Petition for Writ of Certiorari — Dave Yost, et al., Petitioners v. Planned Parenthood Southwest Ohio Region, et al.

No. 19-___

In the Supreme Court of the United States

______________________________

DAVE YOST AND JOSEPH DETERS,

Petitioners,

v.

PLANNED PARENTHOOD SOUTHWEST

OHIO REGION, ET AL.,

Respondents.

______________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

______________________________

PETITION FOR WRIT OF CERTIORARI

______________________________

JOSEPH T. DETERS

Hamilton County

Prosecuting Attorney

ROGER E. FRIEDMANN

MICHAEL G. FLOREZ

Hamilton County

Prosecutor’s Office

230 East Ninth Street

Suite 4000

Cincinnati, Ohio 45202

513-946-3025

roger.friedmann@hcpros.org

Counsel for Petitioner

Hamilton County

Prosecuting Attorney

Joseph Deters

DAVE YOST

Ohio Attorney General

BENJAMIN M. FLOWERS*

*Counsel of Record

Ohio Solicitor General

STEPHEN P. CARNEY

Deputy Solicitor General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

benjamin.flowers@

ohioattorneygeneral.gov

Counsel for Petitioner

Dave Yost, Ohio

Attorney General

i

QUESTIONS PRESENTED

1. Do abortion providers have Article III standing

to assert the rights of their patients?

2. When, if ever, does a plaintiff who wins a preliminary injunction, but who never wins a final

judgment on the merits, qualify as a “prevailing party” entitled to attorney’s fees under 42 U.S.C. §1988?

ii

LIST OF PARTIES

The petitioners are Dave Yost, the Attorney General of Ohio, and Joseph Deters, the Prosecuting Attorney of Hamilton County, Ohio. Attorney General

Yost is automatically substituted for the former Attorney General, Mike DeWine, who was a party in

the Sixth Circuit. See Fed. R. App. P. 43(c)(2); Sup.

Ct. R. 35.3.

The respondents are:

Planned Parenthood Southwest Ohio Region

Planned Parenthood of Greater Ohio

Preterm

Dr. Timothy Kress

The following entities and individuals were at one

point identified as plaintiff-appellees on the Sixth

Circuit’s docket. But the court listed each as “terminated” before issuing the judgment under review:

Planned Parenthood Cincinnati Region

Planned Parenthood of Central Ohio

Dr. Laszlo Sogor

iii

LIST OF RELATED CASES

1. Planned Parenthood Cincinnati Region, et al. v.

Taft, No. 04-4371 (6th Cir.) (amended judgment

entered April 13, 2006)

2. Rogers, et al. v. Planned Parenthood Cincinnati

Region, et al., No. 2008-1234 (Ohio) (judgment entered July 1, 2009)

3. Planned Parenthood Southwest Ohio Region, et al.

v. Strickland, et al., Nos. 06-4422/4423 (6th Cir.)

(remanded without separate judgment August 6,

2009)

4. Planned Parenthood Southwest Ohio Region v.

DeWine, et al., No. 11-4062 (6th Cir.) (judgment

entered October 2, 2012)

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................ i

LIST OF PARTIES .....................................................ii

LIST OF RELATED CASES .................................... iii

TABLE OF CONTENTS ............................................ iv

TABLE OF AUTHORITIES ...................................... vi

INTRODUCTION ....................................................... 1

OPINIONS BELOW ................................................... 4

JURISDICTIONAL STATEMENT ............................ 4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ......................................... 4

STATEMENT OF THE CASE .................................... 6

REASONS FOR GRANTING THE PETITION ....... 11

I. This case presents the same standing

question this Court granted certiorari to

review in Gee v. June Medical Services,

LLC, No. 18-1323. .......................................... 12

II. This Court should grant certiorari to

decide when, if ever, a plaintiff who wins a

preliminary injunction, in the absence of a

final decision on the merits of a claim for

permanent-injunctive relief, qualifies as a

“prevailing party” under §1988. .................... 13

A. The circuit courts have answered the

question presented in numerous,

mutually inconsistent ways...................... 13

v

1. Preliminary relief almost never

confers “prevailing party” status in

the Third and Fourth Circuits. ........... 16

2. A plaintiff who wins a preliminary

injunction, in the absence of a final

adjudication of a claim for

permanent-injunctive relief, almost

always qualifies as a “prevailing

party” in the Fifth, Ninth, Tenth,

Eleventh, and D.C. Circuits. ............... 19

3. The Sixth, Seventh, and Eighth

Circuits have adopted intermediate

positions. .............................................. 21

B. The circuit split is important. .................. 25

C. This is an ideal vehicle for addressing

the question presented. ............................ 27

CONCLUSION.......................................................... 33

APPENDIX:

Opinion, United States Court of Appeals for the

Sixth Circuit, July 25, 2019............................. App.1a

Order Granting Plaintiffs’ Motion for Attorneys’

Fees and Costs, United States District Court for

the Southern District of Ohio, July

21, 2017 ........................................................... App.29a

Order, United States Court of Appeals for the

Sixth Circuit, August 29, 2019 ....................... App.52a

Judgment in a Civil Action, United States Court

of Appeals for the Sixth Circuit, July

25, 2019 ........................................................... App.54a

vi

TABLE OF AUTHORITIES

Cases

Page(s)

Ayotte v. Planned Parenthood,

546 U.S. 320 (2006) ............................................... 7

Brock Servs., L.L.C. v. Rogillio,

936 F.3d 290 (5th Cir. 2019) ............................... 19

Buckhannon Bd. & Care Home v. W. Va.

Dep’t of Health & Human Res.,

532 U.S. 598 (2001) ........................... 13, 14, 15, 20

Common Cause/Georgia v. Billups,

554 F.3d 1340 (11th Cir. 2009) ....................... 3, 20

Dearmore v. City of Garland,

519 F.3d 517 (5th Cir. 2008) ........................ passim

Dupuy v. Samuels,

423 F.3d 714 (7th Cir. 2005) ..................... 3, 22, 23

Gee v. Planned Parenthood of Gulf

Coast, Inc.,

139 S. Ct. 408 (2018) ........................................... 25

Harrington v. Richter,

562 U.S. 86 (2011) ............................................... 27

Hensley v. Eckerhart,

461 U.S. 424 (1983) ....................................... 30, 32

Higher Taste v. City of Tacoma,

717 F.3d 712 (9th Cir. 2013) ........................... 2, 20

Imwalle v. Reliance Med. Prods., Inc.,

515 F.3d 531 (6th Cir. 2008) ............................... 30

vii

Kansas Judicial Watch v. Stout,

653 F.3d 1230 (10th. Cir. 2011) ...................... 2, 20

State ex rel. King v. Rhodes,

11 Ohio St. 2d 95 (1967) ........................................ 8

Lorillard Tobacco Co. v. Engide,

611 F.3d 1209 (10th Cir. 2010) ........................... 26

McQueary v. Conway,

614 F.3d 591 (6th Cir. 2010) ................. 3, 9, 23, 24

Miller v. Caudill,

936 F.3d 442 (6th Cir. 2019) ............................... 24

N. Cheyenne Tribe v. Jackson,

433 F.3d 1083 (8th Cir. 2006) ................... 3, 22, 23

Nat’l Black Police Ass’n v. D.C. Bd. of

Elections & Ethics,

168 F.3d 525 (1999) ............................................. 21

Planned Parenthood Cincinnati Region

v. Taft,

444 F.3d 502 (6th Cir. 2006) ........................... 7, 18

Planned Parenthood Sw. Ohio Region v.

DeWine,

696 F.3d 490 (6th Cir. 2012) ................................. 7

Quern v. Jordan,

440 U.S. 332 (1979) ............................................. 26

Rogers Grp., Inc. v. City of Fayetteville,

683 F.3d 903 (8th Cir. 2012) ............................... 25

viii

Select Milk Producers, Inc. v. Johanns,

400 F.3d 939 (D.C. Cir. 2005) ................... 3, 20, 21

Sexton v. Beaudreaux,

138 S. Ct. 2555 (2018) ......................................... 27

Shoop v. Hill,

139 S. Ct. 504 (2019) ........................................... 27

Sinapi v. R.I. Bd. of Bar Exam’rs,

910 F.3d 544 (1st Cir. 2018) ................................ 26

Singer Mgmt Consultants v. Milgram,

650 F.3d 223 (3d Cir. 2011) ................. 2, 17, 18, 29

Smyth v. Rivero,

282 F.3d 268 (4th Cir. 2002) ............... 2, 17, 18, 29

Sole v. Wyner,

551 U.S. 74 (2007) ........................................ passim

Thomas v. NSF,

330 F.3d 486 (D.C. Cir. 2003) ............................. 21

Va. Office for Prot. & Advocacy v.

Stewart,

563 U.S. 247 (2011) ............................................. 26

Watson v. Cty. of Riverside,

300 F.3d 1092 (9th Cir. 2002) ............................. 20

Young v. City of Chicago,

202 F.3d 1000 (7th Cir. 2000) ............................. 22

Statutes, Rules, and Constitutional Provisions

U.S. Const., Art. III, §2 ............................................... 4

ix

15 U.S.C. §1117 ......................................................... 26

28 U.S.C. §1254 ........................................................... 4

28 U.S.C. §1291 ........................................................... 4

28 U.S.C. §1331 ........................................................... 4

42 U.S.C. §1983 ........................................... 6, 8, 14, 26

42 U.S.C. §1988 .................................................. passim

42 U.S.C. §12205 ....................................................... 26

Ohio Rev. Code §2919.123 .......................................... 6

Sup. Ct. Rule 10(a) .................................................... 26

Sup. Ct. Rule 13.1 ....................................................... 4

Sup. Ct. Rule 13.3 ....................................................... 4

1

INTRODUCTION

This case presents an opportunity to resolve a

deeply entrenched circuit split regarding the meaning of a federal law. Section 1988 of Title 42 permits

courts to award attorney’s fees to “the prevailing party” in certain cases. In Sole v. Wyner, 551 U.S. 74

(2007), this Court held that prevailing-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 reaching this decision, the Court did not address “whether, in the absence of a final decision on

the merits of a claim for permanent injunctive relief,

success in gaining a preliminary injunction may

sometimes warrant an award of counsel fees.” Id. at

86. The resolution of that question, the Court concluded, ought to await a case presenting it.

This is that case. The plaintiffs sued to enjoin, in

all its applications, an Ohio law prohibiting off-label

uses of a particular drug. They never won that relief.

Instead, they won a narrow preliminary injunction

permitting certain off-label uses that never did (and

likely never could) arise.

At the permanentinjunction stage, the parties vigorously disputed

whether the plaintiffs were entitled even to the verynarrow relief they won at the preliminary-injunction

stage.

No court ever resolved that dispute; no court ever

issued a “final decision on the merits of” the plaintiffs’ claim. Id. at 86. Why not? Because of the independent actions of a non-party: before the District

Court could rule, the FDA mooted the case by changing the drug’s label to include the formerly off-label

use the plaintiffs sued for the right to prescribe.

2

Once the FDA acted, the plaintiffs dismissed their

case, leaving Ohio’s law intact. Then, the plaintiffs

sought fees under §1988. According to them, the preliminary injunction justified a fee award notwithstanding the absence of a final judgment. The District Court and Sixth Circuit both agreed, and

awarded the plaintiffs fees for their attorneys’ work

during the preliminary-injunction stage. This case

therefore presents the very same question this Court

left open in Sole: whether and when, “in the absence

of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction” confers prevailing-party status. Id.

at 86.

The Court should grant certiorari to answer that

question. “Without a Supreme Court decision on

point, circuit courts considering this issue have announced fact-specific standards that are anything

but uniform.” Dearmore v. City of Garland, 519 F.3d

517, 521 (5th Cir. 2008). In the Third and Fourth

Circuits, prevailing-party status requires success on

the merits. See Singer Mgmt Consultants v. Milgram, 650 F.3d 223, 228–29 (3d Cir. 2011) (en banc);

Smyth v. Rivero, 282 F.3d 268, 277 (4th Cir. 2002).

Since preliminary injunctions almost always rest on

a finding of likely success, they almost never confer

prevailing-party status. See Singer, 650 F.3d at 229;

Smyth, 282 F.3d at 276–77 & n.9. In the Fifth,

Ninth, Tenth, Eleventh, and D.C. Circuits, a preliminary injunction resting on a finding of likely success

usually does confer prevailing-party status, even if

the case ends before the court can issue a final judgment on the merits. See Dearmore, 519 F.3d at 524;

Higher Taste v. City of Tacoma, 717 F.3d 712, 717

(9th Cir. 2013); Kansas Judicial Watch v. Stout, 653

3

F.3d 1230, 1232 (10th. Cir. 2011); Common

Cause/Georgia v. Billups, 554 F.3d 1340, 1356 (11th

Cir. 2009); Select Milk Producers, Inc. v. Johanns,

400 F.3d 939, 947 (D.C. Cir. 2005). In the Seventh

and Eighth Circuits, a preliminary injunction unaccompanied by a final judgment on the merits confers

prevailing-party status only if it gives “substantive

relief that is not defeasible by further proceedings.”

Dupuy v. Samuels, 423 F.3d 714, 719 (7th Cir. 2005);

accord N. Cheyenne Tribe v. Jackson, 433 F.3d 1083,

1086 (8th Cir. 2006). Finally, in the Sixth Circuit, a

preliminary injunction confers prevailing-party status only if the plaintiff wins relief that is either “irrevocable,” McQueary v. Conway, 614 F.3d 591, 597

(6th Cir. 2010), or that lasts for a significant amount

of time before the case becomes moot, Pet.App.14a.

If nothing else, the Court should hold this case for

Gee v. June Medical Services, Inc., No. 18-1323. As

the above suggests, this case implicates a circuit split

that has nothing to do with abortion jurisprudence.

But it just so happens that the plaintiffs are abortion

providers who sued to enforce the abortion rights of

their patients. Accordingly, this case gives rise to

the same jurisdictional question that this Court

agreed to hear in June Medical: whether abortion

providers have Article III standing to challenge laws

that allegedly threaten their patients’ rights. If June

Medical holds that the answer is no—or if the Court

adopts a new approach for addressing the issue—

then this Court should grant certiorari, vacate, and

remand for further consideration in light of June

Medical. If June Medical holds that abortion providers do have Article III standing, however, this is an

ideal vehicle for resolving the circuit split regarding

the meaning of §1988.

4

OPINIONS BELOW

The Sixth Circuit’s opinion below is published at

Planned Parenthood Southwest Ohio Region v.

DeWine, 931 F.3d 530 (6th Cir. 2019), and reproduced at Pet.App.1a.

The Sixth Circuit’s order denying rehearing and

rehearing en banc is reproduced at Pet.App.52a, and

available online at Planned Parenthood Southwest

Ohio Region v. DeWine, No. 17-3866, 2019 U.S. App.

LEXIS 26420 (6th Cir. Aug. 29, 2019).

The District Court’s decision is reproduced at

Pet.App.29a, and available online at Planned

Parenthood Southwest Ohio Region v. DeWine, No.

1:04-cv-00493, 2017 U.S. Dist. LEXIS 113647 (S.D.

Ohio July 21, 2017).

JURISDICTIONAL STATEMENT

If abortion providers have standing to sue to enforce the rights of their patients, the District Court

had jurisdiction to hear this federal-question case

under 28 U.S.C. §1331. The Sixth Circuit had jurisdiction under 28 U.S.C. §1291.

The Sixth Circuit issued its panel decision on July

25, 2019. On August 29, 2019, it denied rehearing en

banc. The State timely filed this petition less than

ninety days later. See Sup. Ct. Rule 13.1, 13.3. This

Court has jurisdiction under 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article III, §2, cl.1 of the Constitution provides:

The judicial Power shall extend to all

Cases, in Law and Equity, arising under

this Constitution, the Laws of the United

5

States, and Treaties made, or which shall

be made, under their Authority;—to all

Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases

of admiralty and maritime Jurisdiction;—

to Controversies to which the United

States shall be a Party;—to Controversies

between two or more States;—between a

State and Citizens of another State;—

between Citizens of different States,—

between Citizens of the same State claiming Lands under Grants of different

States, and between a State, or the Citizens thereof, and foreign States, Citizens

or Subjects.

42 U.S.C. §1988(b) (2012) provides:

(b) Attorney’s fees.

In any action or proceeding to enforce a

provision of sections 1981, 1981a, 1982,

1983, 1985, and 1986 of this title, title IX

of Public Law 92-318 [20 U.S.C. 1681 et

seq.], the Religious Freedom Restoration

Act of 1993 [42 U.S.C. 2000bb et seq.], the

Religious Land Use and Institutionalized

Persons Act of 2000 [42 U.S.C. 2000cc et

seq.], title VI of the Civil Rights Act of

1964 [42 U.S.C. 2000d et seq.], or section

13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable

attorney’s fee as part of the costs, except

that in any action brought against a judicial officer for an act or omission taken in

such officer’s judicial capacity such officer

6

shall not be held liable for any costs, including attorney’s fees, unless such action

was clearly in excess of such officer’s jurisdiction.

STATEMENT OF THE CASE

1. This case no longer has anything to do with

abortion rights. But at first, it did. In 2004, the

plaintiffs in this case—all of them abortion providers—sued under 42 U.S.C. §1983 to enjoin Ohio’s

Abortion Pill Law. See Ohio Rev. Code §2919.123.

(Though the plaintiffs have included different providers at different points in this litigation, today they

consist of three abortion-providing entities and one

abortion doctor.) The challenged law forbids doctors

from giving patients an abortion-inducing drug, RU486, for off-label use. An off-label use is a non-FDAapproved use. The plaintiffs sought to enjoin the law

in all of its applications based on four distinct legal

theories. First, they argued that the law was unconstitutionally vague. Second, they argued the law violated the right to bodily integrity. Third, they

claimed the law unduly burdened the right to an

abortion. Finally, they argued the law violated the

Constitution by failing to permit off-label uses when

necessary to protect a mother’s health or life.

At the preliminary-injunction stage, the District

Court facially enjoined the entire law based exclusively on the health-or-life theory. But on appeal,

the Sixth Circuit vacated that broad injunction. It

held that, while the District Court had not abused its

discretion in finding a likelihood of success on the

health-or-life claim, the court should have enjoined

the law’s application only in circumstances (if any

existed) where protecting the mother’s health or life

7

required off-label use. Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 518 (6th Cir. 2006).

This followed from Ayotte v. Planned Parenthood, 546

U.S. 320, 331 (2006), which “held that when an abortion statute lacks a constitutionally necessary health

or life exception, a narrow injunction prohibiting only

unconstitutional applications of the statute should be

employed where such an approach is not contrary to

legislative intent.” Taft, 444 F.3d at 515–16 (citing

Ayotte, 546 U.S. at 331).

Later-developed evidence failed to establish that

RU-486 would ever have been necessary to protect a

mother’s health or life. Thus, while the plaintiffs

sought to enjoin the law in all its applications, they

walked away from the preliminary-injunction stage

having won only a narrow injunction permitting offlabel use in circumstances that never arose. With

that pyrrhic victory in hand, the plaintiffs returned

to the District Court.

The plaintiffs never won anything more. In the

years that followed, the plaintiffs lost all three of

their other claims—the vagueness, bodily-integrity,

and undue-burden claims—on the merits.

See

Planned Parenthood Sw. Ohio Region v. DeWine, 696

F.3d 490, 494 (6th Cir. 2012). This left only the

health-or-life claim. And when it came time to litigate the merits of that claim, the State argued that

the Abortion Pill Law was constitutional even though

it contained no express health-or-life exception. The

State gave two reasons. First, it argued that the

Constitution required no health-or-life exception because RU-486 was never necessary to protect a mother’s health or life in Ohio. Second, the State argued

that if the Constitution required such an exception,

the state law would properly be interpreted as in-

8

cluding one implicitly. This second point followed

from Ohio law’s requirement that courts construe

statutes to avoid unconstitutionality. See, e.g., State

ex rel. King v. Rhodes, 11 Ohio St. 2d 95, 101 (1967).

As late as 2016, the District Court had not yet

addressed these arguments—it had not yet reached a

final decision on the health-or-life claim. It never got

a chance. The FDA mooted the case by changing RU486’s label to permit the formerly off-label uses over

which the plaintiffs sued. Pet.App.9a. The plaintiffs

responded by voluntarily dismissing the case. That

dissolved the narrow preliminary injunction from

almost twelve years earlier. With this, any dispute

over the legality of Ohio’s law drew to a close.

2. The dispute over fees, however, was just beginning. Federal law permits “the prevailing party”

in a §1983 case to recover “a reasonable attorney’s

fee.” 42 U.S.C. §1988. The plaintiffs sought fees for

work performed through February 24, 2006—the

date on which the Sixth Circuit issued its opinion

narrowing the preliminary injunction. Pet.App.6a,

9a. The plaintiffs’ fee request did not adjust for the

narrowness of the relief they won. For example, they

sought fees for the time spent unsuccessfully defending the trial court’s facial injunction on appeal. In

addition, the plaintiffs’ fee request did not distinguish between work relating to the claims they lost

completely and work relating to the health-or-life

claim on which they won narrow preliminary relief.

This Court has never addressed whether (or

when) a party that wins a preliminary injunction, in

the absence of a final judgment, is a “prevailing party” under §1988. See Sole v. Wyner, 551 U.S. 74, 86

(2007). But under Sixth Circuit precedent, a prelim-

9

inary injunction can confer prevailing-party status in

these circumstances if the injunction creates a “material,” “court-ordered” change in the legal relationship with the defendant that is “enduring” and “irrevocable.” McQueary v. Conway, 614 F.3d 591, 597–

98 (6th Cir. 2010) (quoting Sole v. Wyner, 551 U.S.

74, 82, 82 n.3, 86 (2007)). To illustrate, consider an

organization that sues for the right to protest a particular event, wins a preliminary injunction, and protests the event. The end of the event moots the case,

but the organization would still be a “prevailing party” under this approach. Id. at 599.

The State argued that the plaintiffs were not prevailing parties under this approach. For one thing,

the relief they won was hardly “material”: they secured an injunction that allowed the use of RU-486

only in circumstances that never arose. For another,

the relief was neither “enduring” nor “irrevocable”:

had the FDA not acted, and had the State won on the

merits, the injunction would have been revoked, leaving the plaintiffs with nothing. And even if the plaintiffs were “prevailing parties,” the State argued, they

were not entitled to fees for all of their work during

the preliminary-injunction stage. Instead, the fees

needed to be reduced to reflect the narrowness of the

relief the plaintiffs won.

The District Court rejected these arguments and

awarded the plaintiffs every penny they sought.

3. The Sixth Circuit affirmed. It explained that a

plaintiff qualifies as a prevailing party under §1988

when it wins a “material alteration of the legal relationship of the parties in a manner which Congress

sought to promote in” §1988. Pet.App.11a (quoting

Sole, 551 U.S. at 82). Preliminary injunctions “usu-

10

ally [do] not” confer such material alterations.

Pet.App.11a (quoting McQueary, 614 F.3d at 604).

But there are exceptions. In particular, a party that

wins a preliminary injunction, but whose case is

mooted or otherwise ends before a final merits adjudication, might qualify as a prevailing party if: (1) it

succeeds on a significant issue in the litigation; (2)

the success is never “reversed, dissolved, or otherwise undone by the final decision in the same case”;

and (3) the success rests, “at least in part, on the

merits” of the plaintiff’s claim. Pet.App.12a (quoting

Sole, 551 U.S. at 83).

All parties agreed that the preliminary injunction

in this case rested “at least in part” on the merits of

the plaintiffs’ health-or-life claim.

Pet.App.12a.

Thus, the plaintiffs’ entitlement to fees turned on the

remaining two factors. The Sixth Circuit held that

both were satisfied. First, the court concluded that

the plaintiffs satisfied the success-on-a-significantissue requirement because the injunction they won

“precluded enforcement of the statute in certain circumstances throughout almost 12 years of litigation.”

Pet.App.14a. Second, the court held that the decision had not been “reversed, dissolved, or otherwise

undone” in the relevant sense. Pet.App.14a. The injunction, of course, had been dissolved when the

plaintiffs dismissed their case. And in Sole, this

Court held that parties may not claim prevailingparty status based upon a preliminary injunction

that is “reversed, dissolved, or otherwise undone.”

551 U.S. at 83 (emphasis added). But the Sixth Circuit concluded that a dissolution because of mootness

did “not represent the kind of active, merits-based

undoing” that Sole had in mind. Pet.App.14a.

11

In addition to affirming the plaintiffs’ prevailingparty status, the Sixth Circuit held that the plaintiffs

were indeed entitled to all of the fees they sought for

the preliminary-injunction stage. The State had argued that the fee should be adjusted to account for

the narrowness of the relief the plaintiffs won. The

Sixth Circuit rejected that argument. It conceded

that, under Supreme Court precedent, “the degree of

success is a ‘critical factor’ in determining a fee

award.” Pet.App.22a (quoting Hensley v. Eckerhart,

461 U.S. 424, 436 (1983)). But it concluded that the

plaintiffs had already adjusted for the degree of success by seeking fees only for work performed during

the preliminary-injunction stage. No “precedent,”

the Sixth Circuit concluded, required the District

Court to go further by adjusting for the degree of

success “within the” preliminary-injunction stage.

Pet.App.23a. Additionally, the Sixth Circuit concluded that the plaintiffs had no obligation to seek

fees for only those hours dedicated to the health-orlife claim on which they temporarily prevailed, since

the “successful and unsuccessful claims” all “arose

from a common core of facts.” Pet.App.24a (quoting

Hensley, 461 U.S. at 435).

4. After the Sixth Circuit denied the State’s petition for en banc review, the State timely filed this petition for certiorari.

REASONS FOR GRANTING THE PETITION

The Court should grant this petition to resolve

the question it left open in Sole v. Wyner: In what

circumstances does a plaintiff who wins only a preliminary injunction, in the absence of a final judgment, qualify as a “prevailing party” for purposes of

§1988? See 551 U.S. 74, 86 (2007). The “circuit

12

courts considering this issue have announced factspecific standards that are anything but uniform.”

Dearmore v. City of Garland, 519 F.3d 517, 521 (5th

Cir. 2008).

This sort of entrenched, multidimensional split calls out for the Court’s involvement. That is especially true of this split, since fee

awards against a state official tap into state budgets

and thus implicate state sovereignty. When the circuits are split on an issue that touches the States’

sovereign interests, this Court should weigh in.

I.

This case presents the same standing

question this Court granted certiorari to

review in Gee v. June Medical Services, LLC,

No. 18-1323.

It is important to address one jurisdictional issue

before proceeding further. This Court, in Gee v. June

Medical Services, Inc., No. 18-1323, granted certiorari to address the question whether abortion providers

have standing to challenge laws that allegedly violate their patients’ abortion rights. This case presents the same question. The plaintiffs are three

abortion-providing entities and an abortion doctor.

Every one of their claims—including the health-orlife claim on which the District Court awarded preliminary relief—asserted the rights of third-party patients. If the Court in June Medical holds that abortion providers have no standing to bring these

claims, or if it adopts a new approach to addressing

standing in these circumstances, then this Court

should vacate the Sixth Circuit’s decision and remand for further proceedings in light of June Medical. After all, if the plaintiffs lacked standing to pursue their claims, they necessarily lacked standing to

seek fees based on their having done so. Thus, at the

13

very least, the Court should hold this case pending

the resolution of June Medical.

II. This Court should grant certiorari to decide

when, if ever, a plaintiff who wins a

preliminary injunction, in the absence of a

final decision on the merits of a claim for

permanent-injunctive relief, qualifies as a

“prevailing party” under §1988.

If this Court’s decision in June Medical does not

deprive the plaintiffs of standing to seek fees, then

this presents an ideal vehicle for this Court to address a question that has divided the circuits. The

question is this: When, if ever, in the absence of a

final judgment, does a plaintiff who wins a preliminary injunction qualify as a “prevailing party” under

§1988? The Court did not resolve this issue in Sole.

551 U.S. at 86. But it is now clear that the lower

courts need an answer. This is the perfect case for

providing one.

A. The circuit courts have answered the

question presented in numerous, mutually inconsistent ways.

This case presents an entrenched circuit split that

this Court should grant certiorari to resolve. Before

getting to the split, however, it is helpful to consider

the legal context in which the split arises.

That context begins with the principle that parties generally pay their own attorney’s fees. Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health &

Human Res., 532 U.S. 598, 602 (2001). Of course,

this is just a default rule, which Congress can alter

by statute. And so it has. The most prominent example is 42 U.S.C. §1988. Section 1988 permits

14

courts to award “the prevailing party” in a §1983 suit

“a reasonable attorney’s fee as part of the costs.”

§1988(b).

The term “prevailing party” encompasses only

those parties who ultimately win merits-based relief:

(1) in a judicial proceeding; and (2) at the litigation’s

end. That follows from this Court’s decisions in

Buckhannon and Sole.

In Buckhannon, this Court held that parties can

“prevail” for purposes of §1988 only if they win courtordered relief. The plaintiff in Buckhannon sued to

enjoin a West Virginia law that allegedly contradicted federal law. 532 U.S. at 600–01. But before it

could win any relief, the state legislature mooted the

litigation by amending the state law. Id. at 601. The

plaintiff argued that it was entitled to prevailingparty status under the so-called “catalyst theory.”

Under that theory, “a plaintiff is a ‘prevailing party’

if it achieves the desired result because the lawsuit

brought about a voluntary change in the defendant’s

conduct.” Id. at 602. This Court rejected that theory

as inconsistent with the prevailing-party requirement in §1988. After all, the catalyst theory would

allow “an award where there [was] no judicially sanctioned change in the legal relationship of the parties.” Id. at 605. To be a prevailing party within the

meaning of the fee-shifting statutes, the Court reasoned, a defendant’s change in conduct must arise

from “the necessary judicial imprimatur.” Id.

Sole, for its part, clarified that the phrase “prevailing party” includes only those parties whose victories are not washed away on appeal or in later proceedings. The Court held that a plaintiff who obtained preliminary relief, but who ultimately lost on

15

the merits at the permanent-injunction stage, was

not a prevailing party under §1988. 551 U.S. at 86.

The plaintiff in Sole argued that the “two stages of

the litigation” should be considered “as discrete episodes,” and that a win at the first stage warranted

attorney’s fees for work performed during that stage.

Id. at 77. The Court disagreed. Viewing the entire

case as a whole, the Court ruled that “[a] plaintiff

who achieves a transient victory at the threshold of

an action can gain no award under that fee shifting

provision if, at the end of the litigation, her initial

success is undone and she leaves the courthouse

emptyhanded.” Id. at 78. Thus, “[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 Sole, the statute the plaintiff had challenged “remained intact,” meaning the plaintiff had

“gained no enduring ‘change in the legal relationship’

between herself and the state officials she sued.” Id.

at 86 (alterations omitted) (quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782,

792 (1989)). Accordingly, the plaintiff did not qualify

as a “prevailing party.”

In sum, Buckhannon establishes that prevailingparty status requires court-ordered relief. And Sole

establishes that no party who wins a preliminary injunction only to lose later on is a “prevailing party”

under §1988. Yet these cases left open a related

question: What happens when an initial victory that

springs from a preliminary injunction does not stand

at the litigation’s end because the case ends for reasons unrelated to the merits? For example, what

happens if the case becomes moot after the plaintiff

wins a preliminary injunction but before the district

16

court can issue a final judgment on the merits? The

Sole Court “express[ed] no view” on this. Id. at 86.

Instead, it opted to leave for another day the question “whether, in the absence of a final decision on

the merits of a claim for permanent injunctive relief,

success in gaining a preliminary injunction may

sometimes warrant an award of counsel fees.” Id.

The circuit courts have answered the question

that Sole left open in (roughly speaking) three ways.

Some hold that a party can win prevailing-party status only with a definitive, merits-based ruling. Under this approach, preliminary injunctions almost

never confer prevailing-party status. Other courts

hold that preliminary injunctions, in the absence of a

final adjudication on the merits, usually confer prevailing-party status. A third group of courts have

adopted an intermediate position, in which a preliminary injunction unaccompanied by a final merits

ruling will confer prevailing-party status depending

on the durability or irrevocability of the injunctive

relief. But the courts within this group are divided

among themselves. In two circuits, a preliminary injunction confers prevailing-party status only if it

gives the plaintiff “irrevocable” relief. But in the

Sixth Circuit, a preliminary injunction that confers

revocable relief may confer prevailing-party status if

it remains in effect for a long time.

This case presents the Court with a chance to resolve the confusion.

1. Preliminary relief almost never

confers “prevailing party” status

in the Third and Fourth Circuits.

The Third and Fourth Circuits set the highest bar

for parties claiming prevailing-party status. In those

17

courts, a party qualifies as a “prevailing party” only

if it wins relief in a “merits-based decision.” See

Singer Mgmt Consultants v. Milgram, 650 F.3d 223,

228–29 (3d Cir. 2011) (en banc); Smyth v. Rivero, 282

F.3d 268, 277 (4th Cir. 2002). A decision is “meritsbased,” these courts say, only if it establishes that

the plaintiff has (or at least will) prevail on the merits; a finding that the plaintiff will likely prevail on

the merits does not suffice. Singer, 650 F.3d at 229;

Smyth v. Rivero, 282 F.3d at 276. Since preliminary

injunctions generally rest on a likelihood-of-success

finding, this rule means preliminary relief will rarely

confer prevailing-party status.

The Third Circuit’s en banc decision in Singer

shows how the rule works in practice. The plaintiff

in that case, a concert promoter, sued to enjoin New

Jersey from enforcing its “Truth in Music Act” to

regulate the promoter’s marketing of an upcoming

show. 650 F.3d at 225. The district court concluded

that the promoter had established “a likelihood of

success on the merits,” and entered a temporary restraining order. Id. at 226. After the promoter held

its show, New Jersey effectively mooted the case by

changing its position in the litigation, interpreting

the Truth in Music Act to permit marketing like that

the promoter had used. Id. at 227. The district court

declined to award any fees, and the en banc Third

Circuit affirmed. The court held that a party qualifies as a “prevailing party” only if it wins a decision

on the merits. Id. at 228–29. The court then explained that “the ‘merits’ requirement is difficult to

meet in the context of TROs and preliminary injunctions, as the plaintiff in those instances needs only to

show a likelihood of success on the merits (that is, a

reasonable chance, or probability, of winning) to be

18

granted relief.” Id. at 229. And because the promoter won a temporary restraining order based on a likelihood-of-success finding, it did not qualify as a “prevailing party.” Id. at 230.

The Fourth Circuit in Smyth reached the same

holding for the same reasons in a similar context. It

held that, because a court can issue a preliminary

injunction based on the plaintiff’s likelihood of success, injunctions issued in cases that never yield a

final judgment rarely, if ever, constitute “an ‘enforceable judgment[] on the merits’ or something akin to

one for prevailing party purposes.” 282 F.3d at 277

(alteration in original) (quoting Buckhannon, 532

U.S. at 604). On that basis, it held that plaintiffs

who had won a preliminary injunction of a laterabandoned federal policy were not entitled to fees.

Id.

Under the rule in the Third and Fourth Circuits,

the plaintiffs in this case do not qualify as prevailing

parties. The District Court awarded them preliminary relief because it found a “strong likelihood of

success on the merits.” See Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 517 (6th Cir.

2006). But no court ever found that the plaintiffs in

fact had, or would, prevail on the merits. Indeed, it

is doubtful they would have. At the time the FDA’s

action mooted the case, Ohio had advanced serious

arguments that even the narrow relief the plaintiffs

won at the preliminary-injunction stage was improper. See above 7. In sum, the preliminary injunction

the plaintiffs won was not “an ‘enforceable judgment[] on the merits’ or something akin to one for

prevailing party purposes.” Smyth, 282 F.3d at 277

(alteration in original) (quoting Buckhannon, 532

U.S. at 604). Had this case been litigated in the

19

Third or Fourth Circuits, the plaintiffs here would

not have won any fees.

2. A

plaintiff

who

wins

a

preliminary injunction, in the

absence of a final adjudication of

a claim for permanent-injunctive

relief, almost always qualifies as

a “prevailing party” in the Fifth,

Ninth, Tenth, Eleventh, and D.C.

Circuits.

At the other end of the spectrum, the Fifth,

Ninth, Eleventh, and D.C. Circuits have adopted

rules under which a preliminary injunction almost

always confers prevailing-party status, as long as it

is not reversed, dissolved, or otherwise undone on the

merits.

In the Fifth Circuit, a plaintiff qualifies as a

“prevailing party” under §1988 if it wins a preliminary injunction “based upon an unambiguous indication of probable success on the merits,” and if that

injunction “causes the defendant to moot the action.”

Dearmore, 519 F.3d at 524. Of course, almost every

preliminary injunction “is based upon an unambiguous indication of probable success on the merits.” Id.

Indeed, the Fifth Circuit has held that a “party seeking a preliminary injunction generally must show [] a

substantial likelihood of success on the merits.”

Brock Servs., L.L.C. v. Rogillio, 936 F.3d 290, 296

(5th Cir. 2019). Thus, any preliminary-injunction

order finding that the plaintiff made such a showing

confers prevailing-party status, at least in cases

where the defendant moots the case before the court

can finally adjudicate the merits.

20

The Ninth, Tenth, and Eleventh Circuits have

similar rules, though apparently without any requirement that the mootness result from the defendant’s actions. In the Ninth Circuit, a “preliminary

injunction issued by a judge carries all the ‘judicial

imprimatur’ necessary to satisfy Buckhannon.” Watson v. Cty. of Riverside, 300 F.3d 1092, 1096 (9th Cir.

2002). Applying that rule, the Ninth Circuit has upheld fee awards to plaintiffs who, after winning a

preliminary injunction, settled their cases or saw

their cases go moot. Higher Taste v. City of Tacoma,

717 F.3d 712, 717 (9th Cir. 2013); Watson, 300 F.3d

at 1096. In the Tenth Circuit, a preliminary injunction based on a finding that the plaintiff is “substantially likely to succeed on the merits” confers prevailing-party status even if “the actions of third parties

moot[] the case” before final judgment. Kan. Judicial

Watch v. Stout, 653 F.3d 1230, 1232 (10th. Cir.

2011). And in the Eleventh Circuit, “a preliminary

injunction on the merits … entitles one to prevailing

party status and an award of attorney’s fees,” without regard to whether the case progresses to a judgment on the merits. Common Cause/Georgia v.

Billups, 554 F.3d 1340, 1356 (11th Cir. 2009) (alteration original) (quoting Taylor v. City of Fort Lauderdale, 810 F.2d 1551, 1558 (11th Cir. 1987)). Thus, a

party that succeeds in preliminarily enjoining the enforcement of a state law qualifies as a “prevailing

party” even if the state legislature repeals the challenged law before final judgment. Id.

The D.C. Circuit takes effectively the same approach, but states it differently. In that circuit, only

“concrete and irreversible” preliminary relief will

confer prevailing-party status. Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 947 (D.C. Cir.

21

2005). But the court has held that parties win concrete-and-irreversible relief when they win a preliminary injunction in a case that is mooted before the

courts can issue a final adjudication on the merits.

Id.; Nat’l Black Police Ass’n v. D.C. Bd. of Elections &

Ethics, 168 F.3d 525, 528 (1999). The D.C. Circuit

does not apply this rule in cases mooted by a change

in circumstances that unwinds or reverses any previously secured relief. For example, a plaintiff who

wins a preliminary injunction stopping a defendant

from collecting a registration fee is not a prevailing

party if, before there is a final judgment, Congress

amends the relevant law to allow the fee’s collection.

Thomas v. NSF, 330 F.3d 486, 493–94 (D.C. Cir.

2003). But aside from cases where parties are judicially or legislatively deprived of the relief they won

at the preliminary-injunction stage, a preliminary

injunction confers prevailing-party status.

Under the rules in these courts, the plaintiffs

here would have been entitled to attorney’s fees,

since they won a preliminary injunction based on a

likelihood-of-success-finding and the case was mooted before final judgment. The only possible exception

is the Fifth Circuit; insofar as that court applies its

rule only in cases where the preliminary injunction

“causes the defendant to moot the action,” Dearmore,

519 F.3d at 524 (emphasis added), the plaintiffs

would not be entitled to fees in this case, since the

case was mooted by the actions of a non-party.

3. The Sixth, Seventh, and Eighth

Circuits

have

adopted

intermediate positions.

Finally, three circuits have adopted intermediate

approaches, in which a preliminary injunction in the

22

absence of a final judgment on the merits may confer

prevailing-party status depending on (among other

things) the enduring character of the relief conferred.

But the circuits within this final group differ among

themselves; the Seventh and Eighth Circuits define

“prevailing party” more strictly than the Sixth Circuit.

Seventh and Eighth Circuits. In both the Seventh and Eighth Circuits, a preliminary injunction

confers prevailing-party status only if the injunction

results in “substantive relief that is not defeasible by

further proceedings,” Dupuy v. Samuels, 423 F.3d

714, 719 (7th Cir. 2005) (citation omitted). Thus, a

preliminary injunction must confer “irreversible” relief to confer prevailing-party status. N. Cheyenne

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

Under this rule, parties that win preliminary injunctions qualify as prevailing parties if the injunctions give them everything they want and their cases

are mooted as a result. Take, for example, a party

that sues for the right to protest a particular event,

and who wins a preliminary injunction allowing it to

do so. Once the event concludes, the case is moot.

But because the plaintiff received everything it asked

for—because it won “substantive relief that is not defeasible by further proceedings,” Dupuy, 423 F.3d at

719—it qualifies as a “prevailing party” notwithstanding the absence of a final judgment. See Young

v. City of Chicago, 202 F.3d 1000, 1000–01 (7th Cir.

2000) (per curiam).

On the other hand, “temporary relief that merely

maintains the status quo does not confer prevailing

party status.” N. Cheyene, 433 F.3d at 1086. For example, a party that wins a preliminary injunction

23

halting the government’s construction of a shooting

range, but whose case is mooted by the government’s

later decision not to build the shooting range, is not a

“prevailing party.” Id. In a case like that, the injunction would preserve the status quo, but would

not confer irreversible relief—if the case had not become moot, the plaintiff might have lost on the merits and left court emptyhanded.

Applying that approach to this case, the plaintiffs

here are not entitled to attorney’s fees. The relief

they won—a court order entitling them to use RU486 in certain off-label applications—was neither indefeasible nor irreversible. Dupuy, 423 F.3d at 719;

N. Cheyenne, 433 F.3d at 1085–86. To the contrary,

if the case had been allowed to proceed to final judgment, the courts could have denied the plaintiffs’ request for a permanent injunction. Therefore, this is

not a case in which the preliminary injunction itself

gave the plaintiffs all the relief they sought.

The Sixth Circuit. In the Sixth Circuit, “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). But sometimes, it does. For example, a preliminary injunction confers prevailing-party

status if it creates a “material” change in the legal

relationship between the parties that is “enduring”

and “irrevocable.” Id. at 597, 598 (quoting Sole, 551

U.S. at 82, 86). Thus, as in the Seventh and Eighth

Circuits, a preliminary injunction confers “prevailing

party” status if “the claimant receives 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. For example, if “protestors seek an injunction to exercise their First Amendment rights at a

24

specific time and place—say to demonstrate at a

Saturday parade—a preliminary injunction will give

them all the court-ordered relief they need and the

end of the parade will moot the case.” Id. at 601. In

such circumstances, the protestors qualify as prevailing parties. Similarly, couples who sue for an injunction requiring the issuance of marriage licenses, and

who obtain licenses after winning a preliminary injunction, qualify as prevailing parties even though

the licenses’ issuance moots the case before final

judgment. See Miller v. Caudill, 936 F.3d 442, 449

(6th Cir. 2019).

If this were the only category of cases in which

the Sixth Circuit allowed a preliminary injunction to

confer prevailing-party status, the plaintiffs would

not have won fees. After all, the relief the plaintiffs

won was in no sense “irrevocable.” To the contrary,

and as just explained, the relief would have been revoked had Ohio won on the merits at the permanentinjunction stage.

The plaintiffs won attorney’s fees anyway, because the Sixth Circuit, in its decision below, expanded the category of cases in which plaintiffs are

eligible for attorney’s fees. Specifically, it held that a

preliminary injunction that lasts for many years before the case is mooted is sufficiently “enduring” to

confer prevailing-party status, even if the relief is not

truly “irrevocable.” Pet.App.14a. Indeed, the panel

below did not even use the word “irrevocable.” Instead, it stressed that the preliminary injunction remained in effect for twelve years, and that the FDA’s

actions meant the plaintiffs never had to abide by the

Abortion Pill Law’s restrictions on their preferred offlabel uses of RU-486. Pet.App.14a.

25

The panel gave no guidance regarding how long is

long enough to confer prevailing-party status. For

example, would a single year suffice? Five? Ten?

Whatever the answer, the panel’s opinion does establish that, at some point, relief is sufficiently “enduring” that it confers prevailing-party status without

regard to its revocability. This focus on the length of

time the injunction was in place, rather than its irrevocability, distinguishes the Sixth Circuit’s approach from that of the Seventh and Eighth Circuits.

Indeed, no other circuit determines prevailing-party

status by considering the length of time a preliminary injunction was in effect.

*

The above illustrates the need for this Court to

answer the question it left open in Sole. Indeed, the

confusion is even worse than the foregoing suggests,

because the circuit courts sometimes struggle to apply the tests they have adopted. For example, while

the Eighth Circuit has held that a status-quo preserving injunction does not confer prevailing-party

status, it has nonetheless found prevailing-party status based on an injunction that did nothing more

than preserve the status quo (the court’s contrary

claims notwithstanding). Rogers Grp., Inc. v. City of

Fayetteville, 683 F.3d 903, 911 (8th Cir. 2012). The

lower courts need help. So do the parties subject to

these rules. Only this Court can bring the needed

clarity, and assure consistency across the country.

B. The circuit split is important.

“One of this Court’s primary functions is to resolve ‘important matter[s]’ on which the courts of appeals are ‘in conflict.’” Gee v. Planned Parenthood of

Gulf Coast, Inc., 139 S. Ct. 408, 408 (2018) (Thomas,

26

J., dissenting from denial of certiorari) (alteration in

original) (quoting Sup. Ct. Rule 10(a)). This case

checks both boxes. The discussion above establishes

the conflict among the circuits. The circuits even

acknowledge the split, confessing to having “announced fact-specific standards that are anything

but uniform.” Dearmore, 519 F.3d at 521.

The issue is also “important.” Sup. Ct. Rule 10(a).

For one thing, it arises every single time a plaintiff

seeks fees after winning only a preliminary injunction. Further, other statutes—including the Americans with Disabilities Act and the Lanham Act—use

the very same “prevailing party” language. See 42

U.S.C. §12205; Sinapi v. R.I. Bd. of Bar Exam’rs, 910

F.3d 544, 551–52 (1st Cir. 2018); 15 U.S.C. §1117(a);

Lorillard Tobacco Co. v. Engide, 611 F.3d 1209,

1214–17 (10th Cir. 2010). Thus, the Court’s ruling in

this case is likely to have effects even beyond the

context of §1988.

The issue is all the more important because fee

awards are often imposed against the States themselves, and thus implicate concerns with state sovereignty. Though States may not be sued under §1983,

Quern v. Jordan, 440 U.S. 332, 341 (1979), their officials can be—and often are. In those cases, any fee

awards are inevitably paid by the States themselves.

Why does that matter? Because the States have a

sovereign interest in their own funds. See Va. Office

for Prot. & Advocacy v. Stewart, 563 U.S. 247, 258

(2011). It follows that decisions imposing fee awards

against state officers significantly affect state sovereignty. And questions that affect state sovereignty

are especially worthy of review. For example, the

impact of habeas relief on state sovereignty explains

this Court’s practice of regularly summarily revers-

27

ing factbound misapplications of habeas law. See,

e.g., Shoop v. Hill, 139 S. Ct. 504, 505 (2019) (per curiam); Sexton v. Beaudreaux, 138 S. Ct. 2555, 2557

(2018) (per curiam). That practice is appropriate because erroneous awards of habeas relief “intrude[] on

state sovereignty” to an unusual degree. Harrington

v. Richter, 562 U.S. 86, 103 (2011). So do court orders, like those issued under §1988, that even indirectly require the States to expend money.

To be clear, Ohio is not challenging the constitutionality of fee awards against state officers. It is arguing, however, that because federal courts issue orders that intrude upon the States’ sovereign interests, this Court should at least make sure those orders are being issued in compliance with federal law.

C. This is an ideal vehicle for addressing

the question presented.

Unless this Court holds in June Medical that

abortion providers lack standing to defend the rights

of their patients, this case presents an ideal vehicle

for addressing the question presented. That is so for

three reasons.

1. As an initial matter, this case squarely presents the split. The only remaining question (aside

from standing) is whether the preliminary injunction

that the plaintiffs won conferred prevailing-party

status. Everyone agrees that the case is now moot.

And since the plaintiffs’ merits arguments have no

bearing on the debate over §1988’s meaning, the

Court can resolve this case without regard to abortion jurisprudence. On top of that, Ohio preserved

its challenge to the fee award. This case thus presents a clean vehicle for addressing the question left

open in Sole: “whether, in the absence of a final de-

28

cision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may sometimes warrant an award of counsel

fees.” 551 U.S. at 86.

2. Additionally, this case is an attractive vehicle

because the Sixth Circuit erred when it determined

that the plaintiffs were prevailing parties based on

the now-dissolved preliminary injunction.

The “touchstone of the prevailing party inquiry,”

is “the material alteration of the legal relationship of

the parties.” Sole, 551 U.S. at 82 (quoting Texas

State Teachers Assn. v. Garland Indep. Sch. Dist.,

489 U.S. 782, 792–93 (1989)). The alteration must be

“enduring,” in the sense of “permanently giving [the]

plaintiff the real-world outcome it sought.” Id. at 82

n.3 & 86. A temporary or “ephemeral” change will

not do. Id. at 86.

Applied here, these principles establish that the

plaintiffs are not eligible for fees. They won only a

preliminary injunction. And that injunction was in

no sense “enduring” or “irrevocable”—it would have

been revoked had the State prevailed at the permanent-injunction stage. If the State had prevailed at

that stage, then the plaintiffs would unambiguously

not have qualified as prevailing parties; Sole held

that a party who wins a preliminary injunction, but

who is later “denied a permanent injunction after a

dispositive adjudication on the merits,” does not

“qualify as a ‘prevailing party’ within the compass of

§1988(b).” Id. at 77. It follows that the plaintiffs

were not prevailing parties the instant before the

FDA, a third party, took an action that mooted the

case. And it makes little sense to suggest that the

FDA’s action changed anything relevant to §1988.

29

How could it be that, by denying the State a chance

to prevail in “a dispositive adjudication on the merits,” id., an out-of-court action by a non-party transformed the plaintiffs into prevailing parties?

The facts of this case illustrate the wisdom of the

approach adopted by the Third and Fourth Circuits,

under which preliminary injunctions that rest on

likelihood-of-success findings do not confer prevailing

party status. Singer, 650 F.3d at 229; Smyth v.

Rivero, 282 F.3d at 276. “At the preliminary injunction stage, the court is called upon to assess the

probability of the plaintiff’s ultimate success on the

merits.” Sole, 551 U.S. at 84 (emphasis added). But

a finding of likely success always remains subject to

reevaluation during “a dispositive adjudication on

the merits.” Id. at 77. Until the plaintiff prevails in

such an adjudication, it should not be deemed a prevailing party, because no court has adjudged anyone

the winner. That approach, applied here, would

rightly prevent the plaintiffs from claiming attorney’s fees despite their never having obtained a court

order ruling for them on the merits.

Even if the Court is unwilling to go that far, it

should at least hold that preliminary injunctions

must be truly irrevocable to confer prevailing-party

status. Even under that more permissive rule, which

resembles the rule applied in the Seventh and

Eighth Circuits, the plaintiffs would not be entitled

to fees. Relief is not “enduring”—it does not “permanently giv[e]” the “plaintiff the real-world outcome”

sought—unless it is incapable of being unwound in

later proceedings. Id. at 82 n.3 & 86. The plaintiffs

here never won court-ordered relief permanently giving them what they wanted. To the contrary, the only court-ordered relief they won conferred temporary

30

relief pending a full merits adjudication. As such,

they were not prevailing parties.

3. Another appealing reason to take this case—

though not a separate question presented—is that

the Sixth Circuit’s decision represents an especially

egregious interference with state sovereignty. That

is so because the panel affirmed the District Court’s

order awarding attorney’s fees even for work done on

claims the plaintiffs lost, and without adjusting at all

for the exceptionally narrow scope of the relief won.

Section 1988 permits “reasonable” fee awards.

§1988(b). The reasonableness inquiry includes both

a “lodestar” amount and a degree-of-success factor.

“[T]he ‘lodestar’ amount … is calculated by multiplying the number of hours reasonably expended on the

litigation by a reasonable hourly rate.” Imwalle v.

Reliance Med. Prods., Inc., 515 F.3d 531, 551 (6th

Cir. 2008) (citing Hensley v. Eckerhart, 461 U.S. 424,

433 (1983)). But “[t]he product of reasonable hours

times a reasonable rate does not end the inquiry.”

Hensley, 461 U.S. at 434. In cases where the plaintiff

achieves partial or limited success, the “most critical

factor is the degree of success obtained.” Id. at 436.

Awarding the full lodestar amount in those circumstances can lead to an “excessive” award. Id. As a

result, even though a trial court has discretion in determining what constitutes a “reasonable” fee award,

it abuses its discretion when it fails to assure a reasonable relationship between the fee awarded and

the success obtained. See id. at 437

Here, the plaintiffs sued to permanently enjoin

the entire Abortion Pill Law in all of its applications.

They won almost nothing. By the end of the case, the

plaintiffs had lost three of their four claims outright,

31

on the merits. See above 7. And with respect to the

fourth claim—the one based on the Abortion Pill

Law’s lack of an express health-or-life exception—the

plaintiffs won only a narrow preliminary injunction

entitling them to use RU-486 in circumstances that

never arose in fact, and that likely could not have

arisen even in theory. Nonetheless, the plaintiffs

sought reimbursement for the hours spent during the

entire preliminary-injunction stage of litigation.

That means the plaintiffs sought reimbursement for

research and writing relating to distinct legal claims

that they lost, and for the work they put into unsuccessfully defending the District Court’s broad, facial

injunction on appeal. Given the narrow “degree of

success” that the plaintiffs achieved during the preliminary-injunction stage, it was not “reasonable” to

award the plaintiffs relief for all the hours their attorneys worked during that stage.

Notwithstanding all this, the Sixth Circuit affirmed the District Court’s order granting the plaintiffs all the fees they sought for the preliminaryinjunction stage. Pet.App.20a–26a. The Sixth Circuit tried to justify this decision by appealing to the

scope of the plaintiffs’ fee request. Specifically, it

concluded that, since the plaintiffs sought fees only

for work done during the preliminary-injunction

stage, the plaintiffs already “accounted for and divided out work done on the claim on which [they] prevailed—the health-and-life-exception claim—and distinguished it from the hours counsel expended on the

remaining unsuccessful claims.” Pet.App.24a; accord

Pet.App.24a–25a.

This argument has at least two fatal flaws. First,

it is factually inaccurate. The plaintiffs performed

work during the preliminary-injunction stage even

32

on the claims they lost. The Sixth Circuit tried to get

around this by noting that all four claims arose “from

a ‘common core of facts.’” Pet.App.24a (quoting

Hensley, 461 U.S. at 435–37). But that too is false:

the facts and law relevant to the health-or-life claim

had no bearing on the vagueness, undue-burden, and

bodily-integrity claims that the plaintiffs lost. The

health-or-life claim turned entirely on whether the

Constitution required the Abortion Pill Law to contain a health-or-life exception, and whether the law

contained such an exception. None of that mattered

to the plaintiffs’ other claims.

The second problem with the argument is legal:

even ignoring the award of fees for work done on losing theories, the courts below erred by failing to adjust the fee award downward to account for the insignificance of the relief the plaintiffs won. Again,

the plaintiffs won a narrow injunction allowing them

to administer RU-486 in circumstances that never

arose. Neither of the courts below accounted for the

insignificance of that relief. They conflated the question of whether the plaintiffs prevailed with the question of the degree to which they prevailed. Hensley

requires courts to ask the second question in deciding

whether a fee award is reasonable. 461 U.S. at 436–

37.

In sum, the Sixth Circuit’s decision awards the

plaintiffs fees for the many hours their attorneys

spent during the preliminary-injunction stage—even

though many of those hours were spent on losing

claims, and even though the relief secured by all this

work amounted to almost nothing. That is absurd.

The petitioners are not seeking review on the question whether the Sixth Circuit erred by affirming the

unadjusted fee award. But reversal on the question

33

presented would have the happy side effect of undoing an indefensibly high award.

CONCLUSION

The Court should grant the petition for certiorari

and reverse.

JOSEPH T. DETERS

Hamilton County

Prosecuting Attorney

DAVE YOST

Ohio Attorney General

BENJAMIN M. FLOWERS*

ROGER E. FRIEDMANN

*Counsel of Record

MICHAEL G. FLOREZ

Ohio Solicitor General

Hamilton County Prosecu- STEPHEN P. CARNEY

tor’s Office

Deputy Solicitor General

230 East Ninth Street

30 E. Broad St., 17th Floor

Suite 4000

Columbus, Ohio 43215

Cincinnati, Ohio 45202

614-466-8980

513-946-3025

benjamin.flowers@

roger.friedmann@hcpros.org

ohioattorneygeneral.gov

Counsel for Petitioner

Hamilton County

Prosecuting Attorney

Joseph Deters

NOVEMBER 2019

Counsel for Petitioner

Dave Yost, Ohio

Attorney General