U.S. Supreme Court Limits Section 1988 Attorney’s Fees for Property Owners and Other Civil Rights Litigants

By Benjamin Mills and Jeremy Stewart

The U.S. Supreme Court’s recent decision in Lackey v. Stinnie, 145 S. Ct. 659 (2025), limits the ability of civil rights litigants to recover their attorney fees under the Civil Rights Attorney’s Fees Awards Act, specifically 42 U.S.C. § 1988 (“Section 1988”). Section 1988 entitles “the prevailing party, other than the United States,” to recover “a reasonable attorney’s fee as part of the costs” expended in certain civil rights lawsuits. 42 U.S.C. § 1988(b). Property owners often sue governmental entities for due process and equal protection violations, unlawful takings and exactions, and other civil rights violations that infringe upon their property rights. But Lackey limits the circumstances under which a litigant may qualify as a prevailing party and, therefore, who can recover their attorney’s fees. In Lackey, the Supreme Court decided that a party prevails under Section 1988 only “when a court conclusively resolves [its] claim by granting enduring relief on the merits that alters the legal relationship between the parties.” Id. at 671. In other words, both “the change in relationship and its permanence must result from a judicial order.” Id. The Supreme Court concluded that preliminary injunctions do not meet these requirements because they only “temporarily preserve[] the parties’ litigating positions” on a mere “prediction of the likelihood of success on the merits.” Id.

This decision establishes significant precedent while reversing the prior consensus among the lower courts. Lackey overturned the view of eleven U.S. Courts of Appeals, which previously had concluded that, under certain circumstances, preliminary injunctions could be enough to recover attorney’s fees as a prevailing party under Section 1988. Id. at 675 & n.3 (Jackson, J., dissenting) (collecting cases). In fact, Lackey was on appeal from a Fourth Circuit decision aligning itself with the other courts of appeals and holding that the recipients of a preliminary injunction were prevailing parties entitled to their attorney’s fees under Section 1988. The case started when Virginia drivers challenged the constitutionality of a Virginia statute. Id. at 664. The drivers obtained a preliminary injunction, after which the Virginia legislature repealed the statute, resulting in the dismissal of the lawsuit as moot. Id. at 665. The drivers obtained their desired result as a practical matter, but the district court rejected their request for attorney’s fees. Id. The Fourth Circuit reversed, holding that under the circumstances of the case the drivers had prevailed. Id. at 666.

The Supreme Court reversed, concluding that a preliminary injunction is not enough to convey prevailing party status entitling a civil rights litigant to attorney’s fees under Section 1988 for several reasons:

Going forward, a civil rights litigant will need to obtain more than preliminary injunctive relief to recover attorney fees under Section 1988. This means that real property owners and other civil rights litigants will be less likely to recover their fees, may have more difficulty finding counsel to represent them, and will need to commit at the outset to, and pursue, a more complete lawsuit before becoming eligible to recover Section 1988 attorney fees.