                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 04-4294
BELINDA DUPUY,
PILAR BERMAN,
NORMAN BERMAN, et al.,
                                              Plaintiffs-Appellees,
                                v.

BRYAN SAMUELS, Director,
Illinois Department of Children
and Family Services,
                                             Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
           No. 97 C 4199—Rebecca R. Pallmeyer, Judge.
                         ____________
      ARGUED JUNE 9, 2005—DECIDED SEPTEMBER 9, 2005
                         ____________


 Before BAUER, RIPPLE and MANION, Circuit Judges.
  RIPPLE, Circuit Judge. The plaintiffs brought this action
under 42 U.S.C. § 1983, on behalf of themselves and a class
of similarly situated individuals, against the Director
(“Director”) of Illinois’ Department of Children and Family
Services (“DCFS”) for due process violations. After the
plaintiffs secured a preliminary injunction against the
Director, they sought an interim award of attorneys’ fees.
2                                                 No. 04-4294

The district court granted the plaintiffs attorneys’ fees and
costs. For the reasons set forth in the following opinion, we
now reverse the district court’s award of attorneys’ fees.


                               I
                      BACKGROUND
A. Facts
  A more thorough rendition of the facts underlying this
case is available in our opinion addressing the merits of the
district court’s preliminary injunction. See Dupuy v. Samuels
(“Dupuy III”), 397 F.3d 493 (7th Cir. 2005). For the purposes
of this opinion, the following description shall suffice.
  The plaintiffs are child-care workers and foster parents
who had been indicated, in reports maintained on DCFS’
State Central Register (“Central Register”), as perpetrators
of child abuse or neglect. They brought this suit against the
Director of DCFS on behalf of themselves and other simi-
larly situated individuals. The plaintiffs sought injunctive
relief on the ground that DCFS procedures for investigating
and reporting allegations deprived them of due process of
law. See 42 U.S.C. § 1983.
  The district court granted the plaintiffs’ request for a
preliminary injunction. See Dupuy v. McDonald (“Dupuy I”),
141 F. Supp. 2d 1090 (N.D. Ill. 2001). In Dupuy I, the district
court found that a number of the DCFS policies that the
plaintiffs had challenged were “not constitutionally ade-
quate.” Id. at 1134. However, rather than enter specific relief,
the court afforded the parties sixty days in which to develop
constitutionally adequate procedures.
  The parties later negotiated changes to DCFS policies in
court-mediated sessions. At the same time, DCFS itself also
No. 04-4294                                                   3

drafted new procedures for assessing the credibility and
relevancy of the information obtained during an investiga-
tion of suspected child abuse. Specifically, the new draft
procedures required DCFS employees to consider all
evidence, both inculpatory and exculpatory, in an investiga-
tion into a suspected incident of child abuse.
  After this process was completed, the district court issued
an order directing specific relief and resolving the remain-
ing disputes between the parties. R.443. With respect to the
standard for assessing evidence of suspected child abuse,
the district court found DCFS’ new draft policies to be a
salutary improvement and directed DCFS to continue
weighing all evidence in determining whether a report
should be indicated for child abuse.
  The district court also found that due process required
some form of formal appeals process before an indicated
report was recorded on the Central Register. Therefore, the
court ordered a limited telephonic administrative review
(“the administrative conference”) prior to the entry on the
Central Registry of any indicated finding of child abuse.
  The district court also ordered more rapid post-depriva-
tion hearings for child-care workers; specifically, the court
ordered that child-care workers who timely requested an
appeal would be entitled to a hearing and a final decision
within thirty-five days. The district court specified which
members of the plaintiffs’ class would be entitled to the
administrative conference and the expedited hearings.
  The parties appealed, and this court affirmed in part and
reversed in part the district court’s injunction. See Dupuy III,
397 F.3d at 515.
4                                                  No. 04-4294

B. District Court Fee Proceedings
  In February 2004, the plaintiffs filed a petition for attor-
neys’ fees. See 42 U.S.C. § 1988. Specifically, they asked for
an award of $3,228,673, an amount equal to the fees and
expenses that had been incurred through March 2002.
  In an order issued October 21, 2004 (the “fee order” or
“district court’s fee order”), the district court granted in part
and denied in part the plaintiffs’ petition for fees. The court
also ordered the Director to make an interim payment of
$1,000,000. The court noted that the plaintiffs had “w[o]n a
judicial order granting them relief,” R.584 at 3— relief
which the court described as “substantial,” “effectively
permanent” and largely “unchallenged on appeal,” id. at 5.
Thus, because the plaintiffs were “prevailing part[ies]” as
described by § 1988, the court determined that a fee award
was appropriate in this case. The court also concluded that
neither the Supreme Court’s decision in Buckhannon Board &
Care Home, Inc. v. West Virginia Department of Health &
Human Resources, 532 U.S. 598 (2001), nor this court’s
decisions in Alliance to End Repression v. City of Chicago, 356
F.3d 767 (7th Cir. 2004), and Sonii v. General Electric Co., 359
F.3d 448 (7th Cir. 2004), barred an interim award of attor-
neys’ fees in this case.
  The court did not award attorneys’ fees in the entire
amount which the plaintiffs had requested. The district
court noted that local court rules establish a procedure
for parties to share information with the goals of developing
a “joint statement” concerning the amount of fees sought
and identifying disputes between the parties related to fees.
N.D. Ill. R. 54.3. However, because the Local Rule 54.3
process would require significant efforts both from the court
and from the parties, and because the litigation had not
reached a final conclusion, the court decided that it would
No. 04-4294                                                  5

award a reduced amount of the fees rather than engage in
the Local Rule 54.3 process. Therefore, the court awarded
the plaintiffs attorneys’ fees in the amount of $1,000,000. The
Director appealed to this court.


                              II
                        ANALYSIS
A. Jurisdiction
   We first must resolve the question of our jurisdiction to
hear this appeal. An interim award of attorneys’ fees
generally is interlocutory and not appealable until the
conclusion of the underlying suit on the merits. See Estate of
Drayton v. Nelson, 53 F.3d 165, 166-67 (7th Cir. 1994). There
is, however, one exception to this rule: An interim award of
fees may be appealed if “the party against whom the award
is made will not be able to get his money back if he prevails
at the end of the case and the award is vacated then.” Id. at
167.
  The plaintiffs assert that the exception is inapplicable here
and therefore that this court lacks jurisdiction over this
appeal. From the plaintiffs’ submissions to this court before
oral argument, it was unclear whether they actually claimed
that they would be able to repay the fee award if the
Director ultimately prevailed in the underlying suit and the
award were vacated. See, e.g., Appellees’ Reply Br. at 3
(“There is no non-repayment risk—much less the type of
substantial risk the case law refers to—because there is
no reversal risk. And there is no reversal risk because the
Director’s appeal, on its merits, is frivolous . . . .”). At
oral argument, it became clear that there is indeed a risk
that the plaintiffs and their counsel will lack the financial
wherewithal to repay the award should it be reversed
6                                                 No. 04-4294

sometime in the future. However, the plaintiffs continued to
assert at oral argument that there is no risk of non-repay-
ment because it is unlikely repayment ever will be ordered.
In the plaintiffs’ view, the chances are quite slim that the
Director will prevail on the merits, thus requiring them to
repay the fee award.
  The plaintiffs’ theory does not reflect accurately the
reasoning behind our cases concerning the appealability
of an interim fee award. “Our court has . . . [been] careful to
emphasize that appeal depends on a demonstration that the
money, once disbursed, is effectively beyond recall in the
event of reversal at the end of the case.” Constr. Indus. Ret.
Fund of Rockford v. Kasper Trucking, Inc., 10 F.3d 465, 468 (7th
Cir. 1993); see also Palmer v. City of Chicago, 806 F.2d 1316,
1319 (7th Cir. 1986) (finding jurisdiction over appeal of
interim fee order when members of class to whom fee was
paid “might be insolvent” or “might have disappeared” by
the end of litigation), cert. denied, 481 U.S. 1049 (1987).
  It is clear from our cases that it is the future financial
solvency of the party to whom fees are being awarded
that matters in the determination whether jurisdiction exists.
The parties have not brought to our attention any case
explicitly finding a lack of jurisdiction on the theory that the
party against whom interim fees are awarded has a very
low chance of ultimately prevailing on the merits. Thus,
because the plaintiffs have admitted that there is a risk they
would be unable to repay the fee award in the future if so
required, we find that we have jurisdiction over this appeal.




B. The Plaintiffs’ Eligibility for Fees
    1. Standard of Review
No. 04-4294                                                   7

   When reviewing attorneys’ fees under § 1988, we review
de novo the district court’s “purely legal conclusions.”
Palmetto Props., Inc. v. County of DuPage, 375 F.3d 542, 547
(7th Cir. 2004), cert. denied, 125 S. Ct. 965 (2005). Thus,
because in this case the Director has challenged whether the
district court incorrectly applied the definition of a “pre-
vailing party,” we shall review the district court’s conclu-
sions de novo. See id. We review “factual matters underlying
the fee award, such as the fee amount and a party’s ultimate
litigation goals,” for clear error. Id.


  2. 42 U.S.C. § 1988 and “Prevailing Party” Status
  In the United States, the parties to a lawsuit generally are
required to bear their own costs. Buckhannon, 532 U.S. at
602. However, in 42 U.S.C. § 1988, Congress has vested
courts with “discretion” to award “a reasonable attorney’s
fee” to a “prevailing party” other than the United States “in
any action or proceeding to enforce” a number of civil rights
statutes, including 42 U.S.C. § 1983. 42 U.S.C. § 1988. Thus,
“[a] plaintiff must be a prevailing party to recover
an attorney’s fee under § 1988.” Hensley v. Eckerhart, 461 U.S.
424, 433 (1983).
   The Supreme Court has given us guidance on what it
means to prevail for the purposes of § 1988. To be consid-
ered a prevailing party, one must have “prevailed on the
merits of at least some of his claims.” Hanrahan v. Hampton,
446 U.S. 754, 758 (1980). Thus, the Court has held that a
litigant is a prevailing party when he has obtained a
judgment on the merits, a settlement agreement enforced
through a consent decree or some other “judicially sanc-
tioned change in the legal relationship of the parties.”
Buckhannon, 532 U.S. at 605; see also Palmetto Props., Inc., 375
8                                                 No. 04-4294

F.3d at 548. “[A]t a minimum, to be considered a prevailing
party within the meaning of § 1988, the plaintiff must be
able to point to the resolution of a dispute which changes
the legal relationship between itself and the defendant.”
Texas State Teachers Ass’n v. Garland Indep. Sch. Dist. (“Gar-
land”), 489 U.S. 782, 792 (1989).
   Of particular import to this case is the question of at
what point before the entry of final judgment the “judicially
sanctioned change” in the parties’ relationship can be said
to have taken place, thus making an award of attorneys’ fees
appropriate. Certainly, as we have explained, “[a] district
court has the power to award fees before the entry of a final
judgment.” Palmer, 806 F.2d at 1320. According to the
Supreme Court, “[i]t is evident . . . that Congress contem-
plated the award of fees pendente lite in some cases.”
Hanrahan, 446 U.S. at 757. However, the Court has empha-
sized that “Congress intended to permit the interim award
of counsel fees only when a party has prevailed on the
merits of at least some of his claims.” Id. at 758. In other
words, “[a] prevailing party must be one who has suc-
ceeded on any significant claim affording it some of the
relief sought, either pendente lite or at the conclusion of the
litigation.” Garland, 489 U.S. at 791 (emphasis added). We
have interpreted the Supreme Court’s decisions on interim
fee awards to mean that, “[o]nce a plaintiff obtains substan-
tive relief that is not defeasible by further proceedings, he
can seek interim fees and the district court has the power to
award them.” Richardson v. Penfold, 900 F.2d 116, 119 (7th
Cir. 1990).


    3. This Court’s Precedents
  Several of our cases provide examples of the circum-
stances in which an interim award of attorneys’ fees is
No. 04-4294                                                   9

appropriate or in which an attorneys’ fee award should be
upheld despite a lack of a final judgment in a case.


                              a.
   In Young v. City of Chicago, 202 F.3d 1000 (7th Cir. 2000),
we upheld an award of attorneys’ fees that had been
made based only on a preliminary injunction. The plain-
tiffs in Young had obtained a preliminary injunction
against the City of Chicago. The plaintiffs alleged that the
City had violated their First Amendment rights by establish-
ing a security perimeter excluding protesters from the areas
around the site of the 1996 Democratic National Conven-
tion. The City’s appeal, taken after the conclusion of the
convention, was dismissed as moot (the injunction applied
only to that specific convention), and the merits of the case
never were decided. After this court had dismissed the
City’s appeal, the plaintiffs moved for, and were awarded,
attorneys’ fees pursuant to § 1988. We upheld the award
despite the fact that a final judgment on the merits had not
been entered. We reasoned that “[a] defendant cannot defeat
a plaintiff’s right to attorneys’ fees by taking steps to moot
the case after the plaintiff has obtained the relief he sought,
for in such a case mootness does not alter a plaintiff’s status
as a prevailing party.” Id. at 1000-01. In Young, the litigation
manifestly had come to an end despite the lack of a final
judgment on the merits. Furthermore, our decision in Young
clearly was connected closely to our impression that the
City deliberately had “waited until the convention was
over” in order to moot the case “before a definitive determi-
nation of its merits.” Id. at 1000.
                              b.
  In Palmetto Properties, 375 F.3d 542, we upheld an award
of attorneys’ fees that had been made in a case in which
no final judgment had been entered. The plaintiffs sued
10                                                No. 04-4294

DuPage County, Illinois, on the basis of a local ordinance
that the plaintiffs claimed violated the First Amendment
by restricting possible locations for their planned adult-
entertainment nightclub. The district court granted partial
summary judgment for the plaintiffs, declaring a part of the
challenged ordinance unconstitutional. After summary
judgment, the County offered to repeal the unconstitutional
portions of its ordinance, and the district court continued
the case to allow the repeal to take place, ultimately dismiss-
ing the case as moot.
  Following dismissal, the plaintiffs sought attorneys’ fees
pursuant to § 1988. We upheld the district court’s award of
attorneys’ fees despite the fact that an entry of final judg-
ment had not been made. We explained:
     It would defy reason and contradict the definition of
     “prevailing party” under Buckhannon and our subse-
     quent precedent to hold that simply because the district
     court abstained from entering a final order formally
     closing the case—a result of the Defendant’s assertions
     that it would repeal the challenged portion of the
     ordinance—Palmetto somehow did not obtain a “judi-
     cially sanctioned change” in the parties’ legal relation-
     ship. . . . In this case, not only did the district court
     make a substantive determination as to essentially all
     the constitutional claims save one, . . . the County
     repealed the ordinance only after that determination had
     been made and presumably because of it. . . . [T]heir
     action is most persuasively construed as involun-
     tary—indeed exhibiting judicial imprimatur.
Id. at 549-50 (emphasis in original). Thus, in Palmetto
Properties, attorneys’ fees were appropriate because the
court had reached a judgment on the merits as to some of
the plaintiffs’ claims, even though the procedural step of
entering final judgment had not been used.
No. 04-4294                                                   11

                               c.
   In Balark v. City of Chicago, 81 F.3d 658 (7th Cir. 1996), we
affirmed an award of attorneys’ fees to parties who had
done the work of obtaining and maintaining a consent
decree, even after the decree ultimately was vacated. In the
litigation that led to Balark, the district court had granted the
plaintiffs partial summary judgment on their claims and
had enjoined the City from continuing its practice of paying
tort judgments of $1000 or less immediately while delaying
payment of larger tort judgments for several years. This
court substantially affirmed the district court’s grant of
summary judgment in Evans v. City of Chicago (“Evans I”),
689 F.2d 1286 (7th Cir. 1982), overruled by Evans v. City of
Chicago (“Evans II”), 873 F.2d 1007 (7th Cir. 1989). Following
our Evans I decision, the City and the plaintiffs negotiated
a consent decree requiring the City to pay all judgments
promptly and in the order in which they were entered. As
events unfolded, a series of appeals caused this court to
question, reconsider and eventually overrule Evans I.
Ultimately, we determined that the consent decree could not
stand. See Evans v. City of Chicago (“Evans III”), 10 F.3d 474
(7th Cir. 1993). Following Evans III, the district court denied
the plaintiffs’ motion for attorneys’ fees pursuant to § 1988.
  We overruled Evans I on the ground that the plaintiffs had
been prevailing parties within the meaning of the fee-
shifting statute. Even though the protracted litigation had
ended unfavorably to the plaintiffs, the City had signed
the consent decree (which remained in place for a decade)
and “the decree became the equivalent of a judicial decree
once the district court entered it.” Balark, 81 F.3d at 665.
Thus, the suit had been subject to a “conclusion of [a]
portion of the litigation through the entry of a consent
decree.” Id. At the time we decided the plaintiffs’ eligibility
for fees in Balark, the Supreme Court had established that a
12                                                     No. 04-4294

party could attain prevailing party status through a consent
decree and settlement. See Maher v. Gagne, 448 U.S. 122, 129
        1
(1980).
  The court declined to take an “ex post view of all consent
decrees” and stated that it would not “deny attorney’s fees
whenever subsequent events cause a court to set [a] decree
aside.” Balark, 81 F.3d at 665. Indeed, we emphasized that
“[t]he only possible perspective from which the entitle-
ment to fees can be considered is at the time the final
judgment determining who prevails is entered.” Id. Thus, in
Balark, the plaintiffs were entitled to an award of fees
because they had obtained a consent decree that was the
equivalent, for § 1988 purposes, of a judgment on the merits.
  With the foregoing principles in mind, we now shall
consider whether the plaintiffs in this case appropriately
may be termed prevailing parties eligible for an award of
attorneys’ fees.


    4. Application to this Case
  The Director contends that the preliminary injunction was
not a final determination on the merits of any claims. He
also submits that, because it is not clear what the district
court’s ultimate decision will be, it will be impossible to
determine prevailing party status until the district court has
entered final relief. The plaintiffs, on the other hand, assert
that Dupuy I constituted a determination on the merits of at
least some of their claims. See Appellees’ Br. at 26 (“[T]he


1
  This court also noted in Balark that “fee awards for interim
rulings in litigation” are valid “as long as those rulings reflect the
party’s success in establishing its entitlement to some relief on the
merits.” 81 F.3d 658, 664 (7th Cir. 1996).
No. 04-4294                                                         13

district court made unqualified merits rulings, not prelimi-
nary relief resting on the provisional assessment of ‘reason-
able likelihood of success on the merits.’ ”) (emphasis in
original). For instance, they contend that, by noting its
“find[ing] that certain . . . current DCFS policies and
procedures do in fact deprive class members of con-
stitutionally-protected rights,” Dupuy I, 141 F. Supp. 2d at
1092, the district court made a determination of the merits of
their due process claim. The defendants respond that there
has been no determination on the merits because the district
court never consolidated the hearing on the preliminary
injunction with the trial on the merits. See Fed. R. Civ. P.
          2
65(a)(2).
  Although certain language in the district court’s fee order
can be read to suggest that the court had adopted a particu-
lar view of the merits of the case, when the writings of the
district court are read in their totality, we cannot say that


2
   It is true that Federal Rule of Civil Procedure 65(a)(2) permits
a court to order, “[b]efore or after the commencement of the
hearing of an application for a preliminary injunction,” the
consolidation of “the trial of the action on the merits . . . with the
hearing of the application.” The decision to consolidate the
hearing on the preliminary injunction with the trial on the merits
is within a district court’s discretion. American Train Dispatchers
Dep’t of the Int’l Bhd. of Locomotive Eng’rs v. Fort Smith R.R. Co., 121
F.3d 267, 270 (7th Cir. 1997). However, the district court is
required to provide the parties with “clear and unambiguous
notice” of its intent to consolidate the hearing and the trial either
before the hearing starts or at a time that will still allow the
parties an opportunity fully to present their cases. Id. (internal
quotation omitted). The Director contends that the district court
in this case never provided such notice and the plaintiffs do not
contest that submission. Thus, we do not think that a Rule
65(a)(2) consolidation occurred.
14                                               No. 04-4294

they make it sufficiently clear that the court had resolved
any aspect of the case in a sufficiently “concrete and
irreversible” way as to warrant an interim attorneys’ fee
award. In the fee award, the district court indicated that
“[p]laintiffs have . . . made substantial efforts to reach the
merits of the disputes between the parties, [and] have
presented testimony and evidence over several days at
two lengthy hearings that functioned as bench trials.”
R.584 at 5. The court also expressed its belief that there
would be no “lengthy further proceedings before entry of a
                  3
final judgment.” Id. Notably, however, the court stopped
significantly short of deciding definitively any aspect of
the case. Although the district court expressed the ex-
pectation that the remaining proceedings would not be
lengthy, it also made it clear that there was still work to
be done.
  An examination of the district court’s earlier writings,
when it granted the preliminary injunction, makes even
more clear that definitive resolution of the chief aspects
of the case had not been attained. The court worked exten-
sively with the parties in a commendable and painstaking
process to craft the terms of the preliminary injunction. At
the same time, it never went so far as to decide on the terms
of the definitive remedy. For instance, referring to the pre-
deprivation administrative conference, the court expressed
a willingness “to revisit the matter if history proves the
conferences ineffective at addressing the error rate which
troubled the court.” R.443 at 12. In dealing with the matter


3
  Even when consolidation under Rule 65(a)(2) is not ordered,
“any evidence received upon an application for a preliminary
injunction which would be admissible upon the trial on the
merits becomes part of the record on the trial and need not
be repeated upon the trial.”
No. 04-4294                                               15

of delay, the court indicated that it was “unwilling at this
time to impose Plaintiffs’ proposed remedy of
expungement.” Id. at 16. Most importantly, referring to the
plaintiffs’ additional requests for relief, the court denied
without prejudice the proposals “[a]bsent agreement
between the parties or a fully developed record.” Id. at 18.
   In our own review of the preliminary injunction proceed-
ings, we took note of the still unstable state of the record
and of the relief when we noted that the suit was at a
“preliminary stage of the litigation.” Dupuy III, 397 F.3d at
506. Indeed, our own review of the preliminary injunction
left work for the district court. See id. at 512 (extending
preliminary injunction to provide pre-deprivation process
to “career entrants,” directing district court to modify
injunction accordingly and instructing district court to
define more precisely the class of persons who qualify as
“career entrants”). Our decision certainly clarified the
governing principles of law and gave the district court
guidance on the legal framework in which further proceed-
ings ought to take place. In that respect, our opinion,
combined with the work of the district court that we
approve, perhaps can be said to have settled a “central
issue” of law. See Garland, 489 U.S. at 790. We did not,
however, deal with this case in terms that made the plain-
tiffs a “prevailing party” as that term is employed in attor-
neys’ fee awards litigation.
  We must conclude, therefore, that the district court’s
award of attorneys’ fees, even on an interim basis, was
premature. We pause to point out, however, that our
decision today does not establish a hard and fast rule that a
preliminary injunction can never be an adequate predicate
for such an interim award. Indeed, in Young, we upheld an
award granted to a party that had obtained only a prelimi-
nary injunction. That case, however, was significantly
16                                                   No. 04-4294

different from this case. In Young, the plaintiffs had ob-
tained a preliminary injunction, and the case was mooted
before they sought attorneys’ fees. The relief the plaintiffs
had obtained through the preliminary injunction therefore
was not defeasible for the same reason that the case was
moot: The sole event covered by the injunction, the 1996
Democratic National Convention, had ended. In the present
case, by contrast, at the time the district court issued the fee
order, it explicitly contemplated further proceedings on the
merits of the plaintiffs’ claims.
  We have recognized that there is a difference, for the
purpose of awarding attorneys’ fees under § 1988, between
cases in which a preliminary injunction is vacated as moot
and other cases involving a preliminary injunction. In fact,
in Palmer, we rejected the idea that any “plaintiff who has
won a preliminary injunction has won something even if the
injunction is reversed” and noted that “constrain[ing] the
defendants’ conduct until [the injunction] is reversed” is not
sufficient to confer prevailing status on a party. Palmer, 806
                 4
F.2d at 1321-22.


4
   Our circuit’s law on the mootness issue is hardly an outlier
among the federal circuit courts. We note that, in cases with
circumstances similar to those in Young, several of our sister
circuits have held that attorneys’ fees may be awarded after a
party has obtained a preliminary injunction and the case subse-
quently has become moot. See, e.g., Select Milk Producers, Inc. v.
Johanns, 400 F.3d 939 (D.C. Cir. 2005); Watson v. County
of Riverside, 300 F.3d 1092 (9th Cir. 2002); Taylor v. City of Fort
Lauderdale, 810 F.2d 1551, 1558 (11th Cir. 1987).
  In Select Milk Producers, the District of Columbia Circuit upheld
the district court’s award of attorneys’ fees that had been made
after the parties stipulated to the dismissal of the case as moot.
                                                      (continued...)
No. 04-4294                                                     17



4
  (...continued)
Although the fee award had been made under the attorneys’ fees
provision of the Equal Access to Justice Act, 28 U.S.C. §
2412(d)(1)(A), the court applied the reasoning set out by the
Supreme Court in Buckhannon. The court affirmed the award
because the injunction had brought about a court-ordered change
in the parties’ relationship that was “concrete and irreversible.”
Id. at 946.
   In Watson, the Ninth Circuit stated that “a preliminary injunc-
tion issued by a judge carries all the ‘judicial imprimatur’
necessary to satisfy Buckhannon.” 300 F.3d at 1096. However, it
must be noted that Watson involved a different procedural
context than the one in the present case. In Watson, the plaintiff
had obtained a preliminary injunction in a suit against the
County of Riverside, California. The County was granted
summary judgment on all its other claims except one for a
permanent injunction. Before the propriety of a permanent
injunction was decided, the case became moot. Subsequent to the
case becoming moot, the plaintiff applied for and was awarded
attorneys’ fees. The Ninth Circuit noted the importance to its
decision of the fact that, although “Watson’s claim for permanent
injunctive relief was not decided on the merits,” the “preliminary
injunction was not dissolved for lack of entitlement. Rather,
Watson’s claim for permanent injunction was rendered moot
when his employment termination hearing was over, after the
preliminary injunction had done its job.” Id.
  As well, the Eleventh Circuit in Taylor, 810 F.2d at 1558, stated
that, when a preliminary injunction is granted “on the merits” of
a case—as distinguished from “a merely temporary order which
decides no substantive issues but merely maintains the status
quo”—an interim award of attorneys’ fees is appropriate.
However, we do not think this statement conflicts with our
holding here, because—as was the case in Young—the plaintiffs
in Taylor moved for attorneys’ fees after “both parties agreed that
                                                     (continued...)
18                                                      No. 04-4294


  Furthermore, Balark and Palmetto Properties also are
distinguishable from the present case because the plaintiffs
in those two cases had secured exactly the kind of relief
which the Supreme Court has indicated leads to prevailing
party status. The plaintiffs in Palmetto Properties had re-
ceived partial summary judgment and the plaintiffs in
Balark were parties to a consent decree; the Supreme Court
in Buckhannon explicitly recognized that these two forms


4
  (...continued)
plaintiffs’ suit [was] moot.” Id. at 1555; see also Monahan v. State of
Nebraska, 687 F.2d 1164, 1171-72 (8th Cir. 1982).
   The Fourth Circuit has held that a preliminary injunction is
insufficient to constitute “an enforceable judgment on the merits
or something akin to one for prevailing party purposes.” Smyth
v. Rivero, 282 F.3d 268, 277 (4th Cir.) (internal quotation omitted),
cert. denied, 537 U.S. 825 (2002). In so deciding, the court placed
great importance on the fact that, although a preliminary
injunction hearing often includes “an inquiry into the merits
of a party’s claim,” “the merits inquiry in the preliminary
injunction context is necessarily abbreviated.” Id. at 276. More-
over, the court reasoned that, because the grant of a preliminary
injunction is dependent on several factors including the likeli-
hood of success on the merits and “a balancing of likely harms,”
it indicates merely “a prediction of a probable, but necessarily
uncertain, outcome.” Id. See also Smith v. Univ. of North Carolina,
632 F.3d 316, 346 (4th Cir. 1980) (holding that plaintiff who had
obtained a preliminary injunction was not entitled to an award of
attorneys’ fees based on that injunction when “on none of her
claims [had she] ultimately obtained what she sought”). To the
extent that the Fourth Circuit has adopted a per se rule that a
preliminary injunction can never serve as a predicate for a an
interim fee award, we are in respectful disagreement. Instead we
follow the approach of the other circuits outlined earlier.
No. 04-4294                                                      19

of resolution change the “legal relationship” between the
parties and also carry the “judicial imprimatur” necessary to
                               5
confer prevailing party status. Buckhannon, 532 U.S. at 604-
05. In Balark and Palmetto Properties, the grant of summary
judgment and the entry of a consent decree represented the
“resolution of a dispute which change[d] the legal relation-
ship between [the plaintiff] and the defendant.” Garland, 489
U.S. at 792 (emphasis added). No such resolution was
reached in the present case.
  In short, the plaintiffs have not brought to our attention
any case in which we have affirmed an award of attorneys’
fees that was made at a procedural point similar to the point
at which the award was made in this case: when a prelimi-
nary injunction has been entered and affirmed on appeal
but still further proceedings on the merits clearly are
               6
contemplated. Therefore, we must conclude that our case


5
   We recently have interpreted Buckhannon as the Supreme
Court’s rejection of the notion that, “if a lawyer’s effort produces
a good result albeit not an actual judgment or other judicial relief,
it should be compensible.” Alliance to End Repression v. City of
Chicago, 356 F.3d 767, 771 (7th Cir. 2004).
6
  The plaintiffs point to two cases from other circuits, Chu Drua
Cha v. Levine, 701 F.2d 750 (8th Cir. 1983), and Deerfield Medical
Center v. City of Deerfield Beach, 661 F.2d 328, 339 (5th Cir. 1981),
in which they claim plaintiffs received fee awards based only
on the acquisition of preliminary injunctive relief with no further
developments in the case. However, in Chu Drua Cha, the only
statement the court made regarding the propriety of regarding
the appellant as prevailing party was the following: “We hold
that appellant is a prevailing party for purposes of preliminary
injunctive relief. Although this relief may later be modified or
vacated, it represents a substantial measure of success, and the
                                                      (continued...)
20                                                     No. 04-4294

law does not permit the award of fees that was made by the
district court.
  We also think that it is worth pointing out that the district
court’s fee order suggests that, at the time that it entered the
fee order, the court misapprehended, perhaps due to the
parties’ own representations, the nature and extent of the
parties’ challenges to the preliminary injunction. The court
noted that, although it had “not reviewed the briefs on
appeal,” it understood that the Director’s cross-appeal did
“not challenge the preliminary injunction in all respects, but
argue[d] that some of the schedules imposed by the injunc-
tion are unworkable.” R.584 at 4. In fact, the Director’s
challenge to the preliminary injunction concerned more
central aspects of the injunction than the timetables for


6
   (...continued)
award of attorneys’ fees for this phase of the case is appropriate.”
Chu Drua Cha, 701 F.2d at 751. The Eighth Circuit did not refer to
§ 1988 or cite the standards that the Supreme Court had estab-
lished for determining prevailing party status.
   Similarly, in Deerfield Medical Center, the Fifth Circuit made
an interim award of attorneys’ fees to plaintiffs after they
secured, on appeal, an injunction that permitted the plaintiffs to
begin operating an abortion clinic. The Fifth Circuit reasoned that
the plaintiffs were prevailing parties because “they ha[d] at least
partially achieved the result sought in filing this action.” Deerfield
Med. Ctr., 661 F.2d at 339. Although the court cited the Supreme
Court’s Hanrahan decision to support its reasoning, it did not
explain how awarding attorneys’ fees was consistent with the
Court’s instruction that “Congress intended to permit the interim
award of counsel fees only when a party has prevailed on the merits
of at least some of his claims.” Hanrahan, 446 U.S. at 758 (empha-
sis added). The lack of transparent reasoning in these two cases
convince us that neither Chu Drua Cha nor Deerfield Medical Center
is useful to the plaintiffs.
No. 04-4294                                                    21

hearings. See Dupuy III, 397 F.3d at 501 (noting the Director’s
contentions on appeal).
  We are mindful of the extreme outlay of expenses that this
case has required of the plaintiffs. Cf. Bradley v. Sch. Bd. of
City of Richmond, 416 U.S. 696, 723 (1974) (recognizing that,
in some circumstances, “[t]o delay a fee award until the
entire litigation is concluded” may be to “work substantial
hardship on plaintiffs and their counsel”). Nonetheless, the
case law of the Supreme Court and of this court simply does
not permit an interim award of attorneys’ fees to be made at
the point in the litigation at which this award was made.
  We trust that the parties will cooperate fully with the
                                                        7
district court to bring this litigation to a prompt end.
                          Conclusion
  For the foregoing reasons, we must reverse the award of
attorneys’ fees assessed against the Director.
                                                      REVERSED
A true Copy:
        Teste:
                           _____________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit


7
   In the briefs presented to this court both parties set forth in
some detail the issues they believe that the district court must
address and the sort of evidentiary submissions that the court
ought to consider. We have refrained from addressing any of
those matters because we deem such discussion unnecessary to
our decision today. We in no way wish to cabin the discretion of
the district court to evaluate whatever specific submissions the
litigants bring before it.


                      USCA-02-C-0072—9-9-05
