Beta Upsilon Chi Upsilon Chapt, et al v. J. Machen, et al

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 2, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12037
Non-Argument Calendar
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D.C. Docket No. 1:07-cv-00135-SPM-GRJ
BETA UPSILON CHI UPSILON CHAPTER
AT THE UNIVERSITY OF FLORIDA,
A Student Organization at the
University of Florida on Behalf of
Itself and Its Individual Members,
BETA UPSILON CHI, INC.,
A Texas Nonprofit Corporation,
llllllllllllllllllllllllllllllllllllllll Plaintiffs - Appellants,
BETA UPSILON CHI,
llllllllllllllllllllllllllllllllllllllll Plaintiff,
versus
J. BERNARD MACHEN,
In his Official Capacity as President
of the University of Florida,
PATRICIA TELLES-IRVIN,
In her Official Capacity as Vice President
for Student Affairs,
EDDIE DANIELS, JR.,
In his Official Capacity as Executive Director
of the J. Wayne Reitz Union,
CHRIS CUPOLI,

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In his Official Capacity as the Director
of Student Involvement,
CARLOS ALFONSO, et al.,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(November 2, 2011)
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
This is an appeal of an order denying appellants’ application for an
attorney’s fee pursuant to 42 U.S.C. § 1988 as the “prevailing party” in this civil
rights action. The procedural history of the case (prior to the litigation of
appellants’ fee application in the district court) is set out in Beta Upsilon Chi
Upsilon Chapter v. Machen, 586 F.3d 908 (11 Cir. 2009). Machen wasth
appellants’ appeal of the district court’s order denying appellants’ application for a
preliminary injunction. Although we ultimately dismissed the appeal on the
ground that appellees’ conduct in affording appellants relief they sought rendered
moot the controversy and thus the appeal, we noted that an administrative panel of
this court had granted, in the form of an injunction pending appeal, the relief the
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district court had denied them.
The panel issued the injunction after considering four factors: (1)
whether the movant was likely to prevail on the merits of its appeal;
(2) whether, if the injunction did not issue, the movant would suffer
irreparable harm; (3) whether, if the injunction issued, any other party
would suffer substantial harm; and (4) whether an injunction would
serve the public interest. See In re Grand Jury Proceedings, 975 F.2d
1488, 1492 (11th Cir.1992).
586 F.3d at 914-15, n.9. Appellees contend, here, that we should affirm the
district court on the ground that granting appellant’s fee application was a
discretionary call and that the district court did not abuse its discretion in denying
the application. Whether we review the district court’s ruling for abuse of
discretion or de novo, we would be hard pressed, in the light of this court’s
statement in note 9, to hold that district court got it right. Appellants are
prevailing parties under § 1988 and, thus, are entitled to a reasonable attorney’s
fee. The district court’s order denying the fee is therefore VACATED and the
case is REMANDED with the instruction that the court award appellants’ the
§ 1988 relief they seek.
SO ORDERED.
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