The Early Bird's Burden: Attorney's Fees in the Age of Preliminary Injunctions
Philip J. White*
Federal Rule of Civil Procedure 54(d)(2) sets a fourteen-day deadline for attorney’s fee motions following a “judgment.” The definition of “judgment” in Rule 54 includes preliminary injunctions. Yet Lackey v. Stinnie holds that preliminary injunctions do not confer prevailing-party status. The result is a procedural trap: Litigants risk waiver if they do not file within fourteen days of a preliminary injunction but risk denial if they file too soon.
This Essay argues that Rule 54’s ambiguity undermines judicial efficiency and fairness, particularly in civil rights litigation where fees are central to enforcement. It proposes a targeted amendment that establishes a notice mechanism to defer fee adjudication until after final judgment, thereby harmonizing the Federal Rules of Civil Procedure with Lackey’s efficiency principle and substantive holding.
Introduction
In the quiet chambers of the federal courts, a high-stakes poker game unfolds where fees attributable to preliminary victories can vanish like chips swept from the table. Imagine a plaintiff’s attorney who has momentarily grasped victory for his client through a preliminary injunction, only to discover he is playing a game with obscure rules. Lurking beneath civil procedure’s seemingly sterile landscape lies a procedural casino structured to favor the house. As the rules currently stand, the winners of preliminary injunctions face a gambler’s dilemma.
The gamble begins with a fundamental question that has haunted judges, attorneys, and legal scholars: Does a preliminary injunction represent a winning hand? Or must attorneys wait until final judgment to seek fees? Lackey v. Stinnie holds that a party granted a preliminary injunction does not qualify as a prevailing party for fee purposes; only a final judgment in their favor confers that status.1 The problem is that Federal Rule of Civil Procedure 54 sets a deadline for fee petitions that does not hinge on whether a judgment is final.2 Instead, it sets a fourteen-day deadline running after “judgment[s],” and then defines a “judgment” to include preliminary injunctions.3
This uncertainty carries devastating consequences for the attorneys who help enforce fundamental rights. Civil rights cases often hinge on preliminary relief to prevent irreparable harm while litigation proceeds.4 When attorneys cannot reliably recover fees for the substantial work required to obtain these crucial interim victories, it creates a powerful disincentive to take on the very cases the legal system most needs them to pursue.5 The Advisory Committee on Civil Rules must therefore act, ensuring that justice does not turn on procedural happenstance. When procedural traps erode substantive rights, reform is not merely advisable but essential to the integrity of the legal system.
The following Essay explores the human cost of legal ambiguity—where the vagaries of procedural timing determine the difference between justice achieved and justice denied. And it will call the Advisory Committee to change the odds by amending the Federal Rules of Civil Procedure so that future litigants will not be forced to risk everything on a common sense and straightforward reading of Rule 54(d).
I. Reconciling Lackey with Rule 54's Timing Requirements
The American Rule holds that, in the absence of a statute to the contrary, U.S. courts do not award attorney’s fees as damages.6 However, lots of statutes provide to the contrary7 —perhaps most importantly, 42 U.S.C. § 1988, which provides for fee-shifting in many civil rights cases.8 In those cases, the question becomes the following: When should prevailing parties seek fees? Since the Rules were amended in 1993,9 that question has been complicated by ambiguous language in Rule 54 regarding the timing and conditions under which fee motions may be brought, particularly following preliminary relief.10
In the fact-specific decision of Lackey v. Stinnie, the Court held that “[p]reliminary injunctions . . . do not conclusively resolve legal disputes[,]” and therefore “do not confer prevailing party status.”11 Lackey thus resolved the long-debated entitlement ambiguity under Rule 54,12 but it left unresolved the deadline ambiguity.
A. Lackey's Narrow Holding and Its Unresolved Implications
Lackey does not directly resolve the question of whether a plaintiff who obtains a preliminary injunction but does not seek fees immediately forfeits the right to recover those fees if he later wins a final judgment and files a timely fee petition under Rule 54(d)(2). Instead, Lackey only addresses whether obtaining a preliminary injunction qualifies a party as “prevailing” for purposes of §1988(b), holding that it does not.13 The issue is that Rule 54’s deadline is not necessarily tied to entitlement.
The Lackey Court reasoned that a preliminary injunction is a temporary measure that does not confer an enduring, merits-based victory.14 But the Court did not engage with the procedural question of whether the preliminary injunction constitutes a “judgment” under Rule 54(a) such that it would trigger the fourteen-day clock for attorney’s fees under Rule 54(d)(2).15 As a result, the Court’s ruling creates uncertainty about fee petition timing, leaving practitioners unclear whether they must file piecemeal motions after each preliminary ruling or may wait to seek all fees in a single petition after final judgment.
Complicating matters further, the Court’s past decisions provide little, if any, additional light on the subject. For example, White v. New Hampshire Department of Employment Security addressed a legitimate procedural gap—the absence of a clear deadline for post-judgment fee petitions—and rejected the lower court’s application of Rule 59(e)’s deadline, reasoning that such a requirement would not promote “judicial economy” or “finality.”16 The Court explained that imposing that deadline would lead practitioners to file fee petitions after “nearly every interim ruling,” unsure what would qualify as a “final judgment[]” under the statute; it further emphasized that district courts retain discretion and procedural tools to avoid undesirable “piecemeal appeals” and to ensure that fee issues are resolved in conjunction with the merits.17
However, when Rule 54 was subsequently amended to address deadline concerns,18 the drafters made a critical definitional choice that undermined the very concerns the Court identified in White. By defining “judgment” broadly to include appealable interlocutory orders, including preliminary injunctions, the rule entrenched a system in which fee petitions may be filed at multiple stages throughout the litigation process.19 This approach is in tension with White’s underlying indication that piecemeal fee litigation should be avoided in favor of a more streamlined, post-final-judgment approach.20 The result is a notable irony: a rule amendment designed to solve a timing problem has instead reinforced the fragmentation concerns that White warned against.21
An illustration will help. Imagine a plaintiff seeking an injunction for a First Amendment violation. This hypothetical plaintiff makes all the right moves: she (1) obtains a preliminary injunction; (2) refrains from seeking fees at the preliminary injunction stage because she is not yet a prevailing party under Lackey; (3) obtains a final judgment in her favor; and (4) then seeks fees within fourteen days of the final judgment. But now imagine a shrewd defendant. He pulls out his copy of the Federal Rules of Civil Procedure, blows off the dust, and flips to Rule 54(a). Realizing that a judgment “includes a decree and any order from which an appeal lies,”22 he argues that the plaintiff cannot recover for the preliminary injunction portion of her fees, because the preliminary injunction was a “judgment” under Rule 54(a) and she did not seek fees within fourteen days.23 In other words, he tells the court she is only entitled to all of the fees incurred after the preliminary injunction, with the earlier portion being forfeited.24
As White hinted, all this could be avoided if there were some principle that all fees incurred throughout the case are rolled into one final, timely fee petition—similar to how all of a district court’s orders at any stage of the case can be rolled into one final, timely appeal.25 Unfortunately, such a widely recognized principle does not seem to exist.26 That is why Rule 54 needs clarification. Without modification, Rule 54 creates a procedural trap: plaintiffs must choose between seeking fees prematurely (risking denial under Lackey’s prevailing-party standard) or waiting for final judgment (risking forfeiture under a rigid application of Rule 54(a)).
The best solution would be to establish a mechanism similar to appellate procedure, where interlocutory rulings can be consolidated into a single final appeal.27 Achieving this would require amending Rule 54 to create a deferral mechanism that allows parties to preserve their right to seek fees for all work performed throughout the litigation until a final determination of prevailing party status.
B. A Proposed Amendment to Harmonize Timing and Entitlement
The Lackey Court’s ruling highlights the need for clearer guidance in Rule 54(d) of the Federal Rules of Civil Procedure. By confirming that preliminary injunction recipients are not prevailing parties, Lackey implicitly discourages early fee petitions.28 Yet, the Court provided no guidance on whether Rule 54(d)’s fourteen-day deadline applies to preliminary injunctions, leaving this critical timing question unresolved. Codifying a mechanism that allows parties to defer the fee deadline until after a final judgment would resolve this uncertainty, align fee awards with case outcomes, and reduce unnecessary litigation expenses. Such an amendment would also build on Lackey’s prevailing-party holding, creating a more consistent and predictable process for handling fee motions at the conclusion of a case.
The Advisory Committee should therefore propose an amendment to Rule 54 to establish a clear procedure allowing parties to (i) move to defer attorney’s fee determinations until trial completion, (ii) separate the merits phase from the fee determination phase, and (iii) preserve the right to seek fees while prioritizing substantive issues during trial. However, rather than broadly redefining “judgment” in Rule 54(a)—which would have far-reaching effects on other interlocutory orders beyond preliminary injunctions29 —the amendment should instead create a mechanism for handling fee timing in cases involving preliminary relief. To achieve these ends, this Essay proposes amending Rule 54 as follows:
Rule 54. Judgment; Costs
(d) Costs; Attorney's Fees.
(2) Attorney's Fees.
(B)
Such an amendment would reduce procedural complexity and ensure uniform practice across circuits. By clarifying Rule 54(d), the Advisory Committee can prevent the confusion and potential litigation traps currently faced by parties seeking attorney’s fees following preliminary injunctions. This aligns with both the American Rule32 and Lackey’s emphasis on “judicial economy.”33
In the absence of such an amendment, attorneys who secure preliminary injunctions post-Lackey face a stark choice: go all-in and pursue fees immediately—potentially at the client’s expense—or wait until the case concludes and risk forever waiving their claim.
II. The Costs of Procedural Ambiguity in Civil Rights Litigation
Some may argue that Federal Rule of Civil Procedure 54 already allows for (or at least does not prohibit) fee motion deferrals if requested by counsel, making additional rules unnecessary. However, reliance on judicial discretion creates variability across jurisdictions, which can disadvantage plaintiffs and increase litigation costs due to inconsistent interpretations of “judgment” for fee purposes. This inconsistency also incentivizes forum shopping, as parties may seek out courts more likely to apply the rules favorably. While motion deferrals, local rules, and existing case law provide some guidance, they do not resolve the underlying ambiguity—and they certainly do not serve the “judicial economy” interest highlighted in Lackey.34 Only a standardized rule can remove this uncertainty, reduce unnecessary litigation, and prevent strategic forum shopping by providing clear, predictable guidance across all jurisdictions.
A. Circuit Splits and Inconsistent Applications
This ambiguity is not merely theoretical. Courts have repeatedly confronted situations where the timing of attorney’s-fee motions following preliminary injunctions created uncertainty. It often arises in cases deemed moot because the prevailing parties in such cases are typically most eager to recover fees for work performed through the preliminary injunction phase. For example, in Maryville Baptist Church v. Beshear, Chief Judge Sutton held that a church challenging Kentucky’s COVID-19 emergency orders was not entitled to attorney’s fees even though it had obtained a preliminary injunction.35 Similar to Lackey, the case became moot when the Governor’s executive orders were lifted. 36 The court concluded that once a case becomes moot, the prospect of recovering attorney’s fees disappears as well.37
Yet, the uncertainty persists even when cases do not become moot. In Spirit Lake Tribe v. Jaeger, the plaintiffs sought and obtained a preliminary injunction, and the Eighth Circuit held that the district court’s order triggered the fourteen-day deadline for filing a motion for attorney’s fees under Federal Rule of Civil Procedure 54.38 Although the plaintiff missed the deadline, the court “conclude[d] that the district court did not abuse its discretion” in finding the delay “was the result of excusable neglect.”39 But even though the court excused the late filing, the case highlights how the current ambiguity can jeopardize fee recovery even when the parties have achieved a favorable interlocutory ruling.40 Some parties in other circuits have been less fortunate, losing their right to fees entirely when they miss deadlines.41
A notable example comes from litigation involving the Freedom of Information Act (“FOIA”) and Privacy Act, where timing and the nature of relief can create uncertainty for attorney’s-fee motions. In Mobley v. Department of Homeland Security, the plaintiffs filed successive motions for preliminary injunctions to compel processing of their FOIA and Privacy Act requests, but received no records before voluntarily dismissing the action.42 Over six months later, they filed a motion for attorney’s fees, claiming they had “substantially prevailed” under the FOIA’s catalyst theory.43 The court rejected this, holding that the plaintiffs had neither obtained the essential relief sought nor met the conditions Congress intended for fee-shifting.44 The court also deemed the petition untimely under Rule 54’s fourteen-day deadline, reasoning that dismissal constituted a final and appealable order.45
Like Spirit Lake, Mobley highlights the practical risks of Rule 54 deadlines intersecting with non-final or interlocutory actions and underscores the need for a standardized rule clarifying when fee motions may be filed. These timing questions remain unresolved even after Lackey.
B. Real-World Consequences for Legal Practice
Recent developments highlight additional reasons for a standardized rule: judicial efficiency.46 In Fayetteville Public Library v. Crawford County, the Arkansas Attorney General’s Office was challenging the Plaintiff’s claim for attorney’s fees, raising questions about Spirit Lake’s application post-Lackey.47 Plaintiffs argued that Lackey “undercut[]” Spirit Lake because only litigants who obtain a prevailing party status have a basis for filing a fee petition.48 The Arkansas Attorney General countered that the Eighth Circuit in Spirit Lake had already rejected this argument,49 emphasizing that the fourteen-day deadline was based on the word “judgment” in Rule 54, not prevailing-party status under Lackey.50
The court in Fayetteville disagreed with the Attorney General. Instead, it read procedural mechanics into Lackey:
[B]oth sets of Defendants argue that the Court should strike any request for fees and costs that Plaintiffs’ counsel incurred prior to the entry of the preliminary injunction order. In Defendants’ view, Plaintiffs qualified as “prevailing parties” under § 1988 when preliminary relief was granted, which meant they were obligated to file a motion for fees within fourteen days or lose the opportunity to claim those fees forever. This “gotcha” argument is entirely specious, as earlier this year, the Supreme Court made abundantly clear that “prevailing party status does not depend upon the degree of success at different stages of the suit, but whether, at the end of the suit, or other proceeding, the party who has made a claim against the other, has successfully maintained it.” Therefore, “[a] preliminary injunction, which temporarily preserves the parties’ litigating positions based in part on a prediction of the likelihood of success on the merits, does not render a plaintiff a ‘prevailing party’” under § 1988(b). Only “when a court conclusively resolves [a plaintiff’s] claim by granting enduring relief on the merits” is he entitled to the recoupment of his fees and costs.51
Interesting. Although the Fayetteville court reached the same result as it would under the proposed amendment, it had to engage in judicial gap-filling to resolve an ambiguity that should not exist. The court essentially had to reason backwards from Lackey’s policy to fill a procedural void that the Rules themselves created. The proposed amendment would eliminate this kind of ad hoc interpretation.
Moreover, the court called the argument “entirely specious.”52 The problem is such categorization is a policy judgment, not a textual interpretation of Rule 54. Different judges in different circuits might reach different conclusions about how “specious” the argument really is.53 Further, the fact that the Arkansas Attorney General’s office thought this argument was worth pressing suggests it may not be as “specious” as the court claims. More importantly, though, cautious attorneys cannot build their practice around hoping judges will be reasonable. Technical deadline enforcement could create serious problems, including forum shopping, as defendants seek out jurisdictions or judges more likely to strictly apply these requirements.
The very fact that the Attorney General and the Court devoted significant time to this dispute underscores the problem: procedural ambiguities are generating unnecessary litigation that a simple rule clarification could eliminate. Yet the issue remains unsettled. Neither the Eighth Circuit nor the Supreme Court has provided guidance, and the Eighth Circuit’s existing precedent appears to point in the opposite direction from Fayetteville.54 The Attorney General’s analysis of Spirit Lake is very persuasive: the fourteen-day deadline is derived from Rule 54’s definition of “judgment,” not the “prevailing party” status at issue in Lackey.55 Needless to say, having to litigate such arguments at all undermines Lackey’s rationale of conserving judicial resources56—precisely the kind of waste the Advisory Committee should act to prevent.
The proposed amendment would not alter outcomes in well-reasoned cases like Fayetteville; rather, it would align Rule 54 with the aims expressed in Rule 1.57 In sum, an amendment would eliminate the need for courts and litigants to engage in ad hoc gap-filling, ensuring that fee disputes are resolved in a “just, speedy, and inexpensive” manner.58
Conclusion
Rule 54(d)(2) was meant to simplify fee practice, not trap parties in a procedural paradox. Today, the combination of a plain reading of Rule 54 and Lackey leaves litigants in a high-stakes guessing game: file now and risk dismissal, wait and risk waiver. That trap serves neither judicial economy nor fairness. A clear mechanism for awarding attorney’s fees after a final judgment would eliminate needless collateral litigation, prevent forum-shopping, and restore coherence to fee practice. While emerging precedent may gradually move toward consolidated fee determinations, the Advisory Committee should act proactively to establish clear procedures rather than leaving litigants to navigate uncertain timing requirements, especially as injunctive relief becomes more common.59
Clarifying Rule 54 would not only harmonize doctrine with common sense but also ensure that litigants—particularly those in civil rights cases—are not penalized for failing to anticipate a procedural technicality. Such penalties can take the form of denied attorney’s fees or additional costs incurred simply to litigate the issue. In the narrow but significant areas of litigation where the American Rule yields to the interests of justice, clarity is essential to ensure that justice is accessible to all, and not just to those who can afford it.
*Philip White is a 3L at the Regent University School of Law and future clerk on the U.S. Court of Federal Claims. He was previously a legal intern at the Becket Fund for Religious Liberty. Currently, he serves as Notes & Comments Editor for the Regent University Law Review and as an Editor for the Harvard Journal of Law & Public Policy. The Author wishes to thank his wife, Hannah White, for her unwavering love and support. He also thanks his parents, Drs. Stephen and Cynthia White, for their support. Finally, the Author wants to thank Joseph Davis, Senior Counsel at the Becket Fund, for his feedback and guidance in the writing of this Essay. All errors are the Author’s own.
1145 S. Ct. 659, 667 (2025).
2See Fed. R. Civ. P. 54(d)(2)(A)–(B)(i) (“Unless a statute or a court order provides otherwise, the motion must . . . be filed no later than 14 days after the entry of judgment . . . . ” (emphasis added)).
3See Fed. R. Civ. P. 54(d)(2)(B)(i); Fed. R. Civ. P. 54(a) (“‘Judgment’ as used in these rules includes a decree and any order from which an appeal lies.”); 10 Wright & Miller’s Federal Practive & Procedure § 2680 n.5 (4th ed. 2025) (“The entry of an order granting a preliminary injunction constitutes an ‘entry of judgment’ triggering the deadline to move for attorney’s fees under Rule 54. Preliminary injunctions are orders from which an appeal lies . . . .”).
4Cf., e.g., White v. N.H. Dep’t of Emp. Sec., 455 U.S. 445, 452–53 (1982) (indicating that rigid attorney’s fee deadlines can yield “harsh and unintended consequences,” particularly in civil rights cases involving interim relief); Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1146–47 (10th Cir. 2013) (determining that a preliminary injunction was appropriate to protect against impending irreparable harm on plaintiff’s religious exercise), aff’d sub nom., Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); Richard F. Richards, Preliminary Relief in Employment Discrimination Cases, 66 Ky. L.J. 39, 40 (1977) (explaining that preliminary relief in employment discrimination cases may be more thorough than final relief, preventing additional loss during litigation); Kaitlan Donahue, Note, Preliminary Injunctions Prevail Through the Winter of Buckhannon, 188 Nw. U.L. Rev. 1633, 1660–61 (2024) (explaining that preliminary injunctions are “necessary to protect equal access” to “civil rights” actions).
5See Lackey, 145 S. Ct. at 680–81 (Jackson, J., dissenting) (indicating that failing to allow fees for interim victories may discourage legal advocates from pursuing civil rights actions and “make private civil rights enforcement harder to achieve”); cf. Catherine R. Albiston & Laura Beth Nielsen, The Procedural Attack on Civil Rights: The Empirical Reality of Buckhannon for the Private Attorney General, 54 UCLA L. Rev. 1087, 1091–92 (2007) (explaining that the defendant’s strategic maneuvers to avoid fee petitions by mooting plaintiffs’ cases may ultimately “deter attorneys” from taking the cases, thereby undermining plaintiffs’ ability to enforce their rights).
6See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 602 (2001); see also Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306, 306 (1796) (noting that awarding attorney’s fees was contrary to typical practice in the United States, a practice that could be altered by statute).
7See Aaron Bartholomew & Sharon Yamen, Businesses Beware: The Changing Face of Attorney-Fee Awards in U.S. Courts, 13 Am. U. Bus. L. Rev. 1, 11 (2024) (“[T]here are so many exceptions to the American Rule that one wonders about the effectiveness of the rule in the first instance.”).
8See 42 U.S.C. § 1988(b) (allowing courts in various civil rights proceedings to award attorney’s fees to the prevailing party).
9 Fed. R. Civ. P. 54(d)(2)(B) advisory committee’s note to 1993 amendment (noting the newly added deadline for motions for attorney’s fees).
10Even though the Committee references “final” judgment in their notes, that is not what made it into the final draft. Compare Fed. R. Civ. P. 54(d)(2)(B) advisory committee’s note to 1993 amendment (“Subparagraph (B) provides a deadline for motions for attorneys’ fees—14 days after final judgment unless the court or a statute specifies some other time.” (emphasis added)), with Fed. R. Civ. P. 54(a) (“‘Judgment’ as used in these rules includes a decree and any order from which an appeal lies.” (emphasis added)). Neither the committee notes nor the rule explain how preliminary relief may impact the equation. See Fed. R. Civ. P. 54(a); Fed. R. Civ. P. 54(d)(2)(B) advisory committee’s note to 1993 amendment.
11Lackey, 145 S. Ct. at 667. In Lackey, Virginia drivers successfully obtained a preliminary injunction stopping enforcement of a statute that suspended licenses for unpaid court fines. Id. at 664. However, after Virginia repealed the law making the case moot, the drivers were denied attorney’s fees. Id. at 664, 671.
12See, e.g., Reply Brief for Petitioner at 7–8, Harris County v. Staley, 552 U.S. 1038 (2007) (No. 07-100), 2007 WL 3022775 (urging the Supreme Court to grant certiorari to address the availability of attorneys’ fees for a preliminary success mooted while on appeal); Hensley v. Eckerhart, 461 U.S. 424, 433–34 (1983) (explaining that the question of which plaintiffs count as “prevailing parties” was a “standard . . . [that] has been framed in various ways”); Donahue, supra note 4, at 1636 (“The Supreme Court’s vague, piecemeal definitions of ‘prevailing party’ have complicated the legal landscape and caused more uncertainty for potential plaintiffs. . . . [T]he Court [has] declined to answer a[n] important question: Is a plaintiff a prevailing party if their case is mooted after obtaining a preliminary injunction?”).
13Lackey, 145 S. Ct. at 671.
14See id. at 667–68.
15See id. at 664–71 (addressing whether the plaintiffs were prevailing parties but not evaluating the interaction between preliminary injunctions and Rule 54(d)(2)).
16See 455 U.S. 445, 452–54 (1982) (rejecting the application of Rule 59(e)’s deadline to post-judgment fee petitions). See generally Fed. R. Civ. P. 59(e) (“A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.”). The Court of Appeals applied Rule 59(e) as if fee requests were part of the final judgment, but the Supreme Court rejected that view, holding that fee motions are collateral and not governed by Rule 59(e). See White, 455 U.S. at 452.
17See White, 455 U.S. at 452–54.
18See Fed. R. Civ. P. 54(d)(2)(B) advisory committee’s note to 1993 amendment (adding a deadline for motions for attorney’s fees).
19See Fed. R. Civ. P. 54(a) (“‘Judgment’ as used in these rules includes a decree and any order from which an appeal lies. A judgment should not include recitals of pleadings, a master’s report, or a record of prior proceedings.” (emphasis added)).
20But cf. White, 455 U.S. at 454 (“[T]he district courts generally can avoid piecemeal appeals by promptly hearing and deciding claims to attorney’s fees. Such practice normally will permit appeals from fee awards to be considered together with any appeal from a final judgment on the merits.”).
21See id. at 453 (“If [the deadline rule] were applicable, counsel would forfeit their right to fees if they did not file a request in conjunction with each ‘final’ order. . . . [L]awyers predictably would respond by entering . . . motions . . . with nearly every interim ruling.”); see, e.g., Fayetteville Pub. Libr. v. Crawford Cnty., No. 5:23-cv-5086, 2025 WL 1462573, at *3 (W.D. Ark. May 21, 2025) (providing the defendants’ argument that the court should deny attorneys’ fees to the plaintiffs for any work performed before it granted them a preliminary injunction because they did not petition for attorneys’ fees within fourteen days of the decision granting the preliminary injunction).
22Fed. R. Civ. P. 54(a).
23See 10 Wright & Miller's, supra note 3, at § 2680 n.5 (“[A] preliminary injunction constitutes an ‘entry of judgment’ triggering the 14-day deadline to move for attorney’s fees under Rule 54.”).
24For a comparable real-life scenario, see Spirit Lake Tribe v. Jaeger, 5 F.4th 849, 852–55 (8th Cir. 2021).
25See 455 U.S. at 454 (noting that district courts can avoid “piecemeal” appeals by promptly resolving fee motions so they can be appealed with the final judgment); cf. Fed. R. App. P. 3 advisory committee’s note to 2021 amendment (“Designation of the final judgment confers appellate jurisdiction over prior interlocutory orders that merge into the final judgment.”).
26Contrast Fayetteville Pub. Libr. v. Crawford Cnty., No. 5:23-cv-5086, 2025 WL 1462573, at *3 (W.D. Ark May 21, 2025) (indicating fee entitlement arises only at final resolution, not during ongoing litigation), with Cognitive Edge Pte Ltd. v. Code Genesys, LLC, 2021 WL 4477434, at *3 (D. Mass. Sep. 30, 2021) (explaining that, “[w]hen attorneys’ fees are a collateral matter,” Rule 54(d)(2) requires attorney’s fee claims to be made by a motion within fourteen days after entry of judgment), and 10 Wright & Miller's, supra note 3, at § 2680 n.5 (“[A] preliminary injunction constitutes an ‘entry of judgment’ triggering the 14-day deadline to move for attorney’s fees under Rule 54.”). However, the Justices’ questions during Lackey’s oral arguments revealed some relevant insights on this point. For example, Justice Jackson seems to believe a preliminary injunction can confer prevailing party status but that the actual award of fees should happen when the case is over. See Transcript of Oral Argument at 74–76, Lackey v. Stinnie, 145 S. Ct. 659 (2025) (No. 23-621). Chief Justice Roberts and Justice Gorsuch also seemed inclined to defer fee awards until final judgment. Id. at 73–74, 81–82. These comments suggest some support for consolidated fee determinations rather than piecemeal awards throughout litigation. However, supporting consolidated awards in principle does not resolve the Rule 54(d)(2)(B) deadline problem.
27Cf. Fed. R. App. P. 3 advisory committee’s note to 2021 amendment (“Designation of the final judgment confers appellate jurisdiction over prior interlocutory orders that merge into the final judgment.”).
28See Lackey, 145 S. Ct. at 671 (“A preliminary injunction . . . does not render a plaintiff a ‘prevailing party.’”).
29Take, for example, a victory before an administrative law judge. See Augustyn v. Wall Twp. Bd. of Educ., 139 F.4th 252, 257 (3d Cir. 2025). In Augustyn, the court addressed whether a “plaintiff who vindicates a statutory right under the Individuals with Disabilities Education Act . . . is a prevailing party entitled to collect attorneys’ fees, irrespective of whether that right is substantive or procedural.” Id. The Third Circuit held that the plaintiff was a prevailing party and distinguished Lackey by reasoning that the plaintiff’s victory before an administrative law judge “‘vindicated [her] right’ to a due process hearing, [won] relief on the merits of her statutory claim that is ‘permanent’ and ‘cannot be nullified later,’ and compel[led] the Board to proceed in that statutorily prescribed forum.” Id. at 259 (first alteration in original) (quoting H.E. v. Walter D. Palmer Leadership Learning Partners Charter Sch., 873 F.3d 406, 413 (3d Cir. 2017)). “Thus, unlike the plaintiffs in Lackey, the relief awarded here resulted in a ‘change in the legal relationship between the parties’ that is both ‘enduring’ and ‘judicially sanctioned.’” Id. (quoting Lackey, 145 S. Ct. at 669).
30Proposed Committee Note: This amendment addresses the application of Rule 54(d)(2)’s fourteen-day deadline in cases involving preliminary or interim relief. It clarifies that the deadline for filing a motion for attorney’s fees runs from the entry of final judgment resolving the action, rather than from the entry of preliminary or interim orders.
New subdivision (d)(2)(C) establishes a procedure for parties who obtain preliminary or interim relief to preserve claims for attorney’s fees. A party seeking fees related to such relief must file a notice of intent within 14 days after entry of the preliminary or interim order. Filing the notice defers determination of any related fee request until final judgment, unless the court orders otherwise.
This procedure is intended to reduce uncertainty concerning the timing of fee motions and to avoid unnecessary or premature fee litigation while the merits remain pending. It also permits courts to manage fee issues in conjunction with the resolution of the action, while retaining discretion to consider interim fee requests in appropriate circumstances.
Filing a notice under subdivision (d)(2)(C) does not establish that the party is a “prevailing party” for purposes of any fee-shifting statute.
31See generally Fed. R. Civ. P. 54 (providing the text to follow the suggested amendment).
32Cf. Arcambel v. Wiseman, 3 U.S. 306, 306 (1796) (rejecting a lower court’s inclusion of attorney’s fees as damages, emphasizing that the general practice in the United States does not permit such awards absent statutory authorization); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717–18 (1967) (“[S]ince litigation is at best uncertain[,] one should not be penalized for merely defending or prosecuting a lawsuit[.] . . . [T]he poor might be unjustly discouraged from instituting actions to vindicates their rights if the penalty . . . included the fees of their opponents’ counsel.”).
33See Lackey, 145 S. Ct. at 669 (“The rule we establish today also serves the interests of judicial economy. A straightforward, bright-line rule is easy to administer, reducing the risk of ‘a second major litigation’ over attorney’s fees.” (citation omitted)).
34See id. (explaining that the Court’s holding—that a party receiving a preliminary injunction is not a prevailing party—serves “the interests of judicial economy” by establishing a “bright-line rule”).
35See 132 F.4th 453, 454 (6th Cir. 2025).
36See Maryville Baptist Church, 132 F.3d at 454 (explaining that the case became moot); Maryville Baptist Church, Inc. v. Beshear, 977 F.3d 561, 562–63 (6th Cir. 2020) (explaining that the Governor lifted the religious services ban); cf. Lackey, 145 S. Ct. at 664 (“The District Court preliminarily enjoined the Commissioner from enforcing the statute. But before the case reached final judgment, the Virginia General Assembly repealed the challenged law, rendering the action moot.”).
37See Maryville Baptist Church, 132 F.3d at 456.
385 F.4th 849, 852–53 (8th Cir. 2021) (“This case first presents the question whether the entry of an order granting a preliminary injunction constitutes an ‘entry of judgment’ triggering the fourteen-day deadline to move for attorney’s fees under Federal Rule of Civil Procedure 54. We conclude that it does.”).
39Id. at 854–55.
40Cf. id. at 855 (explaining that “[t]he advisory committee note to Rule 54 . . . muddied the waters by describing the relevant triggering event as the entry of ‘final judgment,’ despite the rule’s use of the term ‘judgment[]’”).
41See, e.g., Mobley v. DHS, 908 F. Supp. 2d 42, 45, 47, 49 (D.D.C. Dec. 10, 2012) (determining that plaintiff’s petition for attorney’s fees was untimely for failure to file within fourteen days after a final, appealable order, and denying the petition after determining that the party had not substantially prevailed); IPXL Holdings, LLC v. Amazon.com, Inc., 430 F.3d 1377, 1384–85 (Fed. Cir. 2005) (determining that a fee filed three days after the expiration of the fourteen-day deadline under Rule 54 was untimely, and denying fees because there was no basis for exercising judicial discretion to expand the typical deadline).
42See 908 F. Supp. 2d 42, 44, 47 (D.D.C. Dec. 10, 2012) (indicating that, although the department eventually agreed to process the plaintiffs’ requests, the plaintiffs received no records).
43See id. at 44, 47.
44See id. at 48–49.
45Id. at 45.
46See, e.g., Lackey v. Stinnie, 145 S. Ct. 659, 669 (2025) (“The rule we establish today . . . serves the interests of judicial economy. A straightforward, bright-line rule is easy to administer . . . .”); Fed. R. Civ. P. 1 (“These rules . . . . should be construed, administered, and employed by the court . . . to secure the just, speedy, and inexpensive determination of every action and proceeding.”).
47See Fayetteville Pub. Libr. v. Crawford Cnty., No. 5:23-cv-05086, 2025 WL 1462573, at *1 n.1, *3 (W.D. Ark. May 21, 2025); Plaintiffs’ Brief in Support of Their Motion for Attorneys’ Fees and Costs at 2, Fayetteville Pub. Libr., No. 5:23-cv-05086, 2025 WL 1462573; Response in Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Costs at 2, Fayetteville Pub. Libr., No. 5:23-cv-05086, 2025 WL 1462573 (“The Eighth Circuit’s holding [in Spirit Lake Tribe v. Jaeger] was clear: ‘[T]he entry of a preliminary injunction triggers the fourteen-day deadline [in Federal Rule of Civil Procedure 54] to move for attorney’s fees, unless a statute or court order provides otherwise. . . . The Plaintiffs’ failure to file a timely motion for attorneys’ fees left the Defendants unaware of the scope of fees the Plaintiffs would seek.”) (quoting Spirit Lake Tribe v. Jaeger, 5 F.4th 849, 853 (8th Cir. 2021)).
48See Plaintiffs’ Reply Brief in Support of Their Motion for Attorneys’ Fees and Costs at 2, Fayetteville Pub. Libr., No. 5:23-cv-05086, 2025 WL 1462573 (“Under Lackey, Plaintiffs here did not become a prevailing party until the Court issued its final judgment. This new reality undercuts Spirit Lake’s holding that a plaintiff must file a fee petition fourteen days after obtaining a preliminary injunction.”).
49Surresponse in Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Costs at 2, Fayetteville Pub. Libr., No. 5:23-cv-05086, 2025 WL 1462573. The Arkansas Attorney General explained that Spirit Lake explicitly states: “[A] plain reading of Rule 54 shows that the entry of a preliminary injunction triggers the fourteen-day deadline to move for attorney’s fees, unless a statute or court order provides otherwise.” Id. at 2–3 (quoting Spirit Lake, 5 F.4th at 853). The plaintiffs also conceded that Lackey did not disturb the logic underlying Spirit Lake. See Plaintiffs’ Reply Brief in Support of Their Motion for Attorneys’ Fees and Costs, supra note 48, at 2.
50See Surresponse in Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Costs, supra note 49, at 2 (“Spirit Lake’s holding that the 14-day deadline to file a motion for fees applies to preliminary-injunction orders is unrelated to prevailing-party status . . . .”).
51Fayetteville Pub. Libr., 2025 WL 1462573, at *3 (quoting Lackey, 145 S. Ct. at 667, 671).
52Id. See generally Specious, Black's Law Dictionary (12th ed. 2024) (“Falsely appearing to be true, accurate, or just[.]”); Specious,Cambridge Dictionary, https://dictionary.cambridge.org/dictionary/english/specious (last visited Mar. 12, 2026) (on file with the Regent University Law Review) (“[S]eeming to be right or true, but really wrong or false.”).
53Contrast Mobley v. DHS, 908 F. Supp. 2d, 42, 49 (D.D.C. 2012) (denying “untimely” fee petition without considering equitable factors), with Spirit Lake, 5 F.4th at 854–55 (applying “excusable neglect” standard to excuse an untimely Rule 54 motion, suggesting that untimeliness may be overcome by judicial discretion).
54Contrast Spirit Lake, 5 F.4th at 853 (explaining that preliminary injunctions “are orders from which an appeal lies,” and thus “a plain reading of Rule 54 shows that the entry of a preliminary injunction triggers the fourteen-day deadline to move for attorney’s fees . . . .”), with Fayetteville Pub. Libr., No. 5:23-cv-05086, 2025 WL 1462573, at *3 (relying on Lackey to claim that a preliminary injunction does not render someone a prevailing party and therefore entitled to fees).
55See Surresponse in Opposition to Plaintiffs’ Motion for Attorneys’ Fees and Costs, supra note 49, at 2.
56See Lackey, 145 S. Ct. at 669.
57Cf. Fed. R. Civ. P. 1 (“These rules govern the procedure in all civil actions . . . [t]hey should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” (emphasis added)).
58Id.
59See Nirav N. Desai et al., A Look at US Injunctive Relief Trends Amid UPC Chatter, Sterne Kessler (Aug. 2, 2023), https://www.sternekessler.com/news-insights/publications/look-us-injunctive-relief-trends-amid-upc-chatter/ (on file with the Regent University Law Review) (showing “a recent uptick in both the number of motions for preliminary injunctions as well as the frequency that these motions are granted” in certain types of cases).