concluding that where the plaintiff achieved the “excellent” result of securing a permanent injunction against the legislation it challenged, it was entitled to fees and costs absent a showing of “special circumstances that would render an award of fees unjust”
How later courts described this case
- concluding that where the plaintiff achieved the “excellent” result of securing a permanent injunction against the legislation it challenged, it was entitled to fees and costs absent a showing of “special circumstances that would render an award of fees unjust”
- affirming the district court’s award of $536,535 in fees on the basis that the plaintiff was the prevailing party under “the well-established standards” for determining such status for purposes of fee awards, insofar as the “net result of the litigation was the entry of a permanent injunction barring enforcement” of the ordinance to which the plaintiff had objected
- explaining that changes in law announced by the Supreme Court do not apply retroactively to collateral attacks on final judgments, to cases in which the parties have exhausted all appellate options, and to cases in which the deadline for filing a timely appeal has lapsed
- holding that changes in law occurring after a final judgment cannot alter a plaintiffs status as a prevailing party
Written by the judges who cited it.
The opinion
ROGERS, Circuit Judge,
dissenting.
In my view, in light of Z.J. Gifts, the award of fees should be reconsidered.
If ever “exceptional circumstances” warrant denial of fees to a prevailing party, it is when that party had prevailed by obtaining injunctive relief that the party clearly was, in retrospect, never entitled to. That is largely, but not entirely, the case here. Z.J. Gifts makes clear that the ordinance at issue is presently constitutional, 1 and, with two qualifications, has been all along. The Z.J. Gifts opinion did not “change” the law like a new statute, but made clear what the law is and has been. 2 See Z.J. *425 Gifts, 541 U.S. at 780-81 , 124 S.Ct. 2219 (applying prior Supreme Court opinions).
The two qualifications are (1) the discretionary nature of judicial review prior to the amendment of the judicial review statute in 2002, and (2) the severable statutory definition of “sexually oriented.” While an award of fees may be warranted on a “catalyst” theory for the statutory modifh cation that made judicial review mandatory, 3 such a theory should be ruled upon in the first instance by the district court, independently of the injunctive relief that now in light of Z.J. Gifts appears unwarranted. 4 The 'only remaining qualification to the legal invalidity of the injunctive relief is the definition of “sexually oriented,” a victory so Pyrrhic that it cannot support a substantial award of fees in this case. I would remand for reconsideration, taking into account the substantial invalidity (in light of Z.J. Gifts) of the broad injunctive relief that forms the basis for determining that counsel achieved “excellent results” in this case.
. As the majority notes, the Tennessee common law writ of certiorari has been altered to require judicial review in First Amendment cases. See Majority Opinion at n. 3; TENN. CODE ANN. § 27-9-111(e) (2002). In ZJ. Gifts, the Supreme Court held that "Colorado’s ordinary 'judicial review' rules offer adequate assurance, not only that access to the courts can be promptly obtained, but also that a judicial decision will be promptly forthcoming.” 541 U.S. at 781 , 124 S.Ct. 2219 . Because the ordinance at issue is now subject to ordinary judicial review in Tennessee courts, it is constitutional under ZJ. Gifts.
. As Justice Harlan clearly explained, the Supreme Court "announce[s] new constitutional rules ... only as a correlative of our dual duty to decide those cases over which we have jurisdiction and to apply the Federal Constitution as one source of the matrix of governing legal rules.” Mackey v. United States, 401 U.S. 667, 678-79 , 91 S.Ct. 1160 , 28 L.Ed.2d 404 (1971) (Harlan, J., concurring and dissenting). Justice Harlan criticized "[t]he notion that cases before us on direct review need not be adjudicated in accordance with those legal principles governing at the time we are possessed of jurisdiction in the case.” Id. at 679-80 , 91 S.Ct. 1160 . The Supreme Court explained in Harper v. Virginia Department of Taxation, 509 U.S. 86, 97 , 113 S.Ct. 2510 , 125 L.Ed.2d 74 (1993),
When this Court applies a rule of federal law to the parties before it, that rule is the controlling interpretation of federal law and must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether such events predate or postdate our announcement of the rule.... "[t]he Court has no more constitutional authority in civil cases than in criminal cases to disregard current law or to treat similarly situated litigants differently.” American Trucking [Ass’ns v. Smith, 496 U.S. 167 ], at 214, 110 S.Ct. 2323 , 110 L.Ed.2d 148 (Stevens, J., dissenting).
*425 509 U.S. at 97 , 113 S.Ct. 2510 .
. Indeed, the Tennessee General Assembly explained the amendment in terms of this court's prior ruling:
WHEREAS, The United States Court of Appeals for the Sixth Circuit held that Tennessee Code Annotated, Section 27-9-111(e), allows state courts discretion as to whether or not to issue a writ of certiorari and hear an appeal from a decision by a board or commission revoking, suspending or denying a license or permit required prior to engaging in conduct protected by the First Amendment to the Constitution of the United States; and
WHEREAS, The United States Court of Appeals for the Sixth Circuit further held that since the grant of the writ of certiorari remains discretionary in such cases, that Tennessee Code Annotated, Section 27-9-111(e), does not guarantee the petitioner prompt judicial review of the board's or commission’s decision, as is required by the First Amendment to the Constitution of the United States; now therefore,
Section 27-9-111, is amended ....
2002 TENN. PUB. ACTS 615.
. The district court dissolved the injunction on April 27, 2005. Deja Vu's appeal of that order was recently docketed in this court.