Posts Tagged ‘section-1983’
Landor v. Dept. of Corrections: Supreme Court Rules Against RLUIPA Individual Capacity Damages Actions
Section 1983 and Free Exercise Claims for Damages
Violations of the Free Exercise Clause of the First Amendment, like violations of many of the provisions of the Bill of Rights, are actionable for damages under section 1983 against individual state and local government officials in their individual capacities. When such Free Exercise violations involve clear discrimination against religion, the outcomes are ordinarily favorable to the plaintiffs. When they don’t involve such discrimination, then under the leading Free Exercise Clause decision, Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the outcomes are not always so clearcut. Recall that Smith, written by Justice Scalia, mandated the use of rational basis review: because there was a neutral and generally applicable criminal law prohibiting the use of certain controlled substances, the government in Smith did not really have to justify its refusal to exempt religiously motivated drug use from its general prohibition of drug use. A rational basis was sufficient.
The Gradual Erosion of Smith
However, the Supreme Court has become increasing uncomfortable with Smith’s rational basis test in situations involving purportedly neutral and generally applicable rules regulating conduct. In particular, see Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020), finding a “strong showing” that the plaintiffs, who challenged the New York governor’s executive order imposing serious restrictions on attendance at religious services in certain zones because of Covid-19, were likely to prevail. See also Tandon v. Newsom, 141 S. Ct. 1294 (2021), applying “most favored nation” treatment to religious services during the Covid-19 pandemic. Thus, Free Exercise Clause claims are increasingly receiving favorable treatment by the current Supreme Court despite Smith. Most recently, for example, in Mahmoud v. Taylor, 146 S. Ct. — (2025), the Supreme Court held that parents of public elementary school students have a Free Exercise Clause right to opt out of a school board’s introduction of “LGBTQ+ inclusive” storybooks into classroom instruction. Nevertheless, despite this increasingly favorable treatment by the Court of Free Exercise claims, success for plaintiffs is not guaranteed when the plaintiffs use section 1983 to seek damages for Free Exercise Clause violations.
A Potential RLUIPA Workaround Now Rejected in Landor v. Dept. of Corrections
But there are two kinds of religion cases in which rational basis clearly does not apply: cases involving religious claims brought by owners of property challenging state and local government land use decisions, and prison inmates challenging state and local government conditions of confinement that allegedly infringe on their religious beliefs and behavior. The Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C.A. § 2000cc, explicitly applies strict scrutiny to certain land use and prison decisions affecting religion.
In light of this, the question was whether RLUIPA, with its strict scrutiny, provided for its own (independent of section 1983) action for damages against individual state and local government officials in their individual capacity. The Supreme Court, to my surprise, answered this question in the negative in Landor v. Louisiana Department of Corrections and Public Safety, 147 S. Ct. — (2026), aff’g, 82 F.4th 337, 339 (5th Cir. 2023).
The Landor Decisions in the Fifth Circuit and in the Supreme Court
Landor v. Louisiana Department of Corrections and Public Safety involved a prison haircut administered by prison officers to the plaintiff Rastafarian in clear violation of RLUIPA. The Fifth Circuit said: “The question presented [in the petition to the Fifth Circuit] is whether … [RLUIPA] provides for money damages against officials sued in their individual capacities. Because we’ve already answered that question in the negative, we AFFIRM.” The Fifth Circuit rejected the former state prisoner’s argument that the Supreme Court’s RFRA decision in Tanzin v. Tanvir, 141 S. Ct. 486 (2020), holding that RFRA violations are actionable against federal officials sued for damages in their individual capacities, required a different result here: RFRA was a different federal statute that was enacted under section 5 of the Fourteenth Amendment, unlike RLUIPA that was enacted under the Spending and Commerce Clauses. Thereafter, the Fifth Circuit denied a petition for rehearing and for rehearing en banc, with eleven voting against rehearing and six voting in favor.
The Supreme Court granted certiorari and affirmed in an opinion by Justice Gorsuch. The Court ruled that the plaintiff could not sue the defendant prison officers in their individual capacities because they had not entered into any voluntary and knowing agreement with the federal government to answer private suits under RLUIPA, as required by the Spending Clause. “Under the Spending Clause, Congress lacks regulatory authority to impose liability on [the officers] directly and must depend instead on consent.” The Court rejected the plaintiff’s various arguments, including one based on the Necessary and Proper Clause, that the lack of the individual prison officers’ voluntary and knowing consent did not matter. Thus, according to the majority, RLUIPA’s provision for “appropriate relief” against persons acting under color of state law authorized only injunctive relief.
The Dissenters in Landor
Justice Jackson, joined by Justices Sotomayor and Kagan, dissented. They maintained that the majority erred in “adopt[ing] the peculiar position that Congress is powerless to create, and a State is powerless to accept, the natural next step [in accommodating ‘RLUIPA’s substantive accommodating religious freedom’]: a damages remedy against officials who violate that directive.” Justice Jackson criticized this “severance of rights and remedies [as] a slight of hand [that] comes by way of the majority’s full-throated endorsement of a contract analogy even though what secures the rights at issue is not a contract but a law.” Moreover, the Court’s decision in Tanzin v. Tanvir, dealing with RFRA’s “materially identical” language, controlled: its reasoning applied with even more force to RLUIPA. And the differences in the sources of Congressional power for RFRA and RLUIPA should make no difference.
Comments
I must admit I am surprised by the result in Landor. Very seldom do plaintiffs making religion-based claims these days lose in the Supreme Court. I also do not find persuasive the reasoning of the majority insofar as it used a contract analogy mandated (in its view) by the Supremacy Clause. And so far as I recall of the broad scope of the Necessary and Proper Clause power conferred on Congress, this constituted another basis for authorizing individual capacity damages actions under RLUIPA.
Finally, I am going out on a limb now but I think that Landor indicates that the Supreme Court will very soon (in the 2026 Term?) revisit Smith, as several Justices have suggested, and finally overrule it. If I am correct, then plaintiffs like the Landor plaintiff will be able to use section 1983, the Free Exercise Clause and strict scrutiny to challenge alleged religious discrimination.
Rooker-Feldman Applies Even Where State Court Decisions Are Not Final: T.M. v. University of Maryland Medical System
The Rooker-Feldman Question Presented in University of Maryland Medical System
In its 2025 Term, the Supreme Court granted certiorari in a Fourth Circuit case, T.M. v. University of Maryland Medical System, 139 F.4th 344, 353-354 (4th Cir. 2025), cert granted, 147 S. Ct.— (12-5-25)(No. 25-197), aff’d, 147 S. Ct. – (2026), to deal with the following Question Presented: “Whether the Rooker-Feldman doctrine can be triggered by a state-court decision that remains subject to further review in state court.” The Court, in an opinion for the Court by Justice Sotomayor, answered in the affirmative, with Justice Thomas concurring, and Justice Barrett, joined by Chief Justice Roberts and Justices Kagan and Gorsuch, dissenting.
The Fourth Circuit’s Decision
In this case, a patient and her parents sought to invalidate a state court’s consent order basing her release from involuntary commitment on compliance with certain conditions. The Fourth Circuit ruled that the district court correctly dismissed this § 1983 complaint under Rooker-Feldman, pointing out that the case “bears an uncanny resemblance to Rooker” which similarly sought to undo a state court judgment. It did not matter that this case involved a consent order which was itself challenged as unconstitutional; the plaintiff was still a state court loser. And even though plaintiff won in one state court, that state court case did not involve the court order that plaintiff now argued was unconstitutional. Finally, the Fourth Circuit rejected the plaintiff’s argument that Rooker-Feldman should not apply here because there was no final state court judgment. The court explained: “[W]e agree with the Sixth and Eighth Circuits that Rooker-Feldman is not limited to situations when a federal court plaintiff no longer has any recourse within the state system.” There was no “stealth fifth requirement for invoking the Rooker-Feldman doctrine.”
The Supreme Court’s Decision
Affirming, the Supreme Court explained that this case involved the “straightforward application of the logic and reasoning underlying Rooker-Feldman.” The plaintiff here complained of injuries caused by the state court judgment itself, by arguing that the consent order violated her federal and state due process rights and was entered into under duress ten days before the federal lawsuit was filed. This was the “paradigm” Rooker-Feldman situation.
The Court went on to reject the plaintiff’s argument that a new requirement should be added to Rooker-Feldman, namely, that it should apply only to final judgments entered by the highest court of the relevant state. It concluded that this proposed rule was “inconsistent with the Court’s precedents, risks producing anomalous results, and undermines federalism interests.” Instead, the Court emphasized that Rooker-Feldman was, and should continue to be, grounded on the functional distinction between original federal court jurisdiction under 28 U.S.C. § 1331 and the Supreme Court’s appellate jurisdiction over state court judgments under 28 U.S.C. § 1257. Contrary to the plaintiff’s argument and the dissenters’ position, Rooker-Feldman cases were not akin to collateral attacks brought under a federal district court’s original jurisdiction pursuant to § 1331.
The Concurring and Dissenting Opinions
Justice Thomas concurred, agreeing with the majority that Rooker-Feldman was soundly based on the “simple legal proposition that only this Court may exercise appellate jurisdiction over state-court judgments.” Justice Barrett, joined by the Chief Justice and Justices Kagan and Gorsuch, dissented, arguing that Rooker-Feldman should not apply when the underlying state court action remains pending. The seven Courts of Appeals that had previously so ruled “were right to hold the line. … Because Rooker-Feldman stands on shaky ground, we have consciously kept its footprint small. … [S]o we should make the doctrine no larger.”
The dissenters also rejected the majority’s argument that federalism principles were promoted by applying Rooker-Feldman to non-final state court judgments, particularly since the plaintiff’s suit was brought under § 1983, which had transformed traditional concepts of federalism. For this and other reasons, the majority’s ruling “muddied waters that were hardly clear to begin with.” Finally, the dissenters emphasized that, regardless of the majority’s decision in this case, the Rooker-Feldman doctrine’s scope should be narrow.
Comment
The (slim) majority got it right because the rationale of Rooker-Feldman, that federal courts do not have appellate jurisdiction over state court decisions, applies with full force to state court decisions that are not final. On the other hand, the dissenters were correct in insisting that Rooker-Feldman, at its best incredibly arcane and frequently difficult to apply consistently, should be narrow in scope.
For much more on Rooker-Feldman, including collected circuit court decisions, see §§ 1:26-1:30 in Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 (2025 edition)(2026 edition forthcoming)(West/Westlaw).
Pending Supreme Court Rooker-Feldman Decision: T.M. v. University of Maryland Medical System
The Rooker-Feldman Background
In the circuits, despite the broad jurisdictional grants of 28 U.S.C. §§1331 and 1343 over section 1983 claims, there are circumstances where federal jurisdiction is thought to be absent. Thus, under the Rooker-Feldman doctrine (named after two Supreme Court cases), as subsequently elaborated by the Court in Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005). federal courts have no subject matter (or appellate) jurisdiction over state court judgments in connection with modifying or vacating them. In other words, plaintiffs who are state court losers cannot use section 1983 claims brought in federal court to try to challenge adverse state court decisions directly. That is what state appellate courts are for.
For Rooker-Feldman to apply, then, there must be a state court judgment. Rooker-Feldman does not apply, though, to oust federal courts of jurisdiction where an unreviewed administrative order is involved. This is so even where the administrative agency acted in an adjudicative capacity or where the plaintiff could have sought review, but did not, of the agency’s decision in state court.
Exxon-Mobil Corp. and the Court’s Attempt to Explain the Proper Scope of Rooker-Feldman
In Exxon Mobil Corp., a unanimous 2005 decision, the Supreme Court, per Justice Ginsburg, observed that Rooker-Feldman “has sometimes been construed to extend far beyond the contours of the Rooker and Feldman cases, overriding Congress’ conferral of federal-court jurisdiction concurrent with jurisdiction exercised by state courts, and superseding the ordinary application of preclusion law pursuant to 28 U.S.C.A. 1738.” After extensive analysis of the doctrine, the Court then declared:
“The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Rooker-Feldman does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions.”
The Court in Exxon Mobil went on to emphasize that when there is parallel state and federal litigation, as in the case before it, Rooker-Feldman was not triggered just by the entry of judgment in the state court proceeding. Rather, preclusion law would then be applicable. Accordingly, the Court reversed the Third Circuit which had ruled in erroneous reliance on Rooker-Feldman that the district court’s jurisdiction terminated once the state court entered judgment. The Court pointed out that the litigant in the federal action was not seeking to overturn the state court judgment.
Rooker-Feldman turns out to be quite a complicated and arcane doctrine, as you see. I cover it extensively, and collect many circuit court cases, in §§ 1:25-1:30 of my Treatise, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 (2025-26 ed.)(West/Westlaw).
Does Rooker-Feldman apply where a state court decision is not final but is being appealed within the state court system? That is the question currently pending before the Supreme Court.
Certiorari Granted in T.M. v. University of Maryland Medical System
The Supreme Court granted certiorari in a Fourth Circuit case, T.M. v. University of Maryland Medical System, 139 F.4th 344 (4th Cir. 2025), cert granted, 147 S. Ct.— (12-5-25)(No. 25-197), to deal with the following Question Presented: “Whether the Rooker-Feldman doctrine can be triggered by a state-court decision that remains subject to further review in state court.”
In this case, a patient and her parents sought to invalidate a state court’s consent order basing her release from involuntary commitment on compliance with certain conditions. The Fourth Circuit ruled that the district court correctly dismissed this section 1983 complaint under Rooker-Feldman, pointing out that the case “bears an uncanny resemblance to Rooker” which similarly sought to undo a state court judgment.
According to the Fourth Circuit, it did not matter that this case involved a consent order which was itself challenged as unconstitutional; the plaintiff was still a state court loser. And even though plaintiff had won in one state court, that case did not involve the court order that plaintiff now argued was unconstitutional.
Finally, the Fourth Circuit rejected the plaintiff’s argument that Rooker-Feldman should not apply here because there was no final state court judgment. The court explained: “[W] agree with the Sixth and Eighth Circuits that Rooker-Feldman is not limited to situations when a federal court plaintiff no longer has any recourse within the state system.” There was no “stealth fifth requirement for invoking the Rooker-Feldman doctrine.”
Prediction
My prediction is that the Court will affirm the Fourth Circuit and attempt once again, as it did in Exxon-Mobil over twenty years ago, to clarify the scope of Rooker-Feldman. Whether it will succeed this time remains to be seen.
UPDATE
As predicted, the Supreme Court, on June 18, 2016, affirmed the Fourth Circuit. 147 S. Ct. — (2026). Justice Sotomayor wrote for the Court, with Justice Thomas concurring and Justice Barrett, joined by Chief Justice Roberts and Justices Kagan and Gorsuch, dissenting. My next post will deal with this new decision.
Heck v. Humphrey and Purely Prospective Relief: The Supreme Court’s 2026 Decision in Olivier v. City of Brandon
Heck v. Humphrey
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that where a plaintiff with a § 1983 damages claim has an existing prior conviction or sentence, and where success on the § 1983 damages claim would necessarily imply the invalidity of that conviction or sentence, the claim does not accrue until the conviction or sentence has been overturned or otherwise eliminated. As discussed extensively in Chapter 9 in my Treatise, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 (West/Westlaw)(2025-26 ed.) Heck has spawned a great deal of complicated litigation dealing with its scope and applicability. I’ve observed in my § 1983 presentations to attorneys that Heck has become Hell. But what follows turns out to be an easy case.
Olivier v. City of Brandon
Suppose a § 1983 plaintiff—a “street preacher” who was previously convicted of violating a city ordinance regulating speech near a public amphitheater–now wants to engage in similar conduct without the threat of criminal prosecution. So he files a suit under § 1983 and the First Amendment against the city challenging the constitutionality of that ordinance and seeking forward-looking prospective relief only. Does Heck apply? In Olivier v. City of Brandon,[1] Justice Kagan wrote for a unanimous Court: “The answer is no. Heck prohibits the use of § 1983 to challenge the validity of a prior conviction or sentence so as to obtain release from custody or monetary damages. That decision has no bearing on [plaintiff’s] suit seeking a prospective remedy.”
In Olivier, the plaintiff had pleaded no contest five years earlier to violating the ordinance and had received one year of probation and paid a fine. His current § 1983 First Amendment suit sought only prospective relief, not the reversal of his prior conviction and not compensation for it. In addition, the plaintiff did not plan to use a favorable judgment subsequently to collaterally attack that conviction or its effects.
The district court accepted the city’s argument that Heck applied, thereby barring plaintiff’s § 1983 claim, because a favorable decision would cast doubt on the earlier conviction. The district court rejected the plaintiff’s argument that Heck did not apply to a § 1983 suit for prospective relief that was unrelated to a prior conviction. The Fifth Circuit then affirmed the district court, but the Court reversed.
The Unanimous Decision
The Court pointed to its precedent making clear that that there was a long-established distinction between Heck-type claims and those seeking “wholly” forward-looking relief. It was not dispositive for Heck purposes that if the plaintiff succeeded in his § 1983 suit, that would somehow suggest or indicate that his prior conviction was unconstitutional. There was no real “looking back” in the plaintiff’s suit here, unlike in true Heck situations. Moreover, if another hypothetical plaintiff (call him Jones) without a conviction were to challenge the ordinance on identical First Amendment grounds, surely the suit by Jones could proceed under § 1983 even if Jones’s success in that suit would in a sense imply the invalidity of the Olivier plaintiff’s conviction. For these reasons, Heck did not apply in this case and the plaintiff could sue under § 1983 to prevent future enforcement of the allegedly unconstitutional ordinance.
Comment
Olivier is an easy case which the Court used to push back against the unwarranted expansion of Heck to situations where its rationale simply does not apply.
Schedule for 42nd Annual Section 1983 Conference: April 23-24, 2026
Below is the schedule for the upcoming Section 1983 Conference to be held at Chicago-Kent College of Law on April 23-24, 2026. For registration information, please email cle@illinoistech.edu or call 312-906-5090. We hope to see you there.
PROGRAM SCHEDULE
Day One – April 23, 2026
| 8:45 – 9:00 AM | Welcome and Introduction |
| 9:00 – 10:15 AM | The Section 1983 Claim: Basics |
| Monroe v. Pape: color of law, exhaustion of judicial remedies, and the background of tort liability Causation Important constitutional provisions “Laws” actions Heck v. Humphrey and the pending Olivier case Due process & section 1983 malicious prosecution claims | |
| Sheldon H. Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law | |
| 10:15 – 10:30 AM | BREAK |
| 10:30 – 11:45 AM | Qualified Immunity: What’s Not Clearly Established |
| Who Has the Burden of Proof? Should a Court Address the Merits Prong When Prong Two is Dispositive? What Law Controls the Clearly-Established-Law Question? How Clear Must Clearly Established Law Be? Whatare the Roles of the Judge and Jury in Resolving QI? When is an Interlocutory Appeal Permitted & What is the Scope of Review? Do Private Actors Get Qualified Immunity? | |
| Karen M. Blum, Professor Emerita and Research Professor of Law, Suffolk University Law School | |
| 11:45 AM – 1:00 PM | LUNCH (on your own) |
| 1:00 – 2:00 PM | Substantive Due Process |
| Incorporation of the Bill of Rights Protection of non-textual rights from arbitrary legislation Protection from grossly excessive punitive damage awards Protection against abuse of power by government officials | |
| Rosalie B. Levinson, Professor of Law Emerita, Valparaiso University School of Law | |
| 2:00 – 2:15 PM | BREAK |
| 2:15 – 3:30 PM | Procedural Defenses: Limitations, Preclusions and Wrongful Death |
| Limitations: Section 1988, choosing the proper limitations period, accrual, and tolling Preclusion: Section 1738 and the effect of prior state criminal and civil proceedings Survival and wrongful death: the differences between survival and wrongful death Section 1988 and inconsistency | |
| Sheldon H. Nahmod, University Distinguished Professor of Law Emeritus, Chicago-Kent College of Law | |
| 3:30 – 3:45 PM | BREAK |
| 3:45 – 5:00 PM | The Supreme Court’s Current and Forthcoming Terms |
| A review of major Supreme Court cases from October Term 2024 and October Term 2025 that relate to Section 1983 litigation. This includes cases about exhaustion requirements, availability of attorney fees, use of Section 1983 to enforce federal legislation, excessive police force, and cases involving the First and Fourth Amendments. | |
| Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law University of California Berkeley School of Law | |
| 5:00 – 6:00 PM | RECEPTION |
Day Two – April 24, 2026
| 9:00 – 10:15 AM | The Internet Meets Section 1983 |
| Constitutional issues in Supreme Court cases relating to the Internet – Internet gets full First Amendment protection Social media as “core” speech Section 230 issues Conduct of government officials online State regulation of the Internet, like platform moderation statutes and age verification Laws Hot issues on the horizon | |
| Gerald M. Birnberg, Adjunct Professor of Law, South Texas College of Law | |
| 10:15 – 10:30 AM | BREAK |
| 10:30– 11:45 AM | Up and Down the Bureaucratic Pyramid: Litigating Section 1983 Cases against Municipalities |
| Theories of Municipal Liability Policy, Practice, and Indifference Hiring & Discipline Section 1983 Immunities Damages & Indemnification | |
| Teri Ravenell, Associate Dean of Faculty Research & Development, Professor of Law, Villanova University | |
| 11:45 AM – 1:00 PM | LUNCH (on your own) |
| 1:00 – 2:15 PM | Section 1983 Remedies: Damages and Prospective Relief |
| Section 1983 litigation has given rise to a number of interesting questions associated with remedies. In this session, the speaker will discuss compensatory and punitive damages, as well as issues related to injunctive relief. | |
| Noah Smith-Drelich, Assistant Professor of Law, Chicago-Kent College of Law | |
| 2:15 – 2:30 PM | BREAK |
| 2:30 – 3:45 PM | The Fourth Amendment |
| David Owens, Director, Civil Rights & Justice Clinic and Assistant Professor of Law, School of Law, University of Washington | |
| 3:45 PM | END OF CONFERENCE |
Exhaustion Under the Prison Litigation Reform Act and the Right to a Jury: Perttu v. Richards
Section 803 of the Prison Litigation Reform Act, 42 U.S.C.A. § 1997e, imposes an exhaustion of prison administrative remedies requirement on prisoners who wish to sue under § 1983. (See § 9:65 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2024-25 ed.)(West/Westlaw)). At the same time, there is a Seventh Amendment right to a jury trial in certain § 1983 cases. (See §§ 1:52-1:55 of my Treatise on the right to a jury trial).
What is the interplay, if any, between the PLRA’s exhaustion requirement and the Seventh Amendment right to a jury trial? In some situations, the exhaustion issue is “intertwined” with the merits of the prisoner’s lawsuit because both depend on whether the plaintiff’s allegations are in fact true.
In Perttu v. Richards, 146 S. Ct. – (2025), aff’g, Richards v. Perttu, 96 F.4th 911, 921 (6th Cir. 2024), the Supreme Court resolved a split in the circuits on this question by holding that in such cases there is a right under the PLRA to a jury trial.
In Perttu, the plaintiff inmate challenged the district court’s decision, after an evidentiary hearing, that found he had failed to exhaust administrative remedies under the PLRA in connection with his First Amendment retaliation claim. He maintained that the defendant prison official had affirmatively prevented him from filing grievances alleging the defendant’s sexual abuse by ripping them up or otherwise destroying them.
In this case of first impression in its circuit, the Sixth Circuit reversed and held that the Seventh Amendment required that a jury decide disputed questions of fact relating to PLRA exhaustion “when the exhaustion issue is intertwined with the merits of the underlying dispute.” In this regard, the Sixth Circuit observed that it disagreed with the Seventh Circuit’s contrary decision as set out in Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008): “[T]he rationale [of Pavey] that a jury may reexamine the judge’s factual findings [relating to the merits] rings hollow if the prisoner’s case is dismissed for failure to exhaust his or her administrative remedies. In such an instance, a jury would never be assembled to resolve the factual disputes. That is Pavey’s fatal flaw.”
Agreeing with the Sixth Circuit as to the result but not reaching the constitutional issue on the merits, the Supreme Court affirmed in an opinion by Chief Justice Roberts. It held “as a matter of statutory interpretation that parties have a right to a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim that falls under the Seventh Amendment.” (emphasis added). Here, the factual disputes over exhaustion overlapped with the plaintiff’s First Amendment retaliation claim.
Justice Barrett dissented, joined by Justices Thomas, Alito and Kavanaugh. Adopting an historical approach and indicating that the Seventh Amendment would not be violated if district courts decided disputed questions of fact implicating exhaustion even when intertwined with the merits, Justice Barrett asserted: “The Court reads the PLRA to say what it does not. It does so for reasons that the parties did not brief; that have no basis in our doctrine; and that are contrary to well-established principles of statutory interpretation. In so doing … the Court creates a regime … [that] generates more litigation of its own.” 146 S. Ct. at –.
The Court in Perttu avoided what many of the the Justices considered to be a difficult Seventh Amendment issue by deciding the case on PLRA statutory interpretation grounds. In so doing, it suggested that if Congress was not happy with the possible adverse effects of its decision on the implementation of the PLRA’s exhaustion requirement, Congress could amend the PLRA.
Supreme Court Sets Out New “Prevailing Party” Rule in Lackey v. Holcomb, Attorney’s Fees Case Involving Preliminary Injunctions and Mootness
The Supreme Court, on February 25, 2025, reversed the Fourth Circuit in Lackey v. Holcomb, 145 S. Ct. – (2025)(No. 23-621), an attorney’s fees case dealing with preliminary injunctions and mootness, and answered the following Questions Presented in the affirmative:
“(1) Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the merits under 42 U.S.C. § 1988; and (2) Whether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under 42 U.S.C. § 1988.”
The Lower Court Decisions in Lackey
In Lackey, the § 1983 plaintiffs challenged a Virginia statute that required the automatic suspension of driver’s licenses when drivers fail to pay certain court fines and fees. Following an extensive hearing with briefing and argument, the district court granted the plaintiffs a preliminary injunction. This was not appealed by the state defendants but, shortly before bench trial in August 2019, the Virginia legislature suspended the enforcement of the statute for a year, and the defendants got the district court to stay the case until the next legislative session over the plaintiffs’ “strenuous objections”. Thereafter, the legislature repealed the challenged statute, the district court dismissed the action as moot and, applying established Fourth Circuit precedent, it denied plaintiffs’ attorney’s fees.
Subsequently, however, with four judges dissenting, the Fourth Circuit en banc vacated the district court’s denial of fees and rejected its circuit’s earlier “bright-line approach” holding that “a plaintiff who wins a preliminary injunction but—for whatever reason—does not secure a final judgment may never qualify as a prevailing party.” Instead, it announced its test going forward: “When a preliminary injunction provides the plaintiff concrete, irreversible relief on the merits of her claim and becomes moot before final judgment because no further court-ordered assistance proves necessary, the subsequent mootness of the case does not preclude an award of attorney’s fees.”
The Supreme Court’s Decision
The Supreme Court in turn reversed in an opinion by Chief Justice Roberts. He began with the text and the Black’s Law Dictionary definition of prevailing party, and determined that that status depended on whether, at the end of the lawsuit, the party making a claim against another has successfully maintained it. He then reasoned that preliminary injunctions “do not conclusively resolve legal disputes.” Rather, they had a transient nature, especially where a court reached a different conclusion on full consideration of the merits, as in Sole v. Wyner, 551 U.S. 74 (2007), discussed below. Further, it was not sufficient for prevailing party status that the grant of a preliminary injunction has “something” to do with the merits: “The plaintiff must succeed on the merits.” This conclusion, according to Chief Justice Roberts, was consistent with its precedents that rejected the catalyst theory and insisted on a final victory on a material (“even if not predominant”) claim
Finally, the Court articulated its standard going forward: the change in legal relationship must be both judicially sanctioned and enduring in order for the plaintiff to be a prevailing party entitled to attorney’s fees. Specifically, “we establish that the enduring nature of that change [in the legal relationship between the parties] must itself by judicially sanctioned…. [B]oth the change in relationship and its permanence must result from a judicial order.” This standard, according to the Court, promoted judicial economy and did not, in most cases, create perverse incentives favoring defendants who could strategically moot litigation rather than proceed to the merits where they might lose and be required to pay attorney’s fees.
The Dissent
Justice Jackson, joined by Justice Sotomayor, dissented. Among other things, they pointed out that the plaintiffs had received meaningful relief through a preliminary injunction that was never reversed on the merits on appeal. As shown by the text and legislative history of §1988(b), Congress intended that in such cases, the plaintiffs should be entitled to prevailing party status and reasonable attorney’s fees. They argued that the majority “overreads our precedents to support its blanket rule that preliminary injunctions can never support fee awards.” Sole should be read narrowly as applying to preliminary injunctive relief that is superseded by a final judgment reversing such relief. Finally, they maintained that the Court’s approach would indeed create perverse incentives.
Comments
Lackey addressed the unresolved question in Sole. Here, the Supreme Court unanimously held that “a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, [does not] qualify as a ‘prevailing party’ within the compass of §1988(b).” The Court in Sole emphasized that prevailing party status requires a material alteration of the legal relationship of the parties pursuant to Texas State Teachers Ass’n v. Garland Independent School Dist., 489 U.S. 782 (1989), and that was not present in this case. It was not sufficient for prevailing party status that the plaintiff obtained a preliminary injunction after a hasty and abbreviated hearing that allowed her to display an antiwar artwork in a Florida state park: the state court had thereafter held after a full hearing that she was not entitled as a First Amendment matter to a permanent injunction against the enforcement of the state statute setting out the “Bathing Suit Rule” applicable to state parks. “Prevailing party status … does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.” 127 S. Ct. at 2188 (footnote omitted). However, the Court went on to observe that it was expressing no view of a case in which a plaintiff obtains a preliminary injunction and there is no final decision on the merits of a claim for permanent injunction. As indicated, this was the issue that Lackey decided in favor of defendants.
I argued in an earlier post on Lackey that the Court should affirm the Fourth Circuit en banc under the unique facts of the case : there was a full hearing with briefing and oral argument that preceded the district court’s grant of the preliminary injunction; this grant was not appealed by the defendants, although it could have been. Furthermore, as a direct result of the preliminary injunction, the Virginia legislature suspended the enforcement of the statute for a year, the case was stayed over plaintiffs’ objections and the statute ultimately repealed, all of which effectively prevented the plaintiffs from proceeding to final judgment and was motivated by the defense’s strategy to create mootness. For these reasons, the legal relationship of the parties was materially altered in favor of the plaintiffs who were thus prevailing parties.
Moreover, as the dissenters point out, the Court’s bright-line approach may create perverse incentives: plaintiffs who seek preliminary relief may either be encouraged to include an otherwise unnecessary damages claim in order to preclude mootness (thereby complicating a simpler lawsuit) or to seek permanent injunctive relief even after they’ve received what they wanted through a preliminary injunction.
Nevertheless, the Court decided to set out a bright-line rule requiring a judicial imprimatur for both the merits and the enduring nature of the change in the legal relationship between the parties. In so doing, “it overrules the decisions of every Court of Appeals to consider the issue” as the dissenters observe.
Sole, Texas State Teachers Ass’n and Lackey, and attorney’s fees in general, are all addressed in Chapter 10 of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2024-25 ed.)(West/Westlaw).
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