Amicus Curiae Brief — Sole v. Wyner
Supreme Court brief2007
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(9) NAR 2882087
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No. 06-531
Jn the Supreme Court of the Gnited States
MICHAEL W. SOLE, SECRETARY, FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL..
Petitioners,
Vv.
T.A. WYNER, ET AL.
Respondents.
On Writ of Certiorari to the
United States Court of Appeals for the Eleventh Circuit
BRIEF OF AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE, THE
CENTER FOR INQUIRY, THE CENTER FOR PUBLIC
REPRESENTATION, THE INSTITUTE FOR JUSTICE,
LIBERTY LEGAL INSTITUTE, PEOPLE FOR THE
AMERICAN WAY FOUNDATION, PUBLIC CITIZEN,
AND THE RUTHERFORD INSTITUTE
AS AMICI CURIAE IN SUPPORT OF RESPONDENTS
BRETT DIGNAM ANDREW J. PINCUS
GIOVANNA SHAY Counsel of Record
Yale Law School CHARLES A. ROTHFELD
Supreme Court Clinic Mayer, Brown, Rowe &
12° Wall Street Maw LLP
New Haven, CT 06511 1909 K Street, NW
(203) 432-4800 Washington, DC 20006
202) 263-3000
[Additional Counsel Listed on Signature Page]
AAT TSE AeA SRNR SE REPO CRD LIES RIT TST ALENT SOS
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WasHiNGTON, D.C. 20002
TABLE OF CONTENTS
| Page
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INTERESTS OF THE AMICI CURITAE............ccccssccseosseeeceees |
INTRODUCTION AND SUMMARY OF ARGUMENT.....3
IE seteccrscnsiiisentnieninnnisitncseapcingateiiomsaiiiieieiisenmneds 5
A PLAINTIFF WHO OBTAINS A PRELIMINARY
INJUNCTION MAY BE A PREVAILING PARTY
ENTITLED TO ATTORNEYS” FEES. ..........cccscccsoresessess 5
A. When The District Court Never Enters A Final _
Ruling On The Merits, A Plaintiff Who Obtained
A Preliminary Injunction Frequently May Qualify
i icaricitainieincintttiinttnittenesintinihiaaianinimitins 7
1. In Many Instances, A Preliminary Injunction
Is The Only Effective Relief Available To A
SUNT liceinaisinaescicniaiaetndildiiiaaipnaiapsitesibimaiiiiaieandaenibiiis 8
2. A Plaintiff Is A Prevailing Party In A Case
Not Finally Resolved On The Merits If The
Preliminary Injunction Alters The Legal
Relationship Between The Parties And
Provides Relief To The Plaintiff. ....................... 14
3. A Broad Rule Denying Fees To Plaintiffs
Who Win Preliminary Injunctions Would
Burden The Courts With Increased Litigation
And Prevent Vindication Of Crucial
Constitutional And Statutory Rights. ................. 24
B. Except In Rare Circumstances, Plaintiffs Who
Win A Preliminary Injunction Are Not Entitled
To Fees If They Ultimately Lose The Case. ............ 29
SITY scicsisatincnencinnpiseneenestintiqnabnasesnnicdimininensenints 30
TABLE OF AUTHORITIES
Page(s)
CASES
Alyeska Pipeline Service Co. v. Wilderness Society,
a iia tance tte 14
Buckhannon Board & Care Home, Inc. v. West
Virginia Department of Health & Human
Resources, 532 U.S. 598 (2001).........ccecccceeeeeeseeeees passim
Carey v. Phiphus, 435 U.S. 247 (1978) ........cccccccesseeseees 14, 28
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .........200+. 14
City of Riverside v. Rivera, y
Re a ee UT ciciscnieneenniiccienonundinsbencnneniiieanis 14, 23, 28
Coalition for Basic Human Needs v. King,
ee ee a I IID iiicsicseincisnenisciniitciinncetnnsiminaninen 6, 20
Coalition To Protest the Democratic National
Convention v. City of Boston,
327 F. Supp. 2d 61 (D. Mass. 2004)...............cccceeseeceeees 11
DeFunis v. Odegaard, 416 U.S. 312 (1974) 0.0... 12, 13
Doe v. Busbee, 684 F.2d 1375 (11th Cir. 1982)................0 29
Doe v. Marshall, 459 F. Supp. 1190 (S.D. Tex. 1978)........ 12
Doe v. Marshall, 622 F.2d 118 (Sth Cir. 1980)...........00+. 6, 12
Doran v. Salem Inn, Inc., 422 U.S. 922 (1975).........ccccce00ee- 20
Evans Vv. Jeff D., 475 U.S. 717 (1986)..........scccccccscccsecssscceees 27
Franzoy v. Templeman, No. 06-0832
CEDEG, GRE TRUE, Fg I ciccccticcctncesiccntcrncenmcntincnsscsitne 12
Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986)................. 13
Haley v. Pataki, 106 F.3d 478 (2d Cir. 1997).............. 6,9, 10
Hanrahan v. Hampton, 446 U.S. 754 (1980)............. 6, 16, 19
Hensley v. Eckerhart, 461 U.S. 424 (1983) ..............000 23, 24
Hewitt v. Helms, 482 U.S. 755 (1987) ............... 17, 18, 20, 21
ill
TABLE OF AUTHORITIES—continued
Page(s)
Jersey Central Power & Light Co. v. New Jersey,
FE ee ee ek Be isciicnistinitiadinenentiinnaaniana 10, 11
Kay v. Ehrler, 499 U.S. 432 (1991) ...........ceseccccseees 23, 27, 29
Maher v. Gagne, 448 U.S. 122 (1980)... ee. 6, 16, 19
Marek v. Chesny, 473 U.S. 1 (1985)..........cccecsescceesssseeeeeeees 15
Memphis Community School District v. Stachura,
Pe le eR iirsnisnntishiinineinmniuineniinicinmeniiian 28
Million Youth March, Inc. v. Safir,
63 F. Supp. 2d 381 (S.D.N.Y. 1999)...........ccccsscccosesseres 1]
Palmer v. City of Chicago,
BOG F.2d 1316 (7Er Cit. 1966) ...cvcccsescoccccscscescceses 6, 29, 30
Rhodes v. Stewart, 488 U.S. 1 (1988) ......c.ccceseceeseeesseeeneeees 18
Select Milk Producers, Inc. v. Johanns,
SO Fe Fae A. Ce, BD wacscoresncccsecscssensssencens 6, 9, 16
Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002) «0.0.0.0... 7
Taylor v. City of Ft. Lauderdale,
we fT), le ee 6,9
Texas State Teachers Ass'n v. Garland Independent
School District, 489 U.S. 782 (1989)............. 6, 17, 18, 24
Thomas v. National Science Foundation,
er as Ges BI eitnciscicstssscinssincnesesinns 16, 22
Watson v. County of Riverside,
300 F.3d 1092 (9th Cir. 2002)..............cceseseeeeees 6, 13, 29
Webster v. Sowders, 846 F.2d 1032 (6th Cir. 1988) .............. 6
Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980)................. 13
iv
TABLE OF AUTHORITIES—continued
Page(s)
STATUTES
rena saciid 15
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a Oe ee ripiincniniegasctetenensesseannnmuneiaiaitebtinncatibeinbiinninse 15
eas ANNE cseersestticvesisiiiepenianeciannitaeniittnnteiciisieniantinedisituin 15
Fe ee Ua esctesisctecneesnstssapemnigtenesieiintinnaieiinimiaminiapnaiiéemenntn 15
Ete I cietinttinenesanstnntioniinnsreinsdnieonenennnineninioimnnes 15
Lat TIE cnnticintentcinssiihinsinnibeaeeiiinmmenneniedtion Pinssdasniie 15
ie i TE vescssticieniipesictesninieemmndiinninieneinensnninialonveniininies 21
ee: mee nncinviisicacsnnisiipamensiniiennisnentanteniniveninnmeiied 15
ee ie IT crtinencianceseninsitincinvensniitidiomninimmandsianioiion 15
eee Oe I ciiiceecisiisciiaciieintaienitnenianiaininiiiinninneetanijumenets 15
Nase TIE ITE cdiiiesidiictinnesetpniciiiniemepiininninmntainticibeanininieuin 15
Se es SET pietetintnseiccnisierennanninnscrncanieesenninanninitianiti passim
es SD ccncceserenenisnioniamsntannansiionnniconnan, witontin 15
ae NI scipnitecinsitvnctanntiponianenuninnnitnseataddniitaninmionentsiniet 15
ae ee: ee sicciiconianrsnvinsiiinnendananinidnicshinmeiienpubeistonigipaiei 15
a as Or SEIT cnnctittinasininicinsiniscaneanntanrnmneanemaninmeeneiens 15
a i MENU ccitniiiantiraiininiannitientedinndeininuingpsicnmtenmmnapiannsion 15
LEGISLATIVE MATERIALS
ee ee 6, 19
S. Rep. No. 94-1011 (1976), reprinted in 1976
| 2 eee EET 23, 26, 27, 28
H.B. 651, 48th Leg., Ist Sess. (N.M. 2007) .0......cccccseeeeeeees 12
S.B. 535, 48th Leg., 1st Sess. (N.M. 2007).............::ccceeeeees 12
N
TABLE OF AUTHORITIES—continued
Page(s)
MISCELLANEOUS
Randal S. Jeffrey, Facilitating Welfare Rights Class
Action Litigation: Putting Damages and
Attorney's Fees To Work,
GD BOGE, L. RSV. Bi (FIGS) cccorecesssessvecrneessescseesens 26, 27
Stewart J. Schwab & Theodore Eisenberg,
Explaining Constitutional Tort Litigation: The
Influence of the Attorney Fees Statute and the
Government as Defendant,
Fe CIEE Boe SENG. FE GRD csccecestnttenntinininuiemniasciaiiaiians 26
Carl Tobias, Rule 1] & Civil Rights Litigation,
PE Ps Bs SRRU, GD SO scctescncinincainninasaninnntaiininatinas 27
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice & Procedure 2d (2007).................. 20, 21
INTERESTS OF THE AMICI CURIAE
Americans United for Separation of Church and State is
a national, nonsectarian public interest organization with
more than 75,000 members nationwide. Americans United is
committed to preserving the constitutional principles of
religious freedom and separation of church and state. Since
its founding in 1947, Americans United has participated as a
party, counsel, or amicus in many of the leading church-state
cases decided by this Court. Americans United litigates cases
throughout the country, many of which involve
circumstances where a preliminary injunction is the only
available means of relief.
The Center for Inquiry is a nonprofit, educational
organization headquartered in Ambhersi, New York, with
offices in New York City, Washington, D.C., and Los
Angeles. CFI is dedicated to promoting and defending
reason, science, and freedom of inquiry. CFI and its affiliates
have participated as a party or an amicus in litigation
addressing freedom of religion, free speech, and other
fundamental constitutional rights. In many of these cases,
CFI seeks preliminary injunctive relief.
The Center for Public Representation is a public interest
law firm that has been assisting people with disabilities for
over thirty-five years. It is both a state and a nationwide legal
center that provides assistance and support to public and
private attorneys who represent people with disabilities, as
well as federally funded protection and advocacy agencies in
' Pursuant to Rule 37.3 of the Rules of this Court, the parties have
consented to the filing of this brief, and the parties’ letters of
consent have been lodged with the Clerk. This brief was not
written in whole or in part by counsel for a party, and no person or
entity other than the amici curiae and their counsel have made a
monetary contribution to the preparation and submission of this
brief.
i ee ee
2
each of the fifty States. It routinely seeks preliminary
injunctions on behalf of persons with disabilities to ensure
that their constitutional rights, including their right to life-
sustaining care, are protected.
The Institute for Justice is a nonprofit, public interest
law center dedicated to advancing the essential foundation of
a free society: constitutional protection for individual
liberty. Since its founding in 1991, IJ has litigated in federal
and state courts across the country protecting property rights,
freedom of speech, economic liberty, and educational
choice. Like the other amici, IJ on occasion seeks to recover
attorneys’ fees under 42 U.S.C. § 1988 when it successfully
defends the rights enshrined in the United States
Constitution.
The Liberty Legal Institute is a nonprofit law firm
dedicated to the preservation of First Amendment rights and
religious freedom. In its commitment to the protection of
religious liberties of all faiths, the Institute represents
religious institutions and individuals across the country.
People For the American Way Foundation is a
nonpartisan citizens organization established to promote and
protect civil and constitutional rights. Founded in 1980 by a
group of religious, civic, and educational leaders devoted to
our nation’s heritage of tolerance, pluralism, and liberty,
PFAWF now has more than 750,000 members and activists
nationwide. PFAWF regularly represents parties and appears
as an amicus curiae in constitutional and civil nights
litigation. PFAWF has joined this amicus brief because it is
critical to the ability of Americans to vindicate important
constitutional and statutory rights that the availability of
attorneys’ fees to prevailing plaintiffs not be diminished.
Public Citizen is a nonprofit, consumer-advocacy
organization with approximately 100,000 members
nationwide. It appears before Congress, administrative
agencies, and the courts concerning the enforcement of a
3
wide range of health, safety, environmental, and consumer
legislation. Public Citizen has represented a party or filed an
amicus brief in several cases before this Court on attorneys’
fees, including Scarborough v. Principi, 541 U.S. 401
(2004); Buckhannon Board & Care Home, Inc. v. West
Virginia Department. of Health & Human Resources, 532
U.S. 598 (2001); and Kay v. Ehrler, 499 U.S. 432 (1991).
The Rutherford Institute is an international, nonprofit
civil liberties organization headquartered in Charlottesville,
Virginia. Founded in 1982 by its President John W.
Whitehead, the Institute specializes in providing free legal
representation to individuals whose civil liberties are
threatened or infringed and in educating the public about
constitutional and human rights issues. The Rutherford
Institute joins this amicus brief because the prospect of
attorneys’ fee awards is crucial to maintaining and sustaining
the Institute’s mission of providing pro bono legal services.
INTRODUCTION AND SUMMARY OF ARGUMENT
Amici frequently find. themselves on opposite sides of
cases involving the interpretation of the Constitution and
federal statutes. But they all have reached the same
conclusion regarding the issue here: attorneys’ fees are
available under 42 U.S.C. § 1988 to plaintiffs who prevail in
litigation by obtaining a preliminary injunction Amici also
agree that precluding fees in that situation would
substantially narrow current law, burden the federal courts
with lengthier and more costly litigation designed solely to
establish a right to fees, and significantly chill the
enforcement of constitutional and statutory rights.
Petitioners broadly argue that fee awards may never be
premised upon winning a preliminary injunction. However,
this case does not involve the typical context in which
plaintiffs base entitlement to fees on obtaining a preliminary
injunction. The plaintiff here won a preliminary injunction
but ultimately lost at the permanent injunction stage. Much
4
more common is the situation in which, following entry of
the preliminary injunction, the district court does not enter a
final judgment on the merits because the case has become
moot or the plaintiff has as a practical matter gained all of the
relief sought in the complaint and therefore has no practical
reason to press the claim further. In that context, fees should
be available to a plaintiff who obtains a preliminary
injunction as long as that injunction alters the legal
relationship of the parties and provides relief to the plaintiff.
In many cases vindicating important federal rights, the
only judicial relief available to the plaintiff may be a
preliminary injunction. The defendant may capitulate after
the issuance of a preliminary injunction, adopting new
regulations or practices that moot a case or eliminate the
plaintiff's incentive to proceed with the case. A preliminary
injunction may also vindicate the plaintiff's claim with
respect to a one-time event — such as a parade or meeting —
and the case may end for the same reasons. Likewise,
intervening factors may moot a case after a preliminary
injunction has been issued but before the case is finally
adjudicated. In all of these scenarios, the preliminary
injunction provides the plaintiff with significant — as well as
the only necessary or practically available — judicial relief;
the district court never enters a final judgment on the merits.
This Court has identified two factors for determining
whether a plaintiff's success in litigation confers prevailing
party status. First, the plaintiff must obtain a judicially
sanctioned “alteration in the legal relationship of the parties.”
Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't
of Health & Human Res., 532 U.S. 598, 605 (2001). Second,
that judicial action must provide relief for the plaintiff. /d. at
603-04. Many preliminary injunctions fulfill both criteria.
This Court accordingly should hold that, when there is no
final ruling on the merits, a plaintiff who obtains a
preliminary injunction is a prevailing party if the injunction
5
alters the legal relationship of the parties and provides relief
to the plaintiff.
Awarding fees for a preliminary injunction promotes
efficient resolution of claims; precluding fees would create
perverse incentives to continue litigation solely to recover
fees. Moreover, Congress intended fee-shifting to create
incentives for attorneys to represent plaintiffs in cases
vindicating important constitutional and statutory rights.
Many such plaintiffs are represented by solo and small-firm
practitioners, who rely on fee-shifting to be able to provide
representation in these cases. Ensuring that fees are available
for obtaining preliminary injunctions in appropriate cases is
necessary to fulfill Congress’s intent and to provide sufficient
incentives for these attorneys.
When, as in the present case, the district court has
addressed the merits of the plaintiffs claim, that judgment
will generally supersede the preliminary ruling and determine
which party prevailed. If the plaintiff loses on the merits, fees
almost always will not be available for work done on the
preliminary injunction. In rare cases, however, the final
judgment may decide an issue different from that addressed
at the prelimincry injunction stage. When this occurs, fees
should be available for the work done on the successful
preliminary injunction.
ARGUMENT
A PLAINTIFF WHO OBTAINS A PRELIMINARY
INJUNCTION MAY BE A PREVAILING PARTY
ENTITLED TO ATTORNEYS’ FEES.
Pettioners and the Solicitor General argue that obtaining
a prelninary injunction is mever sufficient to qualify a
plainuff as a prevailing party. Pet. Br. 19; U.S. Br. 11. In
support of that broad contention, they point to language in
Buckhannon, 532 U.S. at 605, suggesting that a prevailing
party must obtain a final judgment “on the merits.”
6
But this Court has made clear that a consent decree —
which, by definition, is not a judicial determination “on the
merits” — authorizes a fee award. Maher v. Gagne, 448 U.S.
122, 129-130 (1980); see also Buckhannon, 532 U.S. at 604.
A plaintiff may be a “prevailing party’ without having
obtained a favorable ‘final judgment following a full trial on
the merits.” Hanrahan v. Hampton, 446 U.S. 754, 756-57
(1980) (quoting H.R. Rep. No. 94-1558, at 7 (1976)).
This Court’s holding in Buckhannon, therefore, did not
turn on the absence of a final judgment “on the merits” but
rather on the absence of a “judicially sanctioned change in
the legal relationship of the parties.” Buckhannon, 532 U.S.
at 605; see also Tex. State Teachers Ass'n v. Garland Indep.
Sch. Dist., 489 U.S. 782, 792 (1989) (stating that a fee award
requires judicial action that “changes the legal relationship
between [the plaintiff] and the defendant”). The question
here, therefore, is whether a preliminary injunction can
constitute a “judicially sanctioned change in the legal
relationship of the parties.” It plainly can. Indeed, in most
instances the very purpose of the preliminary injunction is to
effect such a change.
By seeking a rule declaring that preliminary injunctions
are categorically insufficient to establish prevailing party
status, moreover, petitioners and the Solicitor General urge a
dramatic change in the law. Eight courts of appeals have held
to the contrary.’ Abrogating the long-standing approach of
? See, e.g., Coal. for Basic Human Needs v. King, 691 F.2d 597
(ist Cir. 1982) (Breyer, J.); Haley v. Pataki, 106 F.3d 478 (2d Cir.
1997); Doe v. Marshall, 622 F.2d 118 (Sth Cir. 1980); Webster v.
Sowders, 846 F.2d 1032 (6th Cir. 1988); Palmer v. City of
Chicago, 806 F.2d 1316 (7th Cir. 1986); Watson v. County of
Riverside, 300 F.3d 1092 (9th Cir. 2002); Taylor v. City of Ft.
Lauderdale, 810 F.2d 1551 (l1ith Cir. 1987); Select Milk
Producers, Inc. v. Johanns, 400 F.3d 939 (D.C. Cir. 2005). Only
7
these courts would significantly increase the burden on
federal courts by providing plaintiffs with a strong incentive
to prolong litigation solely to establish entitlement to fees.
Further, such a ruling would undermine the incentives that
Congress intended to provide for the vindication of
constitutional and statutory rights.
Petitioners’ blunderbuss approach also ignores the very
different contexts in whicn preliminary injunctions are
issued. Most awards of fees based on preliminary injunctions
have occurred in cases where — unlike here — the district
court never entered a final decision on the merits. In this
context, as long as the preliminary injunction alters the legal
relationship between the parties and provides some relief to
the plaintiff, the plaintiff should be deemed a prevailing party
under the fee-shifting statutes.
In contrast, when the district court does reject the
plaintiff's claim on the merits, fees almost always should not
be available for the work done in obtaining a preliminary
injunction. The only exception would be the rare case in
which the final decision addresses an issue different from the
one resolved at the preliminary injunction stage.
A. When The District Court Never Enters A Final
Ruling On The Merits, A Plaintiff Who Obtained
A Preliminary Injunction Frequently May
Qualify As A Prevailing Party.
This case does not present the typical context in which a
plaintiff bases prevailing party status on obtaining a
preliminary injunction. Here, the plaintiff won a preliminary
injunction but ultimately lost at the permanent injunction
stage. Much more typical is the situation in which the district
court does not enter a final judgment on the merits because
the case has become moot or the preliminary injunction has
the Fourth Circuit disagrees. Smyth v. Rivero, 282 F.3d 268 (4th
Cir. 2002).
provided the plaintiff with all of the relief sought in the
complaint so the plaintiff has no reason to continue to press
his or her claim. Yet the broad rule proposed by petitioners
and their amici would preclude fee awards for all preliminary
injunctions, whether or not they are ultimately resolved on
the merits.
We first discuss when a preliminary injunction may not
be followed by a decision on the merits; we then explain why
the text of Section 1988 and this Court’s precedents make
clear that fees may be available for work done in obtaining a
preliminary injunction in that context; finally, we analyze the
increased litigation burden on the federal courts, as well as
the decreased incentives for enforcement of constitutional
and statutory rights, that would result from adoption of the
broad rule advocated by petitioners and their amici.
1. In Many Instances, A Preliminary Injunction
Is The Only Effective Relief Available To A
Plaintiff.
In many cases involving the enforcement of
constitutional and statutory rights, entry of a preliminary
injunction in the plaintiff's favor may effectively resolve the
dispute. For example, a defendant who loses a preliminary
injunction may decide that additional litigation is futile and
cease the challenged conduct rather than litigate to a final
judgment. Moreover, a preliminary injunction may be
granted in a suit that pertains to a specific event — such as a
parade or demonstration — and the case may become moot
after the event takes place. Similarly, material circumstances
outside a plaintiff's control may change and moot the case.
For instance, a student who seeks relief from his or her
school may graduate. In each of these circumstances, a
preliminary injunction provides the plaintiff with substantial,
as well as the only available, judicial relief. |
a. Defendants Capitulate. A district court’s decision to
grant a preliminary injunction generally reflects the court’s
9
belief that the plaintiff has a substantial likelihood of winning
a final judgment. After losing at the preliminary injunction
stage, defendants often reassess the validity of their position
and may choose to cease the challenged conduct rather than
continue litigating. The defendant may adopt a new
regulation, repeal an ordinance, or alter a practice. In these
circumstances, the preliminary injunction will have afforded
the plaintiff all the relief that he or she sought. The case may
become moot, or the plaintiff may have no practical reason to
proceed with the litigation. Critically, and unlike the
“catalyst” scenario considered in Buckhannon, the changes
benefiting the plaintiff are the result of an enforceable
alteration of the legal rights between the parties that has a
“judicial imprimatur.” Buckhannon, 532 U.S. at 605.
For example, in Select Milk Producers, Inc. v. Johanns,
400 F.3d 939 (D.C. Cir. 2005), milk marketing cooperatives
obtained a preliminary injunction prohibiting implementation
of a new price regulation. Before final adjudication, the
defendant withdrew the challenged rule, rendering the case
moot. The D.C. Circuit held that the plaintiffs were
prevailing parties because the “preliminary injunction
effected a substantial change in the legal relationship
between the parties and provided plaintiffs with concrete and
irreversible-relief.” /d. at 946.
In Zaylor v. City of Ft. Lauderdale, 810 F.2d 1551 (11th
Cir. 1987), church members filed suit after learning that their
church was the only religious group requived by the
defendant to obtain a solicitation permit in order to seek
donations. The district court granted a preliminary injunction
to enjoin the permit requirement. /d. at 1554. Before final
adjudication, however, the city commission voluntarily
repealed the challenged ordinance and the case became moot.
Id. at 1555.
Finally, the plaintiffs in Haley v. Pataki, 106 F.3d 478,
481 (2d Cir. 1997), were legislative employees whose
10
salaries were excluded from an interim appropriations bill.
The district court granted a preliminary injunction requiring
the defendant to continue paying the plaintiffs. Before final
adjudication, the defendants capitulated and agreed to
payment of the plaintiffs’ salaries, mooting the case. /bid.
Nonetheless, the preliminary injunction provided the
plaintiffs with what they were seeking: a continued
paycheck.
In each of these cases, the preliminary injunction gave
the plaintiffs the relief they sought. The defendants’
subsequent action provided that relief on a permanent basis,
either eliminating any practical need for proceeding with the
litigation, or mooting the case and denying the plaintiffs an
opportunity for a final adjudication.
b. One-Time Events. Plaintiffs often come to court
seeking a preliminary injunction to enjoin or allow a specific
event. For example, a student may seek to prevent a school-
sponsored prayer at a public-school graduation or to require a
school to permit a religious group to meet; or citizens may
seek a permit to gather to protest current events. Plaintiffs
may learn that the defendant plans to engage in
unconstitutional conduct only a short time before the event is
scheduled to occur. In such a case, the district court typically
cannot issue a final ruling on the merits, because there is
inadequate time for a full trial or summary judgment
proceeding. Instead, the plaintiffs’ rights are determined
solely at the preliminary injunction stage, because once the
event has taken place, the case may be moot or the parties
may have no interest in pressing the case further. Indeed, the
Solicitor General observes that if the claim at issue here had
related only to the one-time event of respondents’
demonstration, “[respondents] would have lacked standing
after [the event] to press the case forward.” U.S. Br. 25 n.11.
For example, in Jersey Central Power & Light Co. v.
New Jersey, 772 F.2d 35 (3d Cir. 1985), the plaintiff, a
1]
public utility, sought a preliminary injunction after being
denied permission to ship nuclear fuel through New Jersey. A
trial court found that the state had violated the Hazardous
Materials Transportation Act and granted the utility a
preliminary injunction, allowing the shipment to go
forward. The case then became moot because “(t]he
offending conduct and thus the case for a[{] [permanent]
injunction dissolved with the subsequent completion of this
unique shipment.” /d. at 40. The plaintiff secured the entire
relief sought through the preliminary injunction: the plaintiff
was able to ship the nuclear fuel.
A similar situation occurs when an organization seeks a
preliminary injunction to obtain a permit for a demonstration.
In Million Youth March, Inc. v. Safir, 63 F. Supp. 2d 381,
395 (S.D.N.Y. 1999), the plaintiff won a preliminary
injunction requiring the city to issue a previously denied
parade permit. The injunction created a judicially enforceable
change in the legal relationship between the parties; without
the injunction, the plaintiff would not have been allowed to
hold a protest. Following the event, the parties voluntarily
dismissed the case.
Likewise, in Coalition To Protest the Democratic
National Convention v. City of Boston, 327 F. Supp. 2d 61,
78 (D. Mass. 2004), the plaintiff obtained a preliminary
injunction requiring the city to issue a parade permit allowing
protests at the 2004 Democratic National Convention. Once
the convention was over, the suit no longer presented a live
controversy and was soon dismissed. Again, the plaintiffs
changed their legal relationship vis-a-vis the city: only
because the plaintiffs obtained a preliminary injunction were
they allowed to demonstrate.
c. Intervening Factors. In some cases, after a court
issues a preliminary injunction, the factual or legal
circumstances may change and render the case moot.
12
Amicus Institute for Justice, for instance, is currently
litigating a case that may soon become moot because of an
intervening factor. On September 7, 2006, the plaintiffs filed
a suit against members of the New Mexico Interior Design
Board. They sought to enjoin the enforcement of a state law
allowing unlicensed individuals to practice interior design
but prohibiting them from using the description “interior
designer” without a license. Complaint, Franzoy v.
Templeman, No. 06-0832 (D.N.M. filed Sept. 7, 2006). The
district court granted a preliminary injunction providing the
plaintiffs with the entire relief they sought. Franzoy v.
Templeman, No. 06-0832 (D.N.M. Dec. 11, 2006) (order
granting preliminary injunction). However, following the
preliminary injunction, the state legislature passed a statute
repealing the licensing scheme. See S.B. 535, 48th Leg., Ist
Sess. (N.M. 2007); H.B. 651, 48th Leg., Ist Sess. (N.M.
2007). That statute, currently awaiting the governor’s
signature, will moot the case by removing the threat to the
plaintiffs’ First Amendment rights.
Likewise, a case brought by a student plaintiff may
become moot after the student graduates. In Doe v. Marshall,
459 F. Supp. 1190 (S.D. Tex. 1978), an emotionally
handicapped student obtained a preliminary injunction
allowing him to play on his high school’s football team. The
school district appealed the preliminary injunction, but
during the pendency of the appeal, the football season ended
and the plaintiff graduated. Doe v. Marshall, 622 F.2d 118,
118-19 (Sth Cir. 1980). Although the case became moot, the
plaintiff had obtained the entire relief his lawsuit sought.
In DeFunis v. Odegaard, 416 U.S. 312 (1974), a white
male challenged the University of Washington Law School’s
affirmative action program after his application for admission
was rejected. DeFunis obtained injunctive relief requiring the
school to admit him. /d. at 314-15. Upon hearing the case,
this Court learned that the school would allow DeFunis —
who was then in his final term — to graduate even if the
13
school were to prevail and the injunction were vacated. /d. at
315-16. Accordingly, this Court dismissed the case on
mootness grounds without ever reaching a final adjudication.
Still, the injunctive relief ordered by the trial court — though
never finally adjudicated on the merits — provided DeFunis
with the entire relief that he had sought: a legal education
from the University of Washington Law School.
Numerous other intervening factors may have a similar
effect. In Watson v. County of Riverside, 300 F.3d 1092,
1093-94 (9th Cir. 2002), the plaintiff police officer was
ordered to write a report about an incident in which he was
accused of using excessive force. He requested a consultation
with an attorney prior to writing the report, but his request
was denied. He was ultimately fired. Jbid. The officer filed
suit and obtained a preliminary injunction to prevent the
county from using his report during the administrative appeal
of his termination. /bid. Nearly two years later, the district
court dismissed his claims for damages, and, because the
administrative process had long since concluded, the court
held that the claim for permanent injunctive relief was moot.
Ibid. Nevertheless, the preliminary injunction provided the
entire injunctive relief the plaintiff sought: his report was
excluded from the administrative proceeding. /d. at 1095-96.
In Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980), the
plaintiffs obtained a preliminary injunction that halted a San
Francisco police action employing overt racial profiling.
More than 600 individuals had been stopped on the street and
frisked solely because they were black and generally
resembled police sketches of a suspected murderer. /d. at
847. The police department appealed the injunction, but
before the appeal was heard, the actual murderers were
apprehended, convicted, and sentenced. The court of appeals
dismissed the action as moot. /bid. Nonetheless, the plaintiffs
obtained the entire relief that they had sought: the police
action was enjoined. See also Grano v. Barry, 783 F.2d 1104
(D.C. Cir. 1986) (injunction temporarily prohibiting the
14
destruction of a historical building pending the results of a
ballot initiative rendered moot by the outcome of the
election).’
2. A Plaintiff Is A Prevailing Party In A Case
Not Finally Resolved On The Merits If The
Preliminary Injunction Alters The Legal
Relationship Between The Parties And
Provides Relief To The Plaintiff.
Parties are generally required to bear their own
attorneys’ fees. See Alyeska Pipeline Serv. Co. v. Wilderness
Soc’y, 421 U.S. 240, 247 (1975). In the context of claims to
vindicate constitutional and statutory rights, however,
* Amici recognize that a civil rights action is not mooted “so long
as the plaintiff has a cause of action for damages.” Buckhannon,
532 U.S. at 608-09. But damages are not always available in cases
involving preliminary injunctions. First, compensatory damages
are often unavailable because many plaintiffs are unable to show
“actual injury” in a manner analogous to a tort injury, which is
required for compensatory damages. See Carey v. Phiphus, 435
U.S. 247, 266 (1978). Second, nominal damages are unavailable
when plaintiffs win a preliminary injunction that prevents any
violation of their rights. It is precisely these cases ~ where the
preliminary injunction prevents a prospective constitutional injury
— that are often mooted after the window of potential injury passes.
Third, plaintiffs may be barred from seeking both compensatory
and nominal damages by sovereign immunity. See City of
Riverside v. Rivera, 477 U.S. 561, 577 (1986) {plurality opinion).
Nor can the doctrine of “capable of repetition but evading review”
offer much hope for keeping a case alive, because this doctrine
“applies only in exceptional situations, and generally only where
the named plaintiff can make a reasonable showing that he will
again be subjected to the alleged illegality.” City of Los Angeles v.
Lyons, 461 U.S. 95, 109 (1983). Finally, even if a plaintiff could
extend a case — which is often impossible — this Court should not
adopt a rule that would encourage plaintiffs to continue litigating
otherwise-moot claims solely to obtain fees.
15
~ Congress has authorized fee-shifting in a number of statutes,
including the Civil Rights Attorney’s Fees Awards Act of
1976, 42 U.S.C. § 1988, which was enacted in response to
Alyeska.*
These statutes authorize fee awards to a “prevailing
party,” which this Court has interpreted to refer to a party
“who has been awarded some relief.” Buckhannon, 532 U.S.
at 603. Plaintiffs who secure a preliminary injunction
certainly fall within the plain language of the statute: they
have prevailed on their claim for preliminary relief and thus
have obtained “some relief,” albeit not a final ruling on the
merits.
To determine whether a plaintiff's success is sufficient
for prevailing party status, this Court evaluates two factors.
First, the plaintiffs success must change the legal
relationship between the parties. /d. at 604. Second, the
plaintiff must obtain judicial relief that is enforceable. /d. at
603-04. Some victories for the plaintiff — like successful final
* While the present case involves 42 U.S.C. § 1988, Congress has
adopted the “prevailing party” standard in many other fee-shifting
provisions, including 7 U.S.C. § 2305(a) (Agricultural Fair
Practices Act), 12 U.S.C. § 2607(d)(5) (Real Estate Settlement
Procedures Act), 15 U.S.C. § 1129(2) (Anticybersquatting
Consumer Protection Act), 15 U.S.C. § 6104(d) (Consumer
Protection Telemarketing Act), 17 U.S.C. § 505 (Copyright Act),
18 U.S.C. § 924(d)(2)(A) (Firearm Owner’s Protection Act), 20
U.S.C. § 1415(i)(3)(B) (Individuals with Disabilities Education
Act), 28 U.S.C. § 2412(d)(1 (A) (Equal Access to Justice Act), 29
U.S.C. § 794a(2\b) (Rehabilitation Act), 33 U.S.C. § 1365(d)
(Clean Water Act), 42 U.S.C. § 1973(e) (Voting Rights Act), 42
U.S.C. § 3613(c)(2) (Fair Housing Act), 42 U.S.C. § 2000e-5(k)
(Equal Employment Opportunities), 42 U.S.C. § 6972(e)
(Resource Conservation Recovery Act), 42 U.S.C. § 9659(f)
(CERCLA), and 42 U.S.C. § 12205 (Americans with Disabilities
Act). See generally Marek v. Chesny, 473 U.S. 1, 43-51 (1985)
(appendix to opinion of Brennan, J., dissenting).
16
judgments and consent decrees — clearly meet these
standards. Maher, 448 U.S. at 129-30; see also Buckhannon,
532 U.S. at 604. Other victories — such as securing a
favorable ruling on a discovery issue or defeating a motion to
dismiss — do not meet these standards because they fail to
alter the legal relationship between the parties or to provide
the plaintiff with judicially enforceable relief sought in the
complaint. See Hanrahan, 446 U.S. 754.
Unlike either favorable final judgments on the one hand,
or procedural victories on the other, preliminary injunctions
are not categorically sufficient or insufficient for prevailing
party status. Some preliminary injunctions alter the legal
relationship between the parties and provide judicially
enforceable relief. Others do not. Rather than adopt a blanket
rule covering all preliminary injunctions, this Court should
instruct lower courts to apply, on a case-by-case basis, the
settled standards addressing whether a plaintiff is a prevailing
party.”
a. To qualify as a prevailing party, a plaintiff must obtain
an “alteration in the legal relationship of the parties.”
Buckhannon, 532 U.S. at 605. Concurring in Buckhannon,
Justice Scalia explained that the Court’s holding focused on
this alteration of the parties’ legal relationship:
The Court today concludes that a party cannot be
deemed to have prevailed, for purposes of fee-
> That is the approach taken by the D.C. Circuit, which has read
Buckhannon and other precedents to hold that a plaintiff who
obtains a preliminary injunction is a “prevailing party” if three
conditions are met: (1) “there has been a court-ordered change in
the legal relationship between the plaintiff and the defendant,” (2)
a judgment has been rendered “regardless of the amount of the
damages,” and (3) judicial relief — more than a mere “judicial
pronouncement” — has been granted. Select Milk Producers, Inc.,
400 F.3d at 947 (citing Thomas v. Nat'l Sci. Found., 330 F.3d 486,
492-93 (D.C. Cir. 2003)).
17
shifting statutes such as 42 U.S.C. § 1988, unless
there has been an enforceable “alteration of the legal
relationship of the parties.” That is the normal
meaning of “prevailing party” in litigation, and there
is no proper basis for departing from that normai
meaning.
Id. at 622 (Scalia, J., concurring). “The touchstone of the
prevailing party inquiry must be the material alteration of the
legal relationship * * *.” Tex. State Teachers Ass'n, 489 U.S.
at 792-93.
To determine whether a judicial order alters the
relationship between the parties, this Court has instructed
courts to examine the order’s effect:
In all civil litigation, the judicial decree is not the
end but the means. At the end of the rainbow lies
not a judgment, but some action (or cessation of
action) by the defendant that the judgment produces
— the payment of damages, or some specific
performance, or the termination of some conduct.
Redress is sought through the court, but from the
defendant. * * * The real value of the judicial
pronouncement — what makes it a proper judicial
resolution of a “case or controversy” rather than an
advisory opinion — is in the settling of some dispute
which affects the behavior of the defendant towards
the plaintiff.
Hewitt v. Helms, 482 U.S. 755, 761 (1987) (emphasis in
original). Accordingly, plaintiffs who obtain a judicial order
changing their legal relationship vis-a-vis the defendant
qualify as prevailing parties. In applying the “material
alteration of the legal relationship of the parties” test, this
Court has noted that “[a]pplication of the principles” to a
particular case “is not difficult.” Tex. State Teachers Ass'n,
489 U.S. at 792-93.
A preliminary injunction may fulfill this standard. The
injunction may allow the plaintiff to take some action that the
plaintiff otherwise could not take, or it may preclude the
defendant from taking some action that the defendant
otherwise would take. The injunction thus can alter the
parties’ legai relationship in a way favorable to the plaintiff.
And because the injunction is issued by a judge, it carries the —
“judicial imprimatur” required by Buckhannon. 532 U.S. at
605. A plaintiff who obtains a preliminary injunction does
not leave “the courthouse emptyhanded.” /d. at 614 (Scalia,
J., concurring).
But not all injunctions alter the legal relationship
between the parties. The Court’s decision in Rhodes v.
Stewart, 488 U.S. 1 (1988), illustrates this point. In Rhodes,
prisoners sought injunctive relief claiming that they had a
constitutional right to a particular magazine subscription. /d.
at 2. The district court ultimately granted some relief. Jbid.°
At the time that the district court issued its order, that court
was not aware that one of the plaintiffs had died and that the
other had been released from prison. /d. at 3. After these facts
came to light, this Court denied a request for attorneys’ fees
because the district court’s order failed to “affect[] the
behavior of the defendant toward the plaintiff[s]” — the
precise standard that amici urge. /d. at 4 (quoting Hewitt, 482
U.S. at 761). Rhodes therefore does not stand for the broad
proposition the Solicitor General asserts (U.S. Br. 14-15) —
that fees can never be awarded if a case becomes moot before
final judgment ~— because the relief there was issued after the
controversy had been mooted by intervening circumstances.
Contrary to the claim of petitioners and the Solicitor
General (Pet. Br. 19; U.S. Br. 11), a litigant need not obtain a
° Although the relief in Rhodes, 488 U.S. at 2, was described as
“declaratory,” this Court noted that the district court “ordered
compliance” with “the proper procedural and _ substantive
standards.” |
19
final judgment on the merits to qualify as a prevailing party.
In Hanrahan, this Court adopted Congress’s language in
explaining that “a person may in some circumstances be a
‘prevailing party’ without having obtained a favorable ‘final
judgment following a full trial on the merits.”” 446 U.S. at
756-57 (quoting H.R. Rep. No. 94-1558, at 7 (1976)). Thus,
the Court has held that consent decrees — where there is no
final adjudication of a plaintiffs legal claims — entitle a
plaintiff to prevailing party status. Maher, 448 U.S. at 129-
30; see also Buckhannon, 532 U.S. at 604 (“In addition to
judgments on the merits, we have held that settlement
agreements enforced through a consent decree may serve as
the basis for an award of attorney’s fees.”). Because fees may
be available for consent decrees where there is no final
judgment on the merits, prevailing party status cannot be
contingent upon a final judgment on the merits. Rather, a
plaintiff prevails by obtaining a judicially enforceable
alteration in the legal relationship between the parties.’
” A plaintiff who prevails on a preliminary injunction may both
alter the legal relationship between the parties and obtain some
relief sought in the complaint. That is in stark contrast to a plaintiff
who merely succeeds on a motion or appellate proceeding that
itself provides no relief to the plaintiff, even if it may alter the
legal relationship between the parties. The Solicitor General’s
reliance on Hanrahan is therefore misplaced. In Hanrahan, the
district court directed a verdict for the defendants, but the court of
appeals reversed. The court of appeals’ ruling merely remanded
the case to the district court and allowed the case to proceed; it did
not provide any of the relief that the plaintiffs sought in their
complaint. Therefore, this Court’s reversal of the court of appeals’
decision — awarding fees to the plaintiffs solely for securing
reversal of the dismissal — says nothing about the proper rule to
apply when, as in the context of a preliminary injunction, the
district court not only alters the legal relationship between the
parties but also provides the plaintiff with relief sought in the
20
b. In addition to altering the legal relationship between
the parties, a prevailing plaintiff must obtain some of the
relief sought in the complaint and must obtain that relief from
the court. “[R]Jespect 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.” Buckhannon, 532 U.S. at
603 (quoting Hewitt, 482 U.S. at 766). Thus, in Hewitt, the
plaintiff - who had obtained a judicial statement that his
rights were violated but no injunctive relief or damages — was
not a prevailing party because he had failed to obtain any
actual relief. 482 U.S. at 760; see also Coal. for Basic Human
Needs v. King, 691 F.2d 597, 600 (1st Cir. 1982) (Breyer, J.)
(“The requirement that the legal success ‘achieve some of the
benefit the parties sought’ merely distinguishes cases in
which plaintiffs obtain some substantive relief from those in
which the ‘victories’ are purely procedural.”). .
Preliminary injunctions in many instances provide the
plaintiff with “some relief” sought in the complaint. See, e.g.,
Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975)
(“Although only temporary, the injunction does prohibit state
and local enforcement activities against the federal plaintiff
pending final resolution of his case in the federal court.”).
Not only are preliminary injunctions judicial, but they
constitute judicially enforceable relief: “[A] preliminary
injunction has all of the force of a permanent injunction
during its period of effectiveness * * *. [T]he sanctions of
civil and criminal contempt * * * are available to punish any
violation of a preliminary injunction.” 11A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
& Procedure 2d § 2947 (2007).*
complaint. Indeed, Hanrahan accords fully with the rule that we
suggest.
* Congress has recognized the significant effect of preliminary
injunctions by permitting interlocutory appeals to be taken from
district courts’ decisions regarding preliminary injunctions. 28
21
The relief provided by preliminary injunctions is thus
entirely different than the “catalyst” scenario addressed in
Buckhannon. The Buckhannon Court stated: ~
We cannot agree that the term “prevailing party”
authorizes federal courts to award attorney’s fees to
a plaintiff who, by simply filing a nonfrivolous but
nonetheless potentially meritless lawsuit (it will
never be determined), has reached the “sought-after
destination” without obtaining any judicial relief.
Buckhannon, 532 U.S. at 606. The voluntary action taken by
the defendant in Buckhannon was neither the product of
judicial action nor judicially enforceable. A preliminary
injunction is both.’
Not all preliminary injunctions, however, provide
judicial relief “towards the plaintiff.” Hewitt, 482 U.S. at 761
(emphasis in original). Some preliminary injunctions merely
preserve the court’s ability to provide the relief sought by the
U.S.C. § 1292(aX(1). Every court of appeals requires the district
court to assess the merits of the plaintiffs claim in granting a
preliminary injunction. While “[{t]he courts use a bewildering
variety of formulations of the need for showing some likelihood of
success — the most common being that plaintiff must demonstrate a
reasonable probability of success,” a key factor in granting a
preliminary judgment is a court’s assessment of “the validity of the
applicant’s claim.” 11A Charles Alan Wright, Arthur R. Miller &
Mary Kay Kane, Federal Practice & Procedure 2d § 2948.3 (2007).
* Petitioners argue that Buckhannon implicitly rejected this claim
because there was a preliminary order in that case. Pet. Br. 32-33.
However, the Buckhannon plaintiffs did not attempt to justify their
fee claim by reference to the parties’ stipulated stay order. Indeed,
they sought fees for the entire case, not just for the work associated
with obtaining the stipulated stay order and therefore could not
have relied on the existence of the stay order. Accordingly,
Buckhannon simply did not address the issue before the Court in
this case.
22
plaintiff if the court later decides that the relief is appropriate.
Such injunctions do not afford relief to the plaintiff, a
necessary condition for a plaintiff to be a prevailing party.
For example, in Thomas v. National Science
Foundation, 330 F.3d 486 (D.C. Cir. 2003), the plaintiff
claimed that an agreement between the National Science
Foundation and a private contractor regarding Internet
domain registration fees constituted an illegal tax because it
had not been approved by Congress. The plaintiffs sought
restitution of the fees, which were deposited into a fund to
pay for future projects relating to the Internet. /d. at 488. The
district court issued a preliminary injunction temporarily
preventing the defendants from spending any money from the
fund. /bid. Ultimately, Congress passed legislation ratifying
the fee system, which mooted the case. Although the
plaintiffs obtained a preliminary injunction, the D.C. Circuit
denied attorneys’ fees because the injunction did not
“afford[] appellees the relief they sought in their lawsuit.” Jd.
at 493. The plaintiffs wanted restitution, but the injunction
did no more than temporarily freeze the fund. It did not
provide relief to the plaintiffs.
c. Petitioners and their amici advance several policy
arguments to support a departure from this Court’s long-
Standing approach to determining whether a party has
prevailed. Petitioners first argue that “an interim order
deprives defendants of the opportunity to convince the trial
court or an appeals court to reverse its initial ruling”; they
contend, therefore, that preliminary injunctions should not
constitute a basis for a fee award. Pet. Br. 34; see also U.S.
Br. 17-20. But in cases where the preliminary injunction is
the sole available relief because the case is moot, plaintiffs
are equally unable to convince a trial or appellate court that
the ruling on the preliminary injunction was correct. It would
be unfair to deny fees limited to work done in connection
with the successful preliminary injunction when the
litigation cannot continue to a final judgment.
23
Indeed, although both sides stake a claim for fairness,
Congress provided the tiebreaker in passing Section 1988:
Congress determined that defendants in constitutional suits
are better positioned to pay for the cost of the litigation. See
S. Rep. No. 94-1011, at 2 (1976), reprinted in 1976
U.S.C.C.A.N. 5908, 5910 (“If private citizens are to be able
to assert their civil rights, and if those who violate the
Nation’s fundamental laws are not to proceed with impunity,
then citizens must have the opportunity to recover what it
costs them to vindicate these rights in court.”).
One of the amicus briefs filed on behalf of petitioners
explains: “To the extent that section 1988 is ambiguous, this
Court has routinely construed the statute to advance its
underlying objective of providing incentives to counsel to
bring meritorious civil rights actions.” Br. of Nat’! League of
Cites, et al. 24 (citing Kay v. Ehrler, 499 U.S. 432, 436-38
(1991); City of Riverside v. Rivera, 477 U.S. 561, 577-78
(1986) (plurality opinion)). We agree. Any ambiguity with
respect to prevailing party status should be interpreted in the
plaintiff's favor.
Next, petitioners’ amici suggest that awarding attorneys’
fees to a plaintiff who succeeds in obtaining a preliminary
injunction — but ultimately does not obtain a favorable ruling
on the merits — would provide perverse incentives for
plaintiffs to bring nonmeritorious claims or to moot cases
strategically after winning a preliminary injunction. Br. Nat’!
League of Cities, et al. 24-25. This argument ignores that
what is at stake here is a party’s eligibility for fees. The
statute makes clear, and this Court has recognized, that
district courts possess the discretion to make “equitable
judgment[s]” regarding fee awards. Hensley v. Eckerhart,
461 U.S. 424, 436-37 (1983); see also 42 U.S.C. § 1988(b).
If a plaintiff acts in bad faith by engaging in gamesmanship
designed to obtain fees, the district court can and should
exercise its discretion to reduce — or even deny — the fee
award.
24
In sum, this Court’s precedents and the language of
Section 1988 require that fees be available for plaintiffs who
obtain a preliminary injunction that changes the legal
relationship between the parties and that provides the
plaintiffs with some sought-after relief. “If the plaintiff has
succeeded on any significant issue in litigation which
achieved some of the benefit the parties sought in bringing
suit, the plaintiff has crossed the threshold to a fee award of
some kind.” Tex. State Teachers Ass’n, 489 U.S. at 791-92
(citation and alteration omitted; emphasis added).
3. A Broad Rule Denying Fees To Plaintiffs Who
Win Preliminary Injunctions Would Burden
The Courts With Increased Litigation And
Prevent Vindication Of Crucial Constitutional
And Statutory Rights.
Allowing attorneys’ fees pursuant to the rule we propose
would promote judicial economy and effectuate Congress’s
intent to provide incentives for attorneys to represent
individuals seeking to vindicate constitutional and statutory
rights. Holding preliminary injunctions categorically
insufficient to justify a fee award, on the other hand, would
burden the federal courts with lengthier and more expensive
litigation as well as severely undermine the policy interests
underlying 42 U.S.C. § 1988 and other federal fee-shifting
statutes.
a. Permitting fees for preliminary injunctions in
appropriate cases provides incentives to resolve
constitutional and statutory claims in a manner that
efficiently employs scarce judicial resources. The rule
advocated by petitioners, in contrast, would produce
substantial additional burdens on the already-strained
resources of the federal courts.
This Court has noted that “a request for attorney’s fees
should not result in a second major litigation.” Buckhannon,
532 U.S. at 609 (quoting Hensley, 461 U.S. at 437).
25
Categorically denying fees for obtaining a preliminary
injunction would encourage precisely that: plaintiffs who win
a preliminary injunction would be forced to pursue claims for
nominal damages simply to obtain attorneys’ fees. Not only
would this approach waste judicial resources by producing
scores of “second major litigation[s],” but the legal fees of all
parties would inevitably increase while they are litigating
over nominal damages.
Ruling that some preliminary injunctions are fee-
eligible, by contrast, would eliminate any incentive to
continue litigating a case in which the legal issue has been
effectively resolved. Shortening litigation decreases the
burden on the courts as well as the costs to parties.
Moreover, preliminary injunctions themselves are
judicially efficient. They are typically decided at the outset of
a lawsuit, at which point both sides have expended relatively
little time and few resources on the case. Accordingly, fees
incurred in connection with preliminary injunctions
necessarily will be lower than fees incurred if the litigation
must be pressed through the merits stage.
Finally, allowing fees for preliminary injunctions
encourages defendants to settle before a court adjudicates the
preliminary injunction. As this court held in Buckhannon, a
plaintiff is not fee eligible if a defendant voluntarily changes
its behavior following the filing of a lawsuit but before the
court grants any relief. When a defendant believes that the
plaintiff is likely to prevail on a preliminary injunction,
therefore, the defendant will have an incentive to resolve the
dispute before the court issues a preliminary injunction in
order to avoid liability for fees if the plaintiff wins the
preliminary injunction and the defendant then capitulates. If,
however, fees are no longer available based on the issuance
of a preliminary injunction, defendants have every reason to
take “one free shot” at litigating the preliminary injunction:
they can capitulate following entry of the preliminary
26
injunction and still avoid liability for fees. That means courts
will be burdened by more contested preliminary injunction
actions — even in cases in which the defendant’s chances of
winning are remote.
b. Congress enacted Section 1988 and other fee-shifting
statutes to enable plaintiffs to enforce their rights. “[C]ivil
rights laws depend heavily upon private enforcement, and fee
awards have proved an essential remedy if private citizens
are to have a meaningful opportunity to vindicate important
Congressional policies which these laws contain.” S. Rep.
No. 94-1011, at 2 (1976), reprinted in 1976 U.S.C.C.A.N.
5908, 5910. As we have discussed, there are many cases in
which the vindication of constitutional and statutory rights
occurs solely through issuance of a preliminary injunction.
Congress did not mean to exclude the enforcement of these
rights from the incentive scheme provided by the availability
of attorneys’ fees.
Fee-shifting is particularly important in civil rights cases
because most plaintiffs are represented by solo practitioners
and “local, small-firm lawyer[s],” who must be able to obtain
attorneys’ fees in order to take these cases. Stewart J. Schwab
& Theodore Eisenberg, Explaining Constitutional Tort
Litigation: The Influence of the Attorney Fees Statute and the
Government as Defendant, 73 Comell L. Rev. 719, 767-69
(1988). Institutional litigators, such as amici, account for a
minority of all constitutional cases. /bid. (noting that “one
theme in the literature that our data confirm is that most civil
rights litigation is not brought by institutional litigators or by
large firms engaging in pro bono activity”).
When institutional litigators do bring suits, moreover,
they rely substantially on solo practitioners and small firms —
who depend upon the availability of fee awards — to act as
local counsel and co-counsel. See Randal S. Jeffrey,
Facilitating Welfare Rights Class Action Litigation: Putting
Damages and Attorney's Fees To Work, 69 Brook. L. Rev.
27
281, 283 (2003) (“[E]conomic incentives play a critical role
in what litigation attorneys choose to pursue.”); Carl Tobias,
Rule 11 & Civil Rights Litigation, 37 Buff. L. Rev. 485, 486
n.41 (1989) (“The civil rights bar is comprised essentially of
specialized, solo practitioners, who depend on fee shifting
and contingency fees for their income.”).
In adopting Section 1988, Congress intended to create
incentives to encourage solo practitioners and small firms to
represent individuals seeking to vindicate constitutional and
statutory rights:
In many cases arising under our civil rights laws, the
citizen who must sue to enforce the law has little or
no money with which to hire a lawyer. If private
citizens are to be able to assert their civil rights, and
if those who violate the Nations’s fundamental laws
are not to proceed with impunity, then citizens must
have the opportunity to recover what it costs them to
vindicate these rights in court.
S. Rep. No. 94-1011, at 2, reprinted in 1976 U.S.C.C.A.N.
5908, 5910. The “specific purpose [of § 1988] was to enable
potential plaintiffs to obtain the assistance of competent
counsel in vindicating their rights.” Kay, 499 U.S. at 436; see
also Evans v. Jeff D., 475 U.S. 717, 732 (1986) (stating that
fee-shifting statutes are part of the “arsenal of remedies
available to combat violations of civil mghts”). Indeed, in
cases where a preliminary injunction is the only practical
form of relief — such as cases relating to one-time events — it
may be especially difficult to obtain counsel if fees are
unavailable for work undertaken in obtaining the preliminary
injunction.
Further, in cases involving preliminary injunctions,
plaintiffs are generally focused on obtaining equitable, rather
than monetary, relief. As we have discussed (see page 14
note 3, supra), suits vindicating constitutional rights — such
as those involving the religion clauses, due process, free
28
speech, and free association — will often have little or no
potential for a compensatory damages award. See Carey v.
Phiphus, 435 U.S. 247, 266 (1978) (requiring a plaintiff
seeking compensatory damages for a _ violation of
constitutional rights to show “actual injury” analogous to tort
injury); Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299,
308-09 (1986) (same). In addition:
While damages are theoretically available under the
statutes covered by § 1988, it should be observed
that, in some cases, immunity doctrines and special
defenses, available only to public officials, preclude
or severely limit the damage remedy. Consequently,
awarding counsel fees to prevailing plaintiffs in
such litigation is particularly important and
necessary if Federal civil and constitutional rights
are to be adequately protected.
Rivera, 477 U.S. at 577 (quoting H.R. Rep. No. 94-1558, at 9
(1976) (emphasis in original)).
The plaintiff's attorney therefore often cannot obtain
fees in constitutional rights cases through a percentage-of-
recovery, contingency-fee agreement, because no
compensatory damages can be awarded. The fee-shifting
provisions of Section 1988 and similar statutes are typically
the sole means for compensating attorneys in those cases.
If this Court were to adopt petitioners’ rule denying fees
across the board in these equitable cases, Congress’s intent
would be significantly undermined. Congress stated that “fee
awards are essential if the Federal statutes * * * are to be
fully enforced.” S. Rep. No. 94-1011, at 5, reprinted in 1976
U.S.C.C.A.N. 5908, 5913. To give effect to this clear intent,
this Court should hold that plaintiffs who obtain at least some
of their sought-after relief through a preliminary injunction
may be prevailing parties entitled to fees. “The statutory
policy of furthering the successful prosecution of meritorious
29
claims is better served by a rule that creates an incentive to
retain counsel in every such case.” Kay, 499 U.S. at 438.'°
B. Except In Rare Circumstances, Plaintiffs Who
Win A Preliminary Injunction Are Not Entitled.
To Fees If They Ultimately Lose The Case.
If a case progresses past a preliminary injunction and the
plaintiff also prevails on a final judgment, then the plaintiff is
entitled to recover reasonable attorneys’ fees, including
reasonable fees relating to the preliminary injunction. On the
other hand, if the plaintiff wins a preliminary injunction but
loses the same issue in a subsequent judgment, the later
judgment supersedes the preliminary injunction and the
plaintiff is not properly considered a prevailing party. See
Watson, 300 F.3d at 1096 (“[T]here will be occasions when
the plaintiff scores an early victory by securing a preliminary
injunction, then loses on the merits as the case plays out and
judgment is entered against him — a case of winning a battle
but losing the war. The plaintiff would not be a prevailing
party in that circumstance.”).
For instance, in Doe v. Busbee, 684 F.2d 1375 (11th Cir.
1982), a preliminary injunction was later supplanted because
the court of appeals determined that the district court had
granted the preliminary injunction through “a mistake of
law.” Jd. at 1382. The later opinion meant that the plaintiff
was not a prevailing party. Likewise, in Palmer v. City of
© The availability of fees is also significant because the
enforcement of constitutional rights is often unpopular. A student
seeking to preclude prayer at a public high school commencement
and a member of the National Socialist Party seeking a permit to
march through Skokie may champion causes that are unpopular.
But regardless of one’s views about how the claims should
ultimately be resolved, these plaintiffs raise important
constitutional issues. Their lawyers risk ostracism, professional
harm, and harassment. Limiting the availability of fees would
weaken the incentives to undertake already unpopular litigation.
30
Chicago, 806 F.2d 1316 (7th Cir. 1986), the plaintiff
obtained a preliminary injunction, but the injunction was
later reversed on appeal. “[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.” Jd at 1320.
When the preliminary injunction is not the last judicial word
on the issue decided, the later judicial holding determines
which party prevails.
On rare occasions, however, the factual landscape of a
case may evolve during the course of the litigation, and
consequently the preliminary injunction may address issues
quite different than those encompassed within the final
judgment. Similarly, litigation may have multiple objectives
that are addressed by the court at different times. For
instance, an employer who has been preliminarily enjoined
from maintaining a policy of refusing to hire women may
elect to adept a height and weight requirement that ultimately
withstands judicial scrutiny. While the plaintiff may have lost
on the merits with respect to the height and weight
requirements, she would have prevailed on her claim
regarding intentional gender discrimination.
Similarly, here, respondents should be deemed
prevailing parties because, as they explain, the permanent
injunction related to a claim distinct from that addressed by
the preliminary injunction.
CONCLUSION
The judgment of the court of appeals should be affirmed.
31
Respectfully submitted.
BRETT DIGNAM ANDREW J. PINCUS
GIOVANNA SHAY Counsel of Record
Yale Law School CHARLES A. ROTHFELD
Supreme Court Clinic Mayer, Brown, Rowe &
127 Wall Street Maw LLP
New Haven, CT 06511 1909 K Street, NW
(203) 432-4800 Washington, DC 20006
(202) 263-3000
AYESHA N. KHAN
RICHARD B. KATSKEE Counsel for Americans United
ALEX J. LUCHENITSER for Separation of Church and
Americans United for State
Separation of Church and
State DANA BERLINER
518 C Street, NE. Institute for Justice
Washington, DC 20002 901 N. Glebe Rd., Suite 900
(202) 466-3234 Arlington, VA 22203
Counsel for Americans United (703) 682-9320
for Separation of Church and Counsel for the Institute for
State Justice
RONALD A. LINDSAY ely gh ~
Center for Inquiry The Rutherford Institute
62] Pennsylvania Avenue, 1440 Sachem Pi
S.E. Charlottesville, VA 22901
Washington, D.C. 20003 (434) 978-3888
(202) 546-2332 Counsel for The Rutherford
Counsel for the Center for Institute
Inquiry
ADINA H. ROSENBAUM
BRIAN WOLFMAN
Public Citizen Litigation
Group
1600 20th St., NW
Washington, DC 20009
(202) 588-1000
Counsel for Public Citizen
STEVEN SCHWARTZ
Center for Public
Representation
22 Green St.
Northampton, MA 01060
(413) 586-6024
Counsel for the Center for
Public Representation
APRIL 2007
32
JUDITH E, SCHAEFFER
People For the American
Way Foundation
2000 M St., NW, Suite 400
Washington, DC 20036
(202) 467-4999
Counsel for the People For
the American Way
Foundation
HIRAM SASSER
Liberty Legal Institute
903 E. 18th St., Suite 230
Plano, TX 75070
(972) 423-3131
Counsel for the Liberty Legal
Institute
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