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Sean D. Reyes
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AGO Joins Amicus Regarding Recovery of Attorneys Fees

SALT LAKE CITY, UTAH – Attorney General Sean D. Reyes joined an amicus brief to the Supreme Court of the United States in Lackey v. Stinnie. The brief, led by the State of Georgia, supports Gerald F. Lackey, the Commissioner of the Virginia Department of Motor Vehicles, in a case about whether a party who obtains a preliminary injunction is entitled to attorney fees, particularly when the case thereafter becomes moot.

After obtaining a preliminary injunction, the plaintiffs sought attorney’s fees because they believed they were the “prevailing party.” Before the adjudication of these fees occurred, however, the State of Virginia took voluntary action that mooted the underlying dispute. The U.S. Court of Appeals for the Fourth Circuit ruled that the plaintiffs qualified as a “prevailing party” because they obtained the injunction, meaning the State of Virginia was on the hook for $768,491.70 in attorney’s fees.

In their brief, the attorneys general made two arguments for the nation’s high court to consider. The first was that “the question presented is recurring and important to the States.” The second was that “the Fourth Circuit and other circuit courts apply tests for fee eligibility that conflict with this Court’s precedents.”

The coalition of States writes, “Under 42 U.S.C. § 1988 and a number of other federal statutes, plaintiffs regularly seek, and courts sometimes impose, substantial fee awards against state officials where the plaintiffs obtain a preliminary injunction but no final relief because the case becomes moot. Yet the circuit courts have not established clear or consistent standards for when, if ever, attorney’s fees are authorized under these circumstances. Instead, the circuits apply amorphous, subjective tests that fall far short of this Court’s repeated calls for ‘ready administrability’ in fee eligibility standards. These unstable and often contradictory tests impose needless costs on the States and their residents in the form of protracted secondary litigation over fees. 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.”

Joining Utah and Georgia on the brief were the States of Alabama, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, and West Virginia.

Read the brief here.