9th Circuit to Decide If Fees Should Follow Deal

(CN) - A religious organization that settled its demands to sell T-shirts outside the zoo in Tacoma, Wash., asked the 9th Circuit to award attorneys' fees.

After Tacoma banned the sale of message-bearing T-shirts at the entrance to the Point Defiance Zoo and Aquarium, Higher Taste, a nonprofit that promotes Indian Vedic principles of nonviolence and vegetarianism, filed suit.

A federal judge issued a preliminary injunction in the 2010 case, which alleged violations of the First and 14th Amendments, and the parties settled in 2011.

Higher Taste said the settlement gave "everything it sought in the litigation."

U.S. District Court Judge Benjamin Settle nevertheless refused to award attorneys' fees after finding that Higher Taste was not the prevailing party.

Although it won a preliminary injunction, the city might have ultimately prevailed if it could justify the restriction, Settle said. Since the settlement was not filed with the court, it did not require judicial approval, so Settle said he could not determine whether Higher Taste actually prevailed.

Higher Taste's attorney, Robert Moest, told a three-judge appellate panel Wednesday that Settle failed to look at the "totality of the situation."

Judge Paul Watford agreed with Moest.

"It doesn't strike me as difficult case," Watford said. "You actually won the relief you wanted at the preliminary injunction stage."

He asked the attorney representing Tacoma, Adam Rosenberg: "How in the world do you contend they are not the prevailing party? They got from the court an order granting them the right to sell this merchandise. They then preserve indefinitely going forward that same right through the settlement. I don't see under any circumstances how they couldn't be viewed as having won the case."

Rosenberg said there was precedent in many circuit court decisions where the entry of a preliminary injunction led the defendant to change its regulations, giving the plaintiff exactly what they wanted, and "fees don't follow."

Rosenberg said a preliminary injunction in this case was not a "merits inquiry," as required to trigger fees.

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