Petition for Writ of Certiorari — Tre Hargett, Tennessee Secretary of State, et al., Petitioners v. Tennessee State Conference of the NAACP, et al.

No. _______

IN THE

Supreme Court of the United States

TRE HARGETT, ET AL.,

Petitioners,

v.

TENNESSEE STATE CONFERENCE OF THE NAACP, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JONATHAN SKRMETTI

J. MATTHEW RICE

Attorney General

Special Assistant to the

Solicitor General

ANDRÉE S. BLUMSTEIN

Counsel of Record

Solicitor General

ZACHARY T. HINKLE

GABRIEL KRIMM

Associate Solicitor General Assistant Solicitor General

State of Tennessee

Office of the Attorney General

P.O. Box 20207

Nashville, TN 37202

(615) 532-6026

Matt.Rice@ag.tn.gov

Counsel for Petitioners

i

QUESTION PRESENTED

When, if ever, does a party who obtains a preliminary injunction, but never secures a final merits determination, qualify as a “prevailing party” eligible for

attorney’s fees under 42 U.S.C. § 1988?

ii

PARTIES TO THE PROCEEDINGS BELOW

Petitioners (defendants-appellants below) are Tre

Hargett, in his official capacity as Tennessee’s Secretary of State; Mark Goins, in his official capacity as

Tennessee’s Coordinator of Elections; the Tennessee

State Election Commission; and Donna Barrett, Judy

Blackburn, Mike McDonald, Gregory Duckett, Jimmy

Eldridge, Tom Wheeler, and Kent Younce, each in his

or her official capacity as a member of the Tennessee

State Election Commission.

Former Commissioner Jimmy Wallace, in his official capacity as a member of the Tennessee State Election Commission, was also a defendant-appellee below, but he retired in 2021. He is thus no longer a

party to these proceedings.

Respondents (plaintiffs-appellees below) are the

Tennessee State Conference of the NAACP; Democracy Nashville-Democratic Communities; the Equity

Alliance; the Andrew Goodman Foundation; the

League of Women Voters of Tennessee; the League of

Women Voters of Tennessee Education Fund; the

American Muslim Advisory Council; the Mid-South

Peace & Justice Center; the Memphis Central Labor

Council; Rock the Vote; and Headcount.

iii

RELATED PROCEEDINGS

Tennessee State Conf. of NAACP v. Hargett, No.

21-6024 (6th Cir.) (opinion and judgment issued Nov.

16, 2022)

Tennessee State Conf. of NAACP v. Hargett, No.

3:19-cv-365 (M.D. Tenn.) (stipulation and order of voluntary dismissal without prejudice issued Oct. 26,

2020)

League of Women Voters of Tenn. v. Hargett, No.

3:19-cv-385 (M.D. Tenn.) (consolidated with M.D.

Tenn. No. 3:19-cv-365 for all purposes on Nov. 5, 2019)

iv

TABLE OF CONTENTS

Question Presented .................................................... i

Parties to the Proceedings Below ............................. ii

Related Proceedings ................................................. iii

Table of Authorities .................................................. vi

Introduction ............................................................... 1

Opinions Below .......................................................... 2

Jurisdictional Statement........................................... 2

Relevant Statutory Provision.................................... 2

Statement of the Case ............................................... 3

A. Legal Background ......................................... 3

B. Factual and Procedural Background ........... 6

Reasons for Granting the Petition .......................... 10

I.

The Courts of Appeals Are Divided on the

Question Presented. .......................................... 10

A. Courts disagree on whether a likelihoodof-success showing satisfies the merits

requirement of the prevailing party

inquiry. ........................................................ 10

B. Courts disagree on whether a preliminary

injunction provides the “enduring” relief

necessary to obtain prevailing party

status. .......................................................... 14

II. The Question Presented Is Important. ............ 18

III. This Case Offers an Ideal Vehicle for

Resolving the Question Presented.................... 21

Conclusion................................................................ 25

v

APPENDIX

Appendix A

Opinion in the United States

Court of Appeals for the Sixth Circuit (November 16, 2022)........App. 1

Appendix B

Judgment in the United States

Court of Appeals for the Sixth Circuit (November 16, 2022)......App. 17

Appendix C

Memorandum in the United

States District Court Middle District of Tennessee Nashville Division (September 28, 2021) ....App. 19

Appendix D

Order in the United States District Court Middle District of Tennessee

Nashville

Division

(September 28, 2021) ............App. 52

Appendix E

Stipulation of Voluntary Dismissal Without Prejudice Under Rule

41(a)(1)(A)(ii) of the Federal

Rules of Civil Procedure and Order in the United States District

Court for the Middle District of

Tennessee

(October 26, 2020) .................App. 55

Appendix F

Order of Consolidation in the

United States District Court for

the Middle District of Tennessee

Nashville

Division

(November 5, 2019) ...............App. 64

vi

TABLE OF AUTHORITIES

Cases

A.M. Capen’s Co. v. Am. Trading & Prod. Corp.,

202 F.3d 469 (1st Cir. 2000) ............................... 24

Alyeska Pipeline Serv. Co. v. Wilderness Soc.,

421 U.S. 240 (1975) ............................................... 3

Amawi v. Paxton,

48 F.4th 412 (5th Cir. 2022) ......................... 17, 18

Astrue v. Ratliff,

560 U.S. 586 (2010) ........................................... 3, 4

Baker Botts LLP v. ASARCO LLC,

576 U.S. 121 (2015) ............................................... 3

Buckhannon Board & Care Home, Inc. v. West

Virginia Department of Health & Human

Resources,

532 U.S. 598 (2001) . 5, 9, 10, 13, 15, 20, 21, 24, 25

Coal. for Basic Hum. Needs v. King,

691 F.2d 597 (1st Cir. 1982) ............................... 18

Common Cause/Ga. v. Billups,

554 F.3d 1340 (11th Cir. 2009) ........................... 16

Dahlem ex rel. Dahlem v. Bd. of Educ.,

901 F.2d 1508 (10th Cir. 1990) ........................... 14

Dearmore v. City of Garland,

519 F.3d 517 (5th Cir. 2008) ..................... 1, 12, 17

Doster v. Kendall,

54 F.4th 398 (6th Cir. 2022) ............................... 24

Dupuy v. Samuels,

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

vii

Frew ex rel. Frew v. Hawkins,

540 U.S. 431 (2004) ............................................. 19

Gee v. Planned Parenthood of Gulf Coast, Inc.,

139 S. Ct. 408 (2018) ........................................... 18

Green v. Mansour,

474 U.S. 64 (1985) ............................................... 19

Haley v. Pataki,

106 F.3d 478 (2d Cir. 1997) .................... 12, 16, 18

Hanrahan v. Hampton,

446 U.S. 754 (1980) (per curiam).................... 4, 23

Hardt v. Reliance Standard Life Ins. Co.,

560 U.S. 242 (2010) ............................................... 3

Hensley v. Eckerhart,

461 U.S. 424 (1983) ............................................... 4

Hewitt v. Helms,

482 U.S. 755 (1987) ..................................... 4, 5, 11

Higher Taste, Inc. v. City of Tacoma,

717 F.3d 712

(9th Cir. 2013) ................... 1, 10, 12, 13, 16, 17, 20

Hodes & Nauser, MDs, P.A. v. Moser,

No. 2:11-cv-2365, 2012 WL 1831549

(D. Kan. May 18, 2012) ....................................... 13

Kan. Jud. Watch v. Stout,

653 F.3d 1230 (10th Cir. 2011) ........................... 13

Kan. Jud. Watch v. Stout,

No. 06-4056, 2012 WL 1033634

(D. Kan. Mar. 27, 2012) ...................................... 19

Kirk v. N.Y. State Dep’t of Educ.,

644 F.3d 134 (2d Cir. 2011) ................................ 16

viii

Lorillard Tobacco Co. v. Engida,

611 F.3d 1209 (10th Cir. 2010) ........................... 14

Medtronic, Inc. v. Gibbons,

684 F.2d 565 (8th Cir. 1982) ......................... 23, 24

Mercer v. Duke Univ.,

50 F. App’x 643 (4th Cir. 2002) (per curiam) ..... 21

Miller v. Caudill,

936 F.3d 442 (6th Cir. 2019) ............................... 15

N.Y. State Rifle & Pistol Ass’n v. City of N.Y.,

140 S. Ct. 1525 (2020) (per curiam).................... 19

Northern Cheyenne Tribe v. Jackson,

433 F.3d 1083 (8th Cir. 2006) ........... 15, 16, 17, 21

Peter v. Nantkwest, Inc.,

140 S. Ct. 365 (2019) ............................................. 3

Planned Parenthood of Sw. Oh. Region v. Dewine,

931 F.3d 530 (6th Cir. 2019) ............................... 19

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

683 F.3d 903 (8th Cir. 2012) ......................... 12, 16

Sinapi v. R.I. Bd. of Bar Exam’rs,

910 F.3d 544 (1st Cir. 2018) ......................... 12, 23

Singer Mgmt. Consultants, Inc. v. Milgram,

650 F.3d 223 (3d Cir. 2011)

(en banc) .............................. 4, 5, 11, 12, 16, 22, 23

Smyth ex rel. Smyth v. Rivero,

282 F.3d 268 (4th Cir. 2002) ............. 11, 12, 22, 23

Sole v. Wyner,

551 U.S. 74 (2007) ................. 1, 5, 6, 10, 14, 23, 24

Starbuck v. City & County of San Francisco,

556 F.2d 450 (9th Cir. 1977) ............................... 24

ix

Stinnie v. Holcomb,

No. 21-1756, 2022 WL 3210714 (4th Cir. Aug.

9, 2022) ................................................................ 12

Tex. State Teachers Ass’n v. Garland Indep. Sch.

Dist., 489 U.S. 782 (1989) ............................... 4, 14

Watson v. Cnty. of Riverside,

300 F.3d 1092 (9th Cir. 2002) ............................. 21

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

555 U.S. 7 (2008) ........................................... 11, 23

Wyner v. Struhs,

179 F. App’x 566 (11th Cir. 2006)......................... 5

Young v. City of Chi.,

202 F.3d 1000 (7th Cir. 2000) (per curiam) . 15, 24

Statutes

15 U.S.C. § 1117(a) ...................................................... 3

28 U.S.C. § 1254(1) ...................................................... 2

28 U.S.C. § 2412(b) ...................................................... 3

29 U.S.C. § 794a(b) ...................................................... 3

35 U.S.C. § 285 ............................................................ 3

42 U.S.C. § 1988(b) ...................................... 1, 3, 20, 21

42 U.S.C. § 2000a-3(b) ................................................. 3

52 U.S.C. § 10310(e) .................................................... 3

Act to Amend Tenn. Code Ann., Title 2, Relative

to Elections, 2019 Tenn. Pub. Acts Ch. 250 ..... 6, 7

Rules

Sup. Ct. R. 10(a) ........................................................ 18

INTRODUCTION

This case implicates a circuit split on the proper

interpretation of an important federal statute. The

Civil Rights Attorney’s Fees Awards Act of 1976 permits courts to award attorney’s fees to the “prevailing

party” in a § 1983 action. 42 U.S.C. § 1988(b). In Sole

v. Wyner, 551 U.S. 74 (2007), this Court held that the

term “prevailing party” does not include a plaintiff

who wins “a preliminary injunction that is [later] reversed, dissolved, or otherwise undone by the final decision in the same case.” Id. at 83. But the Court expressly left open the question of whether “success in

gaining a preliminary injunction . . . warrant[s] an

award of counsel fees” when a case never proceeds to

“a final decision on the merits.” Id. at 86.

In the years since, “[l]ower courts have struggled”

to answer that question, Higher Taste, Inc. v. City of

Tacoma, 717 F.3d 712, 715–716 (9th Cir. 2013), laying

down rules that “are anything but uniform,” Dearmore

v. City of Garland, 519 F.3d 517, 521 (5th Cir. 2008).

The decisions have created a circuit split on two fronts.

The courts of appeals disagree about when, if ever, a

preliminary-injunction decision is sufficiently “on the

merits” to create the judicial imprimatur needed for

prevailing party status. They also disagree about

when, if ever, a preliminary injunction provides the

“enduring” relief necessary to show that the plaintiff

prevailed.

And the question presented is important. State

and local governments face millions of dollars in fee

awards based on hasty preliminary injunctions issued

2

before full development of the relevant facts and arguments. This flips state sovereign immunity on its head

and incentivizes unyielding litigation to avoid a fee

bill. The result leaves everyone worse off—including

advocates for civil rights and policy reform.

By furthering the wrong side of the split, the Sixth

Circuit’s decision in this case presents an ideal vehicle

for this Court’s review. The respondents’ prevailing

party status is the one and only issue remaining in the

action. The Sixth Circuit’s position on both levels of

the split dictated the outcome below. And the Sixth

Circuit got the law wrong. This clean presentation

provides the perfect backdrop for resolving the question presented.

This Court should grant the petition for certiorari

and reverse the judgment below.

OPINIONS BELOW

The Sixth Circuit’s opinion (App.1-16) is reported

at 53 F.4th 406. The district court’s opinion (App.1951) is unreported but available at 2021 WL 4441262

(M.D. Tenn. Sept. 28, 2021).

JURISDICTIONAL STATEMENT

The Sixth Circuit entered judgment on November

16, 2022. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

RELEVANT STATUTORY PROVISION

The Civil Rights Attorney’s Fees Awards Act of

1976, as amended, provides in pertinent part:

3

In any action or proceeding to enforce a provision of section[] . . . 1983 . . . of this title, . . .

the court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee as

part of the costs . . . .

42 U.S.C. § 1988(b).

STATEMENT OF THE CASE

A. Legal Background

Litigation costs money—often, a lot of it. Under

the “American Rule,” each litigant “pays his own attorney’s fees, win or lose, unless a statute or contract

provides otherwise.” Peter v. Nantkwest, Inc., 140 S.

Ct. 365, 370 (2019) (quoting Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 253 (2010)). This “longestablished” rule stems out of “our common law” and

creates a baseline “presumption” against shifting fees

between parties. Baker Botts LLP v. ASARCO LLC,

576 U.S. 121, 126 (2015). Consistent with that presumption, statutes deviating from the American Rule

must provide “specific and explicit” authorization for

fee shifting. Alyeska Pipeline Serv. Co. v. Wilderness

Soc., 421 U.S. 240, 260 (1975).

When enacting such provisions, Congress has frequently reserved fee shifting only for a suit’s “prevailing party.” 42 U.S.C. § 1988(b); see also, e.g., 15 U.S.C.

§ 1117(a) (same); 28 U.S.C. § 2412(b) (same); 29 U.S.C.

§ 794a(b) (same); 35 U.S.C. § 285 (same); 42 U.S.C.

§ 2000a-3(b) (same); 52 U.S.C. § 10310(e) (same). This

Court has long viewed “prevailing party” as a legal

“term of art.” Astrue v. Ratliff, 560 U.S. 586, 591

4

(2010). But pinning down its precise meaning has

proved difficult in practice.

This Court’s precedents offer some guideposts.

The Court has said the “prevailing party” term applies

“only to a party who has established his entitlement to

some relief on the merits of his claims.” Hanrahan v.

Hampton, 446 U.S. 754, 757 (1980) (per curiam). This

relief must flow from “succe[ss] on a[] significant issue

in [the] litigation which achieves some of the benefit

the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (quotation omitted).

And “[t]he real value” of that success must be in “affect[ing] the behavior of the defendant.” Hewitt v.

Helms, 482 U.S. 755, 761 (1987) (emphasis omitted).

Indeed, “[t]he touchstone of the prevailing party inquiry” is some “material alteration of the legal relationship of the parties.” Tex. State Teachers Ass’n v.

Garland Indep. Sch. Dist., 489 U.S. 782, 792–793

(1989).

With this guidance, the lower courts have repeatedly read “prevailing party” in an expansive manner,

prompting this Court to step in and reinforce the

American Rule.

Most notably, in the 1990s, the courts of appeals

relied on the so-called “catalyst” theory to conclude

that a plaintiff could “prevail” in his lawsuit without

ever winning anything in court. Under that theory, a

plaintiff prevailed when a lawsuit caused the defendant to voluntarily change its conduct in a manner that

provided some of the sought-after relief. Singer Mgmt.

5

Consultants, Inc. v. Milgram, 650 F.3d 223, 231 (3d

Cir. 2011) (en banc).

But this Court rejected that idea in Buckhannon

Board & Care Home, Inc. v. West Virginia Department

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

According to Buckhannon, “a ‘prevailing party’ is one

who has been awarded some relief by the court.” Id. at

603 (emphasis added). “A defendant’s voluntary

change in conduct, although perhaps accomplishing

what the plaintiff sought to achieve by the lawsuit,

lacks the necessary judicial imprimatur on the

change” to confer prevailing party status. Id. at 605.

Were it otherwise, a plaintiff could prevail “by simply

filing a nonfrivolous but nonetheless . . . meritless

lawsuit,” id. at 606—a result at odds with the bedrock

requirement that a prevailing party “receive at least

some relief on the merits of his claim,” id. at 603 (emphasis added) (quoting Hewitt, 482 U.S. at 760).

Still, expansion of fee-shifting persisted. Even after Buckhannon, lower courts conferred prevailing

party status on plaintiffs who ultimately lost their

cases but secured some interim relief before the unfavorable judgment. Courts reasoned that a preliminary

injunction could be granted “on the merits” of the

claims at issue, even if those “merits” were not ultimately proved. See Wyner v. Struhs, 179 F. App’x 566,

569 (11th Cir. 2006).

Again, this Court intervened. Speaking unanimously in Sole v. Wyner, 551 U.S. 74 (2007), the Court

held that “[a] plaintiff who achieves a transient victory

at the threshold of an action” is not a prevailing party

6

“if, at the end of the litigation, her initial success is

undone,” id. at 78. This is because “[a]t the preliminary injunction stage, the court is called upon to assess the probability of the plaintiff’s ultimate success

on the merits.” Id. at 84 (emphasis added). “[W]ith

the benefit of a fuller record,” however, the court may

“recognize[] that its initial assessment was incorrect.”

Id. at 85. If it does, “the merits of the case are ultimately decided” in the defendant’s favor, id. at 86, so

the plaintiff cannot have “prevailed on the gravamen

of her plea,” id. at 83. Accordingly, the Court held that

a plaintiff “who secures a preliminary injunction, then

loses on the merits” does not qualify as a prevailing

party eligible for fees. Id. at 86 (cleaned up).

In reaching that conclusion, the Court “express[ed] no view on whether, in the absence of a final

decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction

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

It left that question for another day.

B. Factual and Procedural Background

That day has come; this case presents the question

left open by Sole. In May 2019, the State of Tennessee

made several changes to its voter-registration laws,

seeking to improve the quality and transparency of

large registration drives with paid staff. See Act to

Amend Tenn. Code Ann., Title 2, Relative to Elections,

2019 Tenn. Pub. Acts Ch. 250, Sec. 1(a), (g). 1 Under

Tennessee’s revised laws, such drives would have to

1 https://publications.tnsosfiles.com/acts/111/pub/pc0250.pdf.

7

(1) pre-register their leaders; (2) have staffers complete free, state-provided training; and (3) “deliver or

mail completed voter registration forms” to state authorities “within ten . . . days of the . . . drive.” Sec.

1(a). The statute also imposed civil penalties on any

drive that “fil[ed] one hundred . . . or more incomplete

voter registration applications” with state authorities

“within a calendar year.” Sec. 2(a). And it prohibited

anyone operating a voter-registration drive from “retaining” any applicant’s personal information without

consent. Sec. 1(b). Finally, the statute required public

communications and websites containing or collecting

registration information to make clear their purposes

and disclaim any affiliation with the State. See Sec. 6.

As soon as Tennessee’s Governor signed these new

rules into law, a handful of advocacy groups—Respondents here—challenged them in court. See Complaint, Tenn. State Conf. of the NAACP v. Hargett, No.

3:19-cv-365 (M.D. Tenn. May 2, 2019), ECF No. 1;

Complaint, League of Women Voters v. Hargett, No.

3:19-cv-385 (M.D. Tenn. May 9, 2019), ECF No. 1.

Several months later, as the statute’s effective date

approached, the Advocacy Groups asked the district

court to enjoin Tennessee officials from enforcing the

new rules while their legality was under review. See

Pls.’ Mot. Prelim. Inj., NAACP, No. 3:19-cv-365 (M.D.

Tenn. Aug. 16, 2019), ECF No. 39; Pls.’ Mot. Prelim.

Inj., League, No. 3:19-cv-385 (M.D. Tenn. Aug. 30,

2019), ECF No. 54.

Mere days after briefing concluded, and without

ever holding a hearing, the district court issued a series of orders and opinions granting preliminary relief.

8

See League, 400 F. Supp. 3d 706 (M.D. Tenn. 2019);

NAACP, 420 F. Supp. 3d 683 (M.D. Tenn. 2019). Sorting through a partial record and a web of convoluted

jurisprudence, the court held that the Advocacy

Groups had shown a likelihood of success on their

claims because Tennessee had insufficient evidence to

justify new burdens on political expression. See

League, 400 F. Supp. 3d at 719–732 & n.9. It also criticized portions of the statute as impermissibly vague,

based in part on the Advocacy Groups’ written descriptions of how registration drives work in practice. See,

e.g., id. at 727–728.

But the court’s preliminary conclusions did not ultimately lead to a final judgment on the merits. Less

than seven months after the preliminary injunction issued, the Tennessee legislature “repeal[ed] all of the

provisions of the” voter-registration statute “challenged in” the Advocacy Groups’ lawsuit. App.57. In

response, the Advocacy Groups “voluntarily dismiss[ed]” their claims “without prejudice,” explaining

that “although [their suits were] not technically moot

as a matter of law,” “further litigation” would serve

“little purpose.” App.57-58.

Almost immediately after withdrawing their

claims, the Advocacy Groups moved for attorney’s

fees, and the district court granted their request. See

App.19-51. The court concluded that the Advocacy

Groups were “prevailing parties,” and thus eligible for

statutory fee shifting, despite their failure to secure a

final judgment. See App.30-37. Citing Sixth Circuit

precedent, the court reasoned that the Advocacy

9

Groups had won “court-ordered,” “enduring” relief because the preliminary injunction “prevented the challenged laws from being enforced until, through the ordinary operation of the state’s legislature, the laws . . .

ceased to exist.” App.33, 36. For the preliminary proceedings alone, the court ordered the State to pay

nearly $800,000 in fees. App.52-54.

A divided panel of the Sixth Circuit affirmed. See

App.1-16. In the majority’s view, “[t]he relief the

plaintiffs obtained” was “distinguishable from the

‘fleeting’ relief in Sole” because “the court never vacated or dissolved the injunction” and the “plaintiffs

were able to conduct voter-registration . . . unburdened by the [challenged] requirements.” App.8.

But Judge Nalbandian dissented. In his view,

courts “must deny attorney’s fees in preliminary-injunction cases if a defendant’s voluntary action moots

the case.”

App.12 (Nalbandian, J., dissenting).

“Granting . . . fees” in that situation “promotes the

very [catalyst theory] Buckhannon cast aside.”

App.13. Judge Nalbandian further reasoned that the

preliminary injunction itself was not “‘enduring’

enough to support prevailing-party status.” App.14.

“It’s not as if the relief sought here was for a single

event, thus allowing plaintiffs to obtain their one-time

prayer for relief via a preliminary injunction.” App.15.

“To the contrary,” the Advocacy Groups “sought . . .

permanent relief for all future elections,” and they

“didn’t win the war for all future elections, at least not

in court.” App.15.

10

REASONS FOR GRANTING THE PETITION

This Court should answer the question left open

by Sole: When, if ever, does a party who obtains a preliminary injunction, but who never wins a final merits

determination, qualify as a “prevailing party” for the

purpose of statutory fee shifting? See 551 U.S. at 86.

The divided lower courts need guidance on this important, recurring issue, and this case provides the

ideal vehicle for resolving the confusion.

I.

The Courts of Appeals Are Divided on the

Question Presented.

This case implicates a clear, entrenched circuit

split on the question of when preliminary injunctive

relief supports prevailing party status. That issue has

created confusion on two fronts. First, courts disagree

about whether a preliminary injunction grants relief

“on the merits” for purposes of the prevailing party inquiry. Higher Taste, 717 F.3d at 716. Second, courts

disagree about when the interim relief obtained from

a preliminary injunction is sufficiently “enduring” to

render a party “prevailing.” Id. This layered disarray

calls out for the Court’s intervention.

A. Courts disagree on whether a likelihoodof-success showing satisfies the merits

requirement of the prevailing party inquiry.

The circuits are split on the merits showing necessary to obtain prevailing party status. It is well settled that a plaintiff must “receive at least some relief

on the merits of his claim before he can be said to prevail.” Buckhannon, 532 U.S. at 603 (emphasis added)

11

(quoting Hewitt, 482 U.S. at 760). But in considering

whether to grant preliminary relief, courts determine

only whether the movant is “likely to succeed on the

merits.” Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 20 (2008) (emphasis added). The Courts of Appeals hold different views about whether that early,

probabilistic decision provides the judicial sanction

necessary to justify an award of attorney’s fees.

The Third and Fourth Circuits have held that a

likelihood-of-success determination is not sufficient to

satisfy the “on the merits” requirement. See Singer,

650 F.3d at 229 (3d Cir.) (en banc); Smyth ex rel.

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

They recognize that “[w]hile granting [a preliminary]

injunction does involve an inquiry into the merits of a

party’s claim,” that inquiry “is necessarily abbreviated.” Smyth, 282 F.3d at 276. At the preliminaryinjunction stage, a court’s assessment of the merits “is

best understood as a prediction of a probable, but necessarily uncertain, outcome” and “by no means represents a determination that the claim in question will

or ought to succeed.” Id. That is not enough, according to these courts, to qualify as a decision “on the merits.” Id.; see Singer, 650 F.3d at 230 & n.4. And because the likelihood-of-success determination “is usually the only merits-related legal determination made

when courts grant TROs and preliminary injunctions,

it follows that parties will not often ‘prevail’ based

solely on those events.” Singer, 650 F.3d at 229. In

short, in the Third and Fourth Circuits, a plaintiff cannot satisfy “the ‘merits’ requirement” by establishing

“only . . . a likelihood of success on the merits (that is,

12

a reasonable chance, or probability, of winning).” Id.;

see Smyth, 282 F.3d at 276–277. 2

The First Circuit has taken a similar approach, at

least where “precipitant circumstances permit[] no

thorough examination of the merits.” Sinapi v. R.I.

Bd. of Bar Exam’rs, 910 F.3d 544, 551 (1st Cir. 2018).

In Sinapi, the First Circuit held that a “likelihood of

success on the merits” is not enough to validate the

plaintiff’s suit. Id. at 551–552. In doing so, the court

explained that “[i]t would be unfair to deem [the plaintiff] a ‘prevailing’ party” and “slap [the defendant]

with a fee bill based on a” view of the merits that the

defendant “never received a fair opportunity to contest

on a properly developed record.” Id. at 552. Accordingly, the court concluded that “‘prevailing party’ status was not justified” with nothing more than a likelihood-of-success determination. Id.

By contrast, the Second, Fifth, Eighth, and Ninth

Circuits have all held that showing a likelihood of success categorically satisfies the “on the merits” requirement and secures the judicial sanction needed to make

the plaintiff a prevailing party. See Haley v. Pataki,

106 F.3d 478, 483 (2d Cir. 1997); Dearmore, 519 F.3d

at 524 (5th Cir.); Rogers Grp., Inc. v. City of Fayetteville, 683 F.3d 903, 910 (8th Cir. 2012); Higher Taste,

717 F.3d at 716 (9th Cir.). According to those courts,

2 The Fourth Circuit has granted en banc review in a case impli-

cating its holding in Smyth. See Stinnie v. Holcomb, No. 21-1756,

2022 WL 3210714 (4th Cir. Aug. 9, 2022). But the entrenched

split on the merits requirement will persist even if the court flips

its position in that case.

13

a “likelihood-of-success finding ensures that the preliminary relief . . . obtained [i]s the product of more

than merely a ‘nonfrivolous but nonetheless potentially meritless lawsuit,’” Higher Taste, 717 F.3d at

716 (quoting Buckhannon, 532 U.S. at 606), and that

showing suffices.

The Sixth and Tenth Circuits fall somewhere in

between. Rather than deeming a likelihood-of-success

finding categorically sufficient or insufficient, the

Tenth Circuit looks at the circumstances of each case

and considers whether the district court “undert[ook]

a serious examination of the” legal issues and found an

“unambiguous indication of probable success on the

merits.” Kan. Jud. Watch v. Stout, 653 F.3d 1230,

1238 (10th Cir. 2011) (emphasis added); see also Hodes

& Nauser, MDs, P.A. v. Moser, No. 2:11-cv-2365, 2012

WL 1831549, at *3 (D. Kan. May 18, 2012) (interpreting the Tenth Circuit’s requirement of a “serious examination” and “unambiguous finding” to require

more than an “expedited” likelihood-of-success determination). The Sixth Circuit, although less explicit in

its reasoning, has likewise contrasted a “hasty” merits

review from a decision “after full briefing and an opportunity for each side to present evidence supporting

its position”—evaluating “the prospect that . . . the

[district] court would [have] reverse[d] course.” App.89.

These three camps cannot all be right. This Court

should decide who is.

14

B. Courts disagree on whether a preliminary injunction provides the “enduring”

relief necessary to obtain prevailing

party status.

The circuit split takes on a second dimension when

it comes to the relief needed to prevail. Again, it is

settled law that, to qualify as a prevailing party, a

plaintiff must establish that judicial relief caused an

“enduring ‘chang[e] [in] the legal relationship’ between herself and the” defendant. Sole, 551 U.S. at 86

(emphasis added) (quoting Texas Teachers, 489 U.S. at

792). But the obvious disconnect between preliminary

injunctions and enduring relief has caused confusion

in the lower courts.

This stems from the fact that, broadly speaking,

every preliminary injunction changes the parties’ legal

relationship by restraining the defendant’s conduct.

Lorillard Tobacco Co. v. Engida, 611 F.3d 1209, 1217

(10th Cir. 2010). But while some injunctions impose

truly temporary restraint pending further proceedings, others effectively provide the plaintiff all the relief requested. For instance, a plaintiff who sues to

hold a parade on a specific day, obtains a preliminary

injunction allowing him to do so, and then holds the

parade unimpeded has obtained the only tangible benefit he sought in filing suit. Cf. Dahlem ex rel. Dahlem

v. Bd. of Educ., 901 F.2d 1508, 1513 (10th Cir. 1990)

(finding relief enduring when plaintiff “participate[d]

in interscholastic gymnastics during his senior year”).

But the circuits disagree on whether that scenario is

the only situation where relief counts as “enduring”

enough to support prevailing party status.

15

To date, the Seventh Circuit has deemed preliminary relief “enduring” only in the limited circumstance

where the preliminary injunction provided all “the relief . . . sought” in the lawsuit. Young v. City of Chi.,

202 F.3d 1000, 1000 (7th Cir. 2000) (per curiam); see

also Dupuy v. Samuels, 423 F.3d 714, 723–725 (7th

Cir. 2005) (summarizing Seventh Circuit law). And

some have viewed this situation as the only viable

path to prevailing party status when a case fails to

reach final judgment. As Judge Nalbandian put it,

preliminary relief qualifies as enduring only in the

“rare cases” where a plaintiff “obtain[s] their one-time

prayer for relief via a preliminary injunction,” such as

where “the relief sought” is “for a single event.”

App.14-15 (Nalbandian, J., dissenting) (citing Miller v.

Caudill, 936 F.3d 442, 450 (6th Cir. 2019)).

The Eighth Circuit adopted this strict framework

in Northern Cheyenne Tribe v. Jackson, 433 F.3d 1083

(8th Cir. 2006). The court recognized that sometimes

a “preliminary injunction functions much like the

grant of an irreversible partial summary judgment on

the merits” because “the party’s claim [for a] permanent injunction is rendered moot by the impact of the

preliminary injunction.” Id. at 1086. That did not fit

the case at hand, however, where the district court’s

preliminary injunction provided “only interim relief.”

Id. (noting that the injunction was based on a likelihood of success). In the court’s view, “a preliminary

injunction that grants only temporary relief pendente

lite is not, without more, a judicially sanctioned material alteration of the parties’ legal relationship within

the meaning of Buckhannon.” Id. The court thus

placed a high bar on the relief required—effectively,

16

only in cases like the parade example—to obtain prevailing party status. After Northern Cheyenne, however, the Eighth Circuit created a workaround for

plaintiffs: include a request for a preliminary injunction in the complaint so that obtaining one will constitute complete victory on one requested remedy. Rogers

Grp., 683 F.3d at 911 (noting that the plaintiff’s complaint “asked the District Court for equitable relief in

the form of a preliminary injunction” and “[w]hen the

District Court issued the injunction, it granted [the

plaintiff] the precise relief that [it] had requested”

(quotation omitted)).

By contrast, in the Second, Third, Sixth, Ninth,

and Eleventh Circuits, a preliminary injunction can

provide relief sufficient to “prevail,” regardless of

whether it provides all of the relief sought. See Haley,

106 F.3d at 483–484 (2d Cir.); Singer, 650 F.3d at 230

n.4 (3d Cir.); App.3 (6th Cir.); Higher Taste, 717 F.3d

at 717 (9th Cir.); Common Cause/Ga. v. Billups, 554

F.3d 1340, 1356 (11th Cir. 2009). Many of these courts

hold that prevailing party status attaches when the

preliminary injunction provides any “relief” at all. See

Haley, 106 F.3d at 483–484; Common Cause, 554 F.3d

at 1356; see also Kirk v. N.Y. State Dep’t of Educ., 644

F.3d 134, 137 n.3 (2d Cir. 2011) (“[A] plaintiff who

achieves relief, even if only interim relief, does not lose

prevailing party status if there is a later determination on appeal that the case is moot.”). Others have

reasoned that the resolution of a case without a final

judgment “transform[s] what had been temporary relief capable of being undone . . . into a lasting alteration of the parties’ legal relationship.” Higher Taste,

17

717 F.3d at 718. Still others consider whether the preliminary injunction had any lasting, secondary impacts. See App.8-9. Whatever the reasoning, in these

circuits, the grant of a preliminary injunction can, in

certain circumstances, satisfy the relief requirement

in the prevailing-party inquiry even when the injunction does not provide the plaintiff all of the requested

relief.

Taking a third position, some courts have incorporated a causal component into the relief requirement.

The Fifth Circuit has stated this most clearly, requiring a showing that the preliminary injunction

“cause[d] the defendant to moot the action.” Dearmore, 519 F.3d at 524 (emphasis added). In other

words, a law mooting a dispute must be “passed in direct response to the district court’s preliminary injunction”—and not for some unrelated reason—before a

plaintiff can be said to prevail. Amawi v. Paxton, 48

F.4th 412, 418 (5th Cir. 2022). The Eighth Circuit’s

Northern Cheyenne decision also adopts that reasoning, albeit in less explicit terms. There, the court focused on “the impact of the preliminary injunction”

and denied prevailing party status, at least in part,

because “the [plaintiffs] achieved their desired result”

through “voluntary action” the defendants took “for

reasons unrelated” to the lawsuit. 433 F.3d at 1086

(emphasis added).

Again, these approaches are not reconcilable. Either temporary relief is sufficient or not. Either the

preliminary injunction must cause the defendant to

moot the action or not. The circuits’ divergent approaches cannot all be correct.

18

* * *

In sum, the courts of appeals are split into multiple, discordant camps on at least two levels of analysis: (1) the “on the merits” requirement and (2) the

meaning of “enduring” relief. This confusion requires

this Court’s intervention.

II. The Question Presented Is Important.

This Court primarily “resolve[s] ‘important matter[s]’ on which the courts of appeals are ‘in conflict.’”

Gee v. Planned Parenthood of Gulf Coast, Inc., 139

S. Ct. 408, 408 (2018) (Thomas, J., dissenting from denial of certiorari) (quoting Sup. Ct. R. 10(a)). And the

question presented here is critically important to the

States and other parties.

First, the broad interpretation of “prevailing

party” adopted by many circuits places a substantial

financial burden on States. This case and countless

others involve constitutional challenges to short-lived

state legislation. See Amawi, 48 F.4th at 415; Haley,

106 F.3d at 481; Coal. for Basic Hum. Needs v. King,

691 F.2d 597, 598–599 (1st Cir. 1982). In most circuits, the plaintiffs can win fees by riding a partial evidentiary record to a hasty preliminary injunction and

dismissing as soon as the legislature tweaks the law.

See supra at 12–13, 16–17. And in large swaths of the

country, a plaintiff does not even have to show that his

lawsuit actually caused any lasting change. See supra

at 17. Yet these circumstances often lead to a substantial fee award.

Indeed, it is common for a State to pay a six-figure

bill in a case involving mere preliminary relief. See,

19

e.g., Planned Parenthood of Sw. Oh. Region v. Dewine,

931 F.3d 530, 537 (6th Cir. 2019) ($382,529.98); Kan.

Jud. Watch v. Stout, No. 06-4056, 2012 WL 1033634,

at *14 (D. Kan. Mar. 27, 2012) ($151,470.08). Here,

the bill came closer to seven figures—not including appeal—even after substantial reductions from the district court. See App.47-51. That sum is all the more

shocking considering this case never went to trial and

never even required summary judgment briefing.

With States facing a barrage of (often meritless) constitutional challenges to duly enacted legislation, the

threat of such heavy fees attaching to preliminary injunction proceedings necessarily jeopardizes state legislative priorities and skews democratic policymaking.

Second, the threat of fees from preliminary relief

creates a perverse incentive to ossify state law and policy. Given the protections of sovereign immunity,

suits challenging state and local policy very often seek

prospective injunctive relief but not money damages.

See Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437

(2004); Green v. Mansour, 474 U.S. 64, 68 (1985). This

means that amending a challenged state law will often

moot any ongoing litigation concerning that law’s enforcement. See N.Y. State Rifle & Pistol Ass’n, Inc. v.

City of N.Y., 140 S. Ct. 1525, 1526 (2020) (per curiam).

That reality, combined with prevailing fee-shifting

rules, produces results that flip sovereign immunity

on its head: States face increased exposure to early,

substantial fee awards precisely because of the States’

immunity from monetary damages.

This increased prospect of a prematurely fixed fee

award drives state lawmakers away from compromise.

20

A State’s leaders may wish to change a challenged law

to address an unintended consequence. They may

have contemplated a change before the litigation even

began. Or they may simply want to accommodate

plaintiffs and avoid the expense and distraction of litigation. But in many circuits, after a preliminary injunction has issued, the State cannot change course

without mooting the ongoing controversy and incurring a hefty fee award. See Higher Taste, 717 F.3d at

718.

Thus, rather than explore options that might better serve the public, a State that engaged in conduct

that “may not be illegal” must litigate cases tooth-andnail to protect taxpayer dollars. Buckhannon, 532

U.S. at 608; see also id. (explaining that a defendant

may be deterred from “altering its conduct,” especially

if the conduct “may not be illegal,” if doing so will result in a fee award). This not only degrades lawmaking decisions, it also drives more discovery, more dispositive briefing, more trials, more appeals, and even

more interlocutory appeals—all to oppose prevailing

party status. Cf. App.10 (using the decision not to

seek an interlocutory appeal as a fact favoring prevailing party status). It is difficult to see how anyone is

better off in this scenario.

Third, the contours of prevailing party status apply well beyond the circumstances of this case. Section

1988 allows fee shifting in suits brought under the

Civil Rights Act, the Religious Freedom Restoration

Act, the Religious Land Use and Institutionalized Persons Act, Title IX, and several other statutes. See 42

21

U.S.C. § 1988(b). States, territories, local governments, the United States, and private parties all face

fee requests under these fee-shifting regimes. See

Watson v. Cnty. of Riverside, 300 F.3d 1092, 1094 (9th

Cir. 2002); Mercer v. Duke Univ., 50 F. App’x 643, 644

(4th Cir. 2002) (per curiam); N. Cheyenne, 433 F.3d at

1084. And because this Court has held that “prevailing party” generally has a consistent meaning

throughout the U.S. Code, see Buckhannon, 532 U.S.

at 602–603 & n.4, precedent developed through civil

rights litigation will project into dozens of other areas,

cf. id. at 611 (Scalia, J., concurring) (noting “the term

‘prevailing party’ appears at least 70 times in the current United States Code”).

This Court can thus provide widespread and much

needed guidance by resolving the tidy question presented in this petition.

III. This Case Offers an Ideal Vehicle for Resolving the Question Presented.

This case presents an ideal vehicle for answering

the question presented. It cleanly raises the question,

squarely implicates the circuit split, and involves a

massive fee award granted for reasons that cannot

withstand scrutiny.

First, no factual or procedural obstacles will complicate this Court’s review. The only remaining dispute here is whether the Advocacy Groups’ preliminary injunction made them prevailing parties. That

issue has been litigated at each stage of this case, and

both the trial court and the Sixth Circuit squarely addressed the dispute. See supra at 8–9. This case thus

22

provides a clean vehicle for reaching the interpretive

question.

Second, this case squarely presents both components of the circuit split. On the merits, the district

court awarded the Advocacy Groups preliminary relief

based only on a “likelihood of success.” League, 400 F.

Supp. 3d at 719–733. In the Third and Fourth Circuits, that determination would not establish prevailing party status because a mere likelihood of success

is no substitute for judicial approval “on the merits.”

See Singer, 650 F.3d at 229–230 & n.4; Smyth, 282

F.3d at 276. But under the Sixth Circuit’s approach,

the likelihood-of-success showing on a partial documentary record sufficed. See supra at 9. Thus, the

showing necessary to satisfy the merits requirement

dictated the outcome.

This case likewise tees up the divergent approaches to the relief requirement in the prevailing

party inquiry. This is not a case (like the parade example discussed supra at 14) where a preliminary injunction provided plaintiffs all of the relief they asked

for. The preliminary injunction secured only a temporary reprieve from enforcement of the challenged law,

which paled in comparison to the permanent judgment

the Advocacy Groups sought when they came into

court. Elsewhere in this country, the limited nature

of that relief would have mattered, see supra at 14–16,

and it would have foreclosed the Advocacy Groups’ fee

award. But under the Sixth Circuit’s approach here,

the temporary restraint on enforcement of the challenged law was enough.

23

Thus, this case implicates both aspects of the circuits’ confusion—the merits and relief showings necessary to obtain prevailing party status—and resolution of those issues was outcome determinative.

Third, the Sixth Circuit has the law wrong. As

several courts elsewhere have recognized, a grant of

preliminary relief necessarily follows a cursory factgathering process that both favors the plaintiff and

rushes the court’s decisionmaking. See Smyth, 282

F.3d at 276; see also Singer, 650 F.3d at 229–230; Sinapi, 910 F.3d at 551–552. In most cases, the defendant

has two weeks or less to marshal the documents, testimony, and authorities needed to support its challenged action. And the court may have even less time

to render a decision, regardless of the complexity of

the case. See League, 400 F. Supp. 3d 706 (M.D. Tenn.

2019) (granting preliminary relief three days after

Tennessee’s response in opposition); NAACP, 420 F.

Supp. 3d 683 (M.D. Tenn. 2019) (granting preliminary

relief one week after the plaintiff’s reply in support of

the motion).

That is why pre-judgment relief can issue on a

mere “likelihood” that the plaintiff will succeed, Winter, 555 U.S. at 20, a far cry from the plaintiff “establish[ing] . . . entitlement to . . . relief on the merits,”

Hanrahan, 446 U.S. at 757. The probabilistic likelihood-of-success determination is necessarily subject to

reconsideration and revision as the facts and arguments develop. Sole, 551 U.S. at 85. And if the case

concludes without a final ruling, the court’s early assessment of the lawsuit has no preclusive effect, Medtronic, Inc. v. Gibbons, 684 F.2d 565, 569 (8th Cir.

24

1982) (citing Starbuck v. City & County of San Francisco, 556 F.2d 450, 457 n.13 (9th Cir. 1977)), and offers precious little insight on what the law actually is,

see A.M. Capen’s Co. v. Am. Trading & Prod. Corp.,

202 F.3d 469, 472–473 (1st Cir. 2000). Put simply, a

likelihood-of-success showing means that a plaintiff

“won the [initial] battle”; “they didn’t win the war.”

App.15 (Nalbandian, J., dissenting).

Moreover, even if preliminary relief could clear

Buckhannon’s “judicial imprimatur” merits requirement, 532 U.S. at 605, it should at most qualify as “enduring” relief only in the narrowest of circumstances.

Admittedly, some time-sensitive lawsuits make preliminary relief the only real remedy available. See

Young, 202 F.3d at 1000–1001. But those are exceptional cases. More often, plaintiffs seek “permanent,”

or indefinite, protection from state government action.

Cf. App.15 (Nalbandian, J. dissenting) (noting plaintiffs “sought . . . permanent relief for all future elections”). And in those cases, a temporary injunction

that only “stop[s] [the] defendant’s threatened conduct

from causing (irreparable) harm until the court has a

meaningful chance to resolve the case on the merits,”

Doster v. Kendall, 54 F.4th 398, 441 (6th Cir. 2022)

(emphasis added), necessarily offers less than the “enduring” relief Sole requires. Sole, 551 U.S. at 78, 86

(describing preliminary relief as a “transient” and

“ephemeral” victory).

Indeed, the relief obtained here could only be described as enduring because of what happened outside

the litigation: Tennessee’s voluntary amendment of its

laws. See App.31-32. No plaintiff should be allowed

25

to rely on such extrajudicial relief to claim he “prevailed” in court, see Buckhannon, 532 U.S. at 603, especially without ever showing that his lawsuit made

any difference at all.

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

JONATHAN SKRMETTI

Attorney General

ANDRÉE S. BLUMSTEIN

Solicitor General

ZACHARY T. HINKLE

Associate Solicitor General

J. MATTHEW RICE

Special Assistant to the Solicitor General

Counsel of Record

GABRIEL KRIMM

Assistant Solicitor General

State of Tennessee

Office of the Attorney General

P.O. Box 20207

Nashville, TN 37202

(615) 532-6026

Matt.Rice@ag.tn.gov

Counsel for Petitioners

FEBRUARY 13, 2023