Prevailing Party

The litigant who successfully brings or defends an action and, as a result, receives a favorable judgment or verdict.

Sole v. Wyner

In one of the more unusual cases before the U.S. Supreme Court in its 2006–2007 term, plaintiff nude artist-performers were deemed not entitled to "prevailing party" attorneys' fees under 42 USC §1983, even though they succeeded in getting a preliminary injunction in the matter before the court. After violating the terms of the preliminary injunction involving their "free expression" speech on a public beach, the plaintiffs in Sole v. Wyner No. 06-531, 551 U.S.____ (2007), later lost their First Amendment case on the merits. Therefore, they were not the "prevailing party" and were not entitled to attorney fees. The Supreme Court's decision reversed decisions by the lower courts.

Although the case on the merits involved First Amendment speech, the appeal before the Supreme Court was limited to that of defining and determining the "prevailing party." In most private (civil) litigation, each party generally pays its own attorney fees and costs. But, in furtherance of promoting fair and effective counsel in civil rights litigation, Congress provided for a fee-shifting remedy under 42 USC §1983, permitting the award of fees to the prevailing party. Actions brought under §1983 generally deal with allegations that a public official or entity violated private constitutional rights "under the color of law," i.e., as part of a state action.

In January 2003, plaintiff Toni Wyner notified the Florida Department of Environmental Protection of her intention to create, with friends, an anti-war protest in the form of nude individuals forming a peace symbol with their bodies. She intended to do this on the public beach at John D. MacArthur Beach State Park on February 14, 2003. Department officials notified Wyner by mail that her peace symbol would be lawful only if the participants complied with the beach's "Bathing Suit Rule," essentially prohibiting nudity.

Wyner then filed suit under 42 USC §1983 in the U.S. District Court for the Southern District of Florida, as a preemptive move to prevent any police interference with her nude display as she planned it. Wyner cited the First Amendment's protection of expressive speech and conduct as legal support for her position, alleging that the "bathing suit rule" violated her First Amendment rights to nude protests and was therefore unconstitutional. She also attached to her complaint a copy of a 1995 settlement with the same defendant in which she was permitted to stage a nude play at MacArthur Beach, with the condition that the stage area was screened off to spare beachgoers who were not interested in seeing her play or the nudity.

The district court found that by separating the nude display behind a curtain or screen from the rest of the beach, the interests of both the state and Wyner would be satisfied. It therefore granted Wyner a preliminary injunction which allowed the protest, under the condition that the "artwork" be shielded from other parts of the beach with a curtain or screen.

On the day of the event, Wyner and her friends ignored the screen barrier that was in place and conducted their nude peace symbol on the outside of the barrier, after which she and the participants romped on the beach and went swimming.

Wyner then went back to the district court seeking a permanent injunction against Florida's bathing suit rule, arguing that it violated the First Amendment. She also announced her intention to stage another nude protest at the beach. The case proceeded through the discov-ery process, after which her attorney acknowledged that she and her fellow-participants set up in front of, rather than behind, the barrier. Both parties filed motions for summary judgment.

The district court denied Wyner's motion for summary judgment and granted defendant state officials and departments theirs. The court found the bathing suit rule to be a reasonable restriction, to protect the experiences and choices of park and beach visitors. Notwithstanding, the court awarded Wyner statutory fees based on the preliminary injunction stage of the proceedings, reasoning that she had succeeded in getting the preliminary injunction and was therefore entitled to fees as the prevailing party. The Eleventh Circuit Court of Appeals affirmed, further reasoning that Wyner had prevailed because the preliminary order had allowed her to proceed without interference by state action.

The U.S. Supreme Court held otherwise. The Court cited one of its earlier cases, Texas State Teachers Assn. v. Garland Independent School District, 489 U.S. 782, for the holding that "[t]he touchstone of the prevailing party inquiry is the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute." A preliminary injunction is just that: "preliminary;" it is not based on discovery or review of documents or presentation of witnesses.

The Court noted that the final decision in Wyner's case soundly rejected the substantive argument she presented at the preliminary injunction stage: that state law prohibiting nudity in public parks is unconstitutional as applied to expressive, non-erotic nudity. Writing for the unanimous Court, Justice Ginsburg noted that "At the end of the fray, Florida's Bathing Suit Rule remained intact, and Wyner had gained no enduring 'chang[e] [in] the legal relationship.'"

For these reasons, the Court ended, Wyner was not a prevailing party, and not entitled to attorneys' fees under the statute. Her initial victory (preliminary injunction) was "ephemeral;" she might have won the battle but she lost the war, noted the Court.