Bernabei & Wachtel Blog

“Role Player” Defeats Military Sub-Contractor’s Motion to Dismiss

“Role Player” Defeats Military Sub-Contractor’s Motion to Dismiss

In a decision issued by United States District Court Judge Patricia Minaldi on February 2, 2007, Plaintiff Susan Safi-Rafiq, represented by the Bernabei Law Firm, defeated on all material grounds the motion to dismiss filed by Defendant SMI Global Mission Support, Inc (“SMIGMS”). SMIGMS has moved to dismiss Ms. Safi-Rafiq’s case on multiple grounds including timeliness, absence of an adverse action, failure to allege acts sufficiently severe and pervasive to make out a hostile work environment claim, and failure to state a claim of race discrimination. 

On August 8, 2006, the Bernabei Law Firm, along with the Lawyers’ Committee for Civil Rights Under Law, and the law firm of Kirkland & Ellis, filed a civil action in the U.S. District Court for the Western District of Louisiana, Lake Charles Division, against a Department of Defense contractor (CUBIC Corp.) and its subcontractor (SMI).  The complaint alleges that the Defendants subjected Ms. Safi-Rafiq, and other women similarly situated to a dangerous, humiliating and hostile work environment because of their race, sex and national origin. 

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

1775 T Street, N.W.

Washington, D.C. 20009-7124

tel. (202) 745-1942 (ext. 242)

fax (202) 745-2627

email: Kabat@BernabeiPLLC.com