Opposition Brief — Tennessee v. Dja Vu of Nashville, Inc. (No. 05-1194)

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effort to cure the constitutional deficiencies pointed out in

the PlaintitfS* briefing. App. I[9-I6I.

The second motions for preliminary injunction were

litigated in a three-day evidentiary hearing between April

13 and April 15, 1999. Following the evidentiary hearing,

but before the district court ruled on the motions, Metro

enacted fifty-two additional changes to Ch. 6.54. App. 162-

175.

The district court thereafter granted the second

motions for preliminary injunction, enjoining the Ordi-

nance in its entirety. Pet. App. 109a-16la. The Plaintiffs

then filed a motion for leave to file a second motion for

interim attorney fees, which was granted. The district

court then conducted a status conference to inform the

parties of its intent to convert the preliminary injunction

into a permanent injunction, which it ultimately did by

entering a final judgment to that effect. Pet. App. 107a-

108a. Consequently, Chapter 6.54 was permanently

enjoined in its entirety.

On January 18, 2000, Metro enacted an additional

seven amendments to Ch. 6.54 to supposedly address the

various rulings of the district court. App. 176-181. Six days

after these amendments were enacted, Metro filed a

Notice of Appeal in regard to the Order granting a perma-

nent injunction, and the Plaintiffs then filed a Notice of

Cross-Appeal. Plaintiffs also filed their second motion for

“interim” attorney fees on January 21, 2000, which by that

time constituted a request for fees and costs in furtherance

of a final judgment.

At oral argument on the initial appeal (regarding the

lifting of the first injunction), a panel of the Sixth Circuit

concluded from the bench that the various then-pending

appeals should be consolidated, and declined to hear

argument at that time.

On May 5, 2000, Metro filed a Motion to Vacate or

Dissolve Injunction pursuant to Fed.R.Civ.P. Rule 60(b),

predicated upon the seven latest amendments to the

Ordinance. The district court denied that motion, finding

that it was without jurisdiction to hear the matter in view

of the filing of Metro’s Notice of Appeal. App. 4. On June

23, 2000, Metro then filed a Notice of Appeal in regard to

that ruling (this being the fourth then-pending appeal).

- Metro then filed a motion in the Sixth Circuit Court

(as part of the fourth appeal) for a limited remand so as to

permit the district court to rule on the Rule 60(b) motion.

That motion was denied by an Order entered October 4,

2000, although that appeal was then consolidated with the

three other appeals. App. 5-6.

After a hearing on the four appeals, the Sixth Circuit

issued an opinion on December 6, 2001, affirming in part

and reversing in part, but maintaining the injunction in

place. Deja Vu of Nashville, Inc. v. Metro. Gov't of Nash-

ville and Davidson County, Tennessee, 274 F.3d 377 (6th

Cir. 2001), (“Deja Vu I”). Pet. App. 28a-75a. In addition, the

Sixth Circuit did not fault the district court for denying

the Rule 60(b) motion, noting Metro’s concession at oral

argument that the filing of that appeal had been a “proce-

dural misstep.” Jd. at 403. A petition by the Defendant for

rehearing and suggestion for rehearing en banc was

denied by the Sixth Circuit on February 5, 2002. App. 7.

On January 7, 2002, Plaintiffs filed a third motion for

attorney fees and costs, predicated primarily upon work

expended on the various appeals.

In light of the various rulings by the Sixth Circuit,

Metro enacted an additional series of amendments to Ch.

6.54, with the revised codified version of the Ordinance

appearing at App. 182-241. In addition, the Tennessee

legislature adopted conditional revisions to T.C.A. § 27-9-

11l(e) — the procedural statute enacted after the first

ruling of the district court enjoining Ch. 6.54 — which were

to take effect, however, only in the event that this Court

denied Metro's petition for a writ of certiorari on that

issue. See, e.g., App. 22-23 (discussed in the Historical and

Statutory Notes), and Pet. App. 212a.

Indeed, the Defendant filed a petition for a writ of

certiorari in this Court, which was denied on May 13,

2002. Metro. Govt of Nashville and Davidson County v.

Deja Vu of Nashville, Inc., 535 U.S. 1073 (2002). This

ruling essentially ended the “merits” portion of this

litigation, with Plaintiffs being “prevailing parties” pursu-

ant to 42 U.S.C. § 1988 in that Ch. 6.54 was — in its

entirety — permanently enjoined from enforcement.

After this Court denied the petition for a writ of

certrorari, Plaintiffs filed their fourth motion for attorney

fees and costs, which sought reimbursement for work

primarily involved in responding to that petition and

working on that fee request.

Defendant never objected to the hourly rates charged

by the primary attorneys representing the Plaintiffs. In

addition, because one of the Plaintiffs’ attorneys was on

“retainer” with his client, absolutely no claim for reim-

bursement of his time was sought. App. 274-275, 7 1-5;

App. 298-299, 491-5. Plaintiffs also substantiated, by

affidavit, that not all time incurred had been requested for

reimbursement; that billing judgment had been exercised;

and that counsels had coordinated with one-another to

negate, or at least minimize, duplication of effort. See, e.g.,

App. 281-283, qf 8, 11-12; App. 278, 6; and App. 288-291,

pp. 2-5.

On September 30, 2002, Magistrate Judge Juliet

Griffin issued her Report and Recommendation granting,

in part, the first three motions for attorney fees. Pet.

App. 79a-106a. Specifically finding that it was impossible

to accurately apportion the time spent on various issues,

since the work on the issues upon which Plaintiffs pre-

vailed had to have been intertwined with work on issues

upon which the Plaintiffs did not prevail, she reduced the

attorney fee claim for work done on the appeal to the Sixth

Circuit by two thirds. Pet. App. 104a-105a. In addition, the

Magistrate disallowed a significant portion of fees for work

that was either performed regarding issues upon which

Plaintiffs did not prevail in the district court, or work that

was not specifically characterized. Pet. App. 95a-102a. She

also denied Plaintiffs’ requests for costs, with leave to

refile these claims accompanied by a detailed explanation

of the necessity and propriety of the expenses. Both

Plaintiffs and Defendant filed objections to this Report and

Recommendation. App. 300-302 and 303-315. Additionally,

Plaintiffs refiled their motion for costs and expenses,

seeking reimbursement of $58,565.66 in costs. The Defen-

dant never filed a response to that motion.

On December 5, 2002, District Court Judge Todd J.

Campbell issued an Order adopting the Report and Rec-

ommendation, but since Magistrate Griffin had not in-

cluded a final total of the amount owed, Judge Campbell

requested that the parties stipulate to that figure. Pet.

App. 77a-78a. In furtherance of that Order, the parties

submitted a Stipulated Notice stating that $367,080.37

was awarded to Shafer & Associates. P.-C.; $10,928.36 was

awarded to the law firm of Michael Pleasants; and

$53,090.83 was awarded to Sirkin, Pinales, Mezibov &

Schwartz. App. 316-318.

Magistrate Griffin later issued a second Report and

Recommendation on September 16, 2003, granting Plain-

tiffs’ fourth motion for attorney fees in the amount of

$46,870.00. Pet. App. 26a. In addition, noting that the

Defendant had failed to file any opposition to the refiled

motion for costs, the Magistrate awarded Plaintiffs their

expenses in the amount of $58,565.66. Pet. App. 27a.

Judge Campbell approved this Report and Recommenda-

tion by an Order entered on September 30, 2003. Pet.

App. 18a.

On the same day that Order was issued, Defendant

filed what can only be described as a perfunctory objection

to the second Report and Recommendation. App. 319-321.

Defendant raised no objection therein to the attorney fees

claimed in the proceedings before this Court. Rather,

Metro objected to certain fees claimed for work done on

Plaintiffs’ second and third fee petitions, and simply

claimed — in a conclusory fashion — that those fees should

be reduced “by at least two-thirds.” App. 320. Pursuant to

a motion to amend or alter the final order on attorney fees

to reflect the fact that Defendant had, indeed, timely

objected to the Report and Recommendation, the district

court acknowledged the objections but found nothing in

them to justify changing its prior order. Pet. App. 76a.

Metro appealed.

During the pendency of the attorney fee award appeal,

this Court rendered its ruling in City of Littleton, Colorado

v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004).

On February 25, 2005, which was over eight months

following the ruling by this Court in Z.J. Gifts, but five

years and one month after Chapter 6.54 was amended to

purportedly correct the constitutional deficiencies affirmed

by the Sixth Circuit in Deja Vu J, and two years and nine

months from the date that the amendments to T.C.A. § 27-

9-111(e) went into effect (that being as of this Court’s

denial of Metro’s petition for a writ of certiorari), Metro

filed a motion to lift the permanent injunction predicated,

in part, upon this Court’s ruling in Z.J. Gifts. App. 322-

325. The district court granted the motion, but declined to

rule on Z.J. Gifts’ applicability to these circumstances

because it found the Ordinance and statutory amendments

enacted as a direct result of this litigation had cured the

constitutional infirmities noted by the Sixth Circuit. App. 15.

Subsequently, the Sixth Circuit conducted oral argu-

ment on the fee appeal and affirmed the attorney fees and

costs awards. Deja Vu of Nashville, Inc. v. Metro. Gov't of

Nashville and Davidson County, Tennessee, 421 F.3d 417,

418 (6th Cir. 2005) (“Deja Vu IT”). Pet. App. 1la-17a. The

majority held that, even assuming the applicability of Z.J.

Gifts, Plaintiffs did not lose their status as “prevailing

parties.” It reached this conclusion by observing that

rulings of this Court do not apply retroactively to cases

that were not then open on “direct review,” and that this

case was not so open at the time of the ruling in Z.J. Gifts

because direct review had been completed when this Court

denied certiorari. Jd. at 420-21.

Moreover, the Court of Appeals held that this case did

not present any “special circumstances” that would render

the award of attorneys’ fees unjust under 42 U.S.C. § 1988,

and that Z.J. Gifts did not invalidate the theory on which

Plaintiffs had prevailed. Succinctly put, the Sixth Circuit

concluded that the decision in Z.J. Gifts did not “foreclose

the result that was reached by the district court in this

case under very different circumstances.” Jd. at 422.

Accordingly, the Plaintiffs were entitled to their award of

attorneys’ fees. Id. at 424.

Metro then petitioned for rehearing and rehearing en

banc, which was ultimately denied. Pet. App. 201a-202a.

The Defendant’s Petition followed.

REASONS THAT THE PETITION

SHOULD BE DENIED

For over seven years, Plaintiffs had the enforcement

of Chapter 6.54 enjoined in its entirety, first by way of a

preliminary injunction, and then as a result of the entry of

a final judgment granting permanent injunctive relief.

Because the challenged Ordinance impacted-upon First,

Fourth, and Fourteenth Amendment rights, and because

Plaintiffs sued Metro under, among other things,

42 U.S.C. § 1983, Plaintiffs, as prevailing parties in this

litigation, were entitled to an award of attorneys’ fees

pursuant to 42 U.S.C. § 1988.

“In the absence of special circumstances a district

court not merely ‘may’ but must award fees to the prevail-

ing plaintiff....” Indep. Fed’n of Flight Attendants uv.

Zipes, 491 U.S. 754, 761 (1989) (emphasis in original).

Succinctly put, if plaintiffs “succeed on any significant _

issue in litigation which achieves some of the benefit the

parties sought in bringing suit,” an award of attorney fees

is warranted. Hensley v. Eckerhert, 461 U.S. 424, 433

(1983), citing Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st

Cir. 1978) (emphasis added). This occurs if the plaintiff can

“point to a resolution of the dispute which changes the

legal relationship between itself and the defendant.” Texas

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

782, 792 (1989) (emphasis added).

The Petitioner asserts that this Court should grant

review of the attorney fee award because after this Court

denied a petition for a writ of certiorari on the merits of

Metro's constitutional defenses, this Court issued its

decision in City of Littleton, Colorado v. Z.J. Gifts D-4,

L.L.C., 541 U.S. 774 (2004), which Metro contends abro-

gated the validity of the previous judicial review ruling of

the Sixth Circuit here. This, the Defendant asserts,

constitutes “special circumstances” to deny an award of

attorney fees pursuant to 42 U.S.C. § 1988. The Petitioner

is in error.

I. THIS IS NOT A CASE WHERE “SPECIAL

CIRCUMSTANCES” ARE EVEN APPLICABLE.

Even assuming that the ruling in Z.J. Gifts is applica-

ble to the decision of the Sixth Circuit on the merits

portion of this case (which is it is not, for the reasons as

are set forth in Section III, infra), “special circumstances”

simply do not exist here because the district court has

already found that, by adoption of amendments to Chapter

6.54 and revisions to T.C.A. § 27-9-11l(e), the constitu-

tional infirmities discussed by the Sixth Circuit in Deja Vu

I have been corrected as a direct result of this litigation.

When Metro sought to vacate the permanent injunc-

tion in 2005, it argued to the district court that the injunc-

tion should be lifted because: (a) it had deleted the

definition of “sexually oriented” that the Sixth Circuit found

to be unconstitutional; (b) changes to T.-C.A. § 27-9-11l(e)

had rectified the prompt judicial review problem that the

Sixth Circuit had noted; and (c) the decision in Z.J. Gifts

abrogated the Sixth Circuit’s judicial review holding in

Deja Vu I. App. 323-324. The district court agreed with the

first two contentions, but further ruled that it “need not

decide whether Z..J. Gifts dictates the result in this case,

since the amended ordinance guarantees prompt judicial

review.” App. 15.

Consequently, this is not an action where “special

circumstances” are even applicable. Rather, it is a normal

circumstance where a lawsuit results in a judgment

enjoining the enforcement of an invalid law, and the

government then, as a result of the court’s ruling, at-

tempts to legislatively “fix” the problem. Certainly, pursu-

ant to all existing precedent, attorney fees are warranted

in such circumstances.

Carried out to its logical conclusion, the Petitioner in

essence would have this Court remand the attorney fee

proceedings to have the district court render some type of

hypothetical ruling on whether Z.J. Gifts indeed abrogates

the Sixth Circuit’s judicial review ruling in Deja Vu J,

when that court has already concluded in its decision

vacating the permanent injunction that it need not reach

the question of how Z.J. Gifts might apply to these cir-

cumstances. Accordingly, even if there is a split in the

circuits on what may constitute a “special circumstance” so

as to warrant denial of an attorney fee award, this is not

the case to review such an issue-given the lower court’s

previous ruling.

Il. “SPECIAL CIRCUMSTANCES” DO NOT EX-

IST HERE BECAUSE THERE ARE INDE-

PENDENT GROUNDS JUSTIFYING THE

AWARD OF ATTORNEY FEES.

While Metro’s entire “special circumstances” argu-

ment rests upon this Court’s ruling in Z.J. Gifts, the

attorney fee award includes compensation for work having

nothing to do with matters that might arguably be affected

by Z.J. Gifts. The fee award, therefore, is independently

justified.

First, Metro apparently concedes that Chapter 6.54,

as originally enacted, did not provide for appropriate

prompt judicial review — even in light of Z.J. Gifts. See

Petition, p. 8 n.2 (“... [T]he Metropolitan Government is

seeking review of only the attorney’s fees that accrued

subsequent to dissolution of the first injunction”).

Second, not only did Plaintiffs prevail in the district

court on the argument that the definition of “sexually

oriented” was unconstitutionally vague and overbroad, but

the Sixth Circuit chastised Metro for having even ap-

pealed that ruling.

... [W]e are a bit confused as to why this defini-

tion had to be litigated at all, as Metropolitan

Nashville argues strenuously in its brief that it is

superfluous. ... For whatever reason, Metropoli-

tan Nashville saw fit to have us decide whether

this apparently meaningless term must be re-

moved from its Ordinance. We have and it must.

Deja Vu I, 274 F.3d at 389. Yet, Plaintiffs were compelled

to incur attorney fees regarding this issue in the district

court and in the appellate court as well.

Third, the Plaintiffs were required to litigate an entire

appeal which was clearly, and admittedly, unnecessary. In

discussing Metro’s appeal of the district court’s denial of

its Fed.R.Civ.P. Rule 60(b) motion, the Sixth Circuit

observed that “ ... Metropolitan Nashville concedes that

the district court is under no obligation to issue [an order

stating that it is disposed to grant a Rule 60(b) motion],

and in fact characterized this appeal as a ‘procedural

misstep’ at oral argument. We agree.” Deja Vu I, 274 F.3d at

403 (emphasis and clarification added). Nevertheless,

Plaintiffs had to incur a significant amount of attorney

fees responding to this admitted “procedural misstep.”

Fourth, the Magistrate — and by adopting the Report

and Recommendation thereof, the district court as well —

further noted that Plaintiffs had prevailed on standing

and mootness arguments raised by the Defendant, and

that it was “not insignificant for the plaintiffs that the

Sixth Circuit has spoken definitively on” the issue of the

privacy rights as raised by the Plaintiffs with regard to

information demanded on license applications. Pet. App.

104a. And, Metro does not contend that the rulings on

these matters were in any regard erroneous.

Moreover, in regard to the above matters, it is, of

course, relevant that the Magistrate significantly reduced

the attorney fee claims contained in the first three fee

motions. Pet. App. 95a-102a, 104a-105a. The Magistrate

did this irrespective of the overlying observation in

Hensley v. Eckerhart, 461 U.S. 424 (1983), that claims for

relief which involve a common core of facts require coun-

sel’s time to be devoted generally to the litigation as a

whole, and “[w]here a lawsuit consists of related claims, a

plaintiff who has won substantial relief should not have

his attorney's fees reduced simply because the district

court did not adopt each contention raised.” Jd. at 440

(emphasis added).’

But there are further matters which render the

“special circumstances” argument here to be misplaced.

This Court specifically denied a petition for a writ of

certiorari filed by Metro to examine whether the judicial

review provisions of Chapter 6.54 were consistent with the

First Amendment. The fees associated with responding to

that petition were the primary basis for the fourth motion

for attorney fees, and the Magistrate even noted that

Metro did “not specifically address any fees requested in

the plaintiffs’ fourth motion. The plaintiffs are clearly

prevailing parties in the matters involved in their fourth

motion.” Pet. App. 24a, n.2. Similarly, Metro never even

filed a response to the Plaintiffs’ revised motion for costs

and expenses. Pet. App. 26a. Consequently, there is no

basis to disturb any of those awards, irrespective of the

ruling in Z.J. Gifts.

In addition, it should not be lost on this Court that the

constitutional attack upon Chapter 6.54 has been a virtual

moving target given the fact that Metro has engaged in a

never-ending array of amendments to the Ordinance as a

result of the constitutional claims raised by the Plaintiffs.

Prior to the last set of amendments adopted as a result of

the Sixth Circuit’s ruling in Deja Vu I, Metro enacted no

less than two hundred thirty-five different revisions to

Chapter 6.54 after the Plaintiffs filed suit challenging its

constitutionality. And this is not a circumstance where

* In fact, the Sixth Circuit seems to have questioned why the

Plaintiffs had not filed a cross-appeal seeking full compensation for all

of the attorney time expended in the litigation. Deja Vu IJ, 421 F.3d at

423-24.

Metro could contend that Plaintiffs are not entitled to

attorney fees in regard to the matters resulting in these

changes because of this Court’s decision in Buckhannon

Bd. and Care Home, Inc. v. West Virginia Dep't of Health

and Human Res., 532 U.S. 598 (2001). Rather, here,

Plaintiffs obtained a final judgment and are therefore

entitled to reimbursement for all attorney fees reasonably

incurred in litigating their claims. See, e.g., Hensley, 461

U.S. at 440.

Finally, and probably most importantly, while Peti-

tioner complains only about fees charged after the lifting of

the first injunction (Petition, p. 8 n.2), none of the chal-

lenged fees would have been incurred had Metro not

incorrectly sought to vacate that injunction pursuant to a

still-flawed judicial review process. This is particularly

true given that the breadth of the subsequent litigation

was set when, pursuant to Metro’s request, the district

court required the Plaintiffs to raise all preliminary

injunction claims in their second motions (App. 2), irre-

spective of the fact that the lower court had previously

declined to even rule on the Pendergrass Plaintiffs’ civil

disabilities argument because of its judicial review ruling.

Pet. App. 197a.

For all of these reasons, the attorney fee award as

issued by the district court, which significantly reduced

the claims for reimbursement made by the Plaintiffs, is

not the proper case to provide further direction in regard

to the “special circumstances” exception, if any is even

needed. :

Ill. THIS COURT’S DECISION IN Z.J. GIFTS

DOES NOT INVALIDATE ANY THEORY ON

WHICH THE RESPONDENTS PREVAILED

ON THE MERITS OF THIS CASE, AND CAN-

NOT THEREFORE CONSTITUTE A “SPECIAL

CIRCUMSTANCE” FOR DENYING FEES.

Irrespective of the other matters upon which the

Respondents prevailed ‘below (discussed in Section II,

supra), Metro argues that this Court’s decision in Z.d.

Gifts invalidated the “judicial review” ruling of the Sixth

Circuit in Deja Vu I. Petition, pp. 16-24. The Petitioner is,

however, in error.

In Z.J. Gifts, this Court resolved the split among the

circuits with regard to whether the phrase “prompt judi-

cial review” as set forth in Freedman v. Maryland, 380

U.S. 51 (1965), required a prompt judicial determination of

a license denial or only prompt access to the courts.

Z.J.Gifts, 541 U.S. at 781-84. In Deja Vu I, the Sixth

Circuit reiterated that it was in the “determination” camp.

Deja Vu I, 274 F.3d at 400 (“the licensing scheme ‘must

also assure a prompt judicial decision, to minimize the

deterrent effect of an interim and possible erroneous

denial of a license’”), quoting Freedman, 380 U.S. at 59.

The primary decision in Z.J. Gifts is in accord with

this ruling, where this Court held that its previous refer-

ence to “prompt judicial review” required a “prompt

judicial decision.” Z.J. Gifts, 541 U.S. at 781 (emphasis

added). In fact, this Court went on to note that “we reject

the city’s argument to the contrary.” Jd.

Consequently, the substantive ruling in Deja Vu J in

regard to how the phrase “prompt judicial review” is to be

operationalized is in direct accord with this Court’s holding

in Z.J. Gifts. More importantly, however, this Court’s

decision in Z.J. Gifts does not address in the least the

basis for the Sixth Circuit’s judicial review ruling in Deja

Vu I; that being that Chapter 6.54 failed to satisfy Freed-

man because the availability of judicial review was not

guaranteed. Rather, Chapter 6.54, and Tennessee law,

provided for judicial review only by way of a discretionary

common law writ of certiorari. .Deja Vu I, 274 F.3d at 401.

Respectfully, this Court in Z.J. Gifts never addressed the

question of whether a discretionary judicial review process

would satisfy Freedman. Consequently, this portion of the

Sixth Circuit’s ruling is undisturbed by the ruling in Z./.

Gifts.

In fact, the Ninth Circuit recently addressed this

distinction when it considered, post Z.J. Gifts, an ordi-

nance where licensing decisions could be appealed not only

by a special action, but also by a “regular lawsuit seeking

an injunction against the enforcement of the ordinance

after a contested license denial.... ” Dream Palace v.

County of Maricopa, 384 F.3d 990, 1007 (9th Cir. 2004).

The Ninth Circuit observed:

The fact that a denied applicant can seek review

other than through a discretionary writ distin-

guishes this case from Deja Vu [I/... . In Deja Vu,

the Sixth Circuit held that a licensing ordinance

that required an applicant to seek judicial re-

view, if at all, via a discretionary writ unconstitu-

tionally failed to guarantee a final judicial

adjudication on the merits.

Dream Palace, 384 F.3d at 1007, n.10 (emphasis and

clarification added, citation omitted). And it is therefore

not insignificant that this Court denied Metro’s petition

regarding the discretionary judicial review process at issue

here.

Metro also argues that Z..J. Gifts is further applicable

because Chapter 6.54 contains — it asserts similar to the

Colorado ordinance analyzed by this Court — “reasonably

objective, nondiscretionary criteria” upon which licensing

decisions are to be made. Petition, pp. 21-22, citing Z.J.

Gifts, 541 U.S. at 783. There are, however, two problems

with this argument. First, under the Petitioner’s conten-

tion, this Court would have to remand to the district court

for it to make a determination, in an attorney fee dispute,

of whether Chapter 6.54 indeed contained “reasonable

objective, nondiscretionary criteria”; an issue which the

district court was never required to directly address in the

“merits” portion of this lawsuit.’ Second, the record below

simply does not bear out Metro’s conclusory assertion.

After the first preliminary injunction was lifted, adult

businesses in Nashville were required to undergo the

licensing process. The record demonstrates that applica-

tions were denied for such subjective, discretionary rea-

sons as a business having “unclean couches, restroom

walls and fixtures, and shower stalls”; not eliminating “all

unnecessary items on the lower level”; not eliminating

storage that may attract rodents and insects; not having

“tight fitting lids or covers” on all garbage containers; and

having floors that were not “thoroughly cleaned through-

out the facility and common area.” App. 246-258.

* Cf., Hensley, 461 U.S. at 437 (“A request for attorneys’ fees should

not result in a second major litigation”).

* Of course, it should not be lost on this Court that none of these

reasons are set forth in Chapter 6.54 as a ground to deny, suspend, or

(Continued on following page)

In addition, that the licensing criteria under Chapter

6.54 is neither objective nor nondiscretionary is directly

demonstrated by the simple fact that the licensing board

had numerous “split” votes on applications. For example, a

motion to approve Deja Vu’s license failed for the lack of a

“second.” A motion was then made to deny the application,

which received two votes “for” and two “against.” App. 266-

269, 271. Similarly, Ken’s Gold Club was granted a license

on a two-to-one vote (App. 266), when it had previously

been denied a license, also on a two-to-one vote. App. 262-

264.

For all of these reasons, this Court’s ruling in Z.J.

Gifts does not abrogate the judicial review ruling of the

Sixth Circuit in Deja Vu I. And, in any event, such a

determination should not be made in a collateral attorney

fee proceeding.’ Consequently, the decision in Z.J. Gifts

does not present “special circumstances” warranting the

denial of attorney fees here.

revoke a license. These actual proceedings of the Metropolitan “Sexu-

ally Oriented Business Licensing Board,” however, aptly demonstrate

the total unbridled discretion afforded to that board, which is permitted

to deny licenses for any subjective, discretionary, reason whatsoever. At

issue here is not, therefore, the “reasonably objective_nondiscretionary

criteria” that this Court reviewed in Z.J. Gifts.

* This is particularly true here where Metro attempts — improperly

— to relitigate the correctness of the Sixth Circuit’s decision in Deja Vu |

(Petition, pp. 19-20), irrespective of this Court’s denial of the Defen-

dant’s petition to directly review that ruling. In addition, Metro’s

arguments in this regard are erroneous because review through T.C.A.

§ 27-9-111(e) was still discretionary at the time the Sixth Circuit issued

its opinion in Deja Vu J, notwithstanding the fact that a time limit was

provided to resolve the judicial proceeding if the court decided to permit

the appeal.

IV. THERE IS NO SUBSTANTIAL SPLIT IN THE

CIRCUITS WARRANTING REVIEW BY THIS

COURT.

A “court’s discretion to deny a fee award to a prevail-

ing plaintiff is narrow.” New York Gaslight Club, Inc. uv.

Carey, 447 U.S. 54, 68 (1980) (Title VII Fees). In support of

its Petition, Metro asserts that there is a split among the

circuits with regard to establishing when the narrow

“special circumstance” may arise so as to justify denial of a

fee award. In addition, the Petitioner argues that a plain-

tiff in a § 1983 claim should not be considered to be a

“prevailing party” when a change in the law occurs after

judgment and finality of appellate proceedings on the

merits but before the conclusion of attorney fees proceed-

ings.” Petition, pp. 13-16.

In regard to the latter contention, Metro correctly

cites Harper v. Virginia Dep't of Taxation, 509 U.S. 86, 97

(1993), for the proposition that a decision of this Court

announcing a new rule of federal law is to be “given full

retroactive effect in all cases still open on direct re-

view....” (emphasis added). Certainly, this case was no

longer on “direct review” when, on May 13, 2002, this

Court denied Metro’s petition for a writ of certiorari with

regard to the Sixth Circuit “merits” ruling in Deja Vu I.

Nevertheless, the Petitioner would have this Court take

this case to announce a new rule of law holding that

Harper should apply “to a case wherein there has already

been a final order on the merits but attorney’s fees are still

* Petitioner’s argument assumes, of course, that Z.J. Gifts invali-

dates the basis of the judicial review ruling of the Sixth Circuit in Deja

Vu I, which Plaintiffs assert is not the case for the reasons set forth in

Section III, supra.

at issue.” Petition, p. 12. However, there is no split among

the circuits on this particular issue (indeed, Petitioner has

not claimed one to exist), and the only appellate decision

which Metro cites for this proposition, New York State

Nat'l Org. for Women v. Terry, 159 F.3d 86 (2nd Cir. 1998),

actually comes to the opposite conclusion.

In Terry, the district court had entered a “merits”

ruling, the Court of Appeals had affirmed it, and this

Court had ultimately denied a petition for a writ of certio-

rari. Id. at 96 n.6. These are basically the facts here. In

responding to a contention that the plaintiffs in that

action were no longer prevailing parties because of this

Court’s decision in Bray v. Alexandria Women’s Health

Clinic, 498 U.S. 1119 (1991), which was released while the

Terry attorney fee award was still on appeal, the Second

Circuit observed:

It is true the award of attorney’s fees was on di-

rect review when Bray was decided, and there-

fore is subject to the retroactive application of

any new rule of law announced therein... . Bray,

however, did not announce a new rule of law with

respect to awards of § 1988 attorney’s fees. Its

new rule related to entitlement to prevail under

§ 1985(3).

Terry, 159 F.3d at 97.

More specifically, the Second Circuit stated that the

intervening decision of Bray did not affect the district

court’s grant of judgment for the plaintiffs there because

that holding “had become final before Bray was de-

cided. ...” Terry, 159 F.3d at 96. Accordingly, the appellate

court concluded that the “merits” judgment in plaintiffs’

favor “was not on direct review” in the later proceedings,

id., and noted:

Because plaintiffs were prevailing parties under

§ 1985(3), they were entitled to an award of at-

torney’s fees under § 1988. This was not affected

by the fact that, after the judgment in their favor

under § 1985(3) became final,’ new law declared

by the Supreme Court would have made them

ineligible for a new judgment under § 1985(3).

Id. (emphasis added). Accordingly, not even Terry supports

adoption by this Court of the “new rule” suggested by the

Petitioner.®

Moreover, while the Petitioner implies that this Court

has not provided direction in regard to when “special

circumstances” may be found to justify the denial of an

attorney fee award, that is not, however, the case. For

* A judgment “becomes final” when the availability of appeal has

been exhausted or has lapsed, and the time to petition for certiorari has

passed. Bradley v. Sch. Bd. of Richmond, 416 U.S. 696, 711 n.14 (1974),

citing Linkletter v. Walker, 381 U.S. 618, 622 n.5 (1965). In Terry, the

Second Circuit noted that when “a writ of certiorari is denied, the

judgment below stands under the doctrine of res judicata ‘even if a new

theory of law [is] thought up,’” and that “res judicata consequences are

not ‘altered by the fact that the judgment may have been wrong or

rested on a legal principle subsequently overruled in another case.’”

Terry, 159 F.3d at 96 n.6, quoting Brown v. Allen, 344 U.S. 443, 543

(1953) (Jackson, J., concurring); and Federated Dep't Stores, Inc. v.

Moitie, 452 U.S. 394, 398 (1981).

" At best, the Second Circuit in Terry noted that the subsequent

ruling in Bray “might” make the attorney fee award unjust, but found

that not to be the case in the particular circumstances there. 159 F.3d

at 97. Here, it is far from clear that Z.J. Gifts even invalidates the

underlying basis of the judicial review decision of the Sixth Circuit in

Deja Vu I. See Deja Vu I, 421 F.3d at 422 (Z.J. Gifts did not foreclose

the result reached “in this case under very different circumstances”).

example, in Farrar v. Hobby, 506 U.S. 103 (1992), this

Court concluded that although the award of nominal

damages made that plaintiff a “prevailing party” eligible

to receive attorney fees under 42 U.S.C. § 1988, the cir-

cumstances there — a demand of Seventeen Million Dollars

yet an award of only One Dollar — did not justify the

entitlement to fees. In reviewing virtually the entire body

of case law which this Court had issued then-to-date, this

Court observed that the entitlement to fees was inexorably

intertwined with the determination of the amount of fees

to be awarded, which in turn generally depended upon the

degree of success in litigation. Jd. at 109-116.

In citing to Texas State Teachers Ass’n uv. Garland

Indep. Sch. Dist., 489 U.S. 782 (1989), for the proposition

that a “technical victory may be so insignificant ... as to

be insufficient to support prevailing party status” (Farrar,

506 U.S. at 113, citing Garland, 489 U.S. at 792), this

Court concluded that when a plaintiff recovers only nomi-

nal damages because of his failure to prove an essential

element of his claim for monetary relief, the “only reason-

able fee is usually no fee at all.” Farrar, 506 U.S. at 115.

See also id. at 118 (O’Connor, J., concurring) (noting that

the “special circumstances” exception, while often articu-

lated separately from a reasonableness inquiry, sometimes

“is bound up with reasonableness: It serves as a short-

hand way of saying that, even before calculating a loadstar

or wading through all the reasonableness factors, it is

clear that the reasonable fee is no fee at all”); Hewitt v.

Helms, 482 U.S. 755 (1987) (The plaintiff there had ob-

tained “no relief” by way of a revision of prison regula-

tions which were enacted after he was released from

incarceration, and was therefore not entitled to an award

of attorney fees); Rhodes v. Stewart, 488 U.S. 1 (1988)

(Plaintiff not entitled to an award of attorney fees under

42 U.S.C. § 1988 when the case was moot be‘ore original

judgment was issued because one plaintiff/inmate had

died and the other had been released from custody, and

the judgment therefore afforded the plaintiffs no relief).

What these cases make clear is that the focus is still,

and always has been, on the degree of success obtained by

the Plaintiff. Here, the entire Ordinance which these

Plaintiffs challenged was enjoined, first preliminarily but

then permanently, for over seven years. Under all of the

existing precedent of this Court, no special circumstances

justify the denial of an attorney fee award in these circum-

stances.

Nor is there any significant split in the circuits as

suggested by the Petitioner. .

First, with the exception of the fees awarded in this

particular case, the Petitioner does not contend that in any

of the decisions which it cites for this perceived “circuit

split,” the appellate courts had come to the wrong conclu-

sion in.regard to whether or not special circumstances

existed. Second, the mere fact that the First Circuit in

Stefan v. Laurenitis, 889 F.2d 363, 371 (1st Cir. 1989), the

Fourth Circuit in Doe v. Bd. of Educ. of Baltimore County,

165 F.3d 260 (4th Cir. 1998), and the Sixth Circuit in Wikol

v. Birmingham Pub. Schls. Bd. of Educ., 360 F.3d 604, 611

(6th Cir. 2004), do not adopt, verbatim, the Ninth Circuit

two-part test does not mean that they are applying stan-

dards that are in any significant way different, or that the

decisions in the other circuits would have reached differ-

ent results if they had utilized the Ninth Circuit stan-

dards.”

For example, in finding “special circumstances” to

exist so as to preclude an award of fees for services per-

formed by an attorney-parent who represented his or her

child in an Individuals with Disabilities Education Act

proceeding, the Fourth Circuit in Doe relied (Doe, 165 F.3d

at 261-65) upon the very similar facts in the ruling of this

Court in Kay v. Ehrler, 499 U.S. 432, 438 (1991) (holding

that a pro se plaintiff who is an attorney is not entitled to

be awarded attorney’s fees under 42 U.S.C. § 1988(b),

because the statutory policy of “furthering the successful

prosecution of meritorious claims is better served by a rule

that creates an incentive to retain counsel in every such

case”’’) (emphasis added). Accordingly, the Fourth Circuit,

similar to the Ninth Circuit, utilizes reference to the

* The Fourth Circuit correctly observes that the Ninth Circuit test

does not provide any “legitimate reason for departing from the usual

rule of awarding reasonable fees to prevailing plaintiffs under fee-

shifting statutes.” Doe, 165 F.3d at 264 n.2.

” In Kay, this Court noted that although § 1988 was in no doubt

intended to encourage litigation protecting civil rights, “it is also true

that its more specific purpose was to enable potential plaintiffs to obtain

the assistance of competent counsel in vindicating their rights.” 499 U.S.

at 436 (emphasis added). See also S.Rep. No. 94-1011 at 2 (1976) as

reprinted in 1976 U.S.C.C.A.N., 5908, 5910. (“. .. If private citizens are

to be able to assert their civil rights, and if those who violate the

Nation’s fundamental laws are not to proceed with impunity, then

citizens must have the opportunity to recover what it cost them to

vindicate these rights in court.”). These purposes are clearly furthered

by the award here.

congressional intent underlying the fee-shifting statutes in

order to determine whether special circumstances exist."

Even the approach of the Ninth Circuit, which Peti-

tioner apparently contends is the correct interpretation

(see Petition, p. 14 — but see n.9, supra), demonstrates that

special circumstances are not present here. In Seattle Sch.

Dist. No. 1 v. Washington, 633 F.2d 1338 (9th Cir. 1980),

the court noted that the “congressional purpose in provid-

ing attorney’s fees in civil rights cases was to eliminate

financial barriers to the vindication of constitutional

rights and to stimulate voluntary compliance with the

law.” Id. at 1348, citing S. Rep. No. 94-1011 (1976) re-

printed in 1976 U.S.C.C.A.N. 5908, 5910; H.R. Rep. No.

1558, 94th Cong., 2d Sess., (1976). Based upon this, the

Ninth Circuit concluded that the district court had erred

in depriving a school district of an award of attorney fees

merely because it was a public-funded entity. Seattle Sch.

Dist., 633 F.2d at 1348. Here, constitutional rights were

clearly vindicated, and in light of the over two hundred

thirty-five amendments to Chapter 6.54 which were en-

acted during the course of this litigation, the threat of

additional fees has certainly “stimulate[d] voluntary

compliance with the law.”

" Petitioner’s reliance upon Raishevich v. Foster, 247 F.3d 337 (2nd

Cir. 2001), to establish a “split” among the circuits is unavailing for the

reason that the particular test used by the Second Circuit there dealt

specifically with the unique question of whether plaintiffs counsel’s

entitlement to a contingency fee award on a damage claim would vitiate

the underlying purpose of providing an attorney fee award pursuant to

42 U.S.C. § 1988. Id. at 344-46. Here, none of the attorneys were

retained pursuant to a contingency fee agreement, and there was no

damage award entered by the district court.

The phrase “special circumstances” certainly refers to

unique situations which, by definition, cannot be univer-

sally described in advance by any monolithic rule of law.

Further elaboration by this Court is not then necessary.

CONCLUSION

For the reasons as are set forth herein, Plain-

tiffs/Respondents respectfully request this Honorable

Court deny the petition for a writ of certiorari.

Dated: May 19, 2006

BRADLEY J. SHAFER

(Counsel of Record)

ANDREA E. PRITZLAFF

SHAFER & ASSOCIATES, P.C.

3800 Capital City Blvd., Suite 2

Lansing, Michigan 48906

517-886-6560

Counsel for Respondents

MICHAEL F. PLEASANTS

PLEASANTS LAW FIRM

8 South Third St., Suite 200

Memphis, Tennessee 38103

901-572-7332

H. Louis SIRKIN

SIRKIN, PINALES & SCHWARTZ, LLP

105 West Fourth St., Suite 920

Cincinnati, Ohio 45202

513-721-4876

Co-Counsels for Respondents

INDEX OF APPENDIX TO DEJA VU OF

NASHVILLE, INC.’S RESPONSE TO

PETITION FOR CERT

Page

VOLUME I |

Deja Vu of Nashville, Inc. et al. v. Metropolitan

Govt of Nashville/Davidson County, United

States District Court for the Middle District of

Tennessee, Case No. 3:97-1066, Order by Magis-

trate Griffin regarding Case Management Hear-

ing, Filed October 30, 1998 ...................00006 Sone we App. 1

Deja Vu of Nashville, Inc. et al. v. Metropolitan

Govt of Nashville/Davidson County, United

States District Court for the Middle District of

Tennessee, Case No. 3:97-1066, Order Denying

Rule 60(b) Motion, Filed May 26, 2000................... App. 4

Deja Vu of Nashville, Inc. et al. v. Metropolitan

Govt of Nashville/Davidson County, United

States Court of Appeals for the Sixth Circuit,

Case No. 00-5881, Order denying remand, Filed

COIN Ee SE alacant cco eee App. 5

Deja Vu of Nashville, Inc. et al. v. Metropolitan

Govt of Nashville/Davidson County, United

States Court of Appeals for the Sixth Circuit,

Case Nos. 99-5071/00-5284/5288/5881, Order,

Fuse FEES By OOS i sis esii cedpcacesreccioviabiveeegs veces App. 7

Deja Vu of Nashville, Inc. et al. v. Metropolitan

Govt of Nashville/Davidson County, United

States District Court for the Middle District of

Tennessee, Case No. 3:97-1066, Memorandum

te CUO, FTE BE DIO ais isis Divsmans i caadbisscanitounsi App. 8

42 United States Code Annotated §1988 — Proceed-

ings in Vindication of Civil Rights ...............0...... App. 18

INDEX OF APPENDIX TO DEJA VU OF

NASHVILLE, INC.’S RESPONSE TO

PETITION FOR CERT — Continued

Page

42 United States Code Annotated §1983 — Civil

Action for Deprivation of Rights .......................... App. 20

Tennessee Code Annotated §27-8-101 Common

Tennessee Code Annotated §27-9-111 (2002) — With

Historical and Statutory Notes..................ceeee App. 22