Supreme Court, attorney fee-shifting case

Today, the U.S. Supreme Court granted certiorari in an attorney fee-shifting case on a First Amendment claim, Struhs [Secretary, Florida Dept. of Environmental Protection] v. Wyner, No. 06-531.

This is not an employment case, but it addresses the question of whether a preliminary injunction, by itself, is sufficient to allow the prevailing party to obtain attorney's fees and costs, even if that party then failed to get a permanent injunction after a hearing on the merits.

Here, the Eleventh Circuit, Wyner v. Struhs, 179 Fed. Appx. 566 (11th Cir. 2006) affirmed the ruling of the U.S. District Court for the Southern District of Florida, 254 F. Supp. 2d 1297 (S.D. Fla. 2003), that the plaintiffs could get attorneys' fees and costs (just under $26,000), based on their obtaining a preliminary injunction, even though they did not succeed at getting a permanent injunction. The Florida state government argued that the Eleventh Circuit's ruling was in conflict with the Fourth Circuit's decision in Smyth v. Rivero, 282 F.2d 268 (4th Cir. 2002), which held that a preliminary injunction alone does not create prevailing party status.

That's the legal issue. Here's the factual background. Plaintiffs Wyner and Simon, as part of a group of nudists, wanted to have a public demonstration at MacArthur State Park (which is somewhere near Palm Beach), in which several or many nudists would form a peace symbol on the beach. They brought a First Amendment challenge to a Florida state regulation that required a minimum amount of clothing on the beach. Evidently this regulation must be somewhat skimpy in its coverage, given Miami beach attire, but it was not skimpy enough for the plaintiffs...

Alan R. Kabat

The Bernabei Law Firm, PLLC

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email: Kabat@BernabeiPLLC.com