Higher Taste, Inc. v. City of Tacoma

For the purposes of 42 U.S.C. § 1988, a party may be considered the prevailing party if a preliminary injunction is granted, based on a finding that the party was likely to succeed on the merits, even if a settlement was reached before final adjudication.

Higher Taste Inc., a non-profit organization, spreads its message by selling T-shirts on a walkway between the Tacoma Zoo’s entrance and a parking area. The Metropolitan Park District of Tacoma banned the sale of merchandise on the walkway. Higher Taste sued the District for violating its First and Fourteenth Amendment rights and successfully sought an injunction against the ban. A settlement was reached that allowed Higher Taste to sell its T-shirts on the walkway, but none was reached on attorney fees. Higher Taste moved to recover attorney’s fees under 42 U.S.C. § 1988(b). The motion was denied because Higher Taste was not a prevailing party under § 1988. The Ninth Circuit found that “a plaintiff ‘prevails’ [under § 1988] … ‘when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.’” The Court defined “relief on the merits” as occurring “when the material alternation of the parties’ legal relation is accompanied by ‘“judicial imprimatur on the change.’” The panel reasoned that “a preliminary injunction satisfies the judicial imprimatur requirement if it is based on a finding that the plaintiff has a shown a likelihood of success on the merits.” Since Higher Taste won its preliminary-injunction on the likelihood that it would succeed on its First Amendment claim, Higher Taste’s preliminary injunction had satisfied the judicial imprimatur requirement. Higher Taste’s relief had “materially altered the parties’ legal relationship” because the settlement made the preliminary-injunction into a permanent one. Thus, the settlement had made “a lasting alteration of the parties’ legal relationship.” Since Higher Taste had satisfied the requirements of a prevailing party under § 1988, the Court held that “it ‘should … recover an attorney’s fee.’” REMANDED AND REVERSED.