Michael W. Sole, Secretary, Florida Department of Environmental Protection, et al. v. T. A. Wyner, et al.
Preliminary Injunctions, Prevailing Party Status, Attorney's Fees, Remedies
Respondents T.A. Wyner and George Simon filed a civil action against the manager
of a Florida State Park and the head of the Florida Department of Environmental
Protection challenging a regulation imposing minimum clothing requirements in
Florida's State Parks, which prevented Respondents from performing annual plays
and political performances in the nude at the park. On February 13, 2003, less than
twenty four hours later, the district court held an emergency hearing, at which the
district court entered a preliminary injunction prohibiting the Petitioners from
arresting or interfering with Respondent's performance. Thereafter, after a hearing
on the merits, Respondents lost their claim for a permanent injunction and other
relief. The district court determined that Respondents were prevailing parties
because of the preliminary injunction, and awarded Respondents attorney's fees
and costs. Petitioners appealed the finding of prevailing party status and the award
of attorney's fees. The Eleventh Circuit Court of Appeals affirmed in Wyner v.
Struhs, 179 Fed.Appx. 566, 2006 WL 1071850 (C.A.11(Fla.). (App. la)
Whether the 11th Circuit decision in Wyner v. Struhs, 179 Fed.Appx. 566, 2006 WL
1071850 (C.A.11(Fla.). (App.la) is correct in holding that a preliminary injunction is
relief on the merits, or whether the Fourth Circuit decision in Smyth v. Rivero, 282
F.2d 268 (4th Cir. 2002), certiorari denied by 537 U.S. 825 (2002), is correct in
holding that a preliminary injunction is not a ruling on the merits and thus cannot be
the basis for prevailing party status?
Whether the Eleventh Circuit in Wyner v. Struhs, 179 Fed.Appx. 566, 2006 WL
1071850 (C.A.11(Fla.). (App. la) was incorrect in affirming the district court's order
finding that Respondents are prevailing parties where their request for permanent
injunctive relief was denied, although at an abbreviated hearing Respondents were
awarded interim relief?
U.S. Court of Appeals - 11th Circuit Opinion Filed: April 25, 2006 -- Coming Soon