Amicus Curiae Brief — Sole v. Wyner

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No. 06-531 DUPRE NM)

In the Supreme Court of the Cnited States

MICHAEL W. SOLE, SECRETARY, FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION,

ET AL., PETITIONERS

T. A. WYNER, ETAL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

PAUL D. CLEMENT

Solicitor General

Connsel of Record

GREGORY G. GARRE

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitar

General

MICHAEL JAY SINGER

MICHAEL E. ROBINSON

Attorneys

Departinent of Justice

Washington, D.C. 20580-0001

(202) 914-2216

QUESTION PRESENTED

Whether a party who fails to secure any relief on the

merits of her claims is nonetheless a “prevailing party,”

for purposes of eligibility for an award of attorney’s fees

under 42 U.S.C. 1988(b), because she obtained a pre-

liminary injunction at the beginning of the litigation.

(1)

TABLE OF CONTENTS

Page

i eb eenuendneeae 1

a a i hal ol 1

eo eves esnsendakadhenssctabe 7

Argument:

A party who obtains no relief on the merits of any of her

claims does not become a prevailing party solely by

having obtained a preliminary injunction at the outset of

EE Se ee ee ey See he Pee 8

A. Respondents are not “prevailing parties”

because fee liability depends critically upon

I dig en Kccles riebdeneeteneens iy)

B. Parties who obtain a preliminary injunction do

not prevail “on the merits” ................--..006- 11

1. A party cannot “prevail” without final relief ..... 11

2. Precedent forecloses reliance on interim relief ... 14

3. The nature of a preliminary injunction pro-

ceeding is inappropriate for taxing attorney’s

iD canccisdittnibes waeieeeke denvedderssders 17

C. A preliminary injunction does not effect a

material change in the parties’ legal relationship .... 21

1. Briefly engaging in desired conduct does not

suffice when no enduring relief is granted ...... 21

2. No as-applied challenge was resolved ........... 24

3. No substantive legal issue was decided .......... 27

EE fice cccnaninSinsedhsdteeeduskeonksovensesay 30

TABLE OF AUTHORITIES

Cases:

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,

NN ee Cai nkbebenevedenne i)

Cases—Continued: Page

Arizonans for Official English v. Arizona, 520 U.S.

EE ei ceecdas casey eduens adel cuensens cians 3

Avery v. Wilson, 20 F. 856 (C.C. W.D.N.C. 1884) ...... 19

Berger v. United States, 295 U.S. 78 (1935) ............ 26

Bradley v. School Bd., 416 U.S. 696 (1974) .......... 14, 23

Brown v. Chote, 411 U.S. 452 (1973) ............... 18, 19

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

Dep't of Health & Human Res., 532 U.S. 598

EEE Peer eT ee TTT er Tere Tee te Tree passim

Carroll v. President & Comm'rs of Princess Anne,

i i oh eee eee Cease ay 29

Chambers v. NASCO, Inc., 501 U.S. 32 (1991) ......... 27

Christiansburg Garment Co. v. EEOC, 434 U.S. 412

Dt i. adele chhined ant Giada dee eteke ene as 29

DeLorean Motor Co., In re, 755 F.2d 1223 (6th Cir.

Gldgik ieee ed ears ries Clee Coeds wat ueai 13

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) ... 12, 13, 26

Farrar v. Hobby, 506 U.S. 103 (1992) ......... 9, 10, 17, 23

Firefighters Local Union No. 1784 v. Stotts, 467 U.S.

0) | ee (da tideksnenebeoustheenannns® 17

Gompers v. Bucks Stove & Range Co., 221 U.S. 418

PY dich dacede bya abdech bend iabeed shes ures use 27

Goodyear Dental Vulcanite Co. v. Osgood, 10 F. Cas.

739 (C.C. D. Mass. 1877) (No. 5594) ............... 19

Granny Goose Foods, Inc. v. Brotherhood of

Teamsters, Local No. 70, 415 U.S. 423 (1974) ........ 18

Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond

Peet, Fae., GET UE. SRB CDS n cece ccccvccccccces 16

Hanrahan v. Hampton, 446 U.S. 754 (1980) .. 14, 15, 16, 23

Cases—Continued: Page ©

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

Independent Fed’n of Flight Attendants v. Zipes,

GE Wa THOU 6 v0 0sdenstcesekanseneeee 9, 10, 24

John T. v. Delaware County Intermediate Unit,

318 F.3d 545 (3d Cir. 2008) .......... cee e eee eees 12, 27

Kentucky v. Graham, 473 U.S. 159 (1985) ........ 9, 10, 23

Lewis v. Continental Bank Corp., 494 U.S. 472 (1990) ... 22

Louis Vuitton Malletier v. Dooney & Bourke, Inc.,

Re Fo et ee ee 13

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..... 25

Martin v. Franklin Capital Corp., 546 U.S. 132

GD bo 6.06000-606s0c0cuskeseees ns eeseeeeaie 9, 24

Mazurek v. Armstrong, 520 U.S. 968 (1997) ........... 13

Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970) ..... 14

Mitchell v. Forsyth, 472 U.S. 511 (1985) 2.2... 2... ee ee. 27

NAACP v. Detroit Police Officers Ass’n, 46 F.3d 528

GE Gee. SEED nc cceecenccecccasecsnsseeueeee 22

North Carolina Dep't of Transp. v. Crest St. Cmty.

Council, Inc., 470 US. 6 (19BG) 2... ccccccccvccess 12

Palmer v. City of Chicago, 806 F.2d 1316 (7th Cir.

1986), cert. denied, 481 U.S. 1049 (1987) ...... 21, 22, 24

Pottgen v. Missouri State High Sch. Activities Ass'n,

SOB FBG THO Gi Ue. FEF) occ ccccvscesncessepstes 22

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc., 506 U.S. 139. (1998) ......cccscccccccess 27

Rhodes v. Stewart, 488 U.S. 1 (1988) ........... 14, 15, 23

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983)... 9, 10, 24

Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223

CRN Cae: BD vc ovcccvecncesesscéueeseee 26

Cases—Continued: Page

Select Milk Producers, Inc. v. Johanns, 400 F.3d 939 l

EI Ee ee 7, 27

Sierra On-Line, Inc. v. Phoenix Software, Inc., 739

EE PED ccsecceoccecesecuscsccees 16

Smith v. University of N.C., 632 F.2d 316 (4th Cir.

DE nieds aces laddnsakeneensasesdeéececees 22

Smyth v. Rivero, 282 F.3d 268 (4th Cir.), cert. denied,

i Be ences casecaddeue 12, 13

Stimpson v. Brooks, 23 F. Cas. 100 (C.C. S.D.N.Y.

ED nico sd pecegudnnesedsccedsedaces 19

Supreme Ct. of Va. v. Consumers Union of the United

States, Inc.. 446 U.S. 719 (1980) ... 2... cece cece ees 9

Texas State Teachers Ass'n v. Garland Indep. Sch.

Sg GE CPs CGM cc cccccccccccecccceces 17, 23

United States v. United States Smelting Ref. &

Mining Co., 339 U.S. 186 (1950) ...............065- 26

University of Texas v. Camenisch, 451 U.S. 390

EEE TP eTT TT ET TeT TTP CTTTTTTTTe passim

Walker v. City of Birmingham, 388 U.S. 307 (1967) ..... 27

Walters v. National Ass'n of Radiation Survivors,

ES a 14

Watson v. County of Riverside, 300 F.3d 1092 (9th

Cir. 2002), cert. denied, 538 U.S. 923 (2008) ......... 22

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .... 12

Withrow v. Larkin, 421 U.S. 35 (1975) ............005- 16

Vil

Constitution, statutes, and rules: Page

U.S. Const.:

DT incl cick dbeuuedadabeddieaeaeee ene 3, 12, 29

SEE sdadenntendenda ddeudede cddenasedaden 18

Act of Feb. 26, 1853, ch. 80, 10 Stat. 161 ............... 19

Civil Rights Act of 1964, Title VII, 42 U.S.C.

i ee aa ils ee dies ek dae 12

Equal Access to Justice Act, 28 U.S.C. 2412 ............ 1

ED vnnckecdeuieeadecuxansude beenseuhe 27

Se ED Shénndodbden ddnnudedestedens passim

Fed. R Civ. P.:

Rule 65(a)(2) advisory committee note (1996) ....... 20

te wi tits i eke cauaibandanaeds 7, 19, 20, 25

CE vcvviettin6i db denapbadanseusweneddeieed 18

Fla. Admin. Code Ann. (2005):

gc eee aban eedhunaden 2

ED dns od teenie dadtisusenandenssads 2

Miscellaneous:

Black's Law Dictionary: .

ED inde cecneuasdaeendedeensaceeneeeesunt 12

SEED cedcicceeksneecdunsesvecasveceeeces 11,12

LEED ccciuddecksusenusensdoueeaedecuneees 12

CEE Kdncd pdbecndusnkcnoucieadtesséccesens 11

H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976) ........ 14

John Leubsdorf, The Standard for Preliminary

Injunctions, 91 Harv. L. Rev. 525 (1978) ........... 13

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976) .......... 14

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tear a oy <a, ’ b hae nell Tee

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INTEREST OF THE UNITED STATES

This case concerns the proper construction of the

phrase “prevailing party” in establishing eligibility for

attorney’s fees under 42 U.S.C. 1988(b). The Court’s

decision wil! likely govern fee awards not only under

Section 1988(b), but also under numerous other fee-

shifting statutes. See Buckhannon Bd. & Care Home,

Inc. v. West Va. Dep't of Health & Human Res., 532 U.S.

598, 603 n.4 (2001). The United States has a substantial

interest in the resolution of that question both because

meritorious private actions can complement the govern-

ment’s own enforcement efforts under numerous stat-

utes and because the United States itself may be liable

for attorney’s fees under similarly worded laws, see, e.g.,

the Equal Access to Justice Act, 28 U.S.C. 2412. The

United States has participated as amicus curiae in prior

cases involving the proper interpretation of the phrase

“prevailing party.” See Buckhannon, supra; Hewitt v.

Helms, 482 U.S. 755 (1987).

STATEMENT

1. Section 1988(b) of Title 42, United States Code, pro-

vides, in relevant part:

In any action or proceeding to enforce a provision

of section|| * * * 1983 * * * of this title, * * *

the court, in its discretion, may allow the prevailing

party, other than the United States, a reasonable at-

torney’s fee as part of the costs.

2. a. In mid-January 2003, respondent Wyner in-

formed the park manager for the John D. MacArthur

Beach State Park (Beach), that she intended to create a

“temporary art installation” at the Beach on February

14, 2003, that would be “comprised of nude bodies in the

(1)

form of a peace sign.” J.A. 16 9 30. On February 6,

2003, the park manager concluded that “the nudity

planned for |[Wyner’s| activities” was not “expressive

conduct protected by the First Amendment,” and that

the State “has a significant interest in keeping the entire

park open to all visitors during operating hours and that

the decision not to allow nudity * * * is a reasonable

manner restriction.” J.A. 29; see Pet. App. 27a.'_ Wyner

remained “free to conduct [her] activities, absent the

nudity.” J.A. 29; see Pet. App. 27a.”

On February 12, 2003, respondents, Wyner and

George Simon, a videographer in Hawaii, filed a com-

' By regulation, Florida law permits park managers to impose

reasonable time, place, and manner restrictions on speech within state

parks:

Free speech activities include, but are not limited to, public

speaking, performances, distribution of printed material, displays,

and signs. * * * Any persons engaging in such activities can

determine what restrictions as to time, place, and manner may

apply, in any particular situation, by contacting the park manager.

Free speech activities shall not create a safety hazard or interfere

with any other park visitor’s enjoyment of the park’s natural or

cultural experience. The park manager will determine the suit-

ability of place and manner based on park visitor use patterns and

other visitor activities occurring at the time of the free speech

activity.

Fla. Admin. Code Ann. R. 62D-2.014(18) (2005).

* A Florida regulation bans nudity within the limits of state parks,

including its beaches:

In every area of a park including bathing areas no individual shall

expose the human, male or female, genitals, pubic area, the entire

buttocks or female breast below the top of the nipple, with less than

a fully opaque covering.

Fla Admin. Code Ann. R. 62D-2.014(7)(b) (2005).

plaint against the head of the Florida Department of

Environmental Protection and against the park manager

in both his official and individual capacities. J.A. 10;

Pet. App. 28a. The complaint alleged that Wyner “in-

tends to conduct expressive activity in the future at this

park which will include non-erotic displays of nude bod-

ies” and that petitioners’ proposed restrictions “chill|]

Ms. Wyner’s future plans.” J.A. 17137. The complaint

also asserted that Wyner “desires to engage in expres-

sive conduct on Valentine’s Day, February 14, by pro-

ducing, directing, and participating in the display * * *

of nude bodies in the form of a peace sign.” /bid. 1 34.”

The complaint charged that petitioners’ proposed en-

forcement of the ban on nudity at her protest on Febru-

ary 14 would violate the First Amendment. J.A. 18 1 39,

140. The complaint also charged that the Florida Ad-

ministrative Code unconstitutionally “vests unfettered

discretion upon the Park Manager,” ibid. {1 41, and chal-

lenged both that code provision and the ban on nudity on

their face and as applied to “expressive conduct at the

beach,” Pet. App. 3a. The complaint sought (i) injune-

tive relief against interference with the display on Feb-

ruary 14 and “with future expressive activities that may

include non-erotic displays of nude human bodies,” (ii)

declaratory and injunctive relief, and (iii) compensatory,

nominal, and punitive damages. J.A. 18-19.

* [tis doubtful that respondent Simon has standing because he lives

approximately 5000 miles away from the MacArthur Park Beach, and

the complaint alleges only that he desired to observe a single display

four years ago. See J.A. 12% 8, 17 136; see also Arizonans for Officeal

Knglishv. Arizona, 520 U.S. 43, 67 (1997) (standing must exist at every

stage of the litigation). There is, however, no dispute that Wyner has

standing to maintain this action.

b. The same day that they filed their complaint, re-

spondents filed an “Emergency Motion for Temporary

Restraining Order and/or Preliminary Injunction” to

prevent petitioners from enforcing the ban on nudity at

the “Valentine’s Day protest” two days later at the

Beach. J.A. 32. Although “disturbed” by the “exc-ed-

ingly short notice,” which had denied the court adequate

time to read the relevant case law, J.A. 37, the district

court held an emergency hearing the next afternoon.

Petitioners participated by telephone, J.A. 36, explain-

ing that “we are pretty [much] on short notice with this

and we don’t know much of what is going on.” J.A. 38.

At the hearing, respondents introduced a number of

exhibits that petitioners did not have and could not see.

J.A. 53, 55-56. The court overruled petitioners’ objec-

tions to their introduction “because of the time con-

straints.” J.A.56. With the caveat that the government

officials who were available to participate in the emer-

gency hearing by telephone “are not the people that

know the facts all that well,” J.A. 68, petitioners put on

the testimony of the chief of operations for the Florida

Park Service, who testified generally about the process

for authorizing displays at the Beach. J.A. 70-78.

After the bearing, the district court granted the pre-

liminary injunction in an oral decision. J.A. 93. The

court explained that “I’m not prepared to rule at this

point in the proceedings, * * * that the decision was

necessarily made with respect to content, but there are

a number of aspects about it that are worrisome.” /bid.

The court also said that “it does appear to me that there

are alternatives that would be far less restrictive and

could still meet the governmental interests,” and the

viability of “those avenues can well be explored in this

ease.” J.A. 94. The court further reasoned that the

“loss of First Amendment freedom for even minimal

periods of time constitutes irreparable injury.” J.A. 95.

The court concluded that “the issues are somewhat diffi-

cult,” and “I don’t like to decide issues on this quick a

basis, but I do feel like this meets the test of the injunc-

tion.” Jbid.

In a subsequent written opinion, Pet. App. 9a-22a, the

court reiterated tiiat its ruling had rested on “the stan-

dards applied to a preliminary injunction motion,” 7d. at

13a, and that the balance of harms would weigh in favor

of permitting the allegedly expressive conduct to go for-

ward, id. 15a; see id. at 14a. With respect to the “likeli-

hood of success on the merits,” id. at 19a, the court

found that “some of the testimony received at the hear-

ing indicates that content neutrality may not be pres-

ent,” id. at 17a, and that there may be “less restrictive

alternatives,” id. at 19a.

Wyner conducted her display on February 14, 2003,

without interference from petitioners. Wyner and the

other participants, however, did not remain behind the

screen that petitioners had set up to shield the public

from exposure to the nudity. Pet. App. 4a.

3. The district court subsequently granted summary

judgment for petitioners on all claims and dismissed the

complaint. Pet. App. 23a-48a. Noting that both parties

had now “had an adequate opportunity to develop their

arguments” and to make a “complete evidentiary re-

cord| |,” 7d. at 45a, the court first held that petitioners

were entitled to impose reasonable time, place, and man-

ner restrictions on nudist expressive activity. /d. at 35a-

36a. The court further held that the ban on nudity at the

Beach was content neutral and furthered the “important

and substantial government interest” in “protectl{ing]

the public from the ‘offense’ of nudity, and preserves

park aesthetics so that the ‘entire park is open to all

visitors during operating hours.’” /d. at 41a. The court

determined that the ban was “no greater than is essen-

tial to further the government interest” because authori-

ties had been “unable to ensure that those engaged in

the expressive conduct stayed behind the screen,” which

made “a complete ban on nudity * * * necessary.” /d.

at 4la-42a. With respect to the as-applied challenge, the

court denied relief because respondents had failed to

identify “any particular facts to which the regulations

can be applied,” and accordingly treated the claim as

only a facial challenge. /d. at 47a n.3.*

4. The district court granted respondents’ application

for attorneys’ fees for their work obtaining the prelimi-

nary injunction. Br. in Opp. App. la-13a. The court rea-

soned that, while respondents had failed to establish any

of their claims on the merits, they did succeed in pre-

venting petitioners “from interfering with the tempo-

rary art installation planned for February 14, 2003,”

which the court characterized as “one of the primary

purposes for filing this litigation.” Jd. at 3a.

5. The court of appeals affirmed the award of attor-

ney’s fees. Pet. App. la-8a. The court held that fees

were warranted because the preliminary injunction “de-

cided a substantive issue—whether or not the state offi-

cials could arrest the nude peace symbol participants,”

id. at 3a, and the court made no “mistake of law” in issu-

ing the preliminary injunction, id. at 5a. The court ac-

cordingly held that respondents were prevailing parties

* Respondents also sought damages, but the district court dismissed

those claims on qualified immunity grounds. Pet. App. 29a-32a. Re-

spondents’ claim based on the Florida constitution had been dismissed

at an earlier stage. J.A. 19 (Count ID; J.A. 98.

even though “they were unable to achieve actual success

on the merits.” /d. at Ta-8a n.7.

SUMMARY OF ARGUMENT

Respondents filed a complaint seeking permanent

injunctive and declaratory relief, as well as damages, for

alleged violations of the federal and state constitutions.

At the conclusion of the case, no constitutional violations

were found, the defendants’ regulations and their imple-

mentation were vindicated, and all relief was denied. As

a matter of both common sense and precedent, respon-

dents did not prevail; they lost.

That respondents, at the litigation’s earliest stage,

obtained an emergency and short-lived injunction does

not transform them into prevailing parties. “The words

‘preliminary’ and ‘prevailing’ are not ones that easily fit

together.” Select Milk Producers, Inc..v. Johanns, 400

F.3d 939, 962 (D. C. Cir. 2005) (Henderson, J., dissent-

ing). A preliminary injunction is, by definition, only pre-

liminary and temporary relief. The injunction was based

not on a final resolution of the substantive merits of re-

spondents’ claims, but on a balancing of interests and a

hurried prediction about the potential outcome of the

ease. The relief afforded respondents was transient and

neither survived the conclusion of the litigation nor im-

posed any enduring, material change in the parties’ legal

relations. Parties that wish to convert a preliminary

injunction into a full-blown merits determination may

seek to do so under Federal Rule of Civil Procedure

65(a)(2). But respondents did not make such a request;

the time limitations that necessitated informal and trun-

cated proceedings on an undeveloped factual record pre-

cluded such conversion; and the district court ultimately

did not embrace respondents’ legal position on the mer-

its.

Fundamental fairness precludes imposing fee liability

on a fully vindicated defendant for a preliminary pro-

ceeding that, by its nature, denied the defendant an ade-

quate opportunity to develop and present the controlling

facts and law. Preliminary injunction proceedings fre-

quently involve rushed judgments based on immature

records, and the ordinary rules of procedure and evi-

dence do not apply. Plaintiffs, moreover, have substan-

tial control over the timing of requests for preliminary

relief, the contours of the relief sought, and many of the

critical facts on which the allegations rest. As a result,

a defendant’s ability to defend its position on the merits

at that juncture is often substantially compromised and

a hazardous indicator of ultimate success on the merits.

What is more, determinations at this stage often turn on

issues of irreparable injury, which may be inherently

easy to satisfy for certain types of claims, yet may have

little relationship to the ultimate likelihood of success on

the merits. Nothing in the text of the attorney’s fee pro-

vision, its legislative history, its purpose, or this Court’s

precedent suggests that Congress intended to saddle

fully vindicated defendants—particularly state govern-

ments—with attorney’s fees for such interim relief.

ARGUMENT

A PARTY WHO OBTAINS NO RELIEF ON THE MERITS OF

ANY OF HER CLAIMS DOES NOT BECOME A PREVAILING

PARTY SOLELY BY HAVING OBTAINED A PRELIMINARY

INJUNCTION AT THE OUTSET OF THE LITIGATION

Like Hewitt v. Helms, 482 U.S. 755 (1987), “|tlhis

case presents the peculiar-sounding question whether a

party who litigates to judgment and loses on all of his

claims can nonetheless be a ‘prevailing party’ for pur-

poses of an award of attorney’s fees,” id. at 757. As in

Hewitt, the answer to that question is not peculiar; the

answer is “no.” “Respect for ordinary language requires

that a plaintiff receive at least some relief on the merits

of his claim before he can be said to prevail.” /d. at 760.

The starting point for any claim of eligibility for attor-

ney’s fees is the “American Rule” that “the prevailing

litigant is ordinarily not entitled to collect a reasonable

attorneys’ fee from the loser.” Alyeska Pipeline Serv.

Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975). Courts

generally may not depart from that rule “absent explicit

statutory authority.” Buckhannon Bd. & Home Care,

Inc. v. West Va. Dep't of Health & Human Res., 532 U.S.

598, 602 (2001) (emphasis added). Section 1988(b) con-

tains no direction, explicit or otherwise, that courts

should “go[] so far as to force a vindicated defendant,”

Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983), to

pay for the burden of being subjected to an interim con-

straint by a plaintiff whose claims ultimately proved,

upon full examination, to be without merit.

A. Respondents Are Not “Prevailing Parties” Because Fee

Liability Depends Critically Upon Merits Liability

This Court has repeatedly admonished that “liability

on the merits and responsibility for fees go hand in

hand.” Kentucky v. Graham, 473 U.S. 159, 165 (1985);

see Farrar v. Hobby, 506 U.S. 108, 109 (1992); /nde-

pendent Fed’n of Flight Attendants v. Zipes, 491 U.S.

754, 763 (1989); Supreme Court of Va. v. Consumers

Union of the United States, Inc., 446 U.S. 719, 738-739

(1980). Under Section 198&8(b), like many other federal

fee-shifting statutes, establishing “liability for violation

of federal law” is “crucial” to rendering the defendant

responsible for attorney’s fees, Zipes, 491 U.S. at 762;

see Martin v. Franklin Capital Corp., 546 U.S. 132, 137

(2005) (presumption in favor of fees in civil rights cases

depends critically upon the defendant “violating sub-

stantive federal law”).

That “crucial connection” to merits liability, Zipes,

491 U.S. at 762, is missing in this case. Respondents

filed suit and lost. Both counts of their complaint were

dismissed. Pet. App. 46a; J.A. 18-20, 98. No constitu-

tional violations were found. Pet. App. 23a-48a. Quite

the opposite, the litigation fully vindicated the defen-

dants’ policies and practices. /bid. No damages, declar-

atory judgment, or final injunctive relief was obtained.

Ibid. In short, respondents did the very opposite of

prevailing—they lost. “{WJhere a defendant has not

been prevailed against, * * * § 1988 does not authorize

a fee award against that defendant.” Farrar, 506 U.S.

at 109; see Hewitt, 482 U.S. at 760. Only a party that is

“legally responsible for relief on the merits * * *

[should] bear fee liability,” Graham, 473 U.S. at 164.

Indeed, it would be “quite ‘inappropriate’” and “a radi-

cal departure from longstanding fee-shifting principles

adhered to in a wide range of contexts” for a court “to

award the ‘loser’ an attorney’s fee from the ‘prevailing

litigant.’” Sierra Club, 463 U.S. at 683, 684.

The court of appeals carved out an exception to that

established rule for cases where a losing plaintiff obtains

a preliminary injunction at the outset of the litigation,

Pet. App. 2a-5a. That exception, however, lacks any an-

chor in statutory text, ignores this Court’s precedent,

and misconstrues the nature of such preliminary rulings.

B. Parties Who Obtain A Preliminary Injunction Do Not

Prevail “On The Merits”

In Buckhannon, this Court held that a “prevailing

party” means a party who had obtained either an “en-

forceable judgment|] on the merits” or a “court-ordered

consent decree] |.” 532 U.S. at 604. Those forms of re-

lief, the Court explained, embody the type of “‘material

alteration of the legal relationship of the parties’ neces-

sary to permit an award of attorney’s fees.” Jbid. Be-

cause there was no consent decree in this case, respon-

dents are only eligible for attorney’s fees if their prelim-

inary injunction constituted a “judgment on the merits.”

It did not because a “judgment on the merits” means

final relief on a litigated claim.

1. A party cannot “prevail” without final relief

Requiring a “judgment|] on the merits” gives mean-

ing to the statutory command that only a “prevailing

party” can obtain attorney’s fees. Buckhannon, 532

U.S. at 603-604. “[P]revailing party” is “a legal term of

art,” that refers to “[a] party in whose favor a judgment

is rendered.” /d. at 603 (quoting Black’s Law Dictio-

nary 1145 (7th ed. 1999)). Importantly, at the time Con-

gress enacted Section 1988(b), that legal term of art ex-

pressly conditioned “prevailing party” status on obtain-

ing a favorable final or dispositive judgment. Only

“{t}he party ultimately prevailing when the matter is

finally set at rest” is a “prevailing party.” Black’s Law

Dictionary 1352 (rev. 4th ed. 1968); see ibid. (defining

“prevailing party” as the party “who successfully prose-

cutes the action or successfully defends against it”) (em-

phases added). Indeed, that legal definition stressed

that “prevailing party” status did not turn upon “the

degree of success at different stages of the suit,” but on

“whether, at the end of the suit, or other proceeding, the

party who has made a claim against the other, has suc-

cessfully maintained it.” /bid.°

In granting a preliminary injunction, by contrast, a

court does not issue any controlling judgment or “set at

rest” the ultimate merits of the parties’ legal claims. To

the contrary, “(t]he two issues”—appropriateness of a

preliminary injunction and resolution of the mer-

its—“are significantly different.” University of Texas

v. Camenisch, 451 U.S. 390, 393 (1981). In issuing a pre-

liminary injunction, a court does not decide that the

plaintiff is “prevailing,” has prevailed, or will prevail. At

most, the court makes a prediction about “the likelihood

that [the movant] ultimately would prevail,” and even

that is only one component in the court’s multi-factor

calculus. Doran v. Salem Inn, Inc., 422 U.S. 922, 932

(1975). Irreparable injury is another critical factor, yet

satisfaction of that factor often is unrelated to ultimate

success on the merits. Indeed, for some claims, like the

First Amendment claim made here, courts routinely find

that the irreparable injury factor is easily satisfied. See

J.A. 95 (“{C]Jourts have said that loss of First Amend-

* See also Black’s Law Dictionary 1069 (5th ed. 1979) (same). That

same definition operated at the time Congress enacted the attorney's

fee provision of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(k), on

which Section 1988(b) was modeled, North Carolina Dep't of Transp.

v. Crest St. Cmty. Council, Inc., 479 U.S. 6, 20-21 (1986). See Black’s

Law Dictionary 1412 (3d ed. 1933).

" See Camenisch, 451 U.S. at 393; see also Weinberger v. Romero-

Barcelo, 456 U.S. 305, 312 (1982) (emphasizing the role of the public

interest in equitable relief); John T. v. Delaware County Intermediate

Unit, 318 F.3d 545, 558 (3d Cir. 2003) (preliminary injunction does not

support fees “because it is interim relief not based on the merits”);

Smyth v. Rivero, 282 F.3d 268, 276 (4th Cir.), cert. denied, 587 U.S. 825

(2002).

ment freedom for even minimal periods of time consti-

tutes irreparable injury.”). What is more, a number of

courts have held that, as the risk of irreparable injury

increases, the need to demonstrate a likelihood of suc-

cess decreases, which further widens the gap between

actual success and the prediction that occurs at the pre-

liminary injunction stage.‘

Section 1988(b), however, predicates an award of at-

torney’s fees on actually “prevailing,” not on a predic-

tion about prevailing, made with variable degrees of

confidence by different courts. The court of appeals, in

other words, “improperly equate[d] ‘likelihood of suc-

cess’ with ‘success.’” Camenisch, 451 U.S. at 394; see

Doran, 422 U.S. at 932. Here, the district court ex-

pressly rested the injunction on a balancing of interests

and an explicitly tentative prediction—with which the

court expressed discomfort, J.A. 95—that respondents

had a likelihood of success on the merits. Pet. App. 16a-

19a; J.A. 93-95. That preliminary evaluation of respon-

dents’ claim, moreover, was “not binding” when the dis-

* See, e.g., Mazurek v. Armstrong, 520 U.S. 968, 970 (1997) (per

curiam) (court of appeals required only a “fair chance of success on the

merits”); Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F 3d

108, 113-114 (2d Cir. 2006) (“serious question going to the merits”);

Smyth, 282 F.3d at 276 (“substantial question”); Jn re DeLorean Motor

Co., 755 F.2d 1223, 1229-1230 (@th Cir. 1985) (“serious question”).

Courts also consider whether the injunction is mandatory or prohibi-

tory, or whether it would alter or preserve the status quo. Putting

aside the inherent challenges in defining and applying such terms, see

generally John Leubsdorf, The Standard for Preliminary Injunctions,

91 Harv. L. Rev. 525 (1978), all of those factors at least offset, if not

discount, the role of the likelihood of prevailing in the preliminary

injunction analysis. Moreover, some claims by their very nature readily

satisfy the irreparable injury factor without reference to how likely it

is that the claim is meritless. See J.A. 95.

trict court ultimately decided the case “on the mer-

its,” Camenisch, 451 U.S. at 395, and thus cannot itself

be characterized as a “judgment{] on the merits,”

Buckhannon, 532 U.S. at 604; see Walters v. National

Ass'n of Radiation Survivors, 473 U.S. 305, 317 (1985)

(“[A|ny conclusions reached at the preliminary injunc-

tion stage are subject to revision.”).

“Congress is free, of course, to revise” Section 1988(b)

to make “a substantial likelinood that the party request-

ing fees would have prevailed” the operative test,

Buckhannon, 532 U.S. at 622 (Scalia, J., concurring), but

it has not done so yet, and certainly has not done so

“explicit{ly|,” id. at 602 (majority op.).”

2. Precedent forecloses reliance on interim relief

Consistent with that statutory text, this Court’s pre-

cedents establish that transitory relief obtained in the

course of litigation, which does not survive the conclu-

sion of the case, does not confer “prevailing party” sta-

tus. In Rhodes v. Stewart, 488 U.S. 1 (1988) (per

curiam), two prisoners obtained declaratory judgments

invalidating a prison’s magazine subscription policy. /d.

at 2. They nevertheless were not deemed to be prevail-

ing parties because, at the time those judgments were

entered, neither remained in prison, which made the

* Nothing in the legislative history detracts from the plain import of

“prevailing.” In fact, the cases the legislative history cites as fee-shift-

ing models, see H.R. Rep. No. 1558, 94th Cong., 2d Sess. 8 (1976)

(citing, inter alia, Bradley v. School Bd., 416 U.S. 696 (1974); Mills v.

Electric Auto-Lite Co., 396 U.S. 375 (1970)); S. Rep. No. 1011, 94th

Cong., 2d Sess. 5 (1976) (same), involved attorney's fee awards based

either on final decisions on the merits, Bradley, 416 U.S. at 699 & n.1,

722-724; Mills, 396 U.S. at 389-390, or consent decrees, see S. Rep. No.

1011, supra, at 5. See also Hanrahan v. Hampton, 446 U.S. 754, 757

(1980) (per curiam) (discussing significance of Bradley and Milis).

declaratory relief of no continuing benefit. /d. at 4. The

Court explained that a judgment “will constitute relief,

for purposes of § 1988, if, and only if, it affects the be-

havior of the defendant toward the plaintiff” at the time

the final judgment is entered. /bid. Where intervening

events moot the case “before judgment issue[s],” so that

entry of final judgment “afford{s] the plaintiffs no relief

whatsoever,” 7bid., the plaintiffs have not prevailed and

thus are ineligible for attorney’s fees.

Like the declaratory judgments obtained by the plain-

tiffs in Stewart, the interim relief respondents obtained,

which pertained to a single demonstration at a finite

time, was mooted by the time judgment was entered in

the case. At the end of the case, respondents had ob-

tained no relief that, at that time or going forward, could

“affect{] the behavior of the defendant|{s] toward the

plaintiffis].” Stewart, 488 U.S. at 4. To the contrary,

the district court here upheld the Florida regulations in

their entirety.

Likewise, in Hewitt, the Court held that obtaining a

favorable “interlocutory ruling” (a denial of a motion to

dismiss) did not accord the plaintiff prevailing party

status, because that interim ruling did not endure to

final judgment and did not ultimately compel the defen-

dant to give the plaintiff any relief in terms of damages

or changed behavior. 482 U.S. at 760-761. Such tran-

sient successes—“even legal holdings en route to a final

judgment,” id. at 762—are “not the stuff of which legal

victories are made,” id. at 760.

And again, in Hanrahan v. Hampton, 446 U.S. 754

(1980) (per curiam), the Court held that favorable “pro-

cedural or evidentiary rulings” that arise in the course

of a “disposition on the merits” are “not matters on

which a party could ‘prevail’ for purposes of shifting his

counsel fees to the opposing party,” id. at 759. Orders

with such substantive impact as the reversal of directed

verdicts or ordering a case to trial, id. at 756, 758, the

Court held, will not even permit an interim award of at-

torney’s fees, id. at 757-758, let alone a final award as a

prevailing party. As long as a court or jury “may or may

not decide some or all of the issues in favor of the | plain-

tiffs],” id. at 759, the plaintiff has not “established the

liability of the opposing party,” id. at 757, and thus has

not “prevailed on the merits of at least some of his

claims,” and is ineligible for fees, id. at 758.

Given that Hanrahan precludes even an interim

award of fees in advance of a judgment “establish[ing]

the liability of the opposing party,” 446 U.S. at 757,

there is no basis for a final award of fees in a case where

liability is completely absent. The preliminary injunc-

tion, like the favorable interlocutory rulings obtained by

the plaintiffs in Hewitt and Hanrahan, neither “estab-

lished the liability” of petitioners nor resolved a claim

“on the merits,” Hewitt, 482 U.S. at 760. Such an inter-

locutory decree “is not the end but the means,” 7d. at

761, of ensuring the orderly resolution of civil litigation

and preserving the court’s ability to provide effectual

relief if the plaintiff prevails. “[A] preliminary injunc-

tion is granted to a plaintiff to protect his interests dur-

ing the ensuing litigation.” Withrow v. Larkin, 421

U.S. 35, 43 (1975) (emphasis added).”

* See also Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond

Fund, Inc., 527 U.S. 308, 317 (1999) (characterizing the question

whether a preliminary injunction “should have issued when it did” as a

“procedural issue” in the litigation); Camenisch, 451 U.S. at 395; Sierra

On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir.

1984) (“A preliminary injunction, of course, is not a preliminary

adjudication on the merits but rather a device for preserving the status

The preliminary injunction thus serves as a device

that courts employ “en route to a final judgment,” Hew-

itt, 482 U.S. at 762, but is not itself a final judgment on

the merits and it does not “settl[e|” the parties’ dispute,

id. at 761. Section 1988(b) requires, “at a minimum,”

that a party claiming to have prevailed “be able to point

to a resolution of the dispute which changes the legal

relationship between itself and the defendant, Texas

State Teachers Ass’n v. Garland Indep. Sch. Dist., 489

U.S. 782, 792 (1989) (emphasis added); see Farrar, 506

U.S. at 111. Such resolution is an “absolute limitation”

upon fee liability. Garland, 489 U.S. at 792.

3. The nature of a preliminary injunction proceeding is

inappropriate for taxing attorney’s fees

The “significant procedural differences between pre-

liminary and permanent injunctions,” Camenisch, 451

U.S. at 394, make the issuance of a preliminary injunc-

tion a particularly unsound basis for imposing attorney’s

fee liability. A defining feature of preliminary injunc-

tions is the need for prompt judicial intervention and, as

a result, they “are often harried affairs.” Firefighters

Local Union No. 1784 v. Stotts, 467 U.S. 561, 592 n.5

(1984) (Stevens, J., concurring in the judgment); see

Camenisch, 451 U.S. at 395. In the case at hand, re-

spondents filed their complaint and motion for a prelimi-

nary injunction 48 hours before the planned event, and

the district court held a hearing on the application with

less than 24 hours remaining. J.A. 36-37. Such time

pressures can “deprive[] the defendant of valid de-

fenses,” Hewitt, 482 U.S. at 762, and can impair presen-

tation of what limited evidence and arguments the de-

quo and preventing the irreparable loss of rights before judgment.” ).

fense is able to muster on such short notice, see J.A. 68,

70 (defense unable to assemble the most informed offi-

cials for the hearing).

In addition, a preliminary injunction “is customarily

granted on the basis of procedures that are less formal

and evidence that is less complete than in a trial on the

merits.” Camenisch, 451 U.S. at 395; see Brown v.

Chote, 411 U.S. 452, 457 (1973). Discovery is generally

foreclosed, and Seventh Amendment jury trial rights are

forgone. In this case, petitioners were forced to partici-

pate in the hearing by telephone, and the district court

considered documentary evidence that petitioners could

not see. J.A. 53, 55-56. Indeed, the preliminary injunc-

tion decision in this case arose on such extremely short

notice and required such a “hastily arranged hearing”

that the proceeding bore more similarity to a hearing for

a temporary restraining order than for a preliminary

injunction. Granny Goose Foods, Inc. v. Brotherhood of

Teamsters, Local No. 70, 415 U.S. 423, 434 n.7 (1974).

The Federal Rules of Civil Procedure underscore

both the risk of error and the tentativeness inherent in

the preliminary injunction decision by conditioning the

issuance of a preliminary injunction upon “the giving of

security * * * for the payment of such eosts and dam-

ages as may be incurred or suffered by any party who is

found to have been wrongfully enjoined.” Fed. R. Civ.

P. 65(c). That requirement “is rooted in the belief that

a defendant deserves protection against a court order

granted without the full deliberation a trial offers.”

Camenisch, 451 U.S. at 397."

’ Notably, despite the “presumptive rule for costs,” Buckhannon,

532 U.S. at 606 n.8, there does not appear to be a consistent or historic

practice of awarding costs to a party who obtained a preliminary

injunction but then lost on the merits. The first federal statute

In short, when a court issues a preliminary injunction,

“the parties generally will have had the benefit neither

of a full opportunity to present their cases nor of a final

judicial decision based on the actual merits of the contro-

versy.” Camenisch, 451 U.S. at 396. Indeed, the proce-

dures are so truncated that “it is generally inappropri-

ate for a federal court at the preliminary-injunction

stage to give a final judgment on the merits.” /d. at 395;

Brown, 411 U.S. at 456-457. Fundamental fairness re-

quires that a defendant’s liability on the merits or for

attorney’s fees not be affixed until it has had an ade-

quate opportunity to present its side of the case, both on

the facts and the law. Preliminary injunction proceed-

ings simply are not designed to permit the type of thor-

oughgoing and conclusive consideration of the merits

of each party’s position needed to justify saddling

the defendant with responsibility for attorney’s

fees—especially a defendant whose position, upon full

judicial examination, has been upheld.

For plaintiffs who want an injunction based on the

actual merits, Federal Rule of Civil Procedure 65(a)(2)

provides an alternative mechanism. That Rule permits

a district court to “order the trial of the action on the

merits to be advanced and consolidated with the hearing

regulating the award of costs and fees in federal court specifically

limited awards in cases in equity to a “final hearing.” Act of Feb. 26,

1853, ch. 80, 10 Stat. 151; see also Avery v. Wilson, 20 F. 856, 859-860

(C.C. W.D.N.C. 1884) (equity permits costs for a matter “completely

disposed of by the court”); Goodyear Dental Vulcanite Co. v. Osgood,

10 F. Cas. 739 (C.C. D. Mass. 1877) (No. 5594) (applying “final hearing”

rule); Stimpson v. Brooks, 23 F. Cas. 100, 101 (C.C.S.D.N.Y. 1856) (No.

13,454) (denying costs where “[t]he expenses in question accrued on a

motion for a preliminary injunction, which was in no way conclusive

upon either party as to the merits of the cause. * * * Itis the costs on

final hearing alone, which are by the statute chargeable.”).

on the application” for a preliminary injunction. See

also Camenisch, 451 U.S. at 395. The Advisory Commit-

tee Notes on the 1966 Amendment that added Rule

65(a)(2) express the view that “consolidation can be use-

fully availed of in many cases,” and that, where appro-

priate, consolidation “should cause no delay in the dispo-

sition of the application for the preliminary injunction.”

That procedure, of course, will not be available when

either time pressure or the undeveloped state of the

record precludes consolidation, but that simply under-

scores that the grant of temporary relief under those

circumstances was not “on the merits,” Fed. R. Civ. P.

65(a)(2), and instead was granted with the understand-

ing that full examination of the merits would follow."

"This case does not squarely present the question whether a

preliminary injunction that serves as the catalyst for a permanent

change in position by the opposing party renders the plaintiff a

prevailing party when, due to mootness, no final judgment on the merits

results. However, for many of the reasons stated in both Buckhannon

and in this brief, there is no basis for carving out a preliminary-

injunction exception to Buckhannon’s rejection of the catalyst theory.

Indeed, the plaintiffs in Buckhannon had obtained an interim order, |

532 U.S. at 624 (Ginsburg, J., dissenting); Pet. Br. at 3-4 & n.2,

Buckhannon, supra (No. 99-1848), which permitted them to continue

operating throughout the litigation, but neither they nor this Court

ventured to rest prevailing party status on the combination of an

interim order and a catalyst theory. Nor does the legislative history

discuss instances of preliminary injunctions serving as catalysts. What

does seem clear, however, is that, if the filing of a preliminary injunc-

tion request caused a government voluntarily to forgo enforcement of

a statute until a permanent injunction hearing could be held, there

would be no basis for awarding prevailing party status to the plaintiff

who ultimately did not prevail on the merits. There is no greater basis

for affording prevailing party status to a plaintiff who, although he

obtains temporary relief from the court, ultimately does not prevail on

the merits.

C. A Preliminary Injunction Does Not Effect A Material

Change In The Parties’ Legal Relationship

1. Briefly engaging in desired conduct does not

suffice when no enduring relief is granted

The district court held that attorney’s fees were war-

ranted because performing the naked peace symbol dis-

play was “one of the primary purposes for filing this liti-

gation.” Br. in Opp. App. 3a. That is not enough. Pre-

vailing party status depends on more than demonstrat-

ing that, after the complaint was filed, the plaintiff

“s{ot| his way.” Buckhannon, 532 U.S. at 615 (Sealia, J.,

concurring). That is because the “coercive effect of liti-

gation on a defendant is by no means entirely dependent

on the litigation’s having merit.” Palmer v. City of Chi-

cago, 806 F.2d 1316, 1323 (7th Cir. 1986), cert. denied,

481 U.S. 1049 (1987).

To be sure, respondents differ from the plaintiffs in

Buckhannon in two respects. First, the statutory

change that oecurred in Buckhannon, 532 U.S. at 601,

effected a more concrete, enduring, and far-reaching

change in legal rights and obligations than the hours-

long temporary adjustment compelled by the prelimi-

nary injunction in this case. But that difference, which

was still not enough to trigger “prevailing party” status

in Buckhannon, simply underscores the frailty of respon-

dents’ claim that they prevailed in any meaningful sense.

Second, the temporary alteration of circumstances in

respondents’ favor here, unlike in Buckhannon, was the

product of a “judicial pronouncement.” 532 U.S. at 606.

But, as this Court’s cases make clear, see Part B, supra,

it takes more than a single favorable “judicial pro-

nouncement” at the threshold of litigation to confer pre-

vailing party status. Even a party who obtains a perma-

nent injunction will not be considered a prevailing party

if that injunction is overturned or vacated on appeal,

regardless of how much desired conduct that judicial

pronouncement makes possible prior to the reversal.’*

Likewise, temporary restraining orders generally per-

mit the requesting party to engage or avoid engaging in

conduct, but courts have not rested prevailing party sta-

tus on that temporary alteration of obligations.

Unquestionably, the preliminary injunction is an im-

portant judicial tool, and there is no gainsaying that it

may secure highly desired (albeit temporary) relief

sought by a party. Here, for example, the injunction

permitted respondents to conduct a protest. But “pre-

vailing party” status does not turn upon the practical

value of a preliminary injuncticn to the movant.”

° See, e.g., Pottgen v. Missouri State High Sch. Activities Ass'n, 103

F.3d 720, 723-724 (8th Cir. 1997) (“A plaintiff cannot qualify as a

prevailing party if the only bzsis for his claim of success on the merits

is a judgment that has been reversed on appeal.”); Palmer, 806 F.2d at

1320 (“{W hen a judgment on which an award of attorney’s fees to the

prevailing party is based is reversed, the award, of course, falls with

it”); ef. Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990);

Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002)

(“{W hen the plaintiff scores an early victory by securing a preliminary

injunction, then loses on the merits * * * [t]he plaintiff would not be

a prevailing party.”), cert. denied, 538 U.S. 923 (2003); NAACP v.

Detroit Police Officers Ass’n, 46 F.3d 528, 529-530 (6th Cir. 1995);

Smith v. University of N.C., 632 F.2d 316, 352 (4th Cir. 1980) (“{J Just

because an injunction was issued properly does not signify that a

defendant must incur the costs of its issuance when a court has

eventually proclaimed him to be innocent of discriminatory conduct.”).

'’ Of course, while the ability to go forward with the immediate

protest may have been highly desired by respondents, that event also

offered additional proof ti:at the suggested less restrictive alternatives

were not, in fact, effective.

More is needed and, because “fee liability runs with

merits liability,” Graham, 473 U.S. at 168, a favorable

final—not interim—resolution of at least one of the

plaintiff’s claims is what Section 1988(b) requires. Un-

less and until the trier of fact “decide[s] some or all of

the issues in favor of the respondents|,| * * * it could

not seriously be contended that the respondents had

prevailed.” Hanrahan, 446 U.S. at 759. A plaintiff must

“establish[] the liability of the opposing party” and must

“prevail| | on the merits of at least some of his claimsf,]

[flor only in that event has there been a determination

of the ‘substantial rights of the parties.’” Jd. at 757-758.

In other words, “the plaintiff must be able to point to

a resolution of the dispute which changes the legal rela-

tionship” between the parties, and it is that “material

alteration of the legal relationship” that is the “touch-

stone of the prevailing party inquiry.” Garland, 489

U.S. at 792-793 (emphasis added); see Farrar, 506 U.S.

at 111. Indeed, Bradley v. School Board, 416 U.S. 696

(1974), which the legislative history of Section 1988(b)

points to as a model for fee awards, see note 8, supra,

held that “the existence of a final order [is] a prerequi-

site to the award,” id. at 722. Achieving a desired bene-

fit is not enough, see Buckhannon, supra; that achieve-

ment must be the product of actually succeeding on the

merits of a claim, see Garland, 489 U.S. at 791-792;

Stewart, 488 U.S. at 4.

That rule makes sense because the logical predicate

for making a defendant finance the lawsuit filed agains¢.

it is a determination that the defendant wrongfully vio-

lated federal law, and thus that the defendant should

pay the cost of bringing its conduct into conformity with

the law. But a preliminary injunction makes no defini-

tive or conclusive finding about compliance with federal

law and, in fact, the enjoined defendant may be fully

vindicated in the ensuing litigation.

Here, no violation of federal law was proven in court,

and the defendants’ conduct did not prompt a consent

decree imposing a permanent, judicially sanctioned

change in the parties’ legal relations. Petitioners, in

ther words, did not “violate[] federal law,” Martin, 546

U.S. at 137, and they “have not been found to have vio-

lated anyone’s civil rights,” Zipes, 491 U.S. at 762.

Nothing in common sense, or the text, history, or pur-

poses of Section 1988(b), or in “long-standing fee-shift-

ing principles adhered to in a wide range of contexts”

countenances “go[ing] so far as to force a vindicated de-

fendant to pay the plaintiff’s legal expenses,” Sierra

Club, 463 U.S. at 683, 685. The plaintiffs “left the court-

house emptyhanded,” Buckhannon, 532 U.S. at 614

(Sealia, J., concurring), and “people who bring losing

suits must bear their own attorneys’ fees,” Palmer, 806

F.2d at 1323."

2. No as-applied challenge was resolved

Respondents cannot avoid that result by labeling the

preliminary injunction proceeding an “as-applied” chal-

lenge to state law. See Pet. App. 3a; Br. in Opp. App. 4a.

First, whether the underlying challenge was facial or as-

applied does not change the fundamentally temporary

'* While a consent decree does not always include a formal admission

of liability, the deeree remains a final and enduring “court-ordered

‘chang{e] lin] the legal relationship between [the plaintiff] and the

defendant,” Buckhannon, 532 U.S. at 604; see id. at 618 (Scalia, J.,

concurring) (“| |n the case of court-approved settlements and consent

decrees, * * * [t]here is at lest some basis for saying that the party

favored by the settlement or decree prevailed in the suit”). A prelimi-

nary injunction does not impose a similarly final determination of or

enduring change in legal relations.

and non-conclusive character of the court’s preliminary

injunction ruling.

Second, a preliminary injunction that, as a practical

matter, avoids having the statute applied to a particular

event does not amount to a successful as-applied chal-

lenge to the statute. The latter requires a permanent

injunction or other final relief on the merits. To ensure

that the preliminary injunction proceeding resolved

their as-applied challenge on the merits, respondents

could have moved to consolidate the preliminary injunc-

tion hearing with the trial on the merits, see Fed. R. Civ.

P. 65(a)(2). But they did not, choosing instead to seek

temporary reli’ “ under the more forgiving likelihood-of-

success-on-the-merits standard. Having enjoyed the

benefits of that tactical decision, respondents cannot,

after the fact, claim attorney’s fees on the supposition

that the injunction established actual, rather than pre-

dicted, liability on the merits."

' As a procedural matter, the record indicates that the February 14,

2003, event was a single manifestation, rather than the sum total, of the

as-applied challenge. The complaint specifically alleged respondent

Wyner’s intention to engage in similar displays in the future, J.A. 17

{1 37, and, indeed, without such an allegation, Wyner would have lacked

standing after February 14 to press the case forward. See Lujan v.

Defenders of Wildlife, 504 U.S. 555 (1992). The respondents’ challenge

to the bathing suit regulation, moreover, appears to have been ex-

clusively a challenge to the regulation as applied to expressive activity

at MacArthur Beach. Pet. App. 3a. Respondents never argued, for

example, that the bathing suit regulation was unconstitutional as

applied to beachgoers who opposed wearing suits because of tan lines,

rather than because of a desire to engage in expressive activity.

Finally, respondents continued to press their as-applied challenges at

the summary judgment stage, id. at 47a n.3, and lost that claim due to

a failure of proof of any particular facts to which the regulations could

be applied, ibid.

Nor is petitioners’ decision not to appeal the prelimi-

nary injunction of relevance. Whether appealed or not,

the preliminary injunction remained preliminary and

could only have been reviewed as such, see Camevnisch,

451 U.S. at 393-396." Indeed, assuming an appeal could

have been resolved in time to avoid mootness, the court

of appeals would have reviewed the district court's bal-

ancing of equitable factors, including the likelihood of

success, under an abuse-of-discretion standard of re-

view, thereby compounding the gap between the prelimi-

nary injunction decision and the actual merits of the

claim. See Schiavo ex rel. Schindler v. Schiavo, 403

F.3d 1223, 1226 (11th Cir. 2005).

Moreover, here, as is often the case when fees are

sought under Section 1988(b) for equitable relief, the

defendants are state officials charged with making liti-

gation judgments in the public interest. Cf. Bciger v.

United States, 295 U.S. 78, 88 (1935). Given the precipi-

tate timing of the injunction, state officials should not be

penalized for concluding that compliance with the

court’s short-lived order would reflect a better applica-

tion of governmental resources than seeking a highly

disruptive emergency appeal that would have had to

have been briefed and resolved within hours. Congress

did not enact the attorney’s fee statutes to proliferate

the number of highly time-sensitive interlocutory ap-

peals taken by governments for the sole purpose of pro-

tecting the public fise from attorney’s fee liability.

Finally, in permitting fees, the D.C. Circuit has

stressed that a preliminary injunction is an independent

and appealable “judgment” that accords favorable relief

See Doran, 422 U.S. at 932; ef. United States v. United States

Smelting Ref. & Mining Co., 339 U.S. 186, 198-199 (1950) (failure to

appeal temporary injunction does not make it law of the case).

to the movant. Select Milk Producers, Inc. v. Johanns,

400 F.3d 939, 949 (2005). That is true, but beside the

point. Denials of sovereign and qualified immunity and

certifications of class actions are also appealable,'‘ but

would not support an award of fees in the absence of a

final favorable judgment on the merits. Fee liability

requires not just a judgment, but a “judgment on the

merits,” e.g., Buckhannon, 532 U.S. at 605, which a pre-

liminary injunction is not. See Select Milk, 400 F.3d at

955-957 (Henderson, J., dissenting).

3. No substantive legal issue was decided

The court of appeals granted prevailing party status

because (i) “the preliminary injunction * * * decided

a substantive issue—whether or not the state officials

could arrest the nude peace symbol participants,” and

(ii) the injunction was not “based on a mistake of law.”

Pet. App. 2a-3a. Both grounds are flawed.

" See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 139 (1993); Mitchell v. Forsyth, 472 U.S. 511 (1985); Fed. R.

Civ. P. 23(f); ef. 28 U.S.C. 1292(b).

‘For the same reason, the fact that a preliminary injunction is

enforceable through contempt does not render it a ruling on the merits.

Conteinpt is simply a mechanism to enforce judicial orders that, like

many judicial sanctions, “depends not on which party wins the lawsuit,

but on how the parties conduct themselves during the litigation.”

Chambers v. NASCO, Inc., 501 U.S. 32, 53 (1991). A “Contempt Order

can be neither less ‘interim’ nor more ‘merits-based’ than the Prelimi-

nary Injunction itself.” John T., 318 F.3d at 559. Contempt proceed-

ings, in fact, vindicate the court’s authority, not the merits of the

plaintiff's claims, and “are not [even] a part of the original cause.”

Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 445 (1911); see

Walker v. City of Birmingham, 388 U.S. 307 (1967). And, of course,

contempt is available to enforce a permanent injunction that is not

stayed while the appeal is pending, but that does not entitle the plaintiff

to attorney’s fees if the injunction is reversed on appeal.

First, the preliminary injunction plainly did not “de-

cide|} * * * on the merits,” Pet. App. 3a, that state

officials cannot arrest nude peace symbol participants.

The summary judgment decision specifically held that

officials can constitutionally enforce the ban on such

demonstrations. /d. at 4la-45a. With respect to the

February 14 demonstration , the district court was ex-

plicit that the preliminary injunction did not rest upon

a final decision on the merits of the constitutional ques-

tion, id. at 14a-15a, 19a, concluding that “I don’t like to

try to decide|] issues on this quick a basis, but I do feel

like this meets the test of the injunction,” J.A. 95.

In fact, the district court itself twice explained that

the “driving force behind” its issuance of the prelimi-

nary injunction, Pet. App. 47a n.2; Br. in Opp. App. 4a

n.2, was that it “perceived” a risk of discrimination

based on Wyner’s political message, bid. That theory,

however, had never been advanced by respondents in

their pleadings, and arose entirely from the hurried tele-

phonic testimony at the emergency hearing of a state

official who did not “know the facts all that well.” J.A.

68; see J.A. 70, 74. That concern completely evaporated

upon examination at the summary judgment stage, after

the parties had time to compile a proper evidentiary

record and to develop their legal arguments fully, and

after the court was afforded adequate time for delibera-

tion on the constitutional questions presented. Thus, the

record refutes the court of appeals’ conclusion that the

preliminary injunction proceeding resolved any substan-

tive issue of law “on the merits.”

Second, the court of appeals’ emphasis (Pet. App. 3a-

5a) on the absence of a mistake of law in the district

court’s preliminary injunction ruling misses the mark.

Whether or not the district court applied the correct

legal test does not change the fundamentally tentative

and qualified nature of its hurried examination of each

parties’ position and the competing equitable interests.

At most, the existence of critical legal error would pro-

vide a second reason why the preliminary injunction did

not support prevailing party status. But the issue for

attorney’s fee purposes is not whether the preliminary

injunction should have issued; the relevant question is

only whether the plaintiff prevailed on the merits.

The court’s decision also overlooks that, in many

cases, the legal rules are established and it is the proof

of facts that makes all the difference. However, at the

embryonic stage at which most preliminary injunction

proceedings occur, factual development is nascent, and

the “|djecisive facts may not emerge until discovery or

trial.” Christiansburg Garment Co v. EEOC, 434 U.S.

412, 422 (1978). That dearth of facts can be particularly

debilitating to the defendant, who generally has little

control over both the timing and the factual framework

in which a preliminary injunction motion is presented

and decided. The imbalance also exacts a toll on courts

confronted with sensitive First Amendment questions.

“The facts in any case involving a public demonstration

are difficult to ascertain and even more difficult to evalu-

ate,” and that problem is exacerbated when emergency

relief deprives the court of “balanced analysis” and the

time for “careful conclusions.” Carroll v. President &

Comm'rs of Princess Anne, 393 U.S. 175, 183 (1968).

Furthering the imbalance, courts generally find that

First Amendment claims, without regard to the merits,

inherently satisfy the irreparable injury requirement,

see J.A. 95, which in many circuits goes a long way to

ensuring that temporary relief issues.

In this case, the preliminary injunction rested criti-

cally upon two mistakes of fact—the district court’s per-

ception of discrimination based on political content, Pet.

App. 47a n.2; Br. in Opp. App. 4a n.2, and the court’s

assumption that less restrictive alternatives were avail-

able because respondent Wyner would perform behind

a cloth barrier, Pet. App. 4a. Without the time pres-

sures of the emergency motion and with the benefit of a

developed record, both of those factual assumptions

were proven to be incorrect. Nothing in the purposes of

the attorney’s fee provision, this Court’s precedent, or

logic justifies having prevailing party status turn upon

whether it was a hurried-but-mistaken decision of law or

a hurried-but-mistaken decision of fact that resulted in

a now-vindicated defendant being temporarily enjoined

at the outset of the case. What is critical is that the

plaintiffs did not prevail on the merits; why they lost is

largely beside the point.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.