Novel Takings-Clause “Pretext” Claims Are Not “Frivolous” for § 1988 Fee-Shifting When Arguably Supported and Seriously Debated

Case: Brinkmann v. Town of Southold (2d Cir. Jan. 23, 2026) (Summary Order, nonprecedential)
Posture: Appeal from fee award under 42 U.S.C. § 1988 to a prevailing municipal defendant after dismissal of a § 1983 Takings Clause claim.

1. Introduction

The plaintiffs—Ben Brinkmann, Hank Brinkmann, and Mattituck 12500 LLC (collectively, the “Brinkmanns”)—brought a civil rights action under 42 U.S.C. § 1983, alleging that the Town of Southold, New York (the “Town”) violated the Fifth Amendment’s Takings Clause. The Town used eminent domain to take the Brinkmanns’ parcel for a public park, but the Brinkmanns contended the stated public purpose was a pretext to stop their planned hardware store.

The district court dismissed the complaint under Rule 12(b)(6), and a Second Circuit panel affirmed (over a dissent) in Brinkmann v. Town of Southold, 96 F.4th 209 (2d Cir. 2024), holding that when a taking is for a public purpose, courts do not inquire into alleged pretexts and motives. After that merits loss, the Town sought and obtained $102,713.77 in attorney’s fees and costs under 42 U.S.C. § 1988 on the theory that the Brinkmanns’ claim was “frivolous.” The Brinkmanns appealed only the fee award.

The central issue in this 2026 appeal was narrow but consequential: When does an unsuccessful constitutional claim—especially one advancing a contested “pretext” limitation in takings law—cross the line into “frivolous” such that a prevailing government defendant may recover fees under § 1988?

2. Summary of the Opinion

The Second Circuit reversed the fee award, holding that the district court abused its discretion in finding the Brinkmanns’ Takings Clause theory frivolous. The court emphasized:

• The claim raised an issue of first impression in the Circuit.
• The claim had at least arguable legal support in decisions from multiple state high courts (with particular discussion of New England Estates, LLC v. Town of Branford, 988 A.2d 229 (Conn. 2010)).
• The claim generated serious judicial engagement: a detailed district court treatment, a published appellate opinion with a thorough dissent, and a certiorari denial in which three Justices indicated they would have granted review (Brinkmann v. Town of Southold, 145 S. Ct. 428 (2024) (Mem.)).
• A preliminary-injunction loss generally cannot, by itself, render a claim frivolous because preliminary relief is tentative and predictive.

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. The fee-shifting framework for prevailing defendants under § 1988

• Holick v. Cellular Sales of New York, LLC, 48 F.4th 101 (2d Cir. 2022): supplied the appellate standard of review—abuse of discretion—which is deferential but not toothless where the district court misapplies the governing legal standard.
• Fox v. Vice, 563 U.S. 826 (2011), quoting Christiansburg Garment Co. v. Equal Emp. Opportunity Comm'n, 434 U.S. 412 (1978): provided the controlling rule that a prevailing defendant may recover fees only if the plaintiff’s action was “frivolous, unreasonable, or without foundation.” This is the central restraint that prevents fee awards from becoming a punishment for losing.
• Shakur v. Selsky, 391 F.3d 106 (2d Cir. 2004): defined “frivolous” as lacking an arguable basis in law or fact—an “arguable basis” standard that is intentionally forgiving to plaintiffs in civil rights litigation.
• Hughes v. Rowe, 449 U.S. 5 (1980): reinforced that losing on the merits does not justify a fee award; the opinion also used Hughes to reason that extensive, careful consideration by multiple courts is strong evidence the claim was not frivolous.
• LeBlanc-Sternberg v. Fletcher, 143 F.3d 765 (2d Cir. 1998), and Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161 (2d Cir. 2006): supplied the policy backdrop—avoid chilling meritorious civil rights suits and recognize that prevailing defendants rarely recover fees.

B. Novelty and “arguable merit” as barriers to a frivolousness finding

• Kamakazi Music Corp. v. Robbins Music Corp., 684 F.2d 228 (2d Cir. 1982): supported the proposition that raising a new question of law weighs against a finding of frivolousness.
• Suazo v. NCL (Bahamas), Ltd., 822 F.3d 543 (11th Cir. 2016), and Costco Wholesale Corp. v. Hoen, 538 F.3d 1128 (9th Cir. 2008): persuasive out-of-circuit reinforcement that appeals requiring resolution of issues of first impression are generally not frivolous.
• Cuadra v. Sullivan, 837 F.2d 56 (2d Cir. 1988): furnished a crisp formulation adopted by the panel—“a legal point that is arguable on its merits is by definition not frivolous.”
• Equal Emp. Opportunity Comm'n v. J.B. Hunt Transp., Inc., 75 F. App'x 853 (2d Cir. 2003) (summary order): used for the practical inference that a dissenting opinion endorsing the claim’s direction “should all but preclude” a finding of frivolousness—because dissents signal reasonable judicial disagreement, not baselessness.

C. Underlying takings-law context and the “pretext” debate

• Brinkmann v. Town of Southold, 96 F.4th 209 (2d Cir. 2024): the merits decision set the backdrop. The fee panel treated the merits loss as non-dispositive and focused on whether the theory had an arguable legal foundation at the time it was litigated.
• Goldstein v. Pataki, 516 F.3d 50 (2d Cir. 2008): the Town argued Goldstein foreclosed the claim, but the fee panel emphasized that neither the earlier majority nor dissent treated Goldstein as squarely dictating the outcome—undercutting the “obviously foreclosed” characterization necessary to support a frivolousness finding.
• New England Estates, LLC v. Town of Branford, 988 A.2d 229 (Conn. 2010): served as a key example of state high-court authority suggesting bad-faith or pretextual use of eminent domain can violate the Takings Clause (or analogous public-use constraints), even where the nominal use is public. The Second Circuit did not adopt that view on the merits in 2024, but in 2026 it treated the existence of such authority as enough to render the Brinkmanns’ theory non-frivolous.

D. Comparing the claim’s support to other non-frivolous cases

• Tancredi v. Metro. Life Ins. Co., 378 F.3d 220 (2d Cir. 2004): particularly influential. The court noted it had reversed a fee award where the plaintiffs had even less supporting authority (one out-of-circuit district case). If Tancredi was not frivolous, then a claim backed by multiple state supreme courts and accompanied by a federal appellate dissent could not be either.
• Panetta v. Crowley, 460 F.3d 388 (2d Cir. 2006): reinforced that even “very thin” claims may still be non-frivolous if they maintain some arguable basis.

E. Whether an early adverse ruling can “convert” a case into frivolous litigation

• Cayuga Indian Nation of New York v. Seneca Cnty., 978 F.3d 829 (2d Cir. 2020), and Biediger v. Quinnipiac Univ., 691 F.3d 85 (2d Cir. 2012): supported the proposition that preliminary injunction rulings are tentative and predictive, not final merits adjudications.
• Antonyuk v. James, 120 F.4th 941 (2d Cir. 2024): underscored that early-stage injunction decisions do not determine ultimate constitutionality and may evolve with further development—bolstering the view that continuing to litigate after a preliminary-injunction loss is not inherently frivolous.
• Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2d Cir. 1953): supplied the general point that courts can change their analysis after preliminary relief because such rulings are not final determinations.

3.2 Legal Reasoning

The court’s reasoning proceeds from the strictness of the Christiansburg standard: fee awards to prevailing defendants are reserved for claims that are not merely incorrect, but baseless. Applying that standard, the panel identified multiple independent indicators of non-frivolousness:

1. First impression cuts against frivolousness. The panel treated novelty as a strong signal that the plaintiffs were testing an unsettled legal boundary rather than advancing a hopeless theory.
2. Out-of-jurisdiction authority can supply “arguable basis.” Even if not controlling, state supreme court decisions supporting a generalized pretext theory supplied enough doctrinal footing to defeat a “without foundation” finding—especially given the intensive merits debate in 2024.
3. Serious judicial disagreement is inconsistent with “frivolous.” The existence of a detailed appellate dissent and the fact that three Supreme Court Justices would have granted certiorari functioned as real-world validation that the claim was arguable.
4. A preliminary injunction loss is not a “frivolousness trigger.” The Town argued the claim became frivolous after the district court’s earlier preliminary-injunction ruling. The panel rejected that logic because preliminary rulings assess likelihood of success, are tentative, and do not freeze the legal landscape such that continuing litigation becomes sanctionable.

Having found no valid basis for labeling the claim frivolous at any point, the panel concluded the district court’s fee award was an abuse of discretion and reversed.

3.3 Impact

Although nonprecedential, the order has meaningful practical implications in the Second Circuit’s day-to-day fee litigation:

• High bar reaffirmed for municipal defendants seeking § 1988 fees. Government defendants will have difficulty obtaining fees where plaintiffs raise novel constitutional theories that have any plausible support in other jurisdictions.
• “Judicial attention” becomes evidentiary. The opinion treats procedural signals—published merits opinion, dissent, serious consideration, and noted Supreme Court interest—as probative that the claim was arguable. Future litigants will likely cite these factors to resist fee petitions.
• Preliminary injunction denials will rarely justify fees. The reasoning discourages defendants from arguing that early adverse rulings automatically convert later litigation into frivolous conduct.
• Takings litigation strategy. Plaintiffs advancing innovative “pretext” takings theories may draw comfort that losing on unsettled doctrine does not automatically expose them to defendant’s fees—reducing the chilling effect on boundary-testing claims.

4. Complex Concepts Simplified

• 42 U.S.C. § 1983: A statute allowing individuals to sue state or local officials (including municipalities) for violating federal constitutional rights.
• Takings Clause (Fifth Amendment): Government may take private property for “public use” if it pays “just compensation.” Disputes often concern what counts as “public use” and whether asserted public purposes are genuine.
• “Pretext” in eminent domain: The claim that the government’s stated public reason for taking property is not the real reason—i.e., the public purpose is a cover for an impermissible aim. Here, the alleged impermissible aim was to block the Brinkmanns’ proposed hardware store.
• 42 U.S.C. § 1988 (fee shifting): Lets courts award attorney’s fees to the prevailing party in civil rights cases. Plaintiffs often recover if they win; defendants recover only in exceptional cases where the lawsuit was frivolous, unreasonable, or without foundation.
• “Frivolous” (in this context): Not “weak” or “ultimately losing,” but lacking any arguable basis in law or fact.
• Preliminary injunction: An early, temporary court order meant to preserve the status quo. Courts decide it based on likelihood of success and other equitable factors; it is not a final decision on the merits.

5. Conclusion

Brinkmann v. Town of Southold (2026) reinforces the narrow lane in which prevailing defendants may obtain fees under § 1988. Even where a constitutional claim is dismissed and affirmed on appeal, it is not “frivolous” if it raises an issue of first impression, has arguable doctrinal support (including from state high courts), and is the subject of serious judicial debate—evidenced here by a substantial dissent and noted Supreme Court interest. The decision also underscores that preliminary-injunction setbacks generally do not transform an ongoing case into fee-shiftable frivolous litigation.