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WASHINGTON � A recent U.S. Supreme Court decision barring attorney fees for those who win preliminary injunctions if they later lose on the merits of their cases raises an already high hurdle for fee awards in civil rights litigation. Justice Ruth Bader Ginsburg, writing for a unanimous high court on June 4, held that a plaintiff “who achieves a transient victory at the threshold of an action can gain no award” under a federal civil rights fee-shifting statute if, at the end of the litigation, “her initial success is undone and she leaves the courthouse empty handed.” Sole v. Wyner, No. 06-531. The case began in 2003 when a group of anti-war protesters planned to form a peace sign with their nude bodies on a South Florida beach. The protest took place after they won an injunction preventing law enforcement officials from interfering. The lower federal courts awarded attorney fees for the injunction even though the protesters ultimately lost their challenge to Florida’s anti-nudity law. [NLJ, April 16.] The high court’s decision was narrower than it might have been. The justices left open the question of whether fees could be awarded if a case becomes moot after the preliminary injunction is issued because the main objective of the case was achieved, or if the defendant capitulates after an injunction is issued and no final decision is litigated. Raising the bar The ruling raises the already significant bar for civil rights fee awards imposed by the justices in their 2001 decision in Buckhannon Board & Care Home Inc. v. West Virginia Dept. of Health, 532 U.S. 598, said Professor Catherine Albiston of the University of California, Berkeley School of Law. The Buckhannon court rejected the widely accepted “catalyst theory” behind fee awards. The court there said plaintiffs were not “prevailing parties” entitled to attorney fees if they achieved their desired result because their lawsuit was a catalyst for voluntary change in the defendant’s conduct. Instead, the court held, plaintiffs must obtain a “material alteration of the legal relationship of the parties,” such as a favorable judgment on the merits or a consent decree. In the nude-protest case, Ginsburg wrote, there was no material alteration because “at the end of the fray, Florida’s Bathing Suit Rule remained intact,” and there was no enduring change in the legal relationship between the protestors and the state officials who were sued. In a recent empirical study of Buckhannon’s impact, Albiston and Northwestern University Professor Laura Beth Nielsen collected data from more than 200 public interest organizations involved in civil rights litigation. The data showed the ruling encourages “strategic capitulation” by defendants seeking to avoid fees, makes settlement more difficult and discourages attorneys from representing civil rights plaintiffs. “We argue that these far-reaching effects herald a shift away from private rights enforcement toward more government power both to resist rights claims and to control the meaning of civil rights,” Albiston and her co-author conclude. The Wyner decision does much to allay the concerns of state and local governments, which often are defendants in preliminary injunction proceedings, and they would have faced considerable financial constraints if fees were allowed, said Virginia Solicitor General William E. Thro, who filed an amicus for 24 states and Puerto Rico supporting Florida officials. “The court seems to be saying, in general, this is a four-quarter game,” Thro said. “The fact you are ahead at [the] end of [the] first quarter doesn’t entitle you to fees if you ultimately lose the game.” The decision was “extremely narrow,” emphasized the protesters’ counsel, Seth M. Galanter, of counsel to the Washington office of Morrison & Foerster. By leaving open the question of fee awards for preliminary injunctions when a case becomes moot, he added, the ruling tells federal courts that award fees in such situations � the vast majority � “to continue doing what they’ve been doing.” But there is a circuit conflict on that question, noted the winning high court counsel, Virginia Seitz, a partner in the Washington office of Sidley Austin, adding, “so it seems likely that the court will have to resolve that broad question at some point in the future.”

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