Palmetto Properties v. County of DuPage ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2174
PALMETTO PROPERTIES, INC. and GREGORY A. SCHIRMER,
Plaintiffs-Appellees,
v.
COUNTY OF DUPAGE and JOSEPH E. BIRKETT,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 2980—David H. Coar, Judge.
____________
ARGUED DECEMBER 12, 2003—DECIDED JULY 7, 2004
____________
Before COFFEY, RIPPLE and KANNE, Circuit Judges.
KANNE, Circuit Judge. This case raises a question about
an award of attorney’s fees to a “prevailing party” under the
Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C.
§ 1988 (2000). After the underlying claims, which chal-
lenged the constitutionality of both state and local adult-
entertainment zoning regulations, were disposed of through
dismissals, partial summary judgments, a repeal of the
relevant portion of the local statute, and a final dismissal
for mootness, the district court granted the plaintiffs’
motion for attorney’s fees. For the following reasons, we
affirm.
2 No. 03-2174
I. Background
The issue on appeal can be succinctly stated: did the
district court correctly award attorney’s fees to Palmetto as
a “prevailing party” under 42 U.S.C. § 1988? However,
“prevailing party” is a legal term of art, generally meaning
a “party in whose favor a judgment is rendered . . . .”
Buckhannon Bd. & Care Home, Inc. v. W. Vir. Dept. of
Health and Human Res., 532 U.S. 598, 603 (2001) (quota-
tion omitted). In Buckhannon, the Supreme Court dem-
onstrated that, although the issue and definition can be
pithily put, in order to determine whether an award of at-
torney’s fees would be appropriate, a meticulous analysis of
the “particular judgments and orders entered in a case” is
necessary. McGrath v. Toys “ ‘R” Us, Inc., 356 F.3d 246, 253
(2d Cir. 2004). We have done so in the past, see, e.g., Fed’n
of Adver. Indus. Representatives, Inc. v. City of Chicago, 326
F.3d 924 (7th Cir. 2003) (“Federation”), and to do so here,
we now review the underlying facts and procedural posture
of this case.
Palmetto Properties, Inc. and George Schirmer (collec-
tively, “Palmetto”) sought to open an adult entertainment
nightclub or cabaret in DuPage County, Illinois. According
to County Ordinance section 37-3.2, Palmetto’s strip club is
classified as an “adult business use” because the employee-
dancers expose “specified anatomical areas” and/or engage
in “specified sexual activities.” DuPage County Ordinance
§ 37-3.2 (1986).1 Likewise, the club is an “adult entertain
1
In relevant part, section 37-3.2 states:
Adult business use. The use of property . . . of which a sig-
nificant or substantial portion involves an activity distinguished
or characterized by its emphasis on matters depicting, describ-
ing or relating to Specified Sexual Activities or Specified
Anatomical Areas . . . .
***
(continued...)
No. 03-2174 3
ment facility” under state law 55 Ill. Comp. Stat. 5/5-1097.5
(1998).2
While both the state and county regulate the location of
these adult businesses, after the state adopted its first such
zoning law in 1998, the two regulations differed in material
1
(...continued)
Specified Anatomical Areas:
a. Less than completely or opaquely covered human genitals,
pubic region, buttock, anus or female breast below a point
immediately above the top of the areola; and
b. Human male genitals in a discernibly turgid state, even if
completely or opaquely covered.
Specified Sexual Activities:
a. Human genitals in a state of sexual stimulation or arousal;
b. Acts of human masturbation, sexual intercourse, fellatio or
sodomy;
c. Fondling, kissing or other erotic touching of Specified
Anatomical Areas;
d. Flagellation or torture in the context of a sexual relationship;
e. Masochism, erotic or sexually oriented torture, beating or the
infliction of pain;
f. Erotic touching, fondling or other such contact with an animal
by a human being;
g. Human excretion, urination, menstruation or vaginal or anal
irrigation as part of or in connection with any of the activities
set forth in “a” through “f ” above.
2
In relevant part, section 5/5-1097.5 states: “For the purposes of
this Section, ‘adult entertainment facility’ means (i) a striptease
club or pornographic movie theatre whose business is the com-
mercial sale, dissemination, or distribution of sexually explicit
material, shows, or other exhibitions or (ii) adult bookstore or
adult video store . . . .”
4 No. 03-2174
respects. First, under the law as adopted in 1986, DuPage
County required all adult businesses to locate in a zoning
district designated “industrial” and banned such establish-
ments from locating within 1000 feet of other adult busi-
nesses, or within 500 feet of certain residentially zoned
districts or any “church, school, library, park or other
publicly operated recreational facility.” DuPage County
Zoning Ord. § 37-4.16-2 (1986). But the law adopted by the
state in 1998 banned all adult businesses from locating
“within 1,000 feet of the property boundaries of any school,
day care center, cemetery, public park, forest preserve, public
housing, and place of religious worship.” 55 Ill. Comp. Stat.
5/5-1097.5 (1998) (emphasis added). Consequently, in
December of 1998, after the state adopted its regulation, the
County amended its ordinance to (1) add various categories
of land use from which adult business must be separated;
and (2) increase the required separation distance from 500
to 1000 feet. DuPage County Zoning Ord. § 37-4.16-2
(1998).3 The County’s zoning restriction thereby mirrored
the state’s.
3
Ordinance section 37-4.16-2, as amended in 1998, stated:
No adult business use, either as a permitted use or as a con-
ditional use, shall be maintained: (1) within 1,000 feet of the
property line of another adult business use; (2) within 1,000
feet of any of the following zoning districts as provided for
under this Ordinance: R-1, R-2, R-3, R-4, R-5, R-6, and R-7;
(3) within 1,000 feet of a zoned residential district lying
within a municipality; or (4) within 1,000 feet of a place
of religious worship, day care center, cemetery, public hous-
ing, school, library, park, forest preserve or other publicly
operated recreational facility. The distances provided for in
this section shall be measured by following a straight line
without regard to intervening structures, from a point on the
property or the land use district boundary line from which the
proposed use is to be separated.
No. 03-2174 5
Second, the County’s 1986 ordinance stated that its pur-
pose was to “eliminate [the] adverse effects” of adult busi-
nesses, such as the “blighting or downgrading” of surround-
ing neighborhoods. DuPage County Zoning Ord. § 37-4.16-1
(1986). In adopting that law, the County relied upon a study
conducted by the City of Indianapolis, which had adopted a
similar 500-foot separation requirement, and upon a
customer-origin survey done by DuPage and Cook Counties.
The state statute, however, contained no such statement of
policy, nor did its legislative history reveal any studies or
reports relied upon by the Illinois General Assembly. And
when the County amended its ordinance in 1998 “solely to
incorporate [the state law],” no new studies were conducted,
nor earlier studies reevaluated, and the statement of policy
went unchanged.
The land Palmetto obtained (and partially developed) for
the proposed adult business complied with all of the loca-
tional limits set out in the County and State regulations,
save one. The parcel was 735 feet (i.e, more than 500, but
less than 1000 feet) from the boundary of Pratt’s Wayne
Woods Forest Preserve, much of which is not accessible to
the public.4 As a result, Palmetto feared that the County
and/or State would prevent the nightclub’s opening based
upon the 1000-foot forest preservation separation require-
ment. Palmetto sued DuPage County, the Forest Preserve
District of DuPage County, Joseph E. Birkett (in his official
capacity as DuPage County State’s Attorney), and Jim E.
Ryan (in his official capacity as Illinois Attorney General),
4
We note that in its first complaint, filed on May 5, 1999,
Palmetto apparently did not realize that the relevant parcel was
within 1000 feet of a forest preserve and asserted that the parcel
complied with all the state and local zoning limitations. Thus,
Palmetto argued only that the ordinances were unconstitutional
on their face. Eventually, Palmetto realized its mistake and
amended its complaint—twice.
6 No. 03-2174
arguing that the state and local laws were violations of the
First and Fourteenth Amendments. Specifically, in its third
amended complaint, Palmetto alleged that: (1) the 1000-foot
forest preserve separation requirement, under either law,
was facially unconstitutional because it was unsupported by
a substantial governmental interest; (2) the forest preserve
separation requirement, under either law, was unconstitu-
tional as applied to Palmetto; and (3) both laws were
facially unconstitutional in toto because they effected a
complete ban of protected speech in DuPage County.5
Between February of 2000 and March of 2001, the district
court was inundated with a flurry of motions to dismiss,
summary-judgment motions, responsive pleadings, and
competing fact statements, resulting in a total of at least
thirty-four filings. Early in the course of the proceedings,
however, Illinois Attorney General Ryan was dismissed
from the suit because Palmetto failed to overcome the
presumption of Ryan’s Eleventh Amendment immunity.
This determination was not appealed.
5
An additional constitutional challenge was also raised.
Palmetto’s property was zoned as a “Light Industrial District,”
designated I-1. However, adult business uses may locate as of
right only in “Heavy Industrial Districts,” designated I-2. Hence,
Palmetto, in order to open the proposed club, needed a special or
conditional zoning use permit from the County. See DuPage
County Zoning Ord. §§ 37.14.13 et seq. (1998) (laying out the ap-
plication procedure). But such permits may be granted only if the
applicant complies with all zoning restrictions, other than the
designation. See id. As a result, Palmetto could not obtain a per-
mit because less than 1000 feet separated the relevant parcel from
the forest preserve. Palmetto, therefore, also challenged the
ordinances regarding special or conditional use permits as un-
constitutional prior restraints of protected speech. Because the
district court never reached the merits of this issue, see infra note
7, it is largely tangential to the instant appeal.
No. 03-2174 7
Finally, on March 29, 2001, the district court issued its
order, which sorted through myriad summary-judgment
issues. First, the Forest Preserve District’s motion for
summary judgment was granted “because the District has
no connection to the enforcement of the DuPage Ordinance
or the Illinois Statute and there is no District ordinance or
policy at issue here.” Second, the court found that because
Palmetto’s claims were “rooted in the First Amendment,”
Palmetto was entitled to “rely on the impact of the ordi-
nance[s] on the expressive activities of others as well as [its]
own,” and hence, the case was ripe for adjudication. Third,
State’s Attorney Birkett’s Eleventh Amendment immunity
barred Palmetto’s suit with respect to the state law, but not
with respect to the County Ordinance.6 Therefore, only the
County of DuPage and Birkett (only with respect to the
County ordinance) remained as defendants (hereinafter
collectively “Defendants” or “County”).
Reaching the merits, the district court held that: (1) the
state and local zoning forest preserve separation require-
ments were neither supported by a significant government
interest nor narrowly tailored because neither entity pre-
sented any evidence or prior case law to demonstrate that
strip clubs negatively impact areas of forest preserves not
open to the public; and (2) both restrictions failed to leave
open reasonable alternative means of communication.
Uncertain as to whether the district court struck down the
entirety of the County Ordinance or simply the forest pre-
6
Because the district court applied Eleventh Amendment
immunity to protect both Attorney General Ryan and State’s
Attorney Birkett from the claims challenging the state law, see,
e.g., Edelman v. Jordan, 415 U.S. 651 (1974), it appears that no
challenge to the state ordinance remained. Indeed, although the
district court’s March 29, 2001 order discussed the merits of both
the state and local statutes, in its subsequent clarifying order, the
district court specifically addressed only the County ordinance.
8 No. 03-2174
serve segment, Defendants asked the district court to clarify
its judgment. The court did so on April 26, 2001 and
specifically declared only the portion of Ordinance section
37-4.16.2 referring to “forest preserves” unconstitutional.7
Presumably wanting to avoid further litigation, the
Defendants informed the district court and Palmetto that,
instead of appealing, the offending provision of the ordi-
nance would be amended or repealed. Hence, while the
County pursued such action, the district court continued the
case in lieu of entering a final order to officially close the
action. As promised, the forest preserve separation re-
quirement was repealed.8 Palmetto was therefore free to
operate its proposed nightclub. Following its opening, the
district court dismissed the lawsuit as moot on January 3,
2002.
Palmetto then petitioned for an award of attorney’s
fees from the Defendants as a “prevailing party” under 42
U.S.C. § 1988. While there was no dispute as to the amount
claimed, the Defendants adamantly argued that Palmetto
was not a prevailing party. The district court disagreed.
After carefully analyzing Buckhannon and noting that
Palmetto did not request fees related to claims never
addressed on the merits, see supra notes 5 and 7, the dis-
trict court awarded $49,175.00 to Palmetto. This appeal
resulted and, for the following reasons, we affirm the dis-
trict court’s award.
7
Having found the forest preserve restriction unconstitutional,
the court also determined that it need not reach the prior re-
straint claim. See supra note 5.
8
The County actually adopted new restrictions, which differenti-
ated between “active” and “passive” recreational areas, which in-
clude forest preserves. But the amended ordinance requires only
a 500-foot separation between an adult business and “passive
recreational areas.” (R. 100.) Hence, the statute no longer posed
any bar to Palmetto’s strip club.
No. 03-2174 9
II. Analysis
A. Standard of Review
Under 42 U.S.C. § 1988 a “prevailing party” is entitled to
“a reasonable attorney’s fee.” When analyzing a district
court’s grant or denial of such fees, we review de novo the
lower court’s purely legal conclusions. Federation, 326 F.3d
at 932. But factual matters underlying the fee award, such
as the fee amount and a party’s ultimate litigation goals,
are reviewed for clear error. Cady v. City of Chicago, 43
F.3d 326, 329 (7th Cir. 1994). Because the County chal-
lenges only whether the district court inappropriately
extended the definition of a “prevailing party,” our review
here is de novo.
B. Buckhannon and Its Progeny
In Buckhannon, the Supreme Court interpreted “pre-
vailing party” under the fee-shifting provision of the Fair
Housing Amendments Act of 1988 (“FHAA”), 42 U.S.C.
§ 3613(c)(2). Because nearly all federal fee-shifting pro-
visions use this term of art, see, e.g., 42 U.S.C. §§ 1988,
12205, the Buckhannon Court encouraged consistent in-
terpretation, when possible, across the federal statutes. See
532 U.S. at 602-03. Although we have not gone so far as to
hold that Buckhannon applies to all fee-shifting statutes,
we have held that it is conclusively presumed to so apply
absent a clearly contrary indication in the “text, structure,
or legislative history of a particular fee-shifting statute . .
. .” T.D. v. LaGrange School Dist. No. 102, 349 F.3d 469,
475 (7th Cir. 2003) (internal quotations omitted) (“T.D.”).
Therefore, we followed the strictures of Buckhannon in the
two cases recently brought before this court which required
interpretation of “prevailing party.” T.D., supra; Federation,
supra. In Federation, we expressly held that it is “abun-
dantly clear” that Buckhannon applies to the term as used
10 No. 03-2174
in 42 U.S.C. § 1988. Federation, 326 F.3d at 932 n.8. In
short, whether Palmetto is entitled to attorney’s fees under
42 U.S.C. § 1988 depends upon the application of
Buckhannon, T.D., and Federation.
The Supreme Court in Buckhannon upheld a denial of
attorney’s fees where a defendant “voluntarily” mooted the
action. Buckhannon, 532 U.S. at 610. A corporation oper-
ating assisted-living residences sued the state of West
Virginia (and other individual and agency state actors),
claiming that a particular provision of a state statute
violated the FHAA. Id. at 600-01. The state legislature
repealed the contested provision, thereby mooting the suit,
while discovery was still pending and prior to any sub-
stantive judicial determinations. Id. at 601. Specifically
rejecting the “catalyst theory,”9 the Court emphasized that
a defendant’s voluntary change in conduct, “although per-
haps accomplishing what the plaintiff sought to achieve
by the lawsuit, lacks the necessary judicial imprimatur
on the change.” Id. at 605 (emphasis in original). The Court
also discounted arguments about defendants’ incentives to
avoid fees, noting that such considerations were too specu-
lative and thus unhelpful because, depending on the case,
a defendant’s fear of fees may or may not be as significant
as its fear of monetary damages, if liable. Id. at 608.
Finally, the Court stated that if the catalyst theory applied,
major, yet wholly tangential, litigation would likely result
because a district court would need to delve into a “highly
factbound” analysis of a defendant’s subjective motivations
9
Under the catalyst theory, a plaintiff was entitled to attorney’s
fees as a “prevailing party” so long as (1) the claim was at least
colorable, and not groundless; (2) the lawsuit was a substantial
rather than insubstantial cause of the defendant’s change in con-
duct; and (3) the defendant’s change in conduct was motivated by
the plaintiff ’s threat of victory rather than the threat of expense.
532 U.S. at 610.
No. 03-2174 11
in changing its conduct. Id. at 609. Thus, the Court held
that in order to be a “prevailing party,” a litigant must have
obtained a judgment on the merits, a consent decree, or
some other judicially sanctioned change in the legal rela-
tionship of the parties. 532 U.S. at 604-05 (citing Hanrahan
v. Hampton, 446 U.S. 754, 758 (1980) (per curiam); Maher
v. Gagne, 448 U.S. 122 (1980); Texas State Teachers Ass’n v.
Garland Independent Sch. Dist., 489 U.S. 782, 792 (1989)).
In T.D., the parents of a student suffering from attention
deficit disorder claimed that the defendant school district
deprived the student of a “free appropriate public educa-
tion” under the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400(d)(1)(A), and appealed to the
district court an administrative adjudication which pro-
posed to place the student in a regular classroom, instead
of authorizing placement at a private day school. 349 F.3d
at 471-73. Specifically, we considered whether the plaintiff
was entitled to attorney’s fees where cross-motions for
summary judgment had been filed, but when the parties
negotiated a settlement agreement before any rulings by
the district court. In the agreement, the defendant acqui-
esced to nearly all the plaintiff’s demands—placement of
the student in a special program in a public school, and
reimbursement to the parents for tuition and all costs re-
lating to the student’s prior attendance at the day school.
349 F.3d at 473-74. Importantly, the settlement agreement
contained no provision regarding attorney’s fees. Id. at 473.
After concluding that Buckhannon applies to IDEA, id. at
478, we found that while most “private settlement agree-
ments do not entail the judicial approval and oversight
involved in consent decrees,” some do, in which case a
settlement agreement can be the basis for an award of
attorney’s fees. Id. at 478-79 (internal quotation omitted).
But in T.D., despite the fact that the district court was ac-
tively involved in the settlement negotiations, the agree-
ment (1) was not embodied in a court order or judgment; (2)
12 No. 03-2174
did not bear the judge’s signature; and (3) did not give the
district court continuing jurisdiction to enforce the agree-
ment. Id. at 479. See also Toms v. Taft, 338 F.3d 519, 529
(6th Cir. 2001) (holding that a court-sponsored settlement
conference was insufficient to make the plaintiff a prevail-
ing party). Hence, we concluded that it was “merely a
private settlement agreement between the parties,” lacking
the judicial imprimatur necessary to convey “prevailing
party” status. Id.In Federation, an advertising trade association sued the
City of Chicago, alleging that an ordinance prohibiting the
placement of alcohol and cigarette advertisements on bill-
boards, sides of buildings, and freestanding signboards
violated the First Amendment and was preempted by
federal and state statutes. 326 F.3d at 927. In 1988, the
trade association moved for summary judgment on both the
First Amendment and preemption claims. Although
no ruling was made on the First Amendment claims, the
district court held that all portions of the ordinance relating
to cigarette advertising were preempted by federal law and
that the portions relating to alcohol were not severable. Id.The City appealed the preemption determination, and we
reversed in large part, finding that (1) only a tiny provision
of the ordinance was preempted by federal law; and (2) the
ordinance was severable. Fed’n of Adver. Indus. Representa-
tives, Inc. v. City of Chicago, 189 F.3d 633, 639-40 (7th Cir.
1999).
Subsequently, the City amended the ordinance to remove
the preempted portion and other provisions, the constitu-
tionality of which had been seriously called into question by
Greater New Orleans Broadcasting Ass’n v. United States,
527 U.S. 173 (1999). 326 F.3d at 928.
The trade association then amended its complaint to drop
the preemption claim and to entirely eliminate its challenge
to the cigarette-advertising portions of the ordinance. Id. In
No. 03-2174 13
2001, the association again moved for summary judgment
on its remaining First Amendment claims. But before the
City filed its response, the Supreme Court decided Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525 (2001), which held that
a statute similar to the challenged ordinance was pre-
empted by federal law. Id. The City then filed a cross-
motion to dismiss based upon mootness, indicating that
although the City believed its statute was materially
different from the Lorillard ordinance, the risks of going
forward in light of Lorillard had persuaded it to repeal the
ordinance. Id. The City did indeed repeal the ordinance,
and the district court then dismissed the case and denied
the trade association’s request for attorney’s fees under 42
U.S.C. § 1988. Id.Upon appeal of the district court’s denial of fees, we ana-
lyzed exactly what, if any, “judicially sanctioned change” in
the legal relationship of the parties the trade association
had achieved. First, we pointed out that while the district
court originally granted its motion for summary judgment
on preemption grounds, we reversed the “core holding” of
that decision. Simply because “we affirmed [a tiny] portion
of the original district court decision certainly does not
make [the trade association] a prevailing party,” particu-
larly when our holding provided the association no relief at
all. 326 F.3d at 933.
Second, we assumed, arguendo, that the City’s repeal of
the statute was “not voluntary,” instead compelled by the
combination of the Supreme Court’s decision in Lorillard
and the association’s motion for summary judgment. How-
ever, because neither the City nor the trade association
were parties to that case, we concluded that there was “[no]
judgment that changed the legal relationship between the
parties in this case,” id. (emphasis in original), and we
affirmed the district court’s denial of attorney’s fees.
14 No. 03-2174
C. Attorney’s Fees for Palmetto
The facts of this case are essentially undisputed. The
district court granted Palmetto a partial summary judg-
ment, striking down as unconstitutional the portion of the
County adult-entertainment zoning ordinance pertaining to
forest preserves—the only provision which effectively
prevented Palmetto from operating its nightclub. The
County, after presumably concluding that its odds of suc-
cess on appeal were limited, assured the district court and
Palmetto that it would repeal the offending provision. Thus,
the district court continued the case to give the County a
sufficient amount of time to correct its error. As promised,
the ordinance was repealed and the case was dismissed as
moot.
The County now contends that Palmetto is not entitled to
an award of attorney’s fees because “the partial summary
judgment pertaining to the forest preserve provisions in the
County Ordinance never became final or enforceable before
the case was dismissed for mootness.” We disagree. It would
defy reason and contradict the definition of “prevailing
party” under Buckhannon and our subsequent precedent to
hold that simply because the district court abstained from
entering a final order formally closing the case—a result of
the Defendant’s assertions that it would repeal the chal-
lenged portion of the ordinance—Palmetto somehow did not
obtain a “judicially sanctioned change” in the parties’ legal
relationship.
In Buckhannon, the challenged state law was repealed,
thereby mooting the case, before the district court made any
substantive rulings. Thus, the Buckhannon Court construed
the change in the defendants’ conduct as voluntary, lacking
the necessary judicial imprimatur. In this case, not only did
the district court make a substantive determination as to
essentially all the constitutional claims save one, see supra
notes 5 and 7, the County repealed the ordinance only after
No. 03-2174 15
that determination had been made and presumably because
of it. To be sure, the Defendants were free to moot the case
before the summary-judgment ruling, in which case the
action would have been voluntary. They did not. Hence,
their action is most persuasively construed as involun-
tary—indeed exhibiting judicial imprimatur.
Furthermore, while the Buckhannon Court dismissed
concerns about “mischievous defendants” (i.e., those who
moot a case to avoid an award of attorney’s fees), the qua-
lifications placed upon those remarks apply in this case:
[P]etitioners’ fear of mischievous defendants only ma-
terializes in claims for equitable relief, for so long as the
plaintiff has a cause of action for damages, a defen-
dant’s change in conduct will not moot the case. Even
then, it is not clear how often courts will find a case
mooted: “It is well settled that a defendant’s voluntary
cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of the
practice” unless it is “absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to
recur.” Friends of Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000).
Buckhannon, 532 U.S. 608-09 (emphasis added) (foot-
note omitted). Here, Palmetto sought only equitable relief;
monetary damages were an impossibility because neither
the state nor the County had taken any action to halt or
otherwise actionably delay the development of Palmetto’s
proposed club. Also, and as noted above, the County’s
“voluntary cessation” of the “challenged practice” (i.e., the
forest preserve provision) was done after the district court
determined its illegality. Indeed, had Palmetto so desired,
Palmetto (or the County for that matter) could have pressed
the district court to enter a final order closing the case
immediately following the court’s summary-judgment
ruling. Instead, Palmetto graciously—and in reliance upon
16 No. 03-2174
Defendants’ assurances—waited for the Defendants to
amend the regulation and moot the case. In short, reversing
the district court’s award of attorney’s fees in this case
would contradict Buckhannon’s logic, create an inequitable
result, and promote inefficiency because plaintiffs who have
succeeded on the merits would be encouraged to rush
forward with potentially unnecessary litigation, solely to
preserve their entitlement to fees.
Nor does our reasoning in T.D. mediate in favor of re-
versing the district court’s award of attorney’s fees in the
instant case. In T.D., the parties entered into a wholly pri-
vate settlement agreement, whereby the defendant school
district agreed to most of the plaintiff’s demands. Here,
there was no settlement agreement. Instead, Palmetto
secured a favorable substantive ruling from the district
court, which, in turn, prompted the Defendants to repeal
the zoning restriction.
In addition, this case can be distinguished in two ways
from the unique situation presented in Federation. First,
while the Federation plaintiffs did initially obtain a favor-
able judgment on the merits of their preemption claims, on
appeal, the lion’s share of the district court’s ruling was
reversed. And the tiny portion of the summary judgment
upheld on appeal failed to give the plaintiffs any mean-
ingful relief. We reasoned that a substantially overruled
summary judgment, failing to provide relief, could not
confer upon the plaintiffs “prevailing party” status.
Second, the city defendants in Federation repealed the
ordinances at issue because they perceived that a different
case—namely, the Supreme Court’s Lorillard decision—
cast serious doubt upon their constitutionality. We as-
sumed, arguendo, that the repeal of the challenged statute
was therefore involuntary, but nonetheless concluded that
an award of attorney’s fees was inappropriate. We reasoned
that no judgment changed the legal relationship of the
parties to the Federation lawsuit; a party in one lawsuit
No. 03-2174 17
cannot claim to be a “prevailing party” based upon the
successes of a party in a different lawsuit. But in this case,
Palmetto itself obtained a judgment on the merits, which
provided the relief sought in the action, and the County
chose not to take any steps to pursue an appeal.
Moreover, in Federation, we implied that a plaintiff
who obtains a favorable summary-judgment ruling, un-
challenged by an appeal, would qualify for an award of
attorney’s fees under Buckhannon and 42 U.S.C. § 1988:
Nor does the fact that [the plaintiff] had a summary
judgment motion pending provide the necessary ju-
dicially sanctioned change. Even assuming that after
Lorillard, the district court would have granted [the
plaintiff’s] motion had the [defendant] City not repealed
its ordinance, the fact remains that no such ruling was
made and thus no judicial relief was awarded to Feder-
ation.
326 F.3d at 933. Our Federation decision, which assessed
the procedural posture of that case, supports the district
court’s grant of attorney’s fees in the instant case.
We lastly note that the County’s argument is unavailing
not only because it contradicts Buckhannon, T.D., and
Federation, but also because it values form over substance.
Nowhere does the County posit that the district court’s
summary-judgment rulings wouldn’t have been appealable
had the district court simply entered a final order formally
closing the case. And the only reason the court did not do so
was because the County requested a continuance so that it
could moot the case. The summary-judgment orders
changed the legal relationship of the parties because, for
example, had Palmetto grown impatient with the time it
took the County to repeal the offending zoning provision,
Palmetto could have requested that the district court close
the case and then sued to enforce the judgment. Nor does
the County argue that the district court, in making its
18 No. 03-2174
summary-judgment determination, failed to evaluate the
evidence presented by both parties or failed to apply the
appropriate constitutional law to the facts of the case. It
would fly in the face of legal intuit to conclude that the
district court’s partial grant of a summary judgment would
not constitute a “judgment on the merits” adequate to
confer “prevailing party” status upon Palmetto, simply be-
cause—at the County’s behest—the district court delayed in
entering a final order to close the case.
III. Conclusion
In sum, the district court’s $49,175.00 award of attorney’s
fees to Palmetto was equitable, efficiency-promoting, a
logical development in Buckhannon jurisprudence, and
applied a common-sense understanding of a “judgment on
the merits.” For the foregoing reasons, we AFFIRM the
award of attorney’s fees under 42 U.S.C. § 1988.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-7-04