Per Biodiversity Coalition Alliance v. Stem, 2008 WL 714047, *9-*12 (10th Cir. Mar. 18, 2008)
When I started this blog, I assumed it would take several months before any case I had written about would be considered by the Justices. Reality, however, proved otherwise. On behalf of a unanimous Tenth Circuit panel, Justice O’Connor wrote an opinion on this split (previously discussed here - 4th bullet).
In this case, Plaintiff BCA sued to prevent logging from taking place in a national forest. The District Judge granted a preliminary injunction, relying primarily on the equities of the case. While discovery was going forward, lightening literally struck the forest, creating a forest fire and forcing the Forest Service to develop alternate plans. The case was thus mooted, but BCA moved for attorneys’ fees, claiming to be the prevailing party under § 1988. Following previous precedent, Justice O’Connor and the panel hold that a preliminary injunction only satisfies the prevailing party inquiry under Buckhannon if it is granted based on the merits of a case, rather than the equities.
The CAs 2,5,6,7,11 agree; only the CAs 4,9 employ a different test. The Ninth Circuit believes that a preliminary injunction almost always satisfies the prevailing party standard unless the plaintiff subsequently loses on the merits, whereas the Fourth Circuit holds that a preliminary injunction can almost never satisfy Buckhannon’s requirements.
Also in this opinion, Justice O’Connor leaves three key words out of her description of the Court’s holding in Sole v. Wyner. The three words are in the brackets of this quotation: “The plaintiff there had filed a lawsuit claiming the state’s "Bathing Suit" rule, which required all patrons of state parks to wear[, at a minimum,] a thong and (if female) a bikini top, violated the First Amendment.” Those three words sort of change the rule, now don’t they? h/t How Appealing.
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