (4th Cir. 2022). Plaintiffs then moved for rehearing en banc, which the court granted. App., infra, 59-60. Ina published decision, a divided (7—4) en banc court vacated and remanded. App., infra, 1-58. The majority overruled Smyth, holding that “[w]hen 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.” Id. at 18. 3. Judge Quattlebaum dissented, joined by Judges Agee, Richardson, and Rushing. They would have affirmed and declined to overrule Smyth because a 0 6 preliminary injunction granted on a mere “likelihood of success” “only predicts the outcome of a future decision” and “does not definitively decide the merits of anything.” Id. at 50. The dissent also explained that, because the Virginia General Assembly provided the “lasting change” by repealing the law, the relief from the preliminary injunction was not sufficiently “enduring,” as required by Sole v. Wyner, 551 U.S. 74 (2007). Id. at 52-53. 4. The Commissioner anticipates filing a petition for a writ of certiorari regarding two issues dividing the Fourth Circuit here and courts of appeals elsewhere: (1) whether, to prevail “on the merits” under 42 U.S.C. § 1988, a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, and (2) whether, to obtain an “enduring” change in the parties’ legal relationship under 42 U.S.C. § 1988, a party must receive this change from a court order, as opposed to a nonjudicial act that moots the case. The resolution of both issues is important to clarifying the meaning of “prevailing party,” a legal term of art present in “numerous statutes authorizing awards of attorney’s fees.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health and Hum. Res., 532 U.S. 598, 603 & n.4 (2001). Additionally, both issues must be resolved to ensure predictability of the circumstances in which fee awards are available under the law. 5. There are well-established, entrenched splits on both issues. See Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 715-16 (9th Cir. 2013) (“Lower courts have struggled to decide whether the requirements for prevailing-party status are met by a