Lackey v. Stinnie: What, Exactly, Is a Preliminary Injunction?
Next week the U.S. Supreme Court will hear oral argument in Lackey v. Stinnie, a case that presents two questions about whether and when a party who receives a preliminary injunction may recover attorneys’ fees as a “prevailing party” under 42 U.S.C. § 1988. An en banc decision of the Fourth Circuit said yes to prevailing party status for the plaintiff who secured a preliminary injunction before the challenged statutory provision was repealed.
The case is interesting for many reasons. One is the unusual split among the amici. The government amici, including conservative states and the Biden administration, lined up in support of the petitioner (arguing that the PI-receiving plaintiff was not a prevailing party). The public interest organizations lined up in support of the defendant (arguing for prevailing party status). That might not seem surprising–after all, fee shifting is an important part of the latter group’s business model.
But below the surface two points are worthy of note. One is that many challenges to rules and statutes, at least at the federal level, are now led by coalitions of states. In this case, the states revert to form as paradigmatic defendants, instead of being challengers. The other point of note is that the public interest organizations that engaged in the case, although from across the political spectrum, tended to be more conservative ones. Attorneys’ fees help drive public interest litigation, and the valence of a substantial portion of that litigation has shifted remarkably from what the amici would have looked like, say, ten years ago. And, of course, it will shift again.
More interesting, though, are the alternative visions of the preliminary injunction sketched out by the parties and their amici. The petitioners argue that the nature of the preliminary injunction is inconsistent with treating it as a judgment or final determination on the merits. No one has prevailed yet. The respondents treat the preliminary injunction as a judgment, a full
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