In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-1909

FEDERATION OF ADVERTISING INDUSTRY

REPRESENTATIVES, INC., an Illinois

not-for-profit corporation,

 Plaintiff-Appellant,

v.

CITY OF CHICAGO,

 Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 97 C 7619—Matthew F. Kennelly, Judge.

____________

ARGUED JANUARY 10, 2003—DECIDED APRIL 25, 2003

____________

Before EASTERBROOK, MANION, and KANNE, Circuit

Judges.

KANNE, Circuit Judge. This case concerns a continuing litigation involving a now-repealed Chicago city ordinance. The district court held that repeal of the ordinance

ended the ongoing controversy and rendered the case

moot. The district court also found that the plaintiff was

not entitled to attorney’s fees. For the reasons set out below, we affirm.
2 No. 02-1909

1 Federation also added a federal Contracts Clause claim, U.S.

CONST. art. I, § 10, when the City amended the ordinance to remove the grandfather clause.

2 The district court did not rule on the First Amendment claim

at this time, holding that motion in abeyance while it determined

the preemption issue.

I. History

In September 1997, the Chicago City Council passed an

ordinance prohibiting the placement of alcohol and cigarette advertisements in “publicly visible places,” defined

as outdoor billboards, sides of buildings, and freestanding

signboards. The ordinance contained numerous exceptions allowing such advertisements in commercial zones,

manufacturing zones, and other locations. Also included

in the ordinance was a “grandfather” clause, which honored

advertising contracts entered into before the effective

date of the ordinance. The grandfather clause was removed, however, when the City learned that advertisers,

relying on the clause, had entered into multiple new contracts and that these new contracts would essentially

undermine the purpose of the ordinance.

Federation of Advertising Industry Representatives, Inc.,

an association of companies that displays advertisements

for various products including cigarettes and alcohol, filed

suit against the City, alleging that the ordinance violated

the First Amendment and was preempted by both federal

and state statutes.1

 In its complaint, Federation sought

injunctive and declaratory relief, and made a claim for

damages and attorney’s fees.

In July 1998, Federation moved for summary judgment

on its First Amendment and preemption claims. The district court granted the motion with respect to the preemption claim,2

 holding that the portions of the ordinance

relating to cigarette advertising were preempted by § 5(b)
No. 02-1909 3

3 This section provides: “No requirement or prohibition based

on smoking and health shall be imposed under State law with

respect to the advertising or promotion of any cigarettes the

packages of which are labeled in conformity with the provisions

of this Chapter.” 15 U.S.A. § 1334(b) (2003).

4 This holding was based on the fact that we found the ordinance

to be basically a land-use regulation that did not interfere with

the FCLAA’s advertising and labeling requirements. We held

that the exception relating to generic tobacco advertising was

preempted, however, because it regulated without regard to

any land-use consideration. Federation, 189 F.3d at 639-40.

of the Federal Cigarette Labeling and Advertising Act

(“FCLAA”), 15 U.S.C. § 1334(b),3

 and that the portions relating to alcohol advertising were not severable. Fed’n of

Adver. Indus. Rep., Inc. v. City of Chicago, 12 F. Supp. 2d

844, 853 (N.D. Ill. 1998). The district court awarded Federation declaratory and injunctive relief, but denied the

claim for damages, stating that Federation had presented

no evidence that it had suffered damages. Also, in a later

order, the district court, pursuant to 42 U.S.C. § 1988,

awarded Federation attorney’s fees in excess of $400,000

and nontaxable expenses of nearly $15,000.

The City appealed the grant of summary judgment and

the award of attorney’s fees, but Federation did not appeal the district court’s denial of its damages claim. In that

first appeal, we reversed the district court’s ruling that

the FCLAA preempted all parts of the ordinance regulating cigarette advertising, finding instead that only a

small exception in the ordinance allowing advertising

of generic, as opposed to brand specific, tobacco products

was preempted.4 Fed’n of Adver. Indus. Rep., Inc. v. City of

Chicago, 189 F.3d 633, 639-40 (7th Cir. 1999). This preempted portion, we held, was severable from the balance

of the statute; thus, we reversed the district court’s decision that the ordinance was invalid in its entirety and
4 No. 02-1909

affirmed that decision only as it related to the exception for

generic tobacco advertising. Id. at 640. We remanded for

further proceedings consistent with our opinion. Id.

On November 1, 2000, the City amended the ordinance

to remove the preempted exception and to remove several other exceptions, the constitutionality of which had

been called into question by the Supreme Court decision

in Greater New Orleans Broad. Ass’n v. United States, 527

U.S. 173 (1999). Subsequently, Federation amended its

complaint to drop the preemption claim and to eliminate

entirely its challenge to the cigarette-advertising portions of the ordinance.

On June 5, 2001, Federation moved for summary judgment on the First Amendment grounds, arguing that

the ordinance’s regulation of alcohol advertising was an

invalid content-based regulation on noncommercial speech,

and in the alternative, that the ordinance was an invalid

restriction of commercial speech. Before the City filed

a response, the Supreme Court decided Lorillard Tobacco

Co. v. Reilly, 533 U.S. 525 (2001), which held that a Massachusetts statute, similar to the statute in this case, was

preempted by the FCLAA and violated the First Amendment. Id. at 551, 561.

Federation filed a supplemental brief arguing that

Lorillard required the district court to grant its motion

for summary judgment. The City did not respond to the

merits of Federation’s summary judgment motion, but

rather on September 13, 2001, filed a cross motion to

dismiss based on mootness, citing the City’s intention to

repeal the ordinance in light of Lorillard and noting that

since no damages claim remained, repeal would provide

Federation full relief and end the controversy. The City

did not concede the unconstitutionality of its ordinance,

which it contended was materially different from the

ordinance at issue in Lorillard; rather, it stated that the
No. 02-1909 5

risks of going forward in light of Lorillard had persuaded

it to repeal the ordinance. On October 31, 2001, the City

Council repealed the ordinance, and a week later the

district court granted the City’s motion to dismiss, finding

that the repeal of the ordinance had rendered the case

moot.

Subsequently, Federation filed a motion for rehearing,

on the grounds that it was a “prevailing party” and therefore entitled to reasonable attorney’s fees under 42 U.S.C.

§ 1988. The district court denied the motion, reaffirming

its decision on mootness and finding that Federation

was not entitled to attorney’s fees because it was not a

“prevailing party” under the statute, as interpreted by

the Supreme Court in Buckhannon Board & Care Home,

Inc. v. W. Va. Dep’t. of Health and Human Res., 532 U.S.

598, 600 (2001). Federation now appeals the district

court’s rulings on both mootness and attorney’s fees.

II. Analysis

A. Mootness

 Whether a case has been rendered moot is a question of

law that we review de novo. Higgason v. Farley, 83 F.3d

807, 811 (7th Cir. 1996). Under Article III of the Constitution, as interpreted by the courts, cases that do not involve “actual, ongoing controversies” are moot and must

be dismissed for lack of jurisdiction. Stotts v. Cmty. Unit

Sch. Dist. No. 1, 230 F.3d 989, 990-91 (7th Cir. 2000). A

question of mootness arises when, as here, a challenged

ordinance is repealed during the pendency of litigation, and

a plaintiff seeks only prospective relief. Rembert v.

Sheahan, 62 F.3d 937, 940 (7th Cir. 1995).

We begin with Federation’s argument that this case is

not moot because in addition to declaratory and injunctive relief, it sought damages in its complaint. We recog-
6 No. 02-1909

nize that a defendant’s change in conduct cannot render

a case moot so long as the plaintiff makes a claim for

damages. Buckhannon, 532 U.S. at 608-09. However, no

damage claim remains in this case. In the original district

court ruling, which granted Federation’s motion for summary judgment, the court explicitly denied Federation’s

claim for damages, holding that no evidence had been

submitted to support the claim. See Federation, 12 F. Supp.

2d at 854. This was a final ruling by the district court,

which Federation did not appeal. “Under the doctrine of

the law of the case, a ruling by the trial court, in an earlier stage of the case, that could have been but was not

challenged on appeal is binding in subsequent stages of

the case.” Schering Corp. v. Ill. Antibiotics Co., 89 F.3d 357,

358 (7th Cir. 1996). Thus, Federation is precluded from

resurrecting its damages claim and at this stage may only

seek injunctive and declaratory relief.

Federation next argues that this case presents a live

controversy because, though the City has repealed the

challenged ordinance, the City remains free to reenact it

at any time. In support of this argument, Federation

cites the general principle that a defendant’s voluntarily

cessation of challenged conduct will not render a case

moot because the defendant remains “free to return to his

old ways.” United States v. W. T. Grant Co., 345 U.S. 629,

632-33 (1953).

We do not dispute that this proposition is the appropriate standard for cases between private parties, but this

is not the view we have taken toward acts of voluntary

cessation by government officials. Rather, “[w]hen the

defendants are public officials . . . we place greater stock

in their acts of self-correction, so long as they appear

genuine.” Magnuson v. City of Hickory Hills, 933 F.2d 562,

565 (7th Cir. 1991); see also Ragsdale v. Turnock, 841 F.2d

1358, 1365 (7th Cir. 1988) (“We note additionally that

cessation of the allegedly illegal conduct by government
No. 02-1909 7

officials has been treated with more solicitude by the

courts than similar action by private parties.”) (citing

13A WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE

§ 3533.7, at 353 (2d ed. 1984). To adopt Federation’s view

that mere repeal is insufficient to moot a case would

essentially put this court in the position of presuming

that the City has acted in bad faith—harboring hidden

motives to reenact the statute after we have dismissed

the case—something we ordinarily do not presume. See

generally N.E. Fla. Chapter of the Assoc. Gen. Contractors

of Am. v. City of Jacksonville, 508 U.S. 656, 677 (1993)

(O’Connor, J., dissenting); Michael Ashton, Note, Recovering

Attorney’s Fees with the Voluntary Cessation Exception

to Mootness Doctrine After Buckhannon Board and Care

Home, Inc. v. West Virginia Department of Health and

Human Resources, 2002 WIS. L. REV. 965.

Rather than presuming bad faith, we have repeatedly

held that the complete repeal of a challenged law renders

a case moot, unless there is evidence creating a reasonable expectation that the City will reenact the ordinance

or one substantially similar. See, e.g., Rembert, 62 F.3d

at 940; Thomas v. Fielder, 884 F.2d 990, 995 (7th Cir. 1989).

This rule does not, as Federation suggests, conflict with

Supreme Court precedent on the issue. In a string of cases,

the Court has upheld the general rule that repeal, expiration, or significant amendment to challenged legislation

ends the ongoing controversy and renders moot a plaintiff’s request for injunctive relief. See, e.g., Lewis v. Cont’l

Bank Corp., 494 U.S. 472, 474 (1990); Mass. v. Oakes, 491

U.S. 576, 582-83 (1989); Princeton Univ. v. Schmid, 455

U.S. 100, 103 (1982); Kremens v. Bartley, 431 U.S. 119, 128-

29 (1977); Diffenderfer v. Cent. Baptist Church, Inc., 404

U.S. 412, 415 (1972).

Only in cases where there is evidence that the repeal

was not genuine has the Court refused to hold the case
8 No. 02-1909

5 We recognize that some language in the Aladdin’s Castle

majority opinion perhaps suggests that mere repeal of a challenged statute does not moot a case. But in light of both previous

and subsequent cases, we find this language to be dicta and

therefore not controlling. Further supporting this conclusion

is Justice White’s Aladdin’s Castle concurrence wherein he noted

that the City of Mesquite’s announced intention to reenact the

challenged ordinance distinguished Aladdin’s Castle from prior

cases where the Court had held that repeal moots a statutory

challenge. Id. at 296 n. (White, J., concurring in part, dissenting

in part). Aladdin’s Castle, therefore, was reconcilable with those

prior cases.

6 Consistent with our belief that Northeastern Florida and

Aladdin’s Castle represent only an exception to the general rule,

the Northeastern Florida majority noted that what separated its

holding from those in Diffenderfer and similar cases was that

in the prior cases there was “no basis for concluding that the

challenged conduct was being repeated,” whereas in Northeastern

Florida the City had already reenacted a similar statute. Id.

at 662 n.3.

moot. For instance, in City of Mesquite v. Aladdin’s Castle,

though the City had repealed the challenged ordinance, the

Court declined to find the case moot because the City

had announced to the Court its intention to reenact the

challenged provision if the case was dismissed. 455 U.S.

283, 289 n.11 (1982).5 Similarly, in Northeastern Florida,

the Court held that repeal did not moot the case because the City had already replaced the repealed ordinance

with one that was substantially similar, causing the

Court to note that “[t]here is no mere risk that Jacksonville will repeat its allegedly wrongful conduct; it has

already done so.” 508 U.S. 656, 662 (1993).6

 Therefore, we, along with all the circuits to address the

issue, have interpreted Supreme Court precedent to support the rule that repeal of a contested ordinance moots

a plaintiff’s injunction request, absent evidence that the
No. 02-1909 9

7 See Citizens for Responsible Gov’t v. Davidson, 236 F.3d 1174,

1182 (10th Cir. 2000) (“In general, the repeal of a challenged

statute is one of those events that makes it absolutely clear that

the allegedly wrongful behavior—here the threat of prosecution under one of the repealed sections—could not reasonably

be expected to recur.”) (quotations omitted); D.H.L. Assoc. v.

O’Gorman, 199 F.3d 50, 55 (1st Cir. 1999) (finding that

Diffenderfer established the general rule that repeal of a statute

moots a case, and that Aladdin’s Castle and Northeastern Florida

created an exception to this rule that only applied “when there

is a reasonable expectation that the challenged conduct will be

repeated following dismissal of the case”); Nat’l Black Police

Assoc. v. Dist. of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997)

(“Although voluntary cessation analysis applies where a challenge

to government action is mooted by passage of legislation, the mere

power to reenact a challenged law is not a sufficient basis on

which a court can conclude that a reasonable expectation of recurrence exists. Rather, there must be evidence indicating that

the challenged law likely will be reenacted.”); Ky. Right to Life,

Inc. v. Terry, 108 F.3d 637, 645 (6th Cir. 1997) (holding that

amendment to the challenged statute mooted the claim when the

state had expressed no intention to reenact the prior law) ; Native

Village of Noatak v. Blatchford, 38 F.3d 1505, 1510 (9th Cir. 1994)

(“As a general rule, if a challenged law is repealed or expires, the

case becomes moot” except where “it is virtually certain that the

repealed law will be reenacted.”); Assoc. Gen. Contractors of

Conn., Inc. v. City of New Haven, 41 F.3d 62, 66 (2d Cir. 1994)

(holding the Aladdin’s Castle exception to the mootness rule

inapplicable because the City of New Haven had not reenacted

the challenged legislation and the court did not foresee that it

would); see also ERWIN CHEMERINSKY, FEDERAL JURISDICTION

§ 2.5, at 139 (3d. ed. 1999) (concluding after reviewing relevant

Supreme Court cases that “[t]he difficulty is determining why

in some situations a legislative repeal is deemed to make a case

moot, yet in other cases it does not . . . . The key appears to be

(continued...)

City plans to or already has reenacted the challenged

law or one substantially similar.7

 Consequently, the issue
10 No. 02-1909

7 (...continued)

that cases will not be dismissed as moot if the Court believes

that there is a likelihood of reenactment of a substantially similar law if the lawsuit is dismissed”).

here is whether there is any evidence that the City of

Chicago’s repeal was disingenuous; that is, evidence that

the City will reenact the challenged ordinance or one

substantially similar.

Federation essentially makes two arguments on this

front, neither of which we find persuasive. First, Federation

contends that the City has engaged in a disingenuous

game of “constitutional cat and mouse.” Thomas, 884 F.2d

at 995. According to Federation, the fact that the City

twice amended this ordinance and finally repealed it,

demonstrates the City’s determination to evade constitutional limits on its power and therefore is evidence that

it will reenact the ordinance if we dismiss this case. We

disagree with Federation’s characterization of the City’s

actions as disingenuous; rather, they just as likely reveal

the City’s good-faith attempts to initially maintain an

effective ordinance that complies with the Constitution,

and then its desire to avoid substantial litigation costs

by removing a potentially unconstitutional law from the

books. For instance, the second amendment to the ordinance, which removed various exceptions, came partially

in response to our decision that one of the exceptions

was preempted by the FCLAA and partially in response

to the Supreme Court decision in Greater New Orleans

Broad. Ass’n v. United States, 527 U.S. 173 (1999), which

moved the City to question the constitutionality of an

exception-laden ordinance. We can hardly fault the City

for its attempts to craft an ordinance that passes constitutional muster and complies with judicial decisions.

Thomas, 884 F.2d at 995. Finally, the City candidly admits that the Lorillard decision persuaded it to repeal
No. 02-1909 11

the ordinance because of the risk of losing in the litigation. We find that the City’s actions over the course of this

litigation do not give rise to an expectation that it will

reenact the challenged ordinance.

Second, Federation argues that the proposal of another

sign-restricting ordinance in the City Council creates a

reasonable expectation that the City will return to its old

ways. While the record reveals that another law has been

proposed, it is of a significantly different character than

the repealed ordinance. Unlike the repealed ordinance,

which restricted only cigarette and alcohol advertisements, the newly proposed law does not regulate on the

basis of content, but rather would allow the City Council

to create sign-free districts where no advertising signs

could be displayed at all, whether they be for alcohol,

cigarettes, soft drinks, or whatever. The majority opinion in

Northeastern Florida made it clear that where a challenged statute is replaced by one that would create a

“substantially different controversy,” then the new statute

provides “no basis for concluding that the challenged

conduct [will be] repeated.” Northeastern Florida, 508

U.S. at 662 n.3. The proposed ordinance, a content-neutral

prohibition, would create a substantially different controversy than the repealed ordinance, which was fundamentally a content-based prohibition.

Moreover, the fact that this is only a proposed ordinance

is not insignificant. We have no way of knowing the likelihood that this ordinance will actually be enacted. Therefore,

it presents a quite different case than either Aladdin’s

Castle—where the City explicitly informed the Court that

it would reenact the repealed law, 455 U.S. at 289 &

n.11—or Northeastern Florida—where the City had already enacted a substantially similar ordinance, 508 U.S.

at 662.

Because the City has repealed the challenged ordinance

and because we find no evidence in the record creating a
12 No. 02-1909

8 The Buckhannon case involved the term “prevailing party” as

used in the Fair Housing Amendments Act of 1988, 42 U.S.C.

§ 3613(c)(2) and the Americans with Disabilities Act of 1990, 42

U.S.C. § 12205. But the Court made abundantly clear that its

ruling would apply as well to the term as used in the Civil Rights

Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988. Buckhannon, 532 U.S. at 602-03 & n.4.

reasonable expectation that the City will reenact that

ordinance, we affirm the district court’s holding that

this case is moot.

B. Attorney’s Fees

Federation claims attorney’s fees under 42 U.S.C. § 1988,

which provides to “the prevailing party . . . a reasonable

attorney’s fee.” The district court below held that Federation was not a “prevailing party” under the statute and

therefore denied Federation’s claim. Although the decision

to award attorney’s fees under § 1988 lies within the

district court’s discretion, when, as here, the district

court’s denial of an attorney’s fee award rests on the

application of a principle of law, our review is de novo.

Jaffee v. Redmond, 142 F.3d 409, 412-13 (7th Cir. 1998).

In Buckhannon, the Supreme Court rejected as a basis

for awarding attorney’s fees the “catalyst theory,” which

deemed the “plaintiff a ‘prevailing party’ if it achieves

the desired result because the lawsuit brought about a

voluntary change in the defendant’s conduct.” 532 U.S. at

600-01. Instead, the Court held that the term “prevailing

party,” as used in various federal statutes,8

 includes only

those parties who have obtained a “judicially sanctioned

change” in the legal relationship of the parties. Id. at 605.

As examples of the sort of “judicially sanctioned change”

required, the Court cited an enforceable judgement on

the merits or a court-ordered consent decree. Id. at 602.
No. 02-1909 13

Federation has not obtained an enforceable judgment on

the merits, a court-ordered consent decree, or anything

else that might be classified as “some relief by the court.”

Id. at 603. Thus, Buckhannon mandates we find that Federation is not a “prevailing party” in this litigation.

Attempting to avoid the application of Buckhannon,

Federation argues that its position in this case has been

marked with a sufficient “judicial imprimatur” to qualify

it as a prevailing party. Id. at 605. Federation first points

to the fact that the district court originally granted its

motion for summary judgment. But we reversed the core

holding of that decision. Federation, 189 F.3d at 639-40.

Obtaining a favorable judgment that is reversed on appeal

does not entitle a plaintiff to prevailing-party status.

Federation notes that we affirmed a portion of the original

district court decision. Id. at 640. But our holding only

affirmed the small portion of the decision that found that

an exception in the ordinance was preempted by the

FCLAA. The relief sought by Federation was far broader

than that which we upheld. It sought not the elimination of merely this exception, but rather the elimination

of the entire ordinance. In fact, our holding that the generic advertising exception was preempted actually did

not provide Federation any relief at all; rather, it further limited Federation’s ability to advertise. Therefore,

the fact that we affirmed this portion of the original district court decision certainly does not make Federation

a prevailing party. See generally Cady v. City of Chicago, 43

F.3d 326, 329 (7th Cir. 1994) (holding that even under

the catalyst theory, a plaintiff is not a prevailing party

unless he obtains the relief sought or at least relief that

is directly beneficial to him).

Federation also tries to characterize itself as a prevailing party based on the fact that the City’s repeal of the

ordinance was not voluntary. According to Federation,

repeal was brought about by the combination of the Su-
14 No. 02-1909

preme Court’s decision in Lorillard and its own motion

for summary judgment that was pending when Lorillard

was decided. Assuming for the sake of argument that

Federation’s characterization of the City’s reasons for

repealing its ordinance is correct, Buckhannon still would

prevent us from finding that Federation is a prevailing

party. For even if we accept that Lorillard controls the

merits of Federation’s claim, neither Federation nor the

City were parties to that case. In other words, Lorillard

may support Federation’s position, but it was not a judgment that changed the legal relationship between the

parties in this case—and that is what Buckhannon requires.

See Buckhannon, 532 U.S. at 605.

Nor does the fact that Federation had a summary judgment motion pending provide the necessary judicially

sanctioned change. Even assuming that after Lorillard, the

district court would have granted Federation’s motion had

the City not repealed its ordinance, the fact remains that no

such ruling was made and thus no judicial relief was

awarded to Federation. Federation lays blame on the

district court for not ruling on the summary judgment

motion before the City could repeal its ordinance, but we

see no error in the judge not ruling as quickly as Federation

might have liked, especially in light of the fact that Federation did not move for expedited review.

The fact remains that Federation did not obtain a

“judicially sanctioned change in the legal relationship of

the parties,” and thus under Buckhannon, it cannot be

deemed a prevailing party. Consequently, we affirm the

district court’s denial of Federation’s claim for attorney’s

fees.

III. Conclusion

For the foregoing reasons, the district court’s decision

that this case is moot and that Federation is not entitled

to attorney’s fees is AFFIRMED.
No. 02-1909 15

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-25-03