William Taylor v. City of Fort Lauderdale, Leo Callahan, Etc., Donald R. Hall, Etc., Defendants

ANDERSON, Before JOHNSON and *, Judges Circuit and GARZA Senior Judge. Circuit GARZA, Judge: Circuit Senior appellant’s arises from This case claim for fees under U.S.C. 1988 regard challenging with actions taken City solicitation ordinance of the of Ft. Taylor appellant Lauderdale. Since suc- cessfully obtained on the merits of the central substantive underlying 1983 case issue appeal, we reverse the district court’s deni- al of fees to and re- hearing mand the case for on reasonable attorney’s fees.

I dispute. The relevant facts are not At hearing on Plaintiff’s Motion for Pre- liminary Injunction, parties stipulated to the truth of the Declaration Plaintiff Taylor conjunction filed in William The Declaration sets forth these Motion. facts:

1. I am a member of the Unification I Church and have been since 1974. am years old. responsibility My 2. in the Church is Relations Director for the South- Public region My States. east United responsibilities cover the duties and State of Florida. May I on behalf of

3. Prior to my permits Church had solicitation for years 1981. In 1980 and order I, permits these on behalf of obtain Church, completed application my an reports required by filed financial Fla., Lauderdale, Wisotsky, Ft. Steven Lauderdale Solicitations Fort Ordinance. plaintiffs-appellants. for May 4. I On about learned City Lindsey Payne, A. of Fort Lauder- Turner, from Mr. the chief license Jim dale, Lauderdale, Fla., Ft. for defendants- inspector for the of Fort Lauderdale appellees. responsible and the official who permits issuance of solicitations that the require Fort Lauderdale did not * Garza, Reynaldo Cir- nation. G. Senior U.S. Honorable Circuit, Judge sitting by desig- cuit for the Fifth

applications reports or financial from all Founded the Church is estab- religious organizations who solicit funds throughout lished 120 countries Fort More Lauderdale. emphasizes World. The Church evan- specifically, per- Turner told Mr. me that gelical engagements missionary mits are issued those rallies, sponsors religious workshops, re- organizations that solicit donations out- treats, and lectures. Included in the church, side the from door-to-door and Church activities are door-to-door and the like. public-place proselytizing and solicitation 12, 1982, May inspect- 5. I On or about support of funds to the Church. permit ed a list of holders viewed and Church, 8. As members of the we seek briefly reports form the financial or 990 to distribute tracts and solicit contribu- permit filed said holders support give tions our Church and inspector’s My inspection chief office. of gifts people to the Florida. of reports holders and financial thir- revealed that there a total of (13) permits

teen issued to the proselytize 20. Church members and en- following organizations: public gage evangelism throughout VFW Post 1966 States, including witnessing, United Palm Beach Treatment Home house-to-house, both on street and NALC Branch distribution, gift giving, literature public America, Society of Leukemia Inc. speaking engagements, lectures and Cystic Fibrosis Foundation raising hospital fund and and retirement Speaks The Bible home visitation. Sigma Sorority, Delta Theta Inc. Agee, Robert L. VFW Post 1966 discovering religious After other that Foundation, groups Christian Braille Inc. in Ft. required Record Lauderdale were not permits to obtain solicitation when County they Broward Girl Scout Council sought donations church inside a or on Eagles of Fraternal Order property, Taylor church other and Unifica- Challenge Teen tion Church members filed suit. On June Arthritis Foundation 21, 1982, plaintiffs filed a two-count civil Only organization, Speaks, one The Bible rights action under U.S.C. 1983 for might arguably qualify religious declaratory relief and a organization. No Fort Lauderdale permanent injunction: plaintiffs sought to regularly churches which solicit dona- enjoin declare unconstitutional and to en- permits. tions had been issued forcement the Ft. Lauderdale Code 6. The Unification Church is a Califor- seq.1 et. Chapter 38-1 non-profit corporation, nia and the Florida holding feder- exemptions. Code, 339.301,2 al and Transportation Florida tax Section (1981) complaint Chapter alleges provides, pertinent part: 1. Count of the 2. Fla.Stat. seq. 38-1 et Ft. Lauderdale Code 339.301 Unlawful commercial use of state- applied unconstitutional as to Plaintiffs. The right-of-way; penalties. maintained road gravamen complaint specifically of Plaintiffs (1) Except when otherwise authorized law Code, provides: attacks § 38-9 of the regulations depart- or ment, rules and any person orga- It shall be unlawful or any it is unlawful to make commercial gifts nization to or chari- solicit donations for right-of-way use of the state-main- purposes religious city, table or within the road____ prohibited tained Such uses in- having without first obtained a there- clude, but are not limited ... the solicita- inspector. for from the chief license goods, property, the sale of tion for or servic- 38-10, required, Plaintiffs were also under § (emphasis purposes____ es for charitable to make detailed financial disclosures about added). copy church or submit a of their most recent showing exempt IRS tax tax form or- status permit. provi- der to obtain a solicitation sion was This challenged infringement as an religious group’s rights. constitutional applied ments as construed and whether soli- unconstitutional [of ordinance] because such state (emphasis by cit indoors or out-of-doors.” plaintiffs of their constitu- deprives action court). Mr. Turner also stated that religion freedom of tional “unless the Plaintiffs secured a solicitation speech. permit, Unification Church members who attempt to solicit donations from members court heard the Motion for The district general public subject Injunction July would be Preliminary appear Following witness to was Mr. James arrest.” well-established First Turner, Inspector for the Chief License doctrine, Amendment the lower court rec- City of Ft. Lauderdale since 1981. Turner ognized protect- solicitation is testified that all solicitations inside while activity, ed Pennsylvania, Murdock v. permit, City required he “took the U.S. 87 L.Ed. way applied law the it had been for the (1943), pros- and the threat of criminal appointed previous years” before he was effectively ecution the chills exercise of Inspector. License Fort Lauder- Chief expression, free Pfister, Dombrowski v. scheme, by dale’s enforcement as described 479, 1116, 380 U.S. 85 S.Ct. 14 L.Ed.2d 22 Turner, a) religious All was two-fold: or (1965). Thus, compelling govern- without a organizations soliciting charitable out-of- justify City’s ment interest to enforce- permit (“[Ajnyone doors must have a that ment scheme narrowly which was tailored religious gifts solicits funds or from the ends, to achieve its desired Larson v. Va- taxpayers upon of Fort Lauderdale lente, 228, 246-47, 102 S.Ct. of requires per- streets Fort Lauderdale a 1684-85, (1982), applica- 72 L.Ed.2d 33 mit, irregardless organization of what the City presumptively tion of Code 38-9 was is”); b) if and the solicitation is indoors but The district invalid. court entered the property not on owned or controlled liminary injunction because the solicitor, permit a solicitation was also re- suffered, “have and continue to suffer” quired. “Catholic, Baptist, This meant that irreparable injury. “The loss of First Protestant, congregations Jewish” [or] freedoms, Amendment for even minimal “passed plate” which inside a tradition- time, periods unquestionably constitutes worship, al house of to church members Burns, irreparable injury.” Elrod v. 427 alike, and visitors City would not need a 2673, 2689, U.S. 49 Church, permit. The Unification even if it (1976); L.Ed.2d 547 Medical only” meeting had a “members Deerfield at the Holi- Beach, City Center v. day collection, Inn and took a need a would of Deerfield 1981). Unit B The permit City or be in violation of the ordi- injunction provided City may not re- nance. The district court termed this “edi- quire register to under Sec- fice discrimination.” tion 38-9 “unless and until all On November the district court organizations which solicit donations within entered an granting plaintiffs’ Order Mo- Lauderdale, City of Ft. whether indoors Preliminary Injunction tion for on Count out-of-doors, required reg- or are also to permit requirement the solicitation (Order, permits.” ister for such solicitation City of Section 38-9 of the Ft. Lauderdale 82-6408, 1, 1982). No. Case Nov. Code. exchange After a brief of limited inter- judge The specifically district found rogatories, plaintiffs in March moved practice City exempted “that in for religious organizations on Count I of established from registration reporting require- complaint. both the and The district court heard Statute, primary throughout litigation seriously litigated. 3. The focus was never licensing was the quirements ruling pursuant and financial disclosure re- reserved II Court Count per- of Ft. Lauderdale’s solicitation agreement parties, an and vol- II, challenged mit ordinance I. Count Count untarily April dismissed Count II on 1985. Transportation which concerned the Florida Motion, argument April Chapter including 38-9, on the and on oral Section 8,1984, plaintiffs’ repealed replaced and granted the court Motion a City new Ordi- Judgment Summary part. 583 nance became for effective on January F.Supp (S.D.Fla.1984). The district new ordinance made an ac- had been for court found that there no discrim- commodation indoor solicitation and ex- permit require- empted in its it from permit requirement.6 ination for outdoor solicitations. There had outdoor regu- ment solicitation is still showing “no record that lated under the new been scheme. point, parties agreed the described ‘traditional’ churches ever so- At both that permit” plaintiffs’ licited out-of-doors without a suit became moot. permit waived the re- that ever thereupon Plaintiffs for an moved award quirement group for another that solicited fees under U.S.C. 1988 court outdoors.4 Id. at 517. district ground on the were “prevailing did find “edifice discrimination” parties” City responded this case. The City’s requiring evangelical policy of prevailing parties were not permanent churches that had no structure because, alia, inter entered have a solicitations to meet applied only single section of the entire indoors other collect donations while ordinance, 38-9, Section relief did final groups church established a house of yield victory not

worship specific exempted site In its Sep- merits. final dated requirement. Therefore, from the 9,1985, tember court district denied the partial judg- summary received a plaintiff's attorney’s motion for fees. This “only alleges on I ment Count insofar as it appeal followed. application of Fort unconstitutional Lauderdale Ordinance Solicitation II indoor F.Supp. tiff’s solicitation.” 583 at This Circuit follows the “central complaint 519. did explicitly Plaintiffs’ not determining issue” for and awarding test allege any indoor solicitation.5 qualify fees. In order to 1984, Beginning in fall 1988, of the Ft. prevailing party under 42 U.S.C. § City Lauderdale under plaintiff Commission took must on be successful the cen 38-9, repeal case, by consideration the of Section tral in the issue exhibited the fact along plaintiff provisions Chapter acquired primary with other of 38. that the re- Though following excepted opera- 4. the district court found no The are from the evidence any groups soliciting through record of without a tion of Sections 38-10 38-15: permit, testimony (1) of Mr. Turner reflects that The solicitation of for funds charitable City’s interpretation of its ordi- purposes any organization solicitation or association Repub- require members; nance did not the Democratic or from parties lican a obtain to solicit (2) The solicitation of funds charitable for public. purposes person a such when solicitation premises occurs on or owned controlled language plaintiffs’ complaint The dealt 5. of person soliciting or with the funds written public place door-to-door and solicitations. permission person of who owns or con- permit applica- had used Counsel for a premises. trols the completed by Spiritual tion "U.C.S.S. Centre (3) any The issuance of or announcement ad- Cassadaga" examining at of when Mr. Turner that such as vertisement solicitation described hearing injunction; the application (1) (2) above in subsections and will occur or permit to meet solicit was for a which announces or advertises an event at Holiday U.C. donations indoors at Inn. The which unannounced as described Spiritual Cassadaga party of S.S. Centre is not a (1) (2) in subsection above occurs. litigation. to this previous problem Section 38-17 remedies the discrimination, excepting reg- ordinance, from 38-17, of "edifice” "Excep- in § 6. new lists groups those charitable istration or substantially reporting tions" to the similar re- own, property they that solicit contributions on lease, through quirements 38- § § re-enacted 38-10 occupy with the and control consent of 15: premises. the owner of the Exceptions. Sec. 38-17. 1556 however, fees, Publishing award of comes after a de- sought. Miami Herald

lief Hallandale, party “prevailed,” 742 F.2d 590 that a v. termination has Co. Cir.1984); (11th “any significant Coen v. Harrison either issue” or the 24, (5th Board, F.2d 26 Cir. litigation, depending 638 in the School “central issue” 1981); Sawyer, 433, 8, Iranian Assn. v. Students on the Circuit. 461 U.S. at n. 103 Cir.1981). (5th 1939, The decision 639 F.2d 1160 n. 8. S.Ct. at attorney’s fees is on whether to award application Supreme of these two court and reviewable made the district appellate courts Court decisions only for abuse of discretion. v. Wilson course, anything but uniform. Of been (11th Attaway, 767 party judg- that obtains a favorable final 1985). Tarpon Springs, Fields v. squarely ment merits awarded (11th Cir.1983). How- Conversely, plaintiff attorney’s fees. ever, Supreme Court has held that un- every that is denied all substantive relief at prevailing parties should der ordi- § litigation stage “pre- does not become a spe- narily recover fees “unless vailing party” under 1988. issue § circumstances render such an cial would today before us is whether a who unjust.” v. Piggie award Newman Park initially preliminary injunction obtained a Inc., Enterprises, primary sought and the the merits (1968). 19 L.Ed.2d 1263 Es- S.Ct. eventually in the suit but dismissed the suit (5th Besteiro, pino prevailing party when it became moot is a Cir.1983) (fees awarded purposes for under reimbursement course”). “as a matter of Hampton, Hanrahan v. U.S. Injunction Preliminary A. (1980), 64 L.Ed.2d 670 this court As noted Doe v. Bus- Supreme guiding princi- set forth the Court bee, Cir.1982), plain 684 F.2d 1375 “a ple plaintiff prevails pur- that a ‘prevailing claim may tiff not status as poses if he “has established his entitlement during party’ by virtue success claims, relief on to some the merits his at 1380 course of a civil case.” Id. appeal.” either the trial court or on 446 added). (emphasis Fees are awarded 757, (emphasis U.S. at 100 S.Ct. at 1987 prevailing party “pri the when the obtains added). explain The Court went on to that 1379; sought.” F.2d at mary relief 684 appropriate party fees would be “where a Sterrett, 663, (5th Taylor v. 640 F.2d 669 prevailed important in an matter the Cir.1981). litigation, course of the even he ulti- when presented by plaintiffs’ mately prevail does not Id. The central issue all issues.” 94-1011, (1976)) (quoting S.Rep. p. complaint No. was that the solicitation 5 Later, (emphasis original). requirements imposed upon in the Unification Hensley v. Eckerhart, 424, 1933, 461 103 76 in its outdoor solicitations were un- U.S. S.Ct. Church (1983), Supreme permit appli- L.Ed.2d 40 of the Court fo- constitutional because primarily process requirement cused on the standards to be used cation itself and the assessing prevailing religious groups soliciting of the that out-of-doors amount party’s attorney’s report.7 complaint award of fees. The submit a financial 1148, (5th Cir.1985) ("initial 7. We realize that this statement of the central 749 F.2d 1152 need identify goal" plaintiff sought issue differs from of the district court. The to to achieve suit); McLeod, 134, district court restated the broad constitutional by bringing Bly v. F.2d 605 case, wit, claims of Plaintiffs’ to that Count I denied, 928, (4th Cir.1979), cert. alleged infirmity in 38-1 constitutional Section ("the (1980) 63 L.Ed.2d 761 court seq. et. of the Ft. Lauderdale Ordinance and precise factual/legal condi should consider the Count II raised a constitutional on Flor attack sought change” tion the fee claimant has to and Transportation ida Statutes 339.301. success); use that as a “benchmark” to evaluate precisely we restate the "central issue" more Secretary Juveniles v. Public Institutionalized the central consistent with our belief that issue ("com (3rd Cir.1985) Welfare, 758 F.2d legal practicality, test is one of not formalism. Board, Hennigan See v. Ouachita Parish School religious alleged discrimination between tion on the merits which remained in force religions “traditional” or “established” months, approximately 26 from November primary Unification Church. day sought suspend application was entered, through January City’s permit requirement altogether when an amended solicitation ordinance for outdoor solicitations the Unification City. was enacted During this 26 exactly Church. That is what the district period plaintiffs month were able to granted preliminary injunction. court solicit donations in Fort Lauderdale with- being out a and without treated split The cases are as to whether the differently than groups. other granting preliminary injunction of a merits attorney’s an award of fees.8 This court’s case, In a similar Bishop v. Committee Heckler, decision Martin v. Ethics, (8th 686 F.2d 1278 Professional (11th Cir.1985) (en banc) held that Cir.1982), Eighth Circuit held alleged improper change an who liminary temporary relief entered under the Aid to benefits Families with district court on the Bishop’s merits of (AFDC) Dependent program Children claims him entitled fees. Department the U.S. of Health & Human Since the trial court had entered declarato- (HHS) having successful in Services were relief, ry injunctive period of time reinstated; previous policy retroactively from the district court’s until the thus, entitled were to attor- decision was vacated mootness was time ney’s prevailing parties fees as under Bishop obtained “some of the ben- question concerned Martin bringing efit of “essentially suit” and suc- prevailing parties whether obtaining sought-after ceeded in relief.” when their claims became moot due binding Id. at 1291. A case, Fifth Circuit government subsequent actions to the fil- Marshall, (5th Doe v. 622 F.2d 118 Cir. ing Stating prevailing lawsuit. 1980), also found preliminary relief on the party test as whether one “has received merits afforded status and substantially requested the relief or has litigant, fees to the successful issue,” been successful on the central Mar- though even the case ultimately moot- tin, 773 (citing F.2d at 1149 Watkins v. plaintiff graduated ed when the high from Housing Board, Mobile school. (5th 1980)), Cir. Unit B the en banc Court dealing applica- another case with the government’s found that actions af- discriminatory city tion of a policy, forded success on the merits Alioto, Williams which vindicated the civil claims 1980), plaintiffs sought injunctive and presented. in Martin re- declaratory prohibit relief police to primary they sought ceived relief with- “stop from a and frisk” entry injunction. campaign against out formal of an present litigation is much more males after clear-cut: black a number of brutal mur- plaintiffs preliminary injunc- did receive a ders. After the district court entered a Club, 680, comparison 3274, sought mon sense between relief 463 U.S. 77 L.Ed.2d obtained”). (1983) and relief ("inappropriate” 938 to award "loser” an "prevailing litigant” fee from without King, Coalition Basic Needs v. 691 F.2d Cf. for lasting claimant); some success v. Frazier (1st Cir.1982) (injunction 597 days in existence five Trustees, (5th Cir.1985) Board 777 F.2d 329 prevailing party entitled to fees as ("Appellant’s obtaining preliminary success in 1988); Marshall, 118, under Doe v. 622 F.2d injunction separable cannot be considered from (1980) (preliminary may plain- 120 relief make prevail or unrelated to” ultimate failure to on "prevailing party” tiff "primary hart, under statute if it is the merits); Litigation: see Section also sought") Hensley relief v. Ecker- Claims, and Fees: Schwartz and Kirk- 1933, Defenses S.Ct. 76 L.Ed.2d 40 1986) ("debatable” (Wiley, plain- lin. whether (1983) “plaintiffs may ‘prevailing be considered prevailing party prelim- tiff becomes on basis of parties’ they significant any if succeed on issue inary injunction). litigation which achieves some of the benefit” suit) bringing with Ruckelshaus v. Sierra Busbee, injunction practice, (11th sion in Doe

preliminary 684 F.2d 1375 Cir.1982), city apprehended suspects the wanted plaintiffs held that where the finding preliminary injunction moot. In obtained a and the case became that ulti- but parties mately prevailing did not succeed on the merits reasoned, could prevailing parties. 1983 suit the Court “the not be considered appellants liminary injunction prevented party originally Busbee concerned a that origi- injunctive of their and declaratory from continued enforcement obtained guidelines precise- court, [city policy], Supreme which is the district nal but Court deci- sought.” appellees ly the relief Id. at 847. sions handed while the case down preliminary injunction appeal legal entered in undercut the foundation of the accomplished exactly Finding instant case the same district decision. court’s that enjoined ultimately prevail result: Fort Lauderdale from did not issue, enforcing unconstitutionally legal its discrimina- court Busbee denied attor- scheme, tory permitting ney’s panel fees. in Busbee goal plaintiffs sought to granted achieve when found that the court district had bringing suit. This “success” existed the preliminary injunction through for “a mis- Georgia 26 months until the case was mooted when take in law” since had never actu- law, City repealed governing ally ordinance. violated as evidenced Supreme intervening two Court decisions. from gleaned dispar The rule these Thus, 684 F.2d at 1381. preliminary injunction cases is that a ate actually prevailing par- Busbee were never merits, opposed merely as to a tempo beyond ties at all. It is cavil rary no order which decides substantive properly here entered ended a merely quo, issues but maintains the status discriminatory permitting practice by the one entitles status and City. preliminary injunction entered an award of fees. Smith v. granted on below was the merits and Thomas, (5th Cir.1982); primary tiffs received relief sought. Levine, Drua Cha v. Chu (8th Cir.1983) (plaintiff prevailing Summary Judgment B. injunction, party preliminary though since The summary judgment may vacated, “represents be it modified or received was limited to a determination merits); substantial measure of success” on ordinance was unconstitution- Medical Center v. Deer- Deerfield applied al to indoor solicitation. Beach, field However, Taylor concedes that 1981) (fee awarded when in allege did not specifically indoor solicita- junction granted city to overcome control tion; therefore, application process opening over abor gave Moreover, them no real relief. clinic). tion plainly district court stated that “review Other cases contrary have come the record shows no discrimination conclusion, distinguished but them we find City in requiring permits for outdoor solici- from the example, case at For bar. F.Supp. tation.” 583 517. We are Carolina, Smith v. University North urged deny plaintiffs prevailing party (4th Cir.1980), 632 F.2d 316 the court con- status on the of this basis statement. injunctive cluded that the relief obtained insufficient plain- was to establish that the partial contends that the prevailed, had tiff on because was indoor is solicitation ultimately on judgment unsuccessful the merits of not a favorable on the central every against each claim issue in With agree. universi- the case. this we However, ty. Further, prevailing par- City argues this denial of that the district ly status came after full trial on court’s outdoor statement on merits, subsequent government application not after an on judgment adverse actions mooted the case. This court’s deci- the solicitation scheme and termi- preliminary injunc- ment, nates the effect of the not a technical one.” Coen v. Harri- any prevailing party County Board, son tion and status de- School (5th 1981). disagree. therefrom. With this we Cir. Vaughn, rived See Carbalan v. (5th Cir.1985) (plaintiff proposi Our cases do stand for the prevails judgment who but obtains no peripheral tion that success on a minor or relief prevailing party whatsoever is not a rights support issue in a civil case will not test); under the central issue Robinson v. attorney’s example, an award fees. For Kimbrough, 652 F.2d in Miami Herald v. Publishing Co. of 1981) (plaintiffs cannot recover Hallandale, (11th Cir.1984), 742 F.2d 590 judicial fees for upon claims newspaper challenged comprehensive relief). obtained no Since summary licensing tax ordinance. central issue judgment only concerned indoor solicita- in that case dealt the Miami Herald’s tion, by this decision the district court did claim that it was unconstitutional to tax its not, terms, by yield its own publication under the first amendment. worthy tiffs of prevailing party status. ultimately The district court ruled in the However, entry partial sum single only Miami Herald’s favor on a non- mary judgment only on indoor solicitation provision. Having tax-related suffered an did not divest of the prevailing judgment on the adverse central issue party status by secured the preliminary case, this Court concluded the Mi against application entered prevailing party and, ami Herald not a of Fort Lauderdale’s solicitation or therefore, not entitled to fees. dinance to both indoor and outdoor solicita Attaway, 757 F.2d 1227 Wilson tions. While the district court did make a (11th Cir.1985), although statement that “the record shows no dis challenging were successful in the constitu- crimination City requiring permits charter, tionality city of the the constitu- solicitation,” for outdoor F.Supp at tionality of that upon charter did not bear judgment no formal was entered to that constitutionality of an arrest a coun- A only effect. final entered ty sheriff. Because the “central issue” of application to the as unconstitutional of the litigation challenge was a to the arrest solicitation, previ ordinance to indoor sheriff, made court Wilson ously complex” described “edifice found “prevailing were not a City’s permit scheme. Since the party” by singular reason of their success declaratory injunc had filed for as well as city provi- one unrelated charter relief, must read the tive we district court’s sion. at Id. entry partial summary judgment of a partial summary judgment application en City’s decision that the of the solicitation; tered below concerned indoor ordinance to outdoor solicitation was still plaintiffs’ position it not vindicate open question deserving did on an of law further provide the central issue in the inquiry scrutiny. case or The case became plaintiffs with the desired relief. A “tech moot not when district court entered ruling nical” in one’s partial summary judgment favor does not make but af grant one a if it does not ter the amended its ordinance. The significant “In partial summary judgment substantive relief. the con did not vitiate thing plaintiffs’ obtaining text of 1988 there is no such pre earlier success in 'technically prevailing plaintiff’; vailing party the issue status on the basis of the prevailed judg- injunction. who is a realistic violated," dispositive plaintiffs being 9. The dissent finds Doe v. Busbee question today. “erroneously before us at 1383. The lower court had en- key injunctions" plaintiffs’ view fails to credit the distinction between tered behalf. Id. expressly Busbee and the case at bar. Busbee This of law” the district "mistake court prevailing par- Georgia stated that were denied meant “the State of had never been in law,” ty plaintiffs right status ‘‘[b]ecause at no time were the civil violation of the so "had no “Catalyst” The Test nance. Plaintiffs attained prevailing party C. expressly status on the of basis awarded party a may We note that also judicial “catalyst” relief. The uti- test is fees a attorney’s prevailing awarded be lized primarily in the absence of formal adjudica a party even if there is not formal judicial plaintiffs relief to determine if Gagne, favor. Maher v. party’s in the tion Heckler, were successful. Martin v. 122,100 2570, 65 S.Ct. L.Ed.2d 653 (11th Cir.1985) (en banc). F.2d 1145 See (1980). permits This the Circuit award of Busbee, also Doe “prevailing party” fees to a if F.2d at Of litigation “successfully course, terminates a the retroactively “mootness” does not decree, settlement, consent an out-of-court prevailing divest party of status. the voluntary prac cessation of unlawful Marshall, Doe v. by defendant, mooting or other of the tice Cir.1980). require applica- Plaintiffs do not plaintiff where the vindicated case his tion of the “catalyst” test to achieve Busbee, right.” Doe v. 684 F.2d at 1379. vailing party status the case us before Analysis hinges upon “the whether lawsuit today.10 significant a substantial factor is or cata lyst motivating to defendants end their III Busbee, unconstitutional behavior.” Kimbrough, 1380. Robinson v. at F.2d preliminary injunction entered below (5th Cir.1981). Fields v. granted squarely on the merits. The City Tarpon Springs, supra, 721 F.2d at of to solicit able donations 321-22. Fort permit Lauderdale without a and free from the threat of arrest. We need This Court Taylor’s not consider whether congressional “catalyst” was a mindful of the policy suit which motivated the favor- City repeal to ing the solicitations the ordi- award of fees to case, sought City attorney to the relief obtained.” ended the informed Thus, party prevailing plaintiff City 1381-82. status was de- counsel for that the Council was contrast, nied. In considering repeal awarded the question. of the ordinance in with, clearly plaintiffs here was consistent discussing in- City After matter with the attor- compelled by, controlling deed first ney, plaintiffs agreed amendment via letter to wait for the

jurisprudence. City of Fort City Lauderdale's Council to act before "either resume being solicitations ordinance unconstitu- negotiations directed toward a this settlement of tionally applied to members of the Unification controversy proceed litigation.” with the On summary judgment partial Church. The did not City attorney December forwarded plaintiffs’ vitiate success as considered in Busbee copy ordinance revised —there was no "mistake law" here. prior Council if consideration to see plaintiff “any questions regarding pro- had plaintiffs’ believe dissent does not posed language revisions." More than the preliminary injunction success "sur- itself, the district court’s order summary judgment. actions of vived” the While the dis- 5, 1984, parties partial summary April that the demonstrate trict court’s decision on found no plaintiffs' supporting entry did not suc- in the “vacate" earlier evidence summary judgment record solicitation, enjoining Though cess ordinance. on outdoor our City’s appeal parties engaged record on shows that the revision of solicitations ordinance claim, plaintiffs’ during settlement on Count I mooted it is discussions clear that fact, August right sought few months. In on had a next to “the and obtained" parties counsel for prevailing consequence. commenced further dis- and are covery City's to flush out evidence solici- event, 10. express "exceptions" permit process. tations Since had al- ordinance, City’s supra, new see it ready solicitation, note make received on indoor disparate clear that be no obviously there will treatment discovery this was intend- religious groups augment that seek to solicit donations ed record discrimination in solicitation, City. supports The record at least an outdoor not a matter foreclosed ruling. point, inference that this lawsuit was a the district court’s At substantial motivating preliminary injunction factor in to amend its ordi- enforcement of City’s nance. do not solicitations scheme was we address this issue still preliminary injunction in force. because we find that the Moreover, granted plaintiffs express September a full five substantive relief summary judgment ostensibly worthy months after the status. permits substantive in tiffs who vindicate outdoor solicitation.” suggestion “There is no the con- F.Supp. (S.D.Fla.1984). court. Whether gressional history of 42 U.S.C. nor judgment or not a formal was entered to it, applied in the cases that have that it effect, matter, practical this it is clear ought niggardly way.” read in a be by plaintiffs that the relief obtained in the Thomas, Smith v. preliminary injunction on the crucial issue Cir.1982). today. We do not do so upon entry case was vitiated injunction granted properly below safe- summary judgment. Busbee, later Doe v. guarded important First Amendment (11th Cir.1982), squarely F.2d 1375 rights. Finding this holds that a a prevailing is not granted on the central substantive issue party when it obtains initial relief in the practical yielded sought by relief district court which is later vacated. plaintiffs, pre- we hold that case, just Busbee, as in Doe v. vailing parties to an entitled award of at- initial relief obtained torney’s fees under 42 U.S.C. 1988. We crucial issue was vitiated later court remand this cause to the district court for a disagree action. I majority’s with the con- hearing and award of reasonable clusion that distinguish- the instant case is special explanation fees or an circum- Busbee, able from Doe v. because I dis- rendering stances the award of such fees agree the majority’s with conclusion that unjust. by plaintiffs the initial relief obtained REVERSED and REMANDED. preliminary judgment somehow sur- vived summary judgment.1 the later ANDERSON, Judge, dissenting: Circuit respect, With I dissent. agree I majority opinion with the that the presented by plaintiffs’ “central issue com-

plaint that the re-

quirements imposed upon the Unification

Church in its outdoor solicitations were un- I agree

constitutional.” also that the

liminary injunction afforded relief to agree

tiffs on this central issue. I also that the later entered CORPORATION, Appellant, PANDUIT court, granting plaintiffs solicitation,

as to indoor did not constitute “a favorable on the central issue DENNISON MANUFACTURING point, my agreement the case.” At this CO., Appellee. majority opinion disagree with the ends. I Appeal No. 85-1144. majority’s with the conclusion the re- lief on the central issue of outdoor solicita- Appeals, United States Court of by plaintiffs prelimi- tion obtained Federal Circuit. nary injunction somehow survives the en- Jan. try summary judgment. of the later majority reaches this conclusion notwith-

standing summary judg- the fact that the opinion plaintiffs’ clearly rejected

ment respect

claim for relief to outdoor

solicitation, holding that “the record shows requiring

no discrimination apparently provided respect 1. Plaintiffs conceded below that the nance no relief with to the plain amendment to the ordinance mooted the case. central issue of outdoor solicitation. The catalyst may even if the instant suit were a tiffs’ concession have been more in the amendment, motivating the the amended ordi nature of an abandonment.

Case Details

Case Name: William Taylor v. City of Fort Lauderdale, Leo Callahan, Etc., Donald R. Hall, Etc., Defendants

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 6, 1987

Citation: 810 F.2d 1551

Docket Number: 85-5986

Court Abbreviation: 11th Cir.