When the government refused to move an incarcerated man who was being sexually abused to another prison, civil rights attorney Deborah M. Golden filed suit on his behalf.

On the eve of trial, prison officials relented and transferred her client, mooting his case and leaving Golden to seek attorney fees, she remembers.

"We had to fight under the voluntary cessation theory, which is a theory that basically the government doesn't get credit for things that it changes just to get out of litigation, but we had to fight up to the Eleventh Circuit about that," said Golden, who did eventually win a "very limited" amount of fees.

But even that limited amount may now be out of reach for civil rights lawyers like Golden thanks to a recent U.S. Supreme Court ruling that litigants who win preliminary relief but not final judgments are not "prevailing parties" entitled to attorney fees.

The justices in the majority and the governments that support the ruling they issued in Lackey v. Stinnie insist the decision preserves judicial economy and prevents protracted litigation over fees. But civil rights lawyers worry it will make it financially untenable for them to take on certain cases and make it even more difficult for those whose rights have been violated to find legal help.

"Because I have to make calculations now of how I'm going to keep the lights on and keep my staff paid," Golden told Law360. "And that's one more thing I have to take into account when looking at what cases we're going to take on."

'A Tectonic Shift in the Law'

The Supreme Court ruled in February that civil rights plaintiffs who win preliminary injunctions but whose cases never make it to final judgment don't qualify as "prevailing parties" entitled to attorney fees under the Civil Rights Attorney's Fees Award Act of 1976, known as Section 1988.

Section 1988 allows "the prevailing party, other than the United States," to recover "a reasonable attorney's fee as part of the costs" spent in civil rights litigation.

Similar statutes allow for fee-shifting in other contexts. The Equal Access to Justice Act authorizes the award of attorney fees to those who litigate successfully against the federal government, including in petitions for review, mandamus actions, Administrative Procedure Act suits, and habeas corpus and naturalization actions. The Clean Air Act also authorizes awards of attorney fees to plaintiffs who have "some degree of success on the merits," the Supreme Court has ruled. The justices have also found that under Title VII of the Civil Rights Act of 1964, a plaintiff who is successful in an administrative proceeding and so agrees to dismissal of their federal lawsuit can also request attorney fees.

The justices' opinion undid a fee award to Virginia drivers who challenged the constitutionality of a state law suspending their driver's licenses for failure to pay court fines. The drivers won a preliminary injunction barring the law's enforcement, but the Virginia General Assembly repealed the law before the case could proceed, mooting it and leading to its dismissal.

The drivers requested attorney fees, claiming their suit achieved its goal of nixing the law, and an en banc Fourth Circuit agreed.

But the Supreme Court did not.

The drivers can't be considered prevailing parties because "no court conclusively resolved their claims by granting enduring judicial relief on the merits that materially altered the legal relationship between the parties," Chief Justice John Roberts wrote for a 7-2 majority.

"And external events that render a dispute moot do not convert a temporary order designed to preserve the status of the parties into a conclusive adjudication of their rights," according to the chief justice, who insisted that the new rule "serves the interests of judicial economy" since it is "easy to administer, reducing the risk of 'a second major litigation' over attorney's fees."

"We are pleased with the U.S. Supreme Court's decision holding that a conclusive ruling on the merits is required for an award of attorneys' fees. Preliminary injunctions do not confer prevailing-party status," Virginia Office of the Attorney General spokesperson Shaun Kenney told Law360 in a statement.

But civil rights attorneys call the justices' take on Section 1988 "cataclysmic," "devastating" and a "worst-case scenario."

"The court's ruling really is the worst-case scenario," said Legal Aid Justice Center Executive Director Angela A. Ciolfi, who represented the Virginia drivers throughout their suit. "Preliminary injunctions are categorically out, even if it's obvious who the winner of the case is and even if the preliminary injunction effectively resolves the case."

The justices' decision is "certainly a cataclysmic conclusion and a tectonic shift in the law," according to Snell & Wilmer LLP litigation associate Benjamin J. Mills, who pointed out that the high court effectively reversed previous rulings in 11 circuit courts that had found that preliminary injunctions did entitle plaintiffs to attorney fees in some circumstances.

The ruling isn't all that surprising, though, given the justices' recent history, according to Cecillia Wang, national legal director of the ACLU, which filed an amicus brief supporting the drivers.

Lackey is just the latest in a string of decisions — including 2001's Buckhannon Board & Care Home v. West Virginia Department of Health & Human Resources and 2007's Sole v. Wyner – in which the court has interpreted Section 1988 in ways that are increasingly restrictive, Wang explained.

"Gradually over time, the Supreme Court has been chipping away at the system that Congress set up to incentivize and to facilitate private enforcement of the civil rights laws," Wang said.

The Cases We Can't Take

That system was intended to ensure that people can find lawyers to defend their civil rights in court, and the justices' ruling in Lackey undermines that goal, according to public interest attorneys.

While large civil rights organizations like the ACLU, which engage in private fundraising, may not be overly hurt by the shift in the law, there are many small civil rights firms and solo practitioners who rely on the fee-shifting statute to make it economically feasible for them to bring these cases, according to Wang.

Fewer of those attorneys will be able to do that now, civil rights attorneys like Wang, Ciolfi and Golden say.

The Legal Aid Justice Center provides free legal representation to its clients, so those clients won't be affected by the ruling, according to Ciolfi.

"It's the clients whose cases we don't take who foot the bill," Ciolfi said. "It's the clients we can't represent because we don't have the resources, because we're pouring our resources into one case, we win the case, and we bear the cost of all of that action. And so that means we don't have the resources to take the next case."

It's difficult to know how many potential clients could be turned away due to the Lackey ruling or how much money in fees civil rights lawyers stand to lose, experts say. But the ruling is likely to have a particularly large impact on cases in which plaintiffs seek preliminary injunctions in urgent situations.

"This is not an uncommon occurrence," said Snell & Wilmer commercial litigation partner Jeremy J. Stewart. "It is not uncommon that the full battle happens at the preliminary injunction stage, after which the parties see the writing on the wall, and they could come to settlement, or the law could be changed as happened in Lackey."

The paradigmatic example of such a case involves the denial of a protest permit, attorneys explained.

Protest organizers who are denied permission to stage a march or rally, for instance, could sue and win a preliminary injunction that requires the city to issue them a permit. Once the protest takes place, though, the case would be dismissed as moot.

Protest organizers would likely consider that a victory since they were allowed to stage their protest, attorneys pointed out. But under Lackey, they're no longer a prevailing party who can recoup attorney fees.

"Even though my lawyer ran into court on my behalf and got me my protest permit, and got a preliminary injunction, now if the court ends up vacating that preliminary injunction on mootness grounds and dismissing the case, that lawyer is not going to be compensated at all," Wang said.

Golden said prisoners' rights cases like those she handles could also be affected.

So could the disputes in which Mills and Stewart represent property owners suing the government over permit denials and property takings. The Lackey ruling diminishes their ability to recover their fees in those cases, Mills said.

That change is so significant that liberal-leaning organizations like the ACLU, the NAACP Legal Defense Fund and the Southern Poverty Law Center joined forces with conservative groups like the Alliance Defending Freedom, Americans for Prosperity Foundation, the Christian Legal Society, and the National Rifle Association to all ask the justices to side with the drivers.

"Groups from across the ideological spectrum that agree on nothing else about how society should be ordered agree on this one thing," Ciolfi said, "that if you sue the government and you get judicially ordered relief where the plaintiffs get what they ask for, you should be entitled to seek attorney's fees."

'Perverse Incentives'

One thing all sides in Lackey seemed to agree on is that it would flood the courts with protracted litigation over legal fees and create what Wang called "perverse incentives" for parties to keep fighting even after a case is moot — if the justices ruled for their opponents.

Civil rights attorneys predict that plaintiffs may now, for instance, choose to pursue nominal damages just to keep litigating a case to final judgment.

"So maybe before, all I was going to try to get was this preliminary injunction and that was good enough," Stewart said. "Now I have to think, 'Do they also have a damages claim so that I can drag this out to the bitter end in the event that we win but can't collect our attorneys fees?'"


The ruling also makes it less financially feasible to bring civil rights cases as large class actions and will instead push attorneys to litigate "individual case by individual case" so they risk missing out on far less in fees, Golden suggested.

Defendants like the federal and state governments may seek to drag out civil rights suits as well, since they won't be liable to cover plaintiffs' attorney fees as long as the case never reaches a final judgment on the merits, according to attorneys.

"Now defendants have one more trick in their bag to try and undercut fees or make these cases financially impossible for attorneys to take on," Golden said.

Those governments, though, insisted that it would be a ruling in favor of the drivers that would create "perverse incentives and impede judicial efficiency," according to the reply brief submitted to the Supreme Court by the Virginia Department of Motor Vehicles.

Doing away with the requirements that prevailing-party status be based on a case's merits and the winning of enduring relief would "vastly increase" the number of disputes in which defendants have to pay plaintiffs' fees. And it would encourage plaintiffs to bring cases in an emergency posture and try to win "hurried" provisional relief so they could recoup those fees, the state's DMV told the justices.

It could also discourage governments from voluntarily changing challenged conduct or laws, even for reasons unrelated to the litigation, out of fear that doing so would make them liable for fees, "incentiviz[ing] the prolonged existence of laws that no one wants on pain of transferring taxpayer dollars to the pockets of plaintiffs' counsel," Virginia's DMV said.

The federal government and the state of Georgia pushed the justices to rule against the drivers on similar grounds in their own amicus briefs.

The "amorphous," "often contradictory" and "subjective" rules by which the various circuits were deciding when a plaintiff suing the state is entitled to attorney fees "impose needless costs on the states and their residents in the form of protracted secondary litigation over fees," Georgia told the justices.

"This uncertainty then complicates the states' litigation and policy decisions, and it produces a perverse incentive to continue litigating cases to final judgment to avoid spending the public's money on attorney's fees," Georgia said.

The University of Florida attempted to make those concerns concrete in its amicus brief, describing its experience in two long-running fee fights.

In one, a Christian fraternity's battle of less than two years with the school over its registered student organization status was followed by a six-year fight over attorney fees that made three trips to the Eleventh Circuit, which eventually awarded the plaintiffs $235,278 in fees, the university's board of trustees told the justices.

In another, faculty members sued the school over its conflicts policy after they were denied permission to testify in litigation against the state, despite the fact that the university granted them that permission before their suit was filed and changed its policy within weeks of the suit's filing, according to the school.

The Eleventh Circuit eventually ruled the case moot and vacated the district court's preliminary injunction. But "the vacated preliminary injunction in a thrice-moot case was nevertheless sufficient for the district court to determine that the faculty member plaintiffs were prevailing parties and to award them $372,219 in attorney fees," the university said.

The Eleventh Circuit vacated that fee award following the justices' ruling in Lackey.

Up to Congress

Now, civil rights attorneys say Congress should step in, since it very clearly wanted civil rights plaintiffs who win in court to recoup their attorney fees through Section 1988's fee-shifting provision.

"The words they used in Section 1988 couldn't be clearer, and their intent couldn't be clearer, but apparently it wasn't clear enough for the Supreme Court," Wang said. "So, I think it's really incumbent on Congress now to fix the problem that the Supreme Court has caused."

Chief Justice Roberts seemed to suggest this himself in his opinion, writing, "Congress has shown that it knows how to empower courts to award attorney's fees to plaintiffs who have enjoyed some success but have not prevailed in a judgment on the merits."

So Wang thinks legislative action on the issue is possible, especially since the myriad amicus briefs from such a wide array of legal organizations demonstrate that "this is a cross-ideological and nonpartisan issue," she said.

Other attorneys are less optimistic.

"The problem we have now is our Congress that we have. And I'm not talking in any sort of right-left political sense. I'm simply saying that they have a hard time getting things done, and I am doubtful that this reaches their threshold for a priority," Stewart said.

If legislators do act, though, "it'll be a strong statement from the people's representatives that the people were not pleased with the Supreme Court's opinion," Mills added.

If they don't, the high court's ruling in Lackey will only make it harder for citizens to vindicate their civil rights in court, these attorneys warn.

"It almost certainly means that fewer attorneys will take these cases, which means that everyday people, most of whom cannot afford to engage in this kind of litigation against the government, will not have attorneys to take their cases. And I think that means that we all lose," Ciolfi said. "We all lose when we don't have access to the courts."

--Editing by Orlando Lorenzo.

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