Sole v. Wyner

PETITIONER:Michael W. Sole, Secretary, Florida Department of Environmental Protection, et al.
RESPONDENT:T.A. Wyner et al.
LOCATION:United States Court of Appeals for the Ninth Circuit

DOCKET NO.: 06-531
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit

CITATION: 551 US 74 (2007)
GRANTED: Jan 12, 2007
ARGUED: Apr 17, 2007
DECIDED: Jun 04, 2007

Patricia A. Millett –
Seth M. Galanter – on behalf of Respondents
Virginia A. Seitz

Facts of the case

Florida state park officials prohibited T.A. Wyner and George Simon from forming a peace symbol from nude individuals at a public beach. Wyner and Simon petitioned a district court, which issued a preliminary injunction barring the officials’ interference and awarded Wyner and Simon their attorney fees in accordance with 42 U.S.C. Section 1988. Later, the district court reversed the injunction because state laws prohibited nudity at the beach. The officials argued that Wyner and Simon did not qualify as a “prevailing party,” and therefore should not have their attorney fees refunded.

The U.S. Court of Appeals for the Eleventh Circuit ruled that Wyner and Simon were the “prevailing party” because the district court had decided to issue the preliminary injunction based on merits of the case. The park officials responded that the preliminary injunction was based on a “mistake of the law,” because the case was dismissed upon further review. The U.S. Court of Appeals for the Fourth Circuit had previously ruled that a preliminary injunction is not a ruling based on the merits, and therefore does not determine the “prevailing party.”


Can a preliminary injunction that is later reversed be the basis for awarding a party the status of the “prevailing party” and therefore entitling that party to attorney’s fees?

Media for Sole v. Wyner

Audio Transcription for Oral Argument – April 17, 2007 in Sole v. Wyner

Audio Transcription for Opinion Announcement – June 04, 2007 in Sole v. Wyner

John G. Roberts, Jr.:

Justice Ginsburg has the opinion this morning in case 06-531, Sole versus Wyner.

Ruth Bader Ginsburg:

For private action brought under 42 U.S.C Section 1983 and other Civil Rights Laws congress established an exception to the American Rule that the prevailing litigant is ordinarily not entitled to collect counsel fees from the loser that exception clarified in 42 USC 1988(b) authorizes federal district court in their discretion to allow the prevailing party a reasonable attorney’s fee as part of the cost.

This case presents a single question.

There is a plaintiff who gains a preliminary injunction after an abbreviated hearing but is denied a permanent injunction after a dispositive ruling on the merits in favor of the defendant qualify as a prevailing party within the compass of Section 1988(b).

The District Court for the Southern District of Florida affirmed by the Court of Appeals for the Eleventh Circuit held that she does.

We disagree and hold that the party who ultimately loses on the merit does not rank as a prevailing party based on the preliminary ruling that turns out to lack staying power.

Plaintiff respondant Wyner notified the Florida Department of Environmental Protection in Mid January 2003 of her intention to create on Valentine’s Day within Macarthur State Beach Park an antiwar artwork by arranging nude individuals to form a peace sign.

Responding on February 6, The Florida Department informed Wyner that her display would be lawful only if the participants complied with Florida’s “Bathing Suit Rule” which requires patrons of state parks to wear, at a minimum, a thong and, if female, a bikini top.

To safeguard the peace sign display and future nude expressive activities against police interference, Wyner commence suit two days before the planned event.

Invoking the First Amendments Protection of Expressive Conduct, Wyner requested injunctive relief first and immediately a preliminary injunction against interference that the peace sign display and second a permanent injunction barring interference with the similar activities in the future.

She attached to her complaint a 1995 settlement agreement in which the Florida Department committed Wyner to stage a play with nude performers at Macarthur Beach the next year in 1996.

Provided the area was screened off to shield beachgoers from the nudity.

The District Court granted Wyner a preliminary injunction on Valentine’s eve saying the choice was not either or a curtain or a screen behind which the peace symbol would be formed could satisfy the interest of both Florida and the nude protesters.

The display that took place the next day ,however, was set up outside the barrier and once disassembled from the peace symbol formation participants in the event went in to the water in the nude.

The preliminary injunction was good for one day only so Wyner pursued her demand for a permanent injunction.

She informed the court that she intended to put on another Valentine’s Day production at MacArthur Beach in 2004 again involving nudity.

After discovery, both sides moved for summary judgment, at the hearing on the cross motions Wyner’s counsel acknowledged that the participants in the 2003, Valentine’s Day display had setup in front of the barrier.

The court denied Wyner’s motion and entered final judgment in favor of the Florida Officials.

The deliberate failure of Wyner and her “participants” to stay behind the screen during the 2003 display the court concluded demonstrated that the Bathing Suit Rule was needed to protect the beach going public.

While Wyner ultimately lost on the merits the court added she had obtained a preliminary injunction and was therefore a prevailing party to that extent.

Observing that the preliminary injunction could not be reconsidered because it has expired, the District Court awarded Wyner counsel fees covering the first phase of the litigation and the award which upheld on appeal.

We see the matter differently, a preliminary injunction holds no sway once follow consideration yields rejection of the legal or factual basis for the preliminary order.

Here at the end of the fray, Florida prevails in the suit, the state Bathing Suit Rule remained intact, Wyner had gained no enduring change in the legal relationship between herself and the state defendants, so she does not qualify for appeal award.

Questionnaire Notes, We take no position in this case on the extent to which the First Amendment protects artworks that involve nudity and we express no view on whether in the absence of the final decision on the merits for a claim for permanent injunctive relief.

Success in gaining a preliminary injunction may sometimes warrant an award of counsel fees.

Our decision hones in on the sole question presented we decide simply and only that a plaintiff who receives a transient victory at the threshold of an action can gain no award under 1988(b) if at the end of the litigation her initial success is undone and she leaves the court house empty handed.

The court’s opinion is unanimous.