Center for Biological Diversity v. Marina Point Development Co.

566 F.3d 794, 2009 WL 1336532

Opinions

RYMER, Circuit Judge,

concurring:

I fully concur in Judge Fernandez’s amended opinion.¹ However, I do question the wisdom of case law compelling us to uphold an award of attorney’s fees on the Center’s claim under the Endangered Species Act (ESA) that became moot on appeal.

While fees attributable to the preliminary injunction the Center achieved may be defensible on the footing that the relief was, after all, not appealed and presumably protected the bald eagle while it was in force, permanent relief was ultimately not secured. It isn’t obvious that the party who obtained preliminary relief, but loses it for whatever reason, has nevertheless prevailed such that fees are appropriately recoverable for all the work along the way. See Sole v. Wyner, 551 U.S. 74, 127 S.Ct. 2188, 167 L.Ed.2d 1069 (2007).

Here, permanent relief was not obtained. Although this is because the Center’s ESA claim was mooted by de-listing of the bald eagle, the fact remains that the Center ends the day with no benefit. The injunction was dissolved, and “otherwise undone” by our final decision in this case. Sole, 127 S.Ct. at 2195 (holding that prevailing party status “does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case”). At the same time, de-listing the bald eagle mooted Marina Point’s appeal from the judgment, thereby depriving it of an opportunity to challenge the merits of the court’s ruling that it violated the ESA. Had it succeeded in this challenge, the Center would not be a prevailing party to whom fees could be awarded.

In these circumstances, why isn’t a case that is moot for one purpose moot for all purposes? That is to say, if the ESA claim is moot, as it now is, thereby preventing appellate review of its merit, why shouldn’t the claim be moot as to both the judgment and its collateral consequence — an award of attorney’s fees? Why shouldn’t each be vacated as both are, effectively, incontestable? See Alioto v. Williams, 450 U.S. 1012, 1012-14, 101 S.Ct. 1723, 68 L.Ed.2d 213 (1981) (Rehnquist, J., dissenting from denial of petition for a writ of certiorari).

Thirty years ago the Supreme Court left the question open. In Lewis v. Continental Bank Corp., 494 U.S. 472, 483, 110 , 108 L.Ed.2d 400 (1990), it asked whether the plaintiff there could be deemed a “prevailing party” in the district court even though its judgment was mooted after being rendered but before the losing party could challenge it on appeal— a question, the Court noted, “of some difficulty.” It certainly is. Perhaps it is time, and this is the case, for the question to be answered afresh. Unfortunately, our panel is hamstrung from doing so disentangled from precedent we are obliged to follow.

1 . I concur because I feel bound by UFO Chuting of Haw., Inc. v. Smith, 508 F.3d 1189 (9th Cir.2007). In UFO, we said "when 'a party ... achieves the objective of its suit by means of an injunction issued by the district court[, it] is a prevailing party in that court, notwithstanding the fact that the case becomes moot, through no acquiescence by the defendant, while the order is on appeal.’ ’’ Id. at 1197(quoting Dahlem v. Bd. of Educ. of Denver Pub. Schs., 901 F.2d 1508, 1512 (10th Cir.1990)). UFO was decided after the Supreme Court's decision in Sole v. Wyner, 551 U.S. 74, 127 S.Ct. 2188, 167 L.Ed.2d 1069 (2007), so I take it the opinion said this advisedly. In my view, that language describes precisely the posture of this case. Thus, I believe we, as a three-judge panel, are constrained to affirm.