Planned Parenthood Southwest Ohio Region v. Mike DeWine

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0166p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PLANNED PARENTHOOD SOUTHWEST OHIO REGION; ┐

PLANNED PARENTHOOD OF GREATER OHIO; PRETERM; │

TIMOTHY KRESS, │

Plaintiffs-Appellees, │

> Nos. 17-3866/3867

│

v. │

│

│

MIKE DEWINE (17-3866); JOSEPH DETERS (17-3867), │

Defendants-Appellants. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Cincinnati.

No. 1:04-cv-00493—Susan J. Dlott, District Judge.

Argued: October 16, 2018

Decided and Filed: July 25, 2019

Before: MERRITT, DAUGHTREY, and STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED: Hannah C. Wilson, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,

Ohio, for Appellant Mike DeWine. Jennifer L. Branch, GERHARDSTEIN & BRANCH CO.

LPA, Cincinnati, Ohio, for Appellees. ON BRIEF: Eric E. Murphy, Stephen P. Carney,

Tiffany L. Carwile, Bridget C. Coontz, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellant Mike DeWine. Roger E. Friedmann, Michael G. Florez,

HAMILTON COUNTY PROSECUTOR’S OFFICE, Cincinnati, Ohio, for Appellant Joseph

Deters. Jennifer L. Branch, Alphonse A. Gerhardstein, GERHARDSTEIN & BRANCH CO.

LPA, Cincinnati, Ohio, for Appellees.

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Region, et al. v. Deters, et al.

_________________

OPINION

_________________

MARTHA CRAIG DAUGHTREY, Circuit Judge. Planned Parenthood brought this

challenge to an Ohio statute that regulates the use and prescription of mifepristone for the

medical induction of abortion. Based on the likelihood of success of one of its claims, Planned

Parenthood obtained a preliminary injunction, which this court eventually narrowed to an as-

applied injunction and which restrained enforcement of the law for almost 12 years. Before a

final adjudication of the merits of that claim, however, actions by the Food and Drug

Administration (FDA), a non-party in this case, mooted the dispute. Planned Parenthood sought

and was awarded attorneys’ fees and costs for the work it did in litigating the preliminary

injunction. Defendants Michael Dewine, the Attorney General of Ohio, and Joseph Deters, the

Hamilton County Prosecuting Attorney and representative of a defendant class of all prosecuting

attorneys in Ohio, appeal the district court’s fee award. They argue that Planned Parenthood does

not properly qualify as a “prevailing party” because its relief was narrow, temporary, and

preliminary; that the district court erred in refusing to apply a blanket fee reduction based on

Planned Parenthood’s degree of success; and that the district court erred in applying 2016 rates

rather than 2006 rates in calculating the award. We conclude that the district court properly

engaged in a contextual, case-specific review and appropriately determined that Planned

Parenthood prevailed in this litigation because its relief, albeit preliminary, was based on the

merits of its claim, provided a benefit to the plaintiffs, and was sufficiently lasting. Furthermore,

the district court properly considered the law and the aims of 42 U.S.C. § 1988 and adequately

explained its rationale for refusing to apply a blanket fee reduction and for using 2016 rates to

calculate the award. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2004, the Ohio General Assembly enacted Ohio Revised Code § 2919.123, which

regulates the use and prescription of mifepristone (also known as RU-486). Mifepristone is a

drug commonly used in conjunction with another drug, misoprostol, to induce abortion in the

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first trimester without the need for the patient to undergo surgery. In 2000, the FDA approved

the use of mifepristone to end a pregnancy based on a dosage protocol that used 600 milligrams

of the drug and could be prescribed through 49 days following a woman’s last menstrual period

(LMP). However, following FDA approval, physicians prescribing mifepristone began relying

on a newer, evidence-based protocol that allowed the drug’s usage through 63 days post-LMP

and prescribed only 200 milligrams of the drug.

Though physician reliance on evidenced-based, “off-label” protocols is standard medical

practice and is often protected in certain areas of state law, including in Ohio, see, e.g., Ohio

Rev. Code § 1751.66(A), with regard to mifepristone, the state saw fit to limit physicians’

prescribing options. To that end, the Ohio legislature passed the mifepristone statute, which

criminalizes uses of mifepristone not “in accordance with all provisions of federal law that

govern the use of RU-486 (mifepristone) for inducing abortions.” Ohio Rev. Code

§ 2919.123(A). Further, the statute defines “federal law” as including “any drug approval letter

of the food and drug administration of the United States.” Ohio Rev. Code § 2919.123(F)(1).

On August 2, 2004, slightly over a month before the statute was scheduled to take effect,

Planned Parenthood Cincinnati Region, two additional Planned Parenthood clinics, and one other

reproductive healthcare provider not affiliated with Planned Parenthood1 brought suit against the

governor of Ohio, the attorney general of Ohio, and a defendant class of the state’s prosecuting

attorneys in their official capacities. Planned Parenthood challenged the statute pursuant to

42 U.S.C. § 1983 on behalf of themselves and their patients.

Planned Parenthood’s complaint alleged four claims: the statute was unconstitutional due

to vagueness; it violated individuals’ bodily autonomy; it imposed an undue burden on patients’

right to abortion; and it violated due process because it lacked an exception to protect the health

or life of the woman. With regard to the health-or-life-exception claim, Planned Parenthood

argued that certain medical conditions render induced abortion via medication (rather than

surgery) safer and thus necessary for particular patients through 63 days post-LMP. Planned

1For ease of reading, the opinion will refer to these plaintiffs collectively as Planned Parenthood, even

though the non-affiliated provider is still involved in the litigation.

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Parenthood sought declaratory relief as well as a preliminary injunction and a permanent

injunction preventing enforcement of the statute. The same day, Planned Parenthood filed a

motion and a supporting memorandum of law seeking a preliminary injunction. The state

opposed the motions and filed its own motion to dismiss Planned Parenthood’s complaint.

Following a two-day evidentiary hearing, the district court denied the state’s motion to

dismiss and granted Planned Parenthood’s motion for a preliminary injunction on September 22,

2004, the day before the statute was to go into effect. The district court enjoined the statute in

full, holding that, due to its lack of a health-or-life exception, the plaintiffs “ha[d] a substantial

likelihood of success on the merits that the [statute] violates the Due Process Clause and is

unconstitutional.” Planned Parenthood Cincinnati Region v. Taft, 337 F. Supp. 2d 1040, 1047

(S.D. Ohio 2004). The district court also found that the equities balanced in Planned

Parenthood’s favor, largely due to its substantial likelihood of success on the merits of its health-

or-life-exception claim. The district court did not address Planned Parenthood’s other claims.

On February 24, 2006, we affirmed the district court’s order in part, and on April 13,

2006, we issued an amended decision but still found “no basis for overturning the district court’s

determination that [Planned Parenthood] had established a strong likelihood of succeeding on the

merits of their claim that the [statute] is unconstitutional because it lacks a health or life

exception.” Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 518 (6th Cir. 2006).

However, we affirmed the injunction only “insofar as it prohibits unconstitutional applications of

the [statute]” and vacated the injunction to the extent that its application was overbroad. Id. at

517–18. We then remanded the case for reconsideration of the scope of the injunction in light of

legislative intent and Planned Parenthood’s other claims. Id.

Following that ruling, Planned Parenthood filed a consolidated motion in the district

court seeking summary judgment on their vagueness claim or, in the alternative, a renewed

preliminary injunction of the statute in its entirety based on the plaintiffs’ remaining

constitutional claims. On September 27, 2006, the district court granted Planned Parenthood’s

motion and permanently enjoined the statute in its entirety. The state appealed.

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On December 1, 2006, prior to resolution of the state’s appeal, Planned Parenthood filed

a motion seeking $475,886.77 in attorneys’ fees for work done through November 30, 2006.2

This total included a ten-percent fee reduction to acknowledge and offset the possibility of

duplicated efforts. On February 1, 2007, the state filed a motion to stay the fee-motion

proceedings, and the district court granted the stay.

Following the district court’s stay of Planned Parenthood’s attorneys’ fees application,

litigation continued. In June 2008, we sua sponte certified two questions to the Supreme Court of

Ohio regarding interpretation of the statute. Planned Parenthood of Cincinnati Region v.

Strickland, 531 F.3d 406, 412 (6th Cir. 2008) (Strickland I). We first asked the Court to

determine whether the statute “mandate[s] that physicians in Ohio who perform abortions using

mifepristone do so in compliance with the forty-nine-day gestational limit described in the FDA

approval letter[.]” Second, we asked whether the statute “mandate[s] that physicians in Ohio

who perform abortions using mifepristone do so in compliance with the treatment protocols and

dosage indications described in the drug’s final printed labeling[.]” Id. Our decision in

Strickland I expressly stated that the injunction restraining all enforcement of the statute would

remain in place pending the Ohio Supreme Court’s review and a further order from the Sixth

Circuit. Id. at 414.

On July 1, 2009, the Supreme Court of Ohio issued its opinion addressing the certified

questions, confirming that the statute requires physicians to adhere to the FDA’s drug-approval

letter and final printed label. Thus, it required physicians using mifepristone to induce abortion

to prescribe a 600 milligram dose and to do so only through 49 days post-LMP. Cordray v.

Planned Parenthood Cincinnati Region, 911 N.E.2d 871, 877–79 (Ohio 2009). According to the

Ohio Supreme Court, therefore, the statute prohibited all “off label” use of mifepristone,

including the evidenced-based method that had been allowed before its passage. Id. at 878.

Provided this clarification, we then vacated the district court’s September 2006 summary

judgment order and permanent injunction—but explicitly stated that the prior preliminary

2Planned Parenthood’s most recent fees application states that their original motion requested fees for work

done through October 18, 2006, but a review of the original motion shows that it also encompassed work done to

prepare the fee petition—through November 30, 2006.

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injunction remained in force—and remanded the case once again to the district court for a

determination regarding the injunction’s scope. Planned Parenthood Sw. Ohio Region v.

Strickland, 331 F. App’x 387, 387 (6th Cir. 2009) (Strickland II).

Thereafter, both parties moved for summary judgment, and in January of 2011, Planned

Parenthood requested clarification of the scope of the preliminary injunction. On February 4,

2011, the district court issued an order clarifying that the statute was enjoined only as it applied

to instances where the health or life of the patient was at risk and denying Planned Parenthood’s

request for broader relief.

On May 23, 2011, the district court granted the state’s motion for summary judgment on

three of Planned Parenthood’s claims but denied the state’s summary judgment motion as to the

health-or-life-exception claim. Almost two years later, Planned Parenthood filed a Second

Amended Complaint seeking declaratory and injunctive relief pursuant to the single remaining

claim. The state moved to dismiss. The district court denied that motion on December 2, 2014,

and litigation proceeded until October 2015, when the district court stayed the case pending the

Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

On March 29, 2016, almost 12 years after entry of the original preliminary injunction, the

FDA amended its approval letter and final printed label for mifepristone. The updated labeling

authorized the evidence-based protocol, allowing a 200 milligram dosage and prescription

through 70 days post-LMP, rather than the original 600 milligram dosage and 49-day post-LMP

gestational limitation. See U.S. Food & Drug Administration, Questions and Answers on

Mifeprex, https://www.fda.gov/drugs/drugsafety/postmarketdrugsafetyinformationforpatientsand

providers/ucm492705.htm (last visited June 3, 2019); Mifepristone Supplemental Approval

Letter, https://www.accessdata.fda.gov/drugsatfda_docs/appletter/2016/020687Orig1s020ltr.pdf

(last visited June 3, 2019). In light of these updates, the parties agreed to dismiss the case

without prejudice. On May 11, 2016, the district court ordered dismissal pursuant to Federal

Rules of Civil Procedure 23(e) and 41(a). The statutory provision remains in force, requiring

physicians to prescribe medication abortion according to the evidence-based protocol, as

reflected in the FDA’s updated approval letter and labeling.

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On July 7, 2016, Planned Parenthood filed a supplementary motion for attorneys’ fees,

this time encompassing only work done through February 24, 2006. Planned Parenthood

asserted that it spent 1,038.97 hours litigating the preliminary injunction. As in their initial fee

request, Planned Parenthood included a ten-percent reduction to account for potential duplication

of effort. “Given [the] delay in payment” following the original 2006 motion, Planned

Parenthood requested that these fees be paid at 2016 rates to offset lost interest. Using this rate,

the requested fees for the preliminary injunction litigation totaled $372,164.63. In addition,

Planned Parenthood requested $10,365.35 to cover costs for the subsequent merits litigation.

Thus, Planned Parenthood’s total request for costs and fees amounted to $382,529.98.

The district court granted Planned Parenthood’s fee request. Despite the state’s

opposition, the district court found both Planned Parenthood’s requested hours and rates

reasonable and did not apply a blanket reduction to the fees. That ruling and award are the

subjects of this appeal.

DISCUSSION

Standard of Review

“A district court’s determination of prevailing-party status for awards under attorney-fee-

shifting statutes—such as 42 U.S.C. § 1988—is a legal question that we review de novo.”

Radvansky v. City of Olmstead Falls, 496 F.3d 609, 619 (6th Cir. 2007). Once a district court

has determined that a party is “prevailing” and entitled to fees, an appellate court reviews that

award for an abuse of discretion. Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 618 (6th Cir.

2013). A district court abuses its discretion when it “relies upon clearly erroneous factual

findings, applies the law improperly, or uses an erroneous legal standard.” Id. (quoting Wikol ex

rel. Wikol v. Birmingham Pub. Schs. Bd. of Educ., 360 F.3d 604, 611 (6th Cir. 2004)).

Planned Parenthood’s Prevailing-Party Status

In addressing attorneys’-fees disputes, federal courts typically abide by the “American

Rule,” which dictates that each party pay for its own attorneys’ fees, except when explicitly

provided for by statute. The Civil Rights Attorney’s Fee Awards Act, 42 U.S.C. § 1988, is one

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such exception aimed at “enabling vigorous enforcement of modern civil rights legislation[.]”

S. Rep. No. 94-1011, at 4 (1976); Perdue v. Kenny A. ex rel. Winn, 559 U.S 542, 550 (2010)

(“Congress enacted 42 U.S.C. § 1988 in order to ensure that federal rights are adequately

enforced.”). To that end, § 1988(b) allows a “prevailing party” to collect attorneys’ fees from its

opponent in certain circumstances, including in cases filed under 42 U.S.C. § 1983, as was this

case. See Sole v. Wyner, 551 U.S. 74, 77 (2007). Ordinarily, “a final decision on the merits . . .

determines who prevails in the action for purposes of § 1988(b).” Id. at 78. Thus, “when a

claimant wins a preliminary injunction and nothing more, that usually will not suffice to obtain

fees under § 1988.” McQueary v. Conway, 614 F.3d 591, 604 (6th Cir. 2010). However, we

have recognized that there may be “occasional exceptions to that rule.” Id.

In determining prevailing-party status under § 1988, “[t]he touchstone of the . . . inquiry

. . . is the material alteration of the legal relationship of the parties in a manner which Congress

sought to promote in the fee statute.” Sole, 551 U.S. at 82 (internal quotation marks and citations

omitted). A party achieves a material alteration when it “succeed[s] on any significant issue in

litigation which achieves some of the benefit the part[y] sought in bringing suit.” Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983) (citation omitted). However, a plaintiff cannot claim

prevailing-party status if its success is ultimately “reversed, dissolved, or otherwise undone by

the final decision in the same case.” Sole, 551 U.S. at 83. Nor can a plaintiff “prevail” based on

the theory that its lawsuit catalyzed a change in the defendant’s behavior, thereby resolving the

case; its relief must be “judicially sanctioned.” Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001). Finally, a plaintiff cannot establish

prevailing-party status if its success is not based, at least in part, on the merits of its claim.

Dubuc v. Green Oak Twp., 312 F.3d 736, 753 (6th Cir. 2002).

The parties do not dispute that the preliminary injunction Planned Parenthood obtained

qualifies as a decision on the merits bearing the necessary judicial imprimatur. The district court

first issued the injunction following a two-day evidentiary hearing and explicitly stated that an

injunction was appropriate because of the agency’s probable success on the merits. Furthermore,

on two occasions this court has upheld part of the injunction after reviewing the merits of

Planned Parenthood’s claims. Taft, 444 F.3d at 517–18; Strickland II, 331 F. App’x at 387–88.

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Thus, Planned Parenthood easily meets this court’s requirement, articulated in Dubuc, that a

preliminary injunction warrants an award of attorneys’ fees only if it “represents an

unambiguous indication of probable success on the merits.” 312 F.3d at 753 (citation and

internal quotation marks omitted). Additionally, Planned Parenthood’s claim is not based on a

“catalyst” theory, and thus it is not precluded from prevailing-party status under Buckhannon.

532 U.S. at 605.

Nevertheless, the state appeals the district court’s determination that Planned Parenthood

is a prevailing party on the grounds that Planned Parenthood’s preliminary injunction does not

meet the standard of “material alteration.” In Sole v. Wyner, the Supreme Court considered

whether a preliminary injunction could create the necessary “material alteration” when a final

adjudication on the merits “superseded” a prior preliminary injunction. 551 U.S. at 82–84.

There, the plaintiff first secured a preliminary injunction after a “hasty and abbreviated” hearing.

Id. at 84. The preliminary injunction “expired before appellate review could be gained” and had

“no preclusive effect in the continuing litigation.” Id. The district court ultimately refused to

grant a permanent injunction and rejected its own initial reasoning. Id. at 84–85. On review, the

Supreme Court characterized the preliminary injunction, which conditionally halted enforcement

of the challenged law for a single day, as “transient,” id. at 78, “fleeting,” id. at 83, “tentative,”

id. at 84, and “ephemeral.” Id. at 86. The Court found that the plaintiff had not achieved any

“enduring change in the legal relationship between herself and the state officials she sued,” id. at

86 (citation, internal quotation marks, and alterations omitted), and held that “[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,” id. at 83.

In contrast, the injunction that Planned Parenthood secured in this case precluded

enforcement of the statute in certain circumstances throughout almost 12 years of litigation, and

this court twice affirmed its appropriateness. Such relief hardly can be described as “transient,”

“fleeting,” or “ephemeral.” Furthermore, as opposed to the “tentative” relief in Sole, the

injunction here resulted from a careful and thorough review of the evidence and the merits of

Planned Parenthood’s health-or-life-exception claim. And, most importantly, Planned

Parenthood’s relief never expired and was not “reversed, dissolved, or otherwise undone by the

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final decision in the same case.” Sole, 551 U.S. at 83. The state contends that upon dismissal of

the case without prejudice, the preliminary injunction was revoked. But the court never issued a

formal order revoking or vacating the injunction. And although, as a matter of course, an

injunction may dissolve when a case becomes moot and the injunction is no longer necessary, at

least two of our sister circuits have held that vacatur at that juncture is not for “lack of

entitlement” and does not represent the kind of active, merits-based undoing the Supreme Court

referred to in Sole. See Watson v. Cty. of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002); see

also Kan. Judicial Watch v. Stout, 653 F.3d 1230, 1240 (10th Cir. 2011) (distinguishing between

vacatur on mootness grounds and vacatur as result of an adverse decision on the merits and

holding that “the fact that the preliminary injunction was vacated does not deprive [a party] of

their status as ‘prevailing parties’”). If it did, Sole would have considered whether a claimant is

entitled to attorneys’ fees when it secures a preliminary injunction but no final decision on the

merits. Instead, Sole explicitly left that issue open. 551 U.S. at 86.

We then considered that issue for the first time in McQueary, 614 F.3d at 599. There, the

district court denied attorneys’ fees to a plaintiff who challenged two provisions of a Kentucky

law and secured a preliminary injunction enjoining their enforcement, but did not receive a final

order because, before the case could proceed, the Kentucky legislature repealed the provisions,

thereby mooting the dispute. Id. at 596. Determining that a combination of Buckhannon, Sole,

and Dubuc did not “readily resolve[]” McQueary’s case, we set about to examine “other

considerations that might clarify the inquiry[.]” Id. at 598–99. We rejected a rule that would

always provide attorneys’ fees when a party attained court-ordered relief, because such an

approach would grant prevailing-party status even when orders “have nothing to do with success

on the merits.” Id. at 601. Such an outcome would contradict precedent from this court and the

Supreme Court. Id. Likewise, we rejected a “never” approach to preliminary injunctions absent

a final order, finding that a ban of that nature would exclude cases when, for instance, a claimant

clearly had prevailed because it “receive[d] everything it asked for in the lawsuit, and all that

moots the case is court-ordered success and the passage of time.” Id. at 599.

The state seizes upon this language to argue that Planned Parenthood cannot attain

prevailing-party status because it did not receive “everything it asked for” and because its

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preliminary injunction was mooted by FDA action rather than by the passage of time. But our

decision in McQueary did not announce a strict rule. The language the state points to was

merely an example, indicating that a per se ban would unjustly exclude certain deserving

claimants. 614 F.3d at 599. McQueary does not require a plaintiff to achieve such

comprehensive success in all instances in which cases are mooted prior to the issuance of a final

judicial order. That interpretation would contradict other language in McQueary and conflict

with prevailing-party case law from the Supreme Court and our sister circuits. 614 F.3d at 603

(“A plaintiff crosses the threshold to ‘prevailing party’ status by succeeding on a single claim,

even if he loses on several others[.]”); id. at 602 (“In considering whether a claimant directly

benefitted from litigation, we usually measure the plaintiff’s gain based on the relief requested in

his complaint, not based on the practical significance of the relief obtained. Even a single dollar

in nominal damages, the pinnacle of worthless relief, qualifies as a direct benefit.”) (citations

omitted). See also, e.g., Hensley, 461 U.S. at 427, 433 (granting prevailing-party status based on

success in one of three counts); Dearmore v. City of Garland, 519 F.3d 517 (5th Cir. 2008)

(holding that the plaintiff prevailed on basis of preliminary injunction issued pursuant to only

one of three original claims); Watson, 300 F.3d at 1094, 1096 (holding that plaintiff prevailed on

basis of preliminary injunction remedying one claim despite failing on all other claims).

Indeed, in McQueary the plaintiff did not obtain all the relief he requested, and his

dispute was mooted as a result of legislative action, not the passage of time. Had we intended to

announce a per se rule, we certainly could have resolved the dispute on the basis of that

articulation, but we did not. Instead, we remanded the case and explained that in circumstances

in which the combined application of Buckhannon, Sole, and Dubuc does not clearly dictate

whether a plaintiff is prevailing, the necessary inquiry is “contextual and case-specific,” and for

the district court’s consideration. 614 F.3d at 601, 604.

The state also argues that although Planned Parenthood succeeded on one claim, its

preliminary injunction was so narrow as to be “miniscule” and the relief “possibly zero.” Ohio

asks us to deny Planned Parenthood prevailing-party status because no evidence demonstrates

that any patients qualified for and made use of the exception provided by the preliminary

injunction. But the magnitude of a party’s obtained relief does not dictate the outcome of the

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prevailing-party inquiry, Binta B., 710 F.3d at 620, because the “practical significance of the

relief obtained[ ]” is not our typical measure of prevailing-party status. McQueary, 614 F.3d at

602. We instead look to the requested relief as the proper comparator. Id. Thus, even a nominal

damages award of one dollar qualifies a plaintiff as prevailing. Id. Under this generous

standard, a plaintiff prevails “even if [his] limited success does not grant him the ‘primary relief’

he sought.” Id. at 603 (citation omitted); see also Binta B., 710 F.3d at 615–16 (granting

plaintiffs prevailing-party status despite only “partially” succeeding); Watson, 300 F.3d at 1096.

Planned Parenthood brought four claims against the State of Ohio seeking both

preliminary and permanent injunctive relief, as well as declaratory relief. It succeeded on one of

these claims, the health-or-life-exception claim under the Fourteenth Amendment, and obtained

the injunctive relief it requested. Nothing in our case law requires Planned Parenthood to show

that patients relied upon the injunction. Moreover, relative to Planned Parenthood’s claim and

requested relief, its success was not so narrow as to be miniscule. That Planned Parenthood

simultaneously sought to enjoin the statute in full does not undermine the fact that the as-applied

injunction addressed the merits of that claim and established protection from state action. Cf.

McQueary, 614 F.3d at 604 (“[T]he injunction bars [the state] from prosecuting [plaintiffs] . . .

and thus alters the legal relationship between [the parties].”). Despite not having obtained the

“primary relief” it sought, Planned Parenthood’s success on this single claim, and the narrowed

preliminary relief it obtained as a result, suffices to render it a “prevailing party.” Id. at 603;

compare Thomas v. Nat’l Sci. Found., 330 F.3d 486, 493 (D.C. Cir. 2003) (denying prevailing-

party status when preliminary injunction did not provide any benefit to plaintiff and did not

provide any of the relief plaintiff originally sought).

The state also contends that Planned Parenthood attained no benefit in this case and that

the legal relationship between the parties did not change because the statute remains fully in

effect today. But, as the district court ruled, this line of reasoning ignores the fact that for almost

12 years the state was limited by judicial decree—its officers could not enforce the statute

against physicians who prescribed mifepristone in accordance with the evidence-based protocol

for patients whose health or life was threatened. The state argues that this is not enough because

the preliminary injunction does not have any continued effect or benefit, but that is only because

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the need for the injunction has passed. Before Planned Parenthood’s lawsuit, Ohio law

prohibited physicians from providing medically-induced abortion in accordance with the most

up-to-date research and highest standards of medical care. Now, Ohio law allows it.

Importantly, as the state repeatedly notes in its briefing, this effect did not come about due to any

voluntary change by the state. Compare Buckhannon, 532 U.S. at 605. Rather, FDA policy

shifted so that, although the letter of the statute remains the same, its effect has changed

significantly. Thus, the preliminary injunction altered the relationship between Planned

Parenthood and the state during the concrete period of time that the plaintiffs required the benefit

of that alteration.

Planned Parenthood “does not invoke the ‘catalyst’ theory; [it] did not ultimately lose on

the merits; the preliminary injunction . . . materially changed the relationship between the

parties; and the preliminary injunction turned at least in part on the district court’s assessment of

the merits.” McQueary, 614 F.3d at 598–99. Thus, just as in McQueary, the district court’s duty

here was to engage in a “contextual and case-specific inquiry.” Id. at 601, 604. It did just that

and determined that Planned Parenthood prevailed because it succeeded on a significant issue

such that it achieved some benefit, and because its success conferred a lasting change in the legal

relationship between the parties. We agree with the district court’s assessment.

Fee Reduction Relative to Degree of Success

The state next asks us to consider whether the district court erred in awarding Planned

Parenthood $382,529.98 in attorneys’ fees and costs without reducing the overall award relative

to Planned Parenthood’s degree of success. The state suggests that we should drastically reduce

that amount to reflect what the state contends was a “temporary and minimal” victory.

A fee is reasonable under § 1988 if it is “sufficient to induce a capable attorney to

undertake the representation of a meritorious civil rights case.” Perdue, 559 U.S. at 552. The

Supreme Court has found it especially important to provide attorneys’ fees to prevailing parties

where success may not result in a significant award of damages, thus limiting the availability of

access to effective counsel. City of Riverside v. Rivera, 477 U.S. 561, 576–77 (1986). On the

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other hand, a fee should not “produce windfalls to attorneys.” Blum v. Stenson, 465 U.S. 886,

897 (1984).

“There is no precise rule or formula” for establishing a proper fee for a prevailing party,

and the inquiry becomes particularly murky where a plaintiff succeeds on only a portion of its

claims. Hensley, 461 U.S. at 436. Given the district court’s firsthand knowledge of the litigation

and surrounding circumstances and the fact that the determination is largely a fact-intensive

analysis, we give the district court’s ruling substantial deference. See Riddle v. Egensperger, 266

F.3d 542, 547 (6th Cir. 2001). But, a district court’s discretion is not absolute; the court must

provide a “concise but clear explanation of its reasons for the fee award.” Binta B., 710 F.3d at

628 (quoting Hensley, 461 U.S. at 437). We reverse only in the event that we have a “definite

and firm conviction that the trial court committed a clear error of judgment.” Paschal v.

Flagstar Bank, 297 F.3d 431, 434 (6th Cir. 2002) (quoting Logan v. Dayton Hudson Corp.,

865 F.2d 789, 790 (6th Cir. 1989)).

Having determined that Planned Parenthood was entitled to attorneys’ fees, the district

court set to the task of assessing a “reasonable” award. See Cramblit v. Fikse, 33 F.3d 633, 635

(6th Cir. 1994) (per curiam). The district court’s first step was to decide upon the appropriate

lodestar, or “the number of hours reasonably expended on the litigation multiplied by a

reasonable hourly rate.” Rivera, 477 U.S. at 568 (citation omitted). Planned Parenthood’s

motion sought fees for 1,038.97 hours, which accounted for work done by six attorneys, a law

clerk, and a paralegal over the course of approximately 18 months.

The district court addressed the reasonableness of these hours, relying upon the 12 factors

laid out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir 1974), and

endorsed by Congress when it passed § 1988, by the Supreme Court in Blanchard v. Bergeron,

489 U.S. 87 (1989), and by this court in Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir.

2005).3 In particular, the district court found that the novel nature of the constitutional claim, the

3The factors identified in Johnson include: (1) the time and labor required; (2) the novelty and difficulty of

the questions; (3) the skill required to perform the legal service properly; (4) the preclusion of other employment due

to acceptance of the case by the attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time

limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the

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abbreviated time frame for a full hearing and briefing, as well as the labor and skill required by

the case all counseled toward finding Planned Parenthood’s hours reasonable. Moreover, the

district court determined that Planned Parenthood more than appropriately accounted for any

potential duplication of effort by conceding a ten-percent reduction of fees in its request.

The state does not take explicit issue with the district court’s ruling regarding the

appropriateness of the hours. However, it contends that the district court erred by not reducing

the overall award because Planned Parenthood failed in all but one of its claims and received

only some of the relief it initially sought. Though the Supreme Court has stated that the degree

of success is a “critical factor” in determining a fee award, the Court has not mandated that

district courts apply a fee reduction in cases where a plaintiff achieves only partial success.

Hensley, 461 U.S. at 436. Hensley identified two potential options for district courts determining

an award following a partial success, saying that a district court “may attempt to identify specific

hours that should be eliminated, or it may simply reduce the award to account for the limited

success.” Id. However, Hensley’s only mandate is that district courts consider the relationship

between a plaintiff’s success and their award and provide an explanation of its reasoning.

The district court here explained that “the proportional reduction urged by Defendants

already is embedded in [Planned Parenthood’s] fee request, which includes only fees through the

prosecution of the preliminary injunction—through the first appeal (Taft [])—and the

prosecution of the present Motion.” During this period, Planned Parenthood’s efforts focused

predominantly on their successful litigation to obtain injunctive relief based on their health-and-

life-exception claim, and on defending that injunction. The state contends that Planned

Parenthood’s award should have been reduced relative to their success within this time period.

Under this theory, the state suggests that Planned Parenthood should receive only “nominal” fees

for these efforts because Taft narrowed the scope of the injunction, was “undeniably a setback,”

and represented a loss.

experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length

of the professional relationship between the attorney and the client; and (12) awards in similar cases. 488 F.2d at

717–19.

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Tellingly, the state cites no precedent in support of this theory. It points to one

unpublished case: D.L.S., Inc. v. City of Chattanooga, 149 F.3d 1182 (6th Cir. 1998) (Table)

(per curiam). But unpublished opinions do not bind this court. Graiser v. Visionworks of Am.,

Inc., 819 F.3d 277, 283 (6th Cir. 2016). Moreover, to the extent D.L.S. is at all persuasive here,

it merely offers further confirmation that this court should defer to the district court’s assessment

of the appropriate fee award. The district court in D.L.S. refused to grant the prevailing

plaintiff’s fee request in full because the plaintiff failed to distinguish between its work on claims

it won and its work on failing claims. The district court then, in its discretion, determined the

appropriate relief relative to the plaintiff’s success.

Here, Planned Parenthood limited the time period for which it requested fees, and in

doing so accounted for and divided out work done on the claim on which it prevailed—the

health-and-life-exception claim—and distinguished it from the hours counsel expended on the

remaining unsuccessful claims. To the extent that the state’s arguments can be understood to

suggest that Planned Parenthood should have divided out and limited its hours further because,

during this time, Planned Parenthood also expended work hours on its other claims, they are

mistaken. Such division and further reduction is unnecessary because the successful and

unsuccessful claims arose from a “common core of facts.” Hensley, 461 U.S. at 435. Although

it cannot recoup its fees and expenses for the entirety of the litigation, Planned Parenthood can

recover for some work “devoted generally to the litigation as a whole.” Id.

Furthermore, the district court found that Planned Parenthood “embedded” in their fee

request an appropriate reduction relative to its success by requesting fees only for work done

through February 24, 2006, the date this court issued its initial decision in Taft, and prior to the

subsequent amendment. Planned Parenthood originally requested $475,886.77, following the

district court’s order enjoining the Act in full. Their renewed motion reduced that request,

however, eliminating hours worked from March 2006 through November 2006. Additionally,

Planned Parenthood did not seek fees for the work it did in arguing the appropriate scope of the

injunction on remand, or the hours expended in briefing related to the injunction in front of this

court for arguments in Strickland II, 331 F. App’x. at 387. The district court’s award of

$382,529.98, then, effectively applied a 20 percent reduction from Planned Parenthood’s initial

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request—in addition to denying fees for all work done in maintaining the partial preliminary

injunction for the next decade.

We have found abuse of discretion when a court reduced a fee award but did not explain

its reasoning for the selected proportion of the reduction. See, e.g., Binta B., 710 F.3d at 639–40

(finding court’s “brief characterization” of complex consent decree insufficient to explain 20%

reduction rather than other potential reduction proportions). Here, the court not only engaged in

an in-depth description of Planned Parenthood’s success—in deciding the prevailing-party

question and again in its fees analysis—but also explained why that success warranted no further

fee reduction. It considered the scope of Planned Parenthood’s success, explaining that “the

Court cannot conclude that the relief granted was limited in comparison to the scope of the

litigation as a whole . . . . [Planned Parenthood] was successful in convincing the Court to enjoin

enforcement of the Act to the extent that its application was unconstitutional.” (internal quotation

marks omitted). It further considered the fee reasonable in light of both that success and the 12

Johnson factors. Finally, the district court provided justification for its decision. There is no

evidence that its reasoning suffered from a “clear error of judgment.” Paschal, 297 F.3d at 434.

Thus, the district court did not abuse its discretion in choosing not to implement a blanket

reduction to the fee award.

Reasonable Rate for Hours Worked

The state’s final issue on appeal addresses the rate Planned Parenthood relied on to

calculate the lodestar and that the district court approved. The state contends that the district

court abused its discretion in applying 2016 rates for work completed between 2004 and 2006.

“[T]he district court has the discretion to choose either current or historical rates so long

as it explains how the decision comports with the ultimate goals of awarding reasonable fees.”

Gonter v. Hunt Valve Co., Inc., 510 F.3d 610, 617 (6th Cir. 2007). It is true, as the state points

out, that we have not mandated the application of current rates, nor do we necessarily prefer

current rates over historic ones. Id. It also is true, however, as we expressed in Gonter, that “the

application of current rates [i]s within the contemplation of the fee statute.” Id. (citation and

internal quotation marks omitted). The critical question, then, is whether the district court

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provided sufficient justification for its decision to apply 2016 rates to Planned Parenthood’s

work and whether, in doing so, it considered the underlying goals of awarding reasonable fees.

Id. at 617.

The district court relied on the Supreme Court’s decisions in Hensley and in Missouri v.

Jenkins, 491 U.S. 274 (1989), to guide its determination about the reasonableness of Planned

Parenthood’s requested rates. It found that this caselaw supported an adjustment to current rates

to account for the delay in payment. Moreover, the district court noted that caselaw

acknowledges that this sort of adjustment comports with the underlying purposes of § 1988. Id.

The district court accounted for the “significant delay” in payment between 2006 and 2016,

compared to the two-year delay in Gonter. There, in considering work done between 2001 and

2003, we approved the district court’s award of a fee adjustment to 2004 rates. The district court

in this case considered the decision in Gonter and found that, for Planned Parenthood, “an

adjustment from 2006 rates to 2016 rates [is] eminently reasonable[.]”

Second, the district court compared the requested rates with those suggested by the rubric

laid out by a 1983 committee of attorneys convened by Judge Carl Rubin, which determined

reasonable fee rates for Cincinnati attorneys. The district court found that the 2016 rates Planned

Parenthood requested were “consistent with, even slightly lower than” the recommended rates.

Taking into account the goals of § 1988, the Supreme Court’s admonishment that rates should

not be reduced simply because “the rights involved may be nonpecuniary in nature,” Hensley,

461 U.S. at 447, and the Johnson factors, the district court’s decision to award fees based on

2016 rates more than meets the standard of a “concise but clear” explanation of the court’s

reasoning. Id. at 437. The state thus has failed to make a showing that the district court

committed clear error in its application of the law.

CONCLUSION

The district court correctly ruled that Planned Parenthood “prevailed” in this litigation

and sufficiently explained its rationale for applying 2016 rates and refusing to apply a blanket

reduction to the fee award. The provisions in 42 U.S.C. § 1988 aim to ensure the availability of

competent and effective counsel for the enforcement of civil rights and thus allow for reasonable

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fees to prevailing parties. Preliminary relief that provides a lasting benefit to a party based on

the substantive merits of at least one of that party’s claims suffices to meet the generous standard

used to determine prevailing-party status. Planned Parenthood’s more-than-decade-long

preliminary injunction qualifies as such a lasting benefit. The district court appropriately

explained its reasoning for its decision regarding the final fee award and did not abuse its

discretion in granting that award.

We AFFIRM the judgment of the district court.