Amicus Curiae Brief — Dave Yost, et al., Petitioners v. Planned Parenthood Southwest Ohio Region, et al.
Supreme Court briefDec 26, 2019
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No. 19-677
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 A Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit
----------------------------------------------------------------------BRIEF OF GEORGIA, ALABAMA, ALASKA,
ARKANSAS, IDAHO, INDIANA, KANSAS,
KENTUCKY, LOUISIANA, MISSISSIPPI,
MISSOURI, MONTANA, NEBRASKA, OKLAHOMA,
SOUTH CAROLINA, SOUTH DAKOTA,
TENNESSEE, TEXAS, AND UTAH AS
AMICI CURIAE SUPPORTING PETITIONERS
----------------------------------------------------------------------CHRISTOPHER M. CARR
Attorney General of Georgia
ANDREW A. PINSON
Solicitor General
Counsel of Record
DREW F. WALDBESER
Assistant Solicitor General
OFFICE OF THE GEORGIA
ATTORNEY GENERAL
40 Capitol Square, SW
Atlanta, Georgia 30334
(404) 651-9453
apinson@law.ga.gov
i
TABLE OF CONTENTS
Page
Table of Contents .................................................
i
Table of Authorities .............................................
ii
Interests of Amici Curiae ....................................
1
Summary of the Argument ..................................
2
Argument .............................................................
3
I.
The second question presented is recurring
and important to the States ......................
3
A. Plaintiffs regularly seek and courts
impose substantial fee awards against
state officials based on preliminary
injunctions when cases end without a
merits judgment in the plaintiff ’s
favor .....................................................
4
B. The circuit courts have failed to
establish a clear and consistent test
for when a preliminary injunction
supports a fee award in a case that
ends without a merits judgment .........
9
C. Messy tests for fee eligibility impose
needless costs on states and their
residents .............................................. 13
II.
The circuit courts are applying tests for
fee eligibility that conflict with this
Court’s precedents ..................................... 18
Conclusion............................................................ 21
ii
TABLE OF AUTHORITIES
Page
CASES
Am. Broadcasting Companies, Inc. v. Ritchie,
Civil No. 08-5285, 2011 WL 665858 (D. Minn.
Feb. 14, 2011).............................................................7
Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598
(2001) ............................................................... passim
Citigroup Glob. Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30 (2d
Cir. 2010) .................................................................12
Common Cause/Georgia v. Billups, 406
F. Supp. 2d 1326 (N.D. Ga. 2005) ..............................4
Common Cause/Georgia v. Billups, 504 F. Supp.
2d 1333 (N.D. Ga. 2007) ............................................5
Common Cause/Georgia v. Billups, 554 F.3d 1340
(11th Cir. 2009).............................................. 5, 17, 19
Curling v. Raffensberger, 397 F. Supp. 3d 1334
(N.D. Ga. 2019) .................................................... 5, 17
Davis v. Abbott, 781 F.3d 207 (5th Cir. 2015) ...............8
Davis v. Perry, 991 F. Supp. 2d 809 (W.D. Tex.
2014) ..........................................................................8
Dearmore v. City of Garland, 519 F.3d 517 (5th
Cir. 2008) ........................................... 9, 11, 13, 17, 20
Douglas v. District of Columbia, 67 F. Supp. 3d
36 (D.D.C. 2014) ........................................................7
Evans v. Jeff D., 475 U.S. 717 (1986) .................... 15, 16
Hewitt v. Helms, 482 U.S. 755 (1987) .........................21
iii
TABLE OF AUTHORITIES—Continued
Page
Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712
(9th Cir. 2013).................................................... 16, 19
Hoosier Energy Rural Elec. Co-op. v. John Hancock Life Ins. Co., 582 F.3d 721 (7th Cir. 2009) ......12
In re Witness Before Special Grand Jury 2000-2,
288 F.3d 289 (7th Cir. 2002) ....................................14
Kansas Judicial Watch v. Stout, 653 F.3d 1230
(10th Cir. 2011).................................................... 6, 11
Marek v. Chesny, 473 U.S. 1 (1985) ............................16
McQueary v. Conway, 614 F.3d 591 (6th Cir.
2010) ........................................................................10
N. Cheyenne Tribe v. Jackson, 433 F.3d 1083 (8th
Cir. 2006) .................................................................11
People Against Police Violence v. City of Pittsburgh, 520 F.3d 226 (2008) ................................. 6, 17
Planned Parenthood Sw. Ohio Region v. DeWine,
696 F.3d 490 (6th Cir. 2012) ......................................4
Planned Parenthood Sw. Ohio Region v. Dewine,
931 F.3d 530 (6th Cir. 2019) ....................................10
Reilly v. City of Harrisburg, 858 F.3d 173 (3d Cir.
2017) ........................................................................12
Rogers Grp., Inc. v. City of Fayetteville, 683 F.3d
903 (8th Cir. 2012) ...................................................11
Select Milk Producers, Inc. v. Johanns, 400 F.3d
939 (D.C. Cir. 2005) .................................................11
Serono Labs., Inc. v. Shalala, 158 F.3d 1313 (D.C.
Cir. 1998) .................................................................12
iv
TABLE OF AUTHORITIES—Continued
Page
Singer Mgmt. Consultants, Inc. v. Milgram, 650
F.3d 223 (3d Cir. 2011) ........................................ 9, 10
Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th
Cir. 2002) .................................................................10
Sole v. Wyner, 551 U.S. 74 (2007) .................... 18, 19, 20
Tex. State Teachers Ass’n v. Garland Indep. Sch.
Dist., 489 U.S. 782 (1989) ................ 12, 13, 14, 18, 21
Tri-City Community Action Program, Inc. v.
City of Malden, 680 F. Supp. 2d 306 (D. Mass.
2010) ..........................................................................8
Watson v. County of Riverside, 300 F.3d 1092
(9th Cir. 2002)............................................................6
STATUTES
15 U.S.C. § 1117(a) ..................................................... 7
20 U.S.C. § 1415(i)(3)(B)(i) ........................................ 7, 8
42 U.S.C. § 1983 ................................................ 7, 15, 17
42 U.S.C. § 1988 .................................................. passim
42 U.S.C. § 12205 ..........................................................7
42 U.S.C. § 3613(c)(2) ................................................ 7, 8
52 U.S.C. § 10310(e) .................................................. 7, 8
42 U.S.C.A. § 2000e-5(k) ...............................................7
v
TABLE OF AUTHORITIES—Continued
Page
RULES
Sup. Ct. Rules 37.2(a) ...................................................1
Sup. Ct. Rules 37.4 .......................................................1
OTHER AUTHORITIES
11A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2948.3 (3d
ed. 2019) ..................................................................12
Steven K. Berenson, Public Lawyers, Private
Values: Can, Should, and Will Government
Lawyers Serve the Public Interest?, 41 B.C. L.
Rev. 789 (2000) ........................................................14
1
INTERESTS OF AMICI CURIAE1
This case is about how to interpret the term “prevailing parties,” the statutory threshold for deciding
when parties in certain civil rights lawsuits are eligible for attorney’s fees. 42 U.S.C. § 1988. The States
have obvious sovereign interests in the proper construction of this threshold because state officials are
often defendants in these cases, and the States will
inevitably pay any fee awards against them, which
can easily reach six figures. At the least, the States
need clear and predictable rules for when they may be
exposed to such awards so they can structure their
conduct—budgeting, litigation, and otherwise—accordingly.
Unfortunately, the circuit courts have not supplied
clear or predictable rules for the particular question of
fee eligibility this case presents: when can a preliminary injunction serve as the basis for attorney’s fees if
the party seeking them never wins a final merits ruling? This question often arises when a state takes
steps that resolve the plaintiff ’s concerns—for example, amending a voter ID law or changing an enforcement policy—after a preliminary injunction is issued.
If the state’s actions will expose it to a substantial fee
award, the state needs to know that in advance so it
can make an informed decision whether to press on
with the lawsuit. Without clear rules to guide that decision, the States are left to gamble with public money.
1
Amici have notified counsel for all parties of their intention
to file this brief. Sup. Ct. Rules 37.2(a), 37.4.
2
The amici States therefore urge this Court to step in
and clear up this question so States can make sound
litigation and policy decisions on the public’s behalf.
-----------------------------------------------------------------------
SUMMARY OF THE ARGUMENT
Ohio’s petition identifies a recurring issue of great
importance to the States. Under 42 U.S.C. § 1988 and
a number of other federal statutes, plaintiffs regularly
seek and courts impose substantial fee awards
against state officials based on preliminary injunctions when a case ends without a merits judgment. Yet
the circuit courts have not established clear or consistent standards for when, if ever, attorney’s fees are
authorized under these circumstances. Instead, the circuits apply amorphous, subjective tests that fall short
of this Court’s call for “ready administrability” in fee
eligibility standards. These unstable tests impose
needless costs on the States and their residents in the
form of protracted secondary litigation over fees, uncertainty that complicates their litigation and policy
decisions, and a perverse incentive to continue litigating cases to final judgment to avoid spending the public’s money on attorney’s fees.
Many circuits, including the Sixth Circuit here,
allow fee awards to preliminary-injunction winners
under circumstances that conflict with the plain language of § 1988 and this Court’s precedents. Those
precedents make clear that a party is not a “prevailing
party” entitled to attorney’s fees unless the party
3
secures relief that is both (1) court-ordered and (2) enduring. Cobbling together these requirements from a
preliminary injunction (court-ordered, but not enduring) and nonjudicial circumstances that moot the case
(perhaps enduring, but not court-ordered) is not good
enough.
-----------------------------------------------------------------------
ARGUMENT
I.
The second question presented is recurring
and important to the States.
The petitioners’ second question presented asks
when, if ever, a plaintiff who wins a preliminary injunction but never a merits ruling is a “prevailing
party” entitled to attorney’s fees under 42 U.S.C.
§ 1988. This question is a recurring one because plaintiffs regularly seek attorney’s fees in these circumstances, which mostly arise when the defendant’s (or a
third party’s) actions resolve the plaintiff ’s concerns
after a preliminary injunction is issued but before the
court decides the merits of the case. And it is important
for this Court to provide a clear answer to this question
because the circuit courts have not: their tests for addressing fee eligibility in these circumstances are subjective and unpredictable. This imposes unnecessary
costs on the States and their residents.
4
A. Plaintiffs regularly seek and courts
impose substantial fee awards against
state officials based on preliminary injunctions when cases end without a
merits judgment in the plaintiff’s favor.
The plaintiffs in this case failed to win a merits
ruling on any of their claims against Ohio officials before the FDA’s independent action gave them what
they sought and mooted their case. Yet, because the
district court had earlier issued a preliminary injunction based on one of the plaintiffs’ four claims, the court
deemed them “prevailing parties” under § 1988 and
put Ohio on the hook for $382,529.98 in attorney’s fees.
See Planned Parenthood Sw. Ohio Region v. DeWine,
696 F.3d 490, 538 (6th Cir. 2012). The plaintiffs did not
win their lawsuit, but Ohio can hardly be faulted for
thinking it lost.
Unfortunately for the States, Ohio is not an outlier. Plaintiffs regularly seek and courts have been
willing to impose substantial fee awards against state
officials under § 1988 based on this same combination:
a preliminary injunction, and a case that ends without
the plaintiffs having won a merits judgment.
Take Georgia. In Common Cause/Georgia v. Billups,
the district court issued a preliminary injunction
against enforcement of a voter ID law. 406 F. Supp. 2d
1326, 1377 (N.D. Ga. 2005). After Georgia enacted a
new law that expanded the ways for voters to comply
with the ID requirement, and after reviewing the
new law on the merits, the court ultimately denied
5
permanent injunctive relief because Georgia’s “compelling interest in preventing fraud in voting” outweighed
any burden that the ID requirement might have on the
right to vote. 504 F. Supp. 2d 1333, 1382 (N.D. Ga.
2007), aff ’d, 554 F.3d 1340, 1355 (11th Cir. 2009). So
the plaintiffs didn’t just not win a merits judgment—
they lost the case. Yet the State paid $112,235.03 in
fees because the plaintiffs had obtained a preliminary
injunction against the old law. 554 F.3d at 1356; No.
4:05-cv-0201-HLM, 2007 WL 9723985, at *22 (N.D. Ga.
Dec. 27, 2007).
Another fee award is brewing in a pending Georgia elections case. In Curling v. Raffensberger, the
plaintiffs challenged Georgia’s use of certain electronic
voting machines. 397 F. Supp. 3d 1334 (N.D. Ga. 2019).
After the suit was filed, Georgia appropriated money
for new voting machines (which are now purchased
ready for use in the next elections). But the district
court still issued a preliminary injunction prohibiting
Georgia from using the old system in future elections—
even though the State had already said it was not planning to do so—and directing the State to produce a
backup plan in case the new system is not ready in
time. Id. at 1410. Based entirely on that order, the
plaintiffs have now sought $5,971,509.69 in attorney’s
fees, relying heavily on Common Cause. No. 1:17-cv2989, ECF Nos. 595, 596, 629, 630 (N.D. Ga. 2017).
Other States, and their political subdivisions too,
have paid large fee awards under the same basic set of
circumstances:
6
•
In Kansas Judicial Watch v. Stout, candidates
for judicial office obtained a preliminary injunction preventing the Kansas Commission
on Judicial Qualifications from disciplining
them for responding to a candidate questionnaire. 653 F.3d 1230 (10th Cir. 2011). The
Kansas Supreme Court revised the challenged canons before the district court decided the merits of the challenge. Id. at 1234.
Kansas paid $151,470.08 in fees.
•
In People Against Police Violence v. City of
Pittsburgh, the plaintiffs challenged Pittsburgh’s ordinance regulating parades and
crowds in public forums. 520 F.3d 226, 230
(2008). The court preliminarily enjoined the
ordinance, and the city immediately proposed
a revised ordinance. Id. The parties never litigated the merits of the original ordinance,
but the city still paid $103,718.89 in attorney’s fees. Id.
•
In Watson v. County of Riverside, the plaintiff
sought and obtained a preliminary injunction
preventing the county from introducing a police report in his administrative termination
proceedings. 300 F.3d 1092, 1094 (9th Cir.
2002). The court later granted judgment for
defendants on all claims except one—on
which the court merely denied summary judgment—but because the administrative hearing was over, that claim was moot. Id. The
county still paid $153,988.41 in fees, including
fees for post-preliminary-injunction work,
even though the plaintiff did not prevail on
7
the legal merits of any claim. Id. at 1095,
1097.
•
In American Broadcasting Companies, Inc. v.
Ritchie, the plaintiffs challenged a law that
prohibited exit polling within 100 feet of a
polling place. Civil No. 08-5285, 2011 WL
665858, at *1 (D. Minn. Feb. 14, 2011). The
court issued a preliminary injunction against
enforcement of statute for the 2008 election.
After the 2008 election, Minnesota amended
the law to permit exit polling. Id. at *3. Despite an absence of any merits ruling on the
plaintiffs’ claims, the state paid $148,375.27
in fees and expenses. Id. at *10.
And those are just § 1988 cases. The same “prevailing party” language under which courts have
awarded attorney’s fees in moot § 1983 cases based on
preliminary injunctions appears in many other federal
statutes that authorize fee-shifting. See 15 U.S.C.
§ 1117(a) (Lanham Act); 20 U.S.C. § 1415(i)(3)(B)(i)
(Individuals with Disabilities Education Act); 42
U.S.C.A. § 2000e-5(k) (Civil Rights Act of 1964); 42
U.S.C. § 3613(c)(2) (Fair Housing Act); 42 U.S.C.
§ 12205 (Americans with Disabilities Act); 52 U.S.C.
§ 10310(e) (Voting Rights Act). Courts generally have
applied these statutes in the same way:
•
In Douglas v. District of Columbia, a plaintiff
sued under the Individuals with Disabilities
Education Act and obtained a preliminary injunction directing the public school to permit
him to return to and complete a program for
at-risk students. 67 F. Supp. 3d 36, 39 (D.D.C.
8
2014). Because the plaintiff was allowed to return to school, the case was mooted before any
merits decision. But the district court ordered
the school system to pay $17,009.62 in fees
under 20 U.S.C. § 1415(i)(3)(B)(i). Id. at 39, 44.
•
In Tri-City Community Action Program, Inc.,
v. City of Malden, the plaintiffs wished to retrofit a house to bring it into compliance with
the ADA. 680 F. Supp. 2d 306, 308 (D. Mass.
2010). They sought and obtained a preliminary injunction preventing the city from interfering. Id. at 310. The construction ended,
mooting the suit, before any further litigation
occurred. Id. at 310–11. The City paid $49,999 in
fees under 42 U.S.C. § 3613(c)(2). Id. at 317.
•
And in Davis v. Perry, the plaintiffs challenged
a redistricting plan adopted by the Texas legislature. 991 F. Supp. 2d 809, 815 (W.D. Tex.
2014). The court enjoined the plan because it
had not been precleared under the Voting
Rights Act, and the court issued its own interim plan for the 2012 election. Id. at 816. After preclearance was denied by a different
district court, the Texas Legislature passed a
new plan, which mirrored the court’s interim
plan, mooting the case. Id. at 818. The district
court ordered Texas to pay $363,378.43 under
§ 1988 and § 10310(e) because the plaintiffs
obtained “judicially sanctioned interim relief.”
Davis v. Abbott, 781 F.3d 207, 213 (5th Cir.
2015). This time, however, the court of appeals
reversed the fee award. Id. at 215 (holding
that the plaintiffs were not prevailing parties
because the preliminary relief did not arise
9
from a prediction of future success on the merits).
In short: what happened to Ohio happens a lot.
B. The circuit courts have failed to establish a clear and consistent test for when
a preliminary injunction supports a fee
award in a case that ends without a
merits judgment.
Because this question of fee eligibility for preliminary-injunction winners is a recurring one, it stands to
reason that the rule for deciding it, like standards for
fee eligibility in general, should be clear and easy to
administer. See Buckhannon Bd. & Care Home, Inc. v.
W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 610
(2001). But most circuit courts have not provided such
a rule. In addition to coming up with a number of different and often conflicting formulations of a rule to
govern fee eligibility (as the petition demonstrates),
circuit courts have mostly chosen amorphous, fact-specific rules over bright lines. See Dearmore v. City of
Garland, 519 F.3d 517, 521 (5th Cir. 2008) (“[C]ircuit
courts considering this issue have announced fact-specific standards that are anything but uniform.”).
Just two circuit courts have established a brightline rule to govern the fee-eligibility question presented
here. In the Third and Fourth Circuits, a plaintiff who
wins a preliminary injunction is not a “prevailing
party” on that basis alone because the plaintiff has
not won anything on the merits. See Singer Mgmt.
10
Consultants, Inc. v. Milgram, 650 F.3d 223, 229 (3d Cir.
2011) (en banc); Smyth ex rel. Smyth v. Rivero, 282 F.3d
268, 277 (4th Cir. 2002).2
Other circuits’ rules are messier.
Start with the Sixth Circuit, whose test is especially hard to pin down (as the Ohio officials found in
this case). A principal circuit case considering the
question of fees for preliminary-injunction winners
in detail never articulated a test, instead just describing the inquiry as “contextual and case-specific.”
McQueary v. Conway, 614 F.3d 591, 601 (6th Cir. 2010).
And the panel below embraced the amorphous nature
of that standard in affirming the district court’s decision to award fees, deeming it sufficient that the
preliminary injunction amounted to success on a
“significant issue” that “achieved some benefit” and
conferred a “lasting change” in the parties’ legal relationship. Planned Parenthood Sw. Ohio Region v.
Dewine, 931 F.3d 530, 542 (6th Cir. 2019). It is not clear
from the decision below how “significant” the issue won
must be, or how much the plaintiff must “benefit” from
it, or how long of a change in legal relationship is “lasting” enough to meet this standard.
The Eighth Circuit also injects needless subjectivity into this inquiry. Its test puts dispositive weight on
whether a preliminary injunction “merely maintains
2
Even the Third Circuit left room for uncertainty, however.
In Singer, that court described a different case as “that rare situation where a merits-based determination is made at the injunction stage” and thus did support a fee award. 650 F.3d at 229.
11
the status quo.” N. Cheyenne Tribe v. Jackson, 433 F.3d
1083, 1086 (8th Cir. 2006). But that question appears
to turn not simply on whether the preliminary injunction preserved the existing state of affairs, but rather
on a subjective determination of how “thorough[ly]” the
district court considered the merits of the claim at issue in granting the injunction. Compare N. Cheyenne
Tribe, 433 F.3d at 1086 (denying fee award after defendants’ voluntary action mooted the case because,
although the preliminary-injunction order addressed
likelihood of success on the merits, it “did not discuss
whether those claims would entitle the Tribes to final
relief on the merits against the Secretary”) with Rogers
Grp., Inc. v. City of Fayetteville, 683 F.3d 903, 910 (8th
Cir. 2012) (granting fee award based on preliminary injunction that prevented new rock-quarry regulations
from going into effect because the order “engaged in a
thorough analysis of the probability that Rogers
Groups would succeed on the merits of its claim”—
even though that injunction just maintained the realworld status quo).
Other circuits introduce uncertainty into their
tests by asking whether the preliminary injunction was
based on an “unambiguous indication of probable success on the merits” as opposed to reasoning less related
to the merits. Dearmore, 519 F.3d at 524; Kan. Judicial
Watch, 653 F.3d at 1239 (same); see also, e.g., Select Milk
Producers, Inc. v. Johanns, 400 F.3d 939, 948 (D.C. Cir.
2005) (affirming fee award to a preliminary-injunction
winner and emphasizing that the “Milk Producers secured a preliminary injunction in this case largely
12
because their likelihood of success on the merits was
never seriously in doubt”). Even putting aside the obvious problem of how to deal with opaque or cursory preliminary-injunction orders, that “is it enough on the
merits” line is especially troublesome to find with any certainty. Courts employ a “bewildering variety of formulations” to decide whether the likelihood of success on
the merits is high enough to secure a preliminary injunction, 11A Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 2948.3 (3d ed. 2019)
(listing fourteen different articulations), and many allow the requisite likelihood of success to increase or
decrease on a sliding scale depending on the strength
of the other preliminary-injunction factors. See, e.g.,
Hoosier Energy Rural Elec. Co-op. v. John Hancock Life
Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) (“How strong
a claim on the merits is enough depends on the balance of harms: the more net harm an injunction can
prevent, the weaker the plaintiff ’s claim on the merits
can be while still supporting some preliminary relief.”);
Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1317–18
(D.C.Cir.1998) (discussing the four factors that a court
must balance on a sliding scale in considering a request
for a preliminary injunction); see also Reilly v. City of
Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017); Citigroup
Glob. Markets, Inc. v. VCG Special Opportunities Master
Fund Ltd., 598 F.3d 30, 36–38 & n.5 (2d Cir. 2010). Deciding whether the district court examined the merits
“serious[ly]” enough is a fraught endeavor given this
landscape, and a particularly “unstable threshold to fee
eligibility.” Tex. State Teachers Ass’n v. Garland Indep.
Sch. Dist., 489 U.S. 782, 791 (1989).
13
In addition to the fuzzy “is it enough on the merits”
inquiry, at least the Fifth Circuit has added into its test
the knotty question whether the preliminary injunction also “cause[d] the defendant to moot the action.”
Dearmore, 519 F.3d at 524. That question pushes
courts not only to assess motives and mental states of
government officials, but also to make a subjective
judgment about just how strong the causative link between the injunction and the mooting action has to be.
Did the defendants moot the action because they were
enjoined, or for some other reason, or for a combination
of reasons? If the latter, which reason did they care
about most? Hardly the stuff of “ready administrability.” Buckhannon, 532 U.S. at 610; Garland, 489 U.S. at
791 (rejecting “central issue” test for “prevailing party”
question because “[b]y focusing on the subjective importance of an issue to the litigants, it asks a question
which is almost impossible to answer,” since it “appears
to depend largely on the mental state of the parties”).
The circuit courts are not just deeply divided over
the question of when preliminary-injunction winners
are “prevailing parties”—they are also fashioning
messy and difficult tests for answering the question
that often apply in unpredictable ways.
C. Messy tests for fee eligibility impose needless costs on states and their residents.
The circuit courts’ amorphous, unpredictable tests
are not just trouble for district and circuit courts trying
14
to apply them; they are also costly in a number of ways
for states and their officials.
First, these tests impose the same obvious costs as
any “unstable threshold[s] to fee eligibility”: a second
major litigation when the case was supposed to be all
but over. Garland, 489 U.S. at 791. Time and again this
Court has rejected complicated rules for fee eligibility
to avoid subjecting parties to the needless costs in time
and resources of litigating over fees. The Court rejected
the “central issue” test for just this reason. Id. (“Creating such an unstable threshold to fee eligibility is sure
to provoke prolonged litigation, thus deterring settlement of fee disputes and ensuring that the fee application will spawn a second litigation of significant
dimension.”) Same with the “catalyst theory” tossed
away in Buckhannon, 532 U.S. at 609 (rejecting the
theory because it required a “highly factbound” and
“nuanced ‘three thresholds test’ ”).
Second, these tests frustrate the States’ ability to
make informed litigation and policy decisions on behalf
of their residents. When deciding whether and how to
defend against a lawsuit, a state must balance a number of competing interests, including defending duly
enacted laws, implementing effective policies, safeguarding its citizens’ rights, and protecting the public
fisc. See, e.g., In re Witness Before Special Grand Jury
2000-2, 288 F.3d 289, 293 (7th Cir. 2002) (explaining
that government lawyers have ethical duties to protect
the public interest and the public fisc); Steven K. Berenson, Public Lawyers, Private Values: Can, Should,
and Will Government Lawyers Serve the Public
15
Interest?, 41 B.C. L. Rev. 789, 789 (2000). The state’s
exposure to attorney’s fees is an important variable in
that calculus, and it ought to be a controllable one: the
state should remain exposed to a costly fee award only
so long as it continues the litigation, since fees are usually allowed only if the plaintiff actually wins the case.
But the circuit courts’ tests replace this modicum of
control with uncertainty because they sometimes allow
fee awards even when a state decides to stop litigating—for instance, because changing a law would better
serve the public interest—after a preliminary injunction is entered. And worse, unlike before the preliminary injunction, the state can no longer assess its
exposure to a fee award simply by evaluating the merits of the claims against it. Instead, it must try to predict the outcome of a subjective, “context-specific,” and
inconsistently applied legal test to figure out whether
amending a law or changing a policy will also subject
the state to a six-figure fee award.
Finally, in addition to needlessly complicating the
States’ litigation and policy decisions, most of the circuits’ tests distort the States’ incentives in making
those decisions. See Evans v. Jeff D., 475 U.S. 717, 734–
35 (1986) (explaining that uncertainty regarding fee
exposure often prevents settlement, especially in
§ 1983 litigation, where the fee awards often represent
“the most significant liability in the case”) (citation
omitted). The specter of high fee awards is usually a
disincentive to litigate: all else equal, rational parties
will try to avoid paying attorney’s fees of six or seven
figures, and the surest way to avoid that is to resolve
16
the dispute before either party wins the case (and thus
can be called a “prevailing party”). See id. at 733 (explaining that settlement is often in the best interests
of both plaintiffs and defendants because it offers cost
certainty and ensures relief “at an earlier date without
the burdens, stress, and time of litigation”) (quoting
Marek v. Chesny, 473 U.S. 1, 10 (1985)). And states
should be especially averse to spending the public’s
money on such fees instead of for the public good.
But that incentive is reversed by unpredictable
rules that can result in fee awards to a preliminaryinjunction winner. Id. at 736–37 (predicting that “parties to a significant number of civil rights cases will refuse to settle if liability for attorney’s fees remains
open, thereby . . . unnecessarily[ ] burdening the judicial system, and disserving civil rights litigants”). Under the shadow of such rules, the logical move for
states that wish to avoid spending the public’s money
on large fee awards is to litigate cases to the hilt rather
than explore other options that might better serve the
public interest. See Buckhannon, 532 U.S. at 608 (explaining that a defendant may be deterred from “altering its conduct,” especially if the conduct “may not be
illegal,” if doing so will result in a fee award). After all,
under these rules, the States’ alternatives to continuing to litigate—for example, amending a challenged
law or regulation, reversing a challenged action, or declining to enforce a challenged policy—could actually
lock in a substantial fee award against them. See, e.g.,
Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 717–
18 (9th Cir. 2013) (affirming a fee award because the
17
city’s compromise solution with the plaintiffs “transformed what had been temporary relief capable of being undone . . . into a lasting alteration of the parties’
legal relationship”); Dearmore, 519 F.3d at 526 (holding that the plaintiff was a prevailing party, despite not
obtaining a final judgment, because the city amended
the ordinance rather than litigating to finality); People
Against Police Violence, 520 F.3d at 233 (same).
Consider, for example, how Common Cause and
Curling have the potential to shape Georgia’s response
to future § 1983 suits. In Common Cause, the court issued a preliminary injunction against enforcement of
Georgia’s voter ID law. 554 F.3d at 1340. In response,
Georgia enacted a new voter ID law, and it ultimately
defended the law successfully because the court found
that the State’s interest in preventing voter fraud outweighed any burden on voters. Id. at 1348. Given the
district court’s finding, Georgia might well have prevailed on the merits had it defended the original law,
too. But because Georgia chose a legislative solution
instead, it was rewarded with a $112,235.03 bill for attorney’s fees. And in Curling, Georgia took legislative
action even before a preliminary injunction was issued.
397 F. Supp. 3d at 1334. Yet the court still issued a preliminary injunction, and the plaintiffs now seek close
to $6 million in fees on that basis. If Georgia is ultimately ordered to pay that massive award (or even a
significant portion of it), the lesson is doubly clear:
even if the public interest might otherwise be best
served by a legislative fix, Georgia should litigate to
the bitter end if it wants to protect the public fisc.
18
II.
The circuit courts are applying tests for fee
eligibility that conflict with this Court’s
precedents.
Section 1988 authorizes courts to allow a reasonable attorney’s fee to a “prevailing party” in civil rights
actions. That term of art imposes a pair of basic requirements for fee eligibility. First, the party must
have won a “court-ordered ‘change in the legal relationship between’ ” the parties. Buckhannon, 532 U.S. at
604 (quoting Garland, 489 U.S. at 792) (cleaned up).
Thus, Buckhannon rejected the circuit courts’ “catalyst
theory” of fee eligibility, under which they had allowed a fee award “if it achieves the desired result
because the lawsuit brought about a voluntary
change in the defendant’s conduct.” Id. at 601. Second,
that requisite court-ordered change in legal relationship must be “enduring,” in the sense that the ordered
relief lives on after the case is closed. Sole v. Wyner, 551
U.S. 74, 86 (2007). Thus, Sole held that winning a preliminary injunction against enforcement of a state rule
against nudity in state parks did not make the plaintiff
a prevailing party because by the end of the case, she
had lost on the merits and the challenged rule remained in place. Id. In short, a “prevailing party” is one
who, at the end of the day, wins the lawsuit: the party
gets a desired court-ordered and enduring change in
the legal relationship between the parties.
The decision below departed from this straightforward test. As the petitioners explained, the plaintiffs’
only court-ordered relief was not enduring, because
at the end of the case, their preliminary injunction
19
against the challenged Ohio law was dissolved and that
law remains in effect. Pet. 10. And the real-world outcome that mooted the lawsuit was not court-ordered,
because it was brought about by the FDA’s action. Pet.
App. 9a. Sole and Buckhannon respectively held that
neither of these circumstances is enough to make
someone a “prevailing party.” See Sole, 551 U.S. at 86
(holding that the plaintiff ’s “initial victory was ephemeral” because “[a]t the end of the fray,” the law remained intact, and so she had “gained no enduring”
relief ); Buckhannon, 532 U.S. at 605 (“Never have we
awarded attorney’s fees for a ‘nonjudicial alteration of
actual circumstances.’ ”) (citation omitted). Cobbling
together the combination—a preliminary injunction
that does not provide enduring relief, and a desired
outcome that did not come from a court order—as a
recipe for attorney’s fees conflicts with those clear
holdings.
Other circuit courts addressing fee awards for
preliminary-injunction winners have made the same
mistake. See Higher Taste, 717 F.3d at 718 (allowing
fee award to preliminary-injunction winner because a
settlement between the parties was “enduring” relief );
Common Cause, 554 F.3d at 1356 (affirming a fee
award because the preliminary injunction was dissolved when Georgia “repealed the enjoined statute,”
not “by any judicial decision”). The Fifth Circuit even
appears to have revived the circuits’ old catalyst theory
by declaring a party eligible for a fee award if it wins a
preliminary injunction “that causes the defendant to
20
moot the action” by giving the plaintiffs the relief they
sought in the lawsuit. Dearmore, 519 F.3d at 524 (emphasis added); see also Buckhannon, 532 U.S. at 601
(defining the “catalyst” theory as permitting recovery
if the plaintiff “achieve[d] the desired result because
the lawsuit brought about a voluntary change in the
defendant’s conduct”). Just like the catalyst theory
Buckhannon rejected, this test expressly allows fees
because the plaintiff ’s lawsuit brought about nonjudicial relief. See id. at 605 (“A defendant’s voluntary
change in conduct, although perhaps accomplishing
what the plaintiff sought to achieve by the lawsuit,
lacks the necessary judicial imprimatur on the
change.”).
This is not to say this Court’s current precedents
leave no opening for a preliminary injunction to ever
serve as the basis for attorney’s fees. See Sole, 551 U.S.
at 86 (leaving open 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”). A
preliminary injunction that itself moots the suit by
providing the enduring relief the plaintiff sought—for
instance, by permitting a plaintiff to hold a parade,
which is all the plaintiff sought from a lawsuit—presents a harder question. But consistent with the plain
language of § 1988, the Court’s precedents always require a plaintiff to win (1) court-ordered (2) enduring
relief to be a “prevailing party.” Buckhannon, 532 U.S.
at 605–06 (explaining that the “plain language of the
21
statutes” forbids awarding “attorney’s fees for a nonjudicial ‘alteration of actual circumstances’ ”) (citation
omitted); Garland, 489 U.S. at 792 (holding that the
“ordinary” meaning of § 1988 means that the plaintiff
prevails only if it can “point to a resolution of the dispute which changes the legal relationship between itself and the defendant”); Hewitt v. Helms, 482 U.S. 755,
760 (1987) (“Respect for ordinary language requires
that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail.”) (citation omitted). Allowing fee awards when a preliminary
injunction order does not fit that bill exceeds the authority granted to courts under that statute.
-----------------------------------------------------------------------
CONCLUSION
The circuit courts have acknowledged a deep and
persistent conflict of authority on the question whether
a plaintiff who wins a preliminary injunction but never
a merits judgment can seek attorney’s fees from state
officials under § 1988. The States urge this Court to
provide a clear rule that governs in that recurring
scenario so they can make sound litigation and policy
decisions on behalf of their residents.
Respectfully submitted,
CHRISTOPHER M. CARR
Attorney General of Georgia
ANDREW A. PINSON
Solicitor General
Counsel of Record
22
DREW F. WALDBESER
Assistant Solicitor General
OFFICE OF THE GEORGIA
ATTORNEY GENERAL
40 Capitol Square, SW
Atlanta, Georgia 30334
(404) 651-9453
apinson@law.ga.gov
Counsel for the State
of Georgia
ADDITIONAL COUNSEL
STEVE MARSHALL
Attorney General
of Alabama
DANIEL CAMERON
Attorney General
of Kentucky
KEVIN G. CLARKSON
Attorney General
of Alaska
JEFF LANDRY
Attorney General
of Louisiana
LESLIE RUTLEDGE
Attorney General
of Arkansas
JIM HOOD
Attorney General
of Mississippi
LAWRENCE WASDEN
Attorney General
of Idaho
ERIC SCHMITT,
Attorney General
of Missouri
CURTIS T. HILL, JR.
Attorney General
of Indiana
TIMOTHY C. FOX
Attorney General
of Montana
DEREK SCHMIDT
Attorney General
of Kansas
DOUG PETERSON
Attorney General
of Nebraska
23
MIKE HUNTER
Attorney General
of Oklahoma
HERBERT H. SLATTERY III
Attorney General
of Tennessee
ALAN WILSON
Attorney General
of South Carolina
KEN PAXTON
Attorney General
of Texas
JASON RAVNSBORG
Attorney General
for South Dakota
SEAN D. REYES
Attorney General
of Utah
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.