Posted by: Patricia Salkin | January 15, 2008

Eighth Circuit Finds Plaintiff in Billboard Case Not a Prevailing Party for Purposes of Qualifying for Attorney Fees

In certain types of land use disputes, the prevailing party may be entitled to statutory attorneys fees under 42 U.S.C. §1983. These fees are available when constitutional rights have been violated, and they are specifically referenced in statutes impacting land use decision making such as the Federal Fair Housing Act Amendments and the Religious Land Use and Institutionalized Persons Act.  The question is, however, what exactly constitutes a “prevailing party.”  A party may be successful in seeking temporary or injunctive relief, or in getting the government to amend a law or regulation before a court orders such action, but does this rise to the same level as a court opinion that finds a substantive violation of the covered protected interest or right?  This was a recent question posed to the 8th Circuit Court of Appeals resulting from billboard litigation. 

After the City of Hopkins refused to process applications from Advantage Media, L.L.C. to erect four 672 square foot billboards containing trivision technology (this is a billboard that consists of four or six inch vertical slates that rotate on a timer to display only one message at a time, and each side of the billboard is capable of displaying three messages), Advantage filed a facial lawsuit against the City alleging that the sign ordinance violated various constitutional provisions including the First Amendment. The City then sent Advantage Media a letter stating that it rejected the applications because the proposed signs violated the ordinance provisions regulating the size of the signs (the largest signs permitted in the City were 250 feet).  Advantage then filed a motion for a preliminary injunction to enjoin enforcement of the ordinance, which was granted by the district court since they found that a number of provisions of the ordinance were constitutionally suspect and that they could not be severed.  As a result, the City adopted a new sign ordinance that cured the constitutional infirmities that formed the basis of Advantage Media’s lawsuit.  Advantage Media sought legal fees as a result of the litigation. 

The District Court held that Advantage Media was not a prevailing party at that stage because the injunction “was preliminary in nature and was not a decision that granted actual relief on the merits.”  A two day jury trial was then held as to whether the City had unconstitutionally refused the applications from Advantage Media based on their content and whether Advantage was entitled to damages. The jury determined that the applications were denied on a content neutral basis and that therefore Advantage Media was not entitled to even nominal damages. Advantage Media then sought attorney fees and costs related to the preliminary injunction, and the District Court denied this motion on the grounds that it was not a prevailing party under 42 U.S.C. § 1988, and Advantage Media brought the current appeal. 

The Eighth Circuit Court of Appeals affirmed the decision, explaining that to be a “prevailing party” the U.S. Supreme Court has said that “a plaintiff ‘prevails’ when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.””  See, Farrar v. Hobby, 506 U.S. 103, 111-12 (1992). Furthermore, in Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598 (2001), the Supreme Court rejected the “catalyst” theory which had permitted a plaintiff to recover fees if the lawsuit achieved the desired result through a voluntary change in the defendant’s conduct. Rather, the Court said, to be a prevailing party, the party must obtain judicially sanctioned material alteration of the legal relationship between the parties to a lawsuit.  In finding that Advantage Media was not a prevailing party, the Court noted that it “failed to obtain permission to erect the signs, to that its free speech rights had been violated, or to provide that the preliminary injunction effected a material alteration in the parties’ legal relationship,” and it received no relief that materially altered the relationship between it and the City.  Therefore Advantage Media was not entitled to attorney fees.  

Advantage Media, L.L.C. v. City of Hopkins, 2008 WL 65599 (C.A. 8, Minn. 1/8/2008).   

The opinion can also be accessed at:

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