Sunday, January 14, 2007

Cert from SDFLA

Our appellate correspondent, Richard Rosenthal, writes in:

On Friday the U.S. Supreme Court granted cert on a fascinating case that originated right here in S.D. Fla. Without delving too much into details -- those interested can go to Wyner v. Struhs, 254 F. Supp. 2d 1297 (S.D. Fla. 2003) -- Judge Middlebrooks awarded "prevailing party" attorneys' fees to the ACLU of Florida after it successfully obtained a preliminary injunction that allowed a nude anti-war protest in a public park. But the catch is that after "winning" the preliminary injunction, the ACLU "lost" its request for a permanent injunction because the protest was was one-time deal, rather than a recurring performance. The Eleventh Circuit -- in an unsigned, unpublished opinion -- affirmed Judge Middlebrooks's award of attorneys' fees. Wyner v. Struhs, 179 Fed. Appx. 566 (11th Cir. 2006). Although that unpublished affirmance is not even binding precent within the Eleventh Circuit, it nevertheless conflicted with a Fourth Circuit ruling (Smyth v. Rivero, 282 F.2d 268 (4th Cir. 2002)), and the Supreme Court has now stepped in to resolve the conflict. After the Supreme Court's virtual elimination of attorneys' fees under the "catalyst theory," a Supreme Court ruling in this case could deliver yet another serious blow to civil rights organizations and other "do-gooder" litigants. Stay tuned.....

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