Amicus Curiae Brief — Sole v. Wyner

Wy © YD

No. 06-531

IN THE

Supreme Court of the United States

MICHAEL W. SOLE, Secretary, Florida Department of

Environmental Protection, and TERENCE COULLIETTE.

Petitioners,

V.

T.A. WYNER and GEORGE SIMON.

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE NATIONAL LEAGUE OF CITIES,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION, INTERNA™IONAL

CITY/COUNTY MANAGEMENT ASSOCIATION,

GOVERNMENT FINANCE OFFICERS

ASSOCIATION, AND U.S. CONFERENCE OF

MAYORS AS AMICI CURIAE

SUPPORTING PETITIONERS

LAWRENCE ROSENTHAL RICHARD RUDA*

CHAPMAN UNIVERSITY Chief Counsel

SCHOOL OF LAW STATE AND LOCAL LEGAL

One University Drive CENTER

Orange, California 92866 444 North Capitol Street, N.W.

(714) 628-2650 Suite 309

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae

WiLSON-EPES PRINTING CO... INC. — (202) 789-0096 - WASHINGTON. D.C. 20002

QUESTION PRESENTED

Whether plaintiffs who file suit alleging a violation of their

constitutional rights are “prevailing parties” for purposes of

the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C.

§ 1988, when they obtain preliminary injunctive relief but

ultimately lose on the merits.

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TABLE OF CONTENTS

Page

ee ee PRUNE 8 OR cccrencascccevessotecssntensvcncstebceniiine i

Ce FEF ate ee cccccnstecsccncccsnsinteccnnesventscnes iv

INTEREST OF THE AMICI] CURIAE .............:cccccssseees l

STA TERERINT OF THEE CASES cnccccccccccecesestoessscscoessssees 2

SUMMARY OF ARGUMENT ..................-ccccscsssscssssees 8

— TE sah iectiitininmintasinnnipntnniiabiastnaibiatinniaianiiiitign 9

I. A PLAINTIFF WHO OBTAINS PRELIM-

INARY INJUNCTIVE RELIEF BUT WHO

LATER LOSES ON THE MERITS IS NOT A

PE ERE TINIE TE ssistersitnteseidtiacentuhiononeititidppins 10

A. A Plaintiff Does Not Prevail By Obtaining

Only Interlocutory Relief..........0000. eee 11

B. The Preliminary Injunction Was Not Relief

On The Merits Of Respondents’ Claim....... 15

Il. THE CIVIL RIGHTS ATTORNEY’S FEES

AWARDS ACT IS NOT PROPERLY

CONSTRUED TO AWARD ATTORNEY’S

FEES TO PLAINTIFFS WHO LOSE ON

ee i iciciiinectannrcnsinsiamectasiiiininteinubeainenein 24

SAPO EAR EIEEIEY veqcensatiemeccsnisnpmninnnimensemnenemnannnert 30

(iii)

1V

TABLE OF AUTHORITIES

Cases Page

Alioto v. Williams, 450 U.S. 1012 (1981).............. 23

Amoco Production Co. v. Village of Gambell,

A CITE aisiictbihepseincnsentemsantccinedediibeis 22

Barnes v. Glen Theatre, Inc., 501 U.S. 560

a spineseoitdsigaiiaibanpuitiditiatahalaesnsabbeieiiiodipiipabainaptents 25-26

Bishop v. Committee on Professional Ethics, 686

anne EPO EE ale BOP ccncstasnscosnsscsehsntetetnenpsecs 23

Boucher v. School Bd. of the School Dist. of

Greenfield, 134 F.3d 821 (7th Cir. 1998).......... 18

Bray v. Alexandria Women’s Health Clinic, 506

a Aa TITITED sosichlciieiincbiideiditinindininninidigsniiideniininianses 20-21

Buchanan v. Stanships, Inc., 485 U.S. 265 (1988).. 21

Buckhannon Board & Care Home, Inc. v. West

Virginia Department of Health & Human

Resources, 532 U.S. 598 (2001) .............:ccceeeeee passim

City of Burlington v. Dague, 505 U.S. 557 (1992)...24, 24-25

City of Riverside v. Rivera, 477 U.S. 561 (1986).. 24

Clark v. Community for Creative Non-Violence,

Pe SIU sscicinticsihenininncbsanisbesnisiniediadaiicn 27

Craft v. Hodel, 683 F. Supp. 289 (D. Mass. 1988)... 26

Dahlem v. Board of Educ. of Denver Public

Schools, 901 F.2d 1508 (10th Cir. 1990)........... 23

DeWald v. Wyner, 674 So. 2d 836 (Fla. Dist. Ct.

Fe Se sisiintcincnounsieneintasteninitoranngeiintanintetinees

Doe v. Busbee, 684 F.2d 1375 (11th Cir. 1982)... 21

Doe v. Sundquist, 106 F.3d 702, 707 (6th Cir.),

cert. denied, 522 U.S. 816 (1997)..............seccee0 18

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)..... 17

Eckl v. Davis, 124 Cal. Rptr. 685 (Cal. Ct. App.

Ss TITTEINTsiusincnaieieicellnhistehlhbdaseiiadiaeneiribalantiiadeapdibienn 26

Egolf v. Witmer, 421 F. Supp. 2d 858 (E.D. Pa.

See hicsinindiiitighciaisindainiesiidiadaniiigdbbiianuinsesaiibteie 26

Farrar v. Hobby, 506 U.S. 103 (1992)..............00 passim

Vv

TABLE OF AUTHORITIES—Continued

Page

Federated Department Stores, Inc. v. Moitie, 452

OF. FOG CIGBE) nnccccssisnsnceciinniiatinnsttesiminiaauaaadiaia 20

Forsyth County v. Nationalist Movement, 505

OD. C25 GIG TED nxvccscscssnncessciiisiinaniuninniiiinaseiiaimniae 27

Gerardi v. Pelullo, 16 F.3d 1363 (3d Cir. 1994)... 18

Haley v. Pataki, 106 F.3d 478 (2d Cir. 1997)....... 23

Hanrahan v. Hampton, 446 U.S. 754 (1980) ........ 12

Hewitt v. Helms, 482 U.S. 755 (1987)......... 11-12, 13, 20

Horton v. City of St. Augustine, 272 F.3d 1318

CEG Ce WED cccconsctininineninniiainasiiennginamalan 18

Kay v. David Douglas School District No. 40,

SOG US. BORE CIID ccccscsisscsicnsesinssecicnitiidmesilnabaiaa 23

Kay v. Ehler, 499 U.S. 432 (1991) woo eeeeeee 24

Murphy v. Fort Worth Indep. School Dist., 334

FG SIO COD CA, FEI cccrcccccssscssisiitassisiuisisiaiitas 23

National Black Police Assn. v. District of

Columbia Bd. of Elections & Ethics, 168 F.3d

SES GL. Cae. FIT cnncsnrctiscnntttinsenvaiadidammaiaaiia 23

New York State Liquor Authority v. Bellanca,

GSZ UES. TES CAG GG) acscccscsnsnisiisinaiiccipitianaliante 16-17, 17, 18

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

CAe. CI iacccoassccsvosscescnentesniensiieaaeiniaai 21

Pennsylvania v. Delaware Valley Citizens’ Coun-

cil for Clean Air, 483 U.S. 711 (1987)... 24

Richard S. v. Dept. of Devel. Services, 3\7 F.3d

DODD COG: CAs, TGP naccccsccssitiisinsiiiiiaiceiiliaiiiadaiiaesin 23

Sampson v. Murray, 415 U.S. 61 (1974)... eee 18

Serono Laboratories, Inc. v. Shalala, 158 F.3d

ASOD CAL... COR, Te Pcccicnicnssnsincicnnsiiianiimaiiaaniaiiaen 18

Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002)...... 18

Standard Havens Prods., Inc. v. Gencor Indus.,

Inc., 897 F.2d 511 (Fed. Cir. 1990), cert.

denied, 506 U.S. 817 (1992) .occcccccccccccccceeeeeserees 18

vi

TABLE OF AUTHORITIES—Continued

Page

Sullivan v. Hudson, 490 U.S. 877 (1989).......... 12-13, 13

Taylor v. City of Ft. Lauderdale, 810 F.2d 1551

II tain dinttiatlictesicntcemerpncaetcinetenaenas 12

Texas State Teachers Association v. Garland

Independent School District, 489 U.S. 782

I cilia ricclieiaininlheadetidehiingieinseasemepttenmnnmunmnen passim

Thomas v. Chicago Park District, 534 U.S. 316

TET oe 27

Turner Broadcasting System, Inc. v. FCC, 520

Sh SITE niscpsitsianintatininisnenneenscsetnemeenmacsionen 26

United Industries Corp. v. Clorox Co., 140 F.3d

SE ET icininctinsssnteninetucusinietaapienmneneen 18

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

TIT icine tsesisiinecinatinsiendtietianinimsamiinmnierotee 16, 22

Walgreen Co. v. Hood, 275 F.3d 475 (Sth Cir.

Iara icicinindsinniessheiibdhnetitsiabiasiuhiahcinemanenteinteninpmeaniecinagee 18

Walmer v. United States Dept. of Defense, 52

Po og. 8 8 en 18

Walters v. National Association of Radiation

Survivors, 473 U.S. 305 (1985) .......ccceeseeseeeee 17

Ward v. Rock Against Racism, 491 U.S. 781

ST adiociniessleialetisitustiieimenbianaitssenanininetvennait 26, 26-27, 27

Warner-Lambert Co. v. Northside Dev. Corp., 86

IEE, SII datericiitncnnennnsendemsenciiansenednane 18

Weaver v. Henderson, 984 F.2d 11 (Ist Cir.

a hscthsicindehidiitiaitesannignaindneieingnntndemmmapentiane 18

Wm. Inglis & Sons Baking Co. v. [TT Continental

Baking Co., 526 F.2d 86 (9th Cir. 1975)........... 18

Young v. City of Chicago, 202 F.3d 1000 (7th

er eT 23

Statutes and Rules

I tina eetinahientineninnitiens 21

nd aR a SEE iciniinsiemrionediieensnrernenannniarnesens 22

vil

TABLE OF AUTHORITIES—Continued

Page

Fla.Admin. Code Rule 62D-2.014(7)(b) ............... 2

Fla.Admin. Code Rule 62D-2.014(18).................. 2

EM 13

Sy ites OF IEE etdecttnnititintentntenenienintiinsncemieenenine passim

Civil Rights Attorney’s Fees Awards Aci of

1976, codified at 42 U.S.C. § 1988 oe passim

Legislative Materials

H.R. Rep. No. 94-1558 (1976) .....eccccceeeeeeteeeeees 19

S. Rep. No. 94-1011 (1976), reprinted in 1976

RATS SUI certnsensevcaneoesncsiaiesienaneniennionnins 19,24

Other Authorities

Morton Denlow, The Motion for a Preliminary

Injunction: Time for a Uniform Federal

Standard, 22 Rev. Litig. 495 (2003)................ 18

Office of Judges Programs, Administrative

Office of the U.S. Courts, Federal Judicial

TE ee |

Charles Alan Wright, Arthur R. Miller & Mary

Kay Kane, Federal Practice and Procedure

I, real 22

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include county

and municipal governments and officials throughout the

United States.! Amici’s members are frequently sued for the

“deprivation of . . . rights, privileges, or immunities secured

by the Constitution and laws... .” 42 U.S.C. § 1983.7 The

Civil Rights Attorney’s Fees Awards Act provides that in

section 1983 actions, “the court, in its discretion, may al-

low the prevailing party, other than the United States, a

reasonable attorney’s fee as part of the costs... .” /d.

§ 1988(b).

The liability for attorney’s fees under section 1988 has

significant implications for budgeting and delivery of services

by state and local governments. Funds that must be allocated

to the payment of attorney’s fees are unavailable for other

public purposes. Amici fully acknowledge their obligation to

pay attorney’s fees under section 1988 for deprivations of

civil rights. In this case, however, the district court con-

cluded that there had been no violation of respondents’ rights,

and yet petitioners were held liable for attorney’s fees be-

cause the district court, in an expedited preliminary proceed-

ing, issued interlocutory injunctive relief. A rule that permits

civil rights plaintiffs to recover attorney’s fees even in cases

that prove meritless can only produce equally meritless

litigation, burdening local governments with both unwar-

ranted liability for attorney’s fees and the costs of defending

' The parties have consented to the filing of this brief. Pursuant to Rule

37.6, amici state that no counsel for a party has authored this brief, in

whole or in part, and that no person or entity, other than amici or their

members, has made a monetary contribution to the preparation or sub-

mission of this brief.

> In the 12-month period ending March 31, 2006, 31,240 civil rights

cases were filed in the federal courts in which the United States was

neither a plaintiff nor a defendant. See Office of Judges Programs,

Administrative Office of the U.S. Courts, Federal Judicial Statistics

(March 31, 2006), tbl. C-2.

2

such litigation. Accordingly, amici ask this Court to confine

section 1988 liability to its proper scope—cases in which the

civil nghts plaintiff obtains a judgment that her rights have

been violated.

STATEMENT OF THE CASE

John D. MacArthur Beach State Park is a public park of the

State of Florida that includes nature trails and a beach. Pet.

App. lla, 23a-24a. A portion of the park was once con-

sidered a “clothing optional” beach before it came under the

State’s control. /d. at lla, 24a. Applicable state regula-

tions, however, prohibit nudity at state parks: Florida Admin-

istrative Code Rule 62D-2.014(7)(b) provides that “[iJn every

area of a park including bathing areas no individual shall

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

entire buttocks or female breast below the top of the nipple,

with less than a fully opaque covering.” /d. at 27a-28a. In

addition, applicable regulations authorize park manage-

ment to regulate the time, place, and manner of expressive

activities in the parks: Florida Administrative Code Rule

62D-2.014(18) provides:

Free speech activities include, but are not limited to,

public speaking, performances, distribution of printed

material displays, and signs. Free speech activities do

not include activities for commercial purposes. Any per-

sons engaging in such activities can determine what

restrictions as to time, place, and manner may apply, in

any particular situation, by contacting the park manager.

Free speech activities shall not create a safety hazard or

interfere with any other perk visitor’s enjoyment of the

park’s natural or cultural experience. The park manager

will determine the suitability of place and manner based

on park visitor use patterns and other visitor activities

occurring at the time of the free speech activity.

Pet. App. 26a.

3

In 1990, respondent T.A. Wyner (“Wyner”), as part of a

protest against the State’s restrictions on nudity at the beach,

appeared on the beach while clothed only in an opaque copy

of the Bill of Rights. Pet. App. lla, 24a-25a. Wyner was

arrested and charged with disorderly conduct, but the charges

were later dropped. /d. at 11a, 25a. Wyner filed an action

seeking damages for a violation of her civil rights and

obtained a judgment in her favor, but that award was later

vacated on appeal on grounds of qualified immunity. /d. at

lla; see DeWald v. Wyner, 674 So. 2d 836 (Fla. Dist. Ct.

App. 1996).

In 1991, Wyner directed and performed in the park a play

entitled “MacArthur: The Man and the Beach,” which in-

cluded nude scenes. Pet. App. lla, 25a. She and others were

arrested, but the charges were subsequently dropped, and

another damages action ensued. /d. That litigation was set-

tled by the parties’ agreement that when Wyner wished to

perform the play at the park, she would give the park’s

manager at least fourteen days notice along with an estimate

of the number of participants and audience members, per-

formances would take place at least 100 yards from the

nearest boardwalk, and Wyner would place a cloth screen

around the area in which the play was to be performed. /d. at

| la-12a, 25a-26a; J.A. 22-23.

At least twice following that settlement, Wyncr performed

the play in the park but failed to utilize the screen. Pet. App.

12a, 26a. As Wyner acknowledged in her testimony at the

injunction hearing in this case, when she performed the play

in 1996 she did so with no screening and with nudity. J.A.

47-48. She performed the play again in 2000, but when park

personnel erected a screen the nude performers again

presented the play outside of the screen. J.A. 53-55.

In mid-January 2003, Wyner contacted petitioner Terence

Coulliette, the park’s manager, and notified him that she

planned to produce a temporary art installation consisting of

4

nude bodies arrayed in the shape of a peace symbol on Feb-

ruary 14. Pet. App. 27a. Coulliette requested written notice,

and on January 29, Wyner gave notice by email. Jd. at 12a-

13a, 27a. The email stated that the event would last approxi-

mately three hours, the installation would be presented during

approximately 90 minutes, and that Wyner estimated that

there would be no more than 50 participants. /d. at 13a, 29a-

30a; J.A. 29-30. Couilliette submitted Wyner’s request to the

Bureau Chief of the Parks District “for his review, consid-

eration, and input.” J.A. 26. Thereafter, on February 6,

Coullieite sent Wyner a letter stating that the performance

would be permitted but that the participants would have to

comply with the park regulation prohibiting nudity. Jd. at

29-30.

On February 12, 2003, Wyner and respondent George

Simon filed suit against Park Manager Coulliette and David

B. Struhs, who was then the Secretary of the Florida

Department of Environmental Protection, alleging that the

anti-nudity and time, place, and manner regulations at the

park violated the First Amendment and therefore effected an

actionable deprivation of rights under 42 U.S.C. § 1983. J.A.

10-20.° Respondents simultaneously sought a temporary

restraining order and/or a preliminary injunction on the

ground that the park’s refusal to allow the planned February

14 nude peace event violated their First Amendment nghts.

Id. at 32-34."

* The complaint also contained a count asserting a right to nude protest

under the Florida Constitution. J.A. 19. Respondents eventually agreed

to the dismissal of this count. J.A. 98-99.

* Subsequent to the time that certiorari was granted by this Court,

Secretary Struhs was succeeded in office by Michael W. Sole, who has

been substituted as a petitioner under this Court’s Rule 35.3. Throughout

this brief, we will refer to the original defendants named in the coniplaint

as “petitioners,” even though Secretary Sole did not technically becorne a

petitioner until after this case arrived at this Court.

5

The district court held an injunction hearing on respen-

dents’ motion for injunctive relief the next day, on what the

court acknowledged was “exceedingly short notice.” J.A. 37.

Petitioners’ counsel and witness were unable to attend the

hearing, and participated by telephone. J.A. 36. Petitioners’

counsel added that they had received “short notice . . . and we

don’t know much of what is going on, but, as far as I can tell,

there probably aren’t any disputed facts.” /d at 38.

Petitioners’ counsel did not receive copics of respondents’

newly-introduced exhibits and had no notice of those exhibits

other than listening as their contents were read over the

phone. /d. at 52-56. Counsel for petitioners objected on the

ground that respondents’ counsel “hasn’t shown us any of

these exhibits in advance of the hearing so we could review

them,” id. at 55, but the district court overruled the objection

“because of the time constraints of a preliminary injunction or

temporary restraining order.” /d. at 56.

At the conclusion of the hearing, the district court ex-

pressed concern about the discretion exercised by the park

manager, J.A. 93-94, and added that the use of a screen and

warning signs would constitute “alternatives that would be far

less restrictive and could still meet the government interests,

which would appear to be to protect beach-goers from being

exposed to nudity... .” /d. at 94. The court added, “It

bothers me, | think there are a lot of issues in this case, and I

don’t like to try to decide issues on this quick a basis, but | do

feel like this meets the test of the injunction.” /d. at 95.

In its written order granting the preliminary injunction

handed down two wecks after the hearing, the district court

applied a four-part test governing the issuance of such relief.

The court inquired whether respondents had demonstrated

“(1) a substantial likelihood of success on the merits; (2) that

irreparable injury will be suffered unless the tmjunction

issues; (3) that the threatened injury to the movant outweighs

whatever damage the proposed injunction may cause the

6

opposing party; and (4) that, if issued, the injunction would

not be adverse to the public interest.” Pet. App. 14a. The

court concluded that respondents faced irreparable injury

absent injunctive relief, that respondents’ injuries would out-

weigh any injury to petitioners from issuance of an injunc-

tion, and that the public interest favored the issuance of

injunctive relief to protect First Amendment rights. /d. at

14a-1 5a.

On the likelihood of success on the merits, despite respon-

dents’ claim that the park manager exercised effectively

unchecked discretion over expressive activities in the park

under the time, place, and manner regulation and therefore

was free to engage in discrimination on the basis of the

content or viewpoint of speech, the court was willing to as-

sume that the park’s policies were content-neutral. Pet. App.

16a-17a. The district court also concluded that the pro-

hibition on nudity advanced the legitimate government

interest in protecting unwilling park users from exposure to

nudity. /d. at 17a-l8a. The court ruled, however, that the

prohibition was not adequately tailored because the

alternatives utilized in the prior settlement could adequately

serve these governmental interests. /d. at 18a. The court

issued injunctive relief against enforcement of the anti-nudity

rule during the planned event on February 14, while

permitting use of the measures utilized in the prior settlement.

Id. at 19a-20a.

On February 14 respondents conducted their nude peace-

symbol installation at the beach. They did not, how-

ever, remain behind the cloth screen provided. Pet. App. 4a.

See also id. (“a fair reading of the record shows that plaintiffs

had no intention of remaining behind a cloth screen or other

barriers during future nude expressive works”).

On January 28, 2004, the district court, ruling on the par-

ties’ cross-motions for summary judgment, concluded that the

park's anti-nudity and time, place, and manner regulations

7

were valid content-neutral regulations that were narrowly tail-

ored to advance substantial government interests. Pet. App.

36a-46a. The court entered judgment against respondents and

in favor of petitioners. /d. at 46a; J.A. 145.

On February 27, 2004, respondents filed a motion for

attorney's fees and taxable costs. J.A. 6. On August 16,

2004, the district court ruled that because respondents had

obtained preliminary relief on February 13, 2003, they were

“prevailing parties” entitled to recover their attomey’s fees

under section 1988 for work performed on the preliminary

injunction litigation. Opp. App. 3a-4a.°_ The court added,

however, that because final judgment was entered in favor of

petitioners, they were entitled to costs. /d. at 10a. Ac-

cordingly, the district court entered judgment in favor of

respondents for attorney’s fees of $25,924.50, and also

granted petitioners’ motion to tax costs. /d. at 12a-13a.

Petitioners appealed the judgment against them for attor-

ney’s fees, and in a brief unsigned opinion, the court of

appeals affirmed. Pet. App. Sa. On the question whether re-

spondents were prevailing parties within the meaning of the

Civil Rights Attorney’s Fees Awards Act, the court wrote:

“To qualify as a prevailing party, the plaintiff must obtain the

primary relief sought in the case.” /d. at 2a. The court then

concluded that “the preliminary injunction in this case

decided a substantive issue—whether or not the state officials

could arrest the nude peace symbol participants—and thus

was on the merits.” /d. at 2a-5a. The court added that

because the district-court had granted summary judgment

against the plaintiffs based “on new facts presented at the

summary judgment hearing which demonstrated that the less

restrictive alternative was not sufficient,” the preliminary

injunction was not “based on a mistake of law.” /d. at Sa.

* The district court's “Omnibus Order” containing its rulings on fees

and costs Is an appendix to respondents’ brief in opposition to the petition

for certiorari. Citations to this order are abbreviated “Opp. App.”

8

SUMMARY OF ARGUMENT

In an action under section 1983, the Civil Rights Attor-

ney’s Fees Awards Act permits a district court to award

attorney's fees to a “prevailing party.” 42 U.S.C. § 1988. A

party who ultimately loses her case, even if she obtained

preliminary injunctive relief, is not a prevailing party within

the meaning of section 1988.

In common parlance, one prevails—in litigation or any

other type of contest—by achieving success that is lasting.

No one prevails by means of a transient victory that is later

undone. The precedents construing section 1988 are based

on just this recognition—it is settled that a prevailing party

must succeed on the merits of her claim, and not merely in

preliminary skirmishing, even if it results in a transient vic-

tory in the form of a preliminary injunction. Preliminary

injunctions, after all, are not rulings on the merits, but rather

are based on the district court’s prediction as to the plaintiff's

likelihood of success on the merits—a prediction that proved

in this case to be erroneous. At the conclusion of this litiga-

tion, respondents were losers, not winners. The district court

entered judgment against respondents, and rejected their

attacks on the park regulations at issue. A litigant who ulti-

mately leaves the courthouse empty-handed is not a pre-

vailing party, regardless of whatever success that litigant may

have enjoyed in the earlier stages of the litigation.

Accordingly, respondents were not prevailing parties in

this case. Their only victory in this case was a temporary

one; it had disappeared within 72 hours of the time that they

had filed suit, when the preliminary injunction, by its terms,

expired. Moreover, that preliminary victory was not on the

merits of this lawsuit; it instead was under the equitable test

that governs preliminary injunctive relief, and reflected only

the district court’s preliminary assessment of the merits. At

the end of the litigation, the district court upheld the park

regulations that respondents had contested; and the preclusive

9

force of its judgment will prevent respondents from mounting

any future challenges to those regulations. Respondents were

not the prevailing parties in this litigation.

It is equally settled that section 1988 should be construed

in light of the congressional purpose to provide an incentive

for attorneys to bring meritorious civil rights litigation. This

case was not meritorious. The First Amendment does not

grant anyone a right to go naked at a public beach, even as

part of a protest. The park’s anti-nudity regulations were

perfectly constitutional; indeed, their validity is no longer at

issue in this litigation.

States and local governments are properly obliged to pay

attorney's fees when there has been a violation of a plaintiff's

civil rights, but in this case respondents’ rights were never

violated. Nothing in section 1988 or the cases construing it

suggests that plaintiffs should be permitted to recover attor-

ney’s fees in a case in which they establish no violation of

their civil rights, and obtain no relief on the merits. If this

Court were to hold, however, that even litigation that fails on

the merits can give rise to attorney's fee liability if the

plaintiff can obtain preliminary relief, it will create a perverse

incentive for plaintiffs to bring nonmeritorious cases. Not

only is preliminary injunctive relief is caster to obtain than a

final judgment on the merits, but the prospect of mounting

legal fees will also encourage governmental defendants to

settle cases quickly rather than paying escalating attorney’s

fee awards for preliminary relief. Such a result is utterly at

odds with the very statute under which respondents seek to

recover attorney's fees.

ARGUMENT

Despite a preliminary victory, respondents ultimately failed

to establish any violation of their civil nights. The district

court awarded respondents a preliminary injunction, but only

by applying the equitable standards governing such requests.

10

When the district court subsequently reached the merits, it

upheld the regulations that respondents had challenged; and it

never concluded that respondents’ rights were violated.

There is no basis for construing the Civil Rights Attorney’s

Fees Awards Act to require state and local governments to

divert scarce public resources to the payment of plaintiffs’

attorney’s fees in cases in which there has been no violation

of the plaintiffs’ civil rights. The judgment of the court of

appeals should be reversed.

Il. A PLAINTIFF WHO OBTAINS PRELIMINARY

INJUNCTIVE RELIEF BUT WHO LATER

LOSES ON THE MERITS IS NOT A PRE-

VAILING PARTY.

The Civil Rights Attorney’s Fees Awards Act provides that

in actions under section 1983, “the court, in its discretion,

may allow the prevailing party, other than the United States, a

reasonable attorney’s fee as part of the cv. ste... .” 42 US.C.

§ 1988(b). Not every favorable ruling during the course of

litigation, however, confers prevailing party status. Instead,

“(t]he touchstone of the prevailing party inquiry must be the

material alteration of the legal relationship between the

parties in a manner which Congress sought to promote in the

fee statute.” Jexas State Teachers Association v. Garland

Independent School District, 489 U.S. 782, 792-93 (1989)

(emphasis supplied). Accord Buckhannon Board & Care

Home, Inc. v. West Virginia Department of Health & Human

Resources, 532 U.S. 598, 604 & n.6 (2001).°

* Buckhannon was decided under the provisions of the Fair Housing

Act Amendments of 1988 and the Americans with Disabilittes Act that

permit a prevailing party to recover attorney's fees. See.S32 U.S. at 501.

Nevertheless, this Court has held that all of the various statutes that permit

prevailing parties to recover attomey’s fees in terms that track section

1]

The preliminary injunction issued in this case was insuf-

ficient to confer prevailing party status on respondents. It

was not an adjudication of the merits of this lawsuit; indeed,

when the district court ultimately reached the merits, it ruled

against respondents, not least because the court had “a hard

time understanding . . . that there’s some First Amendment

right to nude expression in state parks.” J.A. 103. On the

merits, respondents were losers, not winners. The prelimi-

nary injunction was accordingly not the type of “material”

alteration in the Icgal relationship that Congress intended to

confer prevailing party status on a civil rights plaintiff.

A. A Plaintiff Does Not Prevail By Obtaining Only

Interlocutory Relief.

In common parlance, the term “prevailing” refers to the

eventual outcome of a contest or dispute, not to a preliminary

or tentative victory. No one thinks that Germany or Japan

“prevailed” in World War II because they won the early

battles.’ The same is true of parties that win only the pre-

liminary skirmishes in litigation-—unless they ultimately suc-

ceed in obtaining a favorable judgment, they have not

prevailed. As this Court wrote in Buckhannon, quoting the

leading legal dictionary, “Black’s Law Dictionary . . . defines

‘prevailing party’ as ‘{a] party in whose favor judgment ts

rendered, regardless of the amount of damages awarded... .

Also termed successful party.” 532 U.S. at 603 (emphasis in

original) (quoting Black’s Law Dictionary 1145 (7th ed.

1999)). Thus, as the Court explained in Hewitt v. Helms, 482

1988 should be construed consistently. See id. at 603 n.4 (citing Hensley

v. Eckerhart, 462 U.S. 424, 433 n.7 (1983)).

” Justice Ginsburg used a similar example in Buckhannon when she

observed: “Western democracies, for instance, ‘prevailed’ in the Cold

War even though the Soviet Union never formally surrendered.” 532 U.S.

at 633 (dissenting opinion). This was the case even though Westem de-

mocracies experienced any number of setbacks during the course of the

Cold War.

12

U.S. 755 (1987), “[rjespect for ordinary language requires

that a plaintiff receive at least some relief on the merits of his

claim before he can be said to prevail.” /d. at 760. Accord,

e.g., Buckhannon, 532 U.S. at 603; Farrar v. Hobby, 506 U.S.

103, 111 (1992); Texas State Teachers Association, 489 U.S.

at 792-93; Hanrahan v. Hampton, 446 U.S. 754, 757 (1980)

(per curiam). Accordingly, in law as in common parlance,

the term “prevailing” refers to ultimate success, and not a

preliminary or interlocutory victory. Indeed, this Court has

construed the phrase “prevailing party” within the meaning of

section 1988 to exclude preliminary victories that provide no

assurance of a lasting benefit that will endure until the time

the litigation ends.

In Hanrahan v. Hampton, for example, the district court -

had directed verdicts for the defendants in a civil nights

action, but the court of appeals reversed and remanded for a

new trial, and also awarded attorney’s fees under section

1988 for the successful appeal. See 446 U.S. at 754-55. This

Court, however, vacated the fee award, holding that fees can

be awarded “only to a party who has established his entitle-

ment to some relief on the merits of his claims... .” /¢. at

757. The Court added that favorable “procedural or eviden-

tiary rulings . . . may affect the disposition on the merits, but

were themselves not matters on which a party could ‘prevail’

for purposes of shifting his counsel fees to the opposing party

under § 1988.” /d. at 758. To similar effect is Sullivan v.

Hudson, 490 U.S. 877 (1989), in which the Court held that a

litigant is not a “prevailing party” even when she obtains a

* The court of appeals, citing its decision in Taylor v. City of Ft.

Lauderdale, 810 F.2d 1551 (11th Cir. 1987), thought that prevailing party

status turned on whether the plaintiff “obtain{ed] the primary relief sought

in the case.” Pet. App. 2a. The district court used the same test. See id. at

45a. In Texas State Teachers Association, however, this Court specif-

ically rejected a test asking whether the plaintiff succeeded on the “central

issue” in the litigation. See 489 U.S. at 790-91.

13

ruling that sets aside an administrative denial of her applica-

tion for disability benefits because “where a court’s remand

to the agency for further proceedings does not necessarily

dictate the receipt of benefits, the claimant will not normally

attain ‘prevailing party’ status . . . until after the result of the

administrative proceeding is known.” /d. at 886.”

Equally instructive is Hewitt v. Helms. In that case, the

court of appeals held that a prisoner hearing committee’s

reliance on an uncorroborated report from an undisclosed

informant to convict a prisoner of striking a correctional

officer was unconstitutional, but the defendants later obtained

summary judgment on grounds of qualified immunity. See

482 U.S. at 757-59. The court of appeals nevertheless held

that the prisoner was entitled to recover attorney’s fees

because he had prevailed by obtaining a holding that his

constitutional rights had been violated. See id. at 759. This

Court reversed, holding that that “[rjespect 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.”

Id. at 760 (citing //anrahan, 446 U.S. at 757). The Court

“conclude|d]} that a favorable judicial statement of law in the

course of litigation that results in judgment against the

plaintiff does not suffice to render him a ‘prevailing party.’

” Sullivan v. Hudson was decided under the attorney’s-fee provision of

the Equal Access to Justice Act (“EAJA™), which authorizes an award of

attorney's fees and other expenses against the United States “to a

prevailing party ... unless the court finds that the position of the United

States was substantially justified or that special circumstances make an

award unjust.” 28 U.S.C. § 2412(d)( 1) A), quoted in 490 U.S. at 883-84.

As we explain above, all statutes utilizing the prevailing party standard for

awarding fees should be construed consistently. See note 6, supra. In-

deed, in Hudson the Court cited decisions construing section 1988 to

support its construction of the EAJA. See 490 U.S. at 886-87 (noting that

“(t}he situation [in Hudson] is for all intents and purposes identical to that.

_. in Hanrahan’).

14

Any other result strains both the statutory language and com-

mon sense.” /d. at 763.

Finally, in Texas State Teachers Association, the Court

reyected a test for prevailing party status that turned on

whether the plaintiff had succeeded on a significant or central

issue in the case. The Court reasoned that this approach

would permit a plaintiff to obtain an interlocutory fee award

following what seemed to be a significant interlocutory

victory even though its significance might have eroded by the

end of the case. “Congress,” this Court held, “cannot have

meant ‘prevailing party” status to depend entirely on the tim-

ing of a request for fees... .” 489 U.S. at 791."°

Thus, “liability on the merits and responsibility for fees go

hand in hand; where a defendant has not been prevailed

against, either because of legal immunity or on the merits,

§ 1988 does not authorize a fee award against that defen-

dant.” Farrar, 509 U.S. at 109 (quoting Kentucky v. Graham,

473 U.S. 159, 165 (1985)). To be sure, no great quantum of

relief on the merits is required for prevailing party status. In

Farrar, for example, the Court held that an award of nominal

damages made the plaintiffs prevailing parties because it

created a legal obligation to pay a judgment that did not

It was in this context that the Court added: “A prevailing party must

be one who has succeeded on any significant claim affording it some of

the relief sought. either pendent lite or at the conclusion of the litigation.”

489 U.S. at 791. In context, it is plain that the Court's statement aout

relief pendent lite is not referring to preliminary injunctive relief, but

rather to an interlocutory ruling that provides some of the ultimate relief

sought on the merits. Indeed, in Texas State Teachers Association, the

plaintiffs obtarned a judgment invalidating a school district's policies

forbidding teachers to discuss employee organizations during the school

day or to use internal mail and other facilities to discuss employee

organizations. See id. at 786-87. It was because the judgment prov ded

the plaintiffs with a permanent alteration in school policies that this Court

ruled that the plaintiffs were prevailing parties. See id. at 793.

15

previously exist. See id. at 113-14.'' Similarly, a judicially

enforceable consent decree, cven unaccompanied by an

admission of liability, “create[s] the “material alteration of the

legal relationship of the parties’ necessary to permit an award

of attorney's fees.” Buckhannon, 532 U.S. at 604 (quoting

Texas State Teachers Association, 489 U.S. at 792-93). Still,

both an award of nominal damages and a consent decree

provide some measure of relief to the plaintiff that lasts until

the end of the litigation. There is no authority, in contrast, to

support the view that a “prevailing party” includes “a litigant

who left the courthouse emptyhanded.” /d. at 614 (Scalia, J.,

concurring).

—

B. The Preliminary Injunction Was Not Relief On

The Merits Of Respondents’ Claim.

Although prevailing party status requires that a plaintiff

achieve a victory on the merits, the district court never

reached the merits when ruling on respondents’ motion for a

preliminary injunction. Instead, the district court’s evaluation

of the merits was preliminary—it considered only whether

there was “a substantial likelihood of success on the merits,”

Pet. App. 14a, as well as the equitable considerations involv-

ing the balance of hardships and the public interest that

govern issuance of preliminary injunctive relief. /d. Never-

theless, the court of appeals concluded that “the preliminary ~

injunction in this case decided a substantive 1issue—whether

or not the state officials could arrest the nude peace symbol

participants and thus was on the merits.” /d. at 2a-3a. That

holding, however, is inconsistent with the district court’s

contemporaneous statement that it had considered only

'' In Farrar, the Court added that it will generally be inappropriate to

award attorney's fees in a case in which the plamuff recovers only

nominal damages because no fees are ordinarily the only “reasonable”

award in a case in which the plaintiff fails to convince the trier of fact that

he experienced any compensable damages. See 506 U.S. at 114-16.

16

respondents’ likelihood of success on the merits when it

granted the preliminary injunction. It is likewise inconsistent

with this Court’s precedents.

In University of Texas v. Camenisch, 451 U.S. 390 (1981),

Camenisch, a deaf student, obtained a preliminary injunction

requiring the University to pay for a sign-language interpreter

to assist him with his studies in an action under the Re-

habilitation Act of 1973. See id. at 392-93. After Camenisch

graduated, the University contended that the propriety of the

injunction had become moot. This Court stated that if the

injunction had decided the merits of Camenisch’s claim. the

injunction’s propriety would not be moot because the parties

still disputed who should bear the cost of the interpreter. See

id. at 393-94. The Court nevertheless held that the held that

although the “likelihood of success on the merits was one of

the factors” that the lower courts had considered when

Camenisch obtained preliminary injunctive relief, that did not

mean that the injunction was “tantamount to decisions on the

underlying merits... .” /d. at 394. The Court explained:

The purpose of a preliminary injunction is merely to

preserve the relative positions of the parties until a trial

on the merits can be held. Given this limited purpose,

and given the haste that is often necessary if those posi-

tions are to be preserved, a preliminary injunction is

customarily granted on the basis of procedures that are

less formal and evidence that is less complete than in a

trial on the merits. A party thus is not required to prove

his case in full at a preliminary-injunction hearing, and

the findings of fact and conclusions of law made by a

court granting a preliminary injunction are not binding at

trial on the merits.

/d. at 395 (citations omitted),

Accordingly, a decision to grant a preliminary injunction

“may not be considered a ‘final judietal decision based on the

actual merits of the controversy.” New York State Liguor

Authority v. Bellanca, 452 U.S. 714, 716 (1981) (per curiam)

17

(quoting Camenisch, 451 U.S. at 396).'? Indeed, in Bellanca,

the Court added that when it reviews a preliminary injunction

in a First Amendment case, its review is limited “to whether

the District Court abused its discretion in concluding that

plaintiffs were likely to prevail on the merits of their claims,

not whether the ordinance actually violated the First Amend-

ment.” Id. (emphasis added), ”

It follows that the preliminary injunction issued in this case

is not properly characterized as a judgment on the merits of

respondents’ First Amendment claims. It was issued one day

after suit was filed; on short notice; petitioners had little

opportunity to prepare a defense, no opportunity to engage in

discovery, and had not even seen the exhibits introduced at

the hearing; petitioners’ counsel and witness were not able to

attend the hearing except by telephone; and the preliminary

injunction did no more than preserve the status quo by

requiring petitioners to offer the accommodations that they

had volunteered to Wyner in the past. That decision, accord-

ingly, has none of the hallmarks of a judgment on the merits.

Indeed, the district court itself observed, even as it granted

preliminary relief: “It bothers me, | think there are a lot of

issues in this case, and | don’t like to try to decide issues on

‘* In Walters v. National Association of Radiation Survivors, 473 U.S.

305 (1985), the Court added that it is of no consequence whether the

district court frames tts ruling granting a preliminary injunction as based

on the merits or based on the equitable factors governing preliminary

relief, since “any conclusions reached at the preliminary injunction stage

are subject to revision... .” /d. at 317. :

* In Bellanca, the Court discussed Doran v. Salem Inn, Inc., 422 U.S.

922 (1975), in which the Court deseribed its review of a preliminary

injunction as limited to whether “the District Court abused its discretion

by granting preliminary relief’ under the First Amendment. /d. at 933.

The Doran Court added: “This is the extent of our appellate inquiry, and

we therefore ‘intimate no view as to the ultumate merits of [respondents |

contentions.”” /d. (quoting Brown v. Choate, 411 U.S. 452, 457 (1973)

(brackets in original)).

18

this quick a basis, but I do feel like this meets the test of the

injunction.” J.A. 95. Thus, the district court’s ruling was

based on its consideration of whether respondents “were

likely to prevail on the merits of their claim, not whether the

[challenged policies] actually violated the First Amendment.”

Bellanca, 451 U.S. at 716 (emphasis in original). '* The

district court’s assessment of the merits was preliminary and

predictive; there was no actual ruling on the merits at the time

that the preliminary injunction issued.

Congress surely could not have intended that prevailing

party status turn on a hurried and tentative ruling on inade-

'* Although it has long been settled that “[{t]he basis of injunctive -elief

in the federal courts has always been irreparable harm and inadequacy of

legal remedies,” Sampson v. Murray, 415 U.S. 61, 88 (1974) (quoting

Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07 (1959)), there ts

some disagreement in the circuits on the precise role that merits play in

evaluating a request for preliminary injunctive relief. See Morton

Denlow, The Motion for a Preliminary Injunction: Time for a Uniform

Federal Standard, 22 Rev. Litig. 495, 507-30 (2003). Ten circuits use a

balancing approach in which a weaker showing on the merits can support

a preliminary injunction if accompanied by a strong showing on the

equities. See Smyth v. Rivero, 282 F.3d 268, 277 (4th Cir. 2002); Serono

Laboratories, Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C. Cir. 1998);

United Industries Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir.

1998); Boucher v. School Board of the School District of Greenfield, 134

F.3d 821, 824 (7th Cir. 1998); Doe v. Sundquist, 106 F.3d 702, 707 (6th

Cir.), cert. denied, 522 U.S. 810 (1997); Warner-Lambert Co. v.

Northside Dev. Corp., 86 F.3d 3, 6 (2d Cir. 1996), Walmer vy. United

States Dept. of Defense, 52 F.3d 851, 854 (10th Cir. 1995); Gerardi v.

Pelullo, 16 F.3d 1363, 1373 (3d Cir. 1994); Standard Havens Products.,

Inc. v. Gencor Industries., Inc., 897 F.2d S11, 513 (Fed. Cir. 1990), cert.

denied, 506 U.S. 817 (1992), Wm. Inglis & Sons Baking Co. v. ITT

Continental Baking Co., 526 F.2d 86, 88 (9th Cir. 1975). The remarning

circuits seem to treat a finding of a likelihood of success on the merits as a

necessary requirement for a preliminary injunction. See Walgreen Co. v.

Hood, 275 F.3d 475, 477-78 (Sth Cir. 2001): Horton v. City of St.

Augustine, 272 F.3d 1318, 1326 (11th Cir. 2001); Weaver v. Henderson,

984 F.2d 11, 12 (1st Cir. 1993).

19

quate notice and an incomplete record as in this case. To be

sure, the legislative history of section 1988 indicates that

Congress envisioned awards of attorney's fees for some types

of interlocutory victories. See S. Rep. No. 94-1011, at §

(1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5912; H.R.

Rep. No. 94-1558 at 7-8 (1976). In Hanrahan v. Hampton,

however, the Court surveyed this legislative history, and con-

cluded: “{I]}t seems clearly to have been the intent of Con-

gress to permit such an interlocutory award only to a party

who has established his entitlement to some relief on the

merits of his claims... .” 446 U.S. at 757.

Indeed, nothing in the legislative history supplies the

slightest support for the view that a preliminary injunction

could make a civil rights plaintiff a “prevail’ag party.” The

legislative history plainly indicates that an adjudication of

liability or a judicially enforceable consent decree can confer

prevailing party status. See Buckhannon, 532 U.S. at 607 &

n.9. Some Members of the Court have concluded that the

legislative history goes so far as to suggest that a defendant’s

voluntary decision to discontinue a challenged practice in the

absence of formal judicial relief might be sufficient to confer

prevailing party status. See id. at 637 (Ginsburg, J., dissent-

ing). A majority of the Court, however, thought the legisla-

tive history insufficiently clear to overcome the settled rule

that the term “prevailing party” requires relief on the merits.

See id. at 607. But whatever the correct understanding of the

legislative intent on this point, there is no support in the

legislative history for the view that plaintiffs who ultimately

have a final judgment entered against them can nevertheless

qualify as prevailing parties. To the contrary, as we explain

above, it is settled that “liability on the merits and respons-

ibility for fees go hand in hand; where a defendant has not

heen prevailed against, either because of legal immunity or

on the merits, § 1988 does not authorize a fee award against

that defendant.” Farrar, 509 U.S. 109 (quoting Kentucky v.

Graham, 473 U.S. at 165) (emphasis added).

20

Accordingly, respondents were not prevailing parties in

this litigation. Respondents enjoyed a temporary victory that

expired by its terms on February 14, 2003, and then ulti-

mately lost the case on the merits. Respondents were losers,

not winners; final judgment was entered against them. More-

over, under the doctrine if res judicata, the district court’s

final judgment bars respondents or their privies from

relitigating any issues that were or could have been raised in

this case. See, e.g., Federated Department Stores, Inc. v.

Moitie, 452 U.S. 394, 398-99 (1981). Thus, the judgment in

this case not only upholds the regulations and park policies

that respondents challenged, but it forecloses future chal-

lenges. “That is not the stuff of which legal victories are

made.” Hewitt, 482 U.S. at 760 (citing Hanrahan, 446 U.S.

at 758-59).

To be sure, for a three-hour period on February 14, 2003,

the preliminary injunction changed the legal relationship

between the parties. But this temporary and ephemeral altera-

tion in the legal relationship between the parties did not

confer prevailing party status. Even though the preliminary

injunction was based in part on the district court’s assessment

of respondents’ probability of success on the merits, that

assessment was the kind of transitory victory that will not

suffice to confer prevailing party status because it does not

amount to relief on the merits, as we explain above. Indeed, a

transitory alteration in the legal relationship between the

parties based on a preliminary assessment of the merits that

proves to be inaccurate could not possibly be sufficient to

confer prevailing party status; if it were, even a plaintiff who

obtained a preliminary injunction later reversed on appeal

would be a “prevailing party.” This Court, however, has

already rejected this construction of “prevailing party,”

holding that when an injunction is set aside on appeal, a fee

award for obtaining it must be set aside as well. See Bray

21

v. Alexandria Women's Health Clinic, 506 U.S. 263, 285

(1993).'°

In fact, the district court recognized which side prevailed

on the merits in this litigation, and it was not respondents.

Even as it awarded attorney’s fees to respondents for

obtaining the preliminary injunction, it simultaneously ruled

that petitioners were entitled to costs because “final judgment

was entered in [their] favor... .” Opp. App. 10a. A litigant

is entitled to recover its costs, however, only when it is “the

prevailing party.” Fed. R. Civ. P. 54(d). See, e.g., Buchanan

v. Stanships, Inc., 485 U.S. 265, 268 (1988) (per curiam).

Thus, the district court correctly understood that an inter-

locutory victory cannot make a litigant a “prevailing party” in

a case that she ultimately loses on the merits. The bizarre

result here, however, is that although section 1988 provides

for “a reasonable attorney’s fee as part of the costs,” 42

U.S.C. § 1988(b), an attorney’s fee was awarded to respon-

dents even though costs were awarded to petitioners. Such an

approach is inconsistent with the text of section 1988, which

indicates that just as liability and fees go hand-in-hand, the

award of fees and costs should go hand-in-hand. '°

'* Every circuit to consider the question has rejected a claim that a

plaintiff can be-a prevailing party by obtaining the benefits of an mjunc-

live decree prior to the time that it is set aside on appeal from the

judgment issuing the injunction. See, e.g., Palmer v. City of Chicago, 806

F.2d 1316, 1321-22 (7th Cir. 1986); Doe v. Bushee, 684 F.2d 1375, 1381-

83 (11th Cir. 1982).

'’ One could perhaps reconcile the district court’s costs and fee rulings

by taking the view that prevailing party status should be determined by

reference to each phase of the litigation, permitting a plaintiff to be treated

as a prevailing party for purposes-of the-preliminary injunction hearing

even though the defendant proved to be the prevailing party on the merits.

As we explain above, however, this Court has rejected such a construction

of section 1988, requiring instead that a plaintiff prevail on the merits.

The district court’s costs award, in turn, demonstrates that even that cour

understood that petitioners had prevailed on the merits of this litigation.

22

Had respondents wished to seek a judgment on the merits

prior to the planned February 14 protest, despite the limited

time available, they could have done so. A court may order

trial on the merits to be consolidated with the hearing on a

motion for a preliminary injunction. See Fed. R. Civ. P.

65(a)(2). The merits of respondents’ asserted First Amend-

ment right to engage in the February 14 nude protest would

have been an appropriate candidate for consolidation, given

the press of time and respondents’ theory that they had a right

under the First Amendment to engage in the nude February

14 exhibition on a public beach. Respondents, however,

sought only preliminary relief in their February 12 motion

instead of requesting a judgment on the merits under Rule 65.

Nor did the district court enter a consolidation order in

accordance with the requirement that the parties “receive

clear and unambiguous notice [of the court’s intent to con-

solidate the trial and the hearing] either before the hearing

commences or at a time which will still afford the parties

a full opportunity to present their respective cases.”

Camenisch, 451 U.S. at 395 (brackets in original) (quoting

Pughsley v. 3750 Lake Shore Drive Cooperative Bldg., 463

F.2d 1055, 1057 (7th Cir. 1972)). Accord 11A Charles Alan

Wright, Arthur R. Miller & Mary Kay Kane, Federal

Practice and Procedure (Civil) § 2950 (rev. 2006).

Respondents’ decision not to seek relief on the merits in

their February 12 motion is understandable; presumably they

did not wish to satisfy the more stringent standard for relief

on the merits requiring a plaintiff to establish “actual success

on the merits instead of a likelihood of success.” Pet. App.

34a (quoting Siegel v. Lepore, 234 F.3d 1163, 1213 (11th Cir.

2000)). Accord, e.g., Amoco Production Co. v. Village of

Gambell, 480 U.S. 531, 546 n.12 (1987). Nevertheless, there

is surely no unfairness in holding respondents to their tactical

decision to reserve the merits of their First Amendment claim

for the summary judgment stage of this litigation. If respon-

dents wanted to obtain attorney's fees based on their request

‘ 23

for emergency relief permitting the February 14 event, they

were required to prevail on the merits, as we explain above.

Respondents, however, made no effort to obtain a ruling on

the merits at the February 13 injunction hearing.

Moreover, had respondents asked the district court to

consider the merits of their asserted First Amendment right at

the February 13 injunction hearing, the parties would have

been on fair notice that attorney’s fee liability was at stake.

Under those circumstances, respondents’ victory could well

have made them prevailing parties within the mcaning of

section 1988.'’ Respondents, however, did not choose that

course. Under these circumstances, respondents’ preliminary

success in a case that they ultimately lost does not make them

“prevailing parties” entitled to an award of attorney’s fees.

'’ There is some question about whether an injunction issued on the

merits but under circumstances in which there is no meaningful oppor-

tunity for appellate review because it concerns a short-lived event and will

become moot once the event concludes is a sufficient basis on which to

confer prevailing party status. See Kav v. David Douglas School District

No. 40, 484 U.S. 1032, 1032-34 (1988) (White, J., dissenting from denial

of certiorari); Alioto v. Williams, 450 U.S. 1012, 1012-13 (1981)

(Rehnquist, J., dissenting from denial of certiorart). Nevertheless, every

circuit to reach the question has concluded that the fact that injunctive

relief becomes moot before it can be reviewed on appeal does not itself

defeat prevailing party status. See, e.g., Murphy v. Fort Worth Indepen-

dent School District, 334 F.3d 470, 471 (Sth Cir. 2003) (per curiam);

Richard S. v. Department of Developmental Services of California, 317

F.3d 1080, 1O88-89 (9th Cir. 2003); Young v. City of Chicago, 202 F.3d

1000, 1000-01 (7th Cir. 2000) (per curiam); National Black Police

Association v. District of Columbia Board of Elections & Ethics, 168 F.3d

525, 528-29 (D.C. Cir. 1999), Haley v. Pataki, 106 F.3d 478, 483-84 (2d

Cir. 1997); Dahlem_ v. Board of Education of Denver Public Schools, 901

F.2d 1508, 1514-15 (10th Cir. 1990): Bishop v. Committee on

Professional Ethics of the lowa State Bar Association, 686 F.2d 1278,

1290-91 (8th Cir. 1982). This Court need not decide that question in this

case, however, since the injunctive relief issued here was not a victory on

the merits and therefore does not confer prevailing party status, as we

explain above.

24

ll. THE CIVIL RIGHTS ATTORNEY’S FEES

; AWARDS ACT IS NOT PROPERLY CON-

STRUED TO AWARD ATTORNEY’S FEES TO

PLAINTIFFS WHO LOSE ON THE MERITS.

To the extent that section 1988 is ambiguous, this Court

has construed the statute to advance its underlying objective

of providing incentives to counsel to bring meritorious civil

rights actions. See, e.g., Kay v. Ehrler, 499 U.S. 432, 436-38

(1991); City of Riverside v. Rivera, 477 U.S. 561, 577-78

(1986) (plurality opinion). See also, e.g., S. Rep. No. 94-

1011, at 2 (1976), reprinted in 1976 U.S.C.C.A.N. at 5909-

10; H.R. Rep. No. 94-1558, at 1 (1976). “Persons who bring

meritorious civil nights claims, in this light, serve as ‘private

attorneys general.’” Buckhannon, 532 U.S. at 635-36 (Gins-

burg, J., dissenting) (quoting S. Rep. No. 94-1011, at 5

(1976)). Thus, section 1988 should be construed in light of

“(t]he statutory policy of furthering the successful prosecu-

tion of meritorious claims... .” Kay, 499 U.S. at 438.

It follows that section 1988 should not be construed to

authorize attomey’s fee awards that have the effect of en-

couraging plaintiffs and their counsel to file non-meritorious

actions. In City of Burlington v. Dague, 505 U.S. 557 (1992),

for example, the Court held that fee awards should not be

enhanced when a plaintiff prevails on a particularly risky claim

because the result of such an approach “would be to provide

attorneys with the same incentive to bring relatively meritless

claims as relatively meritorious ones.” /d. at 563. Accord Penn-

sylvania v. Delaware Valley Citizens’ Council for Clean Air,

483 U.S. 711, 724-27 (1987) (plurality opinion). '

'* In Dague, the Court elaborated:

Assume, for example, two claims, one with underlying merit of

20%, the other of 80%. Absent any contingency enhancement, a

contingent-fee attorney would prefer to take the latter, since he is

25

The statutory objective would be similarly undermined by

a rule that permitted plaintiffs who bring non-meritorious

claims to recover attorney’s fees because they were able to

convince a judge to issue preliminary relief in a case that

ultimately proves to be meritless. Under such a rule, the

potential for an attorney’s fee recovery would afford counsel

an incentive to sue based not solely on the relative legal merit

of a claim, but also in light of the probability that counsel

could obtain preliminary relief under the more liberal

standard governing interlocutory injunctions. Morcover, if a

preliminary injunction issues, the potential liability for

attorney’s fees would become potent leverage to induce

settlement beyond the relative merit of the plaintiff's claim.

Section 1988 should not be construed to create such skewed

outcomes.

This case illustrates the point. Respondents’ suit was ut-

terly without merit. The constitutionality of a generally ap-

plicable ban on public nudity that promotes the legitimate

government interest in protecting unwilling audiences from

exposure to nudity is well settled, at least when applied with-

out reference to the content of any nudist’s speech or expres-

sion. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 567-72

four umes more likely to be paid. But with a contingency enhance-

ment, this preference will disappear; the enhancement for a 20%

claim would be a multiplier of 5 (100/20), which is quadruple the

1.25 multiplier (100/80) that would attach to the 80% claim. Thus,

enhancement for the contingency msk posed by each case would

encourage meritorious claims to be brought, but only at the social

cost of indiscriminately encouraging nonmeritorious claims to be

brought as well. We think that an unlikely objective of the “reason-

able fees” provisions.

$05 U.S. at 563.

26

(1991) (plurality opinion); id. at 573-79 (Scalia, J., concurring

in the judgment); id. at 590-91 (White, J., dissenting). "”

To be sure, perhaps use of a cloth screen might be a less

restrictive alternative to a complete ban on nude perform-

ances, but this Court has explained that “when evaluating a

content-neutral regulation which incidentally burdens speech,

we will not invalidate the regulation because some alternative

is marginally less intrusive on a speaker's First Amendment

interests.” Turner Broadcasting System, Inc. v. FCC, 520

U.S. 180, 217-18 (1997). Instead, a challenged policy should

be upheld “so long as the . . . regulation promotes a sub-

stantial government interest that would be achieved less

effectively absent the regulation.” Ward v. Rock Against

Racism, 491 U.S. 781, 799 (1989) (quoting United States v.

Albertini, 472 U.S. 675, 689 (1985) (ellipsis in original)).

This test is easily satisfied here; the problem with a cloth

screen is that park resources must be diverted to police its

use—a problem that was apparent given Wyner’s unwill-

ingness on at least two prior occasions to utilize a screen

despite having agreed to do so. The fact that park manage-

ment had previously permitted Wyner to perform in the nude

behind a screen did not constitutionally preclude park offi-

cials from ending that forbearance, especially in light of its

demonstrated inefficacy. In Rock Against Racism, for exam-

ple, municipal officials had previously permitted rock con-

certs in Central Park without regulating the music’s amplifi-

cation, but that posed no obstacle to enforcement of a new

“ Although the issue is infrequently litigated, presumably because the

pertinent First Amendment principles are so clear, the lower courts have

consistently upheld generally applicable anti-nudity laws against First

Amendment attack when applied to persons who appear in public where

they may be seen by unwilling viewers. See, e.g., Egolf v. Witmer, 421 F.

Supp. 2d 858, 871-73 (E.D. Pa. 2006); Craft v. Hodel, 683 F. Supp. 289,

292-99 (D. Mass. 1988); Eckl v. Davis, 124 Cal. Rptr. 685, 693-95 (Cal.

Ct. App. 1975).

27

regulation promulgated in light of past complaints about the

volume of music. See 491 U.S. at 784-88, 800-03. Cf.

Thomas v. Chicago Park District, 534 U.S. 316, 323-25

(2002) (ordinance permitting park district to waive permit

requirements was not invalid because officials had discretion

to forebear enforcement).

Respondents’ challenge to the park’s time, place, and man-

ner regulation was no better. The authority of parks to

enforce regulations governing the time, place, and manner of

expressive activities on a content-neutral basis is well settled.

See, e.g., Thomas, 534 U.S. at 323-25; Rock Against Racism,

491 U.S. at 794-96; Clark v. Community for Creative Non-

Violence, 468 U.S. 288, 293-95 (1984). Although respon-

dents argued at the injunction hearing that the regulation

granted unfettered discretion to the park’s management and

effectively permitted content-based regulation of speech, J.A.

78-83, the district court declined to credit this allegation when

granting the preliminary injunction. See Pet App. |6a-17a.

Even worse, the allegation proved to be without substance.

In a facial challenge to a regulation under the First

Amendment, a court must consider evidence of the manner in

which a challenged regulation has been interpreted and

administered to determine if it confers effectively unfettered

discretion or facilitates content or viewpoint discrimination.

See, e.g., Forsyth County v. Nationalist Movement, 505 U.S.

123, 131 (1992); Rock Against Racism, 491 U.S. at 795-97.

Yet, at both the preliminary injunction and summary

judgment stages of this litigation, there was no evidence that

the challenged regulation had been interpreted or admin-

istered to confer unfettered discretion on park management,

or that it had been utilized in a fashion that facilitated content

or Viewpoint discrimination. To the contrary, the evidence

showed only that petitioners had previously agreed to

forebear enforcement of a perfectly valid anti-nudity regu-

: 28

; é -

lation based upon Wyner’s agreement to utilize a screen-—an

agreement that she twice failed to honor.

Respondents’ First Amendment claim, in short, was

adjudged to be without merit. Indeed, respondents never

appealed from the district court’s judgment against them on

the merits; the question whether respondents’ First Amend-

ment rights were violated by the challenged regulations is no

longer an open one in this litigation. Under the holding

below, however, respondents’ counsel will receive almost

$ 26,000.

Amici fully accept the obligation of state and local gov-

ernments and officials to pay attorney’s fees when they vio-

late a plaintiff's civil mghts. Yet under the holding beiow,

petitioners must divert scarce public resources to pay attor-

ney’s fees to a party whose civil rights were never infringed.

Amici represent thousands of local governments and officials

charged with safeguarding the taxpayers’ funds, and utilizing

those scarce resources to fund a variety of important pub-

lic services. We can see no justification for diverting these

scarce tax dollars to the payment of attorney's fees of

plaintiffs who lose on the merits. The idea that Congress

could have intended to create attorney's fee liability for cases

in which there has been no violation of the plaintiff's civil

right is, in a word, bizarre.

Requiring section 1983 defendants who have committed no

legal wrong to pay attorney's feces is not the only anomaly

engendered by the holding below. It will also create unnec-

essary litigation at the preliminary injunction stage. Because

state and local governments are institutional litigants that

often appear before the same judges, they frequently attempt

to work out temporary accommodations at the preliminary

injunction stage in order to spare the district courts the burden

of deciding difficult legal questions in an expedited fashion.

And because state and local governments are entrusted with

husbanding tax dollars, they also try to avoid incurring large

29

expenses in order to mount expedited defenses of applications

for preliminary injunctive relief. If the holding below stands,

however, state and local governments and their officials will

have no choice but to mount full scale defenses of motions

for preliminary injunctive relief in order to avoid subsequent

liability for attorney’s fees even when, as here, they prevail

on the merits of the litigation. Conversely, under the holding

below, if a plaintiff obtains preliminary relief, that fact alone

will put enormous pressure on state and local governments to

settled otherwise meritless litigation because the prelimin-

ary victory will itself be sufficient to establish liability for

attorney’s fees.

The incentive of counsel to act as private attorneys general

on behalf of civil rights is fully protected by the availability

of attorney's fees to those who prevail on the merits. Neither

the text nor the purpose of section 1988, however, supports a

rule that would award fees on meritless claims because a

district court, in the infancy of litigation and under the liberal

standard for preliminary relicf, -mistakenly assesses the

plaintiff's likelihood of success on the merits. Congress

cannot have intended to require the taxpayers to subsidize

such litigation. The holding below is utterly at odds with the

salutary purposes of section 1988.

30

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

LAWRENCE ROSENTHAL RICHARD RUDA*

CHAPMAN UNIVERSITY Chief Counsel

SCHOOL OF LAW STATE AND LOCAL LEGAL

One University Drive CENTER

Orange, California 92866 444 North Capitol Street, N.W.

(714) 628-2650 Suite 309

Washington, D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae