CHURCH OF SCIENTOLOGY FLAG SERVICE, ORG., INC., Plaintiff-Appellant,
v.
CITY OF CLEARWATER, Thomas Bustin, City Attorney of the City of Clearwater,
Lucille Williams, City Clerk of the City of Clearwater, Defendants-Appellees.
No. 91-3760.
United States Court of Appeals,
Eleventh Circuit.
Sept. 30, 1993.
Religious organization petitioned for attorney fees pursuant to s 1988 of
Civil Rights Act on ground that its earlier s 1983 litigation
triggered city's decision to repeal portions of 1983 ordinance which sought to
regulate solicitation of charitable contributions. The United States District
Court for the Middle District of Florida, No. 84-96-CIV-T-17, Elizabeth A.
Kovachevich, J., 773 F.Supp. 321, denied request on ground that
organization had not "prevailed" because its rights were not vindicated as
result of its lawsuit. Organization appealed. The Court of Appeals, Dubina,
Circuit Judge, held that: (1) there was material change in legal relationship
between parties which benefited organization as a result of organization's s
1983 action constituting organization "prevailing party," for purposes of s
1988, and (2) fact that organization continued to challenge that relationship
as modified in 1984 ordinance did not mean that it did not "prevail" as
threshold matter with respect to 1983 ordinance which was repealed.
Vacated and remanded.
[1] CIVIL RIGHTS
Plaintiff must be "prevailing party" to recover attorney fees under s 1988
of Civil Rights Act. 42 U.S.C.A. ss 1983, 1988.
[2] FEDERAL COURTS
Court of Appeals reviews factual findings underlying district court's
determination regarding "prevailing party" status for purposes of s 1988 for
clear error. 42 U.S.C.A. s 1988; Fed.Rules Civ.Proc.Rule 52(a), 28
U.S.C.A.
[3] FEDERAL COURTS
Whether facts as found sufficed to render plaintiff "prevailing party," for
purposes of s 1988 attorney fee award, is legal question reviewed de novo.
42 U.S.C.A. s 1988.
[4] FEDERAL COURTS
Once district court has determined that party has "prevailed" under s 1988,
its award of attorney fees is reviewed for abuse of discretion. 42
U.S.C.A. s 1988.
[5] CIVIL RIGHTS
Scope of district court's discretion to deny attorney fees to "prevailing
party" under s 1988 is exceedingly narrow. 42 U.S.C.A. s 1988.
[6] CIVIL RIGHTS
Religious organization met threshold requirement of "prevailing party"
status, for purposes of s 1988 attorney fee award, where it was undisputed
that s 1983 action brought by organization caused city to amend its 1983
ordinance regulating charitable solicitations which was challenged by
organization and it was clear that amendment significantly affected parties'
legal relationship; 1984 ordinance passed by city abandoned several challenged
provisions, including limited membership exclusion and provision for unfettered
city attorney investigative and prosecutorial discretion, and these successes,
while partial only, were neither technical nor de minimis. 42 U.S.C.A. ss
1983, 1988.
See publication Words and Phrases for other judicial constructions and
definitions.
[7] CIVIL RIGHTS
Religious organization "prevailed," for purposes of s 1988 attorney fee
award, on its asserted right in s 1983 action not to be treated differently
from other religious organizations under First Amendment in its suit
challenging 1983 city ordinance which sought to regulate solicitation of
charitable contributions as a result of city's repeal of challenged limited
membership exemption, action which city conceded at time was caused by
organization's articulation of alleged constitutional infirmities. 42
U.S.C.A. ss 1983, 1988; U.S.C.A. Const.Amend. 1.
See publication Words and Phrases for other judicial constructions and
definitions.
[8] CIVIL RIGHTS
Religious organization "prevailed," for purposes of s 1988 attorney fee
award, in its s 1983 challenge to city ordinance attempting to regulate
solicitation of charitable contributions based upon alleged vagueness, where
some of the ordinance's provisions were clarified in organization's favor,
while others were repealed entirely. 42 U.S.C.A. ss 1983, 1988;
U.S.C.A. Const.Amends. 5, 14.
See publication Words and Phrases for other judicial constructions and
definitions.
[9] CIVIL RIGHTS
Even if challenged provision is clarified against plaintiff's interests he has
succeeded in materially altering legal relationship in manner that confers some
benefit, namely, certainty of clearly stated legal norms that bind him so as to
constitute plaintiff "prevailing party," for purposes of s 1988. 42
U.S.C.A. s 1988.
See publication Words and Phrases for other judicial constructions and
definitions.
[10] CIVIL RIGHTS
It was inappropriate to deny "prevailing party" status to religious
organization merely because organization's pleadings in challenging amended
1984 city ordinance alleged same or similar constitutional defects as its
earlier action challenging 1983 ordinance which had been repealed by city after
district court found it facially unconstitutional in organization's s 1983
action, where fact that organization might or might not ultimately prevail in
those challenges to 1984 ordinance had little to do with question of whether it
prevailed in challenging repealed provisions of 1983 ordinance and fact that
organization continued to challenge relationship as modified did not mean that
it did not prevail as threshold matter with respect to 1983 ordinance. 42
U.S.C.A. ss 1983, 1988.
See publication Words and Phrases for other judicial constructions and
definitions.
*1511 Eric M. Lieberman, Edward Copeland, Rabinowitz, Boudin, Standard,
Krinsky & Lieberman, P.C., New York City, Paul B. Johnson, Johnson & Johnson,
Tampa, FL, for plaintiff-appellant.
Frank Kowalski, Chief Asst. City Atty., M.A. Galbraith, Jr., Alan S. Zimmet,
Covert & Zimmet, Clearwater, FL, Lawrence R. Velvel, Windham, NH, for
defendants-appellees.
Appeal from the United States District Court for the Middle District of
Florida.
Before ANDERSON and DUBINA, Circuit Judges, and CLARK, Senior Circuit Judge.
DUBINA, Circuit Judge:
Appellant Church of Scientology Flag Service Organization, Inc.
("Scientology") challenges the district court's order denying its petition for
attorneys' fees in its civil rights action brought against the appellee, City
of Clearwater, Florida (the "City"). The district court's ruling was based on
its determination that Scientology was not a "prevailing party" under 42
U.S.C. s 1988. [FN1] Because we hold that Scientology has met the threshold
test for prevailing party status, we vacate the district court's order.
FN1. As amended, 42 U.S.C. s 1988, provides in pertinent part:
In any action or proceeding to enforce a provision of sections 1981,
1982, 1983, 1985, and 1986 of this title, title IX of Public
Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its
discretion, may allow the prevailing party, other than the United States, a
reasonable attorney's fee as part of the costs.
I. BACKGROUND
In January, 1984, Scientology filed an action under 42 U.S.C. s 1983 to
enjoin the enforcement of Clearwater Ordinance No. 3091-83 (the "1983
Ordinance"). The 1983 Ordinance sought to regulate the solicitation of
charitable contributions by imposing, inter alia, reporting and record-keeping
requirements and prohibiting fraudulent representations. The district court
conducted a hearing on a motion for permanent injunction and directed counsel
to file post-hearing memoranda by March 16, 1984.
On March 15, 1984, the City enacted Emergency Ordinance No. 3479-84 (the "1984
Ordinance"), which repealed the 1983 Ordinance in part, but retained many of
its provisions. Thereafter, the district court ruled on Scientology's pending
motion to enjoin the repealed 1983 Ordinance. The district court found the
1983 Ordinance facially unconstitutional in its entirety and enjoined its
enforcement permanently. On appeal, we vacated that order as moot, reasoning
that only the 1984 Ordinance remained in effect. Church of Scientology Flag
Serv. Org. v. City of Clearwater, 777 F.2d 598 (11th Cir.1985), cert. denied,
476 U.S. 1116, 106 S.Ct. 1973, 90 L.Ed.2d 656 (1986).
On remand, the district court found the 1984 Ordinance to be constitutional in
its *1512 entirety. [FN2] Thereupon, Scientology petitioned for attorneys'
fees pursuant to 42 U.S.C. s 1988 on the ground that its earlier litigation
triggered the City's decision to repeal portions of the offending 1983
Ordinance.
FN2. That order is the subject of a separate appeal, Church of
Scientology Flag Serv. Org. v. Clearwater, 2 F.3d 1514 (11th Cir.1993).
Scientology claims to have "prevailed" on allegations that the 1983 Ordinance
discriminated against religious organizations, such as itself, that do not
conduct regular prayer meetings. The 1983 Ordinance exempted organizations
that solicit funds from "members," defined as "any person regularly attending
or participating in a charitable organization." 1983 Ord. s 100.01(5). To be
eligible for the exemption, the 1983 Ordinance required organizations to record
and disclose the names of members. Scientology alleged that the exemption had
been included at the request of mainline denominations in Clearwater and that
the principal purpose of the ordinance was to drive Scientology out of
Clearwater. Scientology alleged discrimination in violation of the Free
Exercise Clause, unwarranted governmental entanglement with religion in
violation of the Establishment Clause, both in violation of the First Amendment
to the United States Constitution, and a denial of Equal Protection as
guaranteed by the Fourteenth Amendment to the United States Constitution. As a
result of these challenges to the limited membership exemption and its
disclosure requirement, the provision was repealed by the 1984 Ordinance.
Scientology also challenged a provision granting discretion to the City
Attorney, upon receipt of ten citizen complaints, to investigate a charitable
organization. Reasoning that only "controversial organizations" such as itself
would likely be subject to complaints, Scientology argued that the
investigative authority was merely a ruse by which to justify city harassment,
unbridled by limits on official discretion. The 1984 Ordinance amended the
provision by requiring the City Attorney to investigate upon receipt of ten
complaints. [FN3]
FN3. Although the language of this provision of the 1984 Ordinance appears
somewhat ambiguous, the City concedes that it mandates an investigation
upon the receipt of ten complaints, whereas the 1983 Ordinance merely
conferred discretion to investigate upon receipt of ten complaints.
The 1983 Ordinance, like the 1984 version, required charitable groups to
obtain a city permit to solicit funds, imposed a penalty for solicitation
without a permit, and authorized judicial review of a decision denying a permit
application. Scientology charged that the 1984 Ordinance was overly vague
because it did not state whether the penalty could be invoked against an
organization that solicited without a permit pending judicial review; if the
penalty would have applied in such circumstances, Scientology argued, it would
have constituted an improper prior restraint of religious speech. The 1984
Ordinance attempted to pretermit the prior restraint claim by allowing
solicitation to continue pending judicial review.
The 1984 Ordinance also eliminated a provision requiring disclosure concerning
the tax deductibility of contributions, which Scientology had challenged as
discriminatory on its face and as applied. The new ordinance repealed an
exemption for organizations soliciting from fewer than twenty members, which
Scientology challenged on vagueness grounds, and also clarified other allegedly
vague provisions. However, the bulk of the record-keeping and regulatory
provisions remained intact.
The district court denied Scientology's fee request, ruling that it had not
"prevailed" because, inter alia, its rights were not vindicated as a result of
its lawsuit. Church of Scientology Flag Servs. Org. v. City of Clearwater,
773 F.Supp. 321 (M.D.Fla.1991).
II. STANDARD OF REVIEW
[1][2][3][4][5] A plaintiff must be a "prevailing party" to recover an
attorney's fee under 42 U.S.C. s 1988. Hensley v. Eckerhart, 461 U.S.
424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). We review the factual
findings underlying a district court's determination regarding "prevailing
party" status for clear error. Fed.R.Civ.P. 52(a); Fields v.
*1513 City of Tarpon Springs, 721 F.2d 318, 321 n. 7 (11th Cir.1983);
Romberg v. Nichols, 970 F.2d 512, 517 (9th Cir.1992); see also Perket v.
Secretary of Health and Human Services, 905 F.2d 129, 132 (6th Cir.1990) (
"insofar as the district court based its prevailing party determination on a
finding that Perket's lawsuit was the catalyst for the reinstatement of his
disability benefits, such a finding is a factual conclusion subject to review
for clear error"). Whether the facts as found suffice to render the plaintiff
a "prevailing party" is a legal question reviewed de novo. Cf. Nadeau v.
Helgemoe, 581 F.2d 275, 281 (1st Cir.1978) (analysis has legal as well as
factual component). Once a district court has determined that a party has
"prevailed," its award of attorneys' fees is reviewed for abuse of
discretion. Markham v. International Association of Bridge, etc., 901 F.2d
1022, n. 5 at 1026 (11th Cir.1990); Taylor v. City of Ft. Lauderdale, 810
F.2d 1551 (11th Cir.1987); Solomon v. City of Gainesville, 796 F.2d 1464
(11th Cir.1986). The scope of the district court's discretion to deny fees to
a prevailing party, however, is "exceedingly narrow." Maloney v. Marietta,
822 F.2d 1023, 1025 (11th Cir.1987).
III. ANALYSIS
[6] It is well-settled that a plaintiff is a prevailing party and thus
ordinarily entitled to a fee award of "some kind" if the plaintiff has
succeeded on "any significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit." Hensley, 461 U.S. at 433, 103
S.Ct. at 1939 (footnotes omitted), followed, Texas State Teachers Ass'n v.
Garland Indep. Sch. Dist., 489 U.S. 782, 791-92, 109 S.Ct. 1486, 1493-94, 103
L.Ed.2d 866 (1989).
[A]t a minimum, to be considered a prevailing party within the meaning of
s 1988 the plaintiff must be able to point to a resolution of the dispute
which changes the legal relationship between itself and the defendant ... The
touchstone of the prevailing party inquiry [therefore] must be the material
alteration of the legal relationship of the parties in a manner which Congress
sought to promote in the fee statute. Where such a change has occurred, the
degree of the plaintiff's overall success goes to the reasonableness of the
award under Hensley, not to the availability of a fee award vel non....
Texas State Teachers, 489 U.S. at 792-93, 109 S.Ct. at 1494.
Scientology has met the threshold requirement of "prevailing party" status.
It is undisputed that the suit brought by Scientology caused the City to amend
the 1983 Ordinance and it is clear that the amendment significantly affected
the parties' legal relationship. The 1984 Ordinance abandoned several
challenged provisions, including the limited membership exclusion and the
provision providing for unfettered City Attorney investigative and
prosecutorial discretion. These successes, while partial only, are neither
technical nor de minimis. Id. (citations omitted).
[7] Scientology prevailed on its asserted right not to be treated
differently from other religious organizations. The gravamen of its challenge
was not that the government may not regulate religious organizations, but that
it may not do so in a discriminatory manner that favors one religion over
another. See Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 1683, 72
L.Ed.2d 33 (1982). That right was plainly vindicated by the repeal of the
challenged limited membership exemption, an action which Clearwater conceded at
the time was caused by Scientology's articulation of alleged constitutional
infirmities. See Nadeau, 581 F.2d at 279 (critical inquiry is whether the
suit "prompt[ed] defendants to take action to meet plaintiff's claim....").
[8][9] The same conclusion applies with similar force to a challenge based
upon alleged vagueness. Even if a challenged provision is clarified against
the plaintiff's interests, he has succeeded in materially altering the legal
relationship in a manner that confers some benefit, namely, the certainty of
clearly stated legal norms that bind him. In this case, some of the provisions
were clarified in Scientology's favor, while others were repealed entirely.
Cf. Texas State Teachers, 489 U.S. at 792, 109 S.Ct. at 1494
(dictum) (successful challenge of provision as vague might not alone be
sufficient to constitute *1514 plaintiff as prevailing, especially if
provision had never been enforced).
[10] Moreover, it is inappropriate to deny "prevailing party" status
merely because Scientology's pleadings in challenging the amended 1984
Ordinance alleged the same or similar constitutional defects as its earlier
action. Scientology's challenges were addressed to new features of the amended
ordinance, as well as old features carried over from the 1983 Ordinance. The
fact that Scientology may (or may not) ultimately prevail in those challenges
has little do with the question of whether it prevailed in challenging the
repealed provisions of the 1983 Ordinance. Scientology did not fail when
Clearwater ceased some of its challenged discriminatory conduct merely because
the city persisted in other challenged conduct. For this reason, the fact that
Scientology challenges the 1984 Ordinance as invalid is irrelevant. As
discussed above, there was a material change in the legal relationship between
the parties which benefitted Scientology, and the fact that Scientology
continues to challenge that relationship as modified does not mean that it did
not "prevail" as a threshold matter.
IV. CONCLUSION
Scientology's challenge to the 1983 Ordinance resulted in a material
alteration of its legal relationship with the City. It has therefore prevailed
for purposes of 42 U.S.C. s 1988. The district court's order denying the
fee award is vacated and the case remanded for a determination of the amount of
attorneys' fees to which Scientology as prevailing party is entitled.
VACATED and REMANDED.