Petition for Writ of Certiorari — William T. Schmitt, et al., Petitioners v. Craig M. Stephens, et al.

No. ______

In the

Supreme Court of the United States

__________________

WILLIAM T. SCHMITT, CHAD THOMPSON AND

DEBBIE BLEWITT,

Petitioners,

v.

CRAIG M. STEPHENS, PATRICIA NELSON, DORIA

DANIELS, AND ELAYNE J. CROSS, IN THEIR OFFICIAL

CAPACITIES,

Respondents.

__________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

__________________

PETITION FOR A WRIT OF CERTIORARI

__________________

MARK G. KAFANTARIS

625 City Park Street

Columbus, OH 43206

MARK R. BROWN

Counsel of Record

CAPITAL LAW SCHOOL

303 East Broad Street

Columbus, OH 43215

(614) 236-6590

mbrown@law.capital.edu

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

1. Whether the successful appeal of a final judgment by

a “closely interwoven” co-defendant equitably relieves

a non-appealing defendant of the preclusive effects of

that adverse final judgment.

2. Whether an appellate court’s rejection of a prevailing

plaintiff’s “key legal argument” supporting the

plaintiff’s final judgment constitutes a “special

circumstance” justifying the denial of an attorney’s fee

award under 42 U.S.C. § 1988(b) from a non-appealing

defendant who remains bound by the judgment.

3. Whether Sole v. Wyner overrides the principles of res

judicata recognized in Federated Department Stores v.

Moitie.

ii

PARTIES TO THE PROCEEDING

Petitioners are William T. Schmitt, Chad Thompson

and Debbie Blewitt. They were appellants in the Court

of Appeals.

Respondents are Craig M. Stephens, Patricia

Nelson, Doria Daniels, and Elayne J. Cross, who are

sued in their official capacities as members of the

Portage County Board of Elections. The respondents

were appellees in the Court of Appeals.

RELATED PROCEEDINGS

U.S. Supreme Court:

Schmitt v. Larose, No. 19-974 (May 26, 2020)

U.S. Court of Appeals for the Sixth Circuit:

Schmitt v. LaRose, No. 20-4025 (June 15, 2021)

U.S. Court of Appeals for the Sixth Circuit:

Schmitt v. LaRose, No. 19-3196 (Aug. 7, 2019)

U.S. District Court, Southern District of Ohio:

Schmitt v. Ohio Secretary of State, No. 2:18-cv-00966

(Sept. 21, 2020)

U.S. District Court, Southern District of Ohio:

Schmitt v. Ohio Secretary of State, No. 2:18-cv-00966

(Dec. 4, 2019)

U.S. District Court, Southern District of Ohio:

Schmitt v. Ohio Secretary of State Jon Husted, No.

2:18-cv-00966 (Feb. 11, 2019)

iii

TABLE OF CONTENTS

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

PARTIES TO THE PROCEEDING. . . . . . . . . . . . . . ii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . ii

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

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR GRANTING THE PETITION . . . . 7

I.

The Sixth Circuit’s Ruling that the Nonappealing County Necessarily Benefited

From The State’s Appeal Contradicts Rulings

In A Majority of Circuits . . . . . . . . . . . . . . . . 10

II.

The Sixth Circuit’s Holding That An

Appellate Court’s Post-Judgment Rejection

Of “Key Legal Arguments” Constitutes A

“Special Circumstance” Conflicts With The

Decision of the Second Circuit in Terry . . . . 14

III.

The Sixth Circuit Erroneously Failed to

Follow “the Case Which Directly Controls.” . . . 17

IV.

This Case Presents A Solid Vehicle For

Addressing the Questions Presented . . . . . . 18

iv

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

APPENDIX

Appendix A Order in the United States Court of

Appeals for the Sixth Circuit

(June 15, 2021) . . . . . . . . . . . . . . . App. 1

Appendix B Opinion and Order in the United

States District Court Southern

District of Ohio Eastern Division

(December 4, 2019) . . . . . . . . . . . . App. 8

Appendix C Opinion and Order in the United

States District Court Southern

District of Ohio Eastern Division

(September 21, 2020) . . . . . . . . . App.19

v

TABLE OF AUTHORITIES

CASES

Abatti v. Commissioner of Internal Revenue,

859 F.2d 115 (9th Cir. 1988). . . . . . . . . . . . . . . . 10

Agostini v. Felton,

521 U.S. 203 (1997). . . . . . . . . . . . . . . . . . . . . . . 17

Bray v. Alexandria Women’s Health Clinic,

506 U.S. 263 (1993). . . . . . . . . . . . . . . . . . . . 14, 15

Buckhannon Board & Care Home, Inc.

v. West Virginia Department of Health and

Human Services, 532 U.S. 598 (2001) . . . . . . 7, 11

De Jesus Nazario v. Morris Rodriguez,

554 F.3d 196 (1st Cir. 2009) . . . . . . . . . . . . . . . . 16

Federated Department Stores v. Moitie,

452 U.S. 394 (1981). . . . . . . . . . . . . . . . . . . passim

Garza v. Citigroup,

881 F.3d 277 (3d Cir. 2018) . . . . . . . . . . . . . . . . 16

Griswold v. County of Hillsborough,

598 F.3d 1289 (11th Cir. 2010). . . . . . . . . . . . . . 10

Hensley v. Eckerhart,

461 U.S. 424 (1983). . . . . . . . . . . . . . . . . . . . . . . . 9

Hescott v. City of Saginaw,

757 F.3d 518 (6th Cir. 2014). . . . . . . . . . . . . . . . 16

Hines v. City of Albany,

862 F.3d 215 (2d Cir. 2017) . . . . . . . . . . . . . . . . 15

vi

In re Mutual Fund Market-Timing Litigation,

468 F.3d 439 (7th Cir. 2006). . . . . . . . . . . . . . . . 10

Johnson v. Spencer,

950 F.3d 680 (10th Cir. 2020). . . . . . . . . . . . . . . 12

Kale v. Combined Insurance Co. of America,

924 F.2d 1161 (1st Cir. 1991) . . . . . . . . . . . . . . . 12

Lake Country Estates v. Tahoe Regional

Planning Agency, 440 U.S. 391 (1979) . . . . . . . . 13

Lefemine v. Wideman,

568 U.S. 1 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . 7

Martin v. Franklin Capital Corp.,

546 U.S. 132 (2005). . . . . . . . . . . . . . . . . . . . . . . . 9

Morley Construction Co. v. Maryland

Casualty Co., 300 U.S. 185 (1937) . . . . . . . . . . . 10

Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274 (1977) . . . . . . 13

National Cable & Telecommunications

Ass’n v. Brand X Internet,

545 U.S. 967 (2005). . . . . . . . . . . . . . . . . . . . . . . 17

Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400 (1968). . . . . . . . . . . . . . . . . . . . . . . . 9

New York State National Organization for

Women v. Terry,

159 F.3d 86 (2d Cir. 1998) . . . . . . . . . . . 11, 14, 15

New York State Rifle & Pistol Association v.

City of New York,

140 S. Ct. 1525 (2020). . . . . . . . . . . . . . . . . . . . . 18

vii

Rose v. Town of Harwich,

778 F.2d 77 (1st Cir. 1985) . . . . . . . . . . . . . . . . . 12

Rodriguez de Quijas v. Shearson/American

Express, 490 U.S. 477 (1989) . . . . . . . . . . . . . . . 17

Saint John’s Organic Farm v. Gem Cnty.

Mosquito Abatement Dist.,

574 F.3d 1054 (9th Cir. 2009). . . . . . . . . . . . . . . 16

Schmitt v. Husted,

341 F. Supp.3d 784 (S.D. Ohio 2019) . . . . . . . . . . 2

Schmitt v. Husted,

363 F. Supp.3d 842 (S.D. Ohio 2019) . . . . . . . . . . 3

Schmitt v. LaRose,

933 F.3d 628 (6th Cir. 2019), cert. denied,

140 S. Ct. 2803 (2020). . . . . . . . . . . . . . . . . . . . 3, 4

Schmitt v. Ohio Secretary of State Frank LaRose,

No. 2:18-cv-00966, 2019 WL 1599040

(S.D. Ohio 2019). . . . . . . . . . . . . . . . . . . . . . . . . . 3

Sole v. Wyner,

551 U.S. 74 (2007). . . . . . . . . . . . . . . . . . . . 5, 6, 17

United States v. Ackermann,

340 U.S. 193 (1950). . . . . . . . . . . . . . . . . . . . . . . 10

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . 2

STATUTES

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

viii

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . 2, 7, 13, 16

42 U.S.C. § 1985(3). . . . . . . . . . . . . . . . . . . . . . . 14, 15

42 U.S.C. § 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

42 U.S.C. § 1988(b). . . . . . . . . . . . . . . . . . . . . . passim

Ohio Rev. Code § 3501.11(K)(2) . . . . . . . . . . . . . . . 2, 3

OTHER AUTHORITIES

Aaron-Andrew P. Bruhl, Deciding When to Decide:

How Appellate Procedure Distributes the Costs of

Legal Change, 96 CORNELL L. REV. 203 (2011) . . 12

Oral Argument of Ohio’s Solicitor General in

Schmitt v. LaRose, No. 19-3196 (6th Cir., June

26, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Order, 589 U.S. ___ (Mar. 19, 2020) . . . . . . . . . . . . . 1

Order, 594 U.S. __ (July 19, 2021) . . . . . . . . . . . . . . 1

18 C. WRIGHT, ET AL., FED. PRAC. & PROC., CLAIM

P RECLUSION -- E XCEPTIONS TO C LAIM

PRECLUSION RULE § 4415 . . . . . . . . . . . . . . . . . . 18

1

PETITION FOR A WRIT OF CERTIORARI

William T. Schmitt, Chad Thompson and Debbie

Blewitt respectfully petition for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Sixth Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is unpublished

and is included in the Appendix. App. 1. The opinions

of the District Court are unpublished and included in

the Appendix. App. 8 & 19.

JURISDICTION

The judgment of the Court of Appeals was entered

on June 15, 2021. No rehearing was sought. On March

19, 2020, the Court extended the deadline for filing

certiorari petitions due on or after that date to 150

days from the date of the lower court judgment. Order,

589 U.S. ___ (Mar. 19, 2020). This extension remained

in place for all cases decided before July 19, 2021.

Order, 594 U.S. __ (July 19, 2021). This Court has

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

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

42 U.S.C. § 1988(b) provides in relevant part:

In any action or proceeding to enforce a provision

of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of

this title, title IX of Public Law 92-318, the Religious

Freedom Restoration Act of 1993, the Religious Land

Use and Institutionalized Persons Act of 2000, title VI

of the Civil Rights Act of 1964, or section 12361 of Title

2

34, the court, in its discretion, may allow the prevailing

party, other than the United States, a reasonable

attorney’s fee as part of the costs,….

STATEMENT

This case began with Petitioners’ attempt to place

two initiatives on ballots in the Villages of Garrettsville

and Windham in Portage County, Ohio. Respondents,

collectively the Portage County Board of Elections

(hereinafter “County” or “County BOE”), exercised its

discretion under Ohio Revised Code § 3501.11(K)(2) to

reject the initiatives.

Petitioners filed this action on August 28, 2018

under 42 U.S.C. § 1983 and the First and Fourteenth

Amendments against the County BOE (through its

members in their official capacities) and the Ohio

Secretary of State (in his official capacity) (hereinafter

“Secretary”). Petitioners sought two distinct forms of

relief; (1) preliminary and permanent injunctive relief

ordering the County BOE to place the two initiatives on

its ballots; and (2) preliminary and permanent

injunctive relief enjoining enforcement of Ohio Revised

Code § 3501.11(K)(2) in the future.

On September 19, 2018 the District Court ordered

the County BOE “to place both initiative petitions

which are the subject of this case on the upcoming

ballot for the election to be held on November 6, 2018.”

Schmitt v. Husted, 341 F. Supp.3d 784, 792-93 (S.D.

Ohio 2019). Section 3501.11(K)(2), meanwhile, was

preliminarily found to violate the First Amendment. Id.

at 792 (“Ohio’s regulatory scheme unreasonably

infringes on Plaintiffs’ First Amendment rights”).

3

Neither the County BOE (which was represented by

the Portage County Prosecutor) nor the Secretary (who

was separately represented by the Ohio Attorney

General) chose to appeal the award of preliminary

relief. After the County BOE listed the initiatives on

the local ballots as ordered, the Windham initiative

passed. It remains the law in that Village to this day.

On February 11, 2019, the District Court converted

its preliminary injunction into permanent relief and a

final judgment. Schmitt v. Husted, 363 F. Supp.3d 842,

850 (S.D. Ohio 2019).1 The Secretary, represented by

the Attorney General, then appealed. The County BOE

did not join this appeal, did not take its own separate

appeal, and was not included by the Secretary and

Attorney General in their appellate papers.

The Sixth Circuit on August 7, 2019 ruled for the

Secretary and reversed the District Court’s final

judgment. Schmitt v. LaRose, 933 F.3d 628 (6th Cir.

2019), cert. denied, 140 S. Ct. 2803 (2020). In doing so,

it observed that no challenge was presented to that

part of the District Court’s as-applied order directing

the County BOE to place the initiatives on its ballots:

“The State made clear at oral argument that it does not

seek to relitigate the district court’s decision on the as-

1

On April 15, 2019, the District Court clarified that its final

judgment was meant not only to restore Petitioners’ initiatives to

the County ballots, but also to “grant[] [Petitioners] a permanent

injunction that prohibited Defendants -- i.e., the Portage County

Board of Elections and the Ohio Secretary of State -- from

enforcing [§3501.11(K)(2)] ….” Schmitt v. Ohio Secretary of State

Frank LaRose, No. 2:18-cv-00966, 2019 WL 1599040, *2 (S.D. Ohio

2019).

4

applied challenge.” Schmitt, 933 F.3d at 636 n.2. Far

from being temporary or fleeting, the placement of the

initiatives on the County’s ballots was thus final and

permanent, as proven by the initiative that passed in

Windham.2

Following this reversal, Petitioners returned to the

District Court to pursue their applications for

attorney’s fees under 42 U.S.C. § 1988(b). Following

final judgment, Petitioners on March 15, 2019 had filed

timely applications for attorney’s fees from both the

County BOE and the Secretary. Because of the

pendency of the Secretary’s appeal, however, the

District Court on April 1, 2019 suspended briefing on

the applications.

In their renewed applications, Petitioners sought

fees from both the Secretary and County BOE based on

their preliminary success in the case. Petitioners also

separately sought fees from the County BOE alone

based on the un-appealed final judgment that remained

against it. Petitioners specifically relied upon

Federated Department Stores v. Moitie, 452 U.S. 394

(1981), to argue that the County BOE remained bound

by the final judgment and thus responsible for fees

notwithstanding the Secretary’s successful appeal.

2

The Secretary conceded at oral argument that restoring

Petitioners’ initiatives to the County ballots was correct, was not

being challenged on appeal, and could not be challenged later:

“Someone could challenge it and say it was not properly on the

ballot, but that would fail because it was a legislative action. I

don’t see any basis for ruling it wasn’t.” Oral Argument of Ohio’s

Solicitor General in Schmitt v. LaRose, No. 19-3196 (6th Cir., June

26, 2019) at 37:43.

5

On December 4, 2019 the District Court ruled under

Sole v. Wyner, 551 U.S. 74 (2007), that Petitioners

could not recover attorney’s fees based on their

preliminary success. App. 8. (Petitioners did not appeal

that conclusion and do not question it here.) Because

the District Court’s ruling, however, said nothing about

whether Petitioners were entitled to fees against the

County BOE based on the unappealed final judgment,

Petitioners timely requested that the District Court

amend its Order to include disposition of that

application, too.

On September 21, 2020, the District Court did so.

See App. 19. Exercising its “discretionary power to

award attorney fees under Section 1988 and to amend

a judgment under Rule 59,” App. 25, the District Court

denied Petitioners’ request for fees from the County

BOE based on the unappealed final judgment. It

explained that “even if Plaintiffs are still considered

prevailing parties as to Portage County, awarding

attorney fees in this situation would raise form over

substance. The Sixth Circuit reversed the merits of the

decision upon which Plaintiffs now stand.” App. 24.

Petitioners on September 26, 2020 appealed, and

once again argued that this Court’s decision in Moitie

made them prevailing parties entitled to an award of

fees from the County BOE under 42 U.S.C. § 1988(b).

In the absence of some other identified “special

circumstances,” Petitioners argued, the District Court

had no discretion to deny them fees based on another

party’s successful appeal. Petitioners remained

prevailing parties against the County BOE, they

6

argued, because it chose not to appeal an enforceable

judgment against it.

The Sixth Circuit disagreed. Without citing Moitie,

the Sixth Circuit concluded that the County BOE was

neither bound by the final judgment nor responsible for

fees: “That the State alone appealed a decision with

respect to the constitutionality of a state law does not

deprive the County of the benefit of that later appellate

decision, particularly when it comes to the district

court’s exercise of discretion over an attorneys’ fee

request.” App. 6. It explained that “[i]t is not unusual

for States to litigate in the interests of agencies of the

State or subdivisions of the State. Those agencies may

benefit from those decisions (when the State wins) or

pay the price for them (when the State loses).” App. 67.

In addition to holding that the County BOE

necessarily benefited from the Secretary’s appeal, the

Sixth Circuit concluded that “special circumstances”

justified denying Petitioners their fee: “The rejection of

a party’s key legal argument on appeal counts at a

minimum as a special circumstance justifying a district

court’s decision to deny fees. The Supreme Court’s

decision in Sole v. Wyner helps to show why.” App. 5.

Under Sole v. Wyner, 551 U.S. 74 (2007), the Sixth

Circuit explained, “[t]he traditional rule … is that

temporary relief with respect to a specific event—an

election day or Valentine’s Day or some other

day—does not justify fees if the legal premise of that

decision is later reversed on appeal during the

permanent injunction phase of the case.” App. 6. “That

rule,” it held, “at a minimum suggests [the District

7

Court] did not abuse [its] discretion in denying the

Plaintiffs’ request for fees.” App. 6.

REASONS FOR GRANTING THE PETITION

A plaintiff “prevails” in § 1983 litigation and is

entitled to shifted fees under 42 U.S.C. § 1988(b) “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) (citation omitted). Because “an injunction or

declaratory judgment, like a damages award, will

usually satisfy that test,” id. (citation omitted), the

District Court’s final judgment in the present case,

which included injunctive relief, rendered Petitioners

prevailing plaintiffs against the County BOE.

“[E]nforceable judgments on the merits,” after all,

“create the ‘material alteration of the legal relationship

of the parties’ necessary to permit an award of

attorney’s fees.” Buckhannon Board & Care Home, Inc.

v. West Virginia Department of Health and Human

Services, 532 U.S. 598, 604 (2001) (citations omitted).

In the absence of a successful appeal by the County,

Petitioners remained (or at least should have

remained) prevailing parties.

Final judgments are not to be casually or equitably

undone. Res judicata, the Court ruled in Federated

Department Stores v. Moitie, 452 U.S. 394 (1981),

protects unappealed final judgments from equitable

exceptions. “[T]he res judicata consequences of a final,

unappealed judgment on the merits [are not] altered by

the fact that the judgment may have been wrong or

rested on a legal principle subsequently overruled in

8

another case.” Id. at 398. Likewise, the Court explained

in Moitie, a successful appeal from a final judgment by

a co-party does not inure to the benefit of an

unappealing party. Id. at 399-400. Those who “seek to

be the windfall beneficiaries of an appellate reversal

procured by other independent parties,” id. at 400, or

who made a “calculated choice to forgo their appeals,”

id. at 401, cannot turn to equity for protection. They

remain bound by the final judgment against them.3

The Court emphasized that res judicata remains

solid even when a successful appeal is taken by a

“closely interwoven” co-party. Moitie, 452 U.S. at 400.

Allowing parties who do not appeal to benefit from the

success of others, even those with closely interwoven

claims or defenses, would mark “an unprecedented

departure from accepted principles of res judicata.” Id.

at 399. “This Court’s rigorous application of res

judicata,” the Court explained, “makes clear that this

Court recognizes no general equitable doctrine, …

which countenances an exception to the finality of a

party’s failure to appeal merely because his rights are

‘closely interwoven’ with those of another party.” Id. at

400.

3

In Moitie, consumers had brought consolidated private antitrust

suits against department stores complaining of price-fixing. The

District Court dismissed, followed by appeals being taken by some,

but not all, of the plaintiffs. Those who appealed prevailed, and

those who did not appeal then attempted to use that reversal to

relieve themselves of the res judicata effect of the judgment. The

Supreme Court ruled they could not; they remained bound by the

judgment they did not appeal, even though it had been reversed in

favor of other co-plaintiffs. Id. at 398-99.

9

With final a final judgment in hand, a prevailing

plaintiff is presumed to be entitled to attorney’s fees

from a losing defendant under 42 U.S.C. § 1988(b). See

Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (“a

prevailing plaintiff ‘should ordinarily recover an

attorney’s fee unless special circumstances would

render such an award unjust’”) (citations omitted). See

also Martin v. Franklin Capital Corp., 546 U.S. 132,

137 (2005) (“we interpreted a statute authorizing a

discretionary award of fees to prevailing plaintiffs in

civil rights cases to nonetheless give rise to such a

presumption [of fees]”) (citing Newman v. Piggie Park

Enterprises, Inc., 390 U.S. 400, 402 (1968)). District

Courts have no discretion in this regard. Only where

“special circumstances would render such an award

unjust,” Hensley, 461 U.S. at 429, might a fee award be

denied to a prevailing plaintiff who won a final,

unappealed judgment.

As prevailing parties armed with an enforceable

judgment, Petitioners here presumably should have

been awarded a fee from the County BOE. Only special

circumstances could overcome that presumption. The

Sixth Circuit, however, rejected Petitioners’ right to

fees for two reasons: first, the Secretary’s successful

appeal meant that the County BOE was no longer

bound by the judgment. Next, the Sixth Circuit’s

rejection of Petitioners’ “key legal argument”

constituted a “special circumstance” justifying the

denial of fees. Both holdings result in Circuit splits.

Either supports certiorari.

10

I. The Sixth Circuit’s Ruling that the Nonappealing County Necessarily Benefited From

The State’s Appeal Contradicts Rulings In A

Majority of Circuits.

Moitie establishes that a losing party’s failure to

appeal a final judgment leaves it bound by that

judgment – even when a “closely interwoven” co-party

successfully appeals the judgment. There is no “general

equitable” exception, Moitie ruled, to this longstanding

principle of res judicata (claim preclusion). See also

Griswold v. County of Hillsborough, 598 F.3d 1289,

1294 (11th Cir. 2010) (“The Supreme Court … has

cautioned against departing from accepted principles of

res judicata”) (citing Moitie). As this Court explained in

United States v. Ackermann, 340 U.S. 193, 198 (1950),

a party’s “considered choice not to appeal” cannot be

undone “because hindsight seems to indicate to him

that his decision not to appeal was probably wrong.”

Post-Moitie, a majority of Circuits have rejected

equitable exceptions to res judicata’s rule of finality for

non-appealing litigants and unsuccessful appellants

alike. Pointing to Moitie, 452 U.S. 394, the Seventh

Circuit in In re Mutual Fund Market-Timing

Litigation, 468 F.3d 439, 443 (7th Cir. 2006), stated

that “[l]itigants who do not appeal from an adverse

decision are stuck with it, even if some other party to

the same case appeals and wins.” (Citing also Morley

Construction Co. v. Maryland Casualty Co., 300 U.S.

185, 191 (1937)).

The Ninth Circuit in Abatti v. Commissioner of

Internal Revenue, 859 F.2d 115, 120 (9th Cir. 1988),

quoted Moitie in holding that “[t]here is ‘no general

11

equitable doctrine ... which countenances an exception

to the finality of a party’s failure to appeal merely

because his rights are ‘closely interwoven’ with those of

another party.’” It accordingly refused to recognize any

“exceptions to the general rule that when less than all

the co-defendants appeal from an adverse judgment,

the non-appealing co-defendants cannot benefit from

an appellate decision reversing the judgment.” Id. at

119.

The Second Circuit in New York State National

Organization for Women v. Terry, 159 F.3d 86, 96 n.6

(2d Cir. 1998) (quoting Moitie, 452 U.S. at 398),4

likewise noted that the “res judicata consequences of a

final, unappealed judgment are not ‘altered by the fact

that the judgment may have been wrong or rested on a

legal principle subsequently overruled in another

case’.” Although Terry involved defendants who had

appealed (albeit unsuccesfully), the Second Circuit

extended Moitie’s holding to prevent them from

benefiting from subsequent legal developments, too.

Thus, whether a defendant in the Second Circuit

chooses not to appeal or unsuccessfully appeals, it

cannot claim the benefit of later appellate

developments that are achieved by others to avoid res

judicata. Contrary to the Sixth Circuit’s conclusion that

res judicata does “not deprive [an unappealing

defendant] of the benefit of that later appellate

4

The Second Circuit in Terry ruled that Moitie preserved the feeshifting that goes along with a final, unappealed judgment, thus

demonstrating that Buckhannon’s “enforceable judgment” and

Moitie’s res judicata are two sides of the same “prevailing party”

coin for purposes of 42 U.S.C. § 1988(b). See infra at 14-15.

12

decision,” App. 6, the Second Circuit noted that the

prior lack of a successful appeal does just that.

The Tenth Circuit in Johnson v. Spencer, 950 F.3d

680, 696 (10th Cir. 2020), meanwhile, recently

expressed its agreement with the Second Circuit’s

result: “claim-preclusion consequences of a final

judgment are … not ‘altered by the fact that the

judgment may have been wrong or rested on a legal

principle subsequently overruled in another case.’”

(Quoting Moitie, 452 U.S. at 398). See also AaronAndrew P. Bruhl, Deciding When to Decide: How

Appellate Procedure Distributes the Costs of Legal

Change, 96 CORNELL L. REV. 203, 211-12 (2011) (“A

final judgment is no less final because it is wrong,

whether it was always wrong or just newly

wrong.”). Consequently, subsequent reversals in the

Tenth Circuit are not sufficient to overcome “the claimpreclusion consequences of a final judgment,” Spencer,

950 F.3d at 696, either.

On the other side of the divide, the First Circuit in

Kale v. Combined Insurance Co. of America, 924 F.2d

1161, 1168 (1st Cir. 1991), reported that

notwithstanding Moitie it has “recognized the existence

of judicial power to make an ‘occasional exception’ to

claim preclusion in order ‘to prevent unusual

hardship.’” (Quoting Rose v. Town of Harwich, 778 F.2d

77, 82 (1st Cir. 1985) (Breyer, J.)). Neither in Kale nor

Rose, however, were the alleged hardships found to “fit

that narrow mold,” Kale, 924 F.2d at 1168, and neither

case involved non-appealing parties.

Although it did not cite Kale, the Sixth Circuit’s

conclusion here that the County’s failure to appeal does

13

“not deprive the County of the benefit of that later

appellate decision,” App. 6, arguably finds some

support in the First Circuit’s proposed “unusual

hardship” exception. Even without the support of the

First Circuit, the Sixth Circuit’s silent dismissal of

Moitie in the face of a final judgment still by itself

contradicts stated rules and results in the Second,

Seventh, Ninth and Tenth Circuits. This remains true

in these Circuits notwithstanding that the final

judgments “may have been wrong or rested on a legal

principle subsequently overruled in another case.”

Moitie, 452 U.S. at 398. This Circuit split between the

Second, Seventh, Ninth and Tenth Circuits on one side,

and the Sixth (and perhaps the First) on the other,

supports certiorari in this case.5

5

The Sixth Circuit’s suggestion that the County and the Secretary

were in some sort of privity, App. 6 (“It is not unusual for States to

litigate in the interests of agencies of the State or subdivisions of

the State.”), is incorrect. The County never argued that it was in

privity with the Secretary in this case, and there is no evidence to

suggest that the Secretary litigated on its behalf. Nor is there any

standing privity between Counties and States in Ohio or within

the meaning of § 1983. This Court has long observed that “political

subdivisions such as counties and municipalities, even though such

entities exercise a slice of state power,” Lake Country Estates v.

Tahoe Regional Planning Agency, 440 U.S. 391, 401 (1979)

(footnote omitted), are not “arm[s] of the state.” Mt. Healthy City

School District Board of Education v. Doyle, 429 U.S. 274, 280

(1977). Counties and States are conceptually separate

governmental entities with differing responsibilities and liabilities

under § 1983.

14

II. The Sixth Circuit’s Holding That An Appellate

Court’s Post-Judgment Rejection Of “Key

Legal Arguments” Constitutes A “Special

Circumstance” Conflicts With The Decision of

the Second Circuit in Terry.

In addition to the Circuit split described above, the

Sixth Circuit’s specific conclusion that “[t]he rejection

of a party’s key legal argument” in another party’s

appeal “counts at a minimum as a special circumstance

justifying a district court’s decision to deny fees,” App.

5, is at odds with the Second Circuit’s result in Terry,

159 F.3d 86. There, the Second Circuit ruled that even

the subsequent rejection of key legal arguments by this

Court does not necessarily constitute special

circumstances justifying a denial of attorney’s fees to a

prevailing plaintiff. Id. at 97 (“defendants have not

shown special circumstances that would render the fees

awarded in this case unjust”). A fortiori, a subsequent

otherwise controlling decision by a Court of Appeals,

under the Second Circuit’s holding, could not do so

either.

As described above, the Second Circuit in Terry

relied on Moitie to hold that the losing defendants in

that case were still responsible for the final judgment.

Terry, 159 F.3d at 96 n.6 (quoting Moitie, 452 U.S. at

398). Still, the defendants argued that they should be

released from having to pay attorney’s fees under 42

U.S.C. § 1988(b) because this Court in another case,

Bray v. Alexandria Women’s Health Clinic, 506 U.S.

263 (1993), had disavowed the plaintiff’s cause of action

under 42 U.S.C. § 1985(3). The Second Circuit

disagreed. Notwithstanding the watershed holding in

15

Bray, and notwithstanding the fact that the plaintiff

should not have prevailed under § 1985(3), the Second

Circuit concluded that the plaintiff was still entitled to

attorney’s fees. Terry, 159 F.3d at 97. Special

circumstances did not exist. Id.

To be sure, the Second Circuit’s conclusion was

cautious. It stated that that “the peculiar

circumstances of this case—a final judgment

confirming plaintiff’s status as the prevailing party

followed by a Supreme Court decision in another case

... might make unjust the subsequent award of

attorney’s fees to plaintiffs who would no longer be

entitled to prevail on their theory ….” Terry, 159 F.3d

at 97 (emphasis added). Still, the Second Circuit found

that special circumstances under the facts presented,

including the enactment of a new law (FACE) to

replace § 1985(3) in the wake of Bray, did not exist.

Terry, 159 F.3d at 97. 6

The Sixth Circuit’s holding that “[t]he rejection of a

party’s key legal argument” in another party’s appeal

“counts at a minimum as a special circumstance

justifying a district court’s decision to deny fees,” App.

5, cannot be squared with the Second Circuit’s holding.

Both the Second Circuit, see, e.g., Hines v. City of

Albany, 862 F.3d 215, 219 (2d Cir. 2017) (recognizing

“presumption that successful civil rights litigants

should ordinarily recover attorneys’ fees”) (citation

omitted), and Sixth Circuit recognize a presumption in

6

This new law, the Second Circuit explained, “substantially

undermined any claim that special circumstances render an

attorney’s fee award unjust.” Id.

16

favor of fees for prevailing parties. See, e.g., Hescott v.

City of Saginaw, 757 F.3d 518, 523 (6th Cir. 2014)

(“[a]lthough § 1988 uses permissive language regarding

fee awards, ‘the Supreme Court has read [§ 1988] as

mandatory where the plaintiff prevails and special

circumstances are absent’”) (citations omitted).7

Meanwhile, no reported cases from the Second

Circuit have ever found special circumstances, and the

Sixth Circuit reported in Hescott, 757 F.3d at 525, that

it had never (before its holding in the present case at

least) “found a ‘special circumstance’ justifying the

denial of fees.” (Citation omitted). It added in Hescott,

757 F.3d at 523, that “courts have made clear that

special circumstances should not be easily found,” a

conclusion that has been corroborated by Sister

Circuits. See De Jesus Nazario v. Morris Rodriguez,

554 F.3d 196, 200 (1st Cir. 2009) (“special

circumstances … are narrowly circumscribed … [and]

are few and far between”); Saint John’s Organic Farm

v. Gem Cnty. Mosquito Abatement Dist., 574 F.3d 1054,

1064 (9th Cir. 2009) (stating that findings of special

circumstances are “extremely rare”) (citation omitted).

While the Second and Sixth Circuits are thus in

agreement that awards of fees to prevailing parties are

presumed and special circumstances are rare, they

differ over what subsequent legal developments can be

exceptional enough to overcome 42 U.S.C. § 1988(b)’s

7

So do most (if not all) Circuits. See, e.g., Garza v. Citigroup, 881

F.3d 277, 283 n.6 (3d Cir. 2018) (“prevailing plaintiffs in § 1983

actions ‘should ordinarily recover an attorney’s fee”) (citations

omitted).

17

presumption. Certiorari is warranted to resolve this

split.

III.

The Sixth Circuit Erroneously Failed to

Follow “the Case Which Directly Controls.”

The Sixth Circuit relied on Sole v. Wyner to replace

this Court’s decision in Moitie. Wyner, however, cannot

bear that weight. Rather than involving an unappealed

final judgment, Wyner, 551 U.S. at 83, dealt with

whether a preliminary injunction that was undone by

a final judgment in the District Court can support fees

under 42 U.S.C. § 1988(b). The plaintiffs in Wyner

enjoyed only “fleeting” success in terms of a single

protest and no lasting relief. Res judicata was never at

issue. Neither were special circumstances. In contrast,

in the present case the Petitioners won a final

judgment that was not appealed by Respondents. The

initiative that passed in Windham remains the law in

that Village. Wyner has little, if any, application to this

case.

“Court of Appeals should follow the case which

directly controls, leaving to this Court the prerogative

of overruling its own decisions.” Agostini v. Felton, 521

U.S. 203, 237 (1997) (quoting Rodriguez de Quijas v.

Shearson/American Express, 490 U.S. 477, 484 (1989)).

See also National Cable & Telecommunications Ass’n v.

Brand X Internet, 545 U.S. 967, 986 (2005) (citing

Agostini as “requiring the Courts of Appeals to adhere

to our directly controlling precedents, even those that

rest on reasons rejected in other decisions”). Moitie

here is “the case which directly controls.” Its rationale

has not even been “rejected in other decisions.” The

Sixth Circuit erred by ignoring it.

18

IV.

This Case Presents A Solid Vehicle For

Addressing the Questions Presented.

Appellate free-riding, this Court warned in Moitie,

452 U.S. at 398-99, “would result in creating elements

of uncertainty and confusion and in undermining the

conclusive character of judgments, consequences which

it was the very purpose of the doctrine of res judicata to

avert.” Whether dealing with the declaratory terms of

an enforceable judgment, an award of money damages,

or attorney’s fees under 42 U.S.C. § 1988(b), finality

and certainty are equally critical. Attorney’s fees, after

all, “are an important component of civil rights

enforcement.” New York State Rifle & Pistol Ass’n v.

City of New York, 140 S. Ct. 1525, 1538 (2020) (Alito,

J., dissenting) (citation omitted).

The Sixth Circuit’s decision here cleanly calls into

question whether equitable exceptions to finality exist,

a matter other Circuits have deemed resolved. See 18

C. WRIGHT, ET AL., FED. PRAC. & PROC., CLAIM

PRECLUSION -- EXCEPTIONS TO CLAIM PRECLUSION RULE

§ 4415 (“The decision in Federated Department Store

v. Moitie virtually extinguishes the prospect that a

general fairness exception will be engrafted on claimpreclusion rules in the near-term future.”) (footnote

omitted). It is doubtful that the question presented

here could rise as cleanly from any other Circuit. That

it arises in the context of attorney’s fees makes the

questions presented here even more important.

19

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

MARK G. KAFANTARIS

625 City Park Street

Columbus, OH 43206

MARK R. BROWN

Counsel of Record

CAPITAL LAW SCHOOL

303 East Broad Street

Columbus, OH 43215

(614) 236-6590

mbrown@law.capital.edu