Alaska Employment Law

In today’s opinion in Sole  v. Wyner, 2007 WL  1582904, the U S Supreme Court addressed this issue:

Does a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, qualify as a ‘prevailing party’ within the compass of [42 USC] § 1988(b)?

The unanimous Court, per Justice Ginsburg, held that

a final decision on the merits denying permanent injunctive relief ordinarily determines who prevails in the action for purposes of § 1988(b).  A plaintiff who achieves a transient victory at the threshold of an action can gain no award under that fee-shifting provision if, at the end of the litigation, her initial success is undone and she leaves the courthouse emptyhanded.

Wyner, an anti-war artist, wanted to create a Valentine’s Day display of nude individuals assembled into a peace sign.  She sought injunctive relief against a state rule that set certain dress standards at beaches.  She won a preliminary injunction but lost her motion for a permanent injunction against the rule.  The trial court, nevertheless, awarded her fees for obtaining the preliminary injunction, and the 11th Circuit affirmed.  The Supreme Court has now reversed the fee award. 

The Court noted that the holding might have been different if the litigation had ended with the grant of the preliminary injunction.