Argument Preview: Sole v. Wyner on 4/17

The following argument preview is by Achyut Phadke, a student in the Stanford Supreme Court Litigation Clinic.

Tomorrow, in Sole v. Wyner (No. 06-531), the Court will decide whether a plaintiff who has obtained a preliminary injunction but failed to win judgment on the merits, a court-enforced consent decree, or a permanent injunction is a “prevailing party” under 42 U.S.C. § 1988(b). Status as a “prevailing party” is important because only prevailing parties can be awarded attorney’s fees in litigation pursuant to 42 U.S.C. § 1983 and other related statutes.

Virginia A. Seitz of the Washington, D.C. office of Sidley Austin will argue on behalf of petitioners (who are Florida state officials sued in their official capacity). Seth M. Galanter of the Washington, D.C. office of Morrison & Foerster will argue for respondents T.A. Wyner and George Simon. Assistant to the Solicitor General Patricia Millett will argue on behalf of the United States as an amicus curiae in support of petitioners. The parties’ briefs are available here, and the brief of the US is here.

Respondent Wyner planned and organized a performance of “a temporary art installation” of a peace symbol “comprised of nude bodies” to be performed on a beach in a Florida state park on February 14, 2003. Park officials denied permission to perform the nude peace symbol, citing administrative rules that prohibited nudity in state parks and allowed state park officials to place reasonable time, place, and manner restrictions on expressive activity.

In response to the denial, Wyner and Simon filed this lawsuit in federal district court, seeking temporary relief that would prohibit park officials from interfering with or arresting the February 14 nude peace symbol performers. They also submitted facial and as-applied First Amendment challenges to the constitutionality of the administrative rules on which park officials relied in denying permission. The district court granted the preliminary injunction, holding that the state’s goals could be achieved using means that were less restrictive than a complete ban on nude performance: for example, rather than banning the nude demonstration, the state could require the performers to erect a cloth screen that shielded unwary beachgoers from the nude peace symbol. However, the court subsequently awarded summary judgment to the defendants on the facial challenge, finding (inter alia) that no less restrictive means existed because the nude performers would not remain behind the screen. With regard to attorney’s fees, the court ruled that Wyner and Simon were prevailing parties because they had obtained the preliminary injunction and awarded them fees pursuant to 42 U.S.C. § 1988(b).

The Eleventh Circuit held that the defendants’ challenge to the preliminary injunction was moot because it pertained to a finite event that had already occurred.
It then upheld the district court’s fee award. It reasoned that any preliminary injunction on the merits was sufficient to make Wyner and Simon a prevailing party; here, the preliminary injunction was on the merits because it decided an issue of substantive law—namely, whether the state officials could arrest persons participating in the nude peace symbol performance on February 14. The state filed its petition for certiorari on October 16, 2006 and cert. was granted on January 12, 2007.

At the Supreme Court, the state officials argue that a preliminary injunction is merely an interim ruling that does not, standing alone, confer prevailing party status. Rather, they assert, the Supreme Court’s decisions in Buckhannon Board & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources and Hewitt v. Helms require as a condition to a fee award under §1988(b) that a party receive a judgment on the merits, a judicially enforced consent decree, or some other material alteration in the legal relationship of the parties. Wyner and Simon counter that because a preliminary injunction can “award relief” and create a “material alteration of the legal relationship of the parties,” a party who obtains one can qualify for prevailing party status under Buckhannon, even if the injunction is enforced only for a brief period. In this case, they contend, the preliminary injunction was not (and could not have been) reversed by the denial of a permanent injunction, as such a reversal would have only occurred on immediate appeal from the preliminary injunction, which the state officials did not seek.

However, the state officials argue that the nature of the preliminary injunction inquiry prevents it from being a determination on the merits, as it requires the court to consider issues that do not go to the merits – such as whether the plaintiff will suffer irreparable injury if the injunction is denied – and ultimately to balance the hardships to the parties before ruling on the injunction. Furthermore, they argue, unlike a decision on the merits, a preliminary injunction “lacks preclusive consequences” (such as res judicata, collateral estoppel, and law of the case) that permanently affect the legal relationship between the parties. Finally, they point out that preliminary injunctions are a result of a “truncated procedure” that distinguishes them from permanent injunctions and prevents them from being an actual determination of the merits.

The demonstrators respond that a party who obtains a preliminary injunction can be a “prevailing party” notwithstanding the court’s consideration of other equitable factors in the preliminary injunction inquiry. The preliminary injunction award, they explain, is based in part on an assessment of the merits, and the consideration of other equitable factors does not distinguish a preliminary injunction hearing inquiry from a permanent injunction inquiry. Thus they argue that full adjudication of the merits is not required for an award of attorney’s fees under § 1988(b). They point to the Court’s holding in Maher v. Gagne, reiterated in Buckhannon, that a consent decree qualifies a plaintiff for prevailing party status even if it is entered “without an independent determination of the merits of the claims.” They assert that those two cases find that “nothing in the language” of § 1988 conditions fees on “a judicial determination that the plaintiff’s rights have been violated”; rather, a court-ordered change in the relationship suffices as a predicate for awarding fees. They add that because preliminary injunctions are enforceable through holdings in contempt of court and have continuing collateral effects, they present a sufficient alteration in the relationship between the parties to meet the requirements for prevailing party status

Petitioners also argue that both the legislative history and purpose of § 1988 militate in favor of denying prevailing party status to plaintiffs who obtain a preliminary injunction but ultimately fail to obtain relief on the merits. In enacting §1988, Congress’s purpose was to encourage meritorious suits; by contrast, plaintiffs such as Wyner and Simon who win preliminary relief but subsequently lose on the merits do not have a meritorious claim of the sort that Congress sought to encourage.

The demonstrators retort that Congress’s failure to require in § 1988(b) that a plaintiff prevail in a “final order” before receiving fees (a requirement present in several other contemporary fee-shifting statutes) strongly indicates that Congress did not incorporate a final order requirement in the statute and intended rather to encourage application of § 1983 against “temporary or sporadic” constitutional violations that, “by their nature, must be resolved in the form of a preliminary injunction to provide meaningful relief but which become moot before discovery and a full bench trial can be heard.”

Finally, even if a plaintiff could in some cases qualify as a prevailing party because the preliminary injunction was in fact based on the merits of the case, the state officials assert that Wyner and Simon nonetheless cannot qualify because the preliminary injunction at issue here was not merits-based: specifically, the factual predicate on which the injunction was based – the possibility of a less restrictive alternative to banning the nude performance, such as erecting the cloth screen – was ultimately rejected. In the alternative, they contend, the interim order cannot serve as the basis for “prevailing party” status because it was moot prior to final judgment.

Wyner and Simon respond that the decision to deny a permanent injunction did not reject on the merits the same claim that gave rise to the preliminary injunction. Rather, they argue, the permanent injunction was denied in response to a facial challenge to the state regulations, while the preliminary injunction was based on their challenge to the regulations as they applied to the February 14 demonstration. Similarly, they argue, the Eleventh Circuit’s determination that the appeal of the preliminary injunction was moot has no effect on prevailing party status, as it “does not alter the fact that the injunction altered the legal relationship between the parties when it was issued.”

In its brief, the United States first argues that because a party can “prevail” for purposes of § 1988 only if it wins final relief, the mere grant of a short-term emergency injunction based on a “prediction” of success on the merits does not turn the plaintiffs into prevailing parties. Furthermore, plaintiffs who want an injunction on the merits can, under Federal Rule of Civil Procedure 65(a)(2), seek to consolidate a trial on the merits with the preliminary injunction hearing. A single judicial pronouncement that permits plaintiffs to briefly engage in desired conduct is not a final resolution of some claims in the plaintiffs’ favor: “[f]undamental fairness precludes imposing fee liability on a fully vindicated defendant for a preliminary proceeding that, by its nature, denied the defendants an adequate opportunity to develop and present the controlling facts and law.”