T. A. Wyner v. David B. Struhs , 179 F. App'x 566 ( 2006 )


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  •                                                                           [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    _____________________________
    No. 04-14750                 FILED
    _____________________________U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    April 25, 2006
    D. C. Docket No. 03-80103 CV-DMM                 THOMAS K. KAHN
    CLERK
    T. A. WYNER,
    GEORGE SIMON,
    Plaintiffs-Appellees,
    versus
    DAVID B. STRUHS, in his official capacity as Secretary,
    Florida Department of Environmental Protection,
    TERENCE COULLITTE, individually and in his official
    capacity as Park Manager of the John D. MacArthur Beach
    State Park,
    Defendants-Appellants.
    _________________________________________
    Appeal from the United States District Court
    for the Southern District of Florida
    _________________________________________
    (April 25, 2006)
    Before EDMONDSON, Chief Judge, BARKETT, Circuit Judge, and HUNT*,
    District Judge.
    *
    Honorable Willis B. Hunt, Jr., United States District Judge for the Northern District of Georgia,
    sitting by designation.
    PER CURIAM:
    This appeal raised the issue of whether Plaintiffs can be a “prevailing party”
    and awarded attorney’s fees under 
    42 U.S.C. § 1988
    . Plaintiffs obtained a
    preliminary injunction that prevented state park officials from interfering with
    Plaintiffs’ enactment of a nude peace symbol at a public beach. But later in the
    case at summary judgment, Plaintiffs lost their facial claims against the state rules
    that prohibited nudity at the beach and that gave park officials power to enact
    reasonable time, place, and manner restrictions on expressive activity. The district
    court denied Plaintiffs permanent relief. Defendants therefore appeal the district
    court’s award of attorney’s fees to Plaintiffs for Plaintiffs’ success in obtaining the
    preliminary injunction.1
    To qualify as a prevailing party, the plaintiff must obtain the primary relief
    sought in the case. Taylor v. City of Ft. Lauderdale, 
    810 F.2d 1551
    , 1555-56 (11th
    Cir. 1987). Taylor said that “a preliminary injunction on the merits, as opposed to
    a merely temporary order which decides no substantive issues but merely
    maintains the status quo, entitles one to prevailing party status and an award of
    1
    Defendants’ challenges to the underlying preliminary injunction are moot because the injunction
    was about a finite event that occurred and ended on a specific, past date. See Johnson v. Fla. High
    School Activities Assoc., Inc., 
    102 F.3d 1172
     (11th Cir. 1997) (concluding challenge to injunction
    allowing age-ineligible high school student to play high school football was moot after the student’s
    final football season ended).
    2
    attorney’s fees.” Id. at 1558. As an initial matter, we accept that the preliminary
    injunction in this case decided a substantive issue -- whether or not the state
    officials could arrest the nude peace symbol participants -- and thus was on the
    merits.
    The more important question now is whether the district court granted the
    preliminary injunction based on a mistake of law. Defendants claim that the
    district court conducted identical legal analyses on identical facts but reached
    different results on the motions for preliminary and permanent injunctions. If the
    preliminary injunction was based on a mistake of law such that Plaintiffs “were
    never actually prevailing parties at all[,]” id. at 1558, then Plaintiffs are entitled to
    no attorney’s fees. For example, in Doe v. Busbee, this Court determined that
    despite obtaining preliminary and permanent injunctions and summary judgment,
    the plaintiffs were not prevailing parties under section 1988, because two Supreme
    Court decisions preexisting the award of attorney’s fees countered the district
    court’s reasoning in issuing the injunctions and prompted the injunctions and
    judgment to be vacated under rule 60(b). 
    684 F.2d 1375
    , 1381 (11th Cir. 1982).
    Therefore, the Busbee court reversed the award of attorney’s fees. 
    Id. at 1382-83
    .
    3
    In the instant case, Plaintiffs raised both as-applied and facial challenges to
    Fla. Admin. Code Ann. r. 62D-2.014(7)(b),2 prohibiting nudity at the beach, and to
    Fla. Admin. Code Ann. r. 62D-2.014(18),3 allowing state park officials to regulate
    the time, place, and manner of expressive conduct at the beach. On their as-
    applied challenge, Plaintiffs obtained a preliminary injunction that prohibited
    Florida officials from interfering with Plaintiffs’ one-time enactment of a nude
    peace symbol at a public beach. The district court assumed for the sake of the
    preliminary injunction order that the rules were applied in a content-neutral
    manner4 and, thus, applied the test set out in United States v. O’Brien, 
    88 S.Ct. 2
    The full text of the regulation says, “In every area of a park including bathing areas no individual
    shall expose the human, male or female, genitals, pubic area, the entire buttocks or female breast
    below the top of the nipple, with less than a fully opaque covering.”
    3
    The full text of the regulation says, “Free speech activities include, but are not limited to, public
    speaking, performances, distribution of printed material, displays, and signs. Free speech activities
    do not include activities for commercial purposes. Any persons engaging in such activities can
    determine what restrictions as to time, place, and manner may apply, in any particular situation, by
    contacting the park manager. Free speech activities shall not create a safety hazard or interfere with
    any other park visitor's enjoyment of the park's natural or cultural experience. The park manager will
    determine the suitability of place and manner based on park visitor use patterns and other visitor
    activities occurring at the time of the free speech activity.”
    4
    The district court said in the summary judgment hearing and wrote in the summary judgment
    order that the earlier preliminary injunction was based on testimony that indicated that Defendants
    were applying the rules in a content-based manner because the peace symbol was an anti-war protest.
    But, in the actual order granting the preliminary injunction, the court said it was not necessary to
    determine whether the rules were applied in a content-based manner, and assumed content neutrality
    for the purposes of the order. Although the court’s statements in the later summary judgment hearing
    and order about the reason for the earlier preliminary injunction were incorrect, that does not mean
    that the preliminary injunction was based on a mistake of law.
    4
    1673 (1968), to evaluate the validity of the restrictions. According to the pertinent
    written order, the court granted the injunction because a settlement agreement
    from previous litigation between the parties showed a less restrictive alternative to
    a total ban on nudity: Plaintiffs could perform the nude peace symbol on an area of
    the beach that would be hidden behind a cloth screen. This approach would allow
    the expressive conduct, but protect the public from the offense of nudity. The
    Defendants’ attorney conceded at the preliminary injunction hearing that this
    approach might be an acceptable alternative.
    Later at summary judgment, Plaintiffs lost their facial challenge to Fla.
    Admin. Code Ann. r. 62D-2.014(7)(b).5 Plaintiffs’ attorney admitted at the
    hearing that Plaintiffs and other participants had not remained behind the cloth
    screen during the nude peace symbol demonstration, and a fair reading of the
    record shows that Plaintiffs had no intention of remaining behind a cloth screen or
    other barriers during future nude expressive works. In the summary judgment
    order, the district court again applied the O’Brien test but -- based on these new
    developments -- said a total ban on nudity was no greater than was essential to
    further the government’s interest in protecting the public from the offense of
    5
    Plaintiffs also lost their facial challenge to Rule 62D-2.014(18), because it gave the park
    manager discretion only about the time, place, and manner of free speech activities, not discretion
    to prevent free speech activities.
    5
    nudity, because “Park authorities were . . . unable to ensure that those engaged in
    the expressive conduct stayed behind the screen.”6 The court did award attorney’s
    fees to Plaintiffs for the work they expended obtaining the preliminary injunction,
    however.
    We have reviewed the record for abuse of discretion and conclude that no
    reversible error occurred. Although in both orders, the district court applied the
    O’Brien test, in the summary judgment order the court relied on new facts
    presented at the summary judgment hearing which demonstrated that the less
    restrictive alternative was not sufficient to protect the government’s interest.7
    Thus Plaintiffs did not earlier obtain the preliminary injunction based on a mistake
    of law.
    6
    We recognize that at the preliminary injunction hearing, one of the plaintiffs mentioned that on
    another occasion a few years earlier, not all the participants in a nude expressive work had remained
    behind the provided cloth screen because participants thought they had “already clarified [with Park
    officials] that the screen had a chilling effect.” This circumstance does not change our analysis,
    however, because it did not express that Plaintiffs had decided to dishonor the settlement agreement
    and would refuse to remain behind a cloth screen if one were set up for the nude peace symbol. In
    addition, Defendants conceded at that hearing that the cloth screen might be sufficient to protect
    Defendants’ interests.
    7
    This result may also be viewed through the lens of the different standards for preliminary and
    permanent injunctions: although Plaintiffs were able to show a substantial likelihood of success at
    the preliminary injunction stage, they were unable to achieve actual success on the merits at the
    permanent injunction stage because of their intervening failure to abide by the less restrictive
    alternative.
    6
    Plaintiffs are entitled to prevailing party status and attorney’s fees because
    the court granted the preliminary injunction on the merits and Plaintiffs obtained
    the primary relief they sought. Taylor v. Ft. Lauderdale, 
    810 F.2d at 1555-56, 1558
    . The district court properly limited the fee award to the degree of Plaintiffs’
    success. See Hensley v. Eckerhart, 
    103 S.Ct. 1933
    , 1941 (1983) (saying degree of
    success is the most important factor in determining amount of attorney’s fees).
    AFFIRMED.
    7