Reply 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

______________________________

DAVE YOST AND JOSEPH DETERS,

Petitioners,

v.

PLANNED PARENTHOOD SOUTHWEST

OHIO REGION, ET AL.,

Respondents.

______________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

______________________________

REPLY IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

______________________________

JOSEPH T. DETERS

Hamilton County

Prosecuting Attorney

ROGER E. FRIEDMANN

MICHAEL G. FLOREZ

Hamilton County

Prosecutor’s Office

230 East Ninth Street

Suite 4000

Cincinnati, Ohio 45202

513-946-3025

roger.friedmann@hcpros.org

Counsel for Petitioner

Hamilton County

Prosecuting Attorney

Joseph Deters

DAVE YOST

Ohio Attorney General

BENJAMIN M. FLOWERS*

*Counsel of Record

Ohio Solicitor General

STEPHEN P. CARNEY

Deputy Solicitor General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

benjamin.flowers@

ohioattorneygeneral.gov

Counsel for Petitioner

Dave Yost, Ohio

Attorney General

i

QUESTIONS PRESENTED

1. Do abortion providers have Article III standing

to assert the rights of their patients?

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

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

ii

TABLE OF CONTENTS

Page

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

TABLE OF CONTENTS .............................................ii

TABLE OF AUTHORITIES ..................................... iii

REPLY ......................................................................... 1

I. The Court should hold this case pending

the resolution of June Medical. ....................... 1

II. The Court should grant certiorari to

resolve the circuit split over the second

question presented. .......................................... 3

A. The circuits are split over the question

presented. .................................................... 3

B. This is a good vehicle for deciding an

important question. .................................. 10

CONCLUSION.......................................................... 11

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Common Cause/Georgia v. Billups,

554 F.3d 1340 (11th Cir. 2009) ............................. 4

Dearmore v. City of Garland,

519 F.3d 517 (5th Cir. 2008) ......................... 1, 3, 4

Dupuy v. Samuels,

423 F.3d 714 (7th Cir. 2005) ....................... 8, 9, 10

Kan. Judicial Watch v. Stout,

653 F.3d 1230 (10th Cir. 2011) ............................. 4

Lynch v. Leis,

382 F.3d 642 (6th Cir. 2004) ................................. 2

McQueary v. Conway,

614 F.3d 591 (6th Cir. 2010) ............................... 10

N. Cheyenne Tribe v. Jackson,

433 F.3d 1083 (8th Cir. 2006) ........................... 8, 9

Nat’l Amusements, Inc. v. Borough of

Palmyra,

716 F.3d 57 (3d Cir. 2013) ..................................... 6

Nelson v. Napolitano,

657 F.3d 586 (7th Cir. 2011) ............................... 11

People Against Police Violence v. City of

Pittsburgh,

520 F.3d 226 (3d Cir. 2008) ................................... 6

iv

Planned Parenthood Cincinnati Region

v. Taft,

444 F.3d 502 (6th Cir. 2006) ................................. 5

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

Nos. 18-1323, 18-1460 ....................................... 1, 2

Select Milk Producers, Inc. v. Johanns,

400 F.3d 939 (D.C. Cir. 2005) ............................... 4

Singer Mgmt Consultants v. Milgram,

650 F.3d 223 (3d Cir. 2011) ........................... 4, 5, 6

Sixth Angel Shepherd Rescude, Inc. v.

Bengal,

No. CIV.A. 10-1733, 2013 U.S. Dist.

LEXIS 135385 (E.D. Pa. Sept. 23,

2013)....................................................................... 6

Smith v. Brady,

972 F.2d 1095 (9th Cir. 1992) ............................... 2

Smyth v. Rivero,

282 F.3d 268 (4th Cir. 2002) ......................... 5, 6, 7

Sole v. Wyner,

551 U.S. 74 (2007) ................................................. 1

Va. House of Delegates v. Bethune-Hill,

139 S. Ct. 1945 (2019) ........................................... 2

Watson v. Cty. of Riverside,

300 F.3d 1092 (9th Cir. 2002) ............................... 4

Young v. City of Chicago,

202 F.3d 1000 (7th Cir. 2000) ......................... 8, 10

v

Statutes

42 U.S.C. §1988 ............................................... 1, 2, 3, 4

Other Authorities

Moore’s Federal Practice §41.33............................... 11

Moore’s Federal Practice §41.34............................... 11

Moore’s Federal Practice §41.40............................... 11

1

REPLY

In Sole v. Wyner, 551 U.S. 74 (2007), this Court

left open 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” under 42 U.S.C. §1988. Id. at 86. In the years

since, the circuits have developed their own tests for

deciding how §1988 applies in these circumstances,

arriving at various “fact-specific standards that are

anything but uniform.” Dearmore v. City of Garland,

519 F.3d 517, 521 (5th Cir. 2008). And now, Ohio

and nineteen other States have stressed the need to

resolve this confusion. Pet.25–27; Br. of Georgia and

Amici States 3–9, 13–17.

Parties that dispute the certworthiness of a question that this Court has expressly left open, that has

divided the circuits, and that significantly affects the

States, have a tough row to hoe. The plaintiffs have

not hoed that row. The Court should grant certiorari

to decide when, if ever, a party who wins a preliminary injunction without winning final judgment on

the merits qualifies as a “prevailing party” entitled to

fees under §1988. At the very least, the Court should

hold this case for Russo v. June Medical Services,

L.L.C., Nos. 18-1323, 18-1460. The decision in that

case may justify reversing, or granting, vacating, and

remanding, this one.

I.

The Court should hold this case pending

the resolution of June Medical.

The plaintiffs in this case are all abortion providers who sued to enforce their patients’ rights. They

now seek fees in the same case. In June Medical,

this Court will decide when, if ever, providers have

2

standing to assert the rights of their patients. Because the resolution of that question could bear on

the plaintiffs’ standing in this suit, the Court should

hold this case for June Medical.

The plaintiffs deny that June Medical could affect

this case. According to them, there is no chance June

Medical will keep providers from bringing abortion

challenges like the one here. BIO.32 n.10. But neither the plaintiffs nor Ohio knows what the Court

will hold. The decision might affect the plaintiffs’

standing. It might not. If it does, the Court can

grant, vacate, and remand for the Sixth Circuit to

address standing. If not, this is a clean vehicle for

addressing the second question presented. Either

way, it makes sense to wait for June Medical.

The plaintiffs also argue that Article III standing

is irrelevant. According to them, entitlement to fees

under §1988 is a “collateral” issue that federal courts

can litigate even after determining that they lack Article III jurisdiction over the merits. BIO.27–32.

That is wrong. Article III’s “standing requirement”

must be satisfied at every stage of litigation. Va.

House of Delegates v. Bethune-Hill, 139 S. Ct. 1945,

1951 (2019). A dispute over attorney’s fees is just

another stage of litigation. (The plaintiffs, for example, filed their fees motion in the very same case in

which they sought relief on the merits—this is not a

collateral action.) Thus, “an appellate court must vacate an award of attorney’s fees if the district court

did not have subject matter jurisdiction over the litigation.” Lynch v. Leis, 382 F.3d 642, 648 (6th Cir.

2004) (internal quotation omitted); accord Smith v.

Brady, 972 F.2d 1095, 1097 (9th Cir. 1992). So if

June Medical says the plaintiffs lacked standing to

sue, they have no standing to seek fees in the same

3

suit. At the very least, the question would be close

enough to justify a remand for the Sixth Circuit to

consider the matter in the first instance.

II. The Court should grant certiorari to resolve

the circuit split over the second question

presented.

If June Medical does not affect the plaintiffs’

standing, this case offers an ideal vehicle for resolving an important question that divides the circuits:

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

on the merits, qualify as a “prevailing party” entitled

to attorney’s fees under §1988?

A. The circuits are split over the question

presented.

The federal circuit courts admit that, with respect

to the second question presented, they have “announced fact-specific standards that are anything

but uniform.” Dearmore, 519 F.3d at 521. The plaintiffs disagree. But their primary argument tackles a

straw man. There is no split, they say, regarding the

question whether “success in gaining a preliminary

injunction,” even “in the absence of a final decision

on the merits,” “may sometimes warrant an award” of

attorney’s fees. BIO.9 (quoting Sole, 551 U.S. at 86)

(emphasis added). After all, every circuit confers

prevailing-party status on at least some plaintiffs

who win only a preliminary injunction. Because all

circuits agree on that narrow point, the plaintiffs

say, there is no disagreement worthy of review.

This argument fails because Ohio asked this

Court to review, in addition to the question of whether plaintiffs who win only a preliminary injunction

4

are sometimes entitled to fees, the question of

“[w]hen” such plaintiffs are entitled to fees. Pet.i

(emphasis added). In other words, Ohio’s petition

asks this Court to answer the following question: In

what circumstances do plaintiffs who win a preliminary injunction, but whose cases are mooted before

final judgment, qualify as “prevailing parties”? That

question has split the circuits. Pet.16–25. Indeed,

this very case proves the existence of a split because

this very case would have come out differently in different circuits.

1. Majority view. In the Fifth, Ninth, Tenth,

Eleventh, and D.C. Circuits, a plaintiff who wins a

preliminary injunction based on a showing of likely

success on the merits, and whose case is mooted before final judgment, qualifies as a “prevailing party”

entitled to attorney’s fees under §1988. Dearmore,

519 F.3d at 524, Watson v. Cty. of Riverside, 300 F.3d

1092, 1096 (9th Cir. 2002); Kan. Judicial Watch v.

Stout, 653 F.3d 1230, 1232 (10th Cir. 2011); Common

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

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

400 F.3d 939, 947 (D.C. Cir. 2005). All sides agree

that the plaintiffs are prevailing parties under that

test. See Pet.19–21; BIO.11–13. (The plaintiffs say

the First and Second Circuits apply the same test. If

that is true, the split is even more entrenched than

Ohio’s petition suggests.)

2. Third and Fourth Circuits. In contrast, the

plaintiffs would not qualify as prevailing parties in

the Third or Fourth Circuits.

The Third and Fourth Circuits confer prevailingparty status only on parties who win a preliminary

injunction in a “merits-based decision.” Singer Mgmt

5

Consultants v. Milgram, 650 F.3d 223, 228–29 (3d

Cir. 2011) (en banc); accord Smyth v. Rivero, 282

F.3d 268, 277 (4th Cir. 2002). Both circuits set a

high bar for what counts as a merits-based decision.

It is not enough for the injunction to rest on a finding

of likely success on the merits. Instead, the injunction must rest on a determination that the plaintiff

has succeeded, or will certainly succeed, on the merits. Singer, 650 F.3d at 229; Smyth, 282 F.3d at 276.

The plaintiffs are not “prevailing parties” under

this standard. As Ohio’s certiorari petition explained, the plaintiffs won a narrow injunction permitting them to administer an abortion drug only in

cases where doing so was necessary to save a patient’s health or life. The Sixth Circuit approved of

this narrow injunction based on its determination

that the plaintiffs had a “strong likelihood of success

on the merits.” Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502, 517 (6th Cir. 2006). But

no court ever said that the plaintiffs had won or

would win on the merits. (Nor is there good reason

to think the plaintiffs would have prevailed on the

merits. The record contained no evidence, aside from

the District Court’s ipse dixit, that the drug would

ever be necessary to save anyone’s life or health. And

regardless, the law could be read to contain an implicit health-or-life exception. See Pet.7–8.) Because

the narrow injunction that the plaintiffs won rested

on a finding of likely success, not actual success, the

plaintiffs would not have won fees in the Third or

Fourth Circuits.

The plaintiffs disagree, but their arguments ignore the way in which the Third and Fourth Circuits

apply their standards. For example, the plaintiffs

say they won merits-based relief, just as Singer and

6

Smyth require, because the Sixth Circuit found that

they would likely prevail on the merits. BIO.17–20.

But that is not what “merits-based” means in the

Third and Fourth Circuits. Again, a decision is sufficiently “merits-based” only if it rests on a determination of actual or certain merits-based success; a likelihood of success on the merits is not enough. Singer,

650 F.3d at 229; Smyth, 282 F.3d at 276.

The plaintiffs mistakenly, but not surprisingly,

resist this conclusion. With respect to the Third Circuit, they point to three other cases that, according to

them, show that the en banc court in Singer did not

mean what it said. BIO.18. One of those cases is a

panel decision that predates the en banc decision in

Singer. See People Against Police Violence v. City of

Pittsburgh (“PAPV”), 520 F.3d 226, 233–34 (3d Cir.

2008). Anyway, Singer characterized PAPV as resting on a finding of actual, rather than likely, success

on the merits. 650 F.3d at 229–30. So, at least in

the view of the en banc court, the cases are perfectly

consistent. It is thus hardly surprising that Singer

declined to overrule PAPV. BIO.18.

The other two cases are equally irrelevant. One

is an unpublished district court case that awarded

fees where the plaintiffs apparently demonstrated

actual success. See Sixth Angel Shepherd Rescude,

Inc. v. Bengal, No. CIV.A. 10-1733, 2013 U.S. Dist.

LEXIS 135385, at *7 (E.D. Pa. Sept. 23, 2013) (defendants “unquestionably deprived Plaintiffs of their

right in their property” without “lawful justification”)

(internal quotation marks omitted). The other case

denied attorney’s fees where the plaintiff ultimately

lost on the merits. Nat’l Amusements, Inc. v. Borough of Palmyra, 716 F.3d 57, 60 (3d Cir. 2013).

Thus, neither case suggests that a preliminary in-

7

junction that rests on likely success, rather than actual success, can confer prevailing-party status.

The plaintiffs’ attempt to recast the Fourth Circuit’s test fares no better. The plaintiffs claim that,

in the Fourth Circuit, a preliminary-injunction decision can confer prevailing-party status even when it

rests on a finding of likely success rather than actual

or certain success. BIO.19–20. The trouble with this

characterization is that the reasoning in Smyth refutes it. Smyth noted that a preliminary injunction

may rest on “a strong showing of likelihood of success,” or even a “substantial likelihood of success [established] by clear and convincing evidence.” 282

F.3d at 276 (internal quotation omitted). But Smyth

went on to hold that even that lofty showing would be

insufficiently merits-based to confer prevailing-party

status. Id. It is hard to imagine how the decision

could have been any clearer that preliminary injunctions resting on a finding of likely success, rather

than certain success, are incapable of conferring prevailing-party status.

The plaintiffs next insist that Smyth grew out of

the Fourth Circuit’s now-outdated practice of awarding preliminary injunctions without finding even a

likelihood of success. BIO.19–20. All Smyth means,

they say, is that preliminary injunctions awarded

without regard to the merits cannot confer prevailing-party status. But again, that characterization is

impossible to square with Smyth’s just-discussed

reasoning, which held that preliminary injunctions

that do rest on likely success are insufficiently merits-based. 282 F.3d at 276. Anyway, even if Smyth

grew out of a now-outdated doctrine, it remains good

law in the Fourth Circuit—even the plaintiffs silently concede Smyth has never been overruled. BIO.20.

8

3. Sixth, Seventh, and Eighth Circuits. Three

circuits—the Sixth, Seventh, and Eighth—assess

prevailing-party status by asking (among other

things) whether the preliminary injunction the plaintiff won was enduring or irrevocable. But they approach the question differently. Thus, while the

plaintiffs would not qualify as prevailing parties in

the Seventh or Eighth Circuits, they were found to be

prevailing parties in the Sixth Circuit below.

In both the Seventh and Eighth Circuits, a preliminary injunction must be sufficiently permanent,

despite its “preliminary” nature, to confer prevailingparty status. The Eighth Circuit finds prevailingparty status based on preliminary injunctions only

when the plaintiff won “irreversible” relief. N. Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1086 (8th Cir.

2006). The Seventh Circuit finds prevailing-party

status in these circumstances only if the preliminary

injunction conferred “substantive relief that [was]

not defeasible by further proceedings.” Dupuy v.

Samuels, 423 F.3d 714, 719 (7th Cir. 2005) (internal

quotation omitted); see also Young v. City of Chicago,

202 F.3d 1000, 1000–01 (7th Cir. 2000) (per curiam).

Both standards are satisfied when the preliminary

injunction gives the moving party everything it

wants and, as a result, moots the case. Take, for example, the case of a plaintiff who sues for a preliminary injunction allowing him to protest a particular

event. Once the event happens, the plaintiff has won

everything he wanted and the case becomes moot. In

those circumstances, the relief is “irreversible” because it is no longer possible to deny the plaintiff anything he asked for.

The Seventh and Eighth Circuits would not have

found the plaintiffs to be prevailing parties. The pre-

9

liminary relief the plaintiffs won—a court order allowing the use of RU-486 in certain off-label applications—was reversible. In other words, the plaintiffs

were not given everything they sought. After all,

Ohio could have—and is confident that it would

have—won on the merits had the case not been

mooted. And if Ohio had won on the merits, the

plaintiffs (unlike the hypothetical protestor who already protested his event) would have left court emptyhanded. Relief like this is reversible, not irreversible, and thus insufficient to confer prevailing-party

status in the Seventh and Eighth Circuits.

The plaintiffs dispute this. According to them,

the preliminary relief they won became “irreversible,” N. Cheyenne, 433 F.3d at 1086, and was no

longer “defeasible,” Dupuy, 423 F.3d at 719, once the

case went moot. Once the case became moot, the

plaintiffs argue, “the preliminary relief” could not be

“unwound in any further merits proceedings because

there [were] no such proceedings.” BIO.l4.

That argument misconstrues what the Seventh

and Eighth Circuits mean by “irreversible” and “not

defeasible.” The question is not whether the past relief can be unwound in the case in which it was

awarded. After all, mootness, by definition, keeps

courts from reversing previously conferred relief. If

the Seventh and Eighth Circuits understood mootness to make relief irreversible, then the “irreversible” requirement would be satisfied in every case

where it applied—it would be superfluous. What the

Seventh and Eighth Circuits mean by “irreversible”

and “not defeasible” is this: the plaintiff already won

everything it sought, and so the plaintiff could not be

denied what it wanted even if the case were allowed

to proceed. See, e.g., N. Cheyenne, 433 F.3d at 1086;

10

Dupuy, 423 F.3d at 723; Young, 202 F.3d at 1000.

The plaintiffs in this case did not win everything

they sought—they never won a permanent injunction

of Ohio’s law—and so the relief was not “irreversible”

in the relevant sense.

In the Sixth Circuit, as in the Seventh and Eighth

Circuits, a party that wins only a preliminary injunction may win prevailing-party status if it “receives

everything it asked for in the lawsuit, and all that

moots the case is court-ordered success and the passage of time.” McQueary v. Conway, 614 F.3d 591,

599 (6th Cir. 2010). But unlike in the Seventh and

Eighth Circuits, a party may be deemed to have received “everything it asked for” whenever the injunction remained in effect for a very long time—even if

the relief conferred was not truly irrevocable. On

that basis, the Sixth Circuit held that the plaintiffs

were entitled to fees in this case. Pet.App.14a.

*

Because this case would come out differently in

different circuits, and because almost every circuit

has already weighed in, this case presents an opportunity to resolve an entrenched, multi-circuit split.

B. This is a good vehicle for deciding an

important question.

Two of the plaintiffs’ other arguments deserve

responses.

First, the plaintiffs say this is a bad vehicle for

addressing the question presented because the District Court “never issued a formal order revoking or

vacating the injunction.”

BIO.22 (quoting

Pet.App.14a). So what? The plaintiffs’ voluntary

dismissal automatically restored the status quo, re-

11

lieving the State of any obligation to follow the preliminary injunction. See 8 Moore’s Federal Practice

§§ 41.33–.34, 41.40; Nelson v. Napolitano, 657 F.3d

586, 587–88 (7th Cir. 2011). Regardless, even if such

zombie preliminary injunctions existed—even if

there were injunctions that, while nominally in effect, remained unenforceable and immune from challenge—the case would still present the question of

when, if ever, a plaintiff who wins a preliminary injunction, but who never wins a final judgment on the

merits, qualifies as a prevailing party.

Finally, the plaintiffs suggest the question presented is not that important to the States, since they

can just settle suits against them and negotiate down

any fee award. BIO.24–25. But as the nineteen

amici States explained, the pressure to settle is one

of the things that makes this case important. Br. of

Georgia and Amici States 14–17. The uncertainty

over the meaning of “prevailing party” can cause

States to settle even in cases where they are correct

as a matter of law, since defending the sovereign’s

acts may not be worth the potential cost of doing so.

CONCLUSION

The Court should grant the petition for certiorari

and reverse.

12

JOSEPH T. DETERS

Hamilton County

Prosecuting Attorney

DAVE YOST

Ohio Attorney General

BENJAMIN M. FLOWERS*

ROGER E. FRIEDMANN

*Counsel of Record

MICHAEL G. FLOREZ

Ohio Solicitor General

Hamilton County Prosecu- STEPHEN P. CARNEY

tor’s Office

Deputy Solicitor General

230 East Ninth Street

30 E. Broad St., 17th Floor

Suite 4000

Columbus, Ohio 43215

Cincinnati, Ohio 45202

614-466-8980

513-946-3025

benjamin.flowers@

roger.friedmann@hcpros.org

ohioattorneygeneral.gov

Counsel for Petitioner

Hamilton County

Prosecuting Attorney

Joseph Deters

MARCH 2020

Counsel for Petitioner

Dave Yost, Ohio

Attorney General