SOLE, SECRETARY, FLORIDA DEPARTMENT OF EN- VIRONMENTAL PROTECTION, et al. v. WYNER et al.

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Syllabus
SOLE, SECRETARY, FLORIDA DEPARTMENT OF EN-
VIRONMENTAL 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 assem
bled 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 po
lice interference, Wyner and a coplaintiff (collectively Wyner or plain
tiff) 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 interfer
ence 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 proceed
ing, the District Court granted Wyner a preliminary injunction on Feb
ruary 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, partici
pants went 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 involv
ing nudity. After discovery, both sides moved for summary judgment.
At a January 21, 2004 hearing, Wyner’s counsel acknowledged that the
participants had set up the peace symbol display 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

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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 pre
liminary 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 pre
liminary 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 prelimi
nary injunction that is reversed, dissolved, or otherwise undone by the
final decision in the same case. Pp. 82–86.
(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 hear
ing was necessarily hasty and abbreviated. There was no time for dis
covery, nor for adequate review of documents or preparation and pres
entation 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, 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, ulti
mately rejected. Wyner contends that the preliminary injunction was

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76 SOLE v. WYNER
Syllabus
not undermined by the subsequent merits adjudication because the deci
sion 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 id., at 792. Pp. 82–86.
(b) Wyner is not a prevailing party, for her initial victory was ephem
eral. 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 pre
liminary injunction does not qualify for an award of counsel fees under
§ 1988(b) if the merits of the case are ultimately decided against her.
P. 86.
179 Fed. Appx. 566, reversed and remanded.
Ginsburg, J., delivered the opinion for a unanimous Court.
Virginia A. Seitz argued the cause for petitioners. With
her on the briefs were Carri S. Leininger and James O.
Williams, Jr.
Patricia A. Millett argued the cause for the United States
as amicus curiae urging reversal. With her on the brief
were Solicitor General Clement, Deputy Solicitor General
Garre, Michael Jay Singer, and Michael E. Robinson.
Seth M. Galanter argued the cause for respondents. With
him on the brief were Beth S. Brinkmann, Randall C. Mar
shall, James K. Green, and Steven R. Shapiro.*
*Briefs of amici curiae urging reversal were filed for the Common
wealth of Virginia et al. by Robert F. McDonnell, Attorney General of
Virginia, William C. Mims, Chief Deputy Attorney General, William E.
Thro, State Solicitor General, Stephen R. McCullough, Deputy State Solic
itor General, and Dan Schweitzer, by Roberto J. Sa´ nchez-Ramos, Secre
tary of Justice of Puerto Rico, and by the Attorneys General for their
respective States as follows: Troy King of Alabama, Talis J. Colberg of

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Opinion of the Court
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, Con
gress 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 excep
tion, codified in 42 U. S. C. § 1988(b), authorizes federal dis
trict 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 adjudica
tion on the merits, qualify as a “prevailing party” within the
compass of § 1988(b)?
Viewing the two stages of the litigation as discrete epi
sodes, plaintiffs below, respondents here, maintain that they
prevailed at the preliminary injunction stage, and therefore
Alaska, Terry Goddard of Arizona, Dustin McDaniel of Arkansas, John
W. Suthers of Colorado, Thurbert E. Baker of Georgia, Mark J. Bennett of
Hawaii, Lisa Madigan of Illinois, Steve Carter of Indiana, Mike Cox of
Michigan, Jeremiah W. (Jay) Nixon of Missouri, George J. Chanos of Ne
vada, Kelly A. Ayotte of New Hampshire, Wayne Stenehjem of North Da
kota, Thomas W. Corbett, Jr., of Pennsylvania, Henry McMaster of South
Carolina, Larry Long of South Dakota, Robert E. Cooper, Jr., of Tennes
see, Mark L. Shurtleff of Utah, Robert M. McKenna of Washington, Dar
rell V. McGraw, Jr., of West Virginia, J. B. Van Hollen of Wisconsin, and
Patrick J. Crank of Wyoming; and for the National League of Cities et al.
by Richard Ruda and Lawrence Rosenthal.
Briefs of amici curiae urging affirmance were filed for Americans
United for Separation of Church and State et al. by Andrew J. Pincus,
Charles A. Rothfeld, Dana Berliner, John W. Whitehead, Giovanna Shay,
Ayesha N. Khan, Richard B. Katskee, Alex J. Luchenitser, Ronald A.
Lindsay, Brian Wolfman, Steven Schwartz, and Judith E. Schaeffer; for
the Brennan Center for Justice by Laura W. Brill and Wendy R. Weiser;
for the Center for Individual Rights by Michael E. Rosman; and for the
Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity et al.
by Catherine R. Albiston.

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qualify for a fee award for their counsels’ efforts to obtain
that interim relief. Defendants below, petitioners here, re
gard the case as a unit; they urge that a preliminary injunc
tion 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 no
tified the Florida Department of Environmental Protection
(DEP) of her intention to create on Valentine’s Day, Febru
ary 14, 2003, within John D. MacArthur Beach State Park,
an antiwar artwork. The work would consist of nude indi
viduals assembled into a peace sign. By letter dated Febru
ary 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 Fla. Admin. Code Ann. § 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 ex
pressive activities of the same order, against police interfer
ence, 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 con
duct, and named as defendants the Secretary of DEP and
1 The 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).

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the Manager of MacArthur Beach Park.2 Her complaint re
quested immediate injunctive relief against interference
with the peace sign display, App. 18, and permanent injunc
tive relief against interference with “future expressive activ
ities that may include non-erotic displays of nude human bod
ies,” 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 pro
vided 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 re
strictions,” the court determined that “[p]laintiff[’s] desired
expression and the interests of the state may both be satis
fied simultaneously.” Ibid. In this regard, the court had
inquired of DEP’s counsel at the preliminary injunction hear
ing: “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] 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 . . . .”
2 Wyner was joined by coplaintiff George Simon, who served as a vid
eographer for expressive activities Wyner previously organized at MacAr
thur Beach. See App. 13. For convenience, we refer to the coplaintiffs
collectively as Wyner or plaintiff.

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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 depart
ment, if it chooses, from using . . . some sort of barrier . . . .”).
But the display was set up outside the barrier, and partici
pants, once disassembled from the peace symbol formation,
went into the water in the nude. See id., at 108; Deposition
of T. A. Wyner in Case No. 03–80103–CIV (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 Mac-
Arthur 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 ac
knowledged 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] settle
ment,” id., at 143, the court denied plaintiff ’s motion for sum
mary judgment and granted defendants’ motion for summary
final judgment. The deliberate failure of Wyner and her co
participants to remain behind the screen at the 2003 Valen
tine’s Day display, the court concluded, demonstrated that
the Bathing Suit Rule’s prohibition of nudity was “no greater

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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 injunc
tion 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 Ap
peals 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
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 suc
cess on the merits at the permanent injunction stage,” id.,
at 569, n. 7. Plaintiff and others participating in the display,

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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 fu
ture nude expressive works,” ibid. The likelihood of success
shown at the preliminary injunction stage, the court ex
plained, id., at 569, n. 7, had been overtaken by the subse
quent “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. 1162 (2007), and now reverse.
II
“The touchstone of the prevailing party inquiry,” this
Court has stated, is “the material alteration of the legal rela
tionship 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) (plain
tiff 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 without a correspond
ing alteration in the legal relationship of the parties”).3 The
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

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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 Dis
trict 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 constitu
tionally protected expressive activities.” App. 18. Prevail
ing party status, we hold, does not attend achievement of a
preliminary injunction that is reversed, dissolved, or other
wise undone by the final decision in the same case.4
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 out
come 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.
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.

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At the preliminary injunction stage, the court is called
upon to assess the probability of the plaintiff ’s ultimate suc
cess 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 neces
sarily hasty and abbreviated. Held one day after the com
plaint was filed and one day before the event, the timing
afforded the state officer defendants little opportunity to op
pose Wyner’s emergency motion. Counsel for the state de
fendants appeared only by telephone. App. 36. The emer
gency proceeding allowed no time for discovery, nor for
adequate review of documents or preparation and presenta
tion 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 Dis
trict Court and the Court of Appeals considered the prelimi
nary injunction a moot issue, not fit for reexamination or
review, once the display took place. See Summary Judg
ment 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 Corp., 494 U. S. 472, 477–479
(1990). In short, the provisional relief granted terminated
only the parties’ opening engagement. Its tentative charac
ter, 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 rul
ing on the merits for defendants, after both sides considered
the case fit for final adjudication, superseded the preliminary

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ruling. Wyner’s temporary success rested on a premise the
District Court ultimately rejected. That court granted pre
liminary 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 79–80; 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 recog
nized 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 visi
tors. See Summary Judgment Order, App. to Pet. for Cert.
42a. See also App. 108 (acknowledgment by Wyner’s coun
sel 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
that the officials engaged in impermissible content-based ad
ministration 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 injunc
tion order,” the District Court “assumed content neutral
ity”). That specification is controlling. See Fed. Rule Civ.
Proc. 65(d) (requiring every injunction to “set forth the rea
sons for its issuance” and “be specific in terms”). See also

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Schmidt v. Lessard, 414 U. S. 473, 476 (1974) (per curiam)
(Rule 65(d) “was designed to prevent uncertainty and confu
sion 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 prelimi
nary injunction, then loses on the merits as the case plays
out and judgment is entered against [her],” has “[won] a bat
tle 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 some
times 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 further
proceedings consistent with this opinion.
It is so ordered.