Respondents Brief — Dave Yost, et al., Petitioners v. Planned Parenthood Southwest Ohio Region, et al.

No. 19-677

IN THE

Supreme Court of the United States

______________________________________________________

DAVID YOST, ET AL.,

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 IN OPPOSITION

______________________________________________________

Helene T. Krasnoff

PLANNED PARENTHOOD

FED. OF AMERICA

1110 Vermont Ave., NW

Suite 300

Washington, DC 20005

Counsel for Respondents

Planned Parenthood

Southwest Ohio Region

and Planned Parenthood

of Greater Ohio

B. Jessie Hill

ACLU OF OHIO

Case Western Reserve

Univ., School of Law

11075 East Blvd.

Cleveland, OH 44106

Counsel for Respondent

Preterm

Jennifer L. Branch

Counsel of Record

GERHARDSTEIN &

BRANCH CO. LPA

441 Vine Street

Suite 3400

Cincinnati, OH 45202

(513) 621-9100

jbranch@gbfirm.com

Counsel for Respondents

Planned Parenthood

Southwest Ohio Region,

Planned Parenthood of

Greater Ohio, and Preterm

i

QUESTION PRESENTED

Respondents brought suit under 42 U.S.C. § 1983

to challenge a state statute and obtained a preliminary injunction based on a determination that they

were likely to succeed on the merits of their claim. The

injunction they obtained restrained enforcement of

that statute for almost twelve years, at which point

the federal government, a non-party, mooted the dispute. The question presented is whether the Sixth

Circuit correctly affirmed the district court’s determination that Respondents are eligible for costs and attorney’s fees under 42 U.S.C. § 1988 for their work

litigating the preliminary injunction.

ii

CORPORATE DISCLOSURE STATEMENT

Respondents Planned Parenthood of Southwest

Ohio, Planned Parenthood of Greater Ohio, and Preterm are non-profit corporations and do not have parent corporations. No publicly held corporation owns

ten percent or more of Planned Parenthood of Southwest Ohio’s, Planned Parenthood of Greater Ohio’s, or

Preterm’s stock.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

CORPORATE DISCLOSURE STATEMENT .......... ii

TABLE OF AUTHORITIES ......................................v

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

STATEMENT OF THE CASE .................................. 2

Ohio Criminalizes The Most Common

Protocol For Medically Terminating A

Pregnancy ...................................................... 2

Respondents Obtain And Maintain A

Preliminary Injunction Based On Their

Likelihood Of Success ................................... 3

The FDA Moots The Action After The

Preliminary Injunction Had Remained

In Place For Years......................................... 5

The Lower Courts Deem Respondents

Eligible For Fees Based On Their

Success At The Preliminary Injunction

Stage .............................................................. 6

REASONS FOR DENYING CERTIORARI ............. 9

I.

The Question Presented Does Not

Warrant Review.................................................. 9

A. There is no circuit split that merits

this Court’s attention. ................................... 9

B. The decision below is correct. ..................... 20

C. This case is a poor vehicle........................... 22

iv

D. The question is not important. ................... 23

II. The Decision Below Does Not Present The

Standing Question Asserted In The

Petition.............................................................. 27

CONCLUSION ........................................................ 34

v

TABLE OF AUTHORITIES

Page(s)

Cases

Buckhannon Bd. & Care Home, Inc. v.

W. Va. Dep’t of Health & Human Res.,

532 U.S. 598 (2001) ............................ 21, 22, 23, 25

Budinich v. Becton Dickinson & Co.,

486 U.S. 196 (1988) ..............................................29

City of Riverside v. Rivera,

477 U.S. 561 (1986) ..............................................26

Common Cause/Ga. v. Billups,

554 F.3d 1340 (11th Cir. 2009)......................10, 17

Conway v. McQueary,

562 U.S. 1137 (2011) ............................................11

Cordray v. Planned Parenthood

Cincinnati Region,

911 N.E.2d 871 (Ohio 2009) ..................................2

Craig v. Boren,

429 U.S. 190 (1976) ..............................................32

Davis v. Abbott,

136 S. Ct. 534 (2015)............................................11

Dearmore v. City of Garland,

519 F.3d 517 (5th Cir. 2008)................ 9, 11, 12, 15

vi

Deja Vu of Nashville, Inc. v. Metro.

Gov’t of Nashville & Davidson Cty.,

421 F.3d 417 (6th Cir. 2005)..........................30, 31

Dubuc v. Green Oak Twp.,

312 F.3d 736 (6th Cir. 2002)..................................7

Dupuy v. Samuels,

423 F.3d 714 (7th Cir. 2005).................... 10, 14, 15

Farrar v. Hobby,

506 U.S. 103 (1992) ..............................................21

Haley v. Pataki,

106 F.3d 478 (2d Cir. 1997) .............................9, 12

Harper v. Va. Dep’t of Taxation,

509 U.S. 86 (1993) ..........................................28, 30

Henderson ex rel. NLRB v. Bluefield

Hosp. Co.,

902 F.3d 432 (4th Cir. 2018)................................19

Hensley v. Eckerhart,

461 U.S. 424 (1983) ................................. 26, 27, 30

Hescott v. City of Saginaw,

757 F.3d 518 (6th Cir. 2014)................................31

Higher Taste, Inc. v. City of Tacoma,

717 F.3d 712 (9th Cir. 2013)........ 10, 12, 14, 15, 16

Ins. Corp. of Ireland v. Compagnie des

Bauxites de Guinee,

456 U.S. 694 (1982) ..............................................29

vii

John T. ex rel. Paul T. v. Del. Cty.

Intermediate Unit,

318 F.3d 545 (3d Cir. 2003) .................................15

Kan. Judicial Watch v. Stout,

653 F.3d 1230 (10th Cir. 2011).................. 8, 10, 17

King v. Kan. Judicial Watch,

565 U.S. 1246 (2012) ............................................11

Landgraf v. USI Film Prods.,

511 U.S. 244 (1994) ..............................................29

Lefemine v. Wideman,

568 U.S. 1 (2012) ..................................................21

Live Gold Operations, Inc. v. Dow,

565 U.S. 977 (2011) ..............................................11

McQueary v. Conway,

614 F.3d 591 (6th Cir. 2010).......... 7, 10, 13, 15, 31

Messmer v. Harrison,

No. 5:15-CV-97-BO, 2016 WL

316811 (E.D.N.C. Jan. 26, 2016) .........................20

N. Cheyenne Tribe v. Jackson,

433 F.3d 1083 (8th Cir. 2006)........................14, 16

N.Y. Gaslight Club, Inc. v. Carey,

447 U.S. 54 (1980) ................................................31

Nat’l Amusements Inc. v. Borough of

Palmyra,

716 F.3d 57 (3d Cir. 2013) ...................................18

viii

People Against Police Violence v. City of

Pittsburgh,

520 F.3d 226 (3d Cir. 2008) .............................9, 18

Planned Parenthood Cincinnati Region v.

Taft,

337 F. Supp. 2d 1040 (S.D. Ohio 2004) .........3, 4, 5

Planned Parenthood Cincinnati Region v.

Taft,

444 F.3d 502 (6th Cir. 2006)..................................4

Planned Parenthood Sw. Ohio Region v.

Strickland,

331 F. App’x 387 (6th Cir. 2009) ...........................5

Race v. Toledo-Davila,

291 F.3d 857 (1st Cir. 2002) ................................10

Radvansky v. City of Olmsted Falls,

496 F.3d 609 (6th Cir. 2007)................................16

Real Truth About Obama, Inc. v. FEC,

575 F.3d 342 (4th Cir. 2009)................................19

Reynoldsville Casket Co. v. Hyde,

514 U.S. 749 (1995) ..............................................29

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

683 F.3d 903 (8th Cir. 2012).................... 10, 14, 15

Rum Creek Coal Sales, Inc. v. Caperton,

926 F.2d 353 (4th Cir. 1991)................................19

Safety-Kleen, Inc. (Pinewood) v. Wyche,

274 F.3d 846 (4th Cir. 2001)................................19

ix

Saint John’s Organic Farm v. Gem Cty.

Mosquito Abatement Dist.,

574 F.3d 1054 (9th Cir. 2009)..............................31

Select Milk Producers, Inc. v. Johanns,

400 F.3d 939 (D.C. Cir. 2005) ............ 10, 13, 15, 19

Singer Mgmt. Consultants, Inc. v.

Milgram,

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

Sixth Angel Shepherd Rescue, Inc. v.

Bengal,

No. CIV.A. 10-1733, 2013 WL

5309269 (E.D. Pa. Sept. 23, 2013) .......................18

Smyth v. Rivero,

282 F.3d 268 (4th Cir. 2002)..........................18, 19

Sole v. Wyner,

551 U.S. 74 (2007) ...................... 8, 9, 13, 16, 23, 25

Swift & Co. v. United States,

276 U.S. 311 (1928) ..............................................29

Taylor v. City of Fort Lauderdale,

810 F.2d 1551 (11th Cir. 1987)............................15

Tri-City Cmty. Action Program, Inc. v.

City of Malden,

680 F. Supp. 2d 306 (D. Mass. 2010) ..................12

Veasey v. Wilkins,

158 F. Supp. 3d 466 (E.D.N.C. 2016) ..............9, 20

x

Watson v. Cty. of Riverside,

300 F.3d 1092 (9th Cir. 2002)..........................8, 15

Winter v. Nat. Res. Defense Council, Inc.,

555 U.S. 7 (2008) ..................................................19

Young v. City of Chicago,

202 F.3d 1000 (7th Cir. 2000)........................16, 17

Statutes

42 U.S.C. § 1983 ............................................ 28, 30, 32

42 U.S.C. § 1988 ........................................ 6, 18, 25, 26

Other Authorities

Brief for Respondent/Cross Petitioner,

June Medical Servs. L.L.C. v. Russo,

Nos. 18-1323, 18-1460 (U.S. Dec. 26,

2019) .....................................................................32

1

INTRODUCTION

In 2004, Respondents filed suit challenging the

constitutionality of an Ohio law. They obtained a preliminary injunction based on their likelihood of success on the merits. As a result of Respondents’ efforts,

the district court restrained enforcement of the law

for twelve years, until the dispute was mooted by the

federal government. Respondents subsequently

sought to recover fees and costs for their work litigating the preliminary-injunction phase of the case. The

Sixth Circuit affirmed the district court’s determination that fees were warranted on these facts.

Petitioners attempt to manufacture a circuit split

to challenge the district court’s fact-specific determination that fees were warranted here, and they even

try to use this fee dispute to reopen the merits of the

case. This Court should reject both efforts.

First, there is no “entrenched” circuit split meriting this Court’s review. Pet. 1. Courts in every circuit

are willing to award fees when the plaintiff has secured a merits-based preliminary injunction and the

case becomes moot before a final determination on the

merits. A single circuit, the Fourth Circuit, arguably

adopted a different approach in 2002, but its eighteenyear old decision rests on a since-abrogated approach

to the preliminary-injunction inquiry. This case is

also a poor vehicle to address the question presented,

which is not nearly as important as Petitioners suggest it is.

Second, there is no reason to hold this case pending the Court’s resolution of June Medical Services

2

L.L.C. v. Russo (Nos. 18-1323, 18-1460). Whatever

June Medical says about third-party standing will not

change Respondents’ prevailing-party status. The underlying merits of the case are no longer on direct review. Petitioners cannot use this collateral fee dispute

to reopen a closed question.

STATEMENT OF THE CASE

Ohio Criminalizes The Most Common Protocol

For Medically Terminating A Pregnancy

In 2004, Ohio made it a felony for physicians to

use the safest and most commonly used protocol for

terminating a pregnancy using medications alone,

even when that protocol was necessary to protect

their patients’ lives or health. Pet. App. 3a-4a. Under

Ohio House Bill 126 (HB 126 or the Act), physicians

were prohibited from prescribing the medication mifepristone to terminate a pregnancy after “the patient’s 49th day of pregnancy,” and from using any

dosage indications or treatment protocols not “expressly approved by the FDA in the drug’s final

printed labeling.” Cordray v. Planned Parenthood

Cincinnati Region, 911 N.E.2d 871, 879 (Ohio 2009).

HB 126 was a significant change from the evidencebased protocol in widespread use at the time.1 This

evidence-based protocol provided for use of mifepristone through the 63rd day of pregnancy, and at a

lower dosage than indicated on the FDA label. Pet.

App. 3a-4a.

1 Evidence-based, “off-label” protocols are a “standard medical practice” across the medical spectrum. Pet. App. 4a.

3

After HB 126 was signed into law, but before it

went into effect, Respondents (plaintiffs below) filed

suit challenging the constitutionality of HB 126. Pet.

4a-5a. Their complaint alleged four claims: the statute was unconstitutionally vague; it violated their patients’ right to bodily autonomy; it imposed an undue

burden on their patients’ right to abortion; and it violated due process owing to the lack of any exception

from compliance when necessary to protect a patient’s

life or health. Pet. App. 4a-5a.

Respondents

Obtain

And

Maintain

A

Preliminary Injunction Based On Their

Likelihood Of Success

Respondents sought a preliminary injunction to

prevent the law from going into effect. Respondents

argued that the law imposed unconstitutional and

dangerous limitations on physicians’ discretion to use

their best medical judgment to provide the safest and

highest quality care to their patients, including by

banning the protocol after 49 days of pregnancy (before many patients even know they are pregnant), and

even banning its use when necessary to protect a patient’s life or health. D.Ct. Dkt. 2 at 15-17.

In September 2004, the district court held a twoday preliminary injunction hearing with live witnesses, including physician experts. Pet. App. 5a;

Planned Parenthood Cincinnati Region v. Taft, 337 F.

Supp. 2d 1040, 1043, 1047 (S.D. Ohio 2004). The court

preliminarily enjoined the entire Act based on its failure to include an exception where the Act would pose

a threat to patients’ health or lives. Id. at 1046-48.

4

“Plaintiffs have … shown a strong likelihood of success on the merits because it is highly unlikely that

Defendants will be able to prove that there are no circumstances in which the Act’s regulation of mifepristone would cause significant health risks.” Id. at 1047.

As a result, “Plaintiffs have a substantial likelihood

of success on the merits that the Act violates the Due

Process Clause and is unconstitutional.” Id. The court

went through the remaining factors for preliminary

injunctive relief and concluded that, because the Act

“threatens or impairs Plaintiffs’ patients’ constitutional right to Due Process,” these factors were also

met. Id. at 1047-48.

Although further proceedings limited the scope of

the preliminary injunction, the Sixth Circuit confirmed that the preliminary injunction rested on Respondents’ “strong likelihood of succeeding on the

merits of their claim that the Act is unconstitutional

because it lacks a health or life exception.” Planned

Parenthood Cincinnati Region v. Taft, 444 F.3d 502,

518 (6th Cir. 2006). The Sixth Circuit kept in place a

preliminary injunction that allowed Respondents to

provide mifepristone where necessary for a patient’s

health or life. Id. at 517.

Over the next ten years, litigation continued, including two rounds of summary-judgment proceedings, an appeal to the Sixth Circuit on summary

judgment, a certification to the Ohio Supreme Court

on the meaning of the Act, and Petitioners’ unsuccessful motion to dismiss the life-or-health-exception

claim. Pet. App. 6a-9a. At no point during these proceedings did the district court or Sixth Circuit ever

hold that Respondents had not prevailed or could not

5

prevail on the merits of their life-or-health-exception

claim. To the contrary, on appeal from the summaryjudgment ruling, the Sixth Circuit explicitly reaffirmed that the preliminary injunction remained in

place: “[T]he preliminary injunction that we affirmed

in part remains in force as per our previous opinion.”

Planned Parenthood Sw. Ohio Region v. Strickland,

331 F. App’x 387, 388 (6th Cir. 2009) (emphasis altered).

That preliminary injunction was not limited to

“circumstances that never arose,” as Petitioners contend. Pet. 7. The district court twice recognized “that

there are women who have medical conditions that

render surgical abortion riskier than the evidencebased protocol for medical abortion” prohibited by the

Act, Taft, 337 F. Supp. 2d at 1047, and that “the articulated circumstances are not hypothetical, as [Respondents] have alleged and the record includes

testimony that they have patients with the specified

conditions,” D.Ct. Dkt. 197 at 10. That latter ruling,

from 2014, was from the court’s denial of Petitioners’

motion to dismiss the life-or-health-exception claim.

This ruling was the last to address the viability of the

life-or-health-exception claim, and Petitioners have

no basis to contradict the court’s conclusion.

The FDA Moots The Action After The

Preliminary Injunction Had Remained In Place

For Years

In March 2016, the FDA revised the label for mifepristone. Pet. App. 9a. The revised label endorsed

the very evidence-based protocol that Respondents

6

sued to be able to provide. Id. Since HB 126’s limitations on the use of mifepristone were tied to the FDA

label, the FDA label change meant that Ohio law no

longer prohibited Respondents from using their preferred protocol through 63 days of pregnancy, and

thus mooted the ban on using mifepristone before 63

days when it would be necessary to protect a patient’s

life or health.

In May 2016, the district court granted the parties’ joint motion to dismiss the case without prejudice

as moot due to the FDA label change. Pet. App. 9a. At

no point did the court issue any order revoking or vacating the preliminary injunction. Pet. App. 14a.

The Lower Courts Deem Respondents Eligible

For Fees Based On Their Success At The

Preliminary Injunction Stage

Respondents had moved for attorney’s fees back

in 2006, but that request was stayed pending the

case’s resolution. Pet. App. 6a-7a. After the case was

mooted, Respondents amended and supplemented

their fee application, moving for fees based solely on

their work through the first appeal of the preliminary

injunction (through February 2006). Pet. App. 9a.

The district court, which presided over the case

throughout its entire trajectory—from its filing in

2004 until the parties stipulated to its dismissal in

2016—granted the motion. Pet. App. 29a-51a. The

court held that Respondents qualified as prevailing

parties under 42 U.S.C. § 1988(b) because the preliminary injunction they obtained was “the type of substantive, ‘lasting change in the legal relationship

7

between the parties’ that warrants fees under § 1988.”

Pet. App. 40a (quoting McQueary v. Conway, 614 F.3d

591, 601 (6th Cir. 2010)). The preliminary injunction

“prohibited application of the Act to the extent that it

did not provide an exception for the health or life of

the woman.” Id. And that injunction was “expressly

affirmed by the Sixth Circuit”—twice. Id. The court

also determined that the requested amount of fees

was reasonable, rejecting Ohio’s argument that the

amount should be reduced due to the Respondents’ degree of success: Respondents were “successful in convincing the Court to enjoin enforcement of the Act to

the extent that its application was unconstitutional.”

Pet. App. 51a.

The Sixth Circuit affirmed the fee award. Pet.

App. 1a-28a. It concluded that Respondents satisfied

the key requirements for prevailing-party status,

namely, that the injunction was based on the merits

and materially altered the legal relationship between

the parties in an enduring way. Pet. App. 3a, 11a-14a.

First, the court explained that Respondents “easily me[t] … [the] requirement” that the preliminary

injunction “‘represents an unambiguous indication of

probable success on the merits.’” Pet. App. 12a-13a

(quoting Dubuc v. Green Oak Twp., 312 F.3d 736, 753

(6th Cir. 2002)). Indeed, the point was undisputed and

had been repeatedly confirmed by the Sixth Circuit.

Pet. App. 12a.

Second, the Sixth Circuit determined that the

preliminary injunction materially altered the legal relationship between the parties. Pet. App. 14a, 19a.

8

The relief obtained “never expired and was not ‘reversed, dissolved, or otherwise undone by the final decision in the same case.’” Pet. App. 14a (quoting Sole

v. Wyner, 551 U.S. 74, 83 (2007)). In other words, and

just as other circuits have found, the mooting of a case

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

undoing the Supreme Court referred to in Sole.” Id.

(citing Watson v. Cty. of Riverside, 300 F.3d 1092,

1096 (9th Cir. 2002); Kan. Judicial Watch v. Stout,

653 F.3d 1230, 1240 (10th Cir. 2011)). The relief the

injunction afforded Respondents was also meaningful, lasting, and nothing like the “ephemeral” relief at

issue in Sole. Pet. App 14a. As the court explained,

“[b]efore Planned Parenthood’s lawsuit, Ohio law prohibited physicians from providing medically-induced

abortion[s] in accordance with the most-up-to-date research and highest standards of medical care.” Pet.

App. 19a. Because of the preliminary injunction, physicians could follow the protocol during the twelve

years it was in effect when necessary for their patients’ life or health, relief that endures on account of

the mootness. Pet. App. 14a, 19a.

The Sixth Circuit also concluded that the district

court did not abuse its discretion in calculating the

amount of fees. Pet. App. 20a-28a.

Petitioners sought rehearing en banc, which the

Sixth Circuit denied without requesting a response or

vote. Pet. App. 52a-53a.

9

REASONS FOR DENYING CERTIORARI

I.

The Question Presented Does Not Warrant

Review.

The circuits are not divided on the question Sole

left open, nor are they divided in how they approach

the determination of prevailing-party status. At most,

there is one circuit outlier, but it is already coming

into alignment. The circuits’ common approach comes

straight from this Court’s precedents, and the Sixth

Circuit correctly applied those precedents to the facts

of this idiosyncratic case. That approach preserves

the balance of interests and incentives Congress and

this Court have already created. And even if the question were otherwise worthy of review, this case is a

poor vehicle.

A. There is no circuit split that merits this

Court’s attention.

In Sole, this Court did not address 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.” 551 U.S. at

86. The circuits have not divided over the answer:

Courts in every circuit to have addressed the question

say, “yes.”2

2 Haley v. Pataki, 106 F.3d 478, 483 (2d Cir. 1997); People

Against Police Violence v. City of Pittsburgh (PAPV), 520 F.3d

226, 228-29, 233-34 (3d Cir. 2008); Veasey v. Wilkins, 158 F.

Supp. 3d 466, 470 (E.D.N.C. 2016); Dearmore v. City of Garland,

10

Not even courts in the Fourth Circuit—which Petitioners cast as the stingiest—categorically refuse to

confer prevailing-party status on party that wins a

preliminary injunction before the case is mooted, as

Petitioners themselves recognize. Pet. 16-17 (describing the Fourth and Third Circuits as “almost never”

awarding fees) (emphasis added); infra 18-20. Nor

does any circuit automatically confer prevailing-party

status just because a party receives any kind of preliminary injunction before the case becomes moot. See

McQueary, 614 F.3d at 601 (observing that “[n]o court

to our knowledge holds that the victors of such holding-pattern [status-quo] injunctions and nothing

more automatically receive fees”); Kansas Judicial

Watch, 653 F.3d at 1237 (“We do not mean to suggest,

of course, that every preliminary injunction will necessarily render the recipient a ‘prevailing party.’”).

Instead, courts across the circuits follow the same

fact-intensive approach, awarding fees to a party that

secures a preliminary injunction before the case becomes moot when the injunction (1) rests on a clear

determination relating to the merits, and (2) alters

519 F.3d 517, 524-26 (5th Cir. 2008); McQueary v. Conway, 614

F.3d 591, 601 (6th Cir. 2010); Dupuy v. Samuels, 423 F.3d 714,

723 & n.4 (7th Cir. 2005); Rogers Grp., Inc. v. City of Fayetteville,

683 F.3d 903, 909-11 (8th Cir. 2012); Higher Taste, Inc. v. City of

Tacoma, 717 F.3d 712, 716-17 (9th Cir. 2013); Kan. Judicial

Watch v. Stout, 653 F.3d 1230, 1238-40 (10th Cir. 2011); Common Cause/Ga. v. Billups, 554 F.3d 1340, 1355-56 (11th Cir.

2009); Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 942

(D.C. Cir. 2005); see also Race v. Toledo-Davila, 291 F.3d 857,

859 (1st Cir. 2002) (recognizing that “an individual may be entitled to attorney’s fees without having obtained a favorable final

judgment following a full trial on the merits”).

11

the legal relationship between the parties in an enduring manner—i.e., it cannot be unwound in further

proceedings in the same case. See Amicus Br. 4-9 (describing courts in the First, Third, Fifth, Sixth,

Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits as

awarding fees “under the same basic set of circumstances”). Any difference in specific outcomes or the

overall incidence of fee awards results not from courts

adhering to different legal standards, but from courts

applying the same standard in a “contextual, casespecific” way. Pet. App. 3a.3

It is therefore no surprise that this Court has repeatedly declined to grant petitions asking whether

and when a party that obtains only a preliminary injunction is a prevailing party. See, e.g., Davis v. Abbott, 136 S. Ct. 534 (2015) (No. 15-46); King v. Kan.

Judicial Watch, 565 U.S. 1246 (2012) (No. 11-829);

Live Gold Operations, Inc. v. Dow, 565 U.S. 977 (2011)

(No. 11-211); Conway v. McQueary, 562 U.S. 1137

(2011) (No. 10-569). Nothing in the Petition suggests

a split has emerged or expanded since those petitions

were denied.

1. To begin, Petitioners correctly recognize that

the Fifth, Ninth, Tenth, Eleventh, and D.C. Circuits

all confer prevailing party status where the plaintiff

3 Petitioners criticize the circuits for having “announced

fact-specific standards that are anything but uniform.” Pet. 2

(quoting Dearmore, 519 F.3d at 521). The first part is correct in

the sense that courts look closely at the facts at hand, but the

second is not. As Petitioners acknowledge, courts can take “effectively the same approach” to the prevailing-party determination

even if they “state[] it differently.” Pet. 20. That is true across

the circuits.

12

secures a preliminary injunction based on a clear determination of likely success on the merits and mootness prevents the injunction from being undone on

the merits. Pet. 19-21; see also Amicus Br. 11 (aligning the Fifth, Tenth, and D.C. Circuits), 19 (aligning

the Ninth, Eleventh, and Fifth Circuits); see supra 9

n.2 (citing cases). Courts in the First and Second Circuits follow the same approach. See Haley, 106 F.3d

at 483, cited with approval in Higher Taste, 717 F.3d

at 717, and Dearmore, 519 F.3d at 525; Tri-City Cmty.

Action Program, Inc. v. City of Malden, 680 F. Supp.

2d 306, 311-15 (D. Mass. 2010) (fees under the Fair

Housing Act Amendments, relying on decisions from

the Third, Fifth, Ninth, and D.C. Circuits). As Petitioners recognize, Respondents qualify as prevailing

parties on the standard these circuits apply. Pet. 21.

Petitioners and amici States suggest that the

Fifth Circuit’s approach differs from the others because it supposedly requires the defendant to have

mooted the action in order for the plaintiff to be eligible for fees. Pet. 19-20; Amicus Br. 13. Not so. Dearmore made clear that its test, which includes an

inquiry into the defendant’s role in mooting the case,

was “only applicable in the limited factual circumstances” presented there, where the defendant (and

not a third party) had indeed caused the mootness.

519 F.3d at 526 n.4. The Fifth Circuit expressly stated

that its approach in that case “does not signal any disagreement with the approaches” of the other circuits

it aligned itself with—the Third, Sixth, Seventh,

Eighth, Ninth, Eleventh, and D.C. Circuits—all of

which impose no requirement that the defendant

moot the case. Id.; see id. at 521-22. That makes

sense, for what matters is not whether a defendant or

13

some other third-party moots the case but that the

plaintiff is not responsible for the mootness.

2. Petitioners next claim that the Seventh,

Eighth, and Sixth Circuits have adopted a distinct

and “intermediate” approach where a preliminary injunction confers prevailing-party status only if the

preliminary relief has an “enduring character.” Pet.

21-22. But the Seventh, Eighth, and Sixth Circuits do

not diverge from the circuit consensus, either.

a. Petitioners first argue that the Seventh and

Eighth Circuits differ from the rest because they use

the terms “indefeasible” or “irreversible” to describe

the nature of the preliminary relief that must be

awarded. Pet. 23. Even Petitioners acknowledge,

however, that other circuits, including the D.C. and

Sixth Circuits, ask whether the preliminary relief is

“irreversible” or “irrevocable.” Pet. 20 (quoting Select

Milk Producers, 400 F.3d at 947); Pet. 23 (quoting

McQueary, 614 F.3d at 597). Petitioners are also

wrong that the Sixth Circuit has “expanded the category of cases in which plaintiffs are eligible for attorney’s fees” by asking whether the relief was “last[ing]”

or “enduring.” Pet. 24, 16.

Whether courts are using the words “indefeasible,” “irrevocable,” “enduring,” or “lasting,” they are

all asking the same central question: Can the relief

secured by the preliminary injunction be “undone by

a final decision in the same case”? Sole, 551 U.S. at 83

(preliminary relief was “fleeting” because it was later

undone on the merits); see Pet. 22 (describing the Seventh Circuit as asking whether “the injunction results

in ‘substantive relief that is not defeasible by further

14

proceedings’” (quoting Dupuy, 423 F.3d at 719) (emphasis added)); Pet. 29 (describing the Seventh and

Eighth Circuits as characterizing relief as “enduring”

when “it is incapable of being unwound in later proceedings”). And when a case becomes moot, the preliminary relief cannot be unwound in any further

merits proceedings because there are no such proceedings. See Higher Taste, 717 F.3d at 717-18 (“mootness provided assurance … that the plaintiff’s initial

victory was enduring rather than ephemeral”; “[i]t

transformed what had been temporary relief capable

of being undone (had the case been litigated to final

judgment) into a lasting alteration of the parties’ legal

relationship”; noting that cases from the Second,

Third, Fifth, Sixth, Seventh, Eighth, and Eleventh

Circuit are in accord). The amici States are right:

“Ohio is not an outlier.” Amicus Br. 4.

b. Petitioners’ contention that the Eighth Circuit

diverges from the other circuits by refusing to award

fees for “status quo” injunctions rests on a misunderstanding of the standard the circuits apply. The “status quo” language Petitioners pluck from Northern

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

Cir. 2006), does not signal an intra-circuit split or distinguish the Eighth Circuit from the other circuits.

Contra Pet. 22-23, 25. When the Eighth Circuit

speaks of the “status quo,” it is not talking about the

effect of the preliminary injunction on the ground but

rather why the court issued it: “Status quo” preliminary injunctions are those the court grants based on

the risk of irreparable harm rather than a clear assessment of the likelihood of success on the merits.

Rogers Group, 683 F.3d at 910 (relying on Northern

Cheyenne). Other circuits use “status quo” in the same

15

way to identify preliminary injunctions that are not

based on a thorough analysis of the merits and so do

not confer prevailing party status.4

c. Any remaining doubt about whether the Sixth,

Seventh, and Eighth Circuits align with the broader

circuit consensus is dispelled by the circuits’ express

recognition that they are in accord. See, e.g., Dupuy,

423 F.3d at 723 n.4 (the Seventh Circuit noting that

its approach “is hardly an outlier among the federal

circuit courts” and that “several of our sister circuits”

follow a similar approach, citing the D.C. Circuit’s Select Milk Producers decision, the Eleventh Circuit’s

decision in Taylor v. City of Fort Lauderdale, 810 F.2d

1551 (11th Cir. 1987), and the Ninth Circuit’s decision

in Watson v. County of Riverside, 300 F.3d 1092 (9th

Cir. 2002)); Higher Taste, 717 F.3d at 717 (citing with

4 See, e.g., McQueary, 614 F.3d at 600 (“[S]tay-put or-status

quo injunctions” “have nothing to do with the merits, offering no

insight into whether one party or the other will prevail at the

end of the case.”), quoted in Rogers Group, 683 F.3d at 910;

Dupuy, 423 F.3d at 723 n.4 (noting the absence of a conflict with

the Eleventh Circuit’s view that fees are appropriate where the

preliminary injunction does not “merely maintain[] the status

quo” but instead rests on a merits determination); Dearmore, 519

F.3d at 524-25 (For prevailing party status, plaintiff must win a

preliminary injunction “based upon an unambiguous indication

of probable success on the merits of the plaintiff’s claims as opposed to a mere balancing of the equities in favor of the plaintiff”;

citing cases from the Second, Sixth, and Eleventh Circuits.);

John T. ex rel. Paul T. v. Del. Cty. Intermediate Unit, 318 F.3d

545, 558-59 (3d Cir. 2003) (No fees awarded in IDEA case where

preliminary injunction was not “merits-based” but instead “was

designed to maintain the status quo during the course of proceedings.”).

16

approval the Eighth Circuit’s Northern Cheyenne decision, the Seventh Circuit’s decision in Young v. City

of Chicago, 202 F.3d 1000 (7th Cir. 2000), and the

Sixth Circuit’s decision in Radvansky v. City of

Olmsted Falls, 496 F.3d 609, 620 (6th Cir. 2007)). Unsurprisingly, then, even the amici States agree that

the Eighth and Sixth Circuits fall in line with the

other circuits (amici do not address the Seventh Circuit). See Amicus Br. 7, 10-12, 19. There is no difference between the approaches of these circuits and the

rest.

d. Instead, it is Petitioners who advance a new

test that no circuit has adopted. In deciding whether

the preliminary relief is irrevocable, courts do not

play out the counterfactual Petitioners set up: If the

case had not been mooted, would the relief have endured? Pet. 23, 28. If courts asked that question, they

would never award fees in cases of mootness, because

it is always true that had the case not become moot,

the preliminary injunction would have been undone if

defendants later prevailed on the merits.

The proper inquiry, and the one that all of the circuits undertake, looks to the actual facts in the litigation, asking, can the relief secured by the preliminary

injunction be undone by further proceedings “in the

same case”? Sole, 551 U.S. at 83. When the case becomes moot, the answer to this question is “no,”

whether mootness arises because of “the passage of

time”—i.e., the protest or parade at issue happens—

“or other circumstances beyond the parties’ control”—

i.e., the legislature changes the law, or, as here, a

third-party administrative agency to which the state

has tied its law alters its position. Higher Taste, 717

17

F.3d at 717; see, e.g., Young, 202 F.3d at 1000-01 (protest takes place); Common Cause/Georgia, 554 F.3d

at 1356 (law changes); Kansas Judicial Watch, 653

F.3d 1230 (rule change); Pet. App. 9a (agency shift in

position).5

3. Finally, Petitioners are wrong to say that the

Third and Fourth Circuits have split off from the others.

a. Petitioners’ characterization of the Third Circuit’s approach relies solely on Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 230 n.4 (3d Cir.

2011) (en banc). See Pet. 17-18. But Singer itself expressly recognizes that preliminary, merits-based relief can qualify for prevailing party status:

[W]e do not mean to ‘cast[] doubt’ on the ‘wellsupported legal proposition’ that, in some

cases, interim injunctive relief may be sufficient to warrant attorney’s fees. We agree

that ‘interim relief remains a proper basis for

an award of attorney’s fees when that relief is

based on a determination of the merits of the

plaintiff’s claims.’

Singer, 650 F.3d at 230 n.4; see also Amicus Br. 10 n.2

(acknowledging as much). Singer held the plaintiff

there was not a prevailing party because the judicial

5 Even if Petitioners’ characterization of what qualifies as

“irrevocable” relief were accurate, Respondents would meet it.

For the twelve years while the preliminary injunction was in

place, Respondents were allowed to provide abortions to patients

whose lives or health required use of the evidence-based protocol. That relief is “irreversible” in every sense of the word.

18

relief at issue—a TRO—“was not merits-based,” with

the district judge explicitly recognizing that he would

“resolve the merits” of the case “at a later date.” 650

F.3d at 230 & n.3.

Singer distinguished (and preserved) the Third

Circuit’s earlier ruling in People Against Police Violence v. City of Pittsburgh, 520 F.3d 226, 233 (3d Cir.

2008) (PAPV), that “where a merits-based determination is made at the [preliminary] injunction stage,”

the award of fees is appropriate. Singer, 650 F.3d at

229-30. PAPV saw itself as in accord with the other

circuits, including the Sixth, Seventh, Ninth, and

D.C. Circuits. See 520 F.3d at 234. And since Singer,

the Third Circuit has reaffirmed—as the other circuits have—that “temporary relief may support

§ 1988 fees, even if the prevailing party does not obtain a final judgment in its favor.” Nat’l Amusements

Inc. v. Borough of Palmyra, 716 F.3d 57, 64 (3d Cir.

2013); see, e.g., Sixth Angel Shepherd Rescue, Inc. v.

Bengal, No. CIV.A. 10-1733, 2013 WL 5309269, at *3

(E.D. Pa. Sept. 23, 2013) (awarding fees because, “[i]n

granting Plaintiffs’ motion for a preliminary injunction, this Court made a merits-based determination

that entitles Plaintiffs to attorney’s fees”), aff’d, 620

F. App’x 146 (3d Cir. 2015). Respondents would be

prevailing parties in the Third Circuit because the

preliminary injunction here rested on an unambiguous merits determination. Pet. App. 12a-13a, 14a. Indeed, Petitioners did not dispute below that the

decision was merits-based. Pet. App. 12a.

b. The Fourth Circuit is the “only one arguably

dissenting Court of Appeals.” PAPV, 520 F.3d at 233

n.4 (citing Smyth v. Rivero, 282 F.3d 268, 276-77 (4th

19

Cir. 2002)). But it has only “apparently” adopted a divergent approach. Select Milk Producers, 400 F.3d at

946. In actuality, courts in the Fourth Circuit follow

the other circuits.

Smyth, which appears to foreclose prevailingparty status where the plaintiff secures only a preliminary injunction, hinged on the Fourth Circuit’s sinceabrogated approach to granting preliminary injunctions. Smyth’s statement that the “merits inquiry in

the preliminary injunction context is necessarily abbreviated,” 282 F.3d at 276, was based on the Fourth

Circuit’s then-governing approach to preliminary injunctions that “virtually eliminate[d] altogether the

inquiry into the likelihood of success on the merits” by

making “the balance of equities … largely determinative of the appropriateness of an injunction.” SafetyKleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 868

(4th Cir. 2001) (Luttig, J., concurring); see, e.g., Rum

Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359,

363 (4th Cir. 1991) (holding that courts should consider the merits only if the balancing of hardships favors the plaintiff, and even then ask only whether the

plaintiff has raised “grave or serious questions” about

the merits). This Court’s decision in Winter v. Natural

Resources Defense Council, Inc., 555 U.S. 7 (2008), abrogated the Fourth Circuit’s approach. See Henderson

ex rel. NLRB v. Bluefield Hosp. Co., 902 F.3d 432, 438

n.* (4th Cir. 2018); Real Truth About Obama, Inc. v.

FEC, 575 F.3d 342, 346 (4th Cir. 2009) (“Because of

its differences with the Winter test, the … balance-ofhardship test may no longer be applied in granting or

denying preliminary injunctions in the Fourth Circuit”), vacated on other grounds, 559 U.S. 1089 (2010).

20

Accordingly, and since Winter, courts in the

Fourth Circuit have recognized that Smyth no longer

controls and have granted prevailing-party status to

plaintiffs that received a preliminary injunction

based on their likelihood of success on the merits before the case became moot. E.g., Veasey v. Wilkins, 158

F. Supp. 3d 466, 469-70 (E.D.N.C. 2016); Messmer v.

Harrison, No. 5:15-CV-97-BO, 2016 WL 316811, at *2

(E.D.N.C. Jan. 26, 2016). (Defendants in neither case

appealed.)

And even were Smyth good law, the Fourth Circuit’s approach there would still not bar fee eligibility

here, where the district court conducted a thorough

(not “abbreviated”) review of the merits at the preliminary-injunction stage and unambiguously determined that Respondents were likely to succeed (a

point the Sixth Circuit repeatedly confirmed). Supra

3-5.

In short, there is no “entrenched, multi-dimensional split” on the question presented. Pet. 12. At

most, there is one outlier that is already coming into

alignment. Only if the Fourth Circuit were to reaffirm

Smyth (despite the abrogation of its preliminary-injunction standard and the circuit consensus) might

the question presented merit review. At minimum,

therefore, further percolation is warranted.

B. The decision below is correct.

This Court’s review is further unwarranted because the Sixth Circuit has adopted the right test—

21

the same one the other circuits use—and it applied it

correctly to the facts of this case.

The Sixth Circuit’s test follows directly from this

Court’s precedents, which make clear that “[a] plaintiff ‘prevails,’ ... ‘when actual relief on the merits of

his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.’”

Lefemine v. Wideman, 568 U.S. 1, 4 (2012) (per curiam) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12

(1992)). It is undisputed that the preliminary injunction here rested on a clear finding that Respondents

were likely to succeed on the merits. Pet. App. 12a;

Pet. 10. That relief also materially altered the legal

relationship between the parties in an enduring way.

Respondents sought to prevent enforcement of the

statute in circumstances where the mifepristone restriction would endanger a patient’s life or health and

they received that relief—the restriction never went

into effect under those circumstances, not during the

twelve years the preliminary injunction was in place,

and not even after the case became moot. Contra Pet.

29-30. And so the restriction Respondents challenged

does not “remain[] in effect,” even if the law, now utterly transformed, is still formally on the books. Amicus Br. 19.6

6 Amici further suggest (at 19) that the relief was not “courtordered” because it resulted from the FDA’s change in protocol.

But the district court first enjoined enforcement of the law and

there can be no doubt that such an order is “judicially sanctioned” relief. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t

of Health & Human Res., 532 U.S. 598, 605 (2001).

22

To the extent Petitioners seek a per se rule that

automatically denies prevailing-party status in the

absence of a final, favorable merits determination

(Pet. 29), this Court should not adopt it. A per se rule

is not required by this Court’s precedents, as even the

amici States acknowledge. Amicus Br. 20. And in fact,

it is precluded by Buckhannon, which recognizes that

a party can qualify as prevailing even when a case

ends with a consent decree—that is, without a final

adjudication on the merits. 532 U.S. at 604. Neither

do policy considerations counsel in favor of a categorical rule. See infra 23-25.

C. This case is a poor vehicle.

Even if the circuits were divided and the decision

below wrong, this idiosyncratic case is a poor vehicle

for addressing the question presented because it is

atypical in three ways.

First, the injunction here was never officially dissolved: “[T]he court never issued a formal order revoking or vacating the injunction.” Pet. App. 14a. As a

result, this is not a case where the preliminary injunction was ever actually undone, even on mootness

grounds.

Second, a third party, not the state defendant,

mooted the case, which was only possible because

Ohio outsourced a key aspect of the law to a federal

actor. The case therefore does not implicate the amici

States’ chief concern that the circuits’ consensus approach prevents them from controlling whether they

will be liable for fees when they lose at the prelimi-

23

nary-injunction stage. Amicus Br. 1, 14-16. Petitioners in this case did not decide to strategically capitulate; rather, the case effectively ended when the FDA

changed the mifepristone label.

Finally, Respondents were protected from the

law’s unconstitutional enforcement for twelve years

before the case become moot. Most cases do not take

nearly so long to resolve. This is not a case, then,

where preliminary relief was only “ephemeral” or

“transient,” and the case against prevailing-party status based solely on such fleeting relief may be

stronger. Sole, 551 U.S. at 86, 78.

D. The question is not important.

This case is not nearly as important as Petitioners

and their amici make it out to be, for the circuits’

shared approach does not give rise to any meaningful

practical problems, and Congress has already abrogated the States’ sovereign immunity from fee awards

like these. Pet. 26-27, 30; Amicus Br. 1, 13-17.

1. As to the States’ policy concerns, the prevailing

approach does not prevent state defendants from taking strategic action to avert fee awards. Contra Amicus Br. 1, 13-17. States can still preempt fee awards

by voluntarily changing their ways before the court

enters a preliminary injunction. In that situation, the

change would “lack[] the necessary judicial imprimatur” this Court requires and plaintiffs would not be

eligible for fees. Buckhannon, 532 U.S. at 605; id. at

601, 605 (no fees where state defendants voluntarily

stayed enforcement and the legislature changed the

law).

24

The amici States further object that the circuits’

“messy” approach denies them needed clarity about

their exposure to fee awards. Amicus Br. 13-17. But

unless this Court adopts a categorical rule—which

the amici States do not ask this Court to do, Amicus

Br. 20-21, and which is at odds with the Court’s precedents, supra 22—the state defendants will never

have total assurance about fees.

That is not a problem: As the amici States show,

even in the current climate, they are able to make sensible decisions about whether to continue or abandon

litigation, presumably because other interests outweigh their fear of fees. E.g., Amicus Br. 4-5 (discussing voting-rights cases where the state altered its

laws or practices after the entry of a preliminary injunction). In other words, even though it is already

true that state defendants might be on the hook for

fees, they do not “litigate cases to the hilt rather than

explore other options that might better serve the public.” Amicus Br. 16. That makes sense. Mooting the

case means that any fee award will be limited to the

work done on the preliminary injunction, which in the

typical case will be modest.7 Pressing ahead “to the

hilt,” on the other hand, wastes additional litigation

resources and risks incurring a much larger fee award

should the state defendants ultimately lose at the end

of the case. Moreover, if states are that concerned

about fees for the preliminary injunction stage, they

are free to negotiate with plaintiffs to get agreement

7 The amici States point (at 5) to one unusually large fee

request. But it is just that—a request—and one the district court

may very well deny or dramatically reduce.

25

to lower or even forego their fees in exchange for the

state providing the plaintiffs with their desired relief.

The circuits’ shared approach is not messy, in any

event. It is “contextual [and] case-specific,” Pet. App.

3a, but that is not a problem for litigants (and judges)

who are steeped in the case. It is not hard for state

defendants to discern if they will be liable for fees if

the case moots out. Contra Amicus Br. 14-15. All they

have to do is ask, does the preliminary injunction decision unambiguously conclude that the plaintiffs are

likely to succeed on the merits and would mooting the

case mean the plaintiffs have received at least some

what they set out to achieve? None of this involves

mind-reading. Contra Amicus Br. 13. It involves plain

reading—of the complaint and of the preliminary injunction decision.

What is more, the question presented arises too

infrequently to meaningfully affect the public fisc.

Contra Amicus Br. 2. It arises only when the plaintiffs

have secured a preliminary injunction but the case becomes moot before a final determination on the merits. When the preliminary injunction is undone on the

merits, Sole, 551 U.S. at 83, or when the plaintiff secures relief in the absence of “judicially sanctioned”

relief (e.g., voluntary compliance before a preliminary

injunction, or private settlement without a preliminary injunction), the plaintiff does not qualify as a

prevailing party. Buckhannon, 532 U.S. at 605.

Finally, the amici States’ focus on their own incentives (at 2, 15-16) ignores the important incentives

on the other side, and indeed the very purpose of

§ 1988: “The function of an award of attorney’s fees

26

[under § 1988(b)] is to encourage the bringing of meritorious civil rights claims which might otherwise be

abandoned because of the financial imperatives surrounding the hiring of competent counsel.” City of

Riverside v. Rivera, 477 U.S. 561, 578 (1986). Allowing defendants to preempt fee awards by strategically

capitulating after court-ordered relief makes clear

they are going to lose will discourage plaintiffs from

bringing meritorious civil-rights suits.

2. Petitioners further contend that the decision

below merits review because it “touches the States’

sovereign interests.” Pet. 12; see Pet. 26-27. That, of

course, could be said of any fee dispute involving a

state actor. More to the point, Congress has already

made clear that civil-rights plaintiffs may recover fees

from state officials, sovereign immunity notwithstanding. See Hensley v. Eckerhart, 461 U.S. 424, 446

n.7 (1983) (Brennan, J., concurring in part and dissenting in part) (“Congress’s imposition of liability for

attorney’s fees under § 1988 also represents a decision

to abrogate the sovereign immunity of the States in

order to accomplish the purposes of the Fourteenth

Amendment.”).

Although Petitioners apparently acknowledge

Congress’s authority to allow the award of fees

against states officers (Pet. 27), they nonetheless double down on the immunity argument, contending that

the amount of fees they must pay here makes this “an

especially egregious interference with state sovereignty.” Pet. 30. That Petitioners are unhappy with

the amount of fees they must pay does not make the

question presented any more important or worthy of

27

review. Contra Pet. 30-33. As this Court has emphasized, the district court retains considerable discretion in determining the amount of fees due to both its

“superior understanding of the litigation and the desirability of avoiding frequent appellate review of

what essentially are factual matters.” Hensley, 461

U.S. at 437. Petitioners’ complaints in this regard are

entirely separate from and not encompassed within

the question presented, which addresses only Respondents’ eligibility for fees. Nor do Petitioners claim

that any dispute about the amount of fees implicates

a division of authority. They merely object to the factbound and routine exercise of the district court’s discretion to determine what amount of fees is reasonable.8

II. The Decision Below Does Not Present The

Standing Question Asserted In The Petition.

In an effort to persuade the Court to hold this case

pending the outcome in June Medical, Petitioners

purport to present an additional question regarding

Respondents’ initial standing to bring the claims underlying the fee award. But that question is not remotely presented by the decision Petitioners ask this

Court to review. See Pet. 4 (identifying the opinions

8 Petitioners are also wrong that the fee award should have

been adjusted downward because the preliminary injunction

authorized Respondents to provide care “in circumstances that

never arose.” Pet. 32; see also Pet. 31. As discussed supra 5,

Petitioners have no support for this factual assertion: The

district court found (on multiple occasions) that this relief was

necessary to protect the life and health of Respondents’ actual

patients.

28

below). To the contrary, any question regarding Respondents’ standing was mooted nearly four years ago

when the district court dismissed Respondents’

claims per the parties’ agreement. Pet. App. 9a.

Petitioners nonetheless claim that if June Medical determines that physicians lack third-party

standing to bring claims under § 1983, that would

mean Respondents are not entitled to recover fees.

Pet. 12. Petitioners cite no legal authority for this

proposition because there is none.

The only live question here is whether Respondents are prevailing parties eligible to recover fees for

the preliminary injunction that they obtained in

2004—based on the law that existed at that time. Petitioners cannot use this fee dispute to extend the

timeframe during which they benefit from new Supreme Court rulings on third-party standing. That is

true as a matter of principles this Court has already

set forth. And the Sixth Circuit’s precedent confirms

that even an adverse outcome in June Medical will

not lead the Sixth Circuit to reconsider its decision.

1. Petitioners ignore numerous bedrock principles

from this Court making clear that June Medical cannot have any impact on Respondents’ eligibility for

fees.

First, new legal rules announced by the Supreme

Court apply to cases “still open on direct review.” Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97 (1993).

But in a litigation over attorney’s fees, the underlying

merits of the case are no longer on direct review. This

Court’s precedent makes clear that “[a]ttorney’s fee

29

determinations … are ‘collateral to the main cause of

action’ and ‘uniquely separable from the cause of action to be proved at trial.’” Landgraf v. USI Film

Prods., 511 U.S. 244, 277 (1994); see also Budinich v.

Becton Dickinson & Co., 486 U.S. 196, 200 (1988)

(“[W]e think it indisputable that a claim for attorney’s

fees is not part of the merits of the action to which the

fees pertain.”).

Second, a party cannot use a collateral attack,

such as litigation over attorney’s fees, to apply a

change in law to a case that is no longer on direct review. “New legal principles, even when applied retroactively, do not apply to cases already closed.”

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 758

(1995). This rule applies even when the subsequent

change in law impacts the court’s jurisdiction in the

now-final original suit. “A party that has had an opportunity to litigate” a jurisdictional question cannot

“reopen that question in a collateral attack upon an

adverse judgment. It has long been the rule that principles of res judicata apply to jurisdictional determinations—both subject matter and personal.” Ins.

Corp. of Ireland v. Compagnie des Bauxites de Guinee,

456 U.S. 694, 702 n.9 (1982); see also Swift & Co. v.

United States, 276 U.S. 311, 325-26 (1928) (lower

court’s purported error in determining that there was

a case or controversy under Article III not “open to

attack” on a collateral motion to vacate a consent decree).

2. In light of these principles, the Sixth Circuit

has already held that a change in law that occurs

while an attorney’s fees determination—but not the

30

merits—is on direct review does not alter the party’s

prevailing status.

In Deja Vu of Nashville, Inc. v. Metropolitan Government of Nashville & Davidson County, 421 F.3d

417, 418-19 (6th Cir. 2005), the plaintiff had successfully enjoined a city law because its judicial review of

licensing decisions for sexually-oriented businesses

was constitutionally inadequate. While the attorney’s

fees award was on appeal, this Court decided a case

that purportedly “eviscerat[ed]” the basis for the underlying injunction by coming to the contrary conclusion when reviewing the constitutionality of a similar

law. Id. at 420. The city argued this decision “stripped

[the plaintiff] of its status as a ‘prevailing party.’” Id.

The Sixth Circuit disagreed. At the time the new

Supreme Court decision was announced, the fee dispute was the only issue still on “direct review” under

Harper, 509 U.S. 86, and the new decision did not announce any new rules with respect to eligibility for

fees. Deja Vu, 421 F.3d at 420-21. Since the plaintiff

had already prevailed on its underlying claim under

§ 1983, “it [wa]s therefore entitled to ‘prevailing

party’ status despite any later changes in the law as

announced by the Supreme Court.” Id. at 421. Nonprevailing parties cannot “artificially extend the time

that they are beneficiaries of new Supreme Court rulings” by filing an “appeal from a fee award to which

the prevailing party is entitled.” Id.

3. Nor does a subsequent change in law constitute

the type of “special circumstance[],” Hensley, 461 U.S.

at 446 (Brennan, J., concurring in part and dissenting

part), warranting the denial of fees. This inquiry looks

31

to whether, at the time that the merits of the case were

being litigated, special circumstances existed that

place the case into the exceedingly “narrow” category

of cases9 where fees are not appropriate. N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54, 68 (1980) (availability of an agency attorney to present case instead

of private counsel was not a “special circumstance” depriving a prevailing party of a fee award); see also

Hescott v. City of Saginaw, 757 F.3d 518, 525-26 (6th

Cir. 2014) (the “good faith” of a city’s unconstitutional

actions “before or during this litigation” did not qualify as a “special circumstance” warranting denial of

fees).

As in Deja Vu, no “special circumstances” exist

here that would call for adopting “a sort of revisionist

history that would cause counsel’s services, which

were compensable when rendered, to be made noncompensable because of a later [legal] development.”

421 F.3d at 422-23. Sixth Circuit law is clear that

“later developments in the law, which would prevent

a party from prevailing if case were re-litigated at

[the] time of [a] fees determination, are not special circumstances” warranting the denial of fees. McQueary,

614 F.3d at 604 (describing Deja Vu).

That is all the more true here, where Petitioners

explicitly conceded below that “physicians in many

9 Indeed, it is “extremely rare” to deny fees based on special

circumstances. Saint John’s Organic Farm v. Gem Cty. Mosquito

Abatement Dist., 574 F.3d 1054, 1064 (9th Cir. 2009). The Sixth

Circuit, for example, has “never (to [its] knowledge) found a ‘special circumstance’ justifying the denial of fees.” McQueary, 614

F.3d at 604.

32

cases involving abortion regulation are, in fact, the

best advocates of the patient’s rights and the proper

proponents of third party standing of these patients’

alleged rights.” D.Ct. Dkt. 13 at 11. This, therefore, is

not a situation where June Medical could indicate

that the position Petitioners previously advanced

(and lost on) was actually legally correct. To the contrary, in the proceedings below, Petitioners never argued that physicians lacked third-party standing—

instead, they explicitly agreed that physicians should

be able to bring claims on behalf of their patients.

There are simply no “special circumstances” present

to justify setting aside this fee award.10

4. June Medical, therefore, will have no impact on

this case. Respondents’ standing to bring claims on

behalf of their patients under § 1983 is no longer an

issue on direct review in this case. Moreover, the fact

that a new legal rule in June Medical might relate to

third-party standing to bring the underlying claims is

of no moment. Third-party standing is a prudential

requirement, not an Article III requirement, see Craig

v. Boren, 429 U.S. 190, 193 (1976), but even if it were

not, this Court’s precedents make clear that collateral

10 Moreover, the arguments advanced in June Medical

about the purported conflict of interest between physicians

providing abortions and their patients regarding a law requiring

local hospital admitting privileges have no application here. See

Brief for Respondent/Cross Petitioner at 41-47, June Medical

(Nos. 18-1323 & 18-1460). The injunction Respondents obtained

applied only when use of the off-label protocol was necessary to

protect the patient’s life or health. There could be no conflict of

interest in these circumstances.

33

attacks on prior jurisdictional rulings are impermissible. See supra 29.

And this conclusion makes practical sense. When

a court is deciding if somebody qualifies as a prevailing party, the court asks whether there was a meritsbased decision that altered the legal relationship between the parties. The court does not ask, if the law

had been different at the time the merits were assessed, would the party still have won?

There is thus no basis for holding this petition

pending the outcome in June Medical—it cannot have

any impact on this case.

34

CONCLUSION

The petition should be denied.

Respectfully submitted,

Jennifer L. Branch

Helene T. Krasnoff

Counsel of Record

PLANNED PARENTHOOD

GERHARDSTEIN &

FED. OF AMERICA

1110 Vermont Ave., NW

BRANCH CO. LPA

Suite 300

441 Vine Street

Washington, DC 20005 Suite 3400

Cincinnati, OH 45202

B. Jessie Hill

(513) 621-9100

ACLU OF OHIO

jbranch@gbfirm.com

Case Western Reserve

Univ., School of Law

11075 East Blvd.

Cleveland, OH 44106

February 26, 2020