Damian Stinnie v. Richard Holcomb ( 2022 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1756
DAMIAN STINNIE; MELISSA ADAMS; ADRAINNE JOHNSON; WILLIEST
BANDY; BRIANNA MORGAN, individually, and on behalf of all others similarly
situated,
Plaintiffs – Appellants,
v.
RICHARD D. HOLCOMB, in his official capacity as the Commissioner of the
Virginia Department of Motor Vehicles,
Defendant – Appellee.
------------------------------
AMERICAN CIVIL LIBERTIES UNION OF VIRGINIA, ET AL,
Amicus Supporting Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Charlottesville. Norman K. Moon, Senior District Judge. (3:16-cv-00044-NKM-JCH)
Argued: May 4, 2022 Decided: June 27, 2022
Before THACKER, HARRIS, and QUATTLEBAUM, Circuit Judges.
Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Harris
and Judge Quattlebaum joined. Judge Harris wrote a concurring opinion.
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ARGUED: Tennille Jo Checkovich, SMITHFIELD FOODS, INC., Smithfield, Virginia,
for Appellants. Trevor Stephen Cox, HUNTON ANDREWS KURTH, LLP, Richmond,
Virginia, for Appellee. ON BRIEF: Jonathan T. Blank, Benjamin P. Abel,
Charlottesville, Virginia, John J. Woolard, MCGUIREWOODS LLP, Richmond, Virginia;
Angela A. Ciolfi, Charlottesville, Virginia, Patrick Levy-Lavelle, LEGAL AID JUSTICE
CENTER, Richmond, Virginia; Leslie Kendrick, Charlottesville, Virginia; Michael Stark,
Smithfield, Virginia, for Appellants. Mark R. Herring, Attorney General, Donald D.
Anderson, Deputy Attorney General, Julie M. Whitlock, Senior Assistant Attorney General
& Transportation Section Chief, Janet W. Baugh, Senior Assistant Attorney General,
Christian A. Parrish, Assistant Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia; Maya M. Eckstein, David M. Parker,
HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Appellee. Theodore A.
Howard, WILEY REIN LLP, Washington, D.C., for Amici Curiae.
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THACKER, Circuit Judge:
This fee dispute arises from a putative class-action challenge to a now-repealed
Virginia statute that triggered the automatic suspension of the driver’s licenses of Damian
Stinnie, Demetrice Moore, Robert Taylor, Neil Russo (collectively, “Appellants”), and
numerous other Virginia residents for nonpayment of court costs and fines. After
Appellants obtained a preliminary injunction, the Virginia General Assembly passed a law
repealing the challenged statute. Appellants stipulated that dismissal of the underlying
lawsuit was therefore appropriate but claimed that they were nonetheless entitled to
attorney’s fees pursuant to 42 U.S.C. § 1988 because they secured the preliminary
injunction.
The district court denied Appellants’ petition for attorney’s fees, citing our decision
in Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002), wherein we held that
preliminary injunctions do not confer the requisite “prevailing party” status required for an
award of fees pursuant to § 1988. On appeal, Appellants contend that Smyth is not
controlling because it is untenable with subsequent Supreme Court decisions.
We conclude Smyth remains the law of this circuit. And, pursuant to Smyth,
Appellants are not prevailing parties. Accordingly, we affirm the district court’s denial of
their petition for attorney’s fees and litigation expenses.
I.
In 2016, Appellants initiated a civil action against Richard Holcomb (the
“Commissioner”) in his official capacity as the Commissioner of the Virginia Department
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of Motor Vehicles, challenging the constitutionality of Virginia Code § 46.2-395. The
now-repealed statute provided, in relevant part:
(B) . . . [W]hen any person is convicted of any violation of the
law of the Commonwealth or of the United States or of any
valid local ordinance and fails or refuses to provide for
immediate payment in full of any fine, costs, forfeitures,
restitution, or penalty lawfully assessed against him, or fails to
make deferred payments or installment payments as ordered by
the court, the court shall forthwith suspend the person’s
privilege to drive a motor vehicle on the highways in the
Commonwealth . . .
(C) Before transmitting to the Commissioner a record of the
person’s failure or refusal to pay all or part of any fine, costs,
forfeiture, restitution, or penalty . . . the clerk of the court that
convicted the person shall provide or cause to be sent to the
person written notice of the suspension of his license or
privilege to drive a motor vehicle in Virginia, effective 30 days
from the date of conviction, if the fine, costs, forfeiture,
restitution, or penalty is not paid prior to the effective date of
the suspension as stated on the notice . . . .
Stinnie v. Holcomb, 734 F. App’x 858, 860 (4th Cir. 2018) (quoting Va. Code § 46.2-395
(repealed 2020)). In their complaint, Appellants claimed that the Commissioner enforced
§ 46.2-395 in a manner that violated the Due Process and Equal Protection clauses by
“unfairly punish[ing] them for being poor.” Id. at 680 (internal quotation marks omitted). 1
In December 2018, the district court issued a detailed memorandum opinion
granting Appellants a preliminary injunction. See generally Stinnie v. Holcomb, 355 F.
1Initially, the district court granted the Commissioner’s motion to dismiss the case
for lack of subject matter jurisdiction, but, on appeal, we remanded the case to the district
court with instructions to allow Appellants to amend their complaint.
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Supp. 3d 514 (W.D. Va. 2018). As is relevant here, the district court applied the four-part
test from Winter v. National Resources Defense Council, Inc., 555 U.S. 7 (2008), and
concluded that Appellants “demonstrate[d] a likelihood of success on their claim that
§ 46.2-395 violate[d] procedural due process” because “§ 46.2-395, on its face, [did] not
provide a meaningful opportunity to be heard regarding license suspension.” Id. at 531.
Accordingly, the district court preliminarily enjoined the Commissioner from enforcing
§ 46.2-395 against Appellants.
Three months later, in March 2019, former Virginia Governor Ralph Northam
proposed Budget Amendment No. 33, which suspended the enforcement of § 46.2-395
going forward and required the Commissioner to reinstate, without fees, driving privileges
for persons whose licenses were previously revoked pursuant to the statute. Press Release,
Va. Off. of the Governor, Governor Northam Announces Budget Amend. To Eliminate
Driver’s License Suspensions for Nonpayment of Ct. Fines & Costs (Mar. 26, 2019),
https://www.governor.virginia.gov/newsroom/all-releases/2019/march/headline-839710-
en.html. The Virginia General Assembly passed the Amendment “by votes of 70 to 29 in
the House and 30 to 8 in the Senate.” Stinnie v. Holcomb, 396 F. Supp. 3d 653, 658 (W.D.
Va. 2019). Thereafter, upon motion from the Commissioner and over Appellants’
objections, the district court stayed the proceedings pending the 2020 session of Virginia’s
General Assembly. See id. at 659–60. The district court reasoned that staying the “long,
contentious, and no doubt costly” litigation was appropriate because the General
Assembly’s support of the Budget Amendment “indicate[d] political hostility toward[]
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§ 46.2-395,” and the Commissioner “testified that the process of drafting legislation to
codify the Budget Amendment ha[d] begun.” Id. at 658.
During its 2020 regular session, the Virginia General Assembly eliminated § 46.2-
395 from the Code of Virginia. Accordingly, in May 2020, the parties filed a stipulation
of dismissal. In the stipulation, the parties expressly reserved any argument as to
Appellants’ entitlement to attorney’s fees and expenses. Appellants then petitioned the
district court for attorney’s fees and expenses pursuant to 42 U.S.C. § 1988. Appellants
argued that the 2018 preliminary injunction conferred upon them “prevailing party” status,
making them eligible for a discretionary award of fees and expenses.
The district court denied the petition. Specifically, the district court reasoned that
pursuant to our decision in Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002),
Appellants cannot be prevailing parties and therefore are not eligible for an award of
attorney’s fees and expenses. In doing so, the district court rejected Appellants’ argument
that Smyth is untenable with the Supreme Court’s decisions in Winter v. National
Resources Defense Council, Inc., 555 U.S. 7 (2008) and Lefemine v. Wideman, 568 U.S. 1(2012) (per curiam) and is no longer controlling law in the Fourth Circuit.
II.
We review de novo a district court’s “prevailing party” determination. Grabarczyk
v. Stein, 32 F.4th 301, 306 (4th Cir. 2022). “[I]t is well-settled that a panel of this court is
bound by prior precedent from other panels in this circuit absent contrary law from an en
banc or Supreme Court decision.” United States v. Seigler, 990 F.3d 331, 336 n.6 (4th Cir.
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2021) (internal quotation marks omitted); see also McMellon v. United States, 387 F.3d
329, 332 (4th Cir. 2004) (en banc) (“A number of cases from this court have stated the
basic principle that one panel cannot overrule a decision issued by another panel.”).
Because our decision in Smyth is not untenable with any Supreme Court decisions,
it is binding upon this panel and requires us to affirm the decision of the district court.
United States v. Banks, 29 F.4th 168, 175 (4th Cir. 2022).
III.
Pursuant to 42 U.S.C. § 1988(b), the “prevailing party” in certain civil rights
proceedings may recover attorney’s fees. “The term ‘prevailing party’ is a legal term of
art,” Reyuzuddin v. Montgomery Cnty., 988 F.3d 794, 796 (4th Cir. 2021), which means a
party that has “been awarded some relief by the court,” Sky Cable, LLC v. DIRECTV, Inc.,
23 F.4th 313, 317 (4th Cir. 2022) (internal quotation marks omitted). The term “some
relief” refers to “relief that creates the material alteration of the legal relationship of the
parties necessary to permit an award of attorney’s fees by modifying the defendant’s
behavior in a way that directly benefits the plaintiff.” Sky Cable, LLC, 23 F.4th at 317–18
(internal quotation marks and alterations omitted).
In Smyth, we explicitly held “the preliminary injunction entered by the district court
does not satisfy the prevailing party standard of § 1988(b).” Smyth ex rel. Smyth v. Rivero,
282 F.3d 268, 277 (4th Cir. 2002). We reasoned that the preliminary injunction framework
is “an unhelpful guide to the legal determination of whether a party has prevailed,”
considering the “preliminary, incomplete nature of the merits examination” and the fact
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that “in granting a preliminary injunction a court is guided not only by its assessment of
the likely success of the plaintiff’s claims, but also by other considerations, notably a
balancing of likely harms.” Id. at 276–77. As a result, Smyth is controlling and
determinative here. Nonetheless, Appellants, seeking to avoid the fatal implications of this
reality, urge us to conclude that Smyth is untenable or inconsistent with the Supreme
Court’s decisions in Winter v. National Resources Defense Council, Inc., 555 U.S. 7(2008), and Lefemine v. Wideman, 568 U.S. 1 (2012) (per curiam). But that is not so.
As is relevant here, Winter altered our test for preliminary injunctions. “Before the
Supreme Court issued its ruling in Winter, this Court used a ‘balance-of-hardship test’ that
allowed it to disregard some of the preliminary injunction factors if it found that the facts
satisfied other factors.” Pashby v. Delia, 709 F.3d 307, 320 (4th Cir. 2013) (quoting
Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189, 196 (4th Cir. 1977)).
“However, in light of Winter, this Court recalibrated that test, requiring that each
preliminary injunction factor be ‘satisfied as articulated.’” Id.; see also Real Truth About
Obama, Inc. v. FEC, 575 F.3d 342, 346–47 (4th Cir. 2009) (recognizing
“[o]ur Blackwelder standard . . . stands in fatal tension with the Supreme Court’s 2008
decision in Winter”), vacated and remanded on other grounds, 559 U.S. 1089(2010), reinstated in relevant part, 607 F.3d 355 (4th Cir. 2010) (per curiam).
But our decision in Smyth primarily turned on the nature of preliminary injunctions
-- which remains unchanged -- not the standard for obtaining a preliminary injunction.
For example, we emphasized “[a] district court’s determination that such a showing [of
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likelihood of success on the merits] has been made is best understood as a prediction of a
probable, but necessarily uncertain, outcome” and “[t]he fact that a preliminary injunction
is granted in a given circumstance, then, by no means represents a determination that the
claim in question will or ought to succeed ultimately.” Smyth, 282 F.3d at 276. Winter did
not change these realities. Also relevant to our conclusion in Smyth that preliminary
injunctions do not confer prevailing party status, and also unchanged by Winter, is “[t]he
interplay of the[] equitable and legal considerations . . . that are part of the preliminary
injunction context” that we reasoned “belie the assertion that the district court’s decision
to grant a preliminary injunction was an ‘enforceable judgment[ ] on the merits or
something akin to one for prevailing party purposes.’” Id. at 277. In sum, because our
decision in Smyth was not based on our old Blackwelder standard for preliminary
injunctions, Appellants’ argument that Smyth is untenable considering the changed merits
standard following Winter is unpersuasive.
Appellants’ argument based on Lefemine fares no better. In Lefemine, the Supreme
Court held that we erred in determining that a plaintiff who secured a permanent injunction,
but no monetary damages, was not a “prevailing party” for the purposes of § 1988(b). 568
U.S. at 2. The Court reasoned that the district court’s permanent injunction prohibiting
police officers from threatening Lefemine with sanctions for protesting “worked the
requisite material alteration in the parties’ relationship” necessary to support an award of
attorney’s fees. Id. at 5. In doing so, the Supreme Court emphasized “that an injunction
or declaratory judgment, like a damages award, will usually satisfy” the test outlined in
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Farrar v. Hobby, 506 U.S. 103, 111–12 (1992) for determining when a party “prevails.”
Id. at 4 (citing Rhodes v. Stewart, 488 U.S. 1, 4 (1988)).
Appellants contend Lefemine “clarified” that “monetary relief is not required;
injunctive relief standing alone can be sufficient” to support an award of attorney’s fees
pursuant to § 1988(b). Appellants’ Opening Br. at 25. But, in summarizing the applicable
standard in Lefemine, the Supreme Court relied on Farrar, which predates Smyth. Thus,
as the district court observed, “the Supreme Court’s brief per curiam decision implies that
Lefemine involved a straightforward application of precedent,” not a clarification of any
sort. Stinnie v. Holcomb, No. 3:16-CV-00044, 2021 WL 2292807, at *5 (W.D. Va. June
4, 2021). Moreover, “a permanent injunction (like the one granted in Lefemine) differs
from a preliminary injunction [like the injunctions granted here and in Smyth] because it is
based on a finding of success on the merits[--]not the likelihood of such success.” Id.(emphasis in original).
The changed merits standard following Winter and the Supreme Court’s decision in
Lefemine explicitly holding that the issuance of a permanent injunction alone is sufficient
to support an award of attorney’s fees do not make Smyth untenable. Indeed, “[w]e do not
lightly presume that the law of the circuit has been overturned, especially where, as here,
the Supreme Court opinion and our precedent can be read harmoniously.” Taylor v.
Grubbs, 930 F.3d 611, 619 (4th Cir. 2019) (internal quotation marks omitted). “Adhering
to our longstanding rule that a panel of this court is bound by prior precedent from other
panels in this circuit absent contrary law from an en banc or Supreme Court decision
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demands nothing less.” Id. (internal quotation marks omitted); see also United States v.
Banks, 29 F.4th 168, 175 (4th Cir. 2022) (“A panel of this Court cannot overrule a
precedential decision.”); Warfield v. Icon Advisers, Inc, 26 F.4th 666, 670 n.3 (4th Cir.
2022) (“[S]itting as a panel we cannot overrule a prior panel decision.”); United States v.
Moses, 23 F.4th 347, 359 (4th Cir. 2022) (King, J., dissenting in part and concurring in the
judgment) (“[N]o panel of this Court is entitled to circumscribe or undermine an earlier
panel decision.”). 2
In sum, at this juncture, we are bound by Smyth because it is directly on point and
is neither distinguishable from nor untenable with any Supreme Court decision. See
McMellon v. United States, 387 F.3d 329, 332 (4th Cir. 2004) (en banc) (“[O]ne panel
cannot overrule a decision issued by another panel.”).
2
Our recent Grabarczyk decision -- which holds “when a plaintiff wins judicial
relief on the merits in the district court, and that ruling causes a state legislature to remedy
the violation of federal law identified by the district court,” it is a prevailing party -- does
not lead us to a different result. Grabarczyk v. Stein, 32 F.4th 301, 310 (4th Cir. 2022).
“Grabarczyk remain[ed] a prevailing party entitled to attorney’s fees . . . because the
legislature amended the challenged law [--] and thereby mooted his case [--] only after he
won a final judgment on the merits and because of that judgment.” Id. (emphasis in
original). Unlike Grabarczyk, Appellants never obtained a final judgment on the merits.
See Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013) (“‘The traditional office of
a preliminary injunction is to protect the status quo and to prevent irreparable harm during
the pendency of a lawsuit ultimately to preserve the court’s ability to render a
meaningful judgment on the merits.’”).
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IV.
For the foregoing reasons, the district court’s denial of Appellants’ petition for
attorney’s fees and litigation expenses is
AFFIRMED.
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PAMELA HARRIS, Circuit Judge, concurring:
I join in full the majority’s opinion, which cogently explains why our decision in
Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002), remains binding upon this
panel and requires us to affirm the decision of the district court. I write separately to
suggest that for two reasons, our circuit may wish to reconsider Smyth in the appropriate
case.
First, although subsequent Supreme Court cases have not superseded Smyth, one of
them – Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) – has gone a
long way toward addressing its concerns. At the time Smyth was decided, courts in this
circuit could grant preliminary injunctions on equitable grounds without a showing of
likely success on the merits. See Blackwelder Furniture Co. of Statesville, Inc. v. Selig
Mfg. Co., 550 F.2d 189, 195–96 (4th Cir. 1977); Smyth, 282 F.3d at 276–77 (describing
Blackwelder’s sliding-scale approach). And the court in Smyth quite sensibly worried
about according “prevailing party” status to a plaintiff who had obtained a preliminary
injunction based primarily on a balancing of likely harms, without a rigorous assessment
of the merits of the plaintiff’s claim. See 282 F.3d at 276–77.
Today, however, under Winter’s more stringent standard, a plaintiff can obtain a
preliminary injunction only by first establishing a likelihood of success on the merits. See
Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346–47 (4th Cir. 2009) (“The Winter
requirement that the plaintiff clearly demonstrate that it will likely succeed on the merits is
far stricter than the Blackwelder requirement.”), vacated on other grounds, 559 U.S. 108913
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(2010). That does not mean, as the majority opinion explains, that Winter has rendered our
decision in Smyth untenable. See Maj. Op. Part III. Indeed, Smyth was carefully written
to survive just this change in the law of preliminary injunctions. See 282 F.3d at 277 n.8.
But it does mean that we could reconsider our rule in Smyth without opening the door to
the risk that so concerned the court in that case: that a plaintiff could be deemed a
prevailing party, and thus entitled to fees, by virtue of a preliminary injunction that had
little or nothing to do with the merits of her claim. Id. at 277.
Second, the rule set out in Smyth is a complete outlier. As the Commissioner
forthrightly concedes, ours is the only circuit in the country in which a preliminary
injunction never may serve as the basis for prevailing party fees under § 1988. Every other
circuit to consider the issue has held that a plaintiff whose case is mooted after she obtains
a preliminary injunction – so that the preliminary injunction by definition cannot be
reversed or undone by a final decision in the case – may qualify as a prevailing party in
appropriate circumstances. See Planned Parenthood Sw. Ohio Region v. Dewine, 931 F.3d
530, 542 (6th Cir. 2019); Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 716 (9th Cir.
2013); Rogers Grp., Inc. v. City of Fayetteville, 683 F.3d 903, 909–10 (8th Cir. 2012); Kan.
Jud. Watch v. Stout, 653 F.3d 1230, 1238 (10th Cir. 2011); Common Cause/Ga. v. Billups,
554 F.3d 1340, 1356 (11th Cir. 2009); People Against Police Violence v. City of Pittsburgh,
520 F.3d 226, 233 (3d Cir. 2008); Dearmore v. City of Garland, 519 F.3d 517, 524 (5th
Cir. 2008); Dupuy v. Samuels, 423 F.3d 714, 723 n.4 (7th Cir. 2005); Select Milk
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Producers, Inc. v. Johanns, 400 F.3d 939, 948 (D.C. Cir. 2005); Haley v. Pataki, 106 F.3d
478, 483–84 (2d Cir. 1997). *
In most circuits, the preliminary injunction will suffice so long as it rests on a finding
of probable success on the merits and orders a change in the legal relationship between the
parties. See, e.g., Planned Parenthood, 931 F.3d at 542; Higher Taste, 717 F.3d at 716;
Kan. Jud. Watch, 653 F.3d at 1237–38; Select Milk Producers, 400 F.3d at 948; Haley, 106
F.3d at 483. In one circuit, it seems, the merits-based preliminary injunction also must
have been the cause of the case’s subsequent mootness, as the impetus for a defendant’s
decision to cease the challenged conduct or otherwise moot the case. See Dearmore, 519
F.3d at 524; see also People Against Police Violence, 520 F.3d at 233 (affirming fee award
where defendant revised challenged ordinance in response to preliminary injunction). But
in no circuit other than ours is there a bright-line rule that a preliminary injunction never
can satisfy the prevailing party standard. And the Supreme Court has explicitly left this
question open. See Sole v. Wyner, 551 U.S. 74, 86 (2007) (“We express no view on
whether, in the absence of a final decision on the merits of a claim for permanent injunctive
relief, success in gaining a preliminary injunction may sometimes warrant an award of
counsel fees.”).
*
The First Circuit has not directly addressed this issue, see Sinapi v. R.I. Bd. of Bar
Exam’rs, 910 F.3d 544, 552 (1st Cir. 2018), but district courts within it have followed the
consensus rule, see, e.g., Tri-City Cmty. Action Program, Inc. v. City of Malden, 680 F.
Supp. 2d 306, 314 (D. Mass. 2010).
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On the facts of this case, the plaintiffs would almost certainly qualify as prevailing
parties were it not for our categorical rule to the contrary. To begin, there is no question
that their preliminary injunction was solidly merits-based. After a comprehensive
assessment of the strength of the plaintiffs’ case, informed by an evidentiary hearing and
oral argument, the district court found that the plaintiffs had made a “clear showing” of a
likelihood of success on the merits. Stinnie v. Holcomb, 355 F. Supp. 3d 514, 527–31
(W.D. Va. 2018). Although the court went on to find that the remaining preliminary
injunction factors also weighed in favor of the plaintiffs, id. at 532, the crux of its opinion
was the merits analysis. “In other words, this is not a case in which a preliminary injunction
was based less on the trial court’s view of the merits than on a perceived hardship to the
plaintiff[s].” Select Milk Producers, 400 F.3d at 948. Rather, the plaintiffs “secured a
preliminary injunction in this case largely because their likelihood of success on the merits
was never seriously in doubt.” Id.It is true, as we explained in Smyth, that this merits analysis was necessarily
provisional. See 282 F.3d at 276; Maj. Op. Part III. But for the time it was in effect, the
preliminary injunction materially altered the parties’ legal relationship, prohibiting the
Commissioner from enforcing the challenged provision against the plaintiffs. See, e.g.,
Higher Taste, 717 F.3d at 716 & n.1 (distinguishing injunctions that merely maintain the
status quo). And the reason this preliminary injunction never advanced past the provisional
stage is that the Commissioner mooted the case, heading off a final judgment. The plaintiffs
were eager to go forward to summary judgment. But over their objection, the
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Commissioner secured several stays, which he used to successfully lobby the legislature to
repeal section 46.2-395 – with the express aim, in part, of avoiding the payment of
attorney’s fees. See, e.g., J.A. 968–69 (letter from Commissioner to state senator asking
legislature to address the matters at issue in the Stinnie litigation to avoid “costly legal
fees”). So even in a circuit requiring a causal link between a preliminary inunction and the
mooting of a case, the plaintiffs here would be prevailing parties eligible for attorney’s
fees.
Our circuit rule, by contrast, allows defendants to game the system. Faced with a
suit against a potentially or even very probably illegal provision or practice, there is no
downside to litigating through the preliminary injunction stage: If and when a court
confirms the likely merit of the plaintiff’s claim, there will be time enough for the defendant
to cease the challenged conduct (or persuade the legislature to do so), moot the case, and
avoid the payment of fees. And the plaintiff, who almost certainly will have devoted
considerable effort and resources to obtaining a preliminary injunction, is left holding the
bag, with no way to recover those costs. The predictable result is fewer attorneys willing
to take on even the most meritorious civil rights suits on behalf of indigent plaintiffs – a
result in direct contravention of the whole point of § 1988, which is to ensure “effective
access” to the judicial system for all persons with civil rights grievances. See Hensley v.
Eckerhart, 461 U.S. 424, 429 (1983) (quoting H.R. Rep. No. 94-1558, at 1 (1976)).
It is of course possible, as the Commissioner assures us, that Smyth is right and every
other circuit is wrong. But that is the kind of question that seems worth considering as an
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en banc court. See Fed. R. App. P. 35(b) advisory committee’s note to 1998 amendment
(“[A] situation that may be a strong candidate for a rehearing en banc is one in which the
circuit persists in a conflict created by a pre-existing decision of the same circuit and no
other circuits have joined on that side of the conflict.”). Until then, as the majority opinion
sets out, we have no choice but to affirm the district court’s denial of attorney’s fees. See
United States v. Seigler, 990 F.3d 331, 336 n.6 (4th Cir. 2021) (“[I]t is well-settled that a
panel of this court is bound by prior precedent from other panels in this circuit absent
contrary law from an en banc or Supreme Court decision.” (internal quotation marks
omitted)). I therefore concur in the court’s opinion.
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