High Court Hears Argument Over Whether Preliminary Injunctions Create 'Prevailing Party' for Fee Awards

At oral argument in Lackey v. Stinney (No. 23621), lawyers and justices wrestled with whether a preliminary injunction can make a litigant a "prevailing party" entitled to attorneys' fees under 42 U.S.C. § 1988. Counsel for the petitioner urged the Court to adopt a bright-line rule that a preliminary injunction (PI) is temporary and does not create prevailing-party status; opposing counsel argued that an unreversed favorable judgment and tangible relief can produce that result.

Speaker 2, arguing counsel for one side, told the Court: "A preliminary injunction, therefore, does not make a plaintiff the prevailing party." That position rested on the point that a PI is "a threshold prediction of the likelihood of success based on a truncated record" and thus lacks the merits determination that § 1988 historically requires. Petitioner urged the Court to rely on precedent, statutory history, and administrability concerns to reject categorical fee awards for PIs.

Opposing counsel (Speaker 10) answered that the touchstone is whether the court-ordered relief materially altered the parties' legal relationship, citing Buchanan and consent-decree precedent: "It forced the commissioner at gavel point to provide the relief that we requested." Under that view, an unreversed PI that provided substantial, tangible relief (the counsel said the licenses in the underlying case remained restored for roughly 16 months) would support prevailing-party status for fee purposes, subject to district-court discretion on the amount.

Justices pressed both sides with hypotheticals — ranging from a parade-approval injunction to a river that runs dry — to test whether temporary relief that later becomes moot should entitle a plaintiff to fees. Several justices noted that Soule reserved whether a PI might sometimes warrant fees; others emphasized Buchanan's limits on awarding fees when a case is mooted by nonjudicial action. Questions also focused on administrability: whether ad hoc circuit rules have produced unpredictability and whether Congress, not the Court, should resolve any perceived gaps.

Counsel for the petitioner warned that allowing fee awards for PIs could create perverse incentives and administrative burdens; counsel for the respondent warned that denying fees would force plaintiffs into protracted litigation purely to secure nominal final judgments. The Court heard extended argument on related doctrinal tools — Munsingwear vacatur, the voluntary-cessation doctrine, equitable exceptions like bad-faith fee awards, and circuit splits on the issue.

The Chief Justice took the case under submission following rebuttal and closing remarks; no decision was announced at argument's end. The Court's forthcoming opinion will clarify whether and in what circumstances a preliminary injunction can confer prevailing-party status for attorney-fee awards under § 1988.

The case record at argument remained the principal source for quotes and examples used in this report; the Court has not issued an opinion.