SINGER MANAGEMENT CONSULTANTS, INC. v. MILGRAM

ROTH, Circuit Judge, dissenting, with whom McKEE, Chief Judge, SLOVITER and ALDISERT, Circuit Judges, join.

"When does a party `prevail' within the meaning of 42 U.S.C. § 1988?" That is the basic question that both parties here are asking. The Majority qualifies the question by referring to certain facts of record: "Does a party `prevail' if it obtains a temporary restraining order the day after it files suit . . . but 22 days later is denied a preliminary injunction because the opposing party's voluntary change of position moots the case?" The Majority answers "No" to the question.

I would add different facts to the basic question — and, by doing so, I arrive at a different answer. My "different" qualifying facts are clearly found in the record of this case. Moreover, my facts support a finding of "prevailing party."

I acknowledge that the qualifying facts that the Majority depends upon are reflected in the record before us. As the Majority states, there was a temporary restraining order (TRO) granted. The Majority does not mention, however, that the TRO granted a large part of the relief plaintiffs sought.

Again, as the Majority states, there was no preliminary injunction (PI) granted when the parties returned for the September 7 hearing. But, insofar as Live Gold was asking to enjoin the State's interference with the August concert, the issue was moot. The concert had been performed as Live Gold requested, that relief had been granted, and there was no further need to consider it. The issue remaining was whether the State would attempt to force other concerts by the holder of a valid common law trademark to be designated as "tributes" or "salutes." The State agreed that it would not apply the Act in such a way. Moreover, the PI, which would have addressed this issue, was not dismissed out of hand. The court left open the option of continuing consideration of the PI at a later time if necessary, explaining "[s]o I'm not setting a date, I'm vacating the temporary restraining order, and if there's any serious problems that arise which the plaintiffs think require emergent relief, they can ask for it to be rescheduled on short notice." (App.389.) That the court felt that such relief would not be necessary is evident from the fact that the court had declared that the State would be "bound by" the State's new interpretation of the Act. (App.387.) The court saw no need to "go any further." (App. 388.)

The court took note of the State's "evolved" position and then stated:

We have a statement by the State of New Jersey as to what the meaning of this statute is insofar as it relates to common law trademarks, and I think we've stated it. If there's a valid common law trademark under the Lanham Act, and if whoever has possession of it can establish a right to that possession, he is to be treated — or she is to be treated in the same way as the holder of a registered trademark. Now, no necessity of — to say or give any tribute to anybody. So we have an agreement on that.

(App.388.) There was no dissent.

This conclusion by the court, that a valid common law trademark was to be recognized in the same way as a registered trademark, was the merits question put to the court by Live Gold — and the State of New Jersey was now bound in this action by this legal conclusion. I cannot imagine that the State would dare come again before the District Court and take any position contrary to the ruling of the court: "So we have an agreement on that." Nor, as I discuss later, would the State be in the position to contend in any future action before the New Jersey District Court that a valid common law trademark was not to be accorded the same recognition as a registered one. If it did so, the State would be barred by judicial estoppel.

With these facts in mind, I state my question as follows: "Does a party `prevail' under the meaning of 42 U.S.C. § 1988 when it has obtained a TRO, granting an important part of the relief sought, and further when its opponent has been bound by the District Court to the position of law that grants complete relief on the merits of the complaint." I answer "Yes." I conclude from this factual setting, supported by the record, that Live Gold is clearly a prevailing party and, thus, deserves an award of its reasonable attorney's fees.

Moreover, this conclusion is within the boundaries of "prevailing party" as the Supreme Court has set them out. First, I agree with the Majority that the Court points to two types of outcomes — judgments on the merits and consent decrees — that confer prevailing party status, and it cites one outcome — a voluntary change in conduct as a result of litigation — that does not. Buckhannon Bd. Care Home, Inc. v. W. Va. Dep't of Health Human Res., 532 U.S. 598, 603-05, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Nevertheless, as the Majority concedes, the Court has left the door open to other, yet to be defined, results that may confer prevailing party status. See ante, 230-31.

The Court has articulated two factors relevant to the prevailing party inquiry: (1) whether there is a "judicially sanctioned change in the legal relationship of the parties," id. at 603, 121 S.Ct. 1835, that "achieves some of the benefit the part[y] sought in bringing suit," Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (internal quotation marks and citation omitted), and (2) whether the party "receive[s] at least some relief on the merits of his claims," Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835 (" `It seems clearly to have been the intent of Congress to permit . . . an interlocutory award only to a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal.'" (quoting Hanrahan v. Hampton, 446 U.S. 754, 757, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980))).

The Majority contends, however, that Live Gold did not receive a judgment on the merits. The Majority does agree that the TRO Live Gold obtained constituted a judgment and that injunctive relief "can, under appropriate circumstances, render a party `prevailing.'" See ante, 229 (quoting People Against Police Violence v. City of Pittsburgh (PAPV), 520 F.3d 226, 233 (3d Cir. 2008)). But, I part ways with the Majority on its conclusion that the TRO here was not a resolution on the merits.

I find it clear that the TRO obtained by Live Gold was a "judicially sanctioned change in the legal relationship" between Live Gold and the State of New Jersey. The TRO allowed Live Gold to achieve much of the benefit it sought in bringing suit and provided some relief on the merits of its claims. Before the TRO hearing, New Jersey indicated that Live Gold could be penalized if the Platters and the Coasters were not billed as "tribute" bands. After the District Court issued the TRO, the bands were permitted to perform under the names "Platters" and "Coasters" without modifiers like "tribute" or "salute to," and the State was prohibited from penalizing Live Gold for doing so.

Perhaps, the Majority balks at the straightforward conclusion that there was relief here on the merits because it fears that "consent decrees" and "judgments on the merits," or their equivalents, are the only types of outcomes that confer prevailing party status. However, as the Majority seems to concede, there is little doubt that a plaintiff who gains preliminary relief may be a prevailing party. The Supreme Court has not disturbed the longstanding rule that "`plaintiffs may be considered "prevailing parties" for attorneys' fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit,'" Farrar v. Hobby, 506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (quoting Hensley, 461 U.S. at 433, 103 S.Ct. 1933), as long as the relief obtained provides at least some relief on the merits, see Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835, and consists of a judicially sanctioned change in the legal relationship of the parties, see Rhodes v. Stewart, 488 U.S. 1, 4, 109 S.Ct. 202, 102 L.Ed.2d 1 (1988) ( per curiam) (plaintiff not prevailing party where declaratory judgment was entered after his death and thus could not change his legal relationship to defendants).

Moreover, the precedent of this Circuit — and that of every other circuit but one — is clear that interim injunctive relief can, in appropriate cases, constitute a "court-ordered change in the legal relationship between the plaintiff and the defendant" to confer prevailing party status. See PAPV, 520 F.3d at 232-33 (concluding that "relief on the merits achieved in the form of a preliminary injunction can confer `prevailing party' status") (internal quotations omitted). The Majority's analysis casts doubt upon this well-supported legal proposition. I hope, however, that this Court will continue to recognize that interim relief remains a proper basis for an award of attorney's fees when that relief is based on a determination of the merits of a plaintiffs claim.

Furthermore, the Majority's conclusion that the TRO in this case was not granted "on the merits" suffers from the failure of the Majority to offer a definition or test for when a decision is "on the merits" in a case involving the grant of preliminary relief. Rather, the Majority states merely that "the `merits' requirement is difficult to meet in the context of TROs and preliminary injunctions," and that the "decision in PAPV provides an example of that rare situation where a merits-based determination is made at the injunction stage." Ante, 229. This conclusion is confusing in light of the Majority's acknowledgment that to obtain a TRO or preliminary injunction, the plaintiff needs to "show a likelihood of success on the merits." Id.; see also Munaf v. Geren, 553 U.S. 674, 690, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008). One would expect that when a plaintiff makes a sufficient showing of likelihood of success on the merits to obtain "an `extraordinary and drastic remedy,'" a remedy that is "never awarded as of right," Munaf, 553 U.S. at 689-90, 128 S.Ct. 2207, this victory would frequently result in prevailing party status.

Instead, the Majority argues that a preliminary injunction reflects a determination on the merits only in a case like PAPV, where the court granted a preliminary injunction lasting two years, and stated that the challenged statute was "facially unconstitutional." While it was clear in PAPV that the District Court's determination was "on the merits," I disagree with the Majority's suggestion that such elaboration of facts is required. This Court's post- Buckhannon precedents have never applied such a standard. Rather, in J.O. v. Orange Twp., we stated simply that plaintiffs "who achieve favorable interim relief may be entitled to prevailing party attorney's fees as long as the interim relief granted derived from some determination on the merits." 287 F.3d 267, 274 (3d Cir. 2002) (emphasis added). Contrary to the Majority's reasoning, PAPV did not distinguish "reasonable probability" from "more likely than not," nor did it consider whether the district court had found that the plaintiffs were more likely than not to prevail on their claims. It simply noted that, as was the case here, the grant of preliminary injunctive relief reflected a "finding of a likelihood of plaintiffs success on the merits." Id. at 233.

I submit that the proper test to determine whether interim relief is on the merits is to distinguish (1) whether the relief is a "`stay put' order[] which merely serve[s] to maintain the status quo pendente lite" and which "do[es] not afford meaningful relief on the merits of the underlying claims," PAPV, 520 F.3d at 226 (citing John T. ex rel. Paul T. v. Del. Cnty. Intermediate Unit, 318 F.3d 545, 558-59 (3d Cir. 2003)), or (2) whether the relief "placed a judicial imprimatur on plaintiffs' entitlement to substantially all the relief they sought in the complaint." 520 F.3d at 233.

Several circuits, in considering this issue, have adopted similar rules. See, e.g., Garcia v. Yonkers Sch. Dist., 561 F.3d 97, 106 (2d Cir. 2009) ("a plaintiffs request for a temporary restraining order may be sufficient grounds to grant attorney's fees to the plaintiff pursuant to 42 U.S.C. § 1988(b)[,]" as long as the temporary restraining order addresses the merits of the case and does not "merely maintain[] the status quo"); Dearmore v. City of Garland, 519 F.3d 517, 524 (5th Cir. 2008) ("Under these facts, to qualify as a prevailing party under § 1988(b), we hold that the plaintiff (1) must win a preliminary injunction, (2) based upon an unambiguous indication of probable success on the merits of the plaintiffs claims as opposed to a mere balancing of the equities in favor of the plaintiff, (3) that causes the defendant to moot the action, which prevents the plaintiff from obtaining final relief on the merits."); N. Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1086 (8th Cir. 2006) (noting that "some preliminary injunctions are sufficiently akin to final relief on the merits to confer prevailing party status," whereas others that "merely maintain[] the status quo do[] not confer prevailing party status"); Dubuc v. Green Oak Twp., 312 F.3d 736, 753 (6th Cir. 2002) (concluding that granting a preliminary injunction may confer 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" (internal quotation omitted)).

This well-established rule has several advantages. First, it properly focuses the inquiry on whether the plaintiff obtained relief based on the merits of its claims rather than other interim relief factors. Compare PAPV, 520 F.3d at 232-33 (noting district court's repeated findings of unconstitutionality) with John T. v. Del. Cnty. Intermediate Unit, 318 F.3d 545, 556 (3d Cir. 2003) (noting that TRO was merely to preserve status quo so that court could consider the merits of plaintiffs claims).

Second, this rule avoids the concerns voiced in Buckhannon and by the Majority that the catalyst theory is being revived: the test focuses on the nature of the district court's findings, not the defendant's response to those findings or its motivations.

Third, this rule promotes judicial efficiency in a significant class of civil rights cases where the plaintiff essentially challenges government policies prohibiting a discreet course of action in the future, such as advertising for a concert or demonstrating in front of city hall. The practical reality in such cases is that a TRO or preliminary injunction that enables the plaintiff to do what it wants to do, i.e., advertise for a concert or demonstrate, is often all the relief the plaintiff wants or needs. It may be counterproductive and wasteful of judicial resources to require a plaintiff to insist on a final order that it no longer needs before it can be considered a prevailing party and obtain attorney's fees.

When the proper test is applied, it becomes clear that the TRO granted to Live Gold provided "at least some relief on the merits of . . . [the] claims," Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835. In PAPV, this Court emphasized that:

(1) the trial court, based upon a finding of a likelihood of plaintiffs' success on the merits, entered a judicially enforceable order granting plaintiffs virtually all the relief they sought, thereby materially altering the legal relationship between the parties; (2) the defendant, after opposing interim relief, chose not to appeal from that order and remained subject to its restrictions for a period of over two years; and (3) the defendant ultimately avoided final resolution of the merits of plaintiffs' case by enacting new legislation giving plaintiffs virtually all of the relief sought in the complaint.

The result here is substantially similar: the District Court found that Live Gold was likely to succeed on the merits of its claims, it entered a TRO affording Live Gold the most significant relief it sought, the right to advertise and to present the August concert outright, and not as a "tribute." As a result, the State was "temporarily restrained and enjoined from interfering in any way with live performances by Plaintiffs' respective groups at the Hilton Hotel in Atlantic City, New Jersey, and the marketing and promotion thereof." (App.190.) The District Court clearly indicated that it considered the merits of the substantive legal issues during the TRO hearing and granted the TRO in light of its view on those issues:

I think there is sufficient problem with the State's position so that I — there is a likelihood of success on the merits in this particular case. . . .

[T]here may be substantial federal rights being impaired by the action of the State in this case, generally, under the statute . . . important federal rights are at issue, both freedom of speech rights under the Lanham Act and private rights to nonregistered trade-mark — trade name. Consequently, the Temporary Restraining Order will issue.

(App.187-88.)

The District Court's statement that it will "have an opportunity to get to the merits of this case on September 7th [at the preliminary injunction hearing]" does not nullify its determination on the merits that the August concert proceed as Live Gold requested; it indicates only that the court planned to consider whether Live Gold deserved further relief for future concerts.

In addition, the TRO obtained in this case cannot be characterized as a "stay put" order or relief pendent lite. Rather, in the present case, the District Court's issuance of a TRO effectively gave Live Gold a complete victory on one important issue in the litigation. The musical groups being promoted by Live Gold — "The Platters" and "The Cornell Gunter Coasters" — were scheduled for a two-week engagement at the Hilton Hotel to begin on August 18. On August 17, the day before the first Hilton concert, Live Gold sought and obtained the TRO preventing the State from enforcing the Truth in Music Act in relation to the performances at issue. By the time Live Gold and the State returned to court on September 7, for a hearing on the preliminary injunction, the concert series had already concluded — and not as a "tribute." Thus, at that point, the TRO had protected Live Gold from a potential enforcement action by the State, and Live Gold had largely obtained the relief it requested.

In this light, the TRO Live Gold obtained was a functional determination on the merits. It exalts form over substance to claim, as the Majority does, that Live Gold has not succeeded on the merits when what Live Gold wanted to do was to promote and present without interference from the State musical groups for which it held a valid common law trademark. The District Court issued a TRO — clearly premised on the merits of the claims at issue — compelling the State to permit Live Gold to do just that. In this case, Live Gold fits comfortably within "our respect for [the] ordinary language" definition of "prevailing party." Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835.

In addition to the judicial order here, the District Court permanently altered the legal relationship between the parties. The court's statement that the State would be "bound" by its new interpretation of the Act should bar the State from taking any inconsistent positions in future litigation because of the doctrine of judicial estoppel. Judicial estoppel is an equitable doctrine that entails "`the intrinsic ability of courts to dismiss an offending litigant's complaint without considering the merits of the underlying claims when such dismissal is necessary to prevent a litigant from playing fast and loose with the courts.'" In re Kane, 628 F.3d 631, 638 (3d Cir. 2010) (quoting Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp., 337 F.3d 314, 319-20 (3d Cir. 2003)). "[T]he basic principle of judicial estoppel . . . is that absent any good explanation, a party should not be allowed to gain an advantage by litigation on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory." Krystal Cadillac-Oldsmobile, 337 F.3d at 319 (quoting Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 358 (3d Cir. 1996)). "Though there is no rigid test for judicial estoppel, three factors inform a federal court's decision whether to apply it: there must be (1) `irreconcilably inconsistent positions;' (2) `adopted . . . in bad faith;' and (3) `a showing that . . . estoppel . . . address[es] the harm and . . . no lesser sanction [is] sufficient.'" ` G-I Holdings, Inc. v. Reliance Ins. Co., 586 F.3d 247, 262 (3d Cir. 2009) (quoting Chao v. Roy's Constr., Inc., 517 F.3d 180, 186 n. 5 (3d Cir. 2008)).

Here, once the State had reversed course and accepted that a valid common law trademark must be treated in the same way as a registered trademark, the State would be judicially estopped from adopting a contrary interpretation of the Act in any subsequent judicial proceeding and certainly in any proceeding against Live Gold. This is the significance of the District Court's statement that the State was "bound" to its new interpretation. Moreover, it showed that the District Court must have relied on this commitment by the State when the court did not enter a permanent injunction against the State. If the State were to assert again that the Truth in Music Act does not recognize valid common law trademarks, it would be asserting an inconsistent position in presumptive bad faith after already having conceded the wrongfulness of such an assertion. Judicial estoppel, therefore, would apply to prevent the State from perpetuating a fraud on the court. See New Hampshire v. Maine, 532 U.S. 742, 751, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (noting that a court addressing judicial estoppel should consider "whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped").

In conclusion, we see that the District Court's binding of the State resulted in "a court-ordered `chang[e] [in] the legal relationship between [the plaintiff] and the defendant'" necessary to permit an award of attorney's fees. Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835. In this sense, the State's voluntary concession and the District Court's "binding" of the State to that position would prevent the State from taking contrary positions in future litigation; it can be analogized to the voluntary action of a consent decree: in both instances, voluntary conduct formalized by a court results in a material alteration in the legal relationship between the parties.

Moreover, requiring a party to go further than Live Gold did in this case by obtaining a judgment or consent decree would endanger the practical, efficient, and informal resolution achieved by the District Court in this case. I suspect that Live Gold would never have accepted the District Court's resolution of the case in the way it did if it had it known that it would not be a prevailing party. Live Gold would have insisted on greater judicial formalization of the change in the State's position, a consent decree, or the like. The Majority's insistence on a "judgment," rather than Buckhannon's broader "judicial imprimatur," will only unnecessarily drag out cases and lead to judicial inefficiency. The essential question in the prevailing party inquiry is whether the party has obtained a judicial alteration of the legal relationship between the parties. Live Gold certainly accomplished that.

Under these circumstances, an award of attorney's fees is consistent with Supreme Court precedent, see Buckhannon, 532 U.S. at 603, 121 S.Ct. 1835, and required by this Court's precedent, see PAPV, 520 F.3d at 232-33.

For the reasons set forth above, I respectfully dissent. I would confer prevailing party status to Live Gold and award it its attorney's fees.

ALDISERT, Circuit Judge, dissenting.

As I join in all respects the dissenting opinion of Judge Roth, I deem it necessary to add these observations regarding civil rights cases proceeding under 42 U.S.C. §§ 1983 and 1988. How a judge applies the Supreme Court's decision in Buckhannon Board Care Home, Inc. v. West Virginia Department of Health Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), to this case depends on the judge's philosophy of law, jurisprudence, and jurisprudential temperament, which inform the decision to come to grips with whether or not an action is "judicially sanctioned." The Majority holds that the decisions of the trial judge on the record in this case did not qualify as "judicially sanctioned" actions. I am equally convinced that they did.

Before setting forth detailed support for my view, it is necessary to emphasize the specific holding or decision of the Court in Buckhannon because it is the decision, and not the reasoning, that forms the precedent. The expression stare decisis is but an abbreviation of stare decisis et non quieta movere (to stand by or adhere to decisions and not disturb that which is settled). "Decisis" means, literally and legally, "the decision." The doctrine is not " stare dictis" ("to stand by or keep to what was said"). Nor is the doctrine stare rationibus decidendi ("to keep to the reasoning of past cases"). Rather, a case is important for what it decides: for "the what," not "the why," and not "the how." Thus, stare decisis means what the court did, not what it said.

The Court in Buckhannon stated: "we hold that the `catalyst theory' is not a permissible basis for the award of attorney's fees under the [Fair Housing Amendments Act of 1988, or the Americans with Disabilities Act of 1990]." 532 U.S. at 610, 121 S.Ct. 1835. Earlier, the Court had explained that attorney fees should not be awarded pursuant to the catalyst theory because that theory "allows an award where there is no judicially sanctioned change in the legal relationship of the parties." Id. at 605, 121 S.Ct. 1835. Thus, the issue for decision in this case is whether there was such judicially sanctioned change.

Today the Majority makes clear that the Supreme Court has not precluded the possibility that a "judicially sanctioned" change may include events other than a judgment on the merits or a consent decree:

As noted, the Supreme Court has identified two formal resolutions that make a winning attorney eligible for a fee award: (1) enforceable judgments on the merits, and (2) court-ordered consent decrees. Buckhannon, 532 U.S. at 604, 121 S.Ct. 1835. Buckhannon characterized these two resolutions as "examples" of decisions that create the necessary material alteration of the legal relationship of the parties. Id. at 604-05, 121 S.Ct. 1835. There may be resolutions other than the two identified in Buckhannon that warrant prevailing party status (although the Supreme Court has yet to identify any).

Maj. Op. at 231. To hold as does the Majority that "[b]ecause no enforceable judgment on the merits was issued in this case, and the State's actions that mooted the case were voluntary, Buckhannon tells us that Live Gold was not a prevailing party," Maj. Op. at 232, is to apply a philosophy of jurisprudence no longer in general acceptance — conceptual jurisprudence, a philosophy that preaches that a principle, if sound, ought to be applied wherever it logically leads, without reference to ulterior results — and wholly inappropriate for cases that touch upon civil rights.

Without a nod to the effects on future civil rights cases, the Majority fashioned a major stumbling block to success for civil rights plaintiffs in cases based on § 1983. The plaintiff here was: (1) victorious on the merits in obtaining a temporary restraining order, duly recorded and altering the position of the parties, and (2) able to persuade the District Court at the preliminary injunction hearing that formal registration of their mark was unnecessary. That the District Court told the plaintiff, "in effect [you've] won the case," shows that Live Gold was, in effect, the prevailing party on the merits.

I am proud of this Court's civil rights history from as far back as 1939, when this Court upheld First and Fourth Amendments rights in Hague v. Committee of Industrial Organization, 101 F.2d 774 (3d Cir. 1939), aff'd and modified, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). Introducing his opinion for our Court, Judge Biggs wrote: "The question presented by the appeal at bar is whether or not certain fundamental civil liberties safeguarded by the Constitution of the United States shall be observed and protected in Jersey City or shall there stand abridged." Id. at 777. Thus, more than 20 years before the resus-citation of 42 U.S.C. § 1983 in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), this Court was in the business of expanding, not contracting, civil rights protections. Until today. Until a Majority of this Court embarked on a jurisprudential adventure that makes it unnecessarily difficult for civil rights plaintiffs who seek to enforce federal rights and statutes. The Majority does so by erecting roadblocks before plaintiffs who seek to qualify as a "prevailing party" under § 1988.

The Majority employs a stingy interpretation of "judicially sanctioned," declaring that there was no act of sanctioning notwithstanding that: (1) the District Court entered a Temporary Restraining Order based on the merits, and (2) in the subsequent preliminary injunction hearing the District Court told the defendant that it completely agreed with the plaintiff, (3) the defendant conceded that the State of New Jersey would be bound by the District Court's interpretation of the trademark, (4) the plaintiff moved for entry of summary judgment in its favor, and (5) the District Court declared entry of summary judgment was unnecessary because, "I just don't know what else there is to address . . . in effect, [Live Gold] has won the case."

The Majority nonetheless contends that although Live Gold won the case, the win was not "judicially sanctioned" because the District Court did not enter on the record five words: "Plaintiffs summary judgment motion granted," or four words "Judgment ordered for plaintiff."

The Majority nonetheless contends that although the District Court told the parties that the plaintiff won the case, the win was not "judicially sanctioned" because the District Court did not formally enter its decision on the record. The Majority's interpretation of "judicially sanctioned" is reminiscent of the writ-based common law pleading rules, which were so inflexible that a plaintiff that used the wrong writ was out of court. It was a system "that had become rigid and rarified" and a system in which "a party could easily lose on technical rules." I therefore disagree with my colleagues of the Majority who believe Buckhannon prohibits us from determining that the plaintiff was a prevailing party. That case does not establish technical rules that prohibit us from acknowledging that the plaintiff was the prevailing party. Let's face it. It's not that Buckhannon prohibits us. It's a matter of choice. The Majority simply chooses to not extend its holding to different facts and precepts involving attorney fees in civil rights actions. I prefer to follow the history of this Court in expanding holdings in civil rights cases in new and fresh fact patterns. In so doing, I adhere to what our Court has been doing since 1939, and we carry forward the pioneer efforts of American jurisprudents from as early as the end of the Nineteenth Century.

The distance between the Majority and the dissent in this case can be traced through more than one hundred years of American legal history. As early as 1897, American courts were being chided for undue reliance on theoretical concepts. This was the philosophy behind European attempts to establish codes in every country on the continent. German Professor Rudolf von Ihering pioneered the work of replacing the European jurisprudence of conceptions with a jurisprudence based upon results. Our own thinkers, across the Atlantic Ocean, followed suit. In The Path of the Law in 1897 Oliver Wendell Holmes, Jr. gently admonished:

I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious . . .

By 1906, Dean Roscoe Pound of Harvard Law School was trumpeting the same theme. He described our system as conceptual jurisprudence, a slavish adherence to elegantia juris, the symmetry of law, and suggested that we resembled too much the rigid German Begriffsjurisprudenz This led him to call upon the American Bar Association to put an end to mechanical jurisprudence: "The most important and most constant cause of dissatisfaction with all law at all times is to be found in the necessarily mechanical operation of legal rules."

In 1921, Benjamin N. Cardozo delivered the Storrs lectures at Yale, stating: "The final cause of law is the welfare of society. The rule that misses its aim cannot permanently justify its existence." The same year, he seized the opportunity to put his new theory into practice by publicly rejecting blind conceptual jurisprudence. See Hynes v. N.Y. Cent. R.R., 231 N.Y. 229, 131 N.E. 898 (1921).

These thinkers led us out of the methodology of conceptual jurisprudence — the view that a legal precept should be followed to its dryly logical extreme, regardless of its effects on society. If Pound's 1908 warning against mechanical decision making did not create a new American school of jurisprudence, it at least spawned widespread respectability for social utilitarianism. It added a new dimension to law's traditional objectives of consistency, certainty and predictability — a concern for society's welfare, elegantly described by Professor Harry W. Jones as a legal rule that "contributes to the establishment and preservation of a social environment in which the quality of human life can be spirited, improving and unimpaired." In all but a few areas of static law, mechanical jurisprudence has become more historical than operational, except for what the Majority does in this case.

I turn now to legal philosophy, jurisprudence and jurisprudential temperament, because part of what divides the Majority and the dissent is a difference in views of these concepts. When I speak of legal philosophy, I am addressing a very broad inquiry into what the relationship between individuals and their government, ought to be. In this context, the problems of legal philosophy are problems of normative political philosophy. So perceived, legal philosophy inquires into the problems of terminology, legal methods, the role of precedent, statutory interpretation, underlying rationale, the use of different types of authority, the efficacy of various controls and their operation in diverse factual scenarios, and the basic issues concerning the values that are implemented.

When I speak of a legal philosophy, I am addressing the specific answers to these basic inquiries forthcoming from very respectable thinkers, both in academia and on the bench. Each thinker probably articulates or at least demonstrates some particular legal philosophy. Hence, each of their individual solutions to myriad problems of judicial decision making is what I call a legal philosophy.

How a judge interprets the concept of "judicially sanctioned" depends on the legal philosophy the judge chooses to espouse. It cannot be seriously debated that the Majority's refusal to grant attorney fees in this case will limit future civil rights actions, discouraging the Congressional intent to provide attorney fees to civil rights plaintiffs under § 1988. It will discourage settlements, prolong litigation, and make work for overburdened district judges. Defendants will use complications in petitions for § 1988 attorney fees as bargaining tools in negotiations for calculating damages. Members of the Majority arrive at their decision by adhering to a philosophy of conceptual jurisprudence, an approach to the law that extends a legal precept to a drily logical extreme, regardless of the results upon society, and a philosophy that has found rejection in our courts for almost 100 years.

I turn now to the concept of jurisprudence. I perceive it as separate and apart from legal philosophy, in that it includes obligatory norms, both substantive and procedural, that shape and regulate the life of a people. This concept of jurisprudence more or less takes the form of an aggregate of legal precepts, a sort of by-laws of a given society or rules that govern a given social order. It is law as it is, not as it ought to be. It is more properly a juridical science than a philosophy. Yet jurisprudence may also be considered "a body of traditional ideas as to how legal precepts should be interpreted and applied and causes decided, and a traditional technique of developing and applying legal precepts whereby these precepts are eked out, extended, restricted, and adapted to the exigencies of administration of justice."

I find it necessary to distinguish between legal philosophy and jurisprudence. If a judge is truly following "a body of traditional ideas," he or she is probably observing the law as it "is" and not as it "ought to be." If we talk about law as it should be, we have entered the world of legal philosophy and philosophical generalities. Immanuel Kant suggested that the distinction existed in two simple Latin words. When we ask " quid jus?" we are seeking some general principle of philosophy to help us decide what the law ought to be. When we ask " quid juris ?" we are seeking what already has been established as part of the jurisprudence.

Unfortunately, the line between what the law is and what it ought to be is not always a bright one. As this case shows, one legal precept, pushed to the limit of its logic with inadequate consideration of the results, may point to one conclusion; another precept, followed with equal logic but emphasis on the results, may point with equal certainty to another conclusion. Or take the questions posed by Cardozo:

If a precedent is applicable, when do I refuse to follow it? If no precedent is applicable, how do I reach the rule that will make a precedent for the future? If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it? At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or the common standards of justice and morals?

It is here where that quality I call juris-prudential temperament, or the judge's intuition, comes into play. Temperament invariably influences the decision because it inclines the decision maker one way or another. It is a major determinant in the case at bar in deciding the best interpretation of "judicial sanctioned."

If, as in cases like this one, the result is not predetermined and the law is not clear, the courts are faced with what Professor H.L.A. Hart called the "penumbral" issues, where the language of the legislation or a particular putative precedent of a court is general. Whether a judge attempts to clarify a penumbral area of the law reflects a value judgment, and is indicative of the judge's jurisprudential temperament. Some judges have lower thresholds than others, and are more inclined to find solace in shades and fringes rather than the black-letter law. When this problem occurs, as is the circumstance of this divided Court, Professor Ronald Dworkin suggests that the decision depends "on the judge's own preferences among a sea of respectable extralegal standards, any one in principle eligible, because if that were the case we could not say that any rules were binding."

The extent to which a court adheres to the legal precepts attached to the facts in Buckhannon rather than those present in the galaxy of our civil rights cases that have extended plaintiffs' rights, is not just a matter of logical analysis. In dealing with a putative precedent the judge's function goes beyond a perception of what was really intended; he or she exercises a choice. In the case at bar, it is a choice between: (a) conceptual jurisprudence, which preaches that a principle ought to be applied wherever it logically leads, without reference to results; or (b) a jurisprudence of results, which preaches "the establishment and preservation of a social environment in which the quality of human life can be spirited, improving and unimpaired." Justice Walter V. Schaefer taught us:

[M]ost depends upon the judge's unspoken notion as to the function of his court. If he views the role of the court as a passive one, he will be willing to delegate the responsibility for change. . . . If he views that court as an instrument of society designed to reflect in its decisions the morality of the community, he will be more likely to look precedent in the teeth and to measure it against the ideals and the aspiration of his time.

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Through the years, it is said that in this Court we have dissent without dissension. It is in this spirit that I have expressed, respectfully, a failure to agree with a large number of my colleagues without in the least inferring any diminution of my great respect for each of them. And so, as the Marine Corps Hymn says, it is at this "clime and place" that a difference in legal philosophy, jurisprudence and jurisprudential temperament is demonstrated in the divergence between the Majority and dissenting judges' views upon applications for attorney fees under § 1988. That such a difference exists is not unusual; appellate courts are fashioned as multi-judge institutions so that different views may be publicly and forcibly expressed. What is unfortunate about the difference in this case, however, is the result that the Majority's holding will impose upon future civil rights plaintiffs.