HIGHER TASTE, INC., a Washington Non-Profit Corporation v. CITY OF TACOMA, a Metropolitan Municipal Corporation; Metropolitan Park District of Tacoma, a Department of the City of Tacoma; Executive Director Jack C. Wilson, Executive Director of the Metropolitan Park District of the City of Tacoma
No. 11-36046
United States Court of Appeals, Ninth Circuit
June 3, 2013
717 F.3d 712
Argued and Submitted Dec. 5, 2012.
In Gantt‘s and Smith‘s case, there was no witch hunt. There is no particular reason to think that Gantt and Smith are innocent, much less that the police knew they were. There is no showing that the police believed the identification the car stereo thief made was false. He himself has not claimed that he lied twenty years ago, just that he can no longer remember and had not been wearing his glasses. We held in the Wenatchee witch hunt cases that the plaintiffs were not entitled to get to trial on their fabrication of evidence cases.11 A fortiori, the far less coercive questioning and the lack of any reason to infer a frameup of an innocent man did not entitle Gantt and Smith to put their fabrication case before a jury. Here the plaintiffs were mistakenly permitted to try their cases, and the jury returned verdicts that a correct application of law would have compelled regardless of their verdicts. The fabrication of evidence claim is no more than a claim that false evidence, not known by the prosecution to be false, was used to convict them.
Because the fabrication of evidence claim should not have gone to trial at all, there being no prima facie case, we need not reach the questions about the correctness of the instructions. The case was put to the jury, which reached the legally required conclusion despite the poor instructions. The publication of today‘s decision vastly expands the application of
Adam Rosenberg (argued), Keating, Bucklin & McCormack, Inc., P.S., Seattle, WA, for Defendants-Appellees.
Before: RICHARD C. TALLMAN and PAUL J. WATFORD, Circuit Judges, and SHARON L. GLEASON, District Judge.*
OPINION
WATFORD, Circuit Judge:
Plaintiff Higher Taste Inc. is a non-profit religious organization dedicated to promoting non-violence, community harmony, spiritual ecology, and the humane treatment of animals. It seeks to disseminate its message and raise funds by selling T-shirts adorned with messages related to its spiritual mission. For years Higher Taste sold its T-shirts at a public zoo operated by the principal defendant in this case, the Metropolitan Park District of Tacoma, from a table set up along the main walkway leading from the parking area to the zoo‘s entrance. This proved to be a prime location, ensuring that a steady stream of the zoo‘s 500,000–600,000 annual visitors would be exposed to Higher Taste‘s teachings.
In 2005, the Park District adopted Resolution 40-05, which banned the sale of any merchandise near the zoo‘s entrance, along the walkways leading to the zoo‘s entrance, or in the zoo‘s parking area. At first, the Park District allowed Higher Taste to continue selling its T-shirts at the zoo, albeit not at the prime location Higher Taste had previously occupied. But in March 2010, the Park District, taking an expansive view of its power under the resolution, banned Higher Taste from selling T-shirts anywhere on zoo grounds.
Soon thereafter, Higher Taste sued the Park District under
The Park District did not seek interlocutory review under
The parties executed a written settlement agreement signed by Higher Taste, the Park District, and the other defendants named in the action. As consideration for the dismissal of Higher Taste‘s lawsuit, the Park District agreed to “allow Higher Taste to sell its message-bearing merchandise (T-shirts) on the walkways ... between the Zoo and the parking lot, or in the parking lot areas of the Zoo,” pursuant to the new regulations, which were attached to the settlement agreement as an exhibit. The parties could not reach agreement on attorney‘s fees; that issue was left for the district court to resolve by separate motion.
In accordance with the parties’ stipulation, the district court entered an order dismissing Higher Taste‘s action with prejudice. The order did not incorporate the terms of the parties’ settlement agreement nor provide for the court‘s retention of jurisdiction, other than over the issue of attorney‘s fees.
Higher Taste then moved for attorney‘s fees under
A plaintiff “prevails” for purposes of
Lower courts have struggled to decide whether the requirements for prevailing-party status are met by a plaintiff who
We begin with the first question, to which the answer, at least on the facts of this case, is clear. Several circuits, including ours, have held that a preliminary injunction satisfies the judicial imprimatur requirement if it is based on a finding that the plaintiff has shown a likelihood of success on the merits. When confronted with those circumstances in Watson v. County of Riverside, 300 F.3d 1092 (9th Cir. 2002), we held that “[a] preliminary injunction issued by a judge carries all the ‘judicial imprimatur’ necessary to satisfy Buckhannon.” Id. at 1096; accord Common Cause/Ga. v. Billups, 554 F.3d 1340, 1355-56 (11th Cir. 2009); Dearmore v. City of Garland, 519 F.3d 517, 523-24 (5th Cir. 2008).1
The district court in this case expressly based its preliminary-injunction ruling on a finding that Higher Taste was likely to succeed on the merits of its First Amendment claim, after a hearing that was not “hasty and abbreviated.” Sole, 551 U.S. at 84. The court‘s likelihood-of-success finding ensures that the preliminary relief Higher Taste obtained was the product of more than merely a “nonfrivolous but nonetheless potentially meritless lawsuit.” Buckhannon, 532 U.S. at 606. Thus, as was true in Watson, the preliminary injunction satisfies Buckhannon‘s judicial imprimatur requirement. 300 F.3d at 1096.
We turn now to the second question, which involves determining whether the relief obtained materially altered the parties’ legal relationship. No one disputes that, at least for the time it remains in effect, a preliminary injunction normally satisfies this requirement. A material alteration of the parties’ legal relationship occurs when “the plaintiff can force the defendant to do something he otherwise would not have to do.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000). That is typically the whole point of an injunction, which is why in the usual case injunctive relief “work[s] the requisite material alteration in the parties’ relationship.” Lefemine v. Wideman, 568 U.S. 1, 4 (2012) (per curiam).
This is the usual case. Armed with the preliminary injunction, Higher Taste forced the Park District to do something it would not otherwise have had to do—
Precisely because the relief afforded by a preliminary injunction may be undone at the conclusion of the case, some inquiry into events post-dating the injunction‘s issuance will generally be necessary. For example, a plaintiff who succeeds at the preliminary injunction stage but loses on the merits after the case is litigated to final judgment is not a prevailing party under
We have previously held that when a plaintiff wins a preliminary injunction and the case is rendered moot before final judgment, either by the passage of time or other circumstances beyond the parties’ control, the plaintiff is a prevailing party eligible for a fee award. See Watson, 300 F.3d at 1096; Williams v. Alioto, 625 F.2d 845, 847-48 (9th Cir. 1980) (per curiam); accord N. Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1086 (8th Cir. 2006); Young v. City of Chicago, 202 F.3d 1000, 1000-01 (7th Cir. 2000) (per curiam); Haley v. Pataki, 106 F.3d 478, 483-84 (2d Cir. 1997). In those cases, although the plaintiff never secured a final judgment granting permanent injunctive relief, the preliminary injunction ended up affording all the relief that proved necessary. See Watson, 300 F.3d at 1096; Williams, 625 F.2d at 847-48. The plaintiff therefore received relief that was as enduring as a permanent injunction would have been and, by virtue of the case‘s mootness, that relief was no longer subject to being “reversed, dissolved, or otherwise undone by the final decision in the same case.” Sole, 551 U.S. at 83; see also Radvansky v. City of Olmsted Falls, 496 F.3d 609, 620 (6th Cir. 2007); Dupuy v. Samuels, 423 F.3d 714, 719, 723 (7th Cir. 2005).
Other circuits have applied the same reasoning when the plaintiff wins a preliminary injunction and the case is subsequently rendered moot by the defendant‘s own actions. (A typical scenario: The plaintiff wins a preliminary injunction prohibiting enforcement of a particular statute, and the defendant renders the case moot by repealing the statute before final judgment is entered.) In that circumstance, too, courts have held that the plaintiff is a prevailing party under
The reasoning in these cases persuades us that Higher Taste is a prevailing party here. It is true that the district court dismissed this case upon the parties’ stipulation following settlement, rather than upon a determination of mootness. But the question is whether Higher Taste achieved relief sufficiently enduring to satisfy the “material alteration of the parties’
The Park District responds by arguing that, in actuality, the settlement agreement did not secure any enduring relief for Higher Taste. The Park District notes that the new regulations it agreed to enact as part of the settlement expressly reserved its right “to change, modify or revoke the above Rules and Regulations if it deems it necessary.” Under this provision, the Park District contends, it remains free to unilaterally repeal the regulations in their entirety at any time.
The Park District undoubtedly retains the power to repeal the new regulations it has enacted, and such action would of course affect members of the general public who wish to sell message-bearing merchandise on zoo grounds. But a repeal of the regulations would have no effect on the personal right to sell message-bearing merchandise Higher Taste secured for itself by negotiating the settlement agreement. That contractual right was the consideration Higher Taste received in exchange for dismissing its
Finally, the Park District argues that the settlement agreement cannot confer prevailing-party status on Higher Taste because the district court did not endorse or adopt the settlement agreement or otherwise retain jurisdiction to enforce it. We acknowledge that our case law suggests a settlement agreement must be judicially enforceable to meet Buckhannon‘s judicial imprimatur requirement. See St. John‘s Organic Farm v. Gem Cnty. Mosquito Abatement Dist., 574 F.3d 1054, 1058-59 (9th Cir. 2009). But Higher Taste does not rely on the settlement agreement to satisfy the judicial imprimatur requirement; the preliminary injunction “carries all the ‘judicial imprimatur’ necessary to satisfy Buckhannon.” Watson, 300 F.3d at 1096. Higher Taste instead relies on the settlement agreement to establish that the relief it won at the preliminary-injunction stage is sufficiently enduring to satisfy the “material alteration of the parties’ legal relationship” requirement. For the reasons given above, we conclude that the settlement agreement does so.
Because Higher Taste is a prevailing party within the meaning of
REVERSED AND REMANDED.
PAUL J. WATFORD
UNITED STATES CIRCUIT JUDGE