On Appeal From the United States District Court For the District of Delaware. D.C. Civil Action No. 85-00735.
Before: Stapleton, Mansmann and Hutchinson, Circuit Judges.
STAPLETON, Circuit Judge:
This is an appeal from a denial of a motion for an award of costs under 42 U.S.C. § 1988. Those costs were incurred in a suit involving a constitutional challenge to Delaware's Adult Entertainment Establishments Act ("the Act"), Del. Code Ann. tit. 24, §§ 1601-1629 (1987).
The appellants are Bob's Discount Adult Books, Inc. and Francis R. Mitchell ("Mitchell"). The appellees are the Commission on Adult Entertainment Establishments of the State of Delaware ("the Commission"), a statewide agency of the state, Charles M. Oberly, III ("Oberly"), in his official capacity as Attorney General of the State of Delaware, and the State of Delaware.
In December 1985, after two of Mitchell's employees were convicted of conspiracy to commit prostitution, the Commission revoked Mitchell's license to present live entertainment and movies in private viewing booths and imposed a $10,000 fine pursuant to § 1617 of the Act. Mitchell sought injunctive relief alleging that the Act, and § 1617 in particular, violated first amendment guarantees of free speech. In July 1986, the district court denied Mitchell's motion for a preliminary injunction. Mitchell v. Comm'n on Adult Entertainment Establishments, C.A. No. 85-735 MMS (D. Del. July 3, 1986), aff'd, 810 F.2d 1164 (3d Cir. 1987).
In October 1987, Mitchell filed a motion for summary judgment and the Commission filed a cross-motion for summary judgment. The district court denied Mitchell's motion and granted partial summary judgment to the Commission upholding the constitutionality of § 1617. The court did not address the issue of the constitutionality of the Act as a whole. Mitchell v. Comm'n on Adult Entertainment Establishments, C.A. No. 85-735 MMS (D. Del. April 14, 1988).
Also in October 1987, Mitchell applied for a new license. The Commission held a hearing in November 1987 but had not acted on the application as of November 8, 1989. The district court then permitted Mitchell to amend his complaint and add claims related to the Commission's inaction. Mitchell v. Comm'n on Adult Entertainment Establishments, C.A. No. 85-735 MMS (D. Del. Nov. 8, 1989).
In January 1991, the district court entered an order granting Mitchell's motion for summary judgment "insofar as it [sought] declaratory and injunctive relief from the $10,000 fine
On May 17, 1991, the district court upheld the constitutionality of the Act as a whole, but also ruled that the Commission's failure to act upon the application was constitutionally impermissible. The court ordered the Commission to act upon the application within ten days. Mitchell v. Comm'n on Adult Entertainment Establishments, 764 F. Supp. 928 (D. Del. 1991). The court entered an order terminating the litigation.
The Commission complied with the mandate of the district court and met on May 23, 1991, to consider the dormant license application. Shortly thereafter, it sent a letter to Mitchell proposing a settlement under which it would agree to ...