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2026 Regent L. Rev. Online 1 (2026)

handle is hein.journals/regunlwre2026 and id is 1 raw text is: THE EARLY BIRD'S BURDEN: ATTORNEY'S FEES IN THE AGE OF PRELIMINARY INJUNCTIONS By 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 plaintiffs 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 * 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. 1 145 S. Ct. 659, 667 (2025).