Amicus Curiae Brief — Sole v. Wyner

§60C

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No. 06-531

IN THE |

Supreme Court of the United States

MICHAEL W. SOLE AND TERENCE COULLITTE,

Petitioners,

Vv.

T.A. WYNER AND GEORGE SIMON,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Eleventh Circuit

INDIVIDUAL RIGHTS IN SUPPORT

OF RESPONDENTS

Michael E. Rosman

Counsel of Record

CENTER FOR INDIVIDUAL RIGHTS

1233 20th St., NW, Suite 300

Washington, DC 20036

(202) 833-8400

TABLE OF CONTENTS

OEE GUE 9 ceca owttcsesens i

TARE GP AUTTRRUGEED 6 ww ccc cer sees ii

MOTION AND INTEREST OF AMICUS

FCT Te eS ee ee ee ee l

STATEMENT OF THE CASE .............. 1

Wee RUUTEE GPUD ce ec eee eweteess 2

SUMMARY OF ARGUMENT .............. 6

a ee ee )

I. This Court’s Precedents Demonstrate

That Judicial Relief That Alters The

Parties’ Legal Relationship Is Suffi-

cient To Attain Prevailing Party

PPS Pe ee eee ee 9

Il. Petitioners’ Standard Would Lead To

I a aN a a tinal tig tal 14

3 PETE TEE E TE TE TCE 19

ti

TABLE OF AUTHORITIES

Cases:

Bd. of Educ. of Oklahoma City Public Schools v.

Dowell, 498 U.S. 237 (1991) ........... 13

Buckhannon Bd. and Care Home, Inc. v. West

Virginia Dep't of Health and Human Re-

sources, 532 U.S. 598 (2001) ........ 10, 12

Cornwell v. Sachs, 99 F. Supp. 2d 695 (E.D. Va.

DE c::0-+ ts +e dR A eee ee 8

EEOC v. Local 40, Int’l Ass’n of Bridge, Structural

and Ornamental Iron Workers, 76 F.3d 76

eee ee ee ee ee 13, 14

Evans v. Jeff D., 475 U.S. 717 (1986) ......... 18

Farrar v. Hobby, 506 U.S. 103 (1992) ...... 6-8, 11

Financial Services Corp. of Midwest v. Weindruch,

764 F.2d 197 (7th Cir. 1985) ........... 11

Friends of the Earth, Inc. v. Laidlaw Environmen-

tal Services, Inc., 528 U.S. 167 (2000) ..... 17

Hensley v. Eckerhart, 461 U.S. 424 (1983) ..... 11, 18

Hewitt v. Helms, 482 U.S. 755 (1987) ......... 10

Maher v. Gagne, 448 U.S. 122 (1980) ......... 10

McConnell v. Le Moyne College, 808 N.Y .S.2d

SS PTT TT Te TEE l

Newman-Green v. Alfonzo-Larrain, 490 U.S. 826

Ee ae a ee ee 17

Rosenberger v. Rectors and Visitors of the Univer-

sity of Virginia, 515 U.S. 819 (1995) ....... l

St. Mary’s Honor Center v. Hicks, 509 U.S. 502

A ee eee ee 9

Sypniewski v. Warren Hills Regional Bd. of Educ. ,

307 F.3d 243 (3d Cir. 2002) .. 1-4, 7, 8, 14, 16

Sypniewski v. Warren Hills Regional Bd. Of Educ. , |

2006 WL 208562 (D.N.J. Jan. 26, 2006) .... 5

Sypniewski v. Warren Hills Regional Bd. of Educ. ,

2006 WL 1675066 (D.N.J. June 14, 2006) ... 5

Sypniewski v. Warren Hills Regional Bd. of Educ.,

Civ. No. 01-3061, slip op. (D.N.J. filed

& § 2a errs ee eer 4

Sypniewski v. Warren Hills Regional Bd. of Educ.,

Civ. No. 01-3061, slip op. (D.N.J. filed

ee a aes eve eet ae eee ee ee 3

Texas State Teachers v. Garland Ind. School Dist. ,

a aa Cero 6 6s 6 6 4.6 oles” 6, 10, 11

U.S. Bancorp v. Bonner Mall Partnership, 513

a Pe ons os6 ewes dee e es 15-17

iV

Venegas v. Mitchell, 495 U.S. 82 (1990) ........ 18

Warren Hills Regional Bd. of Educ. v. Sypniewski,

oo! ee eee eee 4

Worth v. Jackson, 451 F.3d 854 (D.C. Cir. 2006) 17

Constitutional Provisions, Statutes, Rules:

Pe Ee EE 6 co ccc waseesinasnes 11

en EE 6-5 oe 6 6d 0-0 60's 50 6.5 baw e's 5,9

ee es Ss a A aS see e dees us 11

se & 3 § Terrier reerreeeiee l

ee 8 arr se ee ee ee ee 1

Ge GA ME Be eh eet eeeeseseevees |

MOTION AND INTEREST OF AMICUS CURIAE

Pursuant to Rule 37.3(b) of the rules of this Court,

the Center for Individual Rights ("CIR") moves for leave to

file a brief amicus curiae. Petitioners have not consented to

the filing of a brief by CIR.

CIR is a public interest law firm. It has participated

in the litigation of numerous cases concerning issues related

to the First Amendment, especially those involving students

in college and high school, including Rosenberger v. Rectors

and Visitors of the University of Virginia, 515 U.S. 819

(1995), Sypniewski v. Warren Hills Regional Bd. of Educ.,

307 F.3d 243 (3d Cir. 2002) and McConnell v. Le Moyne

College, 808 N.Y.S.2d 860 (App. Div. 2006).

CIR believes that the standard set forth by petitioners

and their amici would have a devastating and altogether

inappropriate effect on student speech cases, which, by their

natues, are prone to becoming moot when the plaintiffs

graduate from school. The Sypniewski case is an excellent

example of this phenomenon, and is described in detail

below. Petitioners and their amici would deny "prevailing

party” status to plaintiffs in student speech cases who

"prevail" in any common or sensible use of that term. CIR

submits this amicus brief to alert the Court to this conse-

quence of petitioners’ argument. '

STATEMENT OF THE CASE

CIR adopts the statement of the case provided by

respondents.

: Pursuant to Rule 37.6, amicus curiae CIR affirms that no

counsel for any party authored this brief in whole or in part and that no

person or entity made a monetary contribution specifically for the

preparation or submission of this brief.

2

THE SYPNIEWSKI CASE

The incident that precipitated the Sypniewski lawsuit

was Thomas Sypniewski’s suspension for wearing a Jeff

Foxworthy T-shirt to high school on March 22, 2001. The

humorous T-shirt identified the "Top 10 reasons you might

be a redneck sports fan." Sypniewski, 307 F.3d at 249-50.

Thomas was suspended for violating the School’s Dress

Code policy, which prohibited, inter alia, clothing "portray-

ing racial, ethnic, or religious stereotyping." /d. at 250 n.6.

Thomas’s brother, Brian, was a middle school student, and

wore his Foxworthy t-shirt the day after Thomas was

suspended. /d. at 251. Although no action was taken

against Brian, when the Board of Education denied Thomas’s

appeal of his suspension, it stated that the failure to take

action against Brian had been a mistake. /d.

Thomas and Brian, and their brother Matthew,

commenced a lawsuit on June 25, 2001. At that time,

Thomas already had graduated high school, Matthew had just

completed his freshman year, and Brian was going to enter

high school that fall. /d. at 246 n.1. At the same time that

they filed the complaint, Matthew and Brian filed a motion

for a preliminary injunction seeking to enjoin the application

of the Dress Code, and a separate Policy On Racial Harass-

ment And Intimidation (the "Racial Harassment Policy"), to

the Foxworthy T-shirt. (The Racial Harassment Policy

prohibited the wearing or possession of items "depicting or

implying racial hatred or prejudice” or that “is racially

divisive or creates ill will or hatred." /d. at 249.)

Defendants filed their brief in opposition to the

preliminary injunction motion about six weeks later, on

August 7, 2001, and oral argument was held on August 15,

2001. Docket in Sypniewski v. Warren Hills Regional Bd. of

3

Educ., D.N.J. Civ. No. 01-30614 (hereinafter "Sypniewski

District Court Docket") (Doc. Nos. 12-14, 20); Sypniewski

v. Warren Hills Regional Bd. of Educ., Civ. No. 01-3061,

slip op. at 1 (D.N.J. filed Sept. 4, 2001). The district court

issued its opinion on September 4, 2001. The district court

denied the motion for a preliminary injunction with respect

to the Racial Harassment Policy and its application to the

Foxworthy T-shirt, but held that the challenged parts of the

Dress Code might not satisfy constitutional muster and

suggested that it should not be enforced prospectively during

the litigation. /d. at 2, 87. An order denying the motion for

a preliminary injunction was entered on September 7, 2001.

Sypniewski Dist. Ct. Docket, Doc. No. 22. Matthew and

Brian filed their notice of appeal three days later. /d., Doc.

No. 23.

Matthew and Brian moved in the Third Circuit for a

preliminary injunction pending appeal and expedited briefing

on September 21, 2001. Docket Sheet in Sypniewski v.

Warren Hills Regional Bd. of Educ. , Third Cir. No. 01-3542

("Sypniewski 3d Cir. Docket"). In an order dated January 4,

2002, the Court of Appeals granted the motion to expedite

the appeal (to which defendants had consented), but denied

the motion for a preliminary injunction pending appeal. Id.

Since the briefing was almost completed at that time, the

motions panel ordered the matter to be listed before the next

available panel. The appeal was argued before the Third

Circuit on March 4, 2002. Sypniewski v. Warren Hills

Regional Bd. of Educ., 307 F.3d at 243; Sypniewski Third

Cir. Docket.

Some 7 months later, on October 3, 2002, the Third

Circuit issued its opinion reversing the district court in part.

Specifically, the Court concluded that the District Court had

erred in failing to enjoin application of the Racial Harass-

4

ment Policy to the Foxworthy t-shirt and failing to enjoin

that policy to the extent that it permitted the regulation of

speech that "creates ill will." Sypniewski, 307 F.3d at 269.

The school board filed a petition for hearing and suggestion

for rehearing en banc on October 17, 2002. Sypniewski

Third Cir. Docket. The Third Circuit issued an order

denying that petition on October 29, 2002, and mandate was

issued on November 6, 2002. /d. The District Court

entered a preliminary injunction based on the Third Circuit’s

opinion on November 25, 2002. Sypniewski Dist. Ct.

Docket (Doc. No. 38). At that time, Matthew was a junior

in high school and Brian was a sophomore.

The school board filed a petition for a writ of

certiorari with this Court on January 27, 2003. Supreme

Court Docket in Warren Hills Regional Bd. of Educ. v.

Sypniewski, Sup. Ct. No. 02-1328. This Court denied that

petition on May 19, 2003. Warren Hills Regional Bd. of

Educ. v. Sypniewski, 538 U.S. 1033 (2003).

Upon return to the District Court, a discovery and

scheduling orcer was issued. Plaintiffs moved for partial

summary judgment on various claims on October 5, 2004.

Sypniewski Dist. Ct. Docket, Doc. No. 50. Defendants did

not oppose that motion to the extent it sought some word

changes in the Dress Code and the striking of the words "ill

will” in the Racial Harassment Policy. Sypniewski v. Warren

Hills Regional Bd. of Educ., Civ. No. 01-3061, slip op. at

12-13 (D.N.J. filed Feb. 7, 2005). The court denied all of

the rest of plaintiffs’ motion for summary judgment, con-

cluding, for example that there were issues of fact as to

whether the Board had violated Thomas’s rights when it

suspended him for wearing the Foxworthy t-shirt. /d. at 13.

Matthew graduated from Warren Hills Regional High

5

School in June 2004 and Brian did the same in June 2005.

They apprised the district court of this pursuant to their duty

of candor, and, in November 2005, moved to dismiss

voluntarily their remaining claims (including damages claims

for Thomas, which he no longer wished to pursue). The

district court granted that motion in January 2006. Sypniew-

ski v. Warren Hills Regional Bd. Of Educ. , 2006 WL 208562

(D.N.J. Jan. 26, 2006).

The Sypniewskis then moved for attorneys’ fees

pursuant to 42 U.S.C. § 1988. The district court concluded

that plaintiffs were “prevailing parties,” focussing signifi-

cantly on the fact that Matthew and Brian were able to wear

the Foxworthy t-shirt to school because of the Third Cir-

cuit’s judgment ordering the district court to issue a prelimi-

nary injunction. Sypniewski v. Warren Hills Regional Bd. of

Educ., 2006 WL 1675066, *6 (D.N.J. June 14, 2006).

In light of the arguments put forward by petitioners

and their amici in this case, several points regarding the

Sypniewski case deserve emphasis. First, the primary relief

obtained was the ability of Matthew and Brian to wear the T-

shirt to school without fear of punishment for racial harass-

ment or insensitivity. The only other relief obtained was

wording changes in the Dress Code and the Racial Harass-

ment Policy. Second, although the district court did issue a

"permanent injunction" with respect to those wording

changes, it could easily have been otherwise. By the time

the district court decided plaintiffs’ motion for partial

summary judgment, Matthew already had graduated and

Brian’s graduation was just a few months away. Had the

district court delayed much longer, Brian’s right to any

permanent relief at all would have been moot as well.

Alternatively, since defendants did not oppose plaintiffs’

wording changes, they could have made the changes them-

6

selves and argued that an injunction was unnecessary.

Third, the wording changes alone may not have been

sufficient to justify a grant of fees under any circumstances.

Texas State Teachers v. Garland Ind. School Dist., 489 U.S.

782, 792 (1989) (although district court had concluded that

prior approval requirement for nonschool hour meeting was

unconstitutionally vague, "this alone would not have ren-

dered them ‘prevailing parties’ within the meaning of

§ 1988"); Farrar v. Hobby, 506 U.S. 103, 113 (1992).

Fourth, the preliminary injunction precluding defendants

from applying the Racial Harassment Policy to the Fox-

worthy t-shirt was never made permanent. Despite that,

Matthew received the benefits of the preliminary injunction

for nearly two academic years, and Brian received its benefit

for nearly three academic years. No permanent injunction

could have done better for them.

SUMMARY OF ARGUMENT

This Court granted the petition for a writ of certiorari

to answer the following question: Were plaintiffs here

prevailing parties? Petitioners and their amici want to

answer an entirely separate question: Do plaintiffs here

deserve attorneys’ fees? Petitioners’ Brief ("Pet. Br.") at 40

("There is no reason to shift fees in this case"); Brief of the

United States as Amicus Curiae ("U.S. Br.") at 8 ("Funda-

mental fairness precludes imposing fee liability on a fully

vindicated defendant"); id. ("Congress [did not] intend[]} to

saddle fully vindicated defendants . . . with attorney’s fees

.. .."); id. at 19 (preliminary injunction proceedings do not

permit the kind of consideration "needed to justify saddling

the defendant with responsibility for attorney’s fees"); Brief

of National League of Cities, et al. ("NLC Br.") at 24

(Section 1988 "is not properly construed to award attorney’s

fees to plaintiffs who lose on the merits").

7

As this Court’s precedents demonstrate, these are

simply not the same questions. E.g., Farrar v. Hobby, 506

U.S. 103, 115 (1992) ("In some circumstances, even a

plaintiff who formally ‘prevails’ under § 1988 should receive

no attorney’s fees at all").

In answering the question of who is a "prevailing

party,” petitioners and their amici argue that a fairly clear

line needs to be established. We agree. But when the line

to be drawn is only a necessary condition to entitle a plaintiff

to attorneys’ fees, and not a sufficient one, common sense

suggests that it should be set at a fairly low threshold, as in

Farrar. When so done, courts are easily able to adjust the

amount of fees to which a prevailing plaintiff is entitled to

take into account things like the permanence of the relief

obtained or whether any "final" resolution of the merits was

achieved. In contrast, the threshold set by petitioners and

their amici is so high that it would preclude fees in cases

where any reasonable observer would conclude that plaintiffs

had both prevailed and obtained a judgment on the merits.

E.g., U.S. Br. at 20 n.11 (plaintiff that obtains a preliminary

injunction followed by defendants’ capitulation would not be

a "prevailing party”).

To obscure this problem, petitioners and their amici

try to paint preliminary injunctions with a broad brush.

Some of their observations may be true some of the time;

but they are not always true, and there lies the rub. It may

be true on some occasions that a preliminary injunction

motion is heard on very short notice; but sometimes (as in

Sypniewski) the preliminary injunction is not issued until

appeal and after extensive briefing and careful analysis by

the Court of Appeals. It is also no doubt sometimes true

that a lower court does not make a very thorough analysis of

the merits on a motion for temporary relief; but sometimes

8

(as in Sypniewski) courts engage in extensive and long

analyses of the likelihood of success on the merits and the

preliminary injunction determination depends entirely on that

analysis. Sypniewski, 307 F.3d at 252; Comwell v. Sachs,

99 F. Supp. 2d 695, 704, 709 (E.D. Va. 2000) (renown

author entitled to a preliminary injunction, inter alia,

requiring lesser-known author to have booksellers remove

stickers that he had affixed to his books and to amend his

personal website; standard for mandatory preliminary injunc-

tions requires a showing of a "clear and convincing probabil-

ity of success” such that "if there is doubt as to the probabil-

ity of plaintiff's ultimate success, a request for preliminary

mandatory relief must be denied" and well-known author

"has met that burden by showing that she is virtually certain

of success on the merits") (internal quotation marks and

citations omitted). It also may be true that some preliminary

injunctions last only a very short period of time; but others

(as in Sypniewski) can last for years, as long as some so-

called "permanent" injunctions last.

Petitioners’ approach makes no sense at all. They

suggest that if the plaintiffs in Sypniewski had entered into a

consent order giving them the right to wear the Foxworthy

t-shirt for one academic year, they would have been "pre-

vailing parties"; but that having received a preliminary

injunction that gave them the right to wear the same t-shirt

for three academic years, they were not. They crgue that a

$1 nominal damages award is a "material" change in the

legal relationship between the parties; but that a preliminary

injunction that lasts for years is not.

Just like the nominal damages award in Farrar,

considerations like the length of the injunction or the degree

to which the merits were analyzed can be assessed by district

courts to determine the amount of fees that are "reasonable."

9

But to lay down a bright line rule that would preclude any

fees at all in cases where plaintiffs have received long-lasting

relief based upon a thorough consideration of the merits --

indeed, where they have prevailed in every meaningful sense

of the word -- would violate both Congress’s understanding

of the purpose of Section 1988 and fundamental notions of

fairness.’

ARGUMENT

I. This Court’s Precedents Demonstrate That Judicial

Relief That Alters The Parties’ Legal Relationship

Is Sufficient To Attain Prevailing Party Status.

Petitioners and their amici take snippets of language

from this Court’s earlier cases in their effort to demonstrate

that an order granting temporary relief is inadequate to form

the basis for "prevailing party" status. They fail to take into

account the context in which this language was used, and

thus ignore the fact that most of their arguments based upon

precedent cannot explain one or more of this Court’s

previous decisions. St. Mary’s Honor Center v. Hicks, 509

U.S. 502, 515 (1993) ("we think it generally undesirable,

where holdings of the Court are not at issue, to dissect the

sentences of the United States Reports as thought they were

the United States Code").

l. "Nothing in the language of § 1988 conditions

. In this regard, we agree with petitioners that a line between

various kinds of temporary relief -- e.g., “status-quo” injunctions v.

“merits-based” injunctions -- is difficult to draw and, more importantly,

entirely unnecessary aS a prerequisite to finding that a plaintiff is a

“prevailing party.” Pet. Br. at 24-25. The district courts can take these

factors into account in determining the amount of a reasonable fee.

10

the District Court’s power to award fees on full litigation of

the issues or on a judicial determination that the plaintiff's

rights have been violated." Maher v. Gagne, 448 U.S. 122,

129 (1980). In Maher, this Court specifically upheld the

award of fees to a plaintiff who had obtained results by entry

of a consent decree, despite the fact that the consent decree

"[a]s is customary . . . did not purport to adjudicate respon-

dent’s statutory or constitutional claims." /d. at 126 n.8.

As this Court explained in Buckhannon Bd. and Care Home,

Inc. v. West Virginia Dep't of Health and Human Resources,

532 U.S. 598, 604 (2001), such “court-ordered consent

decrees create the ‘material alteration of the legal relation-

ship of the parties’ necessary to permit an award of attor-

ney’s fees" (quoting Texas State Teachers Ass'n v. Garland

Ind. School Dist., 488 U.S. at 792-93).

Thus, the various arguments by petitioners and their

amici that a plaintiff is not a prevailing party unless (s)he has

prevailed on the "merits" simply fails to take Maher into

account. E.g., Pet. Br. at 15; U.S. Br. at 8-10. Cases upon

which they rely, like Hewitt v. Helms, 482 U.S. 755 (1987),

involved situations where the plaintiffs achieved no alteration

at all of the legal relationship between themselves and

defendants, much less a "material" one.’

In fact, this Court’s precedents have emphasized that

the change in a legal relationship necessary to cross the

"prevailing party" threshold is a low one:

’ So, too, both "common usage” and the legal definition of the

word “prevailing” are inadequate to cover this Court’s past precedents.

Cf. NLC Br. at 11-12. Common usage would suggest that the plaintiff

in Buckhannon did, and Mr. Farrar did not, "prevail." The technical

legal definition of "prevailing party” would not usually include a plaintiff

who enters into a consent 4ecree in which the defendants do not admit

wrongdoing or liability.

11

A typical formulation is that "plaintiffs may

be considered ‘prevailing parties’ for attor-

ney’s fees purposes if they succeed on any

significant issue in litigation which achieves

some of the benefit the parties sought in

bringing suit." Nadeau v. Helgemoe, 581

F.2d 275, 278-279 (CA 1 1978). This is a

generous formulation that brings the plaintiff

only across the statutory threshold. It re-

mains for the district court to determine what

fee is ‘reasonable.’

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). See also

Texas State Teachers Ass’n v. Garland Ind. School Dist.,

489 U.S. at 791-92. The only question in this case, then, is

whether the plaintiffs’ ability to engage in the peace protest

they sought was a "significant issue" that achieved some of

the benefit they sought in bringing the suit. Surely, it was.

Similarly, this Court has emphasized that a "material

alteration of the relationship between the parties occurs

[when] the plaintiff becomes entitled to enforce a judgment,

consent decree or settlement against the defendant." Farrar

v. Hobby, 506 U.S. at 113. There can be no dispute that an

order granting a motion for a preliminary injunction is a

"judgment." Rule 54(a), Fed. R. Civ. P. ("‘Judgment’ as

used in these rules includes a decree and any order from

which an appeal lies"); 28 U.S.C. § 1292(a)(1) (courts of

appeals have jurisdiction over appeals from orders granting

injunctions). See also, e.g., Financial Services Corp. of

Midwest v. Weindruch, 764 F.2d 197, 198 (7th Cir. 1985).

A plaintiff that receives the benefits of a preliminary

injunction can “enforce” that judgment to ensure compliance

by the parties subject to it.

12

2. Petitioners and amici have two responses to

these precedents. First, they suggest that there is a two-

category standard for "prevailing party" status, the two

more-or-less unrelated categories being those who have

achieved a final judgment on the merits and those who have

achieved a change in the legal relationship between the

parties through a consent judgment. E.g., Pet. Br. at 16;

U.S. Br. at 11. Second, they suggest that the phrase

"material alteration" must mean a "permanent" or "final"

alteration in the parties’ legal relationship. E.g., Pet. Br. at

13; U.S. Br. at 21.

Petitioners and their amici proffer the suggestion that

there are only two categories of plaintiffs who are prevailing

parties so that they can distinguish a plaintiff who has

procured a preliminary injunction from each. Accordingly,

they insist that those plaintiffs who have not attained a court-

ordered consent decree are not prevailing parties unless they

were ultimately victorious in the lawsuit. But this Court has

not created such rigid categories in its fee jurisprudence.

Rather, court-ordered consent decrees and judgments on the

merits entitle plaintiffs to “prevailing party" status because

they meet the "generous formulation" that grants such status

to all who have attained a material alteration in their legal

relationship with the defendants. In Buckhannon, 532 U.S.

at 605, this Court concluded that "the ‘catalyst theory’ falls

on the other side of the line" from the judgment on the

merits and the consent decree. That is, there is just one line

(or standard), and not two, that distinguish judicial orders

sufficient to justify "prevailing party” status, and those that

do not. And that line obviously does not require a full-

fledged assessment of the merits of the case for the simple

reason that court-ordered consent decrees do not require

much assessment of the merits at all.

13

Thus, petitioners and their amici must fall back on

their second argument, viz., that only a "final and enduring”

(U.S. Br. at 24 n.14) alteration in the legal relationship is a

material one. /d. at 7 ("enduring, material change"); NLC

Br. at 8 ("success that is lasting"). But this argument creates

a false dichotomy between the "permanent" relief of a

consent-decree and the "temporary" relief of a preliminary

injunction.

Nothing is forever, not even "permanent" injunctions

(be they imposed with the consent of the parties or other-

wise). For example, in Bd. of Educ. of Oklahoma City

Public Schools v. Dowell, 498 U.S. 237, 248 (1991), this

Court emphasized that school desegregation decrees "are not

intended to operate in perpetuity," and a decree entered into

with the consent of the parties would be no less subject to

modification when circumstances warranted.

More importantly, consent decrees are frequently

time-limited by their own terms. For example, in EEOC v.

Local 40, Int’l Ass'n of Bridge, Structural and Ommamental

Iron Workers, 76 F.3d 76 (2d Cir. 1996), two intervenors

sought in 1993 to have a union held in contempt for violating

a 1980 consent decree. The consent decree emanated from

a suit brought by the EEOC alleging discrimination against

minorities and had sought to ensure that the union would

take affirmative steps to ensure fairness and non-discrimina-

tion in hiring and referrals. It had a three-year expiration

provision, but another provision stated that the union would

be "permanently enjoined" from discriminating against

minorities. Jd. at 80. The Second Circuit held that the

agreement had expired and that the district court had no

jurisdiction to enforce it. It failed to perceive any ambiguity

between the provision "permanently enjoining" the union and

the three-year termination provision because "[j]udges often

14

use the word ‘permanent’ to distinguish post-litigation or

post-settlement injunctions such as this one from the prelimi-

nary or temporary injunctions sometimes issued before full

resolution of the merits." Id.

This Court has never held, nor would it make sense

to hold, that only consent decrees that last more than a

p-°cular period of time are sufficient to bestow "prevailing

plaintiff" status. On the other hand, as shown in the

Sypniewski case, some preliminary injunctions can be quite

long lasting. Thus, in many instances, the difference

between consent decrees and preliminary injunctions is really

much more a difference in degree than kind. It is most

likely that, on the whole, consent decrees have a longer

duration, although some are probably shorter in duration

than many preliminary injunctions. On the other hand,

preliminary injunctions, on the whole, probably involve a

more serious judicial assessment of the underlying merits of

plaintiffs’ case than judicial approval of consent decrees. To

suggest that one group (consent decrees) universally involves

a "material" change in legal relationships while the other

(preliminary injunctions) never does just ignores reality.

II. Petitioners’ Standard Would Lead To Harsh Results

As if to emphasize the harsh results their theories

would entail, both petitioners and their amici urge that

plaintiffs who both receive the benefits of a judicially-

sanctioned preliminary injunction and who obtain completely

satisfactory results at the end of the litigation should none-

theless be denied prevailing party status. Thus, petitioners

argue that those plaintiffs who obtain a preliminary injunc-

tion that becomes moot with the passage of time should be

denied prevailing party status. Pet. Br. at 32-35. The

United States argues that those plaintiffs who obtain a

15

preliminary injunction, and where the defendants then simply

read the writing on the wall and give up, are not prevailing

parties. U.S. Br. at 20 n.11.

1. Petitioners’ argument seems to be based on

several misunderstandings. First, it is entirely unclear what

petitioners mean when they refer to the "mootness of an

interim order" (Pet. Br. at 34) like a preliminary injunction

order. All preliminary injunctions become "moot" at some

point; that is the nature of temporary relief. A preliminary

injunction "pending trial" or "pending appeal” will presum-

ably be moot (and unappealable) after final judgment or the

appeal. As such, this argument does not seem to be any-

thing more than a “=*teration that all preliminary injunctions

are inadequate to justify prevailing party status.‘

Petitioners also misunderstand this Court’s precedents

on vacatur. It is true that the extraordinary remedy of

vacatur is sOmetimes appropriate when a final judgment

becomes moot pending appeal -- albeit subject to the

equitable exercise of the appellate court. See U.S. Bancorp

v. Bonner Mall Partnership, 513 U.S. 18, 26 (1994; ("It is

petitioner’s burden, as the party seeking relief from the.

status quo of the appellate judgment, to demonstrate . . .

equitable entitlement to the extraordinary remedy of vaca-

tur"). But petitioners cite no case where this Court has held

that a district court should vacate its own preliminary

injunction if it becomes moot over time (which, of course,

it always will). Indeed, petitioners’ argument seems to be

. Although, again, it is quite unclear, petitioners may be referring

to cases where preliminary injunctions are issued and the underlying

request for similar permanent relief becomes moot through the passage

of time. Alternatively, they may be referring to preliminary injunctions

that themsc ives become moot pending appeal of the order itself.

16

internally incoherent. Vacatur is designed to clear the path

for future litigation where the losing party has been deprived

of its right to appeal through no fault of its own. /d. at 22-

23. But if, as petitioners argue, “the general rule is that a

preliminary injunction lacks preclusive consequences," and

"the doctrines of res judicata, collateral estoppel, and law of

the case do not apply," Pet. Br. at 21, vacating an order

granting a preliminary injunction serves no purpose at all,

much less a purpose that justifies the “extraordinary remedy

of vacatur." Bonner Mail Partnership, 513 U.S. at 26.

Thus, while vacated judgments cannot serve as a

basis for attorneys’ fees, petitioners are wrong to suggest

that ail preliminary injunctions should be vacated simply

because of the passage of time. In Sypniewski, the district

court entered a preliminary injunction after it was ordered to

do so by the Third Circuit. That is, the defendants there

already had had an opportunity to present their arguments to

an appellate court (and subsequently filed a petition for writ

of certiorari with this Court). The district court did not "va-

cate" its previous preliminary injunction order, and, it is

hard to understand how it would have had the authority to do

sO given that its source was a superior court.

Ultimately, petitioners’ argument is that wholly

successful plaintiffs, who received the benefits of a judicial-

ly-ordered preliminary injunction for as long as they needed

one, are not “prevailing parties." They further assert --

without explanation and in defiance of basic common sense

-- that their position will not discourage plaintiffs with

meritorious cases, but who seek relief over a short time

horizon, from bringing their suits. Pet. Br. at 38. If the

“common understanding” of "prevailing party" is at all

relevant to this determination, it is surely difficult to justify

17

that outcome.°

2. Even harder to comprehend is the United

States’s argument that those who obtain a judicially-sanc-

tioned preliminary injunction, and whose defendants then

surrender sO convincingly that a court concludes that no

permanent injunction is needed, are still not “prevailing

parties." U.S. Br. at 20 n.11. (Petitioners themselves seem

less certain on this point. Pet. Br. at 38 n.21 (might

discourage meritorious suits).) Again, this is hardly consis-

tent with common sense, much less this Court’s "generous

’ For this reason, respondent Simon prevailed in this case. The

United States asserts that it is “doubtful” that respondent Simon has

standing. U.S. Br. at 3.n.3. As a broad proposition, this is wrong.

Standing is determined at the outset of the case, and the United States

offers no reason why Simon did not have standing to challenge Florida’s

regulations prior to the peace protest on February 14, 2003. Friends of

the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167,

180 (2000) ("we have an obligation to assure ourselves that [plaintiff] had

Article III standing at the outset of the litigation") (emphasis added);

Worth v. Jackson, 451 F.3d 854, 859-60 (D.C. Cir. 2006) (although

challenge to employment policy was moot, because the challenged policy

had lapsed, plaintiff nonetheless had standing because challenged policy

“was in place when [plaintiff] filed suit and ‘[t}he existence of federal

jurisdiction ordinarily depends on the facts as they exist when the

complaint is filed.’") (quoting Newman-Green v. Alfonzo-Larrain, 490

U.S. 826, 830 (1989)). Simon also surely has standing to seek attorneys’

fees and to defend the award of such fees on appeal. Cf. Bonner Mail

Partnership, 513 U.S. at 390 (court is not powerless to award costs just

because case became moot on appeal).

The United States has “confused mootness with standing.”

Friends of the Earth, 528 U.S. at 189. What it apparently means is that

Simon’s request for a permanent injunction to Florida’s regulations

became moot after February 14, 2003. That may well be true, but it

only demonstrates that Simon obtained ail the relief he possibly could

have obtained from this litigation.

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formulation” of the "prevailing party” standard. Hensley v.

Eckerhart, 461 U.S. at 433.

Perhaps worst of all, the standard suggested by

petitioners and their amici would give attorneys incentives to

act contrary to the interests of their clients.° When a

preliminary injunction is issued, and an attorneys’ clients

need it for a limited period of time, it is not in the clients’

best interests to rush the case to trial.’ Similarly, when

clients have obtained a preliminary injunction, with perhaps

a strong judicial hint that they will be successful on appeal,

it is usually not in the clients’ best interest to resist the

defendants’ complete surrender, if judged to be in good

faith, by insisting upon a permanent injunction to which the

defendants may be reluctant to assent.

Yet this is the result that petitioners and their amici

. It is true, of course, that the right to statutory fees belongs to the

client, and not the attorney. Evans v. Jeff D., 475 U.S. 717, 730-31

(1986). But, as this Court has noted, most attorneys take civil rights

cases subject to fee-shifting statutes with the express understanding that

the client will pay the attorney any fees that he receives pursuant to such

a statute. Cf. Venegas v. Mitchell, 495 U.S. 82, 86 (1990) ("It is likely

that in many, if not most, cases a lawyer will undertake a civil rights

case on the express or implied promise of the plaintiff to pay the lawyer

the statutory award, i.e., a reasonable fee, if the case is won."). CIR’s

agreements with its clients usually incorporate such a provision.

, Nor is it always possible to do so. The United States repeatedly

asserts that a plaintiff seeking a preliminary injunction who wishes to

have a "full-blown merits determination may seek to do so under Federal

Rule of Civil Procedure 65(a)(2).” U.S. Br. at 7. /d. at 19-20. The

operative term, of course, is "seek"; there is no guarantee that a

defendant will consent to, or a court will order, such relief. And, again,

it may not be in the best interests of plaintiffs who believe that their case

will become stronger through discovery to even make the request.

19

insist upon: giving attorneys incentives to work against their

clients’ best interests. There are a sufficient number of

incentives for irresponsible attorney behavior without the law

on "prevailing party” status adding to them.

CONCLUSION

Respondents are “prevailing parties." Petitioners

failed to seek a review of any other issue related to the

award of attorneys’ fees, and, accordingly, the judgment of

the court below should be affirmed.

Respectfully submitted,

Michael E. Rosman

Counsel of Record

CENTER FOR INDIVIDUAL RIGHTS

1233 20th St., NW, Suite 300

Washington, DC 20036

(202) 833-8400