Brinkmann v. Town of Southold

• Court: Court of Appeals for the Second Circuit
• Decided: January 23, 2026
• Docket: 24-2763
• Status: Unpublished

Opinion

24-2763-cv Brinkmann v. Town of Southold

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of January, two thousand twenty-six.

PRESENT: AMALYA L. KEARSE, JOHN M. WALKER, JR., JOSEPH F. BIANCO, Circuit Judges. _____________________________________

BEN BRINKMANN, HANK BRINKMANN, MATTITUCK 12500 LLC,

Plaintiffs-Appellants,

v. 24-2763-cv

TOWN OF SOUTHOLD, NEW YORK,

Defendant-Appellee. _____________________________________

FOR PLAINTIFFS-APPELLANTS: CHRISTEN MASON HEBERT (Arif Panju, Jeffrey Redfern, and William Aronin, on the brief ), Institute for Justice, Austin, Texas and Arlington, Virginia.

FOR DEFENDANT-APPELLEE: SCOTT J. KREPPEIN, Devitt Spellman Barrett, LLP, Hauppauge, New York. Appeal from an order of the United States District Court for the Eastern District of New

York (LaShann DeArcy Hall, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court, entered on September 30, 2024, is REVERSED.

Plaintiffs-Appellants Ben Brinkmann, Hank Brinkmann, and Mattituck 12500 LLC (the

“Brinkmanns”) appeal from the district court’s September 30, 2024 order, granting Defendant-

Appellee Town of Southold, New York (the “Town”) attorney’s fees and costs in the amount of

$102,713.77. In the underlying action, the Brinkmanns brought a claim, pursuant to 42 U.S.C.

§ 1983, asserting that the Town violated the Takings Clause of the Fifth Amendment to the United

States Constitution by using eminent domain to take a parcel of land for a park as a pretext for

thwarting the Brinkmanns’ plan to build a hardware store on the land. The Brinkmanns’ legal

theory depended on the viability of a generalized “pretext” limitation on the Takings Clause power

that they claimed is applicable even where the taking is for a public purpose. The district court

dismissed the Brinkmanns’ claim under Federal Rule of Civil Procedure 12(b)(6), and a panel of

this Court affirmed over a dissent. In particular, this Court held that, “when [a] taking is for a

public purpose, courts do not inquire into alleged pretexts and motives.” Brinkmann v. Town of

Southold, 96 F.4th 209, 211 (2d Cir. 2024). About six months after this Court affirmed on the

merits, the district court issued an order adopting a Report and Recommendation of the assigned

Magistrate Judge and awarding $102,713.77 in attorney’s fees and costs to the Town, pursuant to

42 U.S.C. § 1988, because it concluded that the Brinkmanns’ Takings Clause claim was frivolous.

See Brinkmann v. Town of Southold, No. 21-cv-2468 (LDH) (JMW), 2024 WL 4355514, at *2–3

(E.D.N.Y. Sept. 30, 2024). Less than one month after the district court’s order, the Supreme Court

denied the Brinkmanns’ petition for certiorari regarding the merits of their claim, although three

2 justices noted that they would have granted the petition. See Brinkmann v. Town of Southold, 145

S. Ct. 428 (2024) (Mem.). On appeal, the Brinkmanns argue that the district court erred in granting

the Town attorney’s fees and costs because their Takings Clause claim was not frivolous.

“We review a district court’s decision to grant attorney’s fees for abuse of discretion.”

Holick v. Cellular Sales of New York, LLC, 48 F.4th 101, 105 (2d Cir. 2022). In doing so, we assume

the parties’ familiarity with the underlying facts, procedural history, and issues on appeal, to which

we refer only as necessary to explain our decision.

42 U.S.C. § 1988 provides that, in various types of civil rights cases, including those

brought pursuant to 42 U.S.C § 1983, “the [district] court, in its discretion, may allow the prevailing

party . . . a reasonable attorney’s fee[.]” 42 U.S.C. § 1988(b). Although generally used to

compensate a prevailing plaintiff, Section 1988 “authorizes a district court to award attorney’s fees

to a [prevailing] defendant ‘upon a finding that the plaintiff’s action was frivolous, unreasonable,

or without foundation.’” Fox v. Vice, 563 U.S. 826, 833 (2011) (quoting Christiansburg Garment

Co. v. Equal Emp. Opportunity Comm’n, 434 U.S. 412, 421 (1978)). “A claim is frivolous where it

lacks an arguable basis either in law or in fact.” Shakur v. Selsky, 391 F.3d 106, 113 (2d Cir. 2004)

(internal quotation marks and citation omitted). “The fact that a plaintiff may ultimately lose his

case is not in itself a sufficient justification for the assessment of fees” in favor of a defendant.

Hughes v. Rowe, 449 U.S. 5, 14 (1980). This high standard reflects the need to “avoid chilling the

initiation and prosecution of meritorious civil rights actions,” LeBlanc-Sternberg v. Fletcher, 143

F.3d 765, 770 (2d Cir. 1998), and means that “it is very rare that victorious defendants in civil rights

cases will recover attorney[’s] fees,” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 178 (2d Cir.

2006).

3 Here, the crux of the Brinkmanns’ Takings Clause claim was that the Town

unconstitutionally effectuated a taking of their property for a public park as a pretext for defeating

their plan to use the land for a hardware store. See Brinkmann, 96 F.4th at 210. As set forth below,

although the district court and the panel majority rejected the Brinkmanns’ theory under the

Takings Clause, we conclude that the theory was not so unsupported as to be frivolous.

First, the Brinkmanns’ Takings Clause claim presented an issue of first impression in this

Circuit. See id. at 214 (noting that the purported generalized “pretext” limitation on the takings

power “has never presented itself as the dispositive issue in either this Circuit or before the

Supreme Court”). 1 We have concluded that when a claim presents a new question of law, that fact

weighs against characterizing the claim as frivolous. See Kamakazi Music Corp. v. Robbins Music

Corp., 684 F.2d 228, 231 n.6 (2d Cir. 1982) (noting that the defendant’s appeal “presented a new

question of law which cannot be characterized as frivolous” and therefore denying the plaintiff’s

request for an award of attorney’s fees on appeal); accord Suazo v. NCL (Bahamas), Ltd., 822 F.3d

543, 556 (11th Cir. 2016) (“Where an appeal requires a court to decide an issue of first impression

in a circuit court, it is not frivolous.”); Costco Wholesale Corp. v. Hoen, 538 F.3d 1128, 1135 (9th

Cir. 2008) (“We are particularly reluctant to find a colorable argument frivolous when it has been

advanced on a novel issue.”).

Second, the Brinkmanns’ claim was at least arguably supported by a series of decisions

from state high courts. For example, in New England Estates, LLC v. Town of Branford, 988 A.2d

1 The Town argues—and the district court concluded—that rather than presenting an issue of first impression, the Brinkmanns’ Takings Clause claim was squarely foreclosed by this Court’s decision in Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008). However, neither the majority opinion nor the dissent with respect to the merits appeal in this case treated Goldstein as squarely dictating the outcome. See Brinkmann, 96 F.4th at 213 (observing that Goldstein “confirms” the Court’s holding); id. at 227–29 (Menashi, J., dissenting) (concluding that Goldstein did not control the outcome of the Brinkmanns’ claim). We discern no reason to conclude otherwise here. 4 229 (Conn. 2010), the Connecticut Supreme Court stated that “a government actor’s bad faith

exercise of the power of eminent domain is a violation of the takings clause” and “there is no merit

to the . . . claim that a violation of the public use requirement is limited to situations in which the

government takes private property for a use that is not a public use.” Id. at 252. With respect to

the merits appeal in this Court, the majority and dissenting opinions grappled with the applicability

and persuasive value of New England Estates and other state high court decisions. Compare

Brinkmann, 96 F.4th at 214–18 & n.1 (distinguishing, in detail, “a series of [other] state and federal

court decisions which purportedly endorse a generalized ‘pretext’ limitation on the Takings

power”) with id. at 221–25 (Menashi, J., dissenting) (concluding that state high court cases from

Connecticut, Georgia, Pennsylvania, Rhode Island, New Jersey, Massachusetts, Ohio, and Nevada

supported the Brinkmanns’ generalized pretext theory). We have reversed a district court’s grant

of attorney’s fees where the plaintiffs’ claim had less persuasive authority supporting it than the

claim in the instant case. See Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 229–30 (2d Cir. 2004)

(concluding that the district court abused its discretion in granting the defendant attorney’s fees

under Section 1988 where one out-of-circuit district court case supported the plaintiffs’ legal

theory, which “reveal[ed] that plaintiffs had some foundation, albeit a weak one, to bring their

claim”); cf. Panetta v. Crowley, 460 F.3d 388, 399 (2d Cir. 2006) (affirming the denial of attorney’s

fees where the plaintiff’s claim was “perhaps very thin” but was “not frivolous”).

Accordingly, because the legal theory underlying the Brinkmanns’ Takings Clause claim

presented an issue of first impression in this Circuit and was at least arguably supported by multiple

state high court decisions, we conclude it was not “frivolous, unreasonable, or without foundation.”

Christiansburg, 434 U.S. at 421.

5 The procedural history of this case further supports this conclusion. The legal viability of

the Brinkmanns’ Takings Clause claim was a close enough call to generate a detailed opinion by

the district court, an extensive published opinion by the panel majority on appeal, with a thorough

dissent from one judge, 2 and the votes of three Supreme Court justices to grant certiorari. If the

Brinkmanns’ claim was frivolous, it would not have “deserved and received [this] careful

consideration” from all three levels of the federal judiciary. Hughes, 449 U.S. at 15. That careful

consideration revealed reasonable disagreement over the merits of the claim, and “[a] legal point

that is arguable on its merits is by definition not frivolous.” Cuadra v. Sullivan, 837 F.2d 56, 58

(2d Cir. 1988); see also Equal Emp. Opportunity Comm’n v. J.B. Hunt Transp., Inc., 75 F. App’x

853, 855 (2d Cir. 2003) (summary order) (stating that a dissenting opinion supporting a claim

“should all but preclude a finding that the . . . claim was unreasonable or frivolous”). And the very

fact that three justices would have granted certiorari in this case further suggests that the

Brinkmanns’ underlying claim was not frivolous. 3

To the extent the Town contends that the Brinkmanns’ claim—if not frivolous at the

outset—became frivolous after the district court highlighted flaws in their legal theory in its

decision denying the Brinkmanns’ motion for a preliminary injunction, we disagree. To be sure,

the Supreme Court has cautioned that a claim may become frivolous at some point after the

initiation of a suit, see Christiansburg, 434 U.S. at 422, and at the preliminary injunction stage

2 The Town argues that the dissenting opinion on the merits appeal should not shield the Brinkmanns from fee shifting here because “[the dissent’s] reasoning was different and much more narrow than the arguments [the Brinkmanns] raised.” Appellee Br. at 19. Even assuming arguendo that the Town’s characterization of the dissenting opinion is correct, the district court concluded that the Brinkmanns’ claim was frivolous (not merely the arguments made in support of it), which is certainly undermined by the presence of the dissenting opinion concluding otherwise. 3 We find no support for the Town’s speculative argument that the votes in favor of certiorari “more likely” reflect “an opportunity to discuss academic nuances in the context of explaining how incredibly flawed Appellants’ arguments were.” Appellee Br. at 24–25. 6 here, the district court concluded that the Brinkmanns had not shown a likelihood of success on

the merits because the complaint’s allegations did not “demonstrate that the purpose of the taking

[was] to bestow a private benefit.” Brinkmann v. Town of Southold, No. 21-cv-2468 (LDH) (JMW),

2021 WL 4295398, at *2 (E.D.N.Y. Sept. 20, 2021). However, a decision on a motion for a

preliminary injunction cannot ordinarily render a claim frivolous because such a decision assesses

only the probability of later success or failure. See Cayuga Indian Nation of New York v. Seneca

Cnty., 978 F.3d 829, 834 (2d Cir. 2020) (“[A] preliminary injunction order is, by its very nature,

tentative.” (internal quotation marks and citation omitted)); Biediger v. Quinnipiac Univ., 691 F.3d

85, 107 (2d Cir. 2012) (“A decision on a preliminary injunction is, in effect, only a prediction about

the merits of the case.” (internal quotation marks and citation omitted)); see also Antonyuk v.

James, 120 F.4th 941, 1048 n.126 (2d Cir. 2024) (“We emphasize that we are here reviewing facial

challenges to these provisions at a very early stage of this litigation. A preliminary injunction is

not a full merits decision, but rather addresses only the likelihood of success on the merits. Our

affirmance or vacatur of the district court’s injunction does not determine the ultimate

constitutionality of the challenged . . . provisions, which await further briefing, discovery, and

historical analysis, both in this case as it proceeds and perhaps in other cases.” (emphasis in

original) (internal quotation marks and citations omitted)). In other words, because it is possible

for the district court to change its analysis and conclusion regarding the merits at a later stage of

the litigation, see Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 742 (2d Cir. 1953), a

party does not generally act frivolously, unreasonably, or without foundation simply by opposing

a motion to dismiss after unsuccessfully seeking a preliminary injunction.

In sum, based on the course of this litigation, we conclude that the Brinkmanns’ Takings

Clause claim—although unsuccessful—could not properly be found frivolous by the district court.

7 Moreover, discerning no other basis in the record for an award of attorney’s fees and costs to the

Town, it was therefore an abuse of discretion for the district court to grant that award pursuant to

Section 1988.

* * *

We have considered the Town’s remaining arguments and conclude that they are without

merit. Accordingly, we REVERSE the order of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court