Today’s Decision in Sole v. Wyner

The following opinion recap is by Marcus Smith, a summer associate at Akin Gump and a student at Yale Law School.

The Supreme Court ruled today in a unanimous decision that a party who wins a preliminary injunction but loses at summary judgment cannot be a “prevailing party” and awarded attorney’s fees under 42 U.S.C. 1988.

In January 2003, respondent T.A. Wyner informed petitioner Terrence Coullitte, who served as the manager of the MacArthur Beach State Park in Palm Beach County, Florida, that on February 14 she intended to engage in a demonstration that would involve nude bodies arranged in the shape of a peace symbol. After Coullitte responded that the protest would only be allowed if it did not involve nudity, Wyner and respondent George Simon filed a complaint against Coullitte and other state officials (also petitioners here) alleging that the prohibition of nudity violated the First and Fourteenth Amendments. They also sought a preliminary injunction to prevent state interference in the planned Valentine’s Day demonstration.

The district court granted the preliminary injunction, and the nude demonstration occurred without state interference. When it later turned to the merits of respondents’ complaint, however, the district court granted petitioners’ motion for summary judgment, holding that a complete ban on nudity was the least restrictive means to achieve the State’s important interests. The district court then further held that because Wyner and Simon had succeeded in obtaining the preliminary injunction, they were “prevailing parties” and therefore entitled to the attorney’s fees incurred in connection with the injunction. The Eleventh Circuit affirmed the award. (For a more detailed account of the facts and procedural history, see Achyut Phadke’s “Argument Preview” here)

Writing for the Court, Justice Ginsburg’s opinion emphasized that prevailing party status is only conferred when the result is a “material alteration of the legal relationship of the parties.” Because the state law that Wyner attacked remains valid and enforceable, the Court explains, no “enduring change” resulted from her suit, and prevailing party status is not warranted.

The Court rejected Wyner’s contention that the preliminary injunction constituted a victory on the merits. Emphasizing the “ephemeral” and “tentative” nature of the preliminary injunction, Justice Ginsburg held that in issuing a preliminary injunction, the court must assess the probability of success on the merits; a court does not make a ruling on the merits at the preliminary injunction stage. Here, the Court noted, the district court’s assessment was “necessarily hasty and abbreviated” because the preliminary injunction hearing was held only one day before the scheduled February 14 demonstration, no appellate review was possible because of the time limitations, and the preliminary injunction ultimately became moot.

The Court also rejected Wyner’s claim that the preliminary injunction was not undermined by final summary judgment for the defendant-petitioners. Wyner’s assertion that the order granting a preliminary injunction was an “as applied” ruling ignored the plain fact that the district court assumed the content neutrality of state officials’ conduct for the purposes of the order. And because the final judgment on the merits rejected the exact same claim that Wyner had advanced in her motion for a preliminary injunction, it therefore superseded the preliminary ruling.

The Court expressed no view on whether, “in the absence of a final decision on the merits of a claim for permanent injunctive relief,” winning a preliminary injunction warrants an award of attorney’s fees.