In Higher Taste Inc. v. City of Tacoma the Ninth Circuit Court of Appeals awarded fees to a non‑profit religious organization arising from a civil rights dispute. The non‑profit sold T‑shirts adorned with a religious/spiritual message along the walkway to a public zoo.

The public entity who owned the zoo subsequently banned the sale of all merchandise along the walkways leading to the zoo’s entrance. The non‑profit sued the public entity. 

The organization alleged civil rights violations and also sought an injunction to maintain the status quo. The district court granted the non‑profit a preliminary injunction. The parties then reached a settlement and the non‑profit moved for attorney fees on the ground that they were the prevailing party in the litigation. The lower court rejected the fee award in its entirety.

The Ninth Circuit reversed the denial of the fee petition. The court noted that for purposes of the applicable civil rights statutes (42 U.S.C. Section 1988(b)), the plaintiff is entitled to attorney fees when actual relief on the merits of his claim “materially alters” the parties’ legal relationship in a way that benefits the plaintiff. 

The Ninth Circuit noted that the preliminary injunction was granted on a finding that the non‑profit was likely to succeed in the litigation. The Ninth Circuit reasoned that because this in turn led to a “settlement” of the controversy, that settlement paved the way for a finding that the non‑profit was a prevailing party under controlling law. The court concluded that the lower court erred in declining to award reasonable fees.