Civil Rights Attorney Fees

First Amendment + Litigation + Practice
July 1, 2013
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Higher Taste, Inc., is a non-profit religious organization that, among other things, advocates for the humane treatment of animals. For years it sold t-shirts near the Tacoma Zoo from a table on the main walkway between the parking lot and the zoo’s entrance. Over 500,000 annual visitors would have an opportunity to see the shirts for sale.

In 2005, the Metropolitan Park District of Tacoma adopted Resolution 40-05, which banned the sale of merchandise near the zoo’s entrance, along walkways leading to the zoo’s entrance, and in the zoo’s parking lot. In March 2010, the Park District finally stopped Higher Taste from selling its t-shirts.

Higher Taste sued the Park District under 42 U.S.C. §1983 for a violation of its rights under the First and Fourteenth Amendments. It sought an injunction against enforcement of the resolution. The district court granted Higher Taste’s motion for a preliminary injunction based on a likelihood of success on the merits. The court thus enjoined enforcement of Resolution 40-05 pending a final outcome.

Discovery was suspended while the parties pursued a settlement. After lengthy negotiations, the Park District agreed to enact new regulations again allowing organizations like Higher Taste to sell merchandise in various locales near the zoo. All parties executed a settlement agreement with the new regulations attached. The case was dismissed with prejudice at the urging of Higher Taste. The district court did not approve the settlement agreement or retain jurisdiction. Attorneys’ fees were not covered by it.

Higher Taste moved for attorney’s fees under 42 U.S.C. §1988(b), which permits fees to prevailing parties in certain civil rights cases, including §1983 suits. The district court denied the fee award, holding that neither the preliminary injunction nor the settlement made Higher Taste a prevailing party. The Court of Appeals for the Ninth Circuit took the issue up on review.

The court noted that a plaintiff prevails for §1988 purposes when relief on the merits materially alters the legal relationship between the parties, and that relief on the merits occurs when such material alteration is accompanied by judicial imprimatur of the change in relations. Thus, there were two questions to answer: was the district court’s preliminary injunction ruling sufficiently on the merits to make it a judicial imprimatur; and was the injunction sufficiently enduring to satisfy the material alteration requirement?

On the first question, because it was based on a likelihood of success on the merits finding, and was therefore not hasty and abbreviated, the district court’s preliminary injunction ruling was sufficiently on the merits to carry judicial imprimatur.

On the second question, a material alteration exists where the plaintiff can then force a defendant to do something it otherwise would not have had to do. The preliminary injunction in this case amounted to that, but it was not permanent. There are, however, circumstances in which a preliminary injunction results in the change necessary to warrant an award of fees even when a final judgment on the merits is not forthcoming or possible. For example, when a plaintiff wins a preliminary injunction but the case is mooted before final judgment, e.g. by passage of time, the plaintiff is still considered the prevailing party and is eligible for the §1988 fee award. Mootness in such circumstances would make reversing, dissolving or undoing the preliminary outcome impossible. Circuit courts have applied the same reasoning where a plaintiff wins a preliminary injunction but the case is mooted by the defendant’s own actions, such as by repealing an unconstitutional statute. Again, mooting the case after a preliminary injunction assures that outcome will not be undone.

The court reasoned that, like mootness, the settlement here transformed temporary relief into a lasting relationship between the parties. The court found no merit to the Park District’s argument in response, which was that it reserved the right to “change, modify or revoke” the new regulations. The problem for the Park District was that its settlement agreement with Higher Taste was independent of the regulations and could not be subjected to revocation without also being illusory. Firm commitment from the Park District was the consideration Higher Taste received for dismissal of its suit.

The Park District argued that the settlement agreement did not carry judicial imprimatur because the court did not endorse or adopt it, or retain jurisdiction to enforce it like a consent agreement. But Higher Taste did not rely on the settlement agreement to satisfy the judicial imprimatur requirement. It pointed to the preliminary injunction for that. Rather, it relied on the settlement agreement only to prove that its preliminary injunctive relief was sufficiently enduring to satisfy the material alteration requirement.

The Ninth Circuit panel remanded the matter to the district court to determine first whether special circumstances existed to render an attorneys’ fee award unjust, and second, if such circumstances did not exist, to calculate the fee that Higher Taste was entitled to recover.

In sum, in §1983 civil rights suits, a preliminary injunction plus settlement can lead to an award of §1988 attorneys’ fees. Read the full text of Higher Taste, Inc., v. City of Tacoma, et al.

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