The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KYLE BOBAY, D.O., .
Plaintiff,
Vv. Case No. 3:22-cv-002
WRIGHT STATE UIVERSITY, et JUDGE WALTER H. RICE
al.,
Defendants.
DECISION AND ENTRY OVERRULING PLAINITFF’S MOTION
FOR AN AWARD OF ATTORNEY FEES AND COSTS (DOC. #18);
TERMINATION ENTRY
This matter is before the Court pursuant to an Amended Motion for an
Award of Attorney Fees and Costs filed by Plaintiff, Kyle Bobay, D.O. (“Plaintiff” or
“Dr. Bobay”). Doc. #18. A Memorandum in Opposition was filed by Wright State
University (“WSU”), Doc. #19, and by Kettering Adventist Healthcare
(“Kettering”). Doc. #21. Plaintiff filed a Reply, Doc. #22, and Kettering filed a
Surrreply. Doc. #24. The matter is ripe for consideration.
I. Procedural History
Plaintiff is a graduate student in the Wright State University Emergency
Medicine Residency Program (“EM Residency Program”). Doc. #1, PagelD#3. To
complete his residency, he was placed at Kettering' and employed by them
pursuant to a three-year Graduate Medical Education Agreement (“GME
Agreement” or “Agreement”) that he signed with WSU and Kettering on March
27, 2020. Doc. #1, PagelD##4-5. Under the terms of the Agreement, Kettering is
WSU's fiscal agent in employing resident physicians in the EM Residency
Program. /d., PagelD#5.
On August 5, 2021, Dr. Bobay was notified that all Kettering medical staff
were to receive Covid-19 vaccinations no later than October 4, 2021. Doc. #1,
PagelD#6. On August 14, 2021, Plaintiff submitted to Kettering a religious
exemption request from having the vaccination. □□□ His request was denied and
he filed an appeal. /d. Thereafter, he submitted a request to Miami Valley Hospital
in Dayton, Ohio, operated by Premier Health, for a religious exemption from its
Covid-19 mandate.? /a., PagelD#9; Doc. #1-18. On October 22, 2021, his appeal to
Kettering was denied and shortly thereafter it extended the vaccination deadline
to January 4, 2022, in accordance with the Center for Medical and Medicaid
Services (“CMS”). /a., PagelD#6. On October 24, 2021, Premier Health granted
Plaintiff's request for a religious exemption and on November 11, 2021, Plaintiff
' Kettering is a nonprofit network of fourteen Dayton and Cincinnati area medical centers,
a college and outpatient facilities based in Dayton, Ohio. https://ketteringhealth.org.
2 The Complaint does not state when Plaintiff submitted his request for a religious
exemption to Premier Health.
submitted another appeal to Kettering which it denied on December 2, 2021. /d.,
PagelD##7 and 9.
On December 7, 2021, Dr. Bobay received a written notice of Kettering’s
intent to terminate him if he remained unvaccinated by January 4. 2022. Doc. #1,
PagelD#7. Plaintiff appealed the termination notice to Kettering and WSU
pursuant to the due process clause in the Graduate Medical Education Manual
that is referenced in the GME Agreement.’ /ad. On December 16, 2021, WSU
granted Dr. Bobay’s religious exemption from its Covid-19 vaccination mandate,
but failed to address Kettering’s denial of his religious exemption. /d., PagelD#9.
On December 21 and 22, 2021, Kettering Health’s Human Resources (“HR”)
Manager informed Plaintiff the Agreement was inapplicable to his appeal and that
he was denying and terminating the appeal. /d.
In a December 29, 2021, email, Dr. Bobay requested a “review” of the HR
Manager’s December 21, 2021, denial of his appeal of notice of termination.
Doc.#7-1, PagelD#93. He stated that the “Kettering GME Manual” required a
review by the Program Director for the Emergency Medicine Residency Program
and that “[E]ven under the general Kettering policy ... a review is to be provided
by the department|‘s] next level leader or a VP.” /a. Kettering responded that
3 As alleged in the Complaint, both WSU and Kettering have Graduate Medical Education
Manuals with Kettering’s stating that the due process policies apply to all Kettering
residencies and that for “integrated residencies” in the WSU Boonshoft School of
Medicine, the responsibilities of Kettering’s Director of Medical Education will be the
responsibility of the Wright State University Boonshoft School of Medicine.” Doc. #1,
PagelD#6.
same day and stated the appeal would be forwarded for review by a Vice
President of Kettering.* /d.
On January 3, 2022, Dr. Bobay filed a verified Complaint for a Temporary
Restraining Order, Injunctive and Declaratory Relief against WSU, its Board of
Trustees and Kettering. Doc. #1. Doc. #1. The Complaint asserted seven counts
for declaratory relief and an eighth count for injunctive relief. /o. Plaintiff's prayer
for relief requested that the Court declare Defendants violated (1) the First
Amendment of the United States Constitution; (2) the right to refuse medical
treatment under Article |, Section 1 of the Ohio Constitution; (3) Section 564 of the
Food, Drug and Cosmetic Act, 21 U.S.C. §360bbb-3; (4) Ohio Revised Code
§ 3792.04; (5) 42 U.S.C. § 1983; and (6) Title VII, 42 U.S.C. 2000e, et seq., and Ohio
Revised Code 8 4112. /d., PagelD##18-19. Plaintiff also requested the issuance of a
temporary restraining order (“TRO”) and/or a preliminary and a permanent
injunction to enjoin WSU and Kettering from denying Dr. Bobay’s “request for
religious exemption” and from terminating his position as a resident physician.
/d., PagelD#19. The Complaint also sought reasonable attorney fees and costs. /d.
Simultaneous with the filing of the Complaint, Dr. Bobay filed a Motion for a
TRO. Doc. #2. He requested the Court preclude WSU and Kettering “from
violating his religious free exercise rights by terminating him” on January 4, 2022,
‘ Plaintiff's December 29, 2021, email to Jeff Jones, Manager Human Resources, and his
response on January 4, 2022, is not referenced in the Complaint but is attached as an
exhibit to Kettering’s Notice filed January 4, 2022. Doc. ##7 and 7-1.
“from the EM Residency Program. . .as a result of his refusal for religious reasons
to take a Covid-19 vaccine.” Doc. #2, PagelD#72. A hearing was held and on
January 4, 2022, the Court filed an Entry and Order Sustaining Plaintiff's Motion
for Temporary Restraining Order. Doc. #6. Pursuant to the Court’s Entry and
Order, WSU and Kettering were enjoined “through January 18, 2022, subject to
renewal pursuant to Rule 65(b)({2), from terminating” Dr. Bobay’s “position as a
resident physician in the Wright State EM Residency Program and terminating his
GME Agreement on January 4, 2022, for refusing to take the Covid-19 vaccine.”
Doc. #6. Later that same day, Kettering filed a Notice stating that it had approved
Plaintiff's request for a religious exemption from its Covid-19 vaccine
requirement. Doc. #7-1, PagelD#93. On January 5, 2022, the Court held a
conference call with counsel and on January 7, it issued a Decision and Entry
dissolving the TRO. Doc. 11, PagelD#99. Thereafter, counsel for the parties
engaged in discussions regarding Dr. Bobay’s attorney fees and costs. When
those discussions seemingly failed to yield an agreement, Dr. Bobay filed his
Motion for Attorneys’ Fees. Doc. #18.
Il. Legal Analysis
Plaintiff's Motion for an Award of Attorney Fees and Costs is pursuant to
the Civil Rights Attorney Fees Act of 1976, 42 U.S.C. § 1988. Doc. #18. To recover
under this statute, Dr. Bobay must be “the prevailing party,” a “legal term of art”
used by Congress in a number of statutes, including § 1988(b). Buckhannon Bd.
and Care Home, Inc. v. W.V. Dep't of Health and Human Resources, 532 U.S. 598,
603 (2001). The prevailing party has been defined by the Supreme Court as “one
who has been awarded some relief by the court” on the merits of his claim that
has resulted in a “’material alteration of the legal relationship of the parties.’” /d.
at 603-604 (citing 7exas State Teachers Assn. v. Garland Independent Schoo! Dist.,
489 U.S. 782, 792-793 (1989)). Under this definition, a litigant can be the prevailing
party if he is awarded only nominal damages or if a settlement agreement,
without an admission of liability, is entered into pursuant to a consent decree. /d.
In Buckhannon, the Court further defined the meaning of the prevailing party and
held that it required a “judicially sanctioned change in the parties’ legal
relationship” and not one where the suit was merely a “catalyst” for the plaintiff's
goals being accomplished, in whole or in part, due to a defendant's voluntary
change since this change lacked “the necessary judicial imprimatur.” /d. at 605.
In McQueary v. Conway, 614 F.3d 591 (6th Cir. 2010), the Sixth Circuit
considered whether the entering of a preliminary injunction could result in the
plaintiff being the prevailing party and thus entitled to an award of attorney fees
and costs. The plaintiff in McQueary filed suit asking the court to declare portions
of a Kentucky statute that barred protests at military funerals unconstitutional
under the First Amendment and to issue an injunction preventing the statute’s
enforcement. Six months after the Court issued the injunction, the statue was
repealed, the case was dismissed as moot and the request for attorney's fees
under 8 1988(b) was denied. The Sixth Circuit reversed and remanded. It stated
that “when a claimant wins a preliminary injunction and nothing more, that
usually will not suffice to obtain fees under § 1988” and that a court must conduct
a “contextual and case-specific inquiry” to make that determination. /d. at 605. In
conducting this inquiry, the Court stated that a “material change” in the parties’
legal relationship is required along with “lasting relief.” /d. at 597. The “victory”
cannot be “transient” and “ephemeral” since “[P]revailing party status. . . does
not attend achievement of a preliminary injunction that is reversed, dissolved, or
otherwise undone by the final decision in the same case.” /d. at 598 (quoting So/e
v Wyner, 551 U.S. 74, 82-86. (2007). Instead, it must be “enduring” and
irrevocable. /d. at 86.
Here, as stated by the Court, the TRO was granted to preserve the status
quo and to prevent Dr. Bobay’s termination on January 4, 2022, so that his
constitutional and statutory claims against Defendants could be later determined
on their merits. Doc. 17-2, PagelD#128. Following the Court’s issuance of the
TRO, however, Kettering, for whatever reason, swiftly relented and granted
Plaintiff's appeal of his request for a religious exemption from the Covid-19
vaccination mandate. As a result, on January 7, 2022, the case was settled, with
the exception of attorney fees and costs, and the TRO entered on January 4, 2022
was “dissolved and no longer in effect.” Doc. #11.
Plaintiff argues he is entitled to prevailing party status because of his
success in obtaining a TRO on “his claim” of preventing his termination. Doc.
#22, PagelD#222. He cites the Court to McQueary, 614 F.3d at 603, and Planned
Parenthood Southwest v. DeWine, 931 F.3d 530, 540 (6th Cir. 2019). Plaintiff's
argument fails for at least two reasons. First, although the Complaint included
“Injunctive Relief” as Count VIil and Dr. Bobay requested that Defendants be
enjoined from terminating his position as a resident physician in his Prayer for
Relief, a TRO is a remedy and not a claim for relief. Madej v. Maiden, 951 F.3d
364, 369 (6th 2020). Second, McQueary held only that the District Court should
make a “contextual and case-specific inquiry” prior to awarding attorney fees for
a preliminary injunction under § 1988(b) and, an award of attorney fees and costs
was made in Planned Parenthood because the preliminary injunction resulted in a
“material alteration of the legal relationship of the parties.” Planned Parenthood,
931 F.3d at 538 (citing So/e, 551 U.S. at 82). Specifically, the injunction prevented
enforcement of an Ohio statute for nearly 12 years of litigation with the Sixth
Circuit twice affirming its appropriateness. Planned Parenthood, 931 F.3d at 539.
No such “material alteration of the legal relationship of the parties,” So/e, 551
U.S. at 82, occurred when this Court granted a TRO preventing the termination of
Dr. Bobay’s GME Agreement on January 4, 2022, for refusing to take the Covid-19
vaccine.
Dr. Bobay next argues that by obtaining the TRO, he prevailed by “every
measure of victory” and “materially altered the parties legal relationship.” Doc.
#22, PagelD#222-223 and 226. Again, the Court disagrees. The TRO did not award
“relief on the merits of his claims,” Buckhannon, 532 U.S. at 608 (citation
omitted), provided “no lasting relief,” McQueary, 614 F.3d at 597, and Plaintiff
“gained no enduring change.” So//e, 551 U.S. at 86. Instead, as specifically stated
by the Court on January 4, 2022, the TRO’s purpose was to preserve the status
quo “so that reasoned resolution of the dispute may be held.” Procter & Gamble
Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996) {purpose of a TRO under Rule
65 is to preserve the status quo to permit a reasoned resolution of a dispute).
Because the Court does not find, under the facts of this case, that Plaintiff
was the prevailing party, the Motion for an Award of Attorney Fees and Costs,
Doc. #18, is overruled.®
ill. Conclusion
For the reasons set forth Plaintiff's Motion for an Award of Attorney Fees
and Costs is OVERRULED.
The captioned cause is hereby ordered terminated upon the docket records
of the United States District Court for the Southern District of Ohio, Western
Division, at Dayton.
5 While it is tempting to speculate on why Kettering changed its position after the TRO
was issued, such speculation or, for that matter, even an inference construed in favor of
Plaintiff that Kettering realized the weakness of its factual and legal position, is no
substitute for evidence. The Court simply does not know why Kettering changed its
position.
Date: November 1, 2022 Jost G eR.
WALTER H. RICE
UNITED STATES DISTRICT JUDGE
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