The United States Court of Appeals for the Fourth Circuit modified its holding on prevailing party attorney’s fees in an opinion of Circuit Judge Harris

Under 42 U.S.C. § 1988(b), the “prevailing party” in certain civil rights actions is eligible to recover reasonable attorney’s fees. Two decades ago, we held 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. Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002). In the years since, this categorical rule has become a complete outlier: Every other circuit to consider the issue has held that a preliminary injunction may confer prevailing party status in appropriate circumstances.

We granted rehearing en banc to reassess our bright-line approach, and we now conclude that it is too stringent. Although many preliminary injunctions represent only “a transient victory at the threshold of an action,” Sole v. Wyner, 551 U.S. 74, 78 (2007), some provide enduring, merits-based relief that satisfies all the requisites of the prevailing party standard. Because the plaintiffs here “prevailed” in every sense needed to make them eligible for a fee award, we vacate the district court’s denial of attorney’s fees and remand for further proceedings.

The litigation was brought by indigent Virginia residents who had lost their drivers license due to their inability to pay court fees.

After securing a preliminary injunction, the case was set for a bench trial.

The Virginia legislature then repealed the challenged statute

With the challenged statute repealed– and the plaintiffs no longer in need of court-ordered relief – the court dismissed the action as moot.

From the dissent of QUATTLEBAUM, Circuit Judge, with whom Judges AGEE, RICHARDSON, and RUSHING join on likelihood of success as a standard

If anyone doubts that there is a difference between actually prevailing and having a likelihood of success, just ask the Atlanta Falcons—or better yet, their fans. Mid-way through the third quarter of the 2017 Super Bowl, the Falcons had achieved a great deal of success. They led the New England Patriots 28-3 and were dominating every facet of the game. By any measure, the Falcons were likely to succeed. But they had not prevailed. And since one and one-half quarters still had to be played, the Patriots still had time to comeback. And they did. They Patriots came back to win 34-28, the largest  come back in Super Bowl history. Likelihood of success is just not the same thing as prevailing.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2023/08/from-the-dissent-if-anyone-doubts-that-there-is-a-difference-between-actually-prevailing-and-having-a-likelihood-of-success.html