Opposition Brief — City of Garland, Texas v. Dearmore (No. 07-1527)

No. 07-1527

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In The

Supreme Court of the Anited States

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CITY OF GARLAND, TEXAS,

Petitioner,

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ROY DEARMORE, ET AL.,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

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RESPONSE TO PETITION FOR CERTIORARI

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KELLY J. SHACKELFORD ROBERT A. MILLER

HIRAM SASSER Counsel of Record

ROGER L. BYRON PRAGER & MILLER, P.C.

LIBERTY LEGAL INSTITUTE 14911 Quorum Drive, Ste. 320

903 E. 18th Street, Ste. 230 Dallas, Texas 75254

Plano, Texas 75074 (972) 661-9211

(972) 423-3131 Wo. CHARLES BUNDREN

WM. CHARLES BUNDREN

& ASSOCIATES

2591 Dallas Parkway, Ste. 300

Frisco, Texas 75034

(972) 624-5338

Counsel for the Respondents

CUCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Is a Plaintiff a prevailing party under 42 U.S.C.

§ 1988(b) if:

1. The Plaintiff wins a preliminary injunction;

2. Based upon an unambiguous indication of

probable success on the merits of the Plaintiff’s

claims as opposed to a mere balancing of the equities

in favor of the Plaintiff; and

3. That causes the Defendant to moot the

action, which prevents the Plaintiff from obtaining

final relief on the merits.

The federal circuit courts that have reviewed

cases where a preliminary injunction is granted after

a careful consideration of the merits and the injunc-

tion is not based on a mere balancing of the equities

are unanimous in finding prevailing party status.

ll

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .............. sinsiciepiaieaans i

Bees OF AUTHORITIES ......cccsescorcccssssesessssooeees iii

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

II. REASONS FOR DENYING '- THE

I ciliiacanse atid \icaicuser cambieielcniavopavneubuasies 2

A. There is no conflict among the circuits

that a Plaintiff is a prevailing party

where a preliminary Injunction is

based upon an unambiguous indication

of probable success on the merits of the

Plaintiff’s claims after more than a

brief inquiry as opposed to a mere

balancing of the equities in favor of the

Plaintiff that causes the Defendant to

moot the action, which prevents the

Plaintiff from obtaining final relief on

is oii sscibtind sacha isesieueronns 2

B. No Resurrection of the Catalysis

IN Ta criti crt cohaciiteavnnicnansecusanenatrteie 7

Ill. RESPONSE TO PUBLIC POLICY

ARGUMENT BY AMICI CURIAE.............. 9

MPEG s cvcncveveceesevesscxscrsccsiesasessvesnnsiie 11

ill

TABLE OF AUTHORITIES

Page

CASES ee

Advantage Media v. Hopkins, 511 F.3d 833 (8th

Cir. 2008), cert. denied (2008)....... eervesesesesssererererensees 5

Buckhannon Board and Care Home, Inc. v.

West Virginia Department of Health and

Human Resources, 532 U.S. 598 (2001)......... passim

Dearmore v. Garland, 237 F.R.D. 573 (N.D.

Tex. 2006) affm’d 519 F.3d 517 (5th Cir.

2008), cert. pet. fled (QOOGB)......ccscessecccrvvescovssersese 4,7,8

Dearmore v. Garland, 519 F.3d 517 (5th Cir.

ZOOS), Crt. DEL. TUG TBIVG) oovccvcevesesssscesorsnvisscveseses 3,8

Haley v. Patacki, 106 F.3d 478 (2nd Cir. 1997)......6, 10

Northern Cheyenne Tribe v. Jackson, 433 F.3d

Pe Se te IE ihe shinikcsins neers 5

Select Milk Producers, Inc. v. Johanns, 400

ee eh te I icv itcseedeesavadedvacecscineonees 5,10

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

cert. denied, 537 U.S. 825 (200Z).........0..0...ccoscessseceess 3

Taylor v. Ft. Lauderdale, 810 F.2d 1551 (11th

ee ies clecte ci eat cue lacach at Res eocraexs 6, 10

Texas State Teachers Association v. Garland

Independent School District, 489 U.S. 782

SPAREN Team tar eats monroe or Nyce ah set en arent ee 2,6

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

(9th Cir. 2002), cert. denied, 538 U.S. 923

SE Sisudiciepateseuste bindacanimeakieemnlqnene ue achapslondedsawbel 5

lV

TABLE OF AUTHORITIES — Continued

Page

STATUTES

Re BE aoa debuts: sacaiseoodsebeudenteaene 10, 11

OTHER AUTHORITIES

Senate Report No. 94-1011.................ccsccssessesesssevenvers 11

I.

STATEMENT OF THE CASE

Garland’s statement of the case makes the same

omissions that their Statement of the Case to the

United States Court of Appeals for the Fifth Circuit

made. The first is that Garland did not object to the

district court granting the preliminary injunction.

There was no complaint about notice or lack thereof

for a temporary injunction hearing until Garland

filed its Motion to Alter or Amend the Judgment.

Therefore, Garland has waived any procedural error

in the district court’s granting of the preliminary

injunction. Second, the merits of the case are not an

issue. Garland did not challenge the district court’s

ruling on the merits, but in response to the court’s

Order, and for no other reason, amended the Ordi-

nance. Third, Garland notes that the temporary

injunction bond was never filed by Dearmore. How-

ever, Garland does not explain why the bond was

never filed. As found by the district court and the

Court of Appeals, the bond was not posted because

Garland’s legal counsel convinced Dearmore’s counsel

that no bond was necessary as Garland would amend

the ordinance to correct the unconstitutional provi-

sion. The district court did not “imagine” hypothetical

circumstances in which the Fourth Amendment to the

United States Constitution could be violated. The

district court found that on its face the City’s Ordi-

nance violated the Fourth Amendment. Dearmore

obtained the relief he sought, the declaration that the

ordinance was unconstitutional. The district court’s

2

preliminary injunction materially altered the legal

relationship between the parties. Therefore, Dear-

more is a prevailing party.

II.

REASONS FOR DENYING THE PETITION

A. There is no conflict among the circuits that

a Plaintiff is a prevailing party where a pre-

liminary Injunction is based upon an unam-

biguous indication of probable success on

the merits of the Plaintiff’s claims after

more than a brief inquiry as opposed to a

mere balancing of the equities in favor of

the Plaintiff that causes the Defendant to

moot the action, which prevents the Plain-

tiff from obtaining final relief on the merits.

The federal circuit courts have all looked to

Buckhannon Boar: and Care Home, Inc. v. West

Virginia Department of Health and Human Re-

sources, 532 U.S. 598 (2001) and Texas State Teachers

Association v. Garland Independent School District,

489 U.S. 782 (1989) to determine prevailing party

status. “The touchtone of the prevailing party inquiry

is the material alteration of the Jegal relationship of

the parties in a manner which Congress sought to

promote in the fee statute.” Texas State Teachers

Association v. Garland Independent School District,

489 U.S. 782 at 792-793. This is a test that will vary

depending on the facts of each case and is not subject

to a bright line rule.

3

The Fifth Circuit concluded that a Plaintiff is a

prevailing party if the Plaintiff wins a preliminary

injunction based upon an unambiguous indication of

probable success on the merits of the Plaintiff’s

claims as opposed to a mere balancing of the equities

in favor of the Plaintiff that causes the Defendant to

moot the action, which prevents the Plaintiff from

obtaining final relief on the merits. Dearmore uv.

Garland, 519 F.3d 517 at 524 (5th Cir. 2008), cert. pet.

filed (2008), Petitioner’s Appendix 14a.

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

cert. denied, 537 U.S. 825 (2002), emphasized the

necessarily abbreviated inquiry into the merits and

the tria] court’s reliance on a balancing of the equities

— weighing the harm to the Plaintiff and to the De-

fendant when granting or not granting the injunction.

282 F.3d 268 at 276. The Memorandum Order of

August 29, 2006 denying Garland’s Motion to Amend

the Judgment was very clear that the original Order

granting the temporary injunction was an unequivo-

cal declaration that the Ordinance violated the

Fourth Amendment to the United States Constitution

and there were no equitable consideraticns.

The court certainly could have used much

stronger language, and, in retrospect, it

should have, but the court used euphemistic

language in part of its ruling to “let the City

down easy.” If this was a mistake, the court

assures the City it will not happen again.

Moreover, the language to which the court

refers cannot be read in a vacuum. Other

4

parts of the court’s opinion unequivocally put

the City on notice that the Ordinance was

constitutionally infirm.

Dearmore v. Garland, 237 F.R.D. 573 at 577 (N.D.

Tex. 2006) affm’d 519 F.3d 517 (5th Cir. 2008), cert.

pet. filed (2008), Petitioner’s Appendix 32a.

At the time the Court entered the preliminary

injunction, the Court had made a final determination

on the constitutionality of the ordinance. There were

no fact issues left to be decided at that time. The facts

were undisputed, and the Court finally decided the

legal issue in the case — it just so happens that the

procedural vehicle presented to the Court at that

time was a Motion for a Preliminary Injunction.

However, the Memorandum Opinion and Order and

Preliminary Injunction left no doubt as to the resolu-

tion of the legal issues in Dearmore’s favor. Dearmore,

237 F.R.D. at 578-579. Petitioner’s Appendix at 35a-

36a. The district court decided the case based on the

face of Garland’s ordinance. There were no additional

facts that required adjudication by the district court.

The preliminary injunction forecasted Plaintiff’s

success on the merits. It was not based on a balancing

of the equities, or to maintain the status quo. It was

clear when the preliminary injunction was granted

that the district court believed that the ordinance was

unconstitutional on its face.

5

Faced with this record, a record that the Fourth

Circuit has never faced, it is readily apparent that

there is no federal circuit court split on this issue ripe

for consideration by this Court. Certainly the Eighth

Circuit has indicated that many preliminary injunc-

tions are sufficiently akin to final relief on the merits

to confer prevailing party status Northern Cheyenne

Tribe v. Jackson, 433 F.3d 1083 (8th Cir. 2006) at

1086.' The Ninth Circuit granted prevailing party

status in a case where the injunction sought by

Plaintiff granted him all the relief he would have

obtained after trial by a final judgment on the merits.

Watson v. County of Riverside, 300 F.3d 1092, 1096

(9th Cir. 2002), cert. denied, 538 U.S. 923 (2003). The

District of Columbia Circuit granted prevailing party

status where the Plaintiff showed a change in the

legal relationship, the judgment was rendered in the

Plaintiff’s favor and there was some judicial relief as

opposed to merely a judicial pronouncement. Select

Milk Producers, Inc. v. Johanns, 400 F.3d 939 (D.C.

Cir. 2005). The Eleventh Circuit granted prevailing

party status to a church group that challenged an

ordinance requiring solicitation permits, obtained a

* Advantage Media v. Hopkins, 511 F.3d 833 (8th Cir. 2008),

cert. denied (2008), was an instance where the preliminary

injunction granted did not result in a material alteration of the

legal relationship of the parties, because even under the

amended ordinance Advantage Media's signs were not approved.

The preliminary injunction issued by Judge Lindsey did result

in a material alteration of the legal relationship of the parties by

declaring a provision of the Ordinance that affected Dearmore

unconstitutional.

6

preliminary injunction and then the city repealed the

ordinance, mooting the case. Taylor v. Ft. Lauderdale,

810 F.2d 1551 (11th Cir. 1987).

The Second Circuit has also found preliminary

injunctions to be sufficient if the decision was on the

merits. Haley v. Patacki, 106 F.3d 478 (2nd Cir. 1997).

The Second Circuit like the D.C. Circuit, Eighth

Circuit, Ninth Circuit and Eleventh Circuit said that

it does not require an automatic denial of attorney’s

fees when a party receives a preliminary injunction

but never obtains a final decision. The court must

look to an analysis of whether the party’s relief,

whether by injunction or stay, resulted from a deter-

mination on the merits. This is the test in Buckhan-

non and Texas State Teachers Retirement System.

Some preliminary injunctions will have the effect of

changing the legal relationship of the parties. Some

will not. The Fifth Circuit’s decision that a Plaintiff

qualifies as a prevailing party when a preliminary

injunction is granted based upon an unambiguous

indication of inevitable success on the merits of the

Plaintiff’s claims, as opposed to a mere balancing of

the equities in favor of the Plaintiff, and which causes

the Defendant to moot the action thereby precluding

the Plaintiff from obtaining final relief on the merits

does not conflict with the other federal circuit court

decisions.

7

B. No Resurrection of the Catalysis Theory

Garland makes much of the argument that this is

merely a resurrection of the catalysis theory of pre-

vailing party status, but does not provide any conflict

among the circuits on the discrete issues in this case

that are ripe for review.

The Fifth Circuit and the other circuits that have

allowed prevailing party status after the granting of a

preliminary injunction have not resurrected the

“catalysis theory.” Buckhannon held that the Defen-

dant merely changing its conduct after the filing of a

lawsuit was not enough to establish that the plaintiff

is a prevailing party. Buckhannon clearly stated that

a party cannot be deemed to have prevailed unless

there has been an enforceable alteration of the legal

relationship of the parties. The district court in this

case issued a preliminary injunction that was a

material, and indeed intended by the Court to be a

permanent, alteration of the legal relationship of the

parties because it clearly and unambiguously held the

Garland ordinance unconstitutional. The preliminary

injunction altered the legal relationship of the par-

ties. After the preliminary injunction was issued,

Garland was prohibited from enforcing the unconsti-

tutional provisions of the ordinance. Only after the

court ruled did Garland amend the ordinance. As

* Dearmore, 237 F.R.D. at 577. Petitioner’s Appendix at 3la-

32a.

8

stated by Judge Lindsey in his August 29, 2006

Order, “ ... the City did not voluntarily change or

amend the Ordinance; it changed the Ordinance

because of the court’s Memorandum Opinion and

Order and Preliminary Injunction.” 237 F.R.D. at 577.

Petitioner’s Appendix at 3la. As the Fifth Circuit

stated in affirming Judge Lindsey,

We note that this is not a case in which the

City voluntarily changed its position before

judicial action was taken. Indeed if the City

had mooted the case through amending the

Ordinance before the court granted the pre-

liminary injunction, then Dearmore could

not qualify as a prevailing party under Buck-

hannon because it would have improperly

invoked the “catalysis theory.” The City,

however, mooted the case after and in direct

response to the district court’s preliminary

injunction order. There is an obvious direct

causal link between the District Court’s is-

suance of the preliminary injunction and the .

City’s subsequent amendment of the ordi-

nance to moot the case.

519 F.3d at 525. Petitioner’s Appendix at 17a. The

Fifth Circuit ruling will have no effect on a Defendant

voluntarily changing its conduct before a court makes

a definitive ruling on the Defendant’s conduct. This is

not a catalysis case.

9

Hil.

RESPONSE TO PUBLIC POLICY

ARGUMENT BY AMICI CURIAE

The Amici Curiae provide a public policy ration-

ale that local governments, whose budgets are

strained, will be subject to fees in cases where the

merits of the case have not been assessed and would

burden local governments.

However, as found by the Fifth Circuit, this was

a merits based decision. Garland could have avoided

attorney’s fees altogether in this case if Garland had

amended the ordinance prior to the district court’s

ruling. The Petitioner and Amici Curiae want to have

a situation of heads we win, tails‘ you lose. If they

oppose the preliminary injunction and the court does

not grant it, they win. If they oppose the preliminary

injunction and lose, they still do not have to pay

attorney’s fees because they can then change their

conduct and moot the case. This is clearly not what

Congress intended by passing this fee-shifting statute

and is an abuse of scarce judicial resources.

Realistically, in civil rights litigation enforcing

constitutional and statutory rights where the plaintiff

does not seek damages but only declaratory relief, the

entry of a preliminary injunction or even a temporary

restraining order in the Plaintiff’s favor may effec-

tively resolve the dispute. As in this case, a Defen-

dant who loses an injunction may decide that

additional litigation is futile and cease the challenged

conduct rather than litigate to a final judgment. This

10

is not a catalysis theory case like Buckhannon, since

the Plaintiff obtained a judicially enforceable altera-

tion of the legal rights of the parties that has a judi-

cial imprimatur and can be enforced against the

defendant by a contempt proceeding. Buckhannon,

532 U.S. at 604. Select Milk Producers, Taylor, and

Haley are all examples of where the temporary in-

junction provided all the relief the Plaintiff sought.

If the Court rules that preliminary injunctions

such as the one in this case do not convey prevailing

party status, there will be fewer civil rights cases

brought seeking only declaratory relief because civil

rights attorneys will not take the cases if there is no

possibility of obtaining attorney’s fees. A ruling as

requested by Garland wiil inevitably require diligent

civil rights attorneys to always seek damages in order

to avoid a change of conduct by the defendant and

subsequent mootness of the case. In such situations,

judicial economy will not be enhanced.

Congress passed 42 U.S.C. § 1988 to privatize

civil rights enforcement and conserve judicial re-

sources. As noted in the Senate report concerning the

passage of 42 U.S.C. § 1988,

All of these civil rights laws depend heavily

upon private enforcement, and fee awards

have proved an essential remedy if private

citizens are to have a meaningful opportu-

nity to vindicate the important congressional

policies which these laws contain. In many

cases arising under our civil rights laws, the

citizen who must sue to enforce the law has

11

little or no money with which to hire a law-

yer. 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

Senate Report No. 94-1011 at 2. The Amici Curiae

position is a sub rosa attempt to gut 42 U.S.C. § 1988

and the clear public policy underlying the enactment

of the fee-shifting statute. Amici complain of fees, but

it was the City that decided to roll the dice regarding

a decision by the court. 'n this case, the City forced

the use of scarce judicial resources, forced the plain-

tiffs to prove their case, and asked the court to decide

the issue. The City cannot now be heard to complain

that it should not suffer the consequences of its choice

to litigate. All cities have the opportunity to correct

their conduct prior to a judicial pronouncement. The

court should not assist the City in playing a game of

heads we win and tails you lose.

IV.

CONCLUSION

The Fifth Circuit decision does not conflict with

the Fourth Circuit decision in a way that is ripe for

review. The Fifth Circuit and the district court lim-

ited their decisions to the facts of the case before it.

The Plaintiff must win a preliminary injunction

based upon an unambiguous indication of probable

success on the merits of the Plaintiff’s claims as

12

opposed to a mere balancing of the equities in favor of

the Plaintiff that causes the Defendant to moot the

action which prevents the Plaintiff from obtaining

final relief on the merits. This follows Buckhannon in

finding prevailing party status when there is mate-

rial alteration of the legal relationship between the

parties. The Court should deny the Petition for Cer-

tiorar?.

Respectfully submitted,

PRAGER & MILLER, P.C.

ROBERT A. MILLER

14911 Quorum Drive, Suite 2Z0

Dallas, Texas 75254

(972) 661-9211

Wo. CHARLES BUNDREN

Wm. CHARLES BUNDREN

& ASSOCIATES

2591 Dallas Parkway, Suite 300

Frisco, Texas 75034

(972) 624-5338

KELLY J. SHACKELFORD

HIRAM SASSER

ROGER L. BYRON

LIBERTY LEGAL INSTITUTE

903 E. 18th Street, Suite 230

Plano, Texas 75074

(972) 423-3131

Counsel for Respondents