Academic journal article Washington and Lee Law Review

Preliminary Imprimaturs: Prevailing Party Status Based on Preliminary Injunctions

Academic journal article Washington and Lee Law Review

Preliminary Imprimaturs: Prevailing Party Status Based on Preliminary Injunctions

Article excerpt

I. Introduction

Numerous federal statutes authorize attorney's fees for a prevailing party.1 Prior to 2001, every federal circuit except the Fourth followed the catalyst theory, which grants prevailing party status when a party's ends are accomplished as a result of its lawsuit.2 Under the catalyst theory courts determined whether a party prevailed by focusing on whether the party obtained its desired result, regardless of whether the party obtained a favorable ruling. In Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources,3 the Supreme Court, in a 5-4 decision, overturned the dominant standard for determining prevailing party status and ruled that a party cannot prevail without first prevailing in court.4 After Buckhannon, obtaining the desired result is insufficient to gain prevailing party status.5 A party must also obtain the "necessary judicial imprimatur."6

The Court did not expressly define the required "judicial imprimatur."7 In Buckhannon, the Supreme Court analyzed its precedent and concluded that the High Court has only held8 that court-ordered consent decrees and final judgments on the merits suffice for prevailing party status.9 Clearly, these forms of relief can constitute sufficient judicial approval for prevailing party status. Courts interpreting Buckhannon agree that the Supreme Court's examples are not exclusive,10 but find it difficult to agree on what other forms of judicial action constitute the necessary judicial imprimatur.11 The circuits particularly struggle with preliminary injunctions.12

Buckhannon engenders this difficulty by relying on two different approaches for determining prevailing party status.13 In recognizing a prevailing party after a final judgment on the merits, the Court expressed concern that the catalyst theory allowed plaintiffs to obtain attorney's fees without demonstrating a meritorious claim.14 In allowing prevailing party status after a court-ordered consent decree, however, the Court was concerned, not that the plaintiff obtain a decision on the merits, but that the desired result stem from a court order.15

Analysis of prevailing party status thus divides into two approaches. The first is a means-based approach that allows prevailing party status when a party obtains its desired result by means of a court order, as in the Court's example of a court-ordered consent decree.16 The second is a merit-based approach that allows prevailing party status when there has been sufficient judicial recognition on the merits of the plaintiff's claim, as with a final judgment on the merits.17

Since Buckhannon, the federal circuits have relied on both approaches. The Ninth Circuit relies on a means-based approach and has granted prevailing party status, not only for a party that obtained a preliminary injunction,18 but also for parties that obtained court-approved settlements.19 The Fourth Circuit, by contrast, relies on a merit-based approach and has refused prevailing party status for a party that won a preliminary injunction.20 Finally, the Third Circuit recently used a merit-based approach to deny prevailing party status to a party that won a preliminary injunction.21 Unlike the Fourth Circuit, which absolutely barred prevailing party status based on a preliminary injunction,22 the Third Circuit expressly declined to hold that a preliminary injunction was always insufficient for prevailing party status.23 In the Third Circuit, a party can obtain prevailing party status based on a preliminary injunction if the injunction involved sufficient recognition on the merits.24

As the disparate treatment indicates, preliminary injunctions pose difficult questions when they are presented as a basis for prevailing party status. One source of difficulty is that preliminary injunctions are interim-not final-relief, but frequently represent the final disposition of a case; many cases are resolved by, or soon after, a preliminary injunction. …

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