                                                                 [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                            No. 11-12037           NOVEMBER 2, 2011
                                        Non-Argument Calendar          JOHN LEY
                                                                         CLERK
                                      ________________________

                            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,
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 (11th Cir. 2009). Machen was

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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