Palmetto Properties v. County of DuPage

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-2174

PALMETTO PROPERTIES, INC. and GREGORY A. SCHIRMER,

Plaintiffs-Appellees,

v.

COUNTY OF DUPAGE and JOSEPH E. BIRKETT,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 2980—David H. Coar, Judge.

____________

ARGUED DECEMBER 12, 2003—DECIDED JULY 7, 2004

____________

Before COFFEY, RIPPLE and KANNE, Circuit Judges.

KANNE, Circuit Judge. This case raises a question about

an award of attorney’s fees to a “prevailing party” under the

Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C.

§ 1988 (2000). After the underlying claims, which chal-

lenged the constitutionality of both state and local adult-

entertainment zoning regulations, were disposed of through

dismissals, partial summary judgments, a repeal of the

relevant portion of the local statute, and a final dismissal

for mootness, the district court granted the plaintiffs’

motion for attorney’s fees. For the following reasons, we

affirm.

2 No. 03-2174

I. Background

The issue on appeal can be succinctly stated: did the

district court correctly award attorney’s fees to Palmetto as

a “prevailing party” under 42 U.S.C. § 1988? However,

“prevailing party” is a legal term of art, generally meaning

a “party in whose favor a judgment is rendered . . . .”

Buckhannon Bd. & Care Home, Inc. v. W. Vir. Dept. of

Health and Human Res., 532 U.S. 598, 603 (2001) (quota-

tion omitted). In Buckhannon, the Supreme Court dem-

onstrated that, although the issue and definition can be

pithily put, in order to determine whether an award of at-

torney’s fees would be appropriate, a meticulous analysis of

the “particular judgments and orders entered in a case” is

necessary. McGrath v. Toys “ ‘R” Us, Inc., 356 F.3d 246, 253

(2d Cir. 2004). We have done so in the past, see, e.g., Fed’n

of Adver. Indus. Representatives, Inc. v. City of Chicago, 326

F.3d 924 (7th Cir. 2003) (“Federation”), and to do so here,

we now review the underlying facts and procedural posture

of this case.

Palmetto Properties, Inc. and George Schirmer (collec-

tively, “Palmetto”) sought to open an adult entertainment

nightclub or cabaret in DuPage County, Illinois. According

to County Ordinance section 37-3.2, Palmetto’s strip club is

classified as an “adult business use” because the employee-

dancers expose “specified anatomical areas” and/or engage

in “specified sexual activities.” DuPage County Ordinance

§ 37-3.2 (1986).1 Likewise, the club is an “adult entertain

1

In relevant part, section 37-3.2 states:

Adult business use. The use of property . . . of which a sig-

nificant or substantial portion involves an activity distinguished

or characterized by its emphasis on matters depicting, describ-

ing or relating to Specified Sexual Activities or Specified

Anatomical Areas . . . .

***

(continued...)

No. 03-2174 3

ment facility” under state law 55 Ill. Comp. Stat. 5/5-1097.5

(1998).2

While both the state and county regulate the location of

these adult businesses, after the state adopted its first such

zoning law in 1998, the two regulations differed in material

1

(...continued)

Specified Anatomical Areas:

a. Less than completely or opaquely covered human genitals,

pubic region, buttock, anus or female breast below a point

immediately above the top of the areola; and

b. Human male genitals in a discernibly turgid state, even if

completely or opaquely covered.

Specified Sexual Activities:

a. Human genitals in a state of sexual stimulation or arousal;

b. Acts of human masturbation, sexual intercourse, fellatio or

sodomy;

c. Fondling, kissing or other erotic touching of Specified

Anatomical Areas;

d. Flagellation or torture in the context of a sexual relationship;

e. Masochism, erotic or sexually oriented torture, beating or the

infliction of pain;

f. Erotic touching, fondling or other such contact with an animal

by a human being;

g. Human excretion, urination, menstruation or vaginal or anal

irrigation as part of or in connection with any of the activities

set forth in “a” through “f ” above.

2

In relevant part, section 5/5-1097.5 states: “For the purposes of

this Section, ‘adult entertainment facility’ means (i) a striptease

club or pornographic movie theatre whose business is the com-

mercial sale, dissemination, or distribution of sexually explicit

material, shows, or other exhibitions or (ii) adult bookstore or

adult video store . . . .”

4 No. 03-2174

respects. First, under the law as adopted in 1986, DuPage

County required all adult businesses to locate in a zoning

district designated “industrial” and banned such establish-

ments from locating within 1000 feet of other adult busi-

nesses, or within 500 feet of certain residentially zoned

districts or any “church, school, library, park or other

publicly operated recreational facility.” DuPage County

Zoning Ord. § 37-4.16-2 (1986). But the law adopted by the

state in 1998 banned all adult businesses from locating

“within 1,000 feet of the property boundaries of any school,

day care center, cemetery, public park, forest preserve, public

housing, and place of religious worship.” 55 Ill. Comp. Stat.

5/5-1097.5 (1998) (emphasis added). Consequently, in

December of 1998, after the state adopted its regulation, the

County amended its ordinance to (1) add various categories

of land use from which adult business must be separated;

and (2) increase the required separation distance from 500

to 1000 feet. DuPage County Zoning Ord. § 37-4.16-2

(1998).3 The County’s zoning restriction thereby mirrored

the state’s.

3

Ordinance section 37-4.16-2, as amended in 1998, stated:

No adult business use, either as a permitted use or as a con-

ditional use, shall be maintained: (1) within 1,000 feet of the

property line of another adult business use; (2) within 1,000

feet of any of the following zoning districts as provided for

under this Ordinance: R-1, R-2, R-3, R-4, R-5, R-6, and R-7;

(3) within 1,000 feet of a zoned residential district lying

within a municipality; or (4) within 1,000 feet of a place

of religious worship, day care center, cemetery, public hous-

ing, school, library, park, forest preserve or other publicly

operated recreational facility. The distances provided for in

this section shall be measured by following a straight line

without regard to intervening structures, from a point on the

property or the land use district boundary line from which the

proposed use is to be separated.

No. 03-2174 5

Second, the County’s 1986 ordinance stated that its pur-

pose was to “eliminate [the] adverse effects” of adult busi-

nesses, such as the “blighting or downgrading” of surround-

ing neighborhoods. DuPage County Zoning Ord. § 37-4.16-1

(1986). In adopting that law, the County relied upon a study

conducted by the City of Indianapolis, which had adopted a

similar 500-foot separation requirement, and upon a

customer-origin survey done by DuPage and Cook Counties.

The state statute, however, contained no such statement of

policy, nor did its legislative history reveal any studies or

reports relied upon by the Illinois General Assembly. And

when the County amended its ordinance in 1998 “solely to

incorporate [the state law],” no new studies were conducted,

nor earlier studies reevaluated, and the statement of policy

went unchanged.

The land Palmetto obtained (and partially developed) for

the proposed adult business complied with all of the loca-

tional limits set out in the County and State regulations,

save one. The parcel was 735 feet (i.e, more than 500, but

less than 1000 feet) from the boundary of Pratt’s Wayne

Woods Forest Preserve, much of which is not accessible to

the public.4 As a result, Palmetto feared that the County

and/or State would prevent the nightclub’s opening based

upon the 1000-foot forest preservation separation require-

ment. Palmetto sued DuPage County, the Forest Preserve

District of DuPage County, Joseph E. Birkett (in his official

capacity as DuPage County State’s Attorney), and Jim E.

Ryan (in his official capacity as Illinois Attorney General),

4

We note that in its first complaint, filed on May 5, 1999,

Palmetto apparently did not realize that the relevant parcel was

within 1000 feet of a forest preserve and asserted that the parcel

complied with all the state and local zoning limitations. Thus,

Palmetto argued only that the ordinances were unconstitutional

on their face. Eventually, Palmetto realized its mistake and

amended its complaint—twice.

6 No. 03-2174

arguing that the state and local laws were violations of the

First and Fourteenth Amendments. Specifically, in its third

amended complaint, Palmetto alleged that: (1) the 1000-foot

forest preserve separation requirement, under either law,

was facially unconstitutional because it was unsupported by

a substantial governmental interest; (2) the forest preserve

separation requirement, under either law, was unconstitu-

tional as applied to Palmetto; and (3) both laws were

facially unconstitutional in toto because they effected a

complete ban of protected speech in DuPage County.5

Between February of 2000 and March of 2001, the district

court was inundated with a flurry of motions to dismiss,

summary-judgment motions, responsive pleadings, and

competing fact statements, resulting in a total of at least

thirty-four filings. Early in the course of the proceedings,

however, Illinois Attorney General Ryan was dismissed

from the suit because Palmetto failed to overcome the

presumption of Ryan’s Eleventh Amendment immunity.

This determination was not appealed.

5

An additional constitutional challenge was also raised.

Palmetto’s property was zoned as a “Light Industrial District,”

designated I-1. However, adult business uses may locate as of

right only in “Heavy Industrial Districts,” designated I-2. Hence,

Palmetto, in order to open the proposed club, needed a special or

conditional zoning use permit from the County. See DuPage

County Zoning Ord. §§ 37.14.13 et seq. (1998) (laying out the ap-

plication procedure). But such permits may be granted only if the

applicant complies with all zoning restrictions, other than the

designation. See id. As a result, Palmetto could not obtain a per-

mit because less than 1000 feet separated the relevant parcel from

the forest preserve. Palmetto, therefore, also challenged the

ordinances regarding special or conditional use permits as un-

constitutional prior restraints of protected speech. Because the

district court never reached the merits of this issue, see infra note

7, it is largely tangential to the instant appeal.

No. 03-2174 7

Finally, on March 29, 2001, the district court issued its

order, which sorted through myriad summary-judgment

issues. First, the Forest Preserve District’s motion for

summary judgment was granted “because the District has

no connection to the enforcement of the DuPage Ordinance

or the Illinois Statute and there is no District ordinance or

policy at issue here.” Second, the court found that because

Palmetto’s claims were “rooted in the First Amendment,”

Palmetto was entitled to “rely on the impact of the ordi-

nance[s] on the expressive activities of others as well as [its]

own,” and hence, the case was ripe for adjudication. Third,

State’s Attorney Birkett’s Eleventh Amendment immunity

barred Palmetto’s suit with respect to the state law, but not

with respect to the County Ordinance.6 Therefore, only the

County of DuPage and Birkett (only with respect to the

County ordinance) remained as defendants (hereinafter

collectively “Defendants” or “County”).

Reaching the merits, the district court held that: (1) the

state and local zoning forest preserve separation require-

ments were neither supported by a significant government

interest nor narrowly tailored because neither entity pre-

sented any evidence or prior case law to demonstrate that

strip clubs negatively impact areas of forest preserves not

open to the public; and (2) both restrictions failed to leave

open reasonable alternative means of communication.

Uncertain as to whether the district court struck down the

entirety of the County Ordinance or simply the forest pre-

6

Because the district court applied Eleventh Amendment

immunity to protect both Attorney General Ryan and State’s

Attorney Birkett from the claims challenging the state law, see,

e.g., Edelman v. Jordan, 415 U.S. 651 (1974), it appears that no

challenge to the state ordinance remained. Indeed, although the

district court’s March 29, 2001 order discussed the merits of both

the state and local statutes, in its subsequent clarifying order, the

district court specifically addressed only the County ordinance.

8 No. 03-2174

serve segment, Defendants asked the district court to clarify

its judgment. The court did so on April 26, 2001 and

specifically declared only the portion of Ordinance section

37-4.16.2 referring to “forest preserves” unconstitutional.7

Presumably wanting to avoid further litigation, the

Defendants informed the district court and Palmetto that,

instead of appealing, the offending provision of the ordi-

nance would be amended or repealed. Hence, while the

County pursued such action, the district court continued the

case in lieu of entering a final order to officially close the

action. As promised, the forest preserve separation re-

quirement was repealed.8 Palmetto was therefore free to

operate its proposed nightclub. Following its opening, the

district court dismissed the lawsuit as moot on January 3,

2002.

Palmetto then petitioned for an award of attorney’s

fees from the Defendants as a “prevailing party” under 42

U.S.C. § 1988. While there was no dispute as to the amount

claimed, the Defendants adamantly argued that Palmetto

was not a prevailing party. The district court disagreed.

After carefully analyzing Buckhannon and noting that

Palmetto did not request fees related to claims never

addressed on the merits, see supra notes 5 and 7, the dis-

trict court awarded $49,175.00 to Palmetto. This appeal

resulted and, for the following reasons, we affirm the dis-

trict court’s award.

7

Having found the forest preserve restriction unconstitutional,

the court also determined that it need not reach the prior re-

straint claim. See supra note 5.

8

The County actually adopted new restrictions, which differenti-

ated between “active” and “passive” recreational areas, which in-

clude forest preserves. But the amended ordinance requires only

a 500-foot separation between an adult business and “passive

recreational areas.” (R. 100.) Hence, the statute no longer posed

any bar to Palmetto’s strip club.

No. 03-2174 9

II. Analysis

A. Standard of Review

Under 42 U.S.C. § 1988 a “prevailing party” is entitled to

“a reasonable attorney’s fee.” When analyzing a district

court’s grant or denial of such fees, we review de novo the

lower court’s purely legal conclusions. Federation, 326 F.3d

at 932. But factual matters underlying the fee award, such

as the fee amount and a party’s ultimate litigation goals,

are reviewed for clear error. Cady v. City of Chicago, 43

F.3d 326, 329 (7th Cir. 1994). Because the County chal-

lenges only whether the district court inappropriately

extended the definition of a “prevailing party,” our review

here is de novo.

B. Buckhannon and Its Progeny

In Buckhannon, the Supreme Court interpreted “pre-

vailing party” under the fee-shifting provision of the Fair

Housing Amendments Act of 1988 (“FHAA”), 42 U.S.C.

§ 3613(c)(2). Because nearly all federal fee-shifting pro-

visions use this term of art, see, e.g., 42 U.S.C. §§ 1988,

12205, the Buckhannon Court encouraged consistent in-

terpretation, when possible, across the federal statutes. See

532 U.S. at 602-03. Although we have not gone so far as to

hold that Buckhannon applies to all fee-shifting statutes,

we have held that it is conclusively presumed to so apply

absent a clearly contrary indication in the “text, structure,

or legislative history of a particular fee-shifting statute . .

. .” T.D. v. LaGrange School Dist. No. 102, 349 F.3d 469,

475 (7th Cir. 2003) (internal quotations omitted) (“T.D.”).

Therefore, we followed the strictures of Buckhannon in the

two cases recently brought before this court which required

interpretation of “prevailing party.” T.D., supra; Federation,

supra. In Federation, we expressly held that it is “abun-

dantly clear” that Buckhannon applies to the term as used

10 No. 03-2174

in 42 U.S.C. § 1988. Federation, 326 F.3d at 932 n.8. In

short, whether Palmetto is entitled to attorney’s fees under

42 U.S.C. § 1988 depends upon the application of

Buckhannon, T.D., and Federation.

The Supreme Court in Buckhannon upheld a denial of

attorney’s fees where a defendant “voluntarily” mooted the

action. Buckhannon, 532 U.S. at 610. A corporation oper-

ating assisted-living residences sued the state of West

Virginia (and other individual and agency state actors),

claiming that a particular provision of a state statute

violated the FHAA. Id. at 600-01. The state legislature

repealed the contested provision, thereby mooting the suit,

while discovery was still pending and prior to any sub-

stantive judicial determinations. Id. at 601. Specifically

rejecting the “catalyst theory,”9 the Court emphasized that

a defendant’s voluntary change in conduct, “although per-

haps accomplishing what the plaintiff sought to achieve

by the lawsuit, lacks the necessary judicial imprimatur

on the change.” Id. at 605 (emphasis in original). The Court

also discounted arguments about defendants’ incentives to

avoid fees, noting that such considerations were too specu-

lative and thus unhelpful because, depending on the case,

a defendant’s fear of fees may or may not be as significant

as its fear of monetary damages, if liable. Id. at 608.

Finally, the Court stated that if the catalyst theory applied,

major, yet wholly tangential, litigation would likely result

because a district court would need to delve into a “highly

factbound” analysis of a defendant’s subjective motivations

9

Under the catalyst theory, a plaintiff was entitled to attorney’s

fees as a “prevailing party” so long as (1) the claim was at least

colorable, and not groundless; (2) the lawsuit was a substantial

rather than insubstantial cause of the defendant’s change in con-

duct; and (3) the defendant’s change in conduct was motivated by

the plaintiff ’s threat of victory rather than the threat of expense.

532 U.S. at 610.

No. 03-2174 11

in changing its conduct. Id. at 609. Thus, the Court held

that in order to be a “prevailing party,” a litigant must have

obtained a judgment on the merits, a consent decree, or

some other judicially sanctioned change in the legal rela-

tionship of the parties. 532 U.S. at 604-05 (citing Hanrahan

v. Hampton, 446 U.S. 754, 758 (1980) (per curiam); Maher

v. Gagne, 448 U.S. 122 (1980); Texas State Teachers Ass’n v.

Garland Independent Sch. Dist., 489 U.S. 782, 792 (1989)).

In T.D., the parents of a student suffering from attention

deficit disorder claimed that the defendant school district

deprived the student of a “free appropriate public educa-

tion” under the Individuals with Disabilities Education Act

(“IDEA”), 20 U.S.C. § 1400(d)(1)(A), and appealed to the

district court an administrative adjudication which pro-

posed to place the student in a regular classroom, instead

of authorizing placement at a private day school. 349 F.3d

at 471-73. Specifically, we considered whether the plaintiff

was entitled to attorney’s fees where cross-motions for

summary judgment had been filed, but when the parties

negotiated a settlement agreement before any rulings by

the district court. In the agreement, the defendant acqui-

esced to nearly all the plaintiff’s demands—placement of

the student in a special program in a public school, and

reimbursement to the parents for tuition and all costs re-

lating to the student’s prior attendance at the day school.

349 F.3d at 473-74. Importantly, the settlement agreement

contained no provision regarding attorney’s fees. Id. at 473.

After concluding that Buckhannon applies to IDEA, id. at

478, we found that while most “private settlement agree-

ments do not entail the judicial approval and oversight

involved in consent decrees,” some do, in which case a

settlement agreement can be the basis for an award of

attorney’s fees. Id. at 478-79 (internal quotation omitted).

But in T.D., despite the fact that the district court was ac-

tively involved in the settlement negotiations, the agree-

ment (1) was not embodied in a court order or judgment; (2)

12 No. 03-2174

did not bear the judge’s signature; and (3) did not give the

district court continuing jurisdiction to enforce the agree-

ment. Id. at 479. See also Toms v. Taft, 338 F.3d 519, 529

(6th Cir. 2001) (holding that a court-sponsored settlement

conference was insufficient to make the plaintiff a prevail-

ing party). Hence, we concluded that it was “merely a

private settlement agreement between the parties,” lacking

the judicial imprimatur necessary to convey “prevailing

party” status. Id.

In Federation, an advertising trade association sued the

City of Chicago, alleging that an ordinance prohibiting the

placement of alcohol and cigarette advertisements on bill-

boards, sides of buildings, and freestanding signboards

violated the First Amendment and was preempted by

federal and state statutes. 326 F.3d at 927. In 1988, the

trade association moved for summary judgment on both the

First Amendment and preemption claims. Although

no ruling was made on the First Amendment claims, the

district court held that all portions of the ordinance relating

to cigarette advertising were preempted by federal law and

that the portions relating to alcohol were not severable. Id.

The City appealed the preemption determination, and we

reversed in large part, finding that (1) only a tiny provision

of the ordinance was preempted by federal law; and (2) the

ordinance was severable. Fed’n of Adver. Indus. Representa-

tives, Inc. v. City of Chicago, 189 F.3d 633, 639-40 (7th Cir.

1999).

Subsequently, the City amended the ordinance to remove

the preempted portion and other provisions, the constitu-

tionality of which had been seriously called into question by

Greater New Orleans Broadcasting Ass’n v. United States,

527 U.S. 173 (1999). 326 F.3d at 928.

The trade association then amended its complaint to drop

the preemption claim and to entirely eliminate its challenge

to the cigarette-advertising portions of the ordinance. Id. In

No. 03-2174 13

2001, the association again moved for summary judgment

on its remaining First Amendment claims. But before the

City filed its response, the Supreme Court decided Lorillard

Tobacco Co. v. Reilly, 533 U.S. 525 (2001), which held that

a statute similar to the challenged ordinance was pre-

empted by federal law. Id. The City then filed a cross-

motion to dismiss based upon mootness, indicating that

although the City believed its statute was materially

different from the Lorillard ordinance, the risks of going

forward in light of Lorillard had persuaded it to repeal the

ordinance. Id. The City did indeed repeal the ordinance,

and the district court then dismissed the case and denied

the trade association’s request for attorney’s fees under 42

U.S.C. § 1988. Id.

Upon appeal of the district court’s denial of fees, we ana-

lyzed exactly what, if any, “judicially sanctioned change” in

the legal relationship of the parties the trade association

had achieved. First, we pointed out that while the district

court originally granted its motion for summary judgment

on preemption grounds, we reversed the “core holding” of

that decision. Simply because “we affirmed [a tiny] portion

of the original district court decision certainly does not

make [the trade association] a prevailing party,” particu-

larly when our holding provided the association no relief at

all. 326 F.3d at 933.

Second, we assumed, arguendo, that the City’s repeal of

the statute was “not voluntary,” instead compelled by the

combination of the Supreme Court’s decision in Lorillard

and the association’s motion for summary judgment. How-

ever, because neither the City nor the trade association

were parties to that case, we concluded that there was “[no]

judgment that changed the legal relationship between the

parties in this case,” id. (emphasis in original), and we

affirmed the district court’s denial of attorney’s fees.

14 No. 03-2174

C. Attorney’s Fees for Palmetto

The facts of this case are essentially undisputed. The

district court granted Palmetto a partial summary judg-

ment, striking down as unconstitutional the portion of the

County adult-entertainment zoning ordinance pertaining to

forest preserves—the only provision which effectively

prevented Palmetto from operating its nightclub. The

County, after presumably concluding that its odds of suc-

cess on appeal were limited, assured the district court and

Palmetto that it would repeal the offending provision. Thus,

the district court continued the case to give the County a

sufficient amount of time to correct its error. As promised,

the ordinance was repealed and the case was dismissed as

moot.

The County now contends that Palmetto is not entitled to

an award of attorney’s fees because “the partial summary

judgment pertaining to the forest preserve provisions in the

County Ordinance never became final or enforceable before

the case was dismissed for mootness.” We disagree. It would

defy reason and contradict the definition of “prevailing

party” under Buckhannon and our subsequent precedent to

hold that simply because the district court abstained from

entering a final order formally closing the case—a result of

the Defendant’s assertions that it would repeal the chal-

lenged portion of the ordinance—Palmetto somehow did not

obtain a “judicially sanctioned change” in the parties’ legal

relationship.

In Buckhannon, the challenged state law was repealed,

thereby mooting the case, before the district court made any

substantive rulings. Thus, the Buckhannon Court construed

the change in the defendants’ conduct as voluntary, lacking

the necessary judicial imprimatur. In this case, not only did

the district court make a substantive determination as to

essentially all the constitutional claims save one, see supra

notes 5 and 7, the County repealed the ordinance only after

No. 03-2174 15

that determination had been made and presumably because

of it. To be sure, the Defendants were free to moot the case

before the summary-judgment ruling, in which case the

action would have been voluntary. They did not. Hence,

their action is most persuasively construed as involun-

tary—indeed exhibiting judicial imprimatur.

Furthermore, while the Buckhannon Court dismissed

concerns about “mischievous defendants” (i.e., those who

moot a case to avoid an award of attorney’s fees), the qua-

lifications placed upon those remarks apply in this case:

[P]etitioners’ fear of mischievous defendants only ma-

terializes in claims for equitable relief, for so long as the

plaintiff has a cause of action for damages, a defen-

dant’s change in conduct will not moot the case. Even

then, it is not clear how often courts will find a case

mooted: “It is well settled that a defendant’s voluntary

cessation of a challenged practice does not deprive a

federal court of its power to determine the legality of the

practice” unless it is “absolutely clear that the allegedly

wrongful behavior could not reasonably be expected to

recur.” Friends of Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 189 (2000).

Buckhannon, 532 U.S. 608-09 (emphasis added) (foot-

note omitted). Here, Palmetto sought only equitable relief;

monetary damages were an impossibility because neither

the state nor the County had taken any action to halt or

otherwise actionably delay the development of Palmetto’s

proposed club. Also, and as noted above, the County’s

“voluntary cessation” of the “challenged practice” (i.e., the

forest preserve provision) was done after the district court

determined its illegality. Indeed, had Palmetto so desired,

Palmetto (or the County for that matter) could have pressed

the district court to enter a final order closing the case

immediately following the court’s summary-judgment

ruling. Instead, Palmetto graciously—and in reliance upon

16 No. 03-2174

Defendants’ assurances—waited for the Defendants to

amend the regulation and moot the case. In short, reversing

the district court’s award of attorney’s fees in this case

would contradict Buckhannon’s logic, create an inequitable

result, and promote inefficiency because plaintiffs who have

succeeded on the merits would be encouraged to rush

forward with potentially unnecessary litigation, solely to

preserve their entitlement to fees.

Nor does our reasoning in T.D. mediate in favor of re-

versing the district court’s award of attorney’s fees in the

instant case. In T.D., the parties entered into a wholly pri-

vate settlement agreement, whereby the defendant school

district agreed to most of the plaintiff’s demands. Here,

there was no settlement agreement. Instead, Palmetto

secured a favorable substantive ruling from the district

court, which, in turn, prompted the Defendants to repeal

the zoning restriction.

In addition, this case can be distinguished in two ways

from the unique situation presented in Federation. First,

while the Federation plaintiffs did initially obtain a favor-

able judgment on the merits of their preemption claims, on

appeal, the lion’s share of the district court’s ruling was

reversed. And the tiny portion of the summary judgment

upheld on appeal failed to give the plaintiffs any mean-

ingful relief. We reasoned that a substantially overruled

summary judgment, failing to provide relief, could not

confer upon the plaintiffs “prevailing party” status.

Second, the city defendants in Federation repealed the

ordinances at issue because they perceived that a different

case—namely, the Supreme Court’s Lorillard decision—

cast serious doubt upon their constitutionality. We as-

sumed, arguendo, that the repeal of the challenged statute

was therefore involuntary, but nonetheless concluded that

an award of attorney’s fees was inappropriate. We reasoned

that no judgment changed the legal relationship of the

parties to the Federation lawsuit; a party in one lawsuit

No. 03-2174 17

cannot claim to be a “prevailing party” based upon the

successes of a party in a different lawsuit. But in this case,

Palmetto itself obtained a judgment on the merits, which

provided the relief sought in the action, and the County

chose not to take any steps to pursue an appeal.

Moreover, in Federation, we implied that a plaintiff

who obtains a favorable summary-judgment ruling, un-

challenged by an appeal, would qualify for an award of

attorney’s fees under Buckhannon and 42 U.S.C. § 1988:

Nor does the fact that [the plaintiff] had a summary

judgment motion pending provide the necessary ju-

dicially sanctioned change. Even assuming that after

Lorillard, the district court would have granted [the

plaintiff’s] motion had the [defendant] City not repealed

its ordinance, the fact remains that no such ruling was

made and thus no judicial relief was awarded to Feder-

ation.

326 F.3d at 933. Our Federation decision, which assessed

the procedural posture of that case, supports the district

court’s grant of attorney’s fees in the instant case.

We lastly note that the County’s argument is unavailing

not only because it contradicts Buckhannon, T.D., and

Federation, but also because it values form over substance.

Nowhere does the County posit that the district court’s

summary-judgment rulings wouldn’t have been appealable

had the district court simply entered a final order formally

closing the case. And the only reason the court did not do so

was because the County requested a continuance so that it

could moot the case. The summary-judgment orders

changed the legal relationship of the parties because, for

example, had Palmetto grown impatient with the time it

took the County to repeal the offending zoning provision,

Palmetto could have requested that the district court close

the case and then sued to enforce the judgment. Nor does

the County argue that the district court, in making its

18 No. 03-2174

summary-judgment determination, failed to evaluate the

evidence presented by both parties or failed to apply the

appropriate constitutional law to the facts of the case. It

would fly in the face of legal intuit to conclude that the

district court’s partial grant of a summary judgment would

not constitute a “judgment on the merits” adequate to

confer “prevailing party” status upon Palmetto, simply be-

cause—at the County’s behest—the district court delayed in

entering a final order to close the case.

III. Conclusion

In sum, the district court’s $49,175.00 award of attorney’s

fees to Palmetto was equitable, efficiency-promoting, a

logical development in Buckhannon jurisprudence, and

applied a common-sense understanding of a “judgment on

the merits.” For the foregoing reasons, we AFFIRM the

award of attorney’s fees under 42 U.S.C. § 1988.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-7-04