McQueary v. Conway

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0225p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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BART MCQUEARY,
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Plaintiff-Appellant,
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No. 09-5807
v.
,
>
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JACK CONWAY, Attorney General of the

Defendant-Appellee. -
Commonwealth of Kentucky,
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N
Appeal from the United States District Court
for the Eastern District of Kentucky at Frankfort.
No. 06-00024—Karen K. Caldwell, District Judge.
Argued: April 22, 2010
Decided and Filed: July 29, 2010
Before: GUY, BOGGS and SUTTON, Circuit Judges.

_________________

COUNSEL
ARGUED: William E. Sharp, AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY,
Louisville, Kentucky, for Appellant. Tad Thomas, OFFICE OF THE KENTUCKY
ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. ON BRIEF: William E.
Sharp, David A. Friedman, AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY,
Louisville, Kentucky, for Appellant. Tad Thomas, Lisa K. Lang, OFFICE OF THE
KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
_________________

OPINION
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SUTTON, Circuit Judge. In 2006, Bart McQueary challenged the validity of a
Kentucky law placing limits on protests at military funerals, claiming that the law violated
his free-speech rights under the First and Fourteenth Amendments. The district court granted
McQueary’s motion to enjoin enforcement of the law on a preliminary basis, soon after
which Kentucky repealed the relevant provisions of the statute. The Commonwealth’s

1
No. 09-5807 McQueary v. Conway Page 2

voluntary repeal of the law, the parties now agree, mooted McQueary’s § 1983 action. Yet
the parties take sides over whether, in the aftermath of the Commonwealth’s repeal of the
law, McQueary is a “prevailing party” eligible for attorney’s fees under § 1988.

I.

In March 2006, the Kentucky legislature added three misdemeanors to its criminal
code, all designed to discourage protests by the Westboro Baptist Church, whose members
have become known for staging anti-homosexual protests at military funerals—a practice
that McQueary’s attorney acknowledges is “controversial (and offensive to many),” R.43 at
7. See 2006 Ky. Laws Ch. 50–51; Snyder v. Phelps, 580 F.3d 206, 211–12 (4th Cir. 2009),
cert. granted, 130 S. Ct. 1737 (2010). In full, the three new misdemeanors read as follows:

A person is guilty of disorderly conduct in the first degree when he or she:
(a) In a public place and with intent to cause public inconvenience,
annoyance, or alarm, or wantonly creating a risk thereof:
1. Engages in fighting or in violent, tumultuous, or
threatening behavior;
2. Makes unreasonable noise; or
3. Creates a hazardous or physically offensive condition by
any act that serves no legitimate purpose; and

(b) Acts in a way described in paragraph (a) of this subsection
within three hundred (300) feet of a:
1. Cemetery during a funeral or burial;
2. Funeral home during the viewing of a deceased person;
3. Funeral procession;
4. Funeral or memorial service; and

(c) Knows that he or she is within three hundred (300) feet of an
occasion described in paragraph (b) of this subsection.

2006 Ky. Laws Ch. 50 § 1(1), codified as amended at Ky. Rev. Stat. § 525.055(1).

A person is guilty of disrupting meetings and processions in the first degree
when, with intent to prevent or disrupt a funeral or burial, funeral home
viewing of a deceased person, funeral procession, or funeral or memorial
service for a deceased person, he or she does any act tending to obstruct or
interfere with it physically or makes any utterance, gesture, or display
designed to outrage the sensibilities of the group attending the occasion.
No. 09-5807 McQueary v. Conway Page 3

2006 Ky. Laws Ch. 50 § 3, codified at Ky. Rev. Stat. § 525.145(1).

A person is guilty of interference with a funeral when he or she at any time
on any day:
(a) Blocks, impedes, inhibits, or in any other manner obstructs or
interferes with access into or from any building or parking lot of a
building in which a funeral, wake, memorial service, or burial is
being conducted, or any burial plot or the parking lot of the
cemetery in which a funeral, wake, memorial service, or burial is
being conducted;
(b) Congregates, pickets, patrols, demonstrates, or enters on that
portion of a public right-of-way or private property that is within
three hundred (300) feet of an event specified in paragraph (a) of
this subsection; or
(c) Without authorization from the family of the deceased or person
conducting the service, during a funeral, wake, memorial service, or
burial:
1. Sings, chants, whistles, shouts, yells, or uses a bullhorn,
auto horn, sound amplification equipment, or other sounds
or images observable to or within earshot of participants in
the funeral, wake, memorial service, or burial; or
2. Distributes literature or any other item.

2006 Ky. Laws Ch. 50 § 5.

Roughly one month after the passage of these laws, Bart McQueary, a Kentucky
resident who had joined these protests in the past and wanted to do so again, filed a lawsuit
against Kentucky’s Attorney General in federal court. See R.1. McQueary claimed that
§§ 5(b) and 5(c) of the March 2006 Act, located in the third of the new laws, violated his
First and Fourteenth Amendment rights in several ways. He wanted to “congregate[],
picket[]” and “demonstrate[]” in a non-disruptive way on public rights-of-way within 300
feet of funerals, yet the 2006 Act appeared to prevent him from doing so. 2006 Ky. Laws
Ch. 50 § 5(b). He wanted to make sounds and display images “observable to or within
earshot of” funerals without permission from the family of the deceased and without
disrupting the funeral, yet the 2006 Act appeared to prevent him from doing so. 2006 Ky.
Laws Ch. 50 § 5(c). And he wished to “distribute[] literature” during his funeral protests,
yet the 2006 Act appeared to prohibit him from doing so. 2006 Ky. Laws Ch. 50 § 5(c).
No. 09-5807 McQueary v. Conway Page 4

McQueary asked the district court to declare §§ 5(b) and 5(c) unconstitutional on their face
and to enjoin their enforcement.

In September 2006, the district court preliminarily enjoined enforcement of §§ 5(b)
and 5(c), finding it likely that the provisions were unconstitutionally overbroad. See
McQueary v. Stumbo (McQueary I), 453 F. Supp. 2d 975, 997 (E.D. Ky. 2006). Six months
later, in March 2007, the Kentucky legislature repealed these two subsections of the 2006
Act. See 2007 Ky. Laws Ch. 107 § 3.

After Kentucky repealed the challenged provisions, the district court dismissed the
lawsuit as moot. See McQueary v. Conway (McQueary II), 634 F. Supp. 2d 821, 830 (E.D.
Ky. 2009). In the same order, the court denied McQueary’s request for attorney’s fees. The
court reasoned that McQueary did not directly benefit from the preliminary injunction
because the central premise of its likelihood-of-success conclusion—overbreadth—did not
necessarily establish that McQueary could picket the way he wanted to. See id. at 832–33.
And because McQueary did not challenge other provisions of the 2006 Act prohibiting
“violent, tumultuous, or threatening behavior” near funerals, Ky. Rev. Stat. Ann. § 525.055,
the court thought it likely that, even after the court’s preliminary injunction and the
legislature’s repeal of the challenged statutes, McQueary would not be able to engage in the
funeral protests, McQueary II, 634 F. Supp. 2d at 833. McQueary appeals the court’s
rejection of his request for fees.

II.

In trying to resolve the thorny questions raised by McQueary’s appeal—whether or
when the winner of a preliminary injunction may be treated as a “prevailing party” entitled
to attorney’s fees—a few basics are in order. There is no common law right to attorney’s
fees. Under the “American Rule,” the “general practice” is not to award fees to prevailing
parties “absent explicit statutory authority.” Buckhannon Bd. & Care Home v. W. Va. Dep’t
of Health and Human Res., 532 U.S. 598, 602 (2001). Under § 1988, as under several other
fee-shifting statutes, Congress has explicitly empowered the courts to grant fees to parties
who win § 1983 actions, among other civil rights actions:
No. 09-5807 McQueary v. Conway Page 5

In any action or proceeding to enforce a provision of . . . [§] 1983 . . . , 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. . . .

42 U.S.C. § 1988(b); see, e.g., id. § 3613(c)(2) (authorizing fee awards to the “prevailing
party” in Fair Housing Amendments Act cases); id. § 12205 (same in Americans with
Disabilities Act cases); id. § 2000e-5(k) (same in Civil Rights Act cases); id. § 1973l(e)
(same in Voting Rights Act cases).

“[P]revailing party” is a “legal term of art,” Buckhannon, 532 U.S. at 603, one that
two recent decisions of the Supreme Court help to define. In Buckhannon, the plaintiff
sought an injunction barring enforcement of a West Virginia statute and obtained a court-
ordered preliminary injunction, though one to which West Virginia consented. See id. at
601. Two months after the district court rejected the State’s sovereign immunity defense and
one month after it denied the State’s motion for summary judgment, the State repealed the
statute, after which the district court dismissed the case as moot and denied the plaintiff’s
request for attorney’s fees. See id. The Supreme Court affirmed the denial of fees, rejecting
the “catalyst theory” for awarding fees, under which a plaintiff “prevailed” if he “achieve[d]
the desired result because the lawsuit brought about a voluntary change in the defendant’s
conduct,” such as a legislative repeal of a challenged statutory provision. Id. at 601–02.
That theory, the Court reasoned, overlooks the legal reality that “prevailing party” covers
only parties “in whose favor a judgment is rendered.” Id. at 603 (internal quotation marks
omitted). A defendant’s voluntary change, even one precipitated by litigation, does not
amount to “a court-ordered change in the legal relationship” between the plaintiff and
defendant, as required to establish prevailing-party status. Id. at 604.

In Sole v. Wyner, 551 U.S. 74, 86 (2007), the Court established that the “court-
ordered change in the legal relationship” between a plaintiff and defendant must be
“enduring” and irrevocable. Id. That did not happen in Sole because the trial court dissolved
the preliminary injunction it entered in favor of the claimant. A preliminary injunction, the
Court held, does not establish prevailing-party status if it is “reversed, dissolved, or
otherwise undone by the final decision in the same case,” because § 1988 requires lasting
relief, not the temporary, “fleeting success” such an injunction represents. Id. at 83; see also
id. at 82 n.3. Sole, however, reserved the question presented here: “whether, in the absence
No. 09-5807 McQueary v. Conway Page 6

of a final decision on the merits . . . , success in gaining a preliminary injunction may
sometimes warrant an award of counsel fees.” Id. at 86. See also Hewitt v. Helms, 482 U.S.
755, 760 (1987) (rejecting fee request for “interlocutory” victory and explaining that
“[r]espect for ordinary language requires that a plaintiff receive at least some relief on the
merits of his claim before he can be said to prevail”).

After Buckhannon but before Sole, our court considered whether the winner of a
preliminary injunction was a “prevailing party.” In Dubuc v. Green Oak Township, 312 F.3d
736 (6th Cir. 2002), a landowner filed a lawsuit against a township, charging the township
with refusing to permit him to divide his lot in retaliation for his exercise of free-speech
rights. Early in the lawsuit, the claimant obtained a preliminary injunction ordering the
township to issue him a temporary certificate of occupancy as long as he complied with
seven conditions. Id. at 753. The district court denied the request for “interim fees,” and we
affirmed. See id. at 753–54. In the context of a preliminary injunction, we reasoned, “there
is only prevailing party status if the injunction represents ‘an unambiguous indication of
probable success on the merits, and not merely a maintenance of the status quo ordered
because the balance of equities greatly favors the plaintiff.’” Id. at 753 (quoting Webster v.
Sowders, 846 F.2d 1032, 1036 (6th Cir. 1988)). Because the injunction was not a “clear
victory” for the claimant and was issued only in connection with several “conditions”
imposed on the claimant, Dubuc upheld the district court’s denial of fees. Id. at 754. The
claimant’s objective in the lawsuit, we concluded, was not to obtain a temporary certificate
of occupancy, which is all that the preliminary injunction provided, but to obtain damages
for alleged violations of his constitutional rights, which the court ultimately denied. Id.
(Because Dubuc predates Sole, the court never addressed a more basic reason for denying
that particular fee request: A claimant may not obtain interim attorney’s fees for a
preliminary injunction that is later dissolved. See Sole, 551 U.S. at 83.)

There are two more threads to the prevailing-party inquiry. One, to be a prevailing
party, the plaintiff must obtain a “material” change in the legal relationship between himself
and the defendant. Sole, 551 U.S. at 82, 86 (internal quotation marks and modifications
omitted). A material change “directly benefit[s]” a plaintiff by modifying the defendant’s
behavior toward him. Farrar v. Hobby, 506 U.S. 103, 111 (1992); see also Tex. State
Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989). Absent a direct
No. 09-5807 McQueary v. Conway Page 7

benefit, the plaintiff achieves only a symbolic victory, which § 1988(b) does not compensate.
See Farrar, 506 U.S. at 113; Tex. State Teachers Ass’n, 489 U.S. at 792.

Two, the idea behind § 1988 is to award fees to deserving parties, not to generate
“satellite” disputes over fees, City of Burlington v. Dague, 505 U.S. 557, 566 (1992); see
Buckhannon, 532 U.S. at 610, which prompt “a second major litigation,” Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). In assessing fee requests, the Court thus tends to
eschew fact-based and speculative inquiries into why government bodies altered their
conduct because they (1) tend to “distract[] . . . from,” not further, § 1988’s goal of
encouraging adequate representation for civil rights plaintiffs, Tex. State Teachers Ass’n, 489
U.S. at 791, and (2) waste scarce judicial resources on questions “which [are] almost
impossible to answer,” id.; see Dague, 505 U.S. at 566.

That is all well and good. But none of this readily resolves today’s case: McQueary
does not invoke the “catalyst” theory; he did not ultimately lose on the merits; the
preliminary injunction, as we will explain shortly, materially changed the relationship
between the parties; and the preliminary injunction turned at least in part on the district
court’s assessment of the merits. Keeping in mind the Court’s admonishment that fee
inquiries should not generate satellite litigation, are there any other considerations that might
clarify the inquiry? Several possibilities come to mind:

* Perhaps, in view of the nature of a preliminary injunction, success on this type of
interim relief never suffices. The statute after all refers to “the” prevailing party, not “a”
prevailing party, 42 U.S.C. § 1988(b), suggesting that the only court-ordered change in the
legal relationship between the parties that matters should be a lasting one, namely the change
that culminates in a final judgment. Otherwise, individuals and States—both “prevailing”
parties at times who “may” obtain fees—might seek fees for all manner of interim victories
whenever for one reason or another the case does not proceed to final judgment. Cf. Hewitt,
482 U.S. at 760 (surviving a motion to dismiss “is not the stuff of which legal victories are
made”). Adding force to the idea that a “preliminary” victor is never a prevailing party is
this reality: Our review of a preliminary injunction ruling, even one that turns on the merits
and even one that is resolved through a published opinion, is not binding on the panel that
reviews the ultimate final injunction decision. See Univ. of Tex. v. Camenisch, 451 U.S. 390,
No. 09-5807 McQueary v. Conway Page 8

395 (1981); Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d
535, 542 (6th Cir. 2007); Smith Wholesale Co., Inc. v. R.J. Reynolds Tobacco Co., 477 F.3d
854, 873 n.13 (6th Cir. 2007).

But this approach, clear as it might be, fails to account for fact patterns in which the
claimant receives everything it asked for in the lawsuit, and all that moots the case is court-
ordered success and the passage of time. When protesters seek an injunction to exercise their
First Amendment rights at a specific time and place—say to demonstrate at a Saturday
parade—a preliminary injunction will give them all the court-ordered relief they need and
the end of the parade will moot the case. In what way are such claimants not prevailing
parties? We think they are. See Young v. City of Chicago, 202 F.3d 1000, 1000 (7th Cir.
2000) (awarding fees to protestors who obtained a preliminary injunction to protest at the
1996 Democratic National Convention, which was the only relief sought). The same is true
of a government employee who seeks to exclude an unconstitutionally obtained report from
an administrative hearing and obtains a preliminary injunction that irrevocably excludes the
report. See Watson v. County of Riverside, 300 F.3d 1092, 1095–96 (9th Cir. 2002). So also
for a plaintiff who seeks to delay enforcement of a statute until a certain event occurs—say
a scheduled public referendum—and the preliminary injunction brings about that result. Cf.
Thomas v. Nat’l Sci. Found., 330 F.3d 486, 493 (D.C. Cir. 2003).

Not all preliminary injunctions, as these examples show, have merely a catalytic
effect. The defendants in these cases did not voluntarily change their conduct. An
immediately enforceable preliminary injunction compelled them to. And in each instance,
the plaintiffs obtained all of the relief they requested once the preliminary injunction served
its purpose. See N. Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1086 (8th Cir. 2006);
Watson, 300 F.3d at 1096.

The plaintiffs in all of these cases, it is true, might have avoided the “preliminary”
label attached to their victories by asking the courts to convert their motions for a
preliminary injunction into motions for a final injunction. See Fed. R. Civ. P. 65(a)(2). Yet
Rule 65 is not the Rosetta Stone to prevailing-party inquiries. A district court may, but it
does not have to, grant Rule 65 requests, and nothing about the nature of the prevailing-party
inquiry suggests that it should turn on whether a district court happens to embrace this
No. 09-5807 McQueary v. Conway Page 9

administrative streamlining device. In the final analysis, the preliminary nature of the relief
does not by itself provide a ground for never granting fees.

* Perhaps preliminary-injunction winners are never eligible for fees for a different
reason. In Sole, the Court held that a preliminary injunction does not establish prevailing-
party status if it is “reversed, dissolved, or otherwise undone by the final decision in the same
case.” 551 U.S. at 83. When a case becomes moot, courts often vacate their earlier rulings
on the theory that a ruling should not stand when the party opposing it is deprived of a
chance to obtain a final ruling on the issue or to seek appellate review of it—due to events
outside of the party’s control, such as the defendant’s voluntary cessation of conduct. See
Alvarez v. Smith, 558 U.S. ___, 130 S. Ct. 576, 581 (2009); United States v. Munsingwear,
Inc., 340 U.S. 36, 40 (1950); cf. U.S. Philips Corp. v. KBC Bank N.V., 590 F.3d 1091,
1093–94 (9th Cir. 2010) (collecting cases holding that preliminary injunctions automatically
dissolve upon final judgment).

The Munsingwear doctrine suggests a potentially straightforward approach to the
fees question: Sole says that “dissolved” or “otherwise undone” preliminary injunctions do
not warrant fees; mootness generally requires a court to vacate its earlier rulings, including
any preliminary injunction granted in the case; fees for preliminary injunctions therefore are
not permitted under Sole. But this approach again fails to account for the instances in which
a party has prevailed by every measure of victory, as illustrated above. The Munsingwear
rule, moreover, is not as clear as day: It has exceptions of its own, see, e.g., U.S. Bancorp
Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 24 (1994) (Munsingwear does not apply
to voluntary settlements), and vexing issues often arise over whether a case is moot in the
first place, see, e.g., Friends of Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 189 (2000) (a defendant’s voluntary change in conduct moots a case only if it is
“absolutely clear” alleged wrongdoing is unlikely to recur); Honig v. Doe, 484 U.S. 305, 318
(1988) (a case avoids mootness if “capable of repetition, yet evading review”). All of these
exceptions have little to do with the status of a party’s victory, precluding us from saying
that preliminary-injunction winners are never eligible for prevailing-party status on this basis
alone.
No. 09-5807 McQueary v. Conway Page 10

* Perhaps instead preliminary-injunction winners are always eligible for fees.
Buckhannon says that “a court-ordered change in the legal relationship” between the plaintiff
and defendant suffices to establish prevailing-party status, 532 U.S. at 604, and the granting
of a preliminary injunction assuredly changes the legal relationship between the parties,
permitting the claimant to do something that the defendant previously resisted. Rather than
doing too little, however, this approach does too much. Some preliminary injunctions have
nothing to do with the merits, offering no insight into whether one party or the other will
prevail at the end of the case. Some initial injunctions, sometimes called stay-put or status
quo injunctions, turn more on the grave risks of irreparable harm to one party or to the public
interest than on the legal virtues of the parties’ positions. See Webster v. Sowders, 846 F.2d
1032, 1036 (6th Cir. 1988) (denying fees to a plaintiff who obtained an injunction “because
the balance of the equities greatly favor[ed]” maintaining “the status quo”).

Several courts have rejected fee requests for obtaining such injunctions. See
Dearmore v. City of Garland, 519 F.3d 517, 524 (5th Cir. 2008) (granting fees only if the
claimant obtains “an unambiguous indication of probable success on the merits”); N.
Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1086 (8th Cir. 2006) (denying fees where
injunction “granted only interim relief that preserved the status quo”); Thomas, 330 F.3d at
493 (denying fees where injunction “merely preserved the status quo”); John T. ex rel. Paul
T. v. Del. County Intermediate Unit, 318 F.3d 545, 558 (3d Cir. 2003) (denying fees where
injunction was “not based on the merits of [the plaintiff’s] claims”); Race v. Toledo-Davila,
291 F.3d 857, 858–59 (1st Cir. 2002) (denying fees where injunction merely safeguarded
claimant’s rights during the litigation). No court to our knowledge holds that the victors of
such holding-pattern injunctions and nothing more automatically receive fees, though one
court comes close. Cf. Richard S. v. Dep’t of Developmental Servs. of Cal., 317 F.3d 1080,
1088–89 (9th Cir. 2003).

A similar defect defeats a related intuition, permitting fees whenever the nature of
the victory is one that Congress has permitted the losing party to appeal. That would be true
of final judgments, see 28 U.S.C. § 1291, and of the granting or the denial of preliminary
injunctions, see 28 U.S.C. § 1292(a). But that rule, too, picks up orders that have nothing
to do with success on the merits. Even aside from the stay-put injunctions identified above,
it would extend to class certification orders, which Congress has permitted parties
No. 09-5807 McQueary v. Conway Page 11

immediately to appeal (with the permission of the court of appeals). See Fed. R. Civ. P.
23(f). “A procedural victory that may be a way station to utter substantive defeat creates no
right to fees.” Richardson v. Penfold, 900 F.2d 116, 119 (7th Cir. 1990); see Hardt v.
Reliance Standard Life Ins. Co., No. 09-448, 560 U.S. ___, slip op. at 11–12 (May 24, 2010)
(holding that “purely procedural victor[ies]” do not qualify for fees even under standards
“less stringent” than the prevailing-party requirement).

All of this leaves us with a contextual and case-specific inquiry, one that does not
permit us to say that preliminary-injunction winners always are, or never are, “prevailing
parties.” In the aftermath of Buckhannon and Sole, however, we can say that the
“preliminary” nature of the relief—together with the requirement that a prevailing-party
victory must create a lasting change in the legal relationship between the parties and not
merely “catalyze” the defendant to voluntary action—will generally counsel against fees in
the context of preliminary injunctions. With these considerations in mind, we turn to the
district court’s explanation for denying McQueary’s fee request.

First, the court denied fees on the ground that McQueary did not “directly benefit[]”
from the 2006 preliminary injunction. That is not so, however. Before the injunction,
Kentucky could prosecute McQueary for holding a large, controversial sign on a public
sidewalk near a funeral, see 2006 Ky. Laws Ch. 50 §§ 5(b), (c); it could prosecute him for
quietly distributing anti-military literature to mourners entering a funeral home, see id.
§ 5(c); and it could prosecute him for singing songs of protest that the funeral party could
hear but that did not disrupt the funeral, see id. After the injunction, McQueary could do all
of these things without fear of prosecution under these laws. No one disputes that Kentucky
would have prosecuted McQueary in the absence of an injunction, establishing that this
court-ordered freedom materially changed Kentucky’s behavior toward him—at least
temporarily. See DiLaura v. Township of Ann Arbor, 471 F.3d 660, 670 (6th Cir. 2006);
Berger v. City of Mayfield Heights, 265 F.3d 399, 406 (6th Cir. 2001).

Second, in explaining its “direct benefit” ruling, the court added that other Kentucky
laws would prohibit McQueary’s proposed protests. But why should we assess McQueary’s
prevailing-party status based on statutes he never challenged? That is not the norm. In
considering whether a claimant directly benefitted from litigation, we usually measure the
No. 09-5807 McQueary v. Conway Page 12

plaintiff’s gain based on the relief requested in his complaint, not based on the practical
significance of the relief obtained. See Farrar, 506 U.S. at 111–12; Hewitt, 482 U.S. at
760–61; DiLaura, 471 F.3d at 670. Even a single dollar in nominal damages, the pinnacle
of worthless relief, qualifies as a direct benefit. See Farrar, 506 U.S. at 112. In this
instance, McQueary asked the district court to enjoin Kentucky from enforcing two
provisions of Kentucky law, and the preliminary injunction temporarily did so. That the
benefit came through a preliminary injunction may make a difference in the end to the fees
request. But this aspect of the court’s direct benefit analysis does not turn on that point: Its
analysis defeats McQueary’s request for fees no matter whether the court’s order of relief
comes in the form of a preliminary injunction or a final one.

There is a good reason for focusing on the relief the plaintiff requested, not the
additional relief he might have requested. “A request for attorney’s fees should not result
in a second major litigation,” Hensley, 461 U.S. at 437, yet an assessment of the practical
significance of the relief obtained almost always will lead to collateral litigation over the
relevance of these other laws. Cf. Buckhannon, 532 U.S. at 609–10 (raising similar concerns
about looking outside the litigation to assess whether a plaintiff prevailed). To assess
whether McQueary’s proposed protests would violate other provisions of Kentucky law, the
district court would need to develop a factual record defining the precise contours of
McQueary’s proposed “non-disruptive” protests. Would he block access to funeral homes’
driveways and doorways? See Ky. Rev. Stat. Ann. § 525.155. What precisely would he
chant, sing or shout near funerals and how loudly would he do so? When does a noise
become so loud or a sign so offensive that it “prevent[s] or disrupt[s] a funeral”? See id.
§ 525.145. These factual inquiries are difficult in and of themselves, but they are virtually
impossible when it comes to protests not yet undertaken, only anticipated.

All of this would be prelude to a difficult legal inquiry. The district court would
have to decide whether, under the “facts” of this hypothetical protest, McQueary would
violate any other provisions of Kentucky law that the Attorney General might uncover. And
that would require the court to assess any constitutional challenges McQueary might have
to those provisions. The possibility of prosecution under an additional unconstitutional
statute after all could not undermine the practical significance of McQueary’s success. To
say that this would create a costly side show divorced from the merits of the underlying
No. 09-5807 McQueary v. Conway Page 13

dispute is an understatement. To say that it would lead to district court orders more in the
nature of advisory opinions than fee determinations is an unvarnished reality. Cf. Hall v.
Beals, 396 U.S. 45, 48 (1969).

In defending the district court’s reasoning, the Attorney General argues that we owe
deference to the court’s finding that other provisions—restrictions on “violent, tumultuous,
or threatening behavior” and “hazardous and physically offensive condition[s]” near
funerals, Ky. Rev. Stat. Ann. § 525.055—“likely prohibit” McQueary’s proposed,
controversial activities. McQueary II, 634 F. Supp. 2d at 832. But the district court made
no fact findings on this point. It issued the preliminary injunction and denied the fee request
based on the pleadings, leaving us nothing to which we could defer. Id.; McQueary I, 453
F. Supp. 2d at 979.

Nor do we see any basis for concluding that McQueary’s proposed protests would
violate other, unchallenged aspects of Kentucky law. McQueary alleges that he wants to
protest “in a non-disruptive manner.” R.1 ¶ 15; see R.1 ¶¶ 13–14. To deny the request for
fees on the ground that his conduct would violate valid restrictions on “violent, tumultuous,
or threatening behavior,” we would have to do one of two things: assume that McQueary’s
pleadings misrepresent how he planned to behave or infer that non-disruptive protests
involve threatening behavior. Either approach would alter our normal practice of accepting
a complaint’s factual allegations as true and of drawing all reasonable inferences in the
plaintiff’s favor when ruling without an evidentiary record. Cf. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992) (following that rule when assessing standing); Jones v.
City of Cincinnati, 521 F.3d 555, 559 (6th Cir. 2008) (following that rule in evaluating a
motion to dismiss).

The Attorney General’s argument is unavailing for another reason. A plaintiff
crosses the threshold to “prevailing party” status by succeeding on a single claim, even if he
loses on several others and even if that limited success does not grant him the “primary
relief” he sought. Tex. State Teachers Ass’n, 489 U.S. at 790–91; see also Farrar, 506 U.S.
at 111. The significance of the relief obtained goes only to the amount of fees. Eckerhart,
461 U.S. at 434–35. Had McQueary challenged all of Kentucky’s funeral-protest
prohibitions as applied to him, but succeeded only in having §§ 5(b) and 5(c) enjoined as
No. 09-5807 McQueary v. Conway Page 14

overbroad, he would still qualify as a prevailing party. The Attorney General offers no
justification—and we see none—for denying the fees request in toto because McQueary
chose to challenge fewer rather than more provisions of Kentucky law.

Third, the court justified its fee denial on the ground that the injunction was premised
on overbreadth grounds, not on the ground that McQueary’s proposed communications were
constitutionally protected. This, too, is a theory that has nothing to do with the preliminary
nature of the court’s relief; it would apply equally to permanent injunctions. The theory does
not work in either setting. When a plaintiff obtains the greater victory (striking a statute in
all of its applications, i.e., on its face) rather than the more narrow victory (striking the
statute as applied only to his communications), he does not become less eligible for fees.
“Prevailing parties” are winning parties, and a party who succeeds in showing that a law
cannot be enforced in any of its applications due to overbreadth concerns is the epitome of
a prevailing party—for he has won not just on behalf of himself but on behalf of many others
as well. One of the justifications for § 1988 is that it allows individual citizens to act as
“private attorney[s] general,” Tex. State Teachers Ass’n, 489 U.S. at 793, making it odd to
say that the litigant who truly acts on behalf of other citizens by bringing an overbreadth
challenge is not entitled to fees.

Even if we focus on the effect of an overbreadth ruling solely with respect to
McQueary, at any rate, how has he not prevailed? Whether premised on overbreadth
grounds or as-applied grounds, the effect is the same: The injunction bars Kentucky from
prosecuting McQueary under §§ 5(b) and 5(c) and thus alters the legal relationship between
McQueary and the State.

At least four circuits agree that plaintiffs who prevail on overbreadth grounds may
collect attorney’s fees. See Ways v. City of Lincoln, 274 F.3d 514, 520 (8th Cir. 2001);
Phelps v. Hamilton, 120 F.3d 1126, 1130 (10th Cir. 1997) (vagueness challenge); Nash v.
Chandler, 848 F.2d 567, 572 (5th Cir. 1988); Solomon v. City of Gainesville, 796 F.2d 1464,
1466–67 (11th Cir. 1986). No circuit to our knowledge disagrees, and we are not prepared
to be the first.

Fourth, the court briefly justified its denial of fees on an alternative theory—that
“special circumstances” warrant the denial of fees. But the court never explained what made
No. 09-5807 McQueary v. Conway Page 15

the circumstances surrounding this litigation “special” and thus has given us no basis for
assessing this theory for denying fees.

The “special circumstances” exception apparently flows from dicta in Hensley v.
Eckerhart, which says that district courts may deny fees to a prevailing party “in ‘special
circumstances’ when an award would be ‘unjust.’” 461 U.S. at 446. We have acknowledged
the doctrine on several occasions and have observed that a non-prevailing party must make
a “strong showing” to establish special circumstances. Deja Vu v. Metro. Gov’t of Nashville
and Davidson County, 421 F.3d 417, 422 (6th Cir. 2005). But we have never (to our
knowledge) found a “special circumstance” justifying the denial of fees. Id. (later
developments in the law, which would prevent a party from prevailing if case were re-
litigated at time of fees determination, are not special circumstances); see Wikol v.
Birmingham Pub. Schs. Bd. of Educ., 360 F.3d 604, 611 (6th Cir. 2004) (a prevailing party’s
“bad acts” during course of litigation are not a special circumstance); Morscott, Inc. v. City
of Cleveland, 936 F.2d 271, 273 (6th Cir. 1991) (a defendant’s good faith in enacting
challenged provision is not a special circumstance).

It is “extremely rare” to deny fees based on special circumstances in other circuits
as well. Saint John’s Organic Farm v. Gem County Mosquito Abatement Dist., 574 F.3d
1054, 1064 (9th Cir. 2009) (internal quotation marks omitted); but see Bateson v. Geisse,
857 F.2d 1300, 1306 (9th Cir. 1988) (denying fees where court had to “engage in extensive
supplemental research” because of prevailing party’s woefully inadequate briefing). On
remand, the district court remains free to explain why special circumstances exist here.

So far, we have explained why the district court’s explanations for denying fees in
this difficult case do not hold up. Yet we have not explained whether McQueary should
collect fees—and with good reason. That question initially is for the district court, which
had a ring-side view of the underlying proceedings, which is in the best position to make an
initial cut at whether McQueary deserves fees for this preliminary injunction and which is
given considerable deference over most aspects of the fees inquiry. Buckhannon, Sole and
Dubuc make clear, we think, that, when a claimant wins a preliminary injunction and nothing
more, that usually will not suffice to obtain fees under § 1988. What remains unclear is
No. 09-5807 McQueary v. Conway Page 16

when the occasional exceptions to that rule should apply, a contextual and case-specific
inquiry that we ask the district court to undertake in the first instance.

III.

For these reasons, we reverse and remand for further proceedings.