S.Ct. denies fees for preliminary injunction

In a unanimous decision written by Justice Ginsburg, the Supreme Court held that a plaintiff who obtained a preliminary injunction in an action under 42 U.S.C. § 1983 but lost on the merits was not entitled to fees for the first phase of the litigation. The opinion focuses on the lack of change in the legal relationship between the plaintiff and the state. The opinion leaves open the possibility that if there was no decision on the merits, it might be possible to obtain fees for the legal work performed to acquire the preliminary injunction. Sole v. Wyner, No. 06-531 (June 4, 2007).

T. A. Wyner claimed that the state violated her First Amendment rights when it denied her request for a display of nude individuals assembled into a peace sign at a state beach park.  The state sought to enforce its Bathing Suit Rule which requires patrons at state parks to wear bathing suits.  Seeking a preliminary injunction to stop the state from interfering with the display, the plaintiff agreed to perform the nude display behind a screen.  The state did not object to the nude individuals being behind the screen.  The court then issued a preliminary injunction, based on the understanding that the display would be covered by a screen.  However, shielded by a preliminary injunction, the participants performed the display in front of the screen, then went swimming in the nude.  At the merits stage of the case, the court denied plaintiff’s motion for summary judgment and granted the state’s motion for summary final judgment.  Nevertheless, the district court, later affirmed by the Eleventh Circuit, awarded attorney’s fees for the work performed to obtain the preliminary injunction. 

 

The Court began by noting that 42 U.S.C. § 1988 authorizes a court to award fees to a plaintiff who prevails in an action brought under 42 U.S.C. § 1983.  After reviewing the facts of the case, the Court stated: “Prevailing party status, we hold, does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.”  The court found that the preliminary injunction had a “tentative character, in view of the continuation of the litigation to definitively resolve the controversy.”  The court explained that the final adjudication superseded the preliminary ruling.  The court concluded: “At the end of the fray, Florida’s Bathing Suit Rule remained intact, and Wyner had gained no enduring change in the legal relationship between herself and the state officials she sued” (quotation omitted). 

 

The decision explicitly notes that it does not decide the “broader” issue of whether fees might be warranted “in the absence of a final decision on the merits of a claim for permanent injunctive relief.”