Kealii Makekau v. State of Hawaii

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEALII MAKEKAU; JOSEPH KENT; No. 17-16360

YOSHIMASA SEAN MITSUI; PEDRO

KANA‘E GAPERO; MELISSA D.C. No.

LEINA‘ALA MONIZ, 1:15-cv-00322-

Plaintiffs-Appellants, JMS-RLP

v.

OPINION

STATE OF HAWAII; DAVID Y. IGE,

Governor; ROBERT K. LINDSEY, JR.,

Chairperson, Board of Trustees,

Office of Hawaiian Affairs, in his

official capacity; COLETTE Y.

MACHADO; PETER APO; HAUNANI

APOLIONA; ROWENA M.N. AKANA;

JOHN D. WAIHE‘E IV; CARMEN

HULU LINDSEY; DAN AHUNA;

LEINA‘ALA AHU ISA, Trustees,

Office of Hawaiian Affairs, in their

official capacities; KAMANA‘OPONO

CRABBE, Chief Executive Officer,

Office of Hawaiian Affairs, in his

official capacity; JOHN D. WAIHE‘E

III, Chairman, Native Hawaiian Roll

Commission, in his official capacity;

NA‘ALEHU ANTHONY; LEI KIHOI;

ROBIN DANNER; MAHEALANI

WENDT, Commissioners, Native

Hawaiian Roll Commission, in their

2 MAKEKAU V. STATE OF HAWAI‘I

official capacities; CLYDE W.

NAMU‘O, Executive Director, Native

Hawaiian Roll Commission, in his

official capacity; THE AKAMAI

FOUNDATION; THE NA‘I AUPUNI

FOUNDATION,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Hawaii

J. Michael Seabright, Chief District Judge, Presiding

Argued and Submitted October 21, 2019

Honolulu, Hawaii

Filed November 26, 2019

Before: Susan P. Graber, Milan D. Smith, Jr.,

and Paul J. Watford, Circuit Judges.

Opinion by Judge Graber;

Concurrence by Judge Milan D. Smith, Jr.

MAKEKAU V. STATE OF HAWAI‘I 3

SUMMARY*

Attorney Fees

Affirming the district court’s denial of attorney fees under

42 U.S.C. § 1988, the panel rejected Appellants’ assertion

that they were the prevailing parties because the Supreme

Court had entered, under the All Writs Act, an injunction

pending appeal in their civil rights action.

In the underlying action, Appellants challenged a planned

election in Hawaii that restricted the pools of delegates and

voters to, among other requirements, people who qualified as

Native Hawaiians. Appellants sought a preliminary

injunction to prevent Appellees from “undertaking certain

voter registration activities and from calling or holding

racially-exclusive elections for Native Hawaiians.” The

district court denied the injunction and this Court denied

Appellants’ motion for an injunction pending appeal. The

United States Supreme Court subsequently granted

Appellants’ application for an injunction pending appeal

under the All Writs Act and Appellees cancelled the delegate

election and ratification vote. Appellants’ pending appeal in

this Court was subsequently determined to be moot, and the

district court granted Appellants’ motion to voluntarily

dismiss their complaint without prejudice. Appellants then

sought attorney fees under 42 U.S.C. § 1988, arguing that

they were the “prevailing party” because they obtained an

injunction from the Supreme Court that caused Appellees to

cancel the challenged election and referendum.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 MAKEKAU V. STATE OF HAWAI‘I

The panel held that a plaintiff who obtains a preliminary

injunction under the All Writs Act, 28 U.S.C. § 1651(a), does

not qualify as a “prevailing party” for fee-shifting purposes

by virtue of that injunction, where the order granting

injunctive relief makes no mention of the merits of the

plaintiff’s claims. The panel concluded that in this case there

was simply no indication that the Supreme Court’s injunction

order addressed the merits. Moreover, the panel noted that

Appellants sought (and received) a voluntary dismissal

without prejudice in the district court—the opposite of an

adjudication on the merits. The panel concluded that

Appellants were not the prevailing parties.

Concurring in the result, Judge M. Smith wrote separately

to express his view that the key legal issues in this case were

close to equipoise. Judge Smith stated that were it not for the

uncertainty surrounding the standard under which the

Supreme Court grants injunctions under the All Writs Act, he

would hold that Appellants were the prevailing parties and

entitled to attorney fees.

COUNSEL

Robert D. Popper (argued), Paul J. Orfanedes, Lauren M.

Burke, and Chris Fedeli, Judicial Watch Inc., Washington,

D.C.; Michael A. Lilly, Ning Lilly & Jones, Honolulu,

Hawai‘i; H. Christopher Coates, Law Offices of

H. Christopher Coates, Charleston, South Carolina; for

Plaintiffs-Appellants.

Robert T. Nakatsuji (argued) and Donna H. Kalama, Deputy

Attorneys General; Russell A. Suzuki, Attorney General;

MAKEKAU V. STATE OF HAWAI‘I 5

Department of the Attorney General, Honolulu, Hawai‘i; for

Defendants-Appellees State of Hawaii and David Y. Ige.

Kurt W. Klein (argued), Robert G. Klein, and Jordan K.

Inafuku, McCorriston Miller Mukai MacKinnon LLP,

Honolulu, Hawai‘i; Kannon K. Shanmugam and Ellen E.

Oberwetter, Williams & Connolly LLP, Washington, D.C.;

for Defendants-Appellees Robert K. Lindsey Jr., Colette Y.

Machado, Peter Apo, Haunani Apoliona, Rowena M.N.

Akana, John D. Waihe‘e IV, Carmen Hulu Lindsey, Dan

Ahuna, Leina‘ala Ahu Isa, Kamana‘opono Crabbe, John D.

Waihe‘e III, Na‘alehu Anthony, Lei Kihoi, Robin Danner,

Mahealani Wendt, and Clyde W. Namu‘o.

Miyoko T. Pettit-Toledo (argued) and David J. Minkin,

McCorriston Miller Mukai MacKinnon LLP, Honolulu,

Hawai‘i, for Defendant-Appellee Na‘i Aupuni Foundation.

William Meheula and Natasha L.N. Baldauf, Honolulu,

Hawai‘i, for Defendant-Appellee The Akamai Foundation.

OPINION

GRABER, Circuit Judge:

We must decide whether a plaintiff who obtains a

preliminary injunction under the All Writs Act, 28 U.S.C.

§ 1651(a), qualifies as a “prevailing party” for fee-shifting

purposes by virtue of that injunction, where the order granting

injunctive relief makes no mention of the merits of the

plaintiff’s claims. We hold that the answer is “no.”

6 MAKEKAU V. STATE OF HAWAI‘I

BACKGROUND

In 2011, the Hawaii legislature enacted measures

designed “to provide for and to implement the recognition of

the Native Hawaiian people by means and methods” that

would help Native Hawaiians move toward “self-

governance.” Haw. Rev. Stat. § 10H-2. Those measures

included establishing a commission to maintain and publish

“a roll of qualified Native Hawaiians,” thereby “facilitat[ing]

the process under which qualified Native Hawaiians may

independently commence the organization of a convention of

qualified Native Hawaiians, established for the purpose of

organizing themselves.” Id. §§ 10H-3(a)(1), 10H-5.

Defendant Na‘i Aupuni, a private nonprofit entity,

supported self-governance efforts. Akina v. Hawaii, 835 F.3d

1003, 1008 (9th Cir. 2016) (per curiam) (“Akina I”). In 2015,

Na‘i Aupuni sought and received grant funding from

Defendant Office of Hawaiian Affairs (“OHA”), a state

agency, to use for three events: a delegate election, a

constitutional convention of the elected delegates, and a

referendum to ratify any governing documents produced at

the convention. Id. Na‘i Aupuni scheduled a vote-by-mail

delegate election to run during November 2015. Id. Na‘i

Aupuni restricted the pools of delegates and voters to people

who appeared on the commission’s roll of qualified Native

Hawaiians and who also affirmed “the unrelinquished

sovereignty of the Native Hawaiian people.”

In August 2015, Plaintiffs—five registered Hawaii

voters—sued the State of Hawaii, OHA, other state agencies

and officials, Na‘i Aupuni, and another private nonprofit that

participated in the election efforts. Id. Plaintiffs alleged that

Na‘i Aupuni and the other nonprofit entity became state

MAKEKAU V. STATE OF HAWAI‘I 7

actors by conducting the elections and that the State’s

involvement in the self-governance process violated the

Fourteenth and Fifteenth Amendments and the Voting Rights

Act of 1965 because of the race-based restrictions on

eligibility. Plaintiffs moved for a preliminary injunction to

prevent Defendants “from undertaking certain voter

registration activities and from calling or holding racially-

exclusive elections for Native Hawaiians.”

The district court denied Plaintiffs’ motion in October

2015. Voting for the delegate election began on November 1.

On November 19, we denied Plaintiffs’ urgent motion for an

injunction pending appeal. Four days later, Plaintiffs, relying

on the All Writs Act, filed an emergency application for an

injunction pending appeal in the Supreme Court. On

November 27, Justice Kennedy enjoined ballot-counting in

the delegate election.

After Justice Kennedy’s order issued, Na‘i Aupuni

extended the voting deadline to December 21, 2015.

Plaintiffs notified the Supreme Court of the extension. On

December 2, the Supreme Court granted Plaintiffs’

emergency application. In full, the order stated:

Application for injunction pending

appellate review presented to Justice Kennedy

and by him referred to the Court granted.

Respondents are enjoined from counting

ballots cast in, and certifying winners of, the

election described in the application, pending

final disposition of the appeal by the United

States Court of Appeals for the Ninth Circuit.

8 MAKEKAU V. STATE OF HAWAI‘I

Justice Ginsburg, Justice Breyer, Justice

Sotomayor, and Justice Kagan would deny the

application.

Akina v. Hawaii, 136 S. Ct. 581, 581 (2015) (Mem.)

(“injunction order”).

In mid-December, Na‘i Aupuni announced that it had

“terminated” the delegate election and would not count the

votes, but would continue the self-governance process by

inviting all delegates to the constitutional convention planned

for February 2016. Plaintiffs filed a motion for civil

contempt, arguing that Defendants had violated the Supreme

Court’s injunction order by certifying all delegates as winners

of the election. The Supreme Court summarily denied that

motion. Akina v. Hawaii, 136 S. Ct. 922 (2016) (Mem.).

The convention took place in February 2016 and

produced a proposed constitution. Akina I, 835 F.3d at 1009.

But Na‘i Aupuni decided not to hold a ratification vote. Na‘i

Aupuni returned OHA’s remaining grant funds, which had

been allocated to cover the cost of a ratification vote. Na‘i

Aupuni dissolved as an entity in April 2016.

Several months later, we dismissed as moot Plaintiffs’

appeal of the district court’s denial of their preliminary

injunction. Id. at 1011. The district court then granted

Plaintiffs’ motion to dismiss their complaint voluntarily and

without prejudice under Federal Rule of Civil Procedure

41(a)(2). Plaintiffs subsequently sought attorney fees under

42 U.S.C. § 1988, arguing that they were the “prevailing

party” because they obtained an injunction from the Supreme

Court that caused Defendants to cancel the challenged

election and referendum. The district court denied Plaintiffs’

MAKEKAU V. STATE OF HAWAI‘I 9

motion, holding that Plaintiffs were not a “prevailing party”

within the meaning of the statute.

DISCUSSION

We review de novo a district court’s denial of attorney

fees where, as here, the denial “turns on an issue of statutory

construction—the meaning of ‘prevailing party.’” Higher

Taste, Inc. v. City of Tacoma, 717 F.3d 712, 715 (9th Cir.

2013). To qualify as a “prevailing party” under a fee-shifting

statute, a plaintiff must obtain “actual relief on the merits”

that “materially alters the legal relationship between the

parties by modifying the defendant’s behavior in a way that

directly benefits the plaintiff.” Id. (quoting Farrar v. Hobby,

506 U.S. 103, 111–12 (1992)). Relief “on the merits”

requires some form of “judicial imprimatur on the change.”

Id. (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va.

Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001)).

Accordingly, two questions drive the analysis in

determining whether a plaintiff “who wins a preliminary

injunction but does not litigate the case to final judgment” is

a prevailing party: (1) whether the preliminary injunction

was “sufficiently ‘on the merits’ to satisfy Buckhannon’s

‘judicial imprimatur’ requirement”; and (2) whether the

plaintiff “obtained relief sufficiently enduring” to cause a

material alteration of the parties’ legal relationship. Id.

at 715–16. Because we conclude that the injunction order did

not address the merits of Plaintiffs’ claims, we answer only

the first question.

Under the All Writs Act, a court may issue an injunction

only where it is “necessary or appropriate in aid” of the

court’s jurisdiction, 28 U.S.C. § 1651(a), and “the legal rights

10 MAKEKAU V. STATE OF HAWAI‘I

at issue are indisputably clear,” Hobby Lobby Stores, Inc. v.

Sebelius, 568 U.S. 1401, 1403 (2012) (Sotomayor, J., in

chambers) (internal quotation marks omitted). Plaintiffs

contend that the Supreme Court always must consider the

merits when deciding whether to issue an injunction under the

All Writs Act, whether the Court grants or denies relief. Not

so. In several prior cases, the Supreme Court has expressly

disavowed any view of the merits when addressing a party’s

request for an All Writs Act injunction. See, e.g., Wheaton

College v. Burwell, 134 S. Ct. 2806, 2807 (2014) (granting

relief and stating that “this order should not be construed as

an expression of the Court’s views on the merits”); Little

Sisters of the Poor Home for the Aged v. Sebelius, 134 S. Ct.

1022, 1022 (2014) (Mem.) (same); Hobby Lobby, 568 U.S.

at 1403 (denying relief and stating: “First, whatever the

ultimate merits of the applicants’ claims, their entitlement to

relief is not ‘indisputably clear.’” (emphasis added)).

At oral argument, Plaintiffs relied on Dunn v. McNabb,

138 S. Ct. 369 (2017) (Mem.), for the proposition that the All

Writs Act requires a court to consider the merits before

granting relief. There, the Supreme Court held that the All

Writs Act “does not excuse a court from making [certain]

findings” before enjoining an inmate’s execution, because

“[i]nmates seeking time to challenge the manner in which the

State plans to execute them must satisfy all of the

requirements for a stay, including a showing of a significant

possibility of success on the merits.” Id. at 369 (internal

quotation marks omitted). Read in context, Dunn stands only

for the unremarkable proposition that the All Writs Act does

not erase separate legal requirements for a given type of

claim.

MAKEKAU V. STATE OF HAWAI‘I 11

Inmates seeking a stay of execution always must show “a

significant possibility of success on the merits.” Hill v.

McDonough, 547 U.S. 573, 584 (2006). But that requirement

of a merits showing has nothing to do with the All Writs Act;

it applies no matter the vehicle for an inmate’s claim. See,

e.g., id. (addressing a 42 U.S.C. § 1983 claim for a stay of

execution and stating that the inmate “must satisfy all of the

requirements for a stay, including a showing of a significant

possibility of success on the merits”); Barefoot v. Estelle,

463 U.S. 880, 895 (1983) (stating that, to obtain a stay of

execution, a habeas petitioner needed to show both “a

reasonable probability that four members of the Court would

consider the underlying issue sufficiently meritorious for the

grant of certiorari” and “a significant possibility of reversal

of the lower court’s decision”). This case does not involve an

inmate seeking a stay of execution (or any party seeking a

stay of anything), so Dunn cannot bear the weight that

Plaintiffs ask it to carry.

Moreover, in “appropriate circumstances,” a court may

direct an order under the All Writs Act “to persons who,

though not parties to the original action or engaged in

wrongdoing, are in a position to frustrate the implementation

of a court order or the proper administration of justice.”

United States v. N.Y. Tel. Co., 434 U.S. 159, 174 (1977).

Plainly, an order directed to a nonparty who engaged in no

wrongdoing would stem from considerations separate from

the merits of a case.

Thus, contrary to Plaintiffs’ view, the mere fact that the

injunction order issued under the All Writs Act does not

prove that the Supreme Court found Plaintiffs’ claims to be

even potentially meritorious. There is simply no indication

that the injunction order addressed the merits. Aside from the

12 MAKEKAU V. STATE OF HAWAI‘I

brevity of the order, the Supreme Court later denied

Plaintiffs’ contempt motion in a one-sentence order, which

strongly suggests that the injunction order was not on the

merits. And Plaintiffs sought (and received) a voluntary

dismissal without prejudice in the district court—“the

opposite” of an adjudication on the merits. See Semtek Int’l

Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001)

(stating that Rule 41(a), “in discussing the effect of voluntary

dismissal by the plaintiff, makes clear that an ‘adjudication

upon the merits’ is the opposite of a ‘dismissal without

prejudice’”). In short, Plaintiffs are not prevailing parties.

AFFIRMED.

M. SMITH, Circuit Judge, concurring in the result:

I write separately to express my view that the key legal

issues in this case are close to equipoise. I differ from the

majority because I find that the “on the merits” analysis only

narrowly disfavors Appellants. I would find that the

“sufficiently enduring relief” analysis favors Appellants.

I briefly recount the most essential facts. Appellants, five

registered Hawaii voters, sued the State of Hawaii, various

state officers including the trustees and director of the Office

of Hawaiian Affairs (OHA), and the nonprofit entities Na‘i

Aupuni and the Akamai Foundation, on constitutional and

statutory grounds alleging race- and viewpoint-based voting

discrimination. The Akina lawsuit challenged efforts by Na‘i

Aupuni—using grant funds awarded by, and a voter roll of

“qualified Native Hawaiians” maintained by, OHA—to hold

MAKEKAU V. STATE OF HAWAI‘I 13

a delegate election, a convention, and a ratification election

for purposes of Native Hawaiian self-governance.

Appellants unsuccessfully sought a preliminary injunction

from the district court, and then an injunction pending

interlocutory appeal from our court, which denied the

injunctions under Winter v. NRDC, 555 U.S. 7 (2008),1

primarily for failure to show likelihood of proving that Na‘i

Aupuni was a state actor. Akina v. Hawaii, 141 F. Supp. 3d

1106, 1125–35 (D. Haw. 2015); Akina v. Hawaii, 835 F.3d

1003, 1009 (9th Cir. 2016). As a result, voting in the delegate

election began as scheduled.

Plaintiffs then applied to Justice Kennedy for an

emergency interlocutory injunction. With a few days of

voting remaining, Justice Kennedy enjoined ballot counting

and certification of winners pending further order of the

Court, offering no explanation for his reasoning. Id. Na‘i

Aupuni publicly announced the injunction and officially

extended the voting deadline. On referral, a divided Supreme

Court re-entered the same injunction pending resolution of

the appeal to our court, again offering no explanation. Akina

v. Hawaii, 136 S. Ct. 581 (2015) (mem.). Shortly thereafter,

Na‘i Aupuni cancelled the delegate election with several days

of voting remaining, declared that the ballots would not be

counted, and invited all of the delegate candidates to a

convention. Appellants filed a motion for civil contempt with

the Supreme Court, arguing that Na‘i Aupuni’s invitation was

tantamount to certifying all of the candidates as winners. The

1

Winter considers (1) the plaintiff’s likelihood of prevailing on the

merits, (2) whether the plaintiff will suffer irreparable harm, (3) the

balance of equities amongst the parties, and (4) the public interest.

555 U.S. at 20–22.

14 MAKEKAU V. STATE OF HAWAI‘I

Court summarily denied the motion. Akina v. Hawaii, 136 S.

Ct. 922 (2016) (mem.). Na‘i Aupuni held the convention and

the participants produced a document.

Na‘i Aupuni then initiated efforts to hold a ratification

election, again using the disputed voter roll. Appellants

submitted briefing to our court citing the upcoming

ratification election as evidence that the appeal was not moot.

Before we issued any decision, Na‘i Aupuni canceled the

ratification election, and thereafter dissolved as an entity.

This court dismissed the appeal as moot. Akina, 835 F.3d

at 1010–11.

Appellants voluntarily dismissed their complaint without

prejudice and moved for attorney’s fees as the “prevailing

party” in a civil rights lawsuit. The district court denied the

motion, concluding that the writ Appellants obtained was

merely a status quo injunction driven by considerations

regarding irreparable harm, and that it was not based on—as

required for prevailing party status—the merits of Appellants’

claims. This appeal followed.

I. On the Merits

In certain civil rights actions, “the court, in its discretion,

may allow the prevailing party . . . a reasonable attorney’s fee

as part of the costs.” 42 U.S.C. § 1988. To determine

whether a preliminary injunction without a final judgment

entitles a plaintiff to prevailing party status, we ask two

questions: “First, is the court’s preliminary injunction ruling

sufficiently ‘on the merits’ to satisfy Buckhannon’s ‘judicial

imprimatur’ requirement? And second, has the plaintiff

obtained relief sufficiently enduring to satisfy the ‘material

alteration of the parties’ legal relationship’ requirement?”

MAKEKAU V. STATE OF HAWAI‘I 15

Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 716 (9th

Cir. 2013) (quoting Buckhannon Bd. & Care Home, Inc. v. W.

Va. Dep’t of Health & Human Res., 532 U.S. 598, 605

(2001)).

I begin with the first question. “Judicial imprimatur” can

take the form of “an enforceable judgment on the merits,” “a

court-ordered consent decree,” or “[o]ther court-approved

actions . . . , provided they entail a judicial determination that

the claims on which the plaintiff obtains relief are potentially

meritorious.” Id. at 715 (emphasis added); see also Jensen v.

City of San Jose, 806 F.2d 899, 900 (9th Cir. 1986) (“[T]he

benefit a party achieves must come from success on the

merits of a civil rights claim, not from success on procedural

or collateral issues.”).

The judicial determinations on which Appellants stake

their claim for attorney’s fees are the injunctions entered by

Justice Kennedy and subsequently by the full Supreme Court

pursuant to the All Writs Act, 28 U.S.C. § 1651(a).

Appellants’ claim narrowly fails because there is a reasonable

argument that those injunctions did not involve a judicial

determination that Appellants’ claims were “potentially

meritorious.” Higher Taste, 717 F.3d at 715. Fundamentally,

it is unresolved whether such writs require an assessment of

the merits.

A. Writs of Interlocutory Injunction

The All Writs Act authorizes federal courts to “issue all

writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of

16 MAKEKAU V. STATE OF HAWAI‘I

law.” 28 U.S.C. § 1651(a).2 Relevant to this case is the

§ 1651(a) writ for an interlocutory injunction.

The first Supreme Court precedent recognizing the power

of the federal courts to issue § 1651(a) writs “in the form of

compulsory injunctions aimed at private parties” seems to

have been FTC v. Dean Foods Co., 384 U.S. 597, 605 & n.3

(1966) (upholding writ enjoining consummation of merger

pending final review by FTC). The Court justified an

appellate court’s writ in that case based on a threat to the

court’s jurisdiction, and notably did not discuss the

underlying merits or any other factor typically relevant to

preliminary injunctions. See id. at 605.3

By contrast, in Sampson v. Murray, 415 U.S. 61 (1974),

the Court readily assumed that the four preliminary injunction

factors apply to status quo injunctions granted under the All

Writs Act, and held that a heightened version of those factors

should have applied in the context at hand. See id. at 83–84

& n.53 (recognizing the law governing available relief in the

2

This authorization survives nearly unchanged from the Judiciary Act

of 1789. See Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73, 81–82. For

greater historical detail pertaining to the discussion that follows, through

note 4, see Samuel I. Ferenc, Note, Clear Rights and Worthy Claimants:

Judicial Intervention in Administrative Action Under the All Writs Act,

118 Colum. L. Rev. 127, 136–62 (2018).

3

This omission cannot be explained away as simply pre-dating the

Court’s 2008 articulation of the four factors in Winter. As early as Ex

Parte Young, the Court recognized that “no [preliminary] injunction ought

to be granted unless in a case reasonably free from doubt,” and

acknowledged that the injunction at hand was justified by “great and

irreparable injury” to the complainants. 209 U.S. 123, 166–67 (1908).

See generally Thomas R. Lee, Preliminary Injunctions and the Status

Quo, 58. Wash. & Lee L. Rev. 109 (2001).

MAKEKAU V. STATE OF HAWAI‘I 17

federal employment dispute context). However, the Court

specifically held that frustration of the court’s jurisdiction

was not at stake as it was in Dean Foods. Id. at 78–80.

Murray did not clarify whether an injunction that is justified

by jurisdictional threats might also need to satisfy the

traditional injunction factors, if not the heightened version the

Court ultimately applied in that case.4

Around the same time as Murray, the Justices of the

Supreme Court began developing a terse body of case law

applying a unique “indisputably clear” standard to § 1651(a)

interlocutory injunction applications addressed to individual

Justices. See Communist Party of Ind. v. Whitcomb, 409 U.S.

1235, 1235 (1972) (Rehnquist, J., in chambers) (“the

applicants’ right to relief must be indisputably clear”) (citing

no authority). Justice Scalia placed this standard in the

context of other authority in Ohio Citizens for Responsible

Energy, Inc. v. Nuclear Regulatory Commission, 479 U.S.

1312 (1986) (Scalia, J., in chambers):

A Circuit Justice’s issuance of [a § 1651(a)

writ of injunction]—which, unlike a . . . stay,

4

Different circuits have supplied different answers to this question at

different times. See, e.g., United States v. BNS Inc., 848 F.2d 945, 947

(9th Cir. 1988) (requiring both jurisdictional threat and irreparable harm);

Wagner v. Taylor, 836 F.2d 566, 571, 575–76 (D.C. Cir. 1987) (requiring

both jurisdictional threat and all four preliminary injunction factors);

V.N.A. of Greater Tift County Inc. v. Heckler, 711 F.2d 1020, 1030 (11th

Cir. 1983) (requiring both jurisdictional threat and a heightened showing

on all four preliminary injunction factors); Klay v. United Healthgroup,

376 F.3d 1092, 1100, 1101–02 n.13 (11th Cir. 2004) (asserting that

jurisdictionally justified writs require no analysis of the preliminary

injunction factors, unless the writ is “in reality” a preliminary injunction),

called into doubt by Alabama v. U.S. Army Corps of Engineers, 424 F.3d

1117, 1131 n.20 (11th Cir. 2005).

18 MAKEKAU V. STATE OF HAWAI‘I

does not simply suspend judicial alteration of

the status quo but grants judicial intervention

that has been withheld by lower

courts—demands a significantly higher

justification than that described in the . . . stay

cases cited by the applicant. The Circuit

Justice’s injunctive power is to be used

“sparingly and only in the most critical and

exigent circumstances,” and only where the

legal rights at issue are “indisputably clear.”

Moreover, the applicant must demonstrate

that the injunctive relief is “necessary or

appropriate in aid of [the Court’s]

jurisdictio[n].”

Id. at 1313 (emphasis added) (citations omitted) (first quoting

Fishman v. Schaffer, 429 U.S. 1325, 1326 (1976) (Marshall,

J., in chambers), second quoting Communist Party, 409 U.S.

at 1235, third quoting 28 U.S.C. § 1651(a)).

Though many individual Justice opinions have denied

§ 1651(a) interlocutory injunctions based on the “indisputably

clear” standard,5 most relevant to the case at hand are the few

5

See, e.g., Brown v. Gilmore, 533 U.S. 1301, 1303–04 (2001)

(Rehnquist, C.J., in chambers) (denying the writ because it was unclear

whether Virginia’s “minute of silence” statute had enough of a secular

purpose to distinguish it from an Alabama statute previously invalidated

as mandating school prayer) (citing Wallace v. Jaffree, 472 U.S. 38, 56

(1985)); Lux v. Rodrigues, 561 U.S. 1306, 1307 (2010) (Roberts, C.J., in

chambers) (denying the writ because it was unclear whether Virginia’s

residency requirement for a petition signature’s witness was

distinguishable from Colorado petition circulation restrictions previously

invalidated as violating free speech rights) (citing Meyer v. Grant,

486 U.S. 414, 422 (1988); Buckley v. Am. Const. L. Found., Inc., 525 U.S.

MAKEKAU V. STATE OF HAWAI‘I 19

and far between cases in which a Justice or the Court has

actually granted the writ. No such case, as far as I could find,

has ever applied the “indisputably clear” standard.

The most recent § 1651(a) interlocutory injunction of

which I am aware is the 2015 writ granted to Appellants.

Akina, 136 S. Ct. at 581. As is precisely at issue here, that

order did not articulate the standard under which it was

granted, nor did the immediately preceding writ issued by

Justice Kennedy.

The same can be said of the two similar writs granted in

2014. In both Wheaton College v. Burwell, 134 S. Ct. 2806

(2014) (mem.), and Little Sisters of the Poor Home for the

Aged v. Sebelius, 571 U.S. 1171 (2014) (mem.), the Court

granted a § 1651(a) writ enjoining the federal government

from requiring the plaintiff religious nonprofit entities to fill

out and send a form to their third party insurers regarding

their objections to the Affordable Care Act’s contraceptive

coverage mandate. 134 S. Ct. at 2807; 571 U.S. at 1171.

Neither memorandum order hinted as to the standard the

Court had applied in granting the writ. In both cases, the

Court expressly directed that the order “not be construed as

an expression of the Court’s views on the merits.” 134 S. Ct.

at 2807; 571 U.S. at 1171.

182, 186–87 (1999)); Hobby Lobby Stores, Inc. v. Sebelius, 568 U.S.

1401, 1403 (2012) (Sotomayor, J., in chambers) (denying writ because the

Court had not yet decided whether “closely held for-profit corporations

and their controlling shareholders” have religious free exercise rights). I

disagree with the majority that any of these cases can be interpreted as not

considering the merits. See id. (disclaiming any determination of the

“ultimate merits” while nevertheless considering the merits in order to

recognize that the merits were not “indisputably clear”).

20 MAKEKAU V. STATE OF HAWAI‘I

Although Little Sisters was decided unanimously, a three-

Justice dissent criticized the Wheaton College majority for

failing to apply the “indisputably clear” standard. 134 S. Ct.

at 2808 (Sotomayor, J., dissenting) (quoting Turner

Broadcasting, 507 U.S. at 1303).6 Notably, the dissent cited

no precedent in which a single Justice or the full Court had

granted a writ after applying the “indisputably clear”

standard. See id. at 2808, 2810–11 & n.3.7

Taking the Court at its word, Wheaton College and Little

Sisters demonstrate that the Court has authority to issue

§ 1651(a) interlocutory injunctions without applying the

“indisputably clear” standard (whatever that standard may

entail), and indeed without reaching the merits of the

underlying legal challenge.8

6

The dissent distinguished Little Sisters because, “whatever the

merits of that unusual order, it did not affect any individual’s access to

contraceptive coverage.” Id. at 2814 n.6 (noting that Little Sisters’ third

party insurer was a “church plan” that also had no obligation to provide

contraceptive coverage).

7

Prior to Little Sisters, the most recent case I am aware of in which

a single Justice or the Court granted a § 1651(a) interlocutory injunction

was Lucas v. Townsend, 486 U.S. 1301, 1304 (1988) (Kennedy, J., in

chambers). Despite ruling two years after Ohio Citizens, Justice Kennedy

in Lucas applied the test typically applied to a § 1651(a) application for a

stay pending certiorari, including “a fair prospect that five Justices will

conclude that the case was erroneously decided below.” Id. Given the

intervening three decades, it is unlikely that the Court was tacitly applying

this stay standard in Little Sisters, Wheaton College, or Akina.

8

I agree with the majority that Dunn v. McNabb, 138 S. Ct. 369

(2017) (mem.) does not prove that the Court or any individual Justice is

required to find “a significant possibility of success on the merits” before

granting a § 1651(a) interlocutory injunction outside the context of capital

punishment stays. Id. at 369 (quoting Hill v. McDonough, 547 U.S. 573,

MAKEKAU V. STATE OF HAWAI‘I 21

B. Application

The delegate election and related self-governance

processes challenged in the Akina lawsuit began to unravel

only after Justice Kennedy and then the full Court issued

writs of injunction. I have no trouble thus concluding that

“judicial imprimatur” was present. Higher Taste, 717 F.3d

at 716. The difficulty in this case comes from the uncertainty

regarding whether that “judicial imprimatur” represented a

finding that Appellants’ civil rights claims were “potentially

meritorious.” Id. at 715 (quoting Buckhannon, 532 U.S.

at 606).

Because I find little indication that the Supreme Court

was applying the Winter framework, I do not attempt to

reverse engineer the Court’s likely assessment of the Winter

factors (which would have to have been contrary to this

court’s assessment when we denied an interlocutory

injunction). Nor will I attempt to evaluate whether the

Court’s jurisdiction was genuinely at stake, as I am aware of

no Supreme Court precedent clearly endorsing a distinction

between jurisdictional and merits-based § 1651(a)

injunctions.

If Justice Kennedy or the Court had said anything at all

about the merits of Appellants’ claims, even without making

an express finding of “probable success on the merits,” I

might have some basis on which to state confidently that

Justice Kennedy or the Court considered the claims at least

“potentially meritorious.” Id. But, given the Court’s clearly

expressed authority to avoid the merits entirely in Wheaton

College and Little Sisters, there is too much uncertainty in the

584 (2016)).

22 MAKEKAU V. STATE OF HAWAI‘I

Akina writs’ silence to reach this conclusion.9 The

“indisputably clear” standard does not appear to be a

universal requirement, nor do we have any example of the

Court granting a writ under the “indisputably clear” standard

that would illustrate its meaning.

Accordingly, I concur in the denial of attorney’s fees on

the grounds that the judicial relief obtained provided no

indication that Appellants’ claims were potentially

meritorious.

II. Sufficiently Enduring Relief

I turn now to the second question we ask of a would-be

prevailing party who has won a preliminary injunction but not

litigated the case to final judgment: “[H]as the plaintiff

obtained relief sufficiently enduring to satisfy the ‘material

alteration of the parties’ legal relationship’ requirement?”

Higher Taste, 717 F.3d at 716 (quoting Buckhannon,

532 U.S. at 605). I would hold that Appellants have obtained

relief “sufficiently enduring.” Id.

“A material alteration of the parties’ legal relationship

occurs when ‘the plaintiff can force the defendant to do

something he otherwise would not have to do.’ Id. (quoting

Fischer v. SJB–P.D. Inc., 214 F.3d 1115, 1118 (9th Cir.

9

I note, however, that Appellees argued to the Supreme Court in

briefing on the writ that the relevant standard was whether it was

“indisputably clear” that Appellants would prevail under the Winter test,

including consideration of the merits. Appellees’ convenient reversal on

this position is troubling.

MAKEKAU V. STATE OF HAWAI‘I 23

2000)).10 If a preliminary injunction creating such material

alteration is rendered moot by the defendant’s own actions,

prevailing party status is not disturbed. See id. at 717–18.

“The defendant’s action in rendering the case moot ensures

that the injunction’s alteration of the parties’ legal

relationship will not be undone by subsequent rulings in the

litigation.” Id. A plaintiff’s “relief sufficiently enduring”

need not encompass all of the demands made in their

complaint. “[P]laintiffs may be considered ‘prevailing

parties’ . . . if they succeed on any significant issue in

litigation which achieves some of the benefit the parties

sought in bringing the suit.” Jensen, 806 F.2d at 900 (quoting

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

Plaintiffs ultimately did get much of what they sought in

the Akina lawsuit: the delegate election and the ratification

election were both cancelled; no election based on the

disputed voter roll was ever counted or certified; and no DOI-

qualifying self-governance document was produced through

processes dependent on the disputed voter roll. However,

most of these victories went beyond any judicial ruling, and

therefore must be excluded from consideration as an

impermissible application of the “catalyst theory.”

Buckhannon, 532 U.S. at 609.

10

Other circuits have held that a preliminary injunction granting

temporary relief that merely maintains the status quo pending final

resolution of the merits does not confer prevailing party status. See N.

Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1086 (8th Cir. 2006)

(collecting cases). We have left the question open. Higher Taste,

717 F.3d at 716 n.1. I see no need to disturb that silence here, where the

Supreme Court had to foresee that its writ would affect the behavior of

voters in the ongoing election. See Purcell v. Gonzalez, 549 U.S. 1, 4

(2006).

24 MAKEKAU V. STATE OF HAWAI‘I

Appellants’ one victory directly tied to a judicial ruling

was the enjoining of vote counting and certification of

winners in the 2015 delegate election. This was a “significant

issue” because a publicized vote count and certification of

winners would have effectuated the results of a race- and

viewpoint-restricted voting process. Jensen, 806 F.2d at 900.

By voluntarily then cancelling the delegate election before the

end of the voting period, Na‘i Aupuni permanently voided it.

This action ensured that the Court’s writ would “not be

undone by subsequent rulings in the litigation.” Higher

Taste, 717 F.3d at 717–18. It does not matter that Appellees

remain able to pursue various other actions Appellants sought

to enjoin through their lawsuit (e.g. hold a new election via a

new nonprofit using the same disputed voter roll), because

“some of the benefit” Plaintiffs sought became permanent.

Jensen, 806 F.2d at 900.

I disagree with the district court’s conclusion that

Appellants obtained only “ephemeral” relief. Appellants’

lawsuit sought to enjoin the “calling, holding, or certifying of

any election” using the disputed voter roll. Appellants

successfully enjoined the certifying of one such election.11

Moreover, our subsequent dismissal of Appellants’ appeal as

moot depended on the conclusion that “the allegedly

wrongful behavior could not reasonably be expected to

recur.” Akina v. Hawaii, 835 F.3d 1003, 1010 (9th Cir.

2016).

11

The Supreme Court’s denial of Appellants’ civil contempt motion

should be read to preclude the theory that Appellants failed to prevent

certification of the winners of the election. See Akina, 136 S. Ct. at 922.

If Na‘i Aupuni’s invitation of all the delegate candidates to the convention

had counted as certifying them as winners, the Court would have granted

the contempt motion.

MAKEKAU V. STATE OF HAWAI‘I 25

Thus, were it not for the uncertainty surrounding the

standard of review applied in the Akina writs, I would hold

that Appellants are prevailing parties and entitled to

attorney’s fees.