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No. 06-531

In the Supreme Court of the United States

MICHAEL W. SOLE, SECRETARY, FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION,
ET AL., PETITIONERS

v.

T. A. WYNER, ET AL.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS

PAUL D. CLEMENT
Solicitor General
Counsel of Record
GREGORY G. GARRE
Deputy Solicitor General
PATRICIA A. MILLETT
Assistant to the Solicitor
General
MICHAEL JAY SINGER
MICHAEL E. ROBINSON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether a party who fails to secure any relief on the merits of her claims is nonetheless a "prevailing party," for purposes of eligibility for an award of attorney's fees under 42 U.S.C. 1988(b), because she obtained a pre liminary injunction at the beginning of the litigation.

INTEREST OF THE UNITED STATES

This case concerns the proper construction of the phrase "prevailing party" in establishing eligibility for attorney's fees under 42 U.S.C. 1988(b). The Court's decision will likely govern fee awards not only under Section 1988(b), but also under numerous other fee- shifting statutes. See Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Res., 532 U.S. 598, 603 n.4 (2001). The United States has a substantial interest in the resolution of that question both because meritorious private actions can complement the govern ment's own enforcement efforts under numerous stat utes and because the United States itself may be liable for attorney's fees under similarly worded laws, see, e.g., the Equal Access to Justice Act, 28 U.S.C. 2412. The United States has participated as amicus curiae in prior cases involving the proper interpretation of the phrase "prevailing party." See Buckhannon, supra; Hewitt v. Helms, 482 U.S. 755 (1987).

STATEMENT

1. Section 1988(b) of Title 42, United States Code, pro vides, in relevant part:

In any action or proceeding to enforce a provision of section[] * * * 1983 * * * of this title, * * * the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable at torney's fee as part of the costs.

2. a. In mid-January 2003, respondent Wyner in formed the park manager for the John D. MacArthur Beach State Park (Beach), that she intended to create a "temporary art installation" at the Beach on February 14, 2003, that would be "comprised of nude bodies in the

form of a peace sign." J.A. 16 ¶ 30. On February 6, 2003, the park manager concluded that "the nudity planned for [Wyner's] activities" was not "expressive conduct protected by the First Amendment," and that the State "has a significant interest in keeping the entire park open to all visitors during operating hours and that the decision not to allow nudity * * * is a reasonable manner restriction." J.A. 29; see Pet. App. 27a.1 Wyner remained "free to conduct [her] activities, absent the nudity." J.A. 29; see Pet. App. 27a.2

On February 12, 2003, respondents, Wyner and George Simon, a videographer in Hawaii, filed a com plaint against the head of the Florida Department of Environmental Protection and against the park manager in both his official and individual capacities. J.A. 10; Pet. App. 28a. The complaint alleged that Wyner "in tends to conduct expressive activity in the future at this park which will include non-erotic displays of nude bod ies" and that petitioners' proposed restrictions "chill[] Ms. Wyner's future plans." J.A. 17 ¶ 37. The complaint also asserted that Wyner "desires to engage in expres sive conduct on Valentine's Day, February 14, by pro ducing, directing, and participating in the display * * * of nude bodies in the form of a peace sign." Ibid. ¶ 34.3

The complaint charged that petitioners' proposed en forcement of the ban on nudity at her protest on Febru ary 14 would violate the First Amendment. J.A. 18 ¶ 39, ¶ 40. The complaint also charged that the Florida Ad ministrative Code unconstitutionally "vests unfettered discretion upon the Park Manager," ibid. ¶ 41, and chal lenged both that code provision and the ban on nudity on their face and as applied to "expressive conduct at the beach," Pet. App. 3a. The complaint sought (i) injunc tive relief against interference with the display on Feb ruary 14 and "with future expressive activities that may include non-erotic displays of nude human bodies," (ii) declaratory and injunctive relief, and (iii) compensatory, nominal, and punitive damages. J.A. 18-19.

b. The same day that they filed their complaint, re spondents filed an "Emergency Motion for Temporary Restraining Order and/or Preliminary Injunction" to prevent petitioners from enforcing the ban on nudity at the "Valentine's Day protest" two days later at the Beach. J.A. 32. Although "disturbed" by the "exceed ingly short notice," which had denied the court adequate time to read the relevant case law, J.A. 37, the district court held an emergency hearing the next afternoon. Petitioners participated by telephone, J.A. 36, explain ing that "we are pretty [much] on short notice with this and we don't know much of what is going on." J.A. 38.

At the hearing, respondents introduced a number of exhibits that petitioners did not have and could not see. J.A. 53, 55-56. The court overruled petitioners' objec tions to their introduction "because of the time con straints." J.A. 56. With the caveat that the government officials who were available to participate in the emer gency hearing by telephone "are not the people that know the facts all that well," J.A. 68, petitioners put on the testimony of the chief of operations for the Florida Park Service, who testified generally about the process for authorizing displays at the Beach. J.A. 70-78.

After the hearing, the district court granted the pre liminary injunction in an oral decision. J.A. 93. The court explained that "I'm not prepared to rule at this point in the proceedings, * * * that the decision was necessarily made with respect to content, but there are a number of aspects about it that are worrisome." Ibid. The court also said that "it does appear to me that there are alternatives that would be far less restrictive and could still meet the governmental interests," and the viability of "those avenues can well be explored in this case." J.A. 94. The court further reasoned that the "loss of First Amendment freedom for even minimal periods of time constitutes irreparable injury." J.A. 95. The court concluded that "the issues are somewhat diffi cult," and "I don't like to decide issues on this quick a basis, but I do feel like this meets the test of the injunc tion." Ibid.

In a subsequent written opinion, Pet. App. 9a-22a, the court reiterated that its ruling had rested on "the stan dards applied to a preliminary injunction motion," id. at 13a, and that the balance of harms would weigh in favor of permitting the allegedly expressive conduct to go for ward, id. 15a; see id. at 14a. With respect to the "likeli hood of success on the merits," id. at 19a, the court found that "some of the testimony received at the hear ing indicates that content neutrality may not be pres ent," id. at 17a, and that there may be "less restrictive alternatives," id. at 19a.

Wyner conducted her display on February 14, 2003, without interference from petitioners. Wyner and the other participants, however, did not remain behind the screen that petitioners had set up to shield the public from exposure to the nudity. Pet. App. 4a.

3. The district court subsequently granted summary judgment for petitioners on all claims and dismissed the complaint. Pet. App. 23a-48a. Noting that both parties had now "had an adequate opportunity to develop their arguments" and to make a "complete evidentiary re cord[]," id. at 45a, the court first held that petitioners were entitled to impose reasonable time, place, and man ner restrictions on nudist expressive activity. Id. at 35a- 36a. The court further held that the ban on nudity at the Beach was content neutral and furthered the "important and substantial government interest" in "protect[ing] the public from the 'offense' of nudity, and preserves park aesthetics so that the 'entire park is open to all visitors during operating hours.'" Id. at 41a. The court determined that the ban was "no greater than is essen tial to further the government interest" because authori ties had been "unable to ensure that those engaged in the expressive conduct stayed behind the screen," which made "a complete ban on nudity * * * necessary." Id. at 41a-42a. With respect to the as-applied challenge, the court denied relief because respondents had failed to identify "any particular facts to which the regulations can be applied," and accordingly treated the claim as only a facial challenge. Id. at 47a n.3.4

4. The district court granted respondents' application for attorneys' fees for their work obtaining the prelimi nary injunction. Br. in Opp. App. 1a-13a. The court rea soned that, while respondents had failed to establish any of their claims on the merits, they did succeed in pre venting petitioners "from interfering with the tempo rary art installation planned for February 14, 2003," which the court characterized as "one of the primary purposes for filing this litigation." Id. at 3a.

5. The court of appeals affirmed the award of attor ney's fees. Pet. App. 1a-8a. The court held that fees were warranted because the preliminary injunction "de cided a substantive issue-whether or not the state offi cials could arrest the nude peace symbol participants," id. at 3a, and the court made no "mistake of law" in issu ing the preliminary injunction, id. at 5a. The court ac cordingly held that respondents were prevailing parties even though "they were unable to achieve actual success on the merits." Id. at 7a-8a n.7.

SUMMARY OF ARGUMENT

Respondents filed a complaint seeking permanent injunctive and declaratory relief, as well as damages, for alleged violations of the federal and state constitutions. At the conclusion of the case, no constitutional violations were found, the defendants' regulations and their imple mentation were vindicated, and all relief was denied. As a matter of both common sense and precedent, respon dents did not prevail; they lost.

That respondents, at the litigation's earliest stage, obtained an emergency and short-lived injunction does not transform them into prevailing parties. "The words 'preliminary' and 'prevailing' are not ones that easily fit together." Select Milk Producers, Inc.. v. Johanns, 400 F.3d 939, 962 (D. C. Cir. 2005) (Henderson, J., dissent ing). A preliminary injunction is, by definition, only pre liminary and temporary relief. The injunction was based not on a final resolution of the substantive merits of re spondents' claims, but on a balancing of interests and a hurried prediction about the potential outcome of the case. The relief afforded respondents was transient and neither survived the conclusion of the litigation nor im posed any enduring, material change in the parties' legal relations. Parties that wish to convert a preliminary injunction into a full-blown merits determination may seek to do so under Federal Rule of Civil Procedure 65(a)(2). But respondents did not make such a request; the time limitations that necessitated informal and trun cated proceedings on an undeveloped factual record pre cluded such conversion; and the district court ultimately did not embrace respondents' legal position on the mer its.

Fundamental fairness precludes imposing fee liability on a fully vindicated defendant for a preliminary pro ceeding that, by its nature, denied the defendant an ade quate opportunity to develop and present the controlling facts and law. Preliminary injunction proceedings fre quently involve rushed judgments based on immature records, and the ordinary rules of procedure and evi dence do not apply. Plaintiffs, moreover, have substan tial control over the timing of requests for preliminary relief, the contours of the relief sought, and many of the critical facts on which the allegations rest. As a result, a defendant's ability to defend its position on the merits at that juncture is often substantially compromised and a hazardous indicator of ultimate success on the merits. What is more, determinations at this stage often turn on issues of irreparable injury, which may be inherently easy to satisfy for certain types of claims, yet may have little relationship to the ultimate likelihood of success on the merits. Nothing in the text of the attorney's fee pro vision, its legislative history, its purpose, or this Court's precedent suggests that Congress intended to saddle fully vindicated defendants-particularly state govern ments-with attorney's fees for such interim relief.

ARGUMENT

A PARTY WHO OBTAINS NO RELIEF ON THE MERITS OF ANY OF HER CLAIMS DOES NOT BECOME A PREVAILING PARTY SOLELY BY HAVING OBTAINED A PRELIMINARY INJUNCTION AT THE OUTSET OF THE LITIGATION

Like Hewitt v. Helms, 482 U.S. 755 (1987), "[t]his case presents the peculiar-sounding question whether a party who litigates to judgment and loses on all of his claims can nonetheless be a 'prevailing party' for pur poses of an award of attorney's fees," id. at 757. As in Hewitt, the answer to that question is not peculiar; the answer is "no." "Respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail." Id. at 760.

The starting point for any claim of eligibility for attor ney's fees is the "American Rule" that "the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975). Courts generally may not depart from that rule "absent explicit statutory authority." Buckhannon Bd. & Home Care, Inc. v. West Va. Dep't of Health & Human Res., 532 U.S. 598, 602 (2001) (emphasis added). Section 1988(b) con tains no direction, explicit or otherwise, that courts should "go[] so far as to force a vindicated defendant," Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983), to pay for the burden of being subjected to an interim con straint by a plaintiff whose claims ultimately proved, upon full examination, to be without merit.

A. Respondents Are Not "Prevailing Parties" Because Fee Liability Depends Critically Upon Merits Liability

This Court has repeatedly admonished that "liability on the merits and responsibility for fees go hand in hand." Kentucky v. Graham, 473 U.S. 159, 165 (1985); see Farrar v. Hobby, 506 U.S. 103, 109 (1992); Inde pendent Fed'n of Flight Attendants v. Zipes, 491 U.S. 754, 763 (1989); Supreme Court of Va. v. Consumers Union of the United States, Inc., 446 U.S. 719, 738-739 (1980). Under Section 1988(b), like many other federal fee-shifting statutes, establishing "liability for violation of federal law" is "crucial" to rendering the defendant responsible for attorney's fees, Zipes, 491 U.S. at 762; see Martin v. Franklin Capital Corp., 546 U.S. 132, 137 (2005) (presumption in favor of fees in civil rights cases depends critically upon the defendant "violating sub stantive federal law").

That "crucial connection" to merits liability, Zipes, 491 U.S. at 762, is missing in this case. Respondents filed suit and lost. Both counts of their complaint were dismissed. Pet. App. 46a; J.A. 18-20, 98. No constitu tional violations were found. Pet. App. 23a-48a. Quite the opposite, the litigation fully vindicated the defen dants' policies and practices. Ibid. No damages, declar atory judgment, or final injunctive relief was obtained. Ibid. In short, respondents did the very opposite of prevailing-they lost. "[W]here a defendant has not been prevailed against, * * * § 1988 does not authorize a fee award against that defendant." Farrar, 506 U.S. at 109; see Hewitt, 482 U.S. at 760. Only a party that is "legally responsible for relief on the merits * * * [should] bear fee liability," Graham, 473 U.S. at 164. Indeed, it would be "quite 'inappropriate'" and "a radi cal departure from longstanding fee-shifting principles adhered to in a wide range of contexts" for a court "to award the 'loser' an attorney's fee from the 'prevailing litigant.'" Sierra Club, 463 U.S. at 683, 684.

The court of appeals carved out an exception to that established rule for cases where a losing plaintiff obtains a preliminary injunction at the outset of the litigation, Pet. App. 2a-5a. That exception, however, lacks any an chor in statutory text, ignores this Court's precedent, and misconstrues the nature of such preliminary rulings.

B. Parties Who Obtain A Preliminary Injunction Do Not Prevail "On The Merits"

In Buckhannon, this Court held that a "prevailing party" means a party who had obtained either an "en forceable judgment[] on the merits" or a "court-ordered consent decree[]." 532 U.S. at 604. Those forms of re lief, the Court explained, embody the type of "'material alteration of the legal relationship of the parties' neces sary to permit an award of attorney's fees." Ibid. Be cause there was no consent decree in this case, respon dents are only eligible for attorney's fees if their prelim inary injunction constituted a "judgment on the merits." It did not because a "judgment on the merits" means final relief on a litigated claim.

1. A party cannot "prevail" without final relief

Requiring a "judgment[] on the merits" gives mean ing to the statutory command that only a "prevailing party" can obtain attorney's fees. Buckhannon, 532 U.S. at 603-604. "[P]revailing party" is "a legal term of art," that refers to "[a] party in whose favor a judgment is rendered." Id. at 603 (quoting Black's Law Dictio nary 1145 (7th ed. 1999)). Importantly, at the time Con gress enacted Section 1988(b), that legal term of art ex pressly conditioned "prevailing party" status on obtain ing a favorable final or dispositive judgment. Only "[t]he party ultimately prevailing when the matter is finally set at rest" is a "prevailing party." Black's Law Dictionary 1352 (rev. 4th ed. 1968); see ibid. (defining "prevailing party" as the party "who successfully prose cutes the action or successfully defends against it") (em phases added). Indeed, that legal definition stressed that "prevailing party" status did not turn upon "the degree of success at different stages of the suit," but on "whether, at the end of the suit, or other proceeding, the party who has made a claim against the other, has suc cessfully maintained it." Ibid.5

In granting a preliminary injunction, by contrast, a court does not issue any controlling judgment or "set at rest" the ultimate merits of the parties' legal claims. To the contrary, "[t]he two issues"-appropriateness of a preliminary injunction and resolution of the mer its-"are significantly different." University of Texas v. Camenisch, 451 U.S. 390, 393 (1981). In issuing a pre liminary injunction, a court does not decide that the plaintiff is "prevailing," has prevailed, or will prevail. At most, the court makes a prediction about "the likelihood that [the movant] ultimately would prevail," and even that is only one component in the court's multi-factor calculus. Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975).6 Irreparable injury is another critical factor, yet satisfaction of that factor often is unrelated to ultimate success on the merits. Indeed, for some claims, like the First Amendment claim made here, courts routinely find that the irreparable injury factor is easily satisfied. See J.A. 95 ("[C]ourts have said that loss of First Amend ment freedom for even minimal periods of time consti tutes irreparable injury."). What is more, a number of courts have held that, as the risk of irreparable injury increases, the need to demonstrate a likelihood of suc cess decreases, which further widens the gap between actual success and the prediction that occurs at the pre liminary injunction stage.7

Section 1988(b), however, predicates an award of at torney's fees on actually "prevailing," not on a predic tion about prevailing, made with variable degrees of confidence by different courts. The court of appeals, in other words, "improperly equate[d] 'likelihood of suc cess' with 'success.'" Camenisch, 451 U.S. at 394; see Doran, 422 U.S. at 932. Here, the district court ex pressly rested the injunction on a balancing of interests and an explicitly tentative prediction-with which the court expressed discomfort, J.A. 95-that respondents had a likelihood of success on the merits. Pet. App. 16a- 19a; J.A. 93-95. That preliminary evaluation of respon dents' claim, moreover, was "not binding" when the dis trict court ultimately decided the case "on the mer its," Camenisch, 451 U.S. at 395, and thus cannot itself be characterized as a "judgment[] on the merits," Buckhannon, 532 U.S. at 604; see Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 317 (1985) ("[A]ny conclusions reached at the preliminary injunc tion stage are subject to revision.").

"Congress is free, of course, to revise" Section 1988(b) to make "a substantial likelihood that the party request ing fees would have prevailed" the operative test, Buckhannon, 532 U.S. at 622 (Scalia, J., concurring), but it has not done so yet, and certainly has not done so "explicit[ly]," id. at 602 (majority op.).8

2. Precedent forecloses reliance on interim relief

Consistent with that statutory text, this Court's pre cedents establish that transitory relief obtained in the course of litigation, which does not survive the conclu sion of the case, does not confer "prevailing party" sta tus. In Rhodes v. Stewart, 488 U.S. 1 (1988) (per curiam), two prisoners obtained declaratory judgments invalidating a prison's magazine subscription policy. Id. at 2. They nevertheless were not deemed to be prevail ing parties because, at the time those judgments were entered, neither remained in prison, which made the declaratory relief of no continuing benefit. Id. at 4. The Court explained that a judgment "will constitute relief, for purposes of § 1988, if, and only if, it affects the be havior of the defendant toward the plaintiff" at the time the final judgment is entered. Ibid. Where intervening events moot the case "before judgment issue[s]," so that entry of final judgment "afford[s] the plaintiffs no relief whatsoever," ibid., the plaintiffs have not prevailed and thus are ineligible for attorney's fees.

Like the declaratory judgments obtained by the plain tiffs in Stewart, the interim relief respondents obtained, which pertained to a single demonstration at a finite time, was mooted by the time judgment was entered in the case. At the end of the case, respondents had ob tained no relief that, at that time or going forward, could "affect[] the behavior of the defendant[s] toward the plaintiff[s]." Stewart, 488 U.S. at 4. To the contrary, the district court here upheld the Florida regulations in their entirety.

Likewise, in Hewitt, the Court held that obtaining a favorable "interlocutory ruling" (a denial of a motion to dismiss) did not accord the plaintiff prevailing party status, because that interim ruling did not endure to final judgment and did not ultimately compel the defen dant to give the plaintiff any relief in terms of damages or changed behavior. 482 U.S. at 760-761. Such tran sient successes-"even legal holdings en route to a final judgment," id. at 762-are "not the stuff of which legal victories are made," id. at 760.

And again, in Hanrahan v. Hampton, 446 U.S. 754 (1980) (per curiam), the Court held that favorable "pro cedural or evidentiary rulings" that arise in the course of a "disposition on the merits" are "not matters on which a party could 'prevail' for purposes of shifting his counsel fees to the opposing party," id. at 759. Orders with such substantive impact as the reversal of directed verdicts or ordering a case to trial, id. at 756, 758, the Court held, will not even permit an interim award of at torney's fees, id. at 757-758, let alone a final award as a prevailing party. As long as a court or jury "may or may not decide some or all of the issues in favor of the [plain tiffs]," id. at 759, the plaintiff has not "established the liability of the opposing party," id. at 757, and thus has not "prevailed on the merits of at least some of his claims," and is ineligible for fees, id. at 758.

Given that Hanrahan precludes even an interim award of fees in advance of a judgment "establish[ing] the liability of the opposing party," 446 U.S. at 757, there is no basis for a final award of fees in a case where liability is completely absent. The preliminary injunc tion, like the favorable interlocutory rulings obtained by the plaintiffs in Hewitt and Hanrahan, neither "estab lished the liability" of petitioners nor resolved a claim "on the merits," Hewitt, 482 U.S. at 760. Such an inter locutory decree "is not the end but the means," id. at 761, of ensuring the orderly resolution of civil litigation and preserving the court's ability to provide effectual relief if the plaintiff prevails. "[A] preliminary injunc tion is granted to a plaintiff to protect his interests dur ing the ensuing litigation." Withrow v. Larkin, 421 U.S. 35, 43 (1975) (emphasis added).9

The preliminary injunction thus serves as a device that courts employ "en route to a final judgment," Hew itt, 482 U.S. at 762, but is not itself a final judgment on the merits and it does not "settl[e]" the parties' dispute, id. at 761. Section 1988(b) requires, "at a minimum," that a party claiming to have prevailed "be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant, Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989) (emphasis added); see Farrar, 506 U.S. at 111. Such resolution is an "absolute limitation" upon fee liability. Garland, 489 U.S. at 792.

3. The nature of a preliminary injunction proceeding is inappropriate for taxing attorney's fees

The "significant procedural differences between pre liminary and permanent injunctions," Camenisch, 451 U.S. at 394, make the issuance of a preliminary injunc tion a particularly unsound basis for imposing attorney's fee liability. A defining feature of preliminary injunc tions is the need for prompt judicial intervention and, as a result, they "are often harried affairs." Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 592 n.5 (1984) (Stevens, J., concurring in the judgment); see Camenisch, 451 U.S. at 395. In the case at hand, re spondents filed their complaint and motion for a prelimi nary injunction 48 hours before the planned event, and the district court held a hearing on the application with less than 24 hours remaining. J.A. 36-37. Such time pressures can "deprive[] the defendant of valid de fenses," Hewitt, 482 U.S. at 762, and can impair presen tation of what limited evidence and arguments the de fense is able to muster on such short notice, see J.A. 68, 70 (defense unable to assemble the most informed offi cials for the hearing).

In addition, a preliminary injunction "is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits." Camenisch, 451 U.S. at 395; see Brown v. Chote, 411 U.S. 452, 457 (1973). Discovery is generally foreclosed, and Seventh Amendment jury trial rights are forgone. In this case, petitioners were forced to partici pate in the hearing by telephone, and the district court considered documentary evidence that petitioners could not see. J.A. 53, 55-56. Indeed, the preliminary injunc tion decision in this case arose on such extremely short notice and required such a "hastily arranged hearing" that the proceeding bore more similarity to a hearing for a temporary restraining order than for a preliminary injunction. Granny Goose Foods, Inc. v. Brotherhood of Teamsters, Local No. 70, 415 U.S. 423, 434 n.7 (1974).

The Federal Rules of Civil Procedure underscore both the risk of error and the tentativeness inherent in the preliminary injunction decision by conditioning the issuance of a preliminary injunction upon "the giving of security * * * for the payment of such costs and dam ages as may be incurred or suffered by any party who is found to have been wrongfully enjoined." Fed. R. Civ. P. 65(c). That requirement "is rooted in the belief that a defendant deserves protection against a court order granted without the full deliberation a trial offers." Camenisch, 451 U.S. at 397.10

In short, when a court issues a preliminary injunction, "the parties generally will have had the benefit neither of a full opportunity to present their cases nor of a final judicial decision based on the actual merits of the contro versy." Camenisch, 451 U.S. at 396. Indeed, the proce dures are so truncated that "it is generally inappropri ate for a federal court at the preliminary-injunction stage to give a final judgment on the merits." Id. at 395; Brown, 411 U.S. at 456-457. Fundamental fairness re quires that a defendant's liability on the merits or for attorney's fees not be affixed until it has had an ade quate opportunity to present its side of the case, both on the facts and the law. Preliminary injunction proceed ings simply are not designed to permit the type of thor oughgoing and conclusive consideration of the merits of each party's position needed to justify saddling the defendant with responsibility for attorney's fees-especially a defendant whose position, upon full judicial examination, has been upheld.

For plaintiffs who want an injunction based on the actual merits, Federal Rule of Civil Procedure 65(a)(2) provides an alternative mechanism. That Rule permits a district court to "order the trial of the action on the merits to be advanced and consolidated with the hearing on the application" for a preliminary injunction. See also Camenisch, 451 U.S. at 395. The Advisory Commit tee Notes on the 1966 Amendment that added Rule 65(a)(2) express the view that "consolidation can be use fully availed of in many cases," and that, where appro priate, consolidation "should cause no delay in the dispo sition of the application for the preliminary injunction." That procedure, of course, will not be available when either time pressure or the undeveloped state of the record precludes consolidation, but that simply under scores that the grant of temporary relief under those circumstances was not "on the merits," Fed. R. Civ. P. 65(a)(2), and instead was granted with the understand ing that full examination of the merits would follow.11

C. A Preliminary Injunction Does Not Effect A Material Change In The Parties' Legal Relationship

1. Briefly engaging in desired conduct does not suffice when no enduring relief is granted

The district court held that attorney's fees were war ranted because performing the naked peace symbol dis play was "one of the primary purposes for filing this liti gation." Br. in Opp. App. 3a. That is not enough. Pre vailing party status depends on more than demonstrat ing that, after the complaint was filed, the plaintiff "g[ot] his way." Buckhannon, 532 U.S. at 615 (Scalia, J., concurring). That is because the "coercive effect of liti gation on a defendant is by no means entirely dependent on the litigation's having merit." Palmer v. City of Chi cago, 806 F.2d 1316, 1323 (7th Cir. 1986), cert. denied, 481 U.S. 1049 (1987).

To be sure, respondents differ from the plaintiffs in Buckhannon in two respects. First, the statutory change that occurred in Buckhannon, 532 U.S. at 601, effected a more concrete, enduring, and far-reaching change in legal rights and obligations than the hours- long temporary adjustment compelled by the prelimi nary injunction in this case. But that difference, which was still not enough to trigger "prevailing party" status in Buckhannon, simply underscores the frailty of respon dents' claim that they prevailed in any meaningful sense.

Second, the temporary alteration of circumstances in respondents' favor here, unlike in Buckhannon, was the product of a "judicial pronouncement." 532 U.S. at 606. But, as this Court's cases make clear, see Part B, supra, it takes more than a single favorable "judicial pro nouncement" at the threshold of litigation to confer pre vailing party status. Even a party who obtains a perma nent injunction will not be considered a prevailing party if that injunction is overturned or vacated on appeal, regardless of how much desired conduct that judicial pronouncement makes possible prior to the reversal.12 Likewise, temporary restraining orders generally per mit the requesting party to engage or avoid engaging in conduct, but courts have not rested prevailing party sta tus on that temporary alteration of obligations.

Unquestionably, the preliminary injunction is an im portant judicial tool, and there is no gainsaying that it may secure highly desired (albeit temporary) relief sought by a party. Here, for example, the injunction permitted respondents to conduct a protest. But "pre vailing party" status does not turn upon the practical value of a preliminary injunction to the movant.13

More is needed and, because "fee liability runs with merits liability," Graham, 473 U.S. at 168, a favorable final-not interim-resolution of at least one of the plaintiff's claims is what Section 1988(b) requires. Un less and until the trier of fact "decide[s] some or all of the issues in favor of the respondents[,] * * * it could not seriously be contended that the respondents had prevailed." Hanrahan, 446 U.S. at 759. A plaintiff must "establish[] the liability of the opposing party" and must "prevail[] on the merits of at least some of his claims[,] [f]or only in that event has there been a determination of the 'substantial rights of the parties.'" Id. at 757-758. In other words, "the plaintiff must be able to point to a resolution of the dispute which changes the legal rela tionship" between the parties, and it is that "material alteration of the legal relationship" that is the "touch stone of the prevailing party inquiry." Garland, 489 U.S. at 792-793 (emphasis added); see Farrar, 506 U.S. at 111. Indeed, Bradley v. School Board, 416 U.S. 696 (1974), which the legislative history of Section 1988(b) points to as a model for fee awards, see note 8, supra, held that "the existence of a final order [is] a prerequi site to the award," id. at 722. Achieving a desired bene fit is not enough, see Buckhannon, supra; that achieve ment must be the product of actually succeeding on the merits of a claim, see Garland, 489 U.S. at 791-792; Stewart, 488 U.S. at 4.

That rule makes sense because the logical predicate for making a defendant finance the lawsuit filed against it is a determination that the defendant wrongfully vio lated federal law, and thus that the defendant should pay the cost of bringing its conduct into conformity with the law. But a preliminary injunction makes no defini tive or conclusive finding about compliance with federal law and, in fact, the enjoined defendant may be fully vindicated in the ensuing litigation.

Here, no violation of federal law was proven in court, and the defendants' conduct did not prompt a consent decree imposing a permanent, judicially sanctioned change in the parties' legal relations. Petitioners, in other words, did not "violate[] federal law," Martin, 546 U.S. at 137, and they "have not been found to have vio lated anyone's civil rights," Zipes, 491 U.S. at 762. Nothing in common sense, or the text, history, or pur poses of Section 1988(b), or in "long-standing fee-shift ing principles adhered to in a wide range of contexts" countenances "go[ing] so far as to force a vindicated de fendant to pay the plaintiff's legal expenses," Sierra Club, 463 U.S. at 683, 685. The plaintiffs "left the court house emptyhanded," Buckhannon, 532 U.S. at 614 (Scalia, J., concurring), and "people who bring losing suits must bear their own attorneys' fees," Palmer, 806 F.2d at 1323.14

2. No as-applied challenge was resolved

Respondents cannot avoid that result by labeling the preliminary injunction proceeding an "as-applied" chal lenge to state law. See Pet. App. 3a; Br. in Opp. App. 4a. First, whether the underlying challenge was facial or as- applied does not change the fundamentally temporary and non-conclusive character of the court's preliminary injunction ruling.

Second, a preliminary injunction that, as a practical matter, avoids having the statute applied to a particular event does not amount to a successful as-applied chal lenge to the statute. The latter requires a permanent injunction or other final relief on the merits. To ensure that the preliminary injunction proceeding resolved their as-applied challenge on the merits, respondents could have moved to consolidate the preliminary injunc tion hearing with the trial on the merits, see Fed. R. Civ. P. 65(a)(2). But they did not, choosing instead to seek temporary relief under the more forgiving likelihood-of- success-on-the-merits standard. Having enjoyed the benefits of that tactical decision, respondents cannot, after the fact, claim attorney's fees on the supposition that the injunction established actual, rather than pre dicted, liability on the merits.15

Nor is petitioners' decision not to appeal the prelimi nary injunction of relevance. Whether appealed or not, the preliminary injunction remained preliminary and could only have been reviewed as such, see Camenisch, 451 U.S. at 393-396.16 Indeed, assuming an appeal could have been resolved in time to avoid mootness, the court of appeals would have reviewed the district court's bal ancing of equitable factors, including the likelihood of success, under an abuse-of-discretion standard of re view, thereby compounding the gap between the prelimi nary injunction decision and the actual merits of the claim. See Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1226 (11th Cir. 2005).

Moreover, here, as is often the case when fees are sought under Section 1988(b) for equitable relief, the defendants are state officials charged with making liti gation judgments in the public interest. Cf. Berger v. United States, 295 U.S. 78, 88 (1935). Given the precipi tate timing of the injunction, state officials should not be penalized for concluding that compliance with the court's short-lived order would reflect a better applica tion of governmental resources than seeking a highly disruptive emergency appeal that would have had to have been briefed and resolved within hours. Congress did not enact the attorney's fee statutes to proliferate the number of highly time-sensitive interlocutory ap peals taken by governments for the sole purpose of pro tecting the public fisc from attorney's fee liability.

Finally, in permitting fees, the D.C. Circuit has stressed that a preliminary injunction is an independent and appealable "judgment" that accords favorable relief to the movant. Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 949 (2005). That is true, but beside the point. Denials of sovereign and qualified immunity and certifications of class actions are also appealable,17 but would not support an award of fees in the absence of a final favorable judgment on the merits. Fee liability requires not just a judgment, but a "judgment on the merits," e.g., Buckhannon, 532 U.S. at 605, which a pre liminary injunction is not. See Select Milk, 400 F.3d at 955-957 (Henderson, J., dissenting).18

3. No substantive legal issue was decided

The court of appeals granted prevailing party status because (i) "the preliminary injunction * * * decided a substantive issue-whether or not the state officials could arrest the nude peace symbol participants," and (ii) the injunction was not "based on a mistake of law." Pet. App. 2a-3a. Both grounds are flawed.

First, the preliminary injunction plainly did not "de cide[] * * * on the merits," Pet. App. 3a, that state officials cannot arrest nude peace symbol participants. The summary judgment decision specifically held that officials can constitutionally enforce the ban on such demonstrations. Id. at 41a-45a. With respect to the February 14 demonstration , the district court was ex plicit that the preliminary injunction did not rest upon a final decision on the merits of the constitutional ques tion, id. at 14a-15a, 19a, concluding that "I don't like to try to decide[] issues on this quick a basis, but I do feel like this meets the test of the injunction," J.A. 95.

In fact, the district court itself twice explained that the "driving force behind" its issuance of the prelimi nary injunction, Pet. App. 47a n.2; Br. in Opp. App. 4a n.2, was that it "perceived" a risk of discrimination based on Wyner's political message, ibid. That theory, however, had never been advanced by respondents in their pleadings, and arose entirely from the hurried tele phonic testimony at the emergency hearing of a state official who did not "know the facts all that well." J.A. 68; see J.A. 70, 74. That concern completely evaporated upon examination at the summary judgment stage, after the parties had time to compile a proper evidentiary record and to develop their legal arguments fully, and after the court was afforded adequate time for delibera tion on the constitutional questions presented. Thus, the record refutes the court of appeals' conclusion that the preliminary injunction proceeding resolved any substan tive issue of law "on the merits."

Second, the court of appeals' emphasis (Pet. App. 3a- 5a) on the absence of a mistake of law in the district court's preliminary injunction ruling misses the mark. Whether or not the district court applied the correct legal test does not change the fundamentally tentative and qualified nature of its hurried examination of each parties' position and the competing equitable interests. At most, the existence of critical legal error would pro vide a second reason why the preliminary injunction did not support prevailing party status. But the issue for attorney's fee purposes is not whether the preliminary injunction should have issued; the relevant question is only whether the plaintiff prevailed on the merits.

The court's decision also overlooks that, in many cases, the legal rules are established and it is the proof of facts that makes all the difference. However, at the embryonic stage at which most preliminary injunction proceedings occur, factual development is nascent, and the "[d]ecisive facts may not emerge until discovery or trial." Christiansburg Garment Co v. EEOC, 434 U.S. 412, 422 (1978). That dearth of facts can be particularly debilitating to the defendant, who generally has little control over both the timing and the factual framework in which a preliminary injunction motion is presented and decided. The imbalance also exacts a toll on courts confronted with sensitive First Amendment questions. "The facts in any case involving a public demonstration are difficult to ascertain and even more difficult to evalu ate," and that problem is exacerbated when emergency relief deprives the court of "balanced analysis" and the time for "careful conclusions." Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 183 (1968). Furthering the imbalance, courts generally find that First Amendment claims, without regard to the merits, inherently satisfy the irreparable injury requirement, see J.A. 95, which in many circuits goes a long way to ensuring that temporary relief issues.

In this case, the preliminary injunction rested criti cally upon two mistakes of fact-the district court's per ception of discrimination based on political content, Pet. App. 47a n.2; Br. in Opp. App. 4a n.2, and the court's assumption that less restrictive alternatives were avail able because respondent Wyner would perform behind a cloth barrier, Pet. App. 4a. Without the time pres sures of the emergency motion and with the benefit of a developed record, both of those factual assumptions were proven to be incorrect. Nothing in the purposes of the attorney's fee provision, this Court's precedent, or logic justifies having prevailing party status turn upon whether it was a hurried-but-mistaken decision of law or a hurried-but-mistaken decision of fact that resulted in a now-vindicated defendant being temporarily enjoined at the outset of the case. What is critical is that the plaintiffs did not prevail on the merits; why they lost is largely beside the point.

CONCLUSION

The judgment of the court of appeals should be re versed.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
GREGORY G. GARRE
Deputy Solicitor General
PATRICIA A. MILLETT
Assistant to the Solicitor
General
MICHAEL JAY SINGER
MICHAEL E. ROBINSON
Attorneys

 

 

FEBRUARY 2007

1 By regulation, Florida law permits park managers to impose reasonable time, place, and manner restrictions on speech within state parks:

Free speech activities include, but are not limited to, public speaking, performances, distribution of printed material, displays, and signs. * * * 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 suit ability of place and manner based on park visitor use patterns and other visitor activities occurring at the time of the free speech activity.

Fla. Admin. Code Ann. R. 62D-2.014(18) (2005).

2 A Florida regulation bans nudity within the limits of state parks, including its beaches:

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.

Fla Admin. Code Ann. R. 62D-2.014(7)(b) (2005).

3 It is doubtful that respondent Simon has standing because he lives approximately 5000 miles away from the MacArthur Park Beach, and the complaint alleges only that he desired to observe a single display four years ago. See J.A. 12 ¶ 8, 17 ¶ 36; see also Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (standing must exist at every stage of the litigation). There is, however, no dispute that Wyner has standing to maintain this action.

4 Respondents also sought damages, but the district court dismissed those claims on qualified immunity grounds. Pet. App. 29a-32a. Re spondents' claim based on the Florida constitution had been dismissed at an earlier stage. J.A. 19 (Count II); J.A. 98.

5 See also Black's Law Dictionary 1069 (5th ed. 1979) (same). That same definition operated at the time Congress enacted the attorney's fee provision of the Civil Rights Act of 1964, 42 U.S.C. 2000e-5(k), on which Section 1988(b) was modeled, North Carolina Dep't of Transp. v. Crest St. Cmty. Council, Inc., 479 U.S. 6, 20-21 (1986). See Black's Law Dictionary 1412 (3d ed. 1933).

6 See Camenisch, 451 U.S. at 393; see also Weinberger v. Romero- Barcelo, 456 U.S. 305, 312 (1982) (emphasizing the role of the public interest in equitable relief); John T. v. Delaware County Intermediate Unit, 318 F.3d 545, 558 (3d Cir. 2003) (preliminary injunction does not support fees "because it is interim relief not based on the merits"); Smyth v. Rivero, 282 F.3d 268, 276 (4th Cir.), cert. denied, 537 U.S. 825 (2002).

7 See, e.g., Mazurek v. Armstrong, 520 U.S. 968, 970 (1997) (per curiam) (court of appeals required only a "fair chance of success on the merits"); Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 113-114 (2d Cir. 2006) ("serious question going to the merits"); Smyth, 282 F.3d at 276 ("substantial question"); In re DeLorean Motor Co., 755 F.2d 1223, 1229-1230 (6th Cir. 1985) ("serious question"). Courts also consider whether the injunction is mandatory or prohibi tory, or whether it would alter or preserve the status quo. Putting aside the inherent challenges in defining and applying such terms, see generally John Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv. L. Rev. 525 (1978), all of those factors at least offset, if not discount, the role of the likelihood of prevailing in the preliminary injunction analysis. Moreover, some claims by their very nature readily satisfy the irreparable injury factor without reference to how likely it is that the claim is meritless. See J.A. 95.

8 Nothing in the legislative history detracts from the plain import of "prevailing." In fact, the cases the legislative history cites as fee-shift ing models, see H.R. Rep. No. 1558, 94th Cong., 2d Sess. 8 (1976) (citing, inter alia, Bradley v. School Bd., 416 U.S. 696 (1974); Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970)); S. Rep. No. 1011, 94th Cong., 2d Sess. 5 (1976) (same), involved attorney's fee awards based either on final decisions on the merits, Bradley, 416 U.S. at 699 & n.1, 722-724; Mills, 396 U.S. at 389-390, or consent decrees, see S. Rep. No. 1011, supra, at 5. See also Hanrahan v. Hampton, 446 U.S. 754, 757 (1980) (per curiam) (discussing significance of Bradley and Mills).

9 See also Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 317 (1999) (characterizing the question whether a preliminary injunction "should have issued when it did" as a "procedural issue" in the litigation); Camenisch, 451 U.S. at 395; Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984) ("A preliminary injunction, of course, is not a preliminary adjudication on the merits but rather a device for preserving the status quo and preventing the irreparable loss of rights before judgment.").

10 Notably, despite the "presumptive rule for costs," Buckhannon, 532 U.S. at 606 n.8, there does not appear to be a consistent or historic practice of awarding costs to a party who obtained a preliminary injunction but then lost on the merits. The first federal statute regulating the award of costs and fees in federal court specifically limited awards in cases in equity to a "final hearing." Act of Feb. 26, 1853, ch. 80, 10 Stat. 161; see also Avery v. Wilson, 20 F. 856, 859-860 (C.C. W.D.N.C. 1884) (equity permits costs for a matter "completely disposed of by the court"); Goodyear Dental Vulcanite Co. v. Osgood, 10 F. Cas. 739 (C.C. D. Mass. 1877) (No. 5594) (applying "final hearing" rule); Stimpson v. Brooks, 23 F. Cas. 100, 101 (C.C. S.D.N.Y. 1856) (No. 13,454) (denying costs where "[t]he expenses in question accrued on a motion for a preliminary injunction, which was in no way conclusive upon either party as to the merits of the cause. * * * It is the costs on final hearing alone, which are by the statute chargeable.").

11 This case does not squarely present the question whether a preliminary injunction that serves as the catalyst for a permanent change in position by the opposing party renders the plaintiff a prevailing party when, due to mootness, no final judgment on the merits results. However, for many of the reasons stated in both Buckhannon and in this brief, there is no basis for carving out a preliminary- injunction exception to Buckhannon's rejection of the catalyst theory. Indeed, the plaintiffs in Buckhannon had obtained an interim order, 532 U.S. at 624 (Ginsburg, J., dissenting); Pet. Br. at 3-4 & n.2, Buckhannon, supra (No. 99-1848), which permitted them to continue operating throughout the litigation, but neither they nor this Court ventured to rest prevailing party status on the combination of an interim order and a catalyst theory. Nor does the legislative history discuss instances of preliminary injunctions serving as catalysts. What does seem clear, however, is that, if the filing of a preliminary injunc tion request caused a government voluntarily to forgo enforcement of a statute until a permanent injunction hearing could be held, there would be no basis for awarding prevailing party status to the plaintiff who ultimately did not prevail on the merits. There is no greater basis for affording prevailing party status to a plaintiff who, although he obtains temporary relief from the court, ultimately does not prevail on the merits.

12 See, e.g., Pottgen v. Missouri State High Sch. Activities Ass'n, 103 F.3d 720, 723-724 (8th Cir. 1997) ("A plaintiff cannot qualify as a prevailing party if the only basis for his claim of success on the merits is a judgment that has been reversed on appeal."); Palmer, 806 F.2d at 1320 ("[W]hen a judgment on which an award of attorney's fees to the prevailing party is based is reversed, the award, of course, falls with it"); cf. Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990); Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002) ("[W]hen the plaintiff scores an early victory by securing a preliminary injunction, then loses on the merits * * * [t]he plaintiff would not be a prevailing party."), cert. denied, 538 U.S. 923 (2003); NAACP v. Detroit Police Officers Ass'n, 46 F.3d 528, 529-530 (6th Cir. 1995); Smith v. University of N.C., 632 F.2d 316, 352 (4th Cir. 1980) ("[J]ust because an injunction was issued properly does not signify that a defendant must incur the costs of its issuance when a court has eventually proclaimed him to be innocent of discriminatory conduct.").

13 Of course, while the ability to go forward with the immediate protest may have been highly desired by respondents, that event also offered additional proof that the suggested less restrictive alternatives were not, in fact, effective.

14 While a consent decree does not always include a formal admission of liability, the decree remains a final and enduring "court-ordered 'chang[e] [in] the legal relationship between [the plaintiff] and the defendant,'" Buckhannon, 532 U.S. at 604; see id. at 618 (Scalia, J., concurring) ("[I]n the case of court-approved settlements and consent decrees, * * * [t]here is at lest some basis for saying that the party favored by the settlement or decree prevailed in the suit"). A prelimi nary injunction does not impose a similarly final determination of or enduring change in legal relations.

15 As a procedural matter, the record indicates that the February 14, 2003, event was a single manifestation, rather than the sum total, of the as-applied challenge. The complaint specifically alleged respondent Wyner's intention to engage in similar displays in the future, J.A. 17 ¶ 37, and, indeed, without such an allegation, Wyner would have lacked standing after February 14 to press the case forward. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). The respondents' challenge to the bathing suit regulation, moreover, appears to have been ex clusively a challenge to the regulation as applied to expressive activity at MacArthur Beach. Pet. App. 3a. Respondents never argued, for example, that the bathing suit regulation was unconstitutional as applied to beachgoers who opposed wearing suits because of tan lines, rather than because of a desire to engage in expressive activity. Finally, respondents continued to press their as-applied challenges at the summary judgment stage, id. at 47a n.3, and lost that claim due to a failure of proof of any particular facts to which the regulations could be applied, ibid.

16 See Doran, 422 U.S. at 932; cf. United States v. United States Smelting Ref. & Mining Co., 339 U.S. 186, 198-199 (1950) (failure to appeal temporary injunction does not make it law of the case).

17 See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993); Mitchell v. Forsyth, 472 U.S. 511 (1985); Fed. R. Civ. P. 23(f); cf. 28 U.S.C. 1292(b).

18 For the same reason, the fact that a preliminary injunction is enforceable through contempt does not render it a ruling on the merits. Contempt is simply a mechanism to enforce judicial orders that, like many judicial sanctions, "depends not on which party wins the lawsuit, but on how the parties conduct themselves during the litigation." Chambers v. NASCO, Inc., 501 U.S. 32, 53 (1991). A "Contempt Order can be neither less 'interim' nor more 'merits-based' than the Prelimi nary Injunction itself." John T., 318 F.3d at 559. Contempt proceed ings, in fact, vindicate the court's authority, not the merits of the plaintiff's claims, and "are not [even] a part of the original cause." Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 445 (1911); see Walker v. City of Birmingham, 388 U.S. 307 (1967). And, of course, contempt is available to enforce a permanent injunction that is not stayed while the appeal is pending, but that does not entitle the plaintiff to attorney's fees if the injunction is reversed on appeal.