Denial of Fee Recovery Reversed and Remanded.
On December 16, 2012, we posted about a “Case Under Review,” Higher Taste, Inc. v. City of Tacoma, where U.S. District Judge Settle (W.D. Wash.) denied attorney’s fees under the federal civil rights statute, 42 U.S.C. § 1983, because he did not believe that plaintiff non-profit’s preliminary injunction allowing it to sell message-bearing T-shirts on public walkways in front of the entrance of the Tacoma Zoo, was enough of a “win” given that Tacoma could repeal the ordinance despite a settlement agreement confirming plaintiff’s First Amendment rights to sell merchandise. In our earlier post, we indicated Ninth Circuit Judge Watford expressed at an appellate argument he had difficulty in seeing how plaintiff did not prevail.
Plaintiff indeed won its fee denial appeal in Higher Taste, Inc. v. City of Tacoma, Case No. 11-36046 (9th Cir. June 3, 2013) (published)–with the appellate court concluding plaintiff did prevail.
Here, the preliminary injunction was not a perfunctory hearing and was very merits-based so it satisfied Buckhannon’s judicial imprimatur requirements, with several circuits besides the Ninth so holding. The injunction did materially vary the relationship between the parties such that the settlement stipulation, with a final judgment, was inconsequential. After all, defendant’s agreement to the subsequent settlement did change everything, with no indication that the significant time spent on settlement negotiations was meant to be worth nothing. The fact that Tacoma could repeal the new regulations inspired by the settlement did not matter; plaintiff received a contractual right under the settlement to continue selling–a tangible benefit that could not be rescinded.
So, on remand, unless the district judge could conclude that special circumstances made a fee award unjust, it should fix an attorney’s fees in plaintiff’s favor on remand.
