(Slip Opinion) OCTOBER TERM, 2006 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

SOLE, SECRETARY, FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL. v. WYNER ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE ELEVENTH CIRCUIT 

No. 06–531. Argued April 17, 2007—Decided June 4, 2007 

In private actions under 42 U. S. C. §1983, federal district courts may

“allow the prevailing party . . . a reasonable attorney’s fee as part of

the costs.” §1988(b). Plaintiff-respondent Wyner notified the Florida

Department of Environmental Protection (DEP), in mid-January 

2003, of her intention to create on Valentine’s Day, within MacArthur 

State Beach Park, an antiwar artwork consisting of nude individuals

assembled into a peace sign. Responding on February 6, DEP informed Wyner that her display would be lawful only if the participants complied with Florida’s “Bathing Suit Rule,” which requires

patrons of state parks to wear, at a minimum, a thong and, if female,

a bikini top. To safeguard her display, and future nude expressive 

activities, against police interference, Wyner and a coplaintiff (collectively Wyner or plaintiff) sued Florida officials in the Federal District

Court on February 12. Invoking the First Amendment’s protection of 

expressive conduct, Wyner requested immediate injunctive relief 

against interference with the peace sign display and permanent injunctive relief against interference with future activities similarly involving nudity. An attachment to the complaint set out a 1995 settlement with DEP permitting Wyner to stage a play with nude 

performers at MacArthur Beach provided the area was screened off to

shield beachgoers who did not wish to see the play. Although disconcerted by the hurried character of the proceeding, the District Court 

granted Wyner a preliminary injunction on February 13, suggesting

that a curtain or screen could satisfy the interests of both the State

and Wyner. The peace symbol display that took place the next day

was set up outside a barrier apparently put up by the State. Once 

disassembled from the peace symbol formation, participants went 
2 SOLE v. WYNER 

Syllabus 

into the water in the nude. Thereafter, Wyner pursued her demand

for a permanent injunction, noting that she intended to put on another Valentine’s Day production at MacArthur Beach, again involving nudity. After discovery, both sides moved for summary judgment. 

At a January 21, 2004 hearing, Wyner’s counsel acknowledged that

the peace symbol display participants had set up in front of the barrier. The court denied plaintiff’s motion for summary judgment and 

granted defendants’ motion for summary final judgment. The deliberate failure of Wyner and her coparticipants to stay behind the 

screen at the 2003 Valentine’s Day display, the court concluded,

demonstrated that the Bathing Suit Rule’s prohibition of nudity was

essential to protect the visiting public. While Wyner ultimately

failed to prevail on the merits, the court added, she did obtain a preliminary injunction, and therefore qualified as a prevailing party to

that extent. Reasoning that the preliminary injunction could not be

revisited at the second stage of the litigation because it had expired, 

the court awarded plaintiff counsel fees covering the first phase of the

litigation. The Florida officials appealed, challenging both the preliminary injunction and the counsel fees award. The Eleventh Circuit held first that defendants’ challenges to the preliminary injunction were moot. The court then affirmed the counsel fees award, 

reasoning that the preliminary order allowed Wyner to present the

peace symbol display unimpeded by adverse state action. 

Held: 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. Pp. 6–11. 

(a) “The touchstone of the prevailing party inquiry” this Court has 

stated, is “the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.” Texas State Teachers Assn. v. Garland Independent School 

Dist., 489 U. S. 782, 792–793. At the preliminary injunction stage, 

the court is called upon to assess the probability of the plaintiff’s ultimate success on the merits. The foundation for that assessment 

will be more or less secure depending on the thoroughness of the exploration undertaken by the parties and the court. In this case, the 

preliminary injunction hearing was necessarily hasty and abbreviated. There was no time for discovery, nor for adequate review of

documents or preparation and presentation of witnesses. The provisional relief granted expired before appellate review could be gained,

and the court’s threshold ruling would have no preclusive effect in 

the continuing litigation, as both the District Court and the Court of 

Appeals considered the preliminary injunction moot once the display 

took place. The provisional relief’s tentative character, in view of the 

continuation of the litigation to definitively resolve the controversy, 
Cite as: 551 U. S. ____ (2007) 3 

Syllabus 

would have made a fee request at the initial stage premature. Of 

controlling importance, the eventual ruling on the merits for defendants, after both sides considered the case fit for final adjudication,

superseded the preliminary ruling. Wyner’s temporary success

rested on a premise—the understanding that a curtain or screen

would adequately serve Florida’s interest in shielding the public from

nudity—that the District Court, with the benefit of a fuller record, ultimately rejected. Wyner contends that the preliminary injunction

was not undermined by the subsequent merits adjudication because 

the decision to grant preliminary relief was an “as applied” ruling

based on the officials’ impermissible content-based administration of

the Bathing Suit Rule. But the District Court assumed content neutrality for purposes of its preliminary order. The final decision in 

Wyner’s case rejected the same claim she advanced in her preliminary injunction motion: that the state law banning nudity in parks 

was unconstitutional as applied to expressive, nonerotic nudity. At 

the end of the fray, Florida’s Bathing Suit Rule remained intact.

Wyner had gained no enduring “chang[e] [in] the legal relationship” 

between herself and the state officials she sued. See Texas State 

Teachers Assn., 489 U. S., at 792. Pp. 6–10. 

(b) Wyner is not a prevailing party, for her initial victory was 

ephemeral. This Court expresses no view on whether, in the absence 

of a final decision on the merits of a claim for permanent injunctive 

relief, success in gaining a preliminary injunction may sometimes

warrant an award of counsel fees. It decides only that a plaintiff who 

gains a preliminary injunction does not qualify for an award of counsel fees under §1988(b) if the merits of the case are ultimately decided against her. Pp. 10–11. 

179 Fed. Appx. 566, reversed and remanded. 

GINSBURG, J., delivered the opinion for a unanimous Court. 
_________________ 

_________________ 

Cite as: 551 U. S. ____ (2007) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 06–531 

MICHAEL W. SOLE, SECRETARY, FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, 

ET AL., PETITIONERS v. T. A. WYNER ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 4, 2007]

 JUSTICE GINSBURG delivered the opinion of the Court. 

For private actions brought under 42 U. S. C. §1983 and 

other specified measures designed to secure civil rights,

Congress established an exception to the “American Rule”

that “the prevailing litigant is ordinarily not entitled to 

collect [counsel fees] from the loser.” Alyeska Pipeline 

Service Co. v. Wilderness Society, 421 U. S. 240, 247 

(1975). That exception, codified in 42 U. S. C. §1988(b), 

authorizes federal district courts, in their discretion, to 

“allow the prevailing party . . . a reasonable attorney’s fee 

as part of the costs.” This case presents a sole question:

Does a plaintiff who gains a preliminary injunction after 

an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, qualify 

as a “prevailing party” within the compass of §1988(b)? 

Viewing the two stages of the litigation as discrete

episodes, plaintiffs below, respondents here, maintain that 

they prevailed at the preliminary injunction stage, and 

therefore qualify for a fee award for their counsels’ efforts 

to obtain that interim relief. Defendants below, petition-
2 SOLE v. WYNER 

Opinion of the Court 

ers here, regard the case as a unit; they urge that a preliminary injunction holds no sway once fuller consideration yields rejection of the provisional order’s legal or 

factual underpinnings. We agree with the latter position

and hold that a final decision on the merits denying permanent injunctive relief ordinarily determines who prevails in the action for purposes of §1988(b). A plaintiff 

who achieves a transient victory at the threshold of an

action can gain no award under that fee-shifting provision 

if, at the end of the litigation, her initial success is undone

and she leaves the courthouse emptyhanded. 

I 

In mid-January 2003, plaintiff-respondent T. A. Wyner 

notified the Florida Department of Environmental Protection (DEP) of her intention to create on Valentine’s Day,

February 14, 2003, within John D. MacArthur Beach

State Park, an antiwar artwork. The work would consist 

of nude individuals assembled into a peace sign. By letter

dated February 6, DEP informed Wyner that her peace 

sign display would be lawful only if the participants complied with the “Bathing Suit Rule” set out in Florida Administrative Code §62D–2.014(7)(b) (2005). That rule 

required patrons, in all areas of Florida’s state parks, to

wear, at a minimum, a thong and, if female, a bikini top.1 

To safeguard the Valentine’s Day display, and future

expressive activities of the same order, against police 

interference, Wyner filed suit in the United States District

Court for the Southern District of Florida on February 12,

2003. She invoked the First Amendment’s protection of 

expressive conduct, and named as defendants the Secre-

—————— 

1The rule reads: “In every area of a park including bathing areas no

individual shall expose the human, male or female genitals, pubic area,

the entire buttocks or female breast below the top of the nipple, with

less than a fully opaque covering.” Fla. Admin. Code Ann. §62D– 

2.014(7)(b) (2005). 
Cite as: 551 U. S. ____ (2007) 3 

Opinion of the Court 

tary of DEP and the Manager of MacArthur Beach Park.2 

Her complaint requested immediate injunctive relief 

against interference with the peace sign display, App. 18,

and permanent injunctive relief against interference with

“future expressive activities that may include non-erotic

displays of nude human bodies,” id., at 19. An exhibit 

attached to the complaint set out a May 12, 1995 Stipulation for Settlement with DEP. Id., at 22–23. That settlement had facilitated a February 19, 1996 play Wyner 

coordinated at MacArthur Beach, a production involving 

nude performers. A term of the settlement provided that 

Wyner would “arrange for placement of a bolt of cloth in a

semi-circle around the area where the play [would]

be performed,” id., at 23, so that beachgoers who did not 

wish to see the play would be shielded from the nude 

performers.

The day after the complaint was filed, on February 13,

2003, the District Court heard Wyner’s emergency motion 

for a preliminary injunction. Although disconcerted by the

hurried character of the proceeding, see id., at 37, 93, 95, 

the court granted the preliminary injunction. “The 

choice,” the court explained, “need not be either/or.” 

Wyner v. Struhs, 254 F. Supp. 2d 1297, 1303 (SD Fla. 

2003). Pointing to the May 1995 settlement laying out 

“agreed-upon manner restrictions,” the court determined 

that “[p]laintiff[’s] desired expression and the interests of

the state may both be satisfied simultaneously.” Ibid. In 

this regard, the court had inquired of DEP’s counsel at the 

preliminary injunction hearing: “Why wouldn’t the curtain

or screen solve the problem of somebody [who] doesn’t 

want to see . . . nudity? Seems like that would solve [the] 

—————— 

2Wyner was joined by coplaintiff George Simon, who served as a

videographer for expressive activities Wyner previously organized at 

MacArthur Beach. See App. 13. For convenience, we refer to the 

coplaintiffs collectively as Wyner or plaintiff. 
4 SOLE v. WYNER 

Opinion of the Court 

problem, wouldn’t it?” App. 86. Counsel for DEP responded: “That’s an option. I don’t think necessarily

[defendants] would be opposed to that . . . .” Ibid.; see id., 

at 74 (testimony of Chief of Operations for Florida Park 

Service at the preliminary injunction hearing that the 

Service’s counsel, on prior occasions, had advised: “[I]f

they go behind the screen and they liv[e] up to the agreement then it’s okay. If they don’t go behind the screen and 

they don’t live up to the agreement then it’s not okay.”). 

The peace symbol display took place at MacArthur

Beach the next day. A screen was put up, apparently by 

the State, as the District Court anticipated. See id., at 

108. See also id., at 94 (District Judge’s statement at the 

conclusion of the preliminary injunction hearing: “I want 

to make it clear . . . that the [preliminary] injunction

doesn’t preclude the department, if it chooses, from using 

. . . some sort of barrier . . . .”). But the display was set up

outside the barrier, and participants, once disassembled 

from the peace symbol formation, went into the water in

the nude. See id., at 108; Deposition of T. A. Wyner in 

Civ. Action No. 03–80103 (SD Fla., Nov. 14, 2003), pp. 99–

100. 

Thereafter, Wyner pursued her demand for a permanent 

injunction. Her counsel represented that on February 14, 

2004, Wyner intended to put on another production at

MacArthur Beach, again involving nudity. See App. 107.

After discovery, both sides moved for summary judgment.

At the hearing on the motions, held January 21, 2004, the 

District Court asked Wyner’s counsel about the screen put

up around the preceding year’s peace symbol display. 

Counsel acknowledged that the participants in that display ignored the barrier and set up in front of the screen. 

Id., at 108. 

A week later, having unsuccessfully urged the parties to

resolve the case as “[they] did before in [the 1995] settlement,” id., at 143, the court denied plaintiff’s motion for 
Cite as: 551 U. S. ____ (2007) 5 

Opinion of the Court 

summary judgment and granted defendants’ motion for 

summary final judgment. The deliberate failure of Wyner 

and her coparticipants to remain behind the screen at the 

2003 Valentine’s Day display, the court concluded, demonstrated that the Bathing Suit Rule’s prohibition of nudity 

was “no greater than is essential . . . to protect the experiences of the visiting public.” Wyner v. Struhs, Case No. 

03–80103–CIV (SD Fla., Jan. 28, 2004) (Summary Judgment Order), App. to Pet. for Cert. 42a. While Wyner

ultimately failed to prevail on the merits, the court added,

she did obtain a preliminary injunction prohibiting police 

interference with the Valentine’s Day 2003 temporary art 

installation, id., at 45a, and therefore qualified as a prevailing party to that extent, see Wyner v. Struhs, Case No. 

03–80103–CIV (SD Fla., Aug. 16, 2004) (Omnibus Order),

App. to Brief in Opposition 5a–13a. The preliminary 

injunction could not be revisited at the second stage of the 

litigation, the court noted, for it had “expired on its own 

terms.” Id., at 4a. So reasoning, the court awarded plaintiff counsel fees covering the first phase of the litigation. 

The Florida officials appealed, challenging both the

order granting a preliminary injunction and the award of

counsel fees. Wyner, however, pursued no appeal from the 

final order denying a permanent injunction. The Court of 

Appeals for the Eleventh Circuit held first that defendants’ challenges to the preliminary injunction were moot 

because they addressed “a finite event that occurred and

ended on a specific, past date.” Wyner v. Struhs, 179 Fed. 

Appx. 566, 567, n. 1 (2006) (per curiam). The court then 

affirmed the counsel fees award, reasoning that plaintiff 

had gained through the preliminary injunction “the primary relief [she] sought,” i.e., the preliminary order allowed her to present the peace symbol display unimpeded 

by adverse state action. Id., at 569. 

Wyner would not have qualified for an award of counsel

fees, the court recognized, had the preliminary injunction 
6 SOLE v. WYNER 

Opinion of the Court 

rested on a mistake of law. Id., at 568, 569–570. But it 

was “new developments,” the court said, id., at 569, not 

any legal error, that accounted for her failure “to achieve 

actual success on the merits at the permanent injunction

stage,” id., at 569, n. 7. Plaintiff and others participating

in the display, as Wyner’s counsel admitted, did not stay 

behind the barrier at the peace symbol display, id., at 569; 

further, the court noted, “a fair reading of the record

show[ed] that [p]laintif[f] had no intention of remaining 

behind a [barrier] during future nude expressive works,” 

ibid. The likelihood of success shown at the preliminary 

injunction stage, the court explained, id., at 569, n. 7, had 

been overtaken by the subsequent “demonstrat[ion] that 

the less restrictive alternative,” i.e., a cloth screen or other 

barrier, “was not sufficient to protect the government’s 

interest,” id., at 569. But that demonstration, the court 

concluded, did not bar an award of fees, because the “new 

facts” emerged only at the summary judgment stage. Ibid. 

We granted certiorari, Struhs v. Wyner, 549 U. S. ___ 

(2007), and now reverse. 

II 

“The touchstone of the prevailing party inquiry,” this

Court has stated, is “the material alteration of the legal

relationship of the parties in a manner which Congress

sought to promote in the fee statute.” Texas State Teachers Assn. v. Garland Independent School Dist., 489 U. S. 

782, 792–793 (1989). See Hewitt v. Helms, 482 U. S. 755, 

760 (1987) (plaintiff must “receive at least some relief on

the merits of his claim before he can be said to prevail”); 

Maher v. Gagne, 448 U. S. 122, 129 (1980) (upholding fees 

where plaintiffs settled and obtained a consent decree); cf. 

Buckhannon Board & Care Home, Inc. v. West Virginia 

Dept. of Health and Human Resources, 532 U. S. 598, 605 

(2001) (precedent “counsel[s] against holding that the term

‘prevailing party’ authorizes an award of attorney’s fees 
Cite as: 551 U. S. ____ (2007) 7 

Opinion of the Court 

without a corresponding alteration in the legal relationship of the parties”).3 The petitioning state officials maintain that plaintiff here does not satisfy that standard for, 

as a consequence of the final summary judgment, “[t]he 

state law whose constitutionality [Wyner] attacked [i.e., 

the Bathing Suit Rule,] remains valid and enforceable 

today.” Brief for Petitioners 3. The District Court left no 

doubt on that score, the state officials emphasize; ordering 

final judgment for defendants, the court expressed, in the

bottom line of its opinion, its “hope” that plaintiff would 

continue to use the park, “albeit not in the nude.” Summary Judgment Order, App. to Pet. for Cert. 46a. 

Wyner, on the other hand, urges that despite the denial 

of a permanent injunction, she got precisely what she 

wanted when she commenced this litigation: permission to

create the nude peace symbol without state interference. 

That fleeting success, however, did not establish that she 

prevailed on the gravamen of her plea for injunctive relief, 

i.e., her charge that the state officials had denied her and 

other participants in the peace symbol display “the right

to engage in constitutionally protected expressive activities.” App. 18. Prevailing party status, we hold, does not 

—————— 

3 Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of 

Health and Human Resources, 532 U. S. 598, 600 (2001), held that the

term “prevailing party” in the fee-shifting provisions of the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of

1990 does not “includ[e] a party that has failed to secure a judgment on 

the merits or a court-ordered consent decree, but has nonetheless 

achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” The dissent in Buckhannon 

would have deemed such a plaintiff “prevailing,” not because of any 

temporary relief gained (in that case, a consent stay pending litigation),

but because the lawsuit caused the State to amend its laws, terminating the controversy between the parties, and permanently giving 

plaintiff the real-world outcome it sought. See id., at 622, 624–625 

(opinion of GINSBURG, J.). Our decision today is consistent with the 

views of both the majority and the dissenters in Buckhannon. 
8 SOLE v. WYNER 

Opinion of the Court 

attend achievement of a preliminary injunction that is

reversed, dissolved, or otherwise undone by the final

decision in the same case.4 

At the preliminary injunction stage, the court is called

upon to assess the probability of the plaintiff’s ultimate

success on the merits. See, e.g., Ashcroft v. American Civil 

Liberties Union, 542 U. S. 656, 666 (2004); Doran v. Salem 

Inn, Inc., 422 U. S. 922, 931 (1975). The foundation for 

that assessment will be more or less secure depending on 

the thoroughness of the exploration undertaken by the 

parties and the court. In some cases, the proceedings

prior to a grant of temporary relief are searching; in others, little time and resources are spent on the threshold 

contest. 

In this case, the preliminary injunction hearing was

necessarily hasty and abbreviated. Held one day after the

complaint was filed and one day before the event, the

timing afforded the state officer defendants little opportunity to oppose Wyner’s emergency motion. Counsel for the 

state defendants appeared only by telephone. App. 36. 

The emergency proceeding allowed no time for discovery,

nor for adequate review of documents or preparation and 

presentation of witnesses. See id., at 38–39. The provisional relief immediately granted expired before appellate

review could be gained, and the court’s threshold ruling

would have no preclusive effect in the continuing litigation. Both the District Court and the Court of Appeals 

considered the preliminary injunction a moot issue, not fit 

for reexamination or review, once the display took place.

See Summary Judgment Order, App. to Pet. for Cert. 34a; 

Omnibus Order, App. to Brief in Opposition 3a–4a; 179 

Fed. Appx., at 567, n. 1; cf. Lewis v. Continental Bank 

—————— 

4 In resolving Wyner’s claim for counsel fees, we express no opinion on

the dimensions of the First Amendment’s protection for artworks that

involve nudity. 
Cite as: 551 U. S. ____ (2007) 9 

Opinion of the Court 

Corp., 494 U. S. 472, 477–479 (1990). In short, the provisional relief granted terminated only the parties’ opening 

engagement. Its tentative character, in view of the continuation of the litigation to definitively resolve the controversy, would have made a fee request at the initial 

stage premature. 

Of controlling importance to our decision, the eventual 

ruling on the merits for defendants, after both sides considered the case fit for final adjudication, superseded the 

preliminary ruling. Wyner’s temporary success rested on

a premise the District Court ultimately rejected. That 

court granted preliminary relief on the understanding that 

a curtain or screen would adequately serve Florida’s interest in shielding the public from nudity that recreational 

beach users did not wish to see. See supra, at 3–4; 254 

F. Supp. 2d, at 1303 (noting that the parties had previously agreed upon “a number of . . . manner restrictions

that are far less restrictive than the total ban on nudity”).

At the summary judgment stage, with the benefit of a

fuller record, the District Court recognized that its initial

assessment was incorrect. Participants in the peace symbol display were in fact unwilling to stay behind a screen

that separated them from other park visitors. See Summary Judgment Order, App. to Pet. for Cert. 42a. See also 

App. 108 (acknowledgment by Wyner’s counsel that participants in the February 14, 2003 protest “in effec[t] 

ignored the screen”). In light of the demonstrated inadequacy of the screen to contain the nude display, the District Court determined that enforcement of the Bathing 

Suit Rule was necessary to “preserv[e] park aesthetics”

and “protect the experiences of the visiting public.” Summary Judgment Order, App. to Pet. for Cert. 41a, 42a.

Wyner contends that the preliminary injunction was not 

undermined by the subsequent adjudication on the merits 

because the decision to grant preliminary relief was an “as

applied” ruling. In developing this argument, she asserts 
10 SOLE v. WYNER 

Opinion of the Court 

that the officials engaged in impermissible content-based 

administration of the Bathing Suit Rule. But the District 

Court assumed, “for the purposes of [its initial] order,” the 

content neutrality of the state officials’ conduct. See 254 

F. Supp. 2d, at 1302. See also 179 Fed. Appx., at 568, and 

n. 4 (reiterating that, “for the sake of the preliminary

injunction order,” the District Court “assumed content

neutrality”). That specification is controlling. See Fed. 

Rule Civ. Proc. 65(d) (requiring every injunction to “set 

forth the reasons for its issuance” and “be specific in 

terms”). See also Schmidt v. Lessard, 414 U. S. 473, 476 

(1974) (per curiam) (Rule 65(d) “was designed to prevent 

uncertainty and confusion on the part of those faced with

injunctive orders.”).

The final decision in Wyner’s case rejected the same

claim she advanced in her preliminary injunction motion: 

that the state law banning nudity in parks was unconstitutional as applied to expressive, nonerotic nudity. At the 

end of the fray, Florida’s Bathing Suit Rule remained 

intact, and Wyner had gained no enduring “chang[e] [in] 

the legal relationship” between herself and the state officials she sued. See Texas State Teachers Assn., 489 U. S., 

at 792. 

III 

Wyner is not a prevailing party, we conclude, for her 

initial victory was ephemeral. A plaintiff who “secur[es] a

preliminary injunction, then loses on the merits as the 

case plays out and judgment is entered against [her],” has 

“[won] a battle but los[t] the war.” Watson v. County of 

Riverside, 300 F. 3d 1092, 1096 (CA9 2002). We are presented with, and therefore decide, no broader issue in this 

case. 

We express no view on whether, in the absence of a final 

decision on the merits of a claim for permanent injunctive

relief, success in gaining a preliminary injunction may 
Cite as: 551 U. S. ____ (2007) 11 

Opinion of the Court 

sometimes warrant an award of counsel fees. We decide 

only that a plaintiff who gains a preliminary injunction

does not qualify for an award of counsel fees under 

§1988(b) if the merits of the case are ultimately decided 

against her. 

* * * 

For the reasons stated, the judgment of the Court of

Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. 

It is so ordered.