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Supreme Court Decision Update - Sole v. Wyner

peace_symbol_6_l.gifIn Sole v. Wyner (PDF of the opinion), Justice Ginsburg delivers a unanimous opinion which says that you are not entitled to attorneys’ fees under federal law if you obtain a preliminary injunction in a civil rights case but eventually lose the full case on the merits. This stems from some antiwar protesting from a few years back. In January 2003, T.A. Wyner told Florida’s Department of Environment Protection that she had an antiwar art protest planned for the following Valentine’s Day, a protest which would involve nude people making a great big peace sign on a beach. In early February, she was told that this would only be lawful if participants wore bathing suits according to state law. She filed a federal lawsuit two days before Valentine’s Day, seeking protection of her First Amendment rights and asking for injunctive relief to ensure that her display would not be interfered with. On February 13, the District Court granted a preliminary injunction, allowing the display to take place the next day. However, the preliminary injunction did allow the state department to put up a screen, to allow those uninterested in the display to avoid seeing the nudity, and the department used such a screen.

Wyner then continued with the case, seeking a permanent injunction to ensure no future interference with her stagings. The court ultimately ruled against Wyner, in large part because she hadn’t actually kept her display behind the screen during the Valentine’s Day staging. Thus, the state law requiring bathing suits was necessary “to protect the experiences of the visiting public.” However, because she had obtained a preliminary injunction, the court determined that Wyner was the “prevailing party,” despite losing the main case, and ruled that she was entitled to attorneys fees for that preliminary injunction portion of the litigation. An appeal went up to the Eleventh Circuit, which also ruled that Wyner was entitled to those fees. The Court said she wouldn’t be entitled to them if the preliminary injunction had been based on a mistake of law. But that was not the case - rather, it was new facts following the injunction which caused her to lose the main case on the merits (those new facts being her failure to stay behind the screen).

In her unanimous opinion, Justice Ginsburg reverses the Eleventh. When looking at who is a “prevailing party,” the inquiry should focus on whether the plaintiff got at least some of the relief they wanted. The State argued that Wyner didn’t get such relief, because the law at issue remains valid and enforceable following the summary judgment. Wyner only got her preliminary injunction because of a very hurried process, with no discovery or adequate review of related witnesses and documents. While Wyner says she got exactly what she wanted, permission to do her protest without interference, Ginsburg says she didn’t ultimately get what she really wanted because the State can still “interfere” with her activities. In other words, the relief of her preliminary injunction was only a temporary success and the claim she raised during the preliminary injunction phase of the case is the exact same claim which the court ultimately rejected. So “her initial victory was ephemeral,” and even though she won the battle, she lost the war.

Ginsburg ends by noting that this ruling has no necessary application to the situation where, “in the absence of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may sometimes warrant an award of counsel fees.”