(decided February 25, 2025)
A federal statute, 42 U.S.C. Section 1988(b) gives trial judges “discretion” to award the prevailing party” in federal civil rights lawsuits the attorneys’ fees the party incurred in prosecuting the lawsuit. In this case, the Court ruled, 7-2, that the winner of a preliminary injunction in a federal civil rights lawsuit could not recover his or her attorneys’ fees if he or she won nothing else before the lawsuit was dismissed. The Court explained that the qualifying words “prevailing party” in the statute do not include plaintiffs who win only a preliminary injunction before their lawsuit is dismissed, because a “preliminary injunction,” by definition, is impermanent.
In dissent, Justices Jackson and Sotomayor argued that sometimes even the winners of preliminary injunctions have already prevailed, no matter what might happen next in their lawsuit.
Comment: The real key to this case was the statutory word “discretion,” something given to the trial judge handling the lawsuit. Surely that “discretion” includes declaring a real-life winner and a real-life loser in a terminated lawsuit, regardless of the technical grounds for termination. The Court was wrong to hold otherwise.
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