                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-2181



GIOVANNI CARANDOLA, LTD, d/b/a Christie’s
Cabaret, a North Carolina corporation; Y.K.
ENTERPRISES, INCORPORATED, d/b/a Southside
Johnnie’s, a North Carolina corporation;
REESAW, INCORPORATED, d/b/a Chester’s Premier
Gentlemen’s    Club,    a   North     Carolina
corporation; E.K.’S II, INCORPORATED, d/b/a
Harper’s II, a North Carolina corporation;
CARL EDWARD COLLINS, d/b/a Harper’s II Exotic
Car Wash; TREASURE BOX, INCORPORATED,

                                               Plaintiffs - Appellees,

          and


SIMPLY EXPLICIT,    L.L.C.,   a   North   Carolina
Corporation,

                                                            Plaintiff,

          versus


CITY OF GREENSBORO, a North Carolina Municipal
Corporation,

                                                Defendant - Appellant.



                              No. 07-1249



GIOVANNI CARANDOLA, LTD, d/b/a Christie’s
Cabaret, a North Carolina corporation; Y.K.
ENTERPRISES, INCORPORATED, d/b/a Southside
Johnnie’s, a North Carolina corporation;
REESAW, INCORPORATED, d/b/a Chester’s Premier
Gentlemen’s    Club,    a   North     Carolina
corporation; E.K.’S II, INCORPORATED, d/b/a
Harper’s II, a North Carolina corporation;
CARL EDWARD COLLINS, d/b/a Harper’s II Exotic
Car Wash; TREASURE BOX, INCORPORATED,

                                               Plaintiffs - Appellants,

          and


SIMPLY EXPLICIT,   L.L.C.,     a   North   Carolina
Corporation,

                                                              Plaintiff,

          versus


CITY OF GREENSBORO, a North Carolina Municipal
Corporation,

                                                  Defendant - Appellee.



Appeals from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:05-cv-01166-WLO)


Argued:   September 26, 2007                Decided:   December 10, 2007


Before NIEMEYER and TRAXLER, Circuit Judges, and Samuel G. WILSON,
United States District Judge for the Western District of Virginia,
sitting by designation.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


ARGUED: William Pinkney Herbert Cary, BROOKS, PIERCE, MCLENDON,
HUMPHREY   &    LEONARD,  Greensboro,   North   Carolina,   for
Appellant/Cross-Appellee.  J. Michael Murray, BERKMAN, GORDON,


                                    2
MURRAY & DEVAN, Cleveland, Ohio, for Appellees/Cross-Appellants.
ON BRIEF: M. Blair Carr, Associate General Counsel, OFFICE OF THE
CITY ATTORNEY, Greensboro, North Carolina, for Appellant/Cross-
Appellee.   Raymond Vasvari, BERKMAN, GORDON, MURRAY & DEVAN,
Cleveland, Ohio, for Appellees/Cross-Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                3
PER CURIAM:

      Faced with the threat of having to relocate or shut down under

an amendment to a City of Greensboro, North Carolina ordinance

concerning the location of sexually oriented businesses, plaintiff

adult businesses filed suit against Greensboro pursuant to 42

U.S.C. § 1983, claiming that the amended ordinance violated their

First and Fourteenth Amendment rights.             Alternatively, plaintiffs

raised a pure state law claim that the amendment did not apply to

established adult businesses, and they filed a motion for summary
judgment on that single ground. The district court agreed with the

plaintiffs’ interpretation of the amendment and granted plaintiffs’

motion for summary judgment.        However, the court concluded that

plaintiffs were not prevailing parties under 42 U.S.C. § 1988 and

denied their motion for attorney’s fees.              Greensboro appeals the

district court’s construction of the amendment, and plaintiffs

appeal the district court’s determination that they were not

prevailing parties entitled to attorney’s fees.                   Following the

district court’s ruling, Greensboro amended the ordinance such that

the language at the center of the dispute is no longer in effect,

and Greensboro replaced that language with new language intended to

make it plain that the plaintiffs will have to relocate or shut

down.   Plaintiffs have challenged the newly amended ordinance in

the district court, and that challenge is not currently before us.

Consequently, because the language at issue is no longer in effect,

we   conclude   that   the   question       of   whether   the   district   court
properly interpreted it is moot, and a ruling by this court would

                                        4
be purely advisory. Accordingly, we dismiss that appeal. However,

we    affirm    the        district    court’s    decision    denying       plaintiffs

attorney’s fees.



                                            I

        Greensboro has had an ordinance regulating adult businesses

since at least 1995.             City of Greensboro Development Ordinance §

30-5-2.73.5.         That ordinance specifies zoning districts for adult

businesses, the required minimum distance between any two adult
businesses,      and       the   required   minimum    distance    between        adult

businesses and certain other structures such as churches and

schools.       In 2001, Greensboro amended the ordinance, in part, by

increasing the required minimum distance between adult businesses

and   schools        and    requiring    nonconforming       businesses      to   cease

operations      or    move.       In    2004,    Greensboro    again    amended    the

ordinance by requiring nonconforming businesses to cease operations

or conform to the law by February 2006.                  After that amendment,

plaintiffs filed this action, seeking a declaration that they were

not nonconforming businesses or alternatively that the ordinance

violated       the    First      and   Fourteenth     Amendments       of   the    U.S.

Constitution.

       The pivotal provision of the ordinance provided in pertinent

part that “[n]o sexually oriented business shall locate” within

certain distances from other adult businesses, schools, and other

specified uses. City of Greensboro Development Ordinance § 30-5-

2.73.5(B). Plaintiffs moved for summary judgment solely on a state

                                            5
law claim, arguing that the provision did not apply to them; that

it unambiguously prohibited only the affirmative act of “locating”

– actively establishing – in a location, not passively remaining

there.     Greensboro argued that its ordinance prohibited both the

affirmative act of locating and the passive active of remaining.

The district court agreed with plaintiffs and granted their motion
for   summary    judgment.      However,       the   district      court    denied

plaintiffs’ motion for attorney’s fees under 42 U.S.C. § 1988(b)

because    the   claim   upon   which       they   obtained    relief      was   not

sufficiently related to their federal claim.                 The district court

explained that the summary judgment motion presented only the

single state law claim; no constitutional question was presented,

and   so   the   court    did   not     avoid,     reserve    or   decline       any

constitutional question in ruling on the motion.

      After the district court’s decision, Greensboro again amended

its ordinance, using language that plaintiffs had argued would be

necessary to make the ordinance apply to their established adult

businesses.      Plaintiffs then filed a new action in the district

court seeking to enjoin its enforcement on constitutional grounds.

That action is not before this court.



                                      II

      We find the issue of whether the district court properly held

that the ordinance does not apply to established adult business

locations is moot.       Accordingly, we dismiss Greensboro’s appeal.

      To be cognizable in a federal court, a suit must be a “real

                                        6
and substantial controversy admitting of specific relief of a

conclusive character, as distinguished from an opinion advising

what the law would be on a hypothetical state of facts.”      North

Carolina v. Rice, 404 U.S. 244, 246 (1971) (citations omitted).    A

case is moot if the issues presented are no longer “live” or the

parties lack a legally cognizable interest in the outcome.   County

of Los Angeles v. Davis    , 440 U.S. 625, 631 (1979).       “[M]oot

questions require no answer,” Missouri, Kansas & Texas R. Co. v.

Ferris, 179 U.S. 602, 606 (1900), and federal courts are without

jurisdiction to answer them because federal courts do not have the

power to issue advisory opinions.     United States v. Alaska S.S.
Co., 253 U.S. 113, 116 (1920).   These requirements of the mootness

doctrine are rooted in Article III of the Constitution, Liner v.

Jafco, Inc., 375 U.S. 301, 306 n.3 (1964), and extend to appellate

review, Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir. 2006),

whether or not the parties have raised the issue.    See Rice, 404

U.S. at 246.

     Neither party has had much to say about the mootness of this

appeal.     Greensboro preemptively argues in a footnote that this

appeal is not moot on two grounds.     First, it argues that if we

were to reverse the district court, plaintiffs would have no basis

for claiming attorney’s fees; second, it argues that reversal

“could lead to a ruling” that plaintiffs have been a nonconforming

use since 2001.    Neither argument saves Greensboro’s appeal from

mootness.



                                 7
         As to Greensboro’s first argument, the existence of a live

controversy concerning attorney’s fees cannot save the underlying

claim from mootness.      S-1 v. Spangler, 832 F.2d 294, 297 n.1 (4th

Cir. 1987) (“a claim for costs and attorney fees . . . does not

avert mootness of the underlying action on the merits”). The

Supreme Court has made plain that an “interest in attorney’s fees

is . . . insufficient to create an Article III case or controversy

where none exists on the merits of the underlying claim.”               Lewis v.

Continental     Bank   Corp.,    494   U.S.     478,   480    (1990).    As    to

Greensboro’s second argument, it is not enough that a ruling here

could conceivably affect another proceeding elsewhere.                  “It has

long been settled that a federal court has no authority to give

opinions upon moot questions or abstract propositions, or to

declare principles or rules of law which cannot affect the matter

in issue in the case before it.”            Church of Scientology of Cal. v.
United States, 506 U.S. 9, 12 (1992) (citations omitted) (emphasis

added).     But that is precisely what Greensboro asks us to do here.

Greensboro     would   have     us   render    an   opinion    concerning     the

superseded provisions of an ordinance because it might benefit them

in other litigation.     We are not at liberty to do so.          Accordingly,

we find the issue to be moot and dismiss Greensboro’s appeal.1

     1
      We note that vacatur of the district court’s decision might
well be dispositive of the attorney’s fee issue. Lewis, 494 U.S.
at 480 (“[a]n order vacating the judgment on grounds of mootness
would deprive [] of its claim for attorney’s fees under 42 U.S.C.
1988 . . . , because such fees are only available to a party that
“prevails” by winning the relief it seeks”).      However, because
mootness here is not by happenstance, see United States v.
Munsingwear, Inc., 340 U.S. 36, 40 (1950), and because no party has

                                        8
                                      III

      Plaintiffs assert that they were prevailing parties entitled

to attorney’s fees under 42 U.S.C. § 1988(b) as a result of the

district   court’s    grant      of   summary    judgment     favoring   their

interpretation of the ordinance, despite never moving for or

obtaining relief on their federal claim.               Whether plaintiffs are

prevailing parties is considered de novo by this court.              Smyth ex
rel. Smyth v. Rivero, 282 F.3d 268, 274 (4th Cir. 2002).                     We

consider the purpose of § 1988(b) and the posture of the case in

the   district    court,   and    conclude      that    plaintiffs   were   not

prevailing parties entitled to recover attorney’s fees, and affirm

the district court on that issue.

      Under the “American rule” each party pays its own legal fees.

This rule prevails absent explicit statutory authority. Buckhannon

Board & Care Home v. W. Va. Dep’t of Health and Human Resources,

532 U.S. 598, 602 (2001).        For claims pursuant to 42 U.S.C. § 1983,

that authority is found in 42 U.S.C. § 1988(b), which reads in

pertinent part:

      In any action or proceeding to enforce a provision of
      section . . . 1983 [among other provisions], the court,
      in its discretion, may allow the prevailing party, other
      than the United States, a reasonable attorney’s fee as
      part of the costs.




demonstrated equitable entitlement to the “extraordinary remedy” of
vacatur, U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S.
18, 26 (1994), we do not vacate the district court’s decision.

                                       9
“Prevailing party” is defined rather broadly, and even resolution

by   settlement      may    be     sufficient     if   there    has    also   been     an

enforceable judgment entered by the court.                     Maher v. Gagne, 448

U.S. 122, 129 (1980).            However, it is not enough for plaintiffs to

merely be a “catalyst” for a voluntary change in defendant’s

behavior. Buckhannon, 532 U.S. at 600. Rather, a prevailing party

is “one who has been awarded some relief by the court[.]” Id. at

603.

       Even where a party prevails on a claim other than the § 1983

claim (a “non-fee” claim), that party may recover attorney’s fees

according to the rule of Smith v. Robinson, 468 U.S. 992 (1975).
Under this rule, “when the claim upon which a plaintiff actually

prevails is accompanied by a ‘substantial,’ though undecided, §

1983 claim arising from the same nucleus of facts, a fee award is

appropriate.”        Id. at 1002.          According to the Supreme Court’s

rationale, “Congress did not intend to have [§ 1988] extinguished

by     the   fact    that    the    case    was    settled     or     resolved    on   a

nonconstitutional ground.”              Id. at 1006-7.         In contrast, where

“petitioners        have    presented      distinctly     different      claims      for

different relief, based on different facts and legal theories, and

have prevailed only on a non-fee claim, they are not entitled to a

fee award simply because the other claim was a constitutional claim

that could be asserted through § 1983.”                 Smith, 468 U.S. at 1015.
Applying these principles in Smith, the Supreme Court affirmed the

denial of attorney’s fees because the fee and non-fee claims at

issue involved distinctly different legal theories and facts, and

                                           10
would have each called for different relief.                 Thus, a court must

determine whether the fee and non-fee claims are “reasonably

related,” so as to allow an award of attorney’s fees.               Id. at 1002.

     Given the foregoing, a party who claims to be a prevailing

party       must   satisfy    two   requirements.      He   must   have    obtained

sufficient         judicial    relief,   and,   when    a    non-fee      claim   is

dispositive, the non-fee claim must have been reasonably related to

the fee claim.          We assume without deciding that the district

court’s declaratory judgment was sufficient judicial relief and

therefore do not address the first requirement further here.

     As to whether the fee and non-fee claims were “reasonably

related,” we agree with the district court that the legal issues

were not tightly intertwined.            Indeed, the statutory construction

issue could be, and was, cleanly isolated from all constitutional

questions.         Plaintiffs moved for summary judgment on the non-fee

claim alone, putting no constitutional issue before the district

court at all.2        The Supreme Court in Maher v. Gagne, 448 U.S. 122,

        2
      We recognize that other circuit courts of appeals have faced
similar questions and awarded attorney’s fees: Plott v. Griffiths,
938 F.2d 164 (10th Cir. 1991), and Seaway Drive-In, Inc. v.
Township of Clay, 791 F.2d 447 (6th Cir. 1986), cert. denied, 479
U.S. 884. Both of these cases are distinguishable, and we do not
read them to contradict our decision here.      In each case the
constitutional question was before the court or was expressly
considered. The fact that constitutional questions were before the
court means that the Congressional concern over penalizing
plaintiffs was arguably implicated. In Plott, the court noted that
the district court had “appropriately addressed the statutory
construction issue first.” 938 F.2d at 167. In Seaway Drive-In,
the district court “refrained from discussing the merits” that
would support a claim for fees, though it did find, at the
preliminary injunction stage, that the plaintiffs were likely to
succeed on the merits of the constitutional claims. 791 F.2d at
                                         11
133 (1980), explained that a party may “prevail” within the meaning

of § 1988 on a wholly statutory non-civil-rights claim.               This

explanation, however, is in the context of cases in which the

courts have actually declined to reach the constitutional questions

in favor of dispositive state law claims; this context is made

clearer by the legislative history relied upon in Maher:

     To the extent a plaintiff joins a claim under one of the
     statutes enumerated in H.R. 15460 with a claim that does
     not allow attorney fees, that plaintiff, if it prevails
     on the non-fee claim, is entitled to a determination on
     the other claim for the purpose of awarding counsel fees.
      . . . In some instances, however, the claim with fees
     may involve a constitutional question which the courts
     are reluctant to resolve if the non-constitutional claim
     is dispositive. . . . In such cases . . . attorney’s fees
     may be allowed even though the court declines to enter
     judgment for the plaintiff on that claim, so long as the
     plaintiff prevails on the non-fee claim arising out of a
     “common nucleus of operative fact.”
H.R.Rep. No. 94-1558, p. 4, n.7 (1976) (emphasis added) (cited in

Maher, 448 U.S. at 133 n.15).

       In contrast, the district court decision here did not involve

judicial abstention from constitutional issues.         This means that

there    is   no   implication   of   the   Congressional   concern   over

penalizing parties who have brought valid constitutional claims

that are then rightly avoided by judges because of the “avoidance

doctrine.” Plaintiffs isolated and presented a single issue to the

court in their motion for summary judgment – the issue of whether

the ordinance applied to plaintiffs.




449.
                                      12
     We also note that plaintiffs obtained only a federal court’s

interpretation of state law.   It is well-established that federal

courts are not the last word on the interpretation of state laws.

Although federal courts commonly construe state statutes, federal

courts lack jurisdiction to do so authoritatively.   Virginia Soc.

For Human Life v. Caldwell, 152 F.3d 268, 270 (4th Cir. 1998)

(citing United States v. Thirty-Seven Photographs, 402 U.S. 363,

369 (1971) (“[W]e lack jurisdiction authoritatively to construe

state legislation.”)).   See also Brown v. Ohio, 432 U.S. 161, 167

(1977); Garner v. State of Louisiana, 368 U.S. 157, 169 (1961)
(noting that state courts “have the final authority to interpret”

state law); Railroad Commission of Tex. v. Pullman Co., 312 U.S.

496, 499-500 (1941). Since federal courts cannot bind state courts

in the interpretation of their own laws, North Carolina is not

bound to hold that the Greensboro ordinance is inapplicable to

businesses like plaintiffs.3   This point illustrates how unrelated

the legal questions were. The district court, far from deciding an

issue under the United States Constitution, was deciding only an

issue upon which the court could not even deliver a final answer.



     3
      We recognize that claim and/or issue preclusion could have
worked to plaintiffs’ benefit if plaintiffs had challenged
Greensboro’s enforcement in a North Carolina court before
Greensboro amended the ordinance. See, e.g., Youse v. Duke Energy
Corp., 614 S.E.2d 396 (N.C. Ct. App. 2005). However, the district
court’s declaratory judgment could not have directly interfered
with enforcement of contested statutes or ordinances except with
respect to the particular federal plaintiffs, and the State would
have been free to prosecute others who violated the statute. Doran
v. Salem Inn, Inc., 422 U.S. 922, 930-31 (1975).

                                 13
     In sum, the district court was correct to note that it never

had the opportunity to abstain from a § 1983 question.   It merely

decided the only question before it, which was a pure state law

question.   For the purposes of the summary judgment decision, the

constitutional issues were not related at all to the state law

claim.   This summary judgment decision had only a coincidental
relationship to § 1983.   Therefore, the district court was correct

in denying attorney’s fees chiefly because the fee and non-fee

claims were not intertwined so as to make any abstention from

constitutional questions necessary.    It follows that plaintiffs

were not prevailing parties entitled to attorney’s fees.



                              IV
     For the foregoing reasons, we dismiss Greensboro’s appeal as

moot and affirm the district court’s decision to deny attorney’s

fees to plaintiffs.

                                                DISMISSED IN PART;
                                                  AFFIRMED IN PART




                                 14
