FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HIGHER TASTE, INC., a Washington

Non-Profit Corporation,

Plaintiff-Appellant,

v.

CITY OF TACOMA, a Metropolitan

Municipal Corporation;

METROPOLITAN PARK DISTRICT OF

TACOMA, a Department of the City

of Tacoma; EXECUTIVE DIRECTOR

JACK C. WILSON, Executive Director

of the Metropolitan Park District of

the City of Tacoma,

Defendants-Appellees.

No. 11-36046

D.C. No.

3:10-cv-05252-

BHS

OPINION

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted

December 5, 2012—Seattle, Washington

Filed June 3, 2013
2 HIGHER TASTE, INC. V. CITY OF TACOMA

 The Honorable Sharon L. Gleason, United States District Judge for the *

District of Alaska, sitting by designation.

 This summary constitutes no part of the opinion of the court. It has

**

been prepared by court staff for the convenience of the reader.

Before: Richard C. Tallman and Paul J. Watford, Circuit

Judges, and Sharon L. Gleason, District Judge.*

Opinion by Judge Watford

SUMMARY

**

Civil Rights/Attorney’s Fees

The panel reversed the district court’s denial of a motion

for attorney’s fees brought pursuant to 42 U.S.C. § 1988(b),

after determining that the district court’s preliminary

injunction in plaintiff’s favor and the parties’ subsequent

settlement agreement conferred prevailing party status on

plaintiff for purposes of an attorney’s fee award.

Plaintiff Higher Taste, Inc., brought the underlying suit

under 42 U.S.C. § 1983 seeking to continue to sell

message-bearing T-shirts on public walkways in front of and

leading to the entrance of the Tacoma Zoo. The panel held

that the district court’s preliminary injunction ruling, which

was based on a finding that Higher Taste was likely to

succeed on the merits of its First Amendment claim, was

sufficiently on the merits to satisfy the “judicial imprimatur”

requirement for prevailing party status. The panel further

held that the parties’ subsequent settlement agreement, which
HIGHER TASTE, INC. V. CITY OF TACOMA 3

allowed Higher Taste to continue selling t-shirts on the public

walkway, was sufficiently enduring to satisfy the “material

alteration of the parties’ legal relationship” requirement.

The panel remanded for the district court to determine in

the first instance whether special circumstances existed that

would render an attorney’s fee award unjust and if such

circumstances did not exist, to calculate the reasonable fee

that Higher Taste is entitled to recover.

COUNSEL

Robert C. Moest (argued), Law Offices of Robert C. Moest,

Santa Monica, California; David M. Liberman, Law Offices

of David M. Liberman, Los Angeles, California, for PlaintiffAppellant.

Adam Rosenberg (argued), Keating, Bucklin & McCormack,

Inc., P.S., Seattle, Washington, for Defendants-Appellees.

OPINION

WATFORD, Circuit Judge:

Plaintiff Higher Taste Inc. is a non-profit religious

organization dedicated to promoting non-violence,

community harmony, spiritual ecology, and the humane

treatment of animals. It seeks to disseminate its message and

raise funds by selling T-shirts adorned with messages related

to its spiritual mission. For years Higher Taste sold its Tshirts at a public zoo operated by the principal defendant in

this case, the Metropolitan Park District of Tacoma, from a
4 HIGHER TASTE, INC. V. CITY OF TACOMA

table set up along the main walkway leading from the parking

area to the zoo’s entrance. This proved to be a prime

location, ensuring that a steady stream of the zoo’s

500,000–600,000 annual visitors would be exposed to Higher

Taste’s teachings.

In 2005, the Park District adopted Resolution 40-05,

which banned the sale of any merchandise near the zoo’s

entrance, along the walkways leading to the zoo’s entrance,

or in the zoo’s parking area. At first, the Park District

allowed Higher Taste to continue selling its T-shirts at the

zoo, albeit not at the prime location Higher Taste had

previously occupied. But in March 2010, the Park District,

taking an expansive view of its power under the resolution,

banned Higher Taste from selling T-shirts anywhere on zoo

grounds.

Soon thereafter, Higher Taste sued the Park District under

42 U.S.C. § 1983, requesting a declaration that Resolution

40-05 violated its rights under the First and Fourteenth

Amendments and an injunction barring the resolution’s

enforcement. The district court denied Higher Taste’s motion

for a temporary restraining order but ordered supplemental

briefing on whether it should issue a preliminary injunction.

Six weeks later, after receiving briefs and supporting

declarations from the parties, the court granted Higher Taste’s

motion for a preliminary injunction, expressly ruling that

Higher Taste had demonstrated a likelihood of success on the

merits. The court enjoined enforcement of Resolution 40-05

pending final resolution of the case, which, in the interim,

allowed Higher Taste to resume selling its message-bearing

T-shirts along the main walkway leading from the parking

area to the zoo’s entrance.
HIGHER TASTE, INC. V. CITY OF TACOMA 5

The Park District did not seek interlocutory review under

28 U.S.C. § 1292(a)(1), so the preliminary injunction

remained in effect while the litigation proceeded. Early on,

the parties agreed to suspend discovery while they engaged

in settlement discussions. After lengthy negotiations that

spanned the next sixteen months, the parties’ efforts bore

fruit. The Park District agreed to enact new regulations

allowing organizations like Higher Taste to sell messagebearing merchandise along the main walkway leading from

the parking area to the zoo’s entrance, among other locations.

The parties executed a written settlement agreement

signed by Higher Taste, the Park District, and the other

defendants named in the action. As consideration for the

dismissal of Higher Taste’s lawsuit, the Park District agreed

to “allow Higher Taste to sell its message-bearing

merchandise (T-shirts) on the walkways . . . between the Zoo

and the parking lot, or in the parking lot areas of the Zoo,”

pursuant to the new regulations, which were attached to the

settlement agreement as an exhibit. The parties could not

reach agreement on attorney’s fees; that issue was left for the

district court to resolve by separate motion.

In accordance with the parties’ stipulation, the district

court entered an order dismissing Higher Taste’s action with

prejudice. The order did not incorporate the terms of the

parties’ settlement agreement nor provide for the court’s

retention of jurisdiction, other than over the issue of

attorney’s fees.

Higher Taste then moved for attorney’s fees under

42 U.S.C. § 1988(b), which permits an award to the

“prevailing party” in certain civil rights actions, including

those brought under 42 U.S.C. § 1983. The district court
6 HIGHER TASTE, INC. V. CITY OF TACOMA

denied Higher Taste’s motion on the ground that neither the

preliminary injunction nor the subsequent settlement rendered

Higher Taste a prevailing party within the meaning of § 1988.

We review that ruling de novo because it turns on an issue of

statutory construction—the meaning of “prevailing party.”

Carbonell v. INS, 429 F.3d 894, 897–98 (9th Cir. 2005).

A plaintiff “prevails” for purposes of § 1988 “when actual

relief on the merits of his claim materially alters the legal

relationship between the parties bymodifying the defendant’s

behavior in a way that directly benefits the plaintiff.” Farrar

v. Hobby, 506 U.S. 103, 111–12 (1992). Relief “on the

merits” occurs when the material alteration of the parties’

legal relationship is accompanied by “judicial imprimatur on

the change.” Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001).

Judicial imprimatur can come in the form of an enforceable

judgment on the merits or a court-ordered consent decree (the

two examples the Court gave in Buckhannon), but those are

not the exclusive means of satisfying the requirement.

Carbonell, 429 F.3d at 898; Watson v. County of Riverside,

300 F.3d 1092, 1096 (9th Cir. 2002). Other court-approved

actions will suffice, provided they entail a judicial

determination that the claims on which the plaintiff obtains

relief are potentially meritorious. See Buckhannon, 532 U.S.

at 606.

Lower courts have struggled to decide whether the

requirements for prevailing-party status are met by a plaintiff

who wins a preliminary injunction but does not litigate the

case to final judgment. The difficulty arises because

preliminary injunctive relief is sometimes issued after a

hearing that is “necessarily hasty and abbreviated,” before

any real assessment of the merits of the plaintiff’s claims can
HIGHER TASTE, INC. V. CITY OF TACOMA 7

 We will put to one side so-called “stay put” or “status quo” injunctions, 1

which do not entail a judicial determination regarding the plaintiff’s

likelihood of success. Some circuits have held that these injunctions

cannot satisfy Buckhannon’s judicial imprimatur requirement. See

2 MARTIN A. SCHWARTZ & JOHN E. KIRKLIN, SECTION 1983 LITIGATION:

STATUTORY ATTORNEY’S FEES § 2.04, at 2-33 to 2-46.1 (4th ed. 2003 &

Supp. 2012-2) (collecting cases). Because the district court did not issue

a “stay put” or “status quo” injunction here, we need not decide whether

such injunctions should be treated differently from merits-based

preliminary injunctions.

be made. Sole v. Wyner, 551 U.S. 74, 84 (2007). And such

relief is, by its very nature, intended to be temporary. Thus,

two recurrent questions arise when making prevailing-party

determinations in this context: First, is the court’s

preliminary injunction ruling sufficiently “on the merits” to

satisfy Buckhannon’s “judicial imprimatur” requirement?

And second, has the plaintiff obtained relief sufficiently

enduring to satisfy the “material alteration of the parties’

legal relationship” requirement?

We begin with the first question, to which the answer, at

least on the facts of this case, is clear. Several circuits,

including ours, have held that a preliminary injunction

satisfies the judicial imprimatur requirement if it is based on

a finding that the plaintiff has shown a likelihood of success

on the merits. When confronted with those circumstances in

Watson v. County of Riverside, 300 F.3d 1092 (9th Cir.

2002), we held that “[a] preliminary injunction issued by a

judge carries all the ‘judicial imprimatur’ necessary to satisfy

Buckhannon.” Id. at 1096; accord Common Cause/Ga. v.

Billups, 554 F.3d 1340, 1355–56 (11th Cir. 2009); Dearmore

v. City of Garland, 519 F.3d 517, 523–24 (5th Cir. 2008).1
8 HIGHER TASTE, INC. V. CITY OF TACOMA

The district court in this case expressly based its

preliminary-injunction ruling on a finding that Higher Taste

was likely to succeed on the merits of its First Amendment

claim, after a hearing that was not “hasty and abbreviated.”

Sole, 551 U.S. at 84. The court’s likelihood-of-success

finding ensures that the preliminary relief Higher Taste

obtained was the product of more than merely a

“nonfrivolous but nonetheless potentially meritless lawsuit.”

Buckhannon, 532 U.S. at 606. Thus, as was true in Watson,

the preliminary injunction satisfies Buckhannon’s judicial

imprimatur requirement. 300 F.3d at 1096.

We turn now to the second question, which involves

determining whether the relief obtained materially altered the

parties’ legal relationship. No one disputes that, at least for

the time it remains in effect, a preliminary injunction

normally satisfies this requirement. A material alteration of

the parties’ legal relationship occurs when “the plaintiff can

force the defendant to do something he otherwise would not

have to do.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1118

(9th Cir. 2000). That is typically the whole point of an

injunction, which is why in the usual case injunctive relief

“work[s] the requisite material alteration in the parties’

relationship.” Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012)

(per curiam).

This is the usual case. Armed with the preliminary

injunction, Higher Taste forced the Park District to do

something it would not otherwise have had to do—namely,

allow Higher Taste to resume selling its message-bearing Tshirts on zoo grounds. But that does not end the inquiry, for

the preliminary injunction issued here was intended (as in

most cases) to afford only temporary relief pending final

resolution of the case.
HIGHER TASTE, INC. V. CITY OF TACOMA 9

Precisely because the relief afforded by a preliminary

injunction may be undone at the conclusion of the case, some

inquiry into events post-dating the injunction’s issuance will

generally be necessary. For example, a plaintiff who

succeeds at the preliminary injunction stage but loses on the

merits after the case is litigated to final judgment is not a

prevailing party under § 1988; in those circumstances, she

secures only an “ephemeral” victory and gains no “enduring”

change in the legal relationship of the parties. Sole, 551 U.S.

at 86. Still, there may be circumstances in which a

preliminary injunction resultsin sufficiently enduring change

to warrant an award of fees, even in the absence of a final

judgment on the merits. The Supreme Court did not resolve

that issue in Sole, so we must look to circuit-level precedent

for guidance.

We have previously held that when a plaintiff wins a

preliminary injunction and the case is rendered moot before

final judgment, either by the passage of time or other

circumstances beyond the parties’ control, the plaintiff is a

prevailing party eligible for a fee award. See Watson,

300 F.3d at 1096; Williams v. Alioto, 625 F.2d 845, 847–48

(9th Cir. 1980) (per curiam); accord N. Cheyenne Tribe v.

Jackson, 433 F.3d 1083, 1086 (8th Cir. 2006); Young v. City

of Chicago, 202 F.3d 1000, 1000–01 (7th Cir. 2000) (per

curiam); Haley v. Pataki, 106 F.3d 478, 483–84 (2d Cir.

1997). In those cases, although the plaintiff never secured a

final judgment granting permanent injunctive relief, the

preliminary injunction ended up affording all the relief that

proved necessary. See Watson, 300 F.3d at 1096; Williams,

625 F.2d at 847–48. The plaintiff therefore received relief

that was as enduring as a permanent injunction would have

been and, by virtue of the case’s mootness, that relief was no

longer subject to being “reversed, dissolved, or otherwise
10 HIGHER TASTE, INC. V. CITY OF TACOMA

undone by the final decision in the same case.” Sole,

551 U.S. at 83; see also Radvansky v. City of Olmsted Falls,

496 F.3d 609, 620 (6th Cir. 2007); Dupuy v. Samuels,

423 F.3d 714, 719, 723 (7th Cir. 2005).

Other circuits have applied the same reasoning when the

plaintiff wins a preliminary injunction and the case is

subsequently rendered moot by the defendant’s own actions.

(A typical scenario: The plaintiff wins a preliminary

injunction prohibiting enforcement of a particular statute, and

the defendant renders the case moot by repealing the statute

before final judgment is entered.) In that circumstance, too,

courts have held that the plaintiff is a prevailing party under

§ 1988. See, e.g., Common Cause/Ga., 554 F.3d at 1356;

People Against Police Violence v. City of Pittsburgh,

520 F.3d 226, 233–34 (3d Cir. 2008); Dearmore, 519 F.3d at

523–24. There is again no concern that the relief the plaintiff

won at the preliminary-injunction stage will prove to be

ephemeral. The defendant’s action in rendering the case

moot ensures that the injunction’s alteration of the parties’

legal relationship will not be undone by subsequent rulings in

the litigation.

The reasoning in these cases persuades us that Higher

Taste is a prevailing party here. It is true that the district

court dismissed this case upon the parties’ stipulation

following settlement, rather than upon a determination of

mootness. But the question is whether Higher Taste achieved

relief sufficiently enduring to satisfy the “material alteration

of the parties’ legal relationship” requirement. In our view,

just as mootness provided assurance in the cases discussed

above that the plaintiff’s initial victory was enduring rather

than ephemeral, so too the settlement provides that assurance

here. It transformed what had been temporary relief capable
HIGHER TASTE, INC. V. CITY OF TACOMA 11

of being undone (had the case been litigated to final

judgment) into a lasting alteration of the parties’ legal

relationship. Indeed, by securing Higher Taste’s right to

continue selling its message-bearing T-shirts along the main

walkway leading from the parking area to the zoo’s entrance,

the settlement agreement gave Higher Taste what it had

hoped to obtain through a permanent injunction. See

Williams, 625 F.2d at 847.

The Park District responds by arguing that, in actuality,

the settlement agreement did not secure any enduring relief

for Higher Taste. The Park District notes that the new

regulations it agreed to enact as part of the settlement

expressly reserved its right “to change, modify or revoke the

above Rules and Regulations if it deems it necessary.” Under

this provision, the Park District contends, it remains free to

unilaterally repeal the regulations in their entirety at any time.

The Park District undoubtedly retains the power to repeal

the new regulations it has enacted, and such action would of

course affect members of the general public who wish to sell

message-bearing merchandise on zoo grounds. But a repeal

of the regulations would have no effect on the personal right

to sell message-bearing merchandise Higher Taste secured for

itself by negotiating the settlement agreement. That

contractual right was the consideration Higher Taste received

in exchange for dismissing its § 1983 lawsuit with prejudice,

a right that would remain enforceable even if the Park District

repealed the newly enacted regulations in full. Under the

Park District’s implausible reading of the settlement

agreement, the day after the district court dismissed the

action, the Park District could have repealed the new

regulations and once again banned Higher Taste from selling

its message-bearing T-shirts anywhere on zoo grounds—in
12 HIGHER TASTE, INC. V. CITY OF TACOMA

effect putting the parties back to square one. We do not

believe the parties spent sixteen months hammering out that

illusory “agreement.”

Finally, the Park District argues that the settlement

agreement cannot confer prevailing-party status on Higher

Taste because the district court did not endorse or adopt the

settlement agreement or otherwise retain jurisdiction to

enforce it. We acknowledge that our case law suggests a

settlement agreement must be judicially enforceable to meet

Buckhannon’s judicial imprimatur requirement. See St.

John’s Organic Farm v. Gem Cnty. Mosquito Abatement

Dist., 574 F.3d 1054, 1058–59 (9th Cir. 2009). But Higher

Taste does not rely on the settlement agreement to satisfy the

judicial imprimatur requirement; the preliminary injunction

“carries all the ‘judicial imprimatur’ necessary to satisfy

Buckhannon.” Watson, 300 F.3d at 1096. Higher Taste

instead relies on the settlement agreement to establish that the

relief it won at the preliminary-injunction stage is sufficiently

enduring to satisfy the “material alteration of the parties’

legal relationship” requirement. Forthe reasons given above,

we conclude that the settlement agreement does so.

Because Higher Taste is a prevailing party within the

meaning of § 1988, it “should ordinarily recover an attorney’s

fee unless special circumstances would render such an award

unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)

(citation and internal quotation marks omitted); see also

Mendez v. County of San Bernardino, 540 F.3d 1109,

1126–30 (9th Cir. 2008). On remand, the district court

should determine in the first instance whether such special

circumstances exist. If they do not, the court should calculate

the reasonable fee Higher Taste is entitled to recover.
HIGHER TASTE, INC. V. CITY OF TACOMA 13

REVERSED AND REMANDED.