Petition for Rehearing — WC Realty Group, Inc., dba Century 21 WC Realty, Petitioner v. Affordable Aerial Photography, Inc.

No. 24-825

In the Supreme Court of the United States

WC REALTY GROUP, INC., DBA CENTURY 21

WC REALTY,

Petitioner,

v.

AFFORDABLE AERIAL PHOTOGRAPHY, INC.,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

PETITION FOR REHEARING

April 2025

ANDREW D. LOCKTON

Counsel of Record

EDWARD F. MCHALE

MCHALE & SLAVIN, P.A.

2855 PGA Boulevard

Palm Beach Gardens, FL 33401

(561) 625-6575

alockton@mchaleslavin.com

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

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PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

Petitioner’s Statement pursuant to Rule 29.6 was

set forth on page ii of the petition for a writ of certiorari, and there are no amendments to that Statement.

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TABLE OF CONTENTS

Page

Parties to the Proceeding and Corporate Disclosure

Statement .................................................................... i

Table of Contents ........................................................ ii

Table of Authorities ................................................... iii

Petition for Rehearing ................................................. 1

A. The Court’s Intervening Lackey Decision

Clarified That the Body of Caselaw Addressing

When a Defendant is the “Prevailing Party” is

Distinct From the Body of Caselaw Addressing

When a Plaintiff is the “Prevailing Party.” ........ 2

B. The Eleventh Circuit’s Decision Imported

Requirements From the Prevailing Plaintiff

Body of Caselaw Into the Test for Determining

Whether the Defendant Prevailed ...................... 4

C. Rehearing and a “GVR” Should Be Granted to

Allow the Eleventh Circuit to Reconsider Its

Decision in Light of Lackey ................................. 7

Conclusion.................................................................... 8

Certificate of Counsel .................................................. 9

iii

TABLE OF AUTHORITIES

Cases:

Affordable Aerial Photography, Inc. v. Property

Matters USA, LLC,

108 F.4th 1358 (CA11 2024), cert. denied, _ S.

Ct. _, 2025 WL 581646 (U.S., Feb. 24, 2025),

petition for rehearing filed, No. 24-688 (Mar.

21, 2025) ..................................................... 1, 4-7

Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health & Human Res.,

532 U.S. 605 (2001) ........................................ 3-6

CRST Van Expedited, Inc. v. EEOC,

578 U.S. 419 (2016) ........................................ 4-6

Farrar v. Hobby, 506 U.S. 103 (1992) ..................... 2

Hewitt v. Helms, 482 U.S. 755 (1987) ..................... 5

Lackey v. Stinnie, 604 U.S. __ (2025) ........... 1-4, 6-7

Sole v. Wyner, 551 U.S. 74 (2007) ........................... 3

Texas State Teachers Assn. v. Garland Indep.

School Dist.,

489 U.S. 782 (1989) ........................................ 2, 4

Rules:

Supreme Court Rule 44.2 ........................................ 1

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PETITION FOR REHEARING

Petitioner WC Realty Group Inc. dba Century 21

WC Realty, understands that the Court grants Rule

44.2 rehearing petitions exceedingly rarely. But this

petition presents one of those very rare circumstances

where rehearing is warranted due to intervening circumstances of a substantial effect. See Rule 44.2. 1 On

February 25, 2025, while the petition for a writ of certiorari was pending, this Court issued its decision in

Lackey v. Stinnie, No. 23-621, Slip Op., 604 U.S. _, 145

S. Ct. 659 (2025), rejecting the premise of the Eleventh

Circuit’s precedent and the decision below. Further,

the decision in this case was based on the application

of the Eleventh Circuit’s precedential decision in Affordable Aerial Photography, Inc. v. Property Matters

USA, LLC, 108 F.4th 1358 (CA11 2024), cert. denied,

_ S. Ct. _, 2025 WL 581646 (U.S., Feb. 24, 2025), petition for rehearing filed, No. 24-688 (Mar. 21, 2025)

(“Affordable Aerial”), for which a rehearing petition

was filed on March 21, 2025, requesting reconsideration and a “GVR” in light of Lackey.

The Lackey opinion addressed whether the plaintiff was a “prevailing party,” where the case becomes

moot following preliminary injunctive relief. Slip Op.,

1, 4. In holding that preliminary injunctive relief did

not confer “prevailing party” status on a plaintiff, the

Court was required to address and explain its body of

caselaw for determining whether a plaintiff was a

“prevailing party.” In so doing, the Court clarified that

its body of caselaw addressing whether a plaintiff is a

“prevailing party” is distinct from its body of caselaw

addressing whether a defendant is a “prevailing

1 A similar petition has been filed in Property Matters USA, LLC

v. Affordable Aerial Photography, Inc., No. 24-688.

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party.” See Lackey, Slip Op., 9 and n.*. That clarification rejected the premise of the Eleventh Circuit’s

decision below, highlighting the legal error.

Petitioner respectfully requests that this Court

grant this petition for rehearing and the underlying

petition for a writ of certiorari, vacate the Eleventh

Circuit’s decision below, and remand (“GVR”) to allow

the Eleventh Circuit the opportunity to revisit its decision in light of this Court’s intervening Lackey decision.

A. The Court’s Intervening Lackey Decision

Clarified That the Body of Caselaw Addressing

When a Defendant is the “Prevailing Party” is

Distinct From the Body of Caselaw Addressing

When a Plaintiff is the “Prevailing Party.”

In Lackey, the Court addressed its prevailingplaintiff body of caselaw to explain why a plaintiff does

not prevail following a preliminary injunction where

the case is ultimately dismissed as moot. Slip Op., 59. Explaining that under the Court’s prevailing-plaintiff precedent, “a plaintiff ‘prevails’ when a court

grants enduring relief that constitutes a ‘material alteration of the legal relationship of the parties.’”

Lackey, Slip Op., 7 (quoting Texas State Teachers

Assn. v. Garland Indep. School Dist., 489 U.S. 782,

792-93 (1989)). This includes an award of nominal

damages, id., 7–8 (citing Farrar v. Hobby, 506 U.S.

103, 112 (1992)), “or a final victory on a material if not

predominant claim,” id., 8 (citing Texas State Teachers

Assn., 489 U.S. at 791-93).

But a plaintiff does not prevail under the “catalyst

theory”—the theory that a plaintiff “prevails” when

“he ‘achieves the desired result because the lawsuit

brought about a voluntary change in the defendant’s

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conduct.’” Ibid. (quoting Buckhannon Bd. & Care

Home, Inc. v. W. Va. Dep’t of Health & Human Res.,

532 U.S. 598, 601 (2001)). The Court rejected the “catalyst theory” “because there had been no ‘judicially

sanctioned change in the legal relationship of the parties,’” i.e., “[t]he defendant’s voluntary actions

‘lack[ed] the necessary judicial imprimatur.’” Ibid.

(quoting Buckhannon, 532 U.S. at 605). The Court required “judicial relief” to prevent against a plaintiff

“prevailing” on a “potentially meritless lawsuit.” Ibid.

(citing Buckhannon, 532 U.S. at 606) (quoting Buckhannon, 532 U.S. at 634 (Ginsburg, J., dissenting))).

The Lackey opinion built on these prevailing-plaintiff precedents. Slip Op., 9. To prevail, a plaintiff must

obtain an “enduring” change in the legal relationship

between the parties. Ibid. (citing Sole v. Wyner, 551

U.S. 74, 77 (2007)). Further, “the change must be ‘judicially sanctioned.’” Ibid. (quoting Buckhannon, 532

U.S. at 605). Lackey established “that the enduring

nature of the change must itself be judicially sanctioned,” making the transient nature of a preliminary

injunction insufficient for a plaintiff to prevail. Ibid.

“Rather, a plaintiff ‘prevails’ under the statute when a

court conclusively resolves a claim by granting enduring judicial relief on the merits that materially alters

the legal relationship between the parties.” Ibid.

But in the star footnote, the Court explained that

while this clarifies the test for when a plaintiff prevails, “[a] different body of caselaw addresses when a

defendant is a ‘prevailing party’ for the purposes of

other fee-shifting statutes.” Id., n.*. “Our decision today should not be read to affect our previous holding

that a defendant need not obtain a favorable judgment

on the merits to prevail, nor to address the question

we left open of whether a defendant must obtain a

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preclusive judgment in order to prevail.” Ibid., n.* (citing CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419,

431-34 (2016)).

B. The Eleventh Circuit’s Decision Imported

Requirements From the Prevailing Plaintiff

Body of Caselaw Into the Test for Determining

Whether the Defendant Prevailed.

1. The Eleventh Circuit’s decision below imports

the requirements of obtaining a “judicially sanctioned”

change in the parties’ legal relationship, i.e. the prevailing plaintiff requirements from Buckhannon and

Texas State Teachers Assn., into the test for determining whether a defendant has prevailed. Pet. App. 3a4a (quoting Affordable Aerial, 108 F.4th at 1362 (citing Texas State Teachers Assn., 489 U.S. at 792-93 and

quoting CRST, 578 U.S. at 422)). For a defendant to

prevail in the Eleventh Circuit, “a ‘court itself must

act to reject or rebuff the plaintiff’s claims.’” Pet. App.

4a (quoting Affordable Aerial, 108 F.4th at 1363).

That precedent from Affordable Aerial, however,

was based on Buckhannon’s “requiring ‘a court-ordered “chang[e] [in] the legal relationship between

[the plaintiff] and the defendant.’” Affordable Aerial,

108 F.4th at 1363 (quoting Buckhannon, 532 U.S. at

604 (quoting Texas State Teachers Assn., 489 U.S. at

792)) (alterations in original). “[S]ome judicial action

rejecting or rebuffing a plaintiff’s claim is necessary to

endow a defendant with prevailing party status . . . .”

Pet. App. 4a (quoting Affordable Aerial, 108 F.4th at

1364 (citing CRST, 578 U.S. at 422, 431)). 2 In so doing, the Eleventh Circuit cited to both the body of

2 The decision below miscited to page 1365 of Affordable Aerial,

but that quoted material is found on page 1364. Compare Pet.

App. 4a with Affordable Aerial, 108 F.4th at 1364.

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caselaw for prevailing plaintiffs, CRST, 578 U.S. at

422, and the body of caselaw for prevailing defendants,

id. at 431, unifying this Court’s distinct legal tests,

Pet. App. 4a.

Incorporating those prevailing-plaintiff requirements in the test for whether a defendant prevails, the

Eleventh Circuit held that a defendant which successfully prevents the plaintiff from materially altering

the parties’ legal relationship, even if obtaining a preclusive dismissal, nevertheless does not “prevail” unless the dismissal “is owed to an[] action of the district

court.” Pet. App. 4a-6a (citing Affordable Aerial, 108

F.4th at 1364-65). The Eleventh Circuit held that

even dismissals “with prejudice,” if they does not satisfy the test for prevailing plaintiffs, “are ‘not the stuff

of which [a defendant’s] legal victories are made.’”

Pet. App. 6a (quoting Affordable Aerial, 108 F.4th at

1365 (quoting Hewitt v. Helms, 482 U.S. 755, 760

(1987))) (alterations in original). Again, the Eleventh

Circuit relied on this Court’s prevailing-plaintiff body

of caselaw from Hewitt to decide whether the defendant prevailed. Pet. App. 6a.

2. As in Affordable Aerial, the Eleventh Circuit’s

decision unified this Court’s body of caselaw for prevailing plaintiffs with its body of caselaw for prevailing defendants, holding that “some judicial action rejecting or rebuffing a plaintiff’s claim is necessary to

endow a defendant with prevailing party status,” see

Pet. App. 4a (citing 108 F.4th at 1364 (citing CRST,

578 U.S. at 422, 431)) (emphasis added). But CRST

only addressed the requirement of “some judicial action,” i.e., “judicial imprimatur,” in the context of explaining the Court’s prevailing plaintiff precedents.

578 U.S. at 422 (citing Buckhannon, 532 U.S. at 60405). In CRST the Court drew a distinction between

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prevailing plaintiff cases and its newly articulated

test for whether a defendant prevailed. Id. at 423. Despite the contrast articulated by this Court, the Eleventh Circuit looked to the Court’s other statement that

the term “prevailing party” should be interpreted in a

consistent manner across various fee-shifting statutes

as meaning that the Court’s “prevailing party” precedent was a unified body of caselaw. Pet. App. 3a-4a;

see also Affordable Aerial, 108 F.4th at 1362 (citing

CRST, 578 U.S. at 422 (citing Buckhannon, 532 U.S.

at 603 and n.4)); id. at 1364-65 (requiring judicially

sanctioned relief for a defendant to prevail).

The holding in Affordable Aerial, applied in the decision below, was based on unifying this Court’s prevailing defendant caselaw with its prevailing plaintiff

caselaw. Pet. App. 4a-6a; Affordable Aerial, 108 F.4th

at 1364-65. Under CRST, a defendant “prevails”

“whenever the plaintiff’s challenge is rebuffed, irrespective of the reason for the court’s decision,” even for

nonmerits reasons. 578 U.S. at 431. A plaintiff, however, must obtain a judicially sanctioned change in the

parties’ legal relationship to prevail. Id. at 422 (citing

Buckhannon, 578 U.S. at 604-05). The Eleventh Circuit’s holding in Affordable Aerial unified those two

bodies of caselaw. 108 F.4th at 1364 (citing CRST, 578

U.S. at 422, 431).

The star footnote in Lackey rejects that underlying

premise of the Eleventh Circuit’s precedent and the

decision below, clarifying that there is not a unified

body of caselaw for determining whether a party is a

“prevailing party.” Slip Op. at 9 and n.*. Instead,

there is a body of caselaw for determining whether a

plaintiff is a “prevailing party,” and “[a] different body

of caselaw” for determining whether a defendant is a

“prevailing party.” Lackey, Slip Op., 9 and n.*. The

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Eleventh Circuit did not have the benefit of the Court’s

delineation of these two “different” bodies of caselaw

when it decided the case below.

C. Rehearing and a “GVR” Should Be Granted to

Allow the Eleventh Circuit to Reconsider Its

Decision in Light of Lackey.

1. Because the Court’s intervening decision in

Lackey rejects the premise of the Eleventh Circuit’s

decision below, the Eleventh Circuit should be permitted to correct its precedent and reevaluate this matter

with guidance from Lackey. Because the decision in

Affordable Aerial is precedential, it has the potential

to impact a significant number of cases within the

Eleventh Circuit before another opportunity arises for

the Eleventh Circuit to reevaluate that precedent in

light of Lackey. A GVR here would provide the Eleventh Circuit with that opportunity.

2. Further, a petition for rehearing in Affordable

Aerial was filed on March 21, 2025, that requested a

GVR for the same reasons as addressed in this petition. No. 24-688 (U.S., Mar. 21, 2025). As addressed

above, the Eleventh Circuit’s decision below was based

on the application of Affordable Aerial and its unification of the prevailing defendant body of caselaw with

the distinct prevailing-plaintiff body of caselaw for determining a prevailing party. A GVR in Affordable

Aerial will remove the precedent upon which the Eleventh Circuit relied when deciding this case. In which

case, a GVR would also be warranted here.

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CONCLUSION

This Court should grant this rehearing petition

and the petition for a writ of certiorari, vacate the

Eleventh Circuit’s decision below, and remand

(“GVR”) in light of Lackey.

Respectfully submitted,

ANDREW D. LOCKTON

Counsel of Record

EDWARD F. MCHALE

MCHALE & SLAVIN, P.A.

2855 PGA Boulevard

Palm Beach Gardens, FL 33401

(561) 625-6575

alockton@mchaleslavin.com

April 2025

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CERTIFICATE OF COUNSEL

AB counsel of record for the petitioner, I hereby cer­

tify that this petition for rehearing is restricted to the

grounds specified in Rule 44.2 and is presented in good

faith and not for delay.

Counsel of Record

April 2025