Wynn v. Vilsack

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

SCOTT WYNN, an individual,

Plaintiff,

v. Case No. 3:21-cv-514-MMH-LLL

THOMAS J. VILSACK, in his

official capacity as U.S. Secretary of

Agriculture and ZACH

DUCHENEAUX, in his official

capacity as Administrator, Farm

Service Agency,

Defendants.

ORDER

THIS CAUSE is before the Court on the Report & Recommendation (Doc.

110; Report) entered by the Honorable Laura Lothman Lambert, United States

Magistrate Judge, on August 8, 2023. In the Report, Judge Lambert

recommends that the Court deny Plaintiff’s Motion for Attorney Fees (Doc. 100;

Motion) filed October 12, 2022. Report at 1. Plaintiff Scott Wynn timely filed

his objections to the Report on August 15, 2023. See Plaintiff’s Objections to

Magistrate Judge’s Report and Recommendations (Doc. 111; Objections).

Defendants (collectively, “the Government”) have responded to the Objections.

See Defendants’ Response to Plaintiff’s Objections (Doc. 112; Response), filed

August 29, 2023. Accordingly, the matter is ripe for review.

I. Standard of Review

The Court “may accept, reject, or modify, in whole or in part, the findings

or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b).

Pursuant to Rule 72, the Court “must determine de novo any part of the

magistrate judge’s disposition that has been properly objected to.” See Rule

72(b)(3); see also 28 U.S.C. § 636(b)(1). However, a party waives the right to

challenge on appeal any unobjected-to factual and legal conclusions. See 11th

Cir. R. 3-1. As such, the Court reviews those portions of the Magistrate Judge’s

findings to which no objection was filed for plain error and only if necessary, in

the interests of justice. See id.; see also Thomas v. Arn, 474 U.S. 140, 150

(1985) (“It does not appear that Congress intended to require district court

review of a magistrate [judge’s] factual or legal conclusions, under a de novo or

any other standard, when neither party objects to those findings.”); Dupree v.

Warden, 715 F.3d 1295, 1304–05 (11th Cir. 2013) (recommending the adoption

of what would become 11th Circuit Rule 3-1 so that district courts do not have

“to spend significant amounts of time and resources reviewing every issue—

whether objected to or not.”).

II. Discussion

In his Motion, Wynn seeks to recover attorney fees and expenses

pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”).

Motion at 1. Judge Lambert recommends that the Court deny the Motion on

the grounds that Wynn is not a “prevailing party” for purposes of the EAJA, or,

alternatively, because the Government’s position was substantially justified.

See Report at 13. Upon independent review of the record and for the reasons

that follow, the Court will adopt the portion of the Report in which Judge

Lambert concludes that Wynn is not a prevailing party under the EAJA. As

such, the Court need not reach—and thus does not address—the Report’s

conclusion that the Government’s position was substantially justified.

Because the Court finds that the Objections are due to be overruled and

the Report adopted as the Court’s opinion with respect to the determination

that Wynn is not a prevailing party, the Court will not repeat the factual and

procedural history or the arguments and authority addressed in the Report on

that issue. Instead, the Court writes briefly only to address Wynn’s specific

objections to the recommendation that he is not a prevailing party under the

EAJA.

In the Objections, Wynn contends that Judge Lambert “failed to follow

Eleventh Circuit precedent, under which ‘a preliminary injunction on the

merits entitles one to prevailing party status.’” Objections at 5 (emphasis in

original) (quoting Common Cause Ga. v. Georgia, 17 F.4th 102, 107 (11th Cir.

2021)). According to Wynn, “when a preliminary injunction is based on a

likelihood of success on the merits and is not ‘undone or superseded by a later

ruling in the case,’” the plaintiff who obtained the injunction is a prevailing

party. Id. (citing Melendez v. Dixon, No. 3:20-cv-1023-BJD-JBT, 2022 WL

4120016, at *4 (M.D. Fla. Sept. 9, 2022)). Wynn argues that the Report

wrongly ignores the fact that he obtained a “preliminary injunction [that] was

based on the strength of the merits” of his claims. Id. at 5. The fundamental

problem with Wynn’s argument is that it conflates the Court’s finding of a

strong likelihood of success on the merits—a requirement for obtaining a

preliminary injunction—with Wynn’s receipt of “relief on the merits” of his

claim.1 See Smalbein v. City of Daytona Beach, 353 F.3d 901, 905 (11th Cir.

2003) (emphasis added). As noted in the Court’s Order, “[a] district court may

grant a preliminary injunction only if the moving party establishes that: (1) [he]

has a substantial likelihood of success on the merits . . . .” Order (Doc. 41;

Injunction Order) at 4 (emphasis added) (quoting Gonzalez v. Governor of Ga.,

978 F.3d 1266, 1270–71 (11th Cir. 2020), and citing Siegel v. LePore, 234 F.3d

1 To the extent that the Court’s ruling may have provided Wynn with “the moral

satisfaction of knowing that a federal court concluded that his rights [likely] had been

violated,” the Supreme Court has noted that such “a judicial statement that does not affect

the relationship between the plaintiff and the defendant is not” sufficient to make that

plaintiff a prevailing party. See Hewitt v. Helms, 482 U.S. 755, 761–62 (1987) (reasoning

that “[t]he same moral satisfaction presumably results from any favorable statement of law

in an otherwise unfavorable opinion”).

1163, 1176 (11th Cir. 2000) (en banc)). Thus, every preliminary injunction

requires an assessment of the strength of the merits of the claim and a finding

that there is a substantial likelihood of success on the merits. Wreal, LLC v.

Amazon.com, Inc., 840 F.3d 1244, 1248 (11th Cir. 2016). Despite the fact that

showing a likelihood of success on the merits is required for any preliminary

injunction, Wynn makes no attempt to square his contention that a

“preliminary injunction on the merits entitles one to prevailing party status”

with his concession that “preliminary injunctions do not always confer

prevailing party status.” See Objections at 6–7. Instead, he argues that he

obtained relief on the merits because the “injunction ‘materially alter[ed] the

legal relationship between the parties by modifying the defendant’s behavior in

a way that directly benefit[ed]’” Wynn. Objections at 6 (quoting Lefemine v.

Wideman, 568 U.S. 1, 4 (2012)).2 He explains that the injunction materially

altered the relationship because the Government was no longer “positioned to

imminently violate Mr. Wynn’s constitutional right to equal protection.” Id. at

6. But the Court’s Injunction Order did not alter the legal relationship

between the parties, it merely preserved the status quo. See Injunction Order

at 47 (describing the injunction as one “that [would] maintain the status quo

2 In citing Lefemine, Wynn appears to fail to recognize that the plaintiff there was a

prevailing party because he obtained a permanent injunction in his favor. Lefemine, 568 U.S.

at 3.

and provide [Wynn] the opportunity to obtain any relief at all” (emphasis

added)); id. at 49 n.19 (noting that this injunction did “not enjoin Defendants

from continuing to prepare to effectuate the relief under Section 1005 in the

event it is ultimately found to be constitutionally permissible”); see also Sole v.

Wyner, 551 U.S. 74, 85 (2007) (treating the stated scope of a preliminary

injunction as “controlling”). Notably, an injunction that merely preserves the

status quo, without more, will not “alter the legal relationship between the

parties” to justify an award of attorney’s fees under the EAJA. See Markham

v. Int’l Assoc. of Bridge, Structural, & Ornamental Iron Workers, 901 F.2d 1022,

1027 (11th Cir. 1990) (concluding that the plaintiff was not a prevailing party

because the preliminary injunction “merely preserved the status quo” and

therefore “did not alter the legal relationship between the parties”). So Wynn

is not a prevailing party based on the Court’s Injunction Order.

And the fact that the injunction remained in place until Defendant

repealed the objectionable statute does nothing to help Wynn’s claim to

prevailing-party status. In support of this argument, Wynn cites Common

Cause/Georgia v. Billups, 554 F.3d 1340, 1356 (11th Cir. 2009). Objections at

6. But he ignores that in Billups the court did not find the plaintiffs to be

prevailing parties merely because they obtained a preliminary injunction, it

only found them to be prevailing parties after finding that the injunction

materially altered the plaintiffs’ legal relationship with election officials.

Billups, 554 F.3d at 1356 (“The injunction prevented Georgia from enforcing the

requirement of photo identification for in-person voting.”).3 Accordingly,

Wynn’s objection is unavailing.

Next, Wynn states that binding Eleventh Circuit precedent, specifically

Markham, 901 F.2d at 1027, “stands for the proposition that preliminary relief

that is not based on the merits, but ‘merely preserved the status quo,’ does not

confer prevailing party status . . . .” Objections at 7. He argues that Judge

Lambert wrongly applied Markham, and attempts to distinguish it by asserting

that Markham involved an “injunction [that] was not based on the merits.” See

Objections at 7. Examination of the Markham decision reveals that Wynn is

mistaken. In Markham, a union’s general board placed its local union under a

trusteeship, suspending the local union’s regular meetings and control over its

3 In citing Billups, 554 F.3d at 1346–47, Wynn incorrectly suggests that a plaintiff is a

prevailing party whenever an “injunction remain[s] in place until the law is repealed.” See

Objections at 6, 8. In Billups, the preliminary injunction “materially altered [the plaintiffs’]

legal relationship with . . . election officials” by “prevent[ing] Georgia from enforcing the

requirement of photo identification for in-person voting.” Billups, 554 F.3d at 1356. This

remained true even after Georgia “repealed the law at issue” and replaced it with a less

restrictive law. Id. However, Wynn is not similarly situated to the voters in Billups. Those

voters were required to comply with a set of requirements before they could exercise their

existing rights, and the preliminary injunction eliminated those requirements. See id. In

other words, it “materially altered” the legal relationship between the parties. Id. But the

preliminary injunction in this case did not change Wynn’s legal relationship to the

Government. It simply “removed [an] imminent threat” to Wynn’s constitutional rights,

Objections at 6, in order to preserve the status quo until the merits of his claim could be fully

litigated. See Markham, 901 F.2d at 1027 (determining that a party was not a prevailing

party because “the preliminary injunction . . . merely preserved the status quo”); see also

Injunction Order at 47 (“This Court . . . is firmly of the view that a narrow injunction that

maintains the status quo in the specific circumstances of the plaintiff before the Court and

nothing more is the appropriate remedy.”).

assets until a union hearing could be held. See Markham, 901 F.2d 1022, 1024.

The district court granted injunctive relief after determining that, without a

union hearing, such a trusteeship was improper under the circumstances of the

case. See id. at 1024–25. Describing the district court’s findings, the Eleventh

Circuit explained that the injunction was not based “on Local 272’s

demonstrated ability to succeed on the merits of its claim that the trusteeship

was unjustified,” but rather “on the much narrower basis of Local 272’s claim

that, in the absence of an emergency, a trusteeship should not be imposed prior

to a full and fair hearing.” Id. at 1025. In other words, the preliminary

injunction simply addressed the plaintiff’s claim that the trusteeship was

legally premature. See id. And in issuing that injunction, the district court

appears to have found that Local 272 was likely to succeed on the merits of that

claim. See id. at 1024–25 (explaining that the “court specifically determined

that there was no emergency requiring imposition of the trusteeship prior to a

hearing”). Despite obtaining injunctive relief on the merits of that claim, the

preliminary injunction did not make Local 272 a prevailing party because its

“only purpose . . . was to prevent any harm to Local 272” until the merits of its

broader challenge could be evaluated. Id. at 1027; cf. Injunction Order at 47

(describing the necessity of an injunction to “maintain the status quo and

provide [Wynn] the opportunity to obtain any relief at all”). Contrary to

Wynn’s contention, Markham does not distinguish between preliminary

injunctions which are “based on the merits” of a plaintiff’s claim and those

which are “not based on the merits.”4 Objections at 7 (emphasis omitted).

Rather, Markham distinguishes between a preliminary injunction which

provides a plaintiff some form of substantive relief and one that “merely

preserve[s] the status quo.” Markham, 901 F.2d at 1027–28.

Wynn also contends that “nothing in the controlling case law” suggests

that the preliminary injunction must have entitled “Wynn to ‘expanded rights

or opportunities’ or allow[ed] him to perform some action that would have

otherwise been prohibited by the government” in order for him to be a prevailing

party. Id. at 8 (quoting Report at 11–12). This objection, too, is unavailing.

Judge Lambert did not suggest that precedent required such a specific showing.

Instead, she found that Wynn had not shown that he was a prevailing party

because he failed “to show a ‘material alteration of the legal relationship of the

parties in a manner which Congress sought to promote in the fee statute.’”

Report at 11 (citing Sole, 551 U.S. at 77). In doing so, she noted that the

preliminary injunction preserved the status quo but did not “materially alter

plaintiff’s relationship with the Government.” Report at 11–12; see also Sole,

551 U.S. at 82 (articulating the requirement that there be a material alteration

4 Again, the Court notes that any preliminary injunction requires a finding of a

likelihood of success “on the merits.” So it is not surprising that Wynn’s argument is

unavailing.

to the parties’ legal relationship). While she also correctly observed that Wynn

“did not receive debt relief or other expanded rights or opportunities,” things

which could have strengthened his argument, she did not suggest that such

specific relief was a requirement to achieve prevailing party status under the

EAJA.5 See Report at 12. As such, this objection warrants no relief.

For similar reasons, Wynn’s argument that the “Report relied far too

heavily on . . . Holman v. Vilsack” is unavailing. See Objections at 8 (citing

Holman v. Vilsack, No. 1:21-cv-01085-STA-jay, 2023 WL 2776733 (W.D. Tenn.

Apr. 4, 2023)). He argues that “Holman was decided under the Sixth Circuit’s

framework, under which a plaintiff is not entitled to prevailing party status . . .

unless the injunction also provides the plaintiff with ‘something that c[an]not

later be taken away.’” Id. (alteration in original) (quoting Holman, 2023 WL

2776733, at *4). While Wynn is correct that the decision in Holman was

governed by Sixth Circuit precedent, he is mistaken in contending that Judge

Lambert relied “too heavily” on that decision. Indeed, the Court does not read

the Report to rely on Holman in reaching the challenged conclusion. Instead,

Judge Lambert correctly cited the applicable standard under Eleventh Circuit

precedent, and after correctly considering the procedural history of the case in

5 A suggestion that some condition could be sufficient for a result is not an assertion

that the condition is necessary for that result. See MPower Comms. Corp. v. Ill. Bell Tel. Co.,

Inc., 457 F.3d 625, 632 (7th Cir. 2006) (“Confusing sufficient with necessary conditions is a

logical blunder.”).

light of the standard for determining prevailing party status, she concluded that

Wynn had not “met his burden to show ‘a material alteration of the legal

relationship’” sufficient to make him a prevailing party for purposes of the

EAJA.6 See Report at 11 (quoting Sole, 551 U.S. at 77). While Judge Lambert

went on to note that this result was “in accord with” Holman, id. at 12, she

specifically recognized that “Holman analyzed the issue under the law of the

Sixth Circuit.” Id. at 13 n.13. Her conclusion that “the law of the Eleventh

Circuit [would not] compel[ ] a different result” does not suggest that she

misapplied the law.7 It only suggests her view that under the facts of Holman

the result would likely have been the same applying the law applicable in this

Circuit. Id. Accordingly, the Court is not persuaded that the Magistrate

Judge “erred by relying on the out-of-circuit standards in Holman rather than

Eleventh Circuit standards.” See Objections at 9.

6 While Judge Lambert cited Holman before stating this conclusion, it was for the

proposition that Billups is factually distinct from the instant case. See Report at 11. The

Court does not read the Report to adopt or apply any rule of law from the Sixth Circuit.

7 Wynn attempts to argue that the Eleventh Circuit law does compel a different result

because “a plaintiff who receives a preliminary injunction on the merits is a prevailing party

as long as it ‘was not “reversed, dissolved, or undone” by any judicial decision.’” Objections

at 9 (emphasis omitted) (quoting Billups, 554 F.3d at 1356). But for the reasons explained

above, the injunction Wynn secured did not grant him “relief on the merits,” see Common

Cause, 17 F.4th at 107; instead it “merely preserved the status quo.” See Markham, 901 F.2d

at 1027–28; see also Objections at 7 (conceding that such an injunction does not confer

prevailing party status).

For all of the foregoing reasons, Wynn’s objections to the determination

that he is not a prevailing party for purposes of an award of attorney’s fees

under the EAJA are unavailing and due to be overruled.

Upon independent review of the file and for the reasons set forth above,

the Court will overrule Wynn’s Objections and accept and adopt the legal and

factual conclusions recommended in the Report with respect to Wynn’s failure

to show that he is a prevailing party under the EAJA.8 Accordingly, it is

ORDERED:

1. The portion of the Report & Recommendation (Doc. 110) which

addresses whether Wynn is a prevailing party is ADOPTED as the

opinion of the Court.

2. Plaintiff Scott Wynn’s Motion for Attorney Fees (Doc. 100) is

DENIED.

DONE AND ORDERED in Jacksonville, Florida this 21st day of

September, 2023.

MARCIA MORALES HOWARD

United States District Judge

8 As discussed above, because the Court adopts Judge Lambert’s conclusion that Wynn

is not a prevailing party, the Court need not and does not reach the issue of whether the

Government’s position was substantially justified.

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