When Do Losers Win?
When they seek attorneys fees, of course. Under the so-called American Rule, parties to a litigation bear their own counsel fees. Accordingly, a litigant may recover fees from an adversary only where allowed by contract or statute. As a general rule, fee-shifting statutes confer the right to recover fees upon "prevailing parties." Seems simple enough, right? Well, not for the 11th Circuit. Its decision (pdf) in Sole v. Wyner, (No. 06-531) is on the SCOTUS's docket for argument next week (briefs). I can't improve on LawMemo's summary of the salient facts:
Plaintiffs Wyner and Simon sued in federal district court and obtained a preliminary injunction against state park officials barring interference with plaintiffs’ enactment of a nude peace symbol at a public beach. Later in the case, plaintiffs lost their claims. The district court awarded to the plaintiffs their attorney fees related to the initial preliminary injunction. The 11th Circuit held that the plaintiffs were "prevailing parties" as to the preliminary injunction and were entitled to attorney fees.
The question for the SCOTUS is the degree to which a party must succeed on the merits to be a "prevailing party." The 11th Circuit thinks a party need prevail only a wee bit. The 4th (pdf) has held in substance that the word "prevailing" should be considered to mean, well, prevailing. As in winning. On the merits. At the end.
To be fair to the 11th, it's not as though the court would affirm an award of fees in connection with a successful motion for scheduling order. Its decision in Wyner turns on its view that the plaintiff's 
preliminary injunction victory was, in some sense, a victory on the merits. That is, the PI resolved a substantive issue between the parties as opposed merely to maintaining the status quo. Still, by the time the 11th heard the case, there was no sense in which the plaintiff had prevailed on the merits of its claims. Although an affirmance would not be the strangest thing to ever happen at the Court, this case appears as close to a slam dunk reversal as a Supreme Court case gets.
Parting Shot: The 11th Circuit's opinion in this action is marked DO NOT PUBLISH. Perhaps the question has been discussed before and I've missed it, but I'd be curious just often the Court finds itself granting certiorari in connection with unpublished dispositions. Frankly, I am sick to death of finding helpful cases that are unpublished and, hence, unusable in many courts. Fortunately, under new Fed. R.A.P. 32.1, federal courts of appeals may no longer "prohibit or restrict" the citation of unpublished opinions. Unfortunately, new Rule 32.1 only covers unpublished opinions that are unpublished withheld hidden suppressed memory-holed
