Respondents Brief — Tre Hargett, Tennessee Secretary of State, et al., Petitioners v. Tennessee State Conference of the NAACP, et al.
Supreme Court briefApr 26, 2023
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No. 22-773
IN THE
Supreme Court of the United States
_________
TRE HARGETT, ET AL.,
v.
Petitioners,
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
_________
BRIEF IN OPPOSITION
_________
DAMON T. HEWITT**
JON M. GREENBAUM*
*Counsel of Record for
All Respondents
EZRA D. ROSENBERG
POOJA CHAUDHURI
LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW
1500 K Street, N.W., Suite 900
Washington, DC 20005
(202) 662-8315
jgreenbaum@lawyerscommittee.org
**Admitted in Pennsylvania only. Practice
limited to matters before federal courts.
YAEL BROMBERG
BROMBERG LAW LLC
43 West 43rd Street, Suite 32
New York, NY 10036
JESSICA L. ELLSWORTH
ALLISON M. RYAN
REEDY C. SWANSON
DANIELLE DESAULNIERS
STEMPEL
SIMON CHIN
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, DC 20004
IRA M. FEINBERG
HOGAN LOVELLS US LLP
390 Madison Ave.
New York, NY 10017
Counsel for Tennessee State Conference of the NAACP, et al.
Additional counsel listed on inside cover
DAVIN M. ROSBOROUGH
Counsel of Record for
League of Women Voters of Tennessee, et al.
SOPHIA LIN LAKIN
CECILLIA D. WANG
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, NY 10014
(703) 380-0804
drosborough@aclu.org
DAVID D. COLE
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th Street, NW
Washington, DC 20005
STELLA YARBROUGH
ACLU FOUNDATION
OF TENNESSEE
P.O. Box 120160
Nashville, TN 37212
DANIELLE LANG
MOLLY E. DANAHY
PAUL M. SMITH
CAMPAIGN LEGAL CENTER
1101 14th Street N.W.
Suite 400
Washington, DC 20005
MICHELLE KANTER COHEN
FAIR ELECTIONS CENTER
1825 K Street N.W.
Suite 701
Washington, DC 20006
WILLIAM H. HARBISON
C. DEWEY BRANSTETTER, JR.
HUNTER C. BRANSTETTER
SHERRARD ROE VOIGT &
HARBISON
150 3rd Avenue South
Suite 1100
Nashville, TN 37301
Counsel for League of Women Voters of Tennessee, et al.
QUESTION PRESENTED
Whether the Sixth Circuit correctly held that Respondents were “prevailing parties” entitled to attorney’s fees under 42 U.S.C. § 1988 for successfully obtaining a preliminary injunction on all claims, which
Petitioners did not appeal and which permitted Respondents to engage in otherwise-prohibited conduct
for seven months, until the Tennessee Legislature repealed the challenged statutes for the express purpose
of complying with the district court’s ruling.
(i)
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED.......................................... i
TABLE OF AUTHORITIES ...................................... iv
INTRODUCTION ....................................................... 1
STATEMENT ............................................................. 3
A.
Respondents successfully obtain a
preliminary injunction against
Tennessee’s unconstitutional
restrictions on First Amendment
activities ................................................... 3
B.
Tennessee repeals the challenged
statutes and brings state law into
compliance with the District
Court’s order ............................................ 6
C.
The District Court and Sixth
Circuit hold Respondents are
eligible for attorney’s fees ........................ 8
REASONS FOR DENYING THE PETITION .......... 10
I.
NO CIRCUIT SPLIT EXISTS THAT
WARRANTS THIS COURT’S
REVIEW.......................................................... 11
A.
There is no meaningful split
about whether a preliminary
injunction may constitute “some
relief on the merits” ............................... 12
B.
There is no meaningful split over
what constitutes an “enduring”
change in the parties’ legal
relationship ............................................ 21
iii
TABLE OF CONTENTS—Continued
Page
II.
THIS CASE IS A POOR VEHICLE
TO ADDRESS THE QUESTION
PRESENTED .................................................. 27
III. THE DECISION BELOW IS
CORRECT ....................................................... 29
IV. THE QUESTION PRESENTED
DOES NOT WARRANT THIS
COURT’S REVIEW ........................................ 31
CONCLUSION .......................................................... 35
iv
TABLE OF AUTHORITIES
Page(s)
CASES:
Amawi v. Paxton,
48 F.4th 412 (5th Cir. 2022) ............................ 26, 32
Buckhannon Bd. & Care Home, Inc. v. W.V.
Dep’t of Health & Human Res.,
532 U.S. 598 (2001)............... 2, 12, 19, 21, 26, 29-31
Common Cause/Georgia v. Billups,
554 F.3d 1340 (11th Cir. 2009) ............................. 23
Common Cause Ga. v. Georgia,
17 F.4th 102 (11th Cir. 2021) ................................ 17
Conway v. McQueary,
562 U.S. 1137 (2011).............................................. 31
Davis v. Abbott,
136 S. Ct. 534 (2015) ............................................. 31
Dearmore v. City of Garland,
519 F.3d 517 (5th Cir. 2008) .......... 13, 14, 18, 22, 26
District of Columbia v. Jeppsen ex rel.
Jeppsen,
514 F.3d 1287 (D.C. Cir. 2008) .............................. 17
Doe 1 v. N. Allegheny Sch. Dist.,
No. 22-2245, 2023 WL 179845 (3d Cir.
2023) ....................................................................... 17
Doe 1 v. Upper Saint Clair Sch. Dist.,
No. 22-2106, 2023 WL 179846 (3d Cir.
2023) ....................................................................... 17
Dupuy v. Samuels,
423 F.3d 714 (7th Cir. 2005) ...................... 18, 23-25
Haley v. Pataki,
106 F.3d 478 (2d Cir. 1997) ........................13, 14, 23
v
TABLE OF AUTHORITIES—Continued
Page(s)
Hewitt v. Helms,
482 U.S. 755 (1987)................................................ 12
Higher Taste, Inc. v. City of Tacoma,
717 F.3d 712 (9th Cir. 2013) .......... 13, 14, 18, 23, 30
Kan. Jud. Watch v. Stout,
653 F.3d 1230 (10th Cir. 2011) ....................... 15, 18
King v. Kan. Jud. Watch,
565 U.S. 1246 (2012).............................................. 31
Klehr v. A.O. Smith Corp.,
521 U.S. 179 (1997)................................................ 27
LaRouche v. Kezer,
20 F.3d 68 (2d Cir. 1994) ....................................... 14
League of Women Voters v. Hargett,
400 F. Supp. 3d 706 (M.D. Tenn. 2019) .................. 4
Lefemine v. Wideman,
568 U.S. 1 (2012).................................................... 29
Live Gold Operations, Inc. v. Dow,
565 U.S. 977 (2011)................................................ 31
Mastrio v. Sebelius,
768 F.3d 116 (2d Cir. 2014) .............................. 13-15
McQueary v. Conway,
508 F. App’x 522 (6th Cir. 2012) ........................... 22
McQueary v. Conway,
614 F.3d 591 (6th Cir. 2010) ............8, 12, 15, 18, 32
Nat’l Amusements Inc. v. Borough of Palmyra,
716 F.3d 57 (3d Cir. 2013) ..................................... 17
Northern Cheyenne Tribe v. Jackson,
433 F.3d 1083 (8th Cir. 2006) ....................18, 25, 27
vi
TABLE OF AUTHORITIES—Continued
Page(s)
People Against Police Violence v. City of
Pittsburgh,
520 F.3d 226 (3d Cir. 2008) .................. 16-18, 23, 27
Planned Parenthood Sw. Ohio Region v.
DeWine,
931 F.3d 530 (6th Cir. 2019) ................................. 23
Real Truth About Obama, Inc. v. Fed. Election Comm’n,
575 F.3d 342 (4th Cir. 2009), vacated on
other grounds, 559 U.S. 1089 (2010) ............... 19, 20
R.G. ex rel. M.G. v. Minisink Valley Cent.
Sch. Dist.,
531 F. App’x 76 (2d Cir. 2013) ......................... 14, 30
Rogers Grp., Inc. v. City of Fayetteville,
683 F.3d 903 (8th Cir. 2012) ......................13, 14, 25
Select Milk Producers, Inc. v. Johanns,
400 F.3d 939 (D.C. Cir. 2005) .....................17, 23, 27
Sinapi v. R.I. Bd. of Bar Examiners,
910 F.3d 544 (1st Cir. 2018) ............................ 16, 30
Singer Management Consultants, Inc. v. Milgram,
650 F.3d 223 (3d Cir. 2011) (en banc) ........16, 17, 23
Smyth ex rel. Smyth v. Rivero,
282 F.3d 268 (4th Cir. 2002) ................ 11, 18-20, 27
Sole v. Wyner,
551 U.S. 74 (2007).............. 2, 9-14, 18, 21, 23, 29-32
Stinnie v. Holcomb,
37 F.4th 977 (4th Cir. 2022), reh’g en banc
granted, No. 21-1756, 2022 WL 3210714
(4th Cir. Aug. 9, 2022) ...................................... 18-20
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Tenn. State Conf. of NAACP v. Hargett,
53 F.4th 406 (6th Cir. 2022) .................................. 28
Tenn. State Conf. of NAACP v. Hargett,
420 F. Supp. 3d 683 (M.D. Tenn. 2019) .............. 4, 5
Tenn. State Conf. of NAACP v. Hargett,
441 F. Supp. 3d 609 (M.D. Tenn. 2019) .................. 5
Tex. State Teachers Ass’n v. Garland Indep.
Sch. Dist.,
489 U.S. 782 (1989)................................................ 21
Tilden Recreational Vehicles, Inc. v. Belair,
786 F. App’x 335 (3d Cir. 2019) ............................. 17
Watson v. County of Riverside,
300 F.3d 1092 (9th Cir. 2002) ............................... 23
Xereas v. Heiss,
987 F.3d 1124 (D.C. Cir. 2021) .............................. 23
Yost v. Planned Parenthood Sw. Ohio Region,
141 S. Ct. 189 (2020) ............................................. 31
Young v. City of Chicago,
202 F.3d 1000 (7th Cir. 2000) ............................... 24
Zessar v. Keith,
536 F.3d 788 (7th Cir. 2008) ................................. 24
STATUTE:
42 U.S.C. § 1988(b) ..................................................... 8
LEGISLATIVE MATERIALS:
2019 Tenn. Pub. Acts Ch. 250 ................................ 3, 4
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Hearing on H.B. 2363 Before the H. Subcomm. on Elections & Campaign Fin.,
111th Gen. Assembly, 2020 Sess. (Tenn.
Feb. 19, 2020) (statement of Rep. Tim
Rudd, Chairman, H. Subcomm. on Elections & Campaign Fin.) ........................................... 6
House Floor Session, 111th Gen. Assembly,
2020 Sess., 56th Legis. Day (Tenn. Mar. 9,
2020) (statement of Rep. Tim Rudd, Chairman, H. Subcomm. on Elections & Campaign Fin.) ............................................................ 6, 7
OTHER AUTHORITIES:
Letter from Tre Hargett, Tennessee Secretary
of State, and Mark Goins, Tennessee Coordinator of Elections, to Hon. Jeff Yarbro,
Tennessee State Senator (Feb. 14, 2020)................ 7
Stephen M. Shapiro et al., Supreme Court
Practice § 4.4 (11th ed. 2019) ................................ 20
IN THE
Supreme Court of the United States
_________
No. 22-773
_________
TRE HARGETT, ET AL.,
v.
Petitioners,
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
_________
BRIEF IN OPPOSITION
_________
INTRODUCTION
The District Court, after thoroughly canvassing the
merits and evidentiary record, concluded that Respondents established a strong likelihood of success
on their claims that certain changes to Tennessee’s
election laws violated their First and Fourteenth
Amendment rights. Because the court enjoined enforcement of those changes during the pivotal runup
to the 2020 election, Respondents were able to engage
in First Amendment-protected activities for seven
months unburdened by the law’s unconstitutional requirements. The State never appealed the injunction
(1)
2
and the legislature subsequently repealed the challenged provisions with the express goal of bringing the
law into compliance with the District Court’s ruling.
Respondents then sought an award of attorney’s fees
under 42 U.S.C. § 1988 for their work securing the injunction that protected their rights during a critical
period and was never undone. The District Court
awarded fees and the Sixth Circuit affirmed.
Petitioners now seek this Court’s review, claiming
there is a multi-headed split among the circuits over
when obtaining a preliminary injunction renders a litigant a “prevailing party” entitled to fees under Section 1988. No such split exists. This Court has held
that, to confer prevailing-party status, a plaintiff
must secure “at least some relief on the merits,” Buckhannon Bd. & Care Home, Inc. v. W.V. Dep’t of Health
& Human Res., 532 U.S. 598, 603 (2001) (quotation
marks omitted), and that the relief secured must be
“enduring,” Sole v. Wyner, 551 U.S. 74, 86 (2007). The
circuits have applied these settled principles to preliminary injunctions by adopting a consistent, context-specific approach that considers the totality-ofthe-circumstances to assess whether the relief obtained was material and enduring. Petitioners have
identified a single decision that departs from this consensus approach—a pre-Sole opinion from the Fourth
Circuit, whose holding that court is currently reviewing en banc. As a result, the only split is exceedingly
shallow and may soon be resolved without this Court’s
intervention if the Fourth Circuit aligns itself with all
the other courts of appeals. Petitioners’ other efforts
3
to conjure up a division of authority rely on out-of-context and inapposite language from individual opinions.
This Court has repeatedly rejected similar invitations to address the issues raised in this Petition, and
should do the same here—especially given the Fourth
Circuit’s decision to revisit its stance as the sole outlier.
This case is also a poor vehicle to address the question presented. Respondents would prevail under any
of the approaches urged by Petitioners, aside from the
Fourth Circuit’s outdated and now-unsettled position.
Tellingly, in straining to reach the conclusion that Respondents were not entitled to fees, the dissenting
opinion below did not employ a legal test used by any
circuit. Petitioners do not even attempt to defend the
dissent’s analysis.
The consensus approach, which the Sixth Circuit
faithfully applied below, is a correct application of this
Court’s precedents. Outside the Fourth Circuit, it has
been the law for well over a decade, and has not
proven unworkable in practice. This Court should
deny review.
STATEMENT
A. Respondents successfully obtain a preliminary injunction against Tennessee’s
unconstitutional restrictions on First
Amendment activities.
On May 2, 2019, Tennessee Governor Bill Lee signed
into law House Bill 1079/Senate Bill 971 (the “Act”).
See 2019 Tenn. Pub. Acts Ch. 250. The Act imposed
numerous burdensome and unnecessary restrictions
4
on First Amendment-protected activities. These restrictions included substantial civil and criminal penalties for any organization failing to include government-compelled content in Respondents’ political
communications, turning in “incomplete” voter registration forms, and failing to meet burdensome registration and reporting requirements before seeking to
help their fellow citizens register to vote. See, e.g., id.
§§ 1, 2, 6. The law was slated to go into effect on October 1, 2019. Id. § 9.
Respondents are organizations that have a long history of engaging in First Amendment-protected activities, including encouraging and assisting eligible voters in registering to vote. Because of the burdens the
Act imposed on those protected activities, Respondents challenged the Act as a violation of the First and
Fourteenth Amendments and moved for a preliminary
injunction. Four months after the suits were filed,
and after full merits-focused briefing and Respondents’ extensive, uncontested evidentiary submissions,
the District Court granted two preliminary injunctions. League of Women Voters v. Hargett, 400 F.
Supp. 3d 706 (M.D. Tenn. 2019); Tenn. State Conf. of
NAACP v. Hargett, 420 F. Supp. 3d 683 (M.D. Tenn.
2019).1
In a pair of opinions totaling 60 pages, the District
Court exhaustively detailed why Respondents had
demonstrated a “strong” likelihood of success on the
1
Respondents originally filed two separate suits, which were
consolidated after the preliminary-injunction phase. Pet. App.
65. Respondents cite primarily to the Tennessee State Conference
of NAACP injunction opinion.
5
merits of their claims. Scrutinizing the laws under
the First Amendment, the District Court determined
that Respondents had “shown a high likelihood that
their claims will succeed, both with regard to the
[challenged] provisions’ substantive commands and
the vagueness of their scope and requirements.”
Tenn. State Conf. of NAACP, 420 F. Supp. 3d at 706.
The court had “little trouble” reaching this conclusion,
id. at 707, and rejected Petitioners’ contrary arguments as “baseless,” id. at 698. The court repeatedly
cited the “significant factual record” Respondents had
developed in support of their claims, e.g., id. at 699,
701, and Petitioners’ failure to offer any evidence or
reasons to support their contrary arguments, id. at
701, 705, 708.
The District Court also held that Respondents were
highly likely to succeed in showing that the challenged “aspects of the Act, functioning together, create
a cumulative burden on speech and expression that is
even more difficult to justify as a constitutional matter.” Id. at 710.
Finally, the District Court found that Respondents
had demonstrated a strong likelihood of irreparable
injury and substantial harm to the public interest,
and therefore granted the requested injunctions. Id.
at 711-712.2
2
The District Court also denied motions to dismiss the
complaints on various grounds. Tenn. State Conf. of NAACP v.
Hargett, 441 F. Supp. 3d 609 (M.D. Tenn. 2019); League of
Women Voters v. Hargett, No. 3:19-cv-00385 (M.D. Tenn. Sept. 9,
2019), ECF No. 57.
6
As a result of the injunctions, Respondents were
able to engage in voter registration activities free from
the Act’s significant burdens during the critical period
leading up to the 2020 primary elections in Tennessee.
Pet. App. 8.
Defendants chose not to appeal the injunctions. See
id. at 6.
B. Tennessee repeals the challenged statutes
and brings state law into compliance with
the District Court’s order.
After months of discovery, but “before the cases
could proceed to a stage at which the entry of judgment would have been proper, the Tennessee General
Assembly enacted, and the Governor signed, 2020
House Bill 2363, which repealed the challenged provisions.” Pet. App. 23.
The legislature enacted the new law in direct response to the preliminary injunction, and drafted its
language to comply with the court’s order. The bill’s
sponsor assured fellow legislators that the new law
“repeals all provisions enjoined in the federal court decision” and replaces them with measures designed to
be “within the confines of the [District Court’s preliminary injunction] ruling.” Hearing on H.B. 2363 Before the H. Subcomm. on Elections & Campaign Fin.,
111th Gen. Assembly, 2020 Sess., at 43:28-43:30
(Tenn. Feb. 19, 2020) (statement of Rep. Tim Rudd,
Chairman, H. Subcomm. on Elections & Campaign
Fin.); House Floor Session, 111th Gen. Assembly,
2020 Sess., 56th Legis. Day, at 50:35-50:42 (Tenn.
7
Mar. 9, 2020) (statement of Rep. Tim Rudd, Chairman, H. Subcomm. on Elections & Campaign Fin.).3
Petitioners Tre Hargett, the Tennessee Secretary of
State, and Mark Goins, the Tennessee Coordinator of
Elections, likewise confirmed that the goal of the repeal legislation was to comply with the District
Court’s order. In a February 14, 2020 letter to State
Senator Jeff Yarbro, Hargett and Goins explained
that the District Court had preliminarily enjoined certain provisions of the Act, and that HB2363 “is being
brought to provide reasonable protections within the
confines of the federal court’s ruling.” Letter from Tre
Hargett, Tennessee Secretary of State, and Mark Goins, Tennessee Coordinator of Elections, to Hon. Jeff
Yarbro, Tennessee State Senator, at 1 (Feb. 14,
2020). 4 Given “the federal injunction, these protections are better than no protection at all,” Hargett and
Goins explained. Id. at 3.
The Governor signed HB2363 into law on April 2,
2020. It went into effect immediately and repealed all
challenged provisions of the original Act. Pet. App. 6,
23, 57. Because Respondents had accomplished their
goals for the litigation, Respondents agreed to dismiss
their action without prejudice and without vacatur of
the preliminary injunction. The District Court approved the parties’ joint stipulation dismissing the
case. Id. at 56-63.
3
Video recordings available at https://wapp.capitol.tn.gov/
apps/BillInfo/default.aspx?BillNumber=HB2363&GA=111.
4
Available at D. Ct. Dkt. 100-2.
8
C. The District Court and Sixth Circuit hold
Respondents are eligible for attorney’s fees.
Respondents subsequently petitioned for a fee
award under 42 U.S.C. § 1988(b), which allows “the
court, in its discretion” to award “reasonable attorney’s fee[s]” to a “prevailing party.”
Applying a “contextual and case-specific inquiry,”
the District Court held that Respondents were “prevailing parties” because their success was “court-ordered,” “material,” and “enduring.” Pet. App. 30-31
(quoting McQueary v. Conway, 614 F.3d 591, 598-599,
600 (6th Cir. 2010)). As the court explained, Respondents asked for—and received—a court order “enjoining the defendants from enforcing the challenged provisions of the Act for as long as those provisions remained duly enacted Tennessee statutes.” Id. at 32.
That relief meant Respondents “were free to perform
the voter registration drives that they wished to perform, and votes have almost certainly been cast pursuant to registrations enabled by the court’s preliminary injunctions.” Id. at 35. And Respondents’ relief
was enduring, as “[n]either those votes nor the registrations themselves ever can or will be rescinded
based on the Act.” Id. The court therefore granted
Respondents’ fee request after making various downward adjustments. See id. at 39-54.
Petitioners appealed the District Court’s “prevailing
party” determination, but not the amount of the fee
award. See id. at 6.
The Sixth Circuit affirmed. Id. at 1-10. Writing for
the majority, Judge Kethledge, joined by Judge Bush,
9
held that the preliminary injunction order “undisputedly” qualified as material, court-ordered relief on the
merits that had not been “reversed, dissolved, or otherwise undone by the final decision in the same case.”
Id. at 7 (quoting Sole, 551 U.S. at 83).
The Sixth Circuit also held that, “on this record,” Respondents’ relief was sufficiently “enduring” to satisfy
the prevailing-party requirement, despite the Tennessee legislature’s later decision to repeal the challenged
statutory provisions. Id. at 7, 10. The preliminary
injunction here was neither “fleeting” nor “hasty.” Id.
at 8 (quoting Sole, 551 U.S. at 83-84). On the contrary, the District Court’s order “came four months after the suits were filed, after full briefing and an opportunity for each side to present evidence supporting
its position.” Id. And the District Court’s lengthy
opinion—most of which was dedicated to assessing
Respondents’ likelihood of success on the merits, see
id. at 5—“was an emphatic and unambiguous indication of probable success on the merits.” Id. at 9 (quotation marks omitted). Moreover, the relief ordered
was “irrevocable” in that Respondents were able to engage in voter-registration efforts leading up to the
2020 election, which could not now be undone. Id. at
8-9.
In sum, the Sixth Circuit held that “[a] preliminary
injunction that, as a practical matter, concludes the
litigation in the plaintiffs’ favor in the district court,
and that is not challenged on appeal is—on this record
at least—enduring enough to support prevailingparty status under § 1988.” Id. at 10.
Judge Nalbandian dissented. Despite recognizing
that a preliminary injunction can be the basis for a fee
10
award, the dissent argued that the relief was not “‘enduring’ enough,” because the court did not grant permanent relief for all future elections or finally determine success on the merits of all claims. Id. at 14-16
(Nalbandian, J., dissenting). Petitioners did not seek
rehearing en banc.
REASONS FOR DENYING THE PETITION
This petition satisfies none of the traditional criteria
for this Court’s review. There is no meaningful division of authority among the circuits on whether a preliminary injunction may qualify as relief that is both
“on the merits” and sufficiently “enduring” to warrant
a fee award under Section 1988. Every circuit that
has addressed this issue since this Court’s guidance in
Sole has held that preliminary injunctions can satisfy
these criteria, and every circuit has applied a totalityof-the-circumstances approach to assessing that issue,
examining whether the relief was material and enduring. Only the Fourth Circuit, in a decision that predates Sole, has adopted an outlier position. But the
en banc Fourth Circuit is currently reconsidering that
very issue, prompted by an opinion noting that the
Fourth Circuit is the lone outlier—making this a particularly poor time for this Court to take up this petition.
Notwithstanding the general agreement among circuits on the applicable legal standards, Petitioners attempt to conjure up a multi-pronged circuit split by
relying on isolated, case-specific language from inapposite opinions. But this case is a poor vehicle for addressing any such asserted division, because the relief
obtained here would satisfy every test that Petitioners
purport to identify in other circuits (save the Fourth
11
Circuit’s rule, which that court is already reconsidering en banc).
The consensus approach that the Sixth Circuit employed here is firmly grounded in this Court’s precedent and has been the law in nearly every circuit for
at least the last fifteen years. Petitioners identify
nothing to justify the upheaval they request.
I.
NO
CIRCUIT
SPLIT
EXISTS
WARRANTS THIS COURT’S REVIEW.
THAT
The Court should deny review because there is no
meaningful division among the circuits on how to apply Sole to preliminary injunctions that are not later
undone on the merits. Petitioners claim this is an opportunity for this Court to weigh in on “the question
left open by Sole,” by which they mean whether securing a preliminary injunction can ever render a litigant
a “prevailing party.” Pet. 10. But Petitioners do not
actually claim a circuit split on whether a plaintiff who
obtains preliminary relief in a case that is later
mooted before a merits decision can qualify as a “prevailing party.” Nor could they. Every single circuit to
address the issue after Sole has answered in the same
way: A party who wins a preliminary injunction may
be treated as a prevailing party when the decision
rests on an assessment of the merits and provides enduring material relief. The Fourth Circuit’s outlier
opinion in Smyth ex rel. Smyth v. Rivero, 282 F.3d 268
(4th Cir. 2002), which held that preliminary relief
could never be a basis for attorney’s fees, predates
Sole and is currently under reconsideration by the en
banc court—precisely because it is an outlier.
12
The petition also purports to identify divisions about
exactly when prevailing-party status results from a
preliminary injunction. But the petition fails on this
front, too. Across the circuits, courts employ a “contextual and case-specific inquiry,” Pet. App. 30 (quoting McQueary, 614 F.3d at 601), asking whether the
preliminary injunction (1) rests on a clear determination relating to the merits, and (2) alters the legal relationship between the parties in an enduring manner. Although the circuits’ specific language occasionally varies, each asks fundamentally the same questions and applies the same legal principles. Any difference in outcomes is a result of different facts and
procedural postures—not different legal standards.
A. There is no meaningful split about whether
a preliminary injunction may constitute
“some relief on the merits.”
To qualify as a prevailing party, a plaintiff must “receive at least some relief on the merits of his claim.”
Buckhannon, 532 U.S. at 603 (quoting Hewitt v.
Helms, 482 U.S. 755, 760 (1987)). Sole clarified that
“[p]revailing party status * * * does not attend
achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.” 551 U.S. at 83. But Sole had
no occasion to address “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. at 86.
In the sixteen years since Sole, every circuit to address whether a plaintiff who is awarded a non-vacated preliminary injunction has received “some relief
13
on the merits” has adopted the same basic legal inquiry. These courts consider whether the relief was
based on a thorough examination of the merits, or
whether it was hastily entered merely to preserve the
status quo and provided only ephemeral relief. The
only circuit to adopt a different test did so before
Sole—and recently granted rehearing en banc to reconsider its outlier position. Given the highly lopsided
nature of the purported split—and that any claimed
division is likely to resolve itself—this Court’s review
is not warranted.
1. Petitioners correctly recognize that the Second,
Fifth, Eighth, and Ninth Circuits all employ the same
approach to the prevailing-party inquiry, but they are
wrong to characterize it as a categorical rule. Contrary to Petitioners’ claim, Pet. 12, these circuits do
not hold that a likelihood-of-success finding at the preliminary injunction stage always satisfies the requirement that a prevailing party must obtain “some relief
on the merits.” Instead, these courts ask whether the
preliminary injunction was based on a thorough assessment of a claim’s merits, as opposed to being hastily entered to preserve the status quo or based primarily on a balancing of equitable factors. See Haley v.
Pataki, 106 F.3d 478, 483 (2d Cir. 1997); Mastrio v.
Sebelius, 768 F.3d 116, 120-122 (2d Cir. 2014) (per curiam) (reaffirming and applying Haley); Dearmore v.
City of Garland, 519 F.3d 517, 524 (5th Cir. 2008);
Rogers Grp., Inc. v. City of Fayetteville, 683 F.3d 903,
910 (8th Cir. 2012); Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 717 (9th Cir. 2013).
Thus, the Second Circuit examines “whether a
court’s action is governed by its assessment of the
14
merits” through a “‘close analysis of the decisional circumstances and reasoning underlying the grant of
preliminary relief.’” Haley, 106 F.3d at 483 (quoting
LaRouche v. Kezer, 20 F.3d 68, 72 (2d Cir. 1994)); see
also Mastrio, 768 F.3d at 120. The Fifth Circuit similarly considers whether there was an “unambiguous
indication of probable success,” Dearmore, 519 F.3d at
524, and the Eighth Circuit examines whether a district court conducted “a thorough analysis” of the merits, Rogers Grp., 683 F.3d at 910. The Ninth Circuit,
too, asks whether a preliminary injunction hearing
was “‘hasty and abbreviated’” in assessing whether it
confers prevailing-party status. Higher Taste, 717
F.3d at 716 (quoting Sole, 551 U.S. at 84).
Applying these principles, these circuits have upheld awards of attorney’s fees where the district
court’s preliminary injunction was “clearly meritbased,” Dearmore, 519 F.3d at 525, and its assessment
was “not hasty and abbreviated,” Higher Taste, 717
F.3d at 716 (quotation marks omitted). They have
also affirmed fee awards where “the preliminary injunction was not one that merely maintained the status quo” based on equitable considerations, but instead was rooted “in a thorough analysis of the probability” of success “on the merits.” Rogers Grp., 683
F.3d at 910.
These same circuits have denied fee awards where
preliminary injunction proceedings were “‘hasty and
abbreviated’” and it was “uncertain” whether a district court’s order was based on “an assessment of the
merits.” See R.G. ex rel. M.G. v. Minisink Valley Cent.
Sch. Dist., 531 F. App’x 76, 80 (2d Cir. 2013) (quoting
Sole, 551 U.S. at 84). They have likewise denied fee
15
awards where the district court’s decision “involved no
determination on the merits” and instead merely operated to “return to the status quo.” Mastrio, 768 F.3d
at 121-122.
2. Petitioners attempt to group the First and Third
Circuits, and the Sixth and Tenth Circuits, into separate camps that supposedly apply different legal
standards from those in the Second, Fifth, Eighth and
Ninth Circuits. Pet. 10-13. There is no basis for these
distinctions. All these circuits conduct the same basic
inquiry and consider whether a preliminary injunction resulted from a thorough merits assessment rather than a hasty effort to preserve the status quo.
And although the petition fails to mention them, the
Eleventh and D.C. Circuits also apply the same principles.
As the petition acknowledges, the Sixth and Tenth
Circuits conduct a non-categorical inquiry that considers the circumstances of each case, Pet. 13—one that
is entirely consistent with the principles applied by
the other circuits and by the court below. Both circuits consider whether the preliminary injunction order contained “a serious examination” of the legal issues on the merits, as opposed to a “hasty” decision
that did not follow “full briefing,” and whether the order rested merely on a desire to preserve the status
quo. Kan. Jud. Watch v. Stout, 653 F.3d 1230, 1238
(10th Cir. 2011); Pet. App. 8-9; McQueary, 614 F.3d at
600-601. This inquiry is indistinguishable from the
inquiry conducted by the Second, Fifth, Eighth, and
Ninth Circuits. Supra pp. 13-15.
16
Contrary to Petitioners’ claim, Pet. 11-12, the First
Circuit follows the same approach. It, too, distinguishes between an “in-depth assessment” of a plaintiff’s “substantive arguments” and a “hasty review of
the likelihood of * * * success on the merits.” Sinapi
v. R.I. Bd. of Bar Examiners, 910 F.3d 544, 552 (1st
Cir. 2018). Petitioners attempt to paint the First Circuit as adopting a categorical rule that a likelihood-ofsuccess showing is insufficient to satisfy the merits requirement. Pet. 11-12. But Sinapi—the petition’s
only citation for this claim—expressly says otherwise:
“[W]e are not holding that preliminary equitable relief, unless explicitly followed by a favorable judgment
on the merits, can never provide the basis for an attorneys’ fee award.” 910 F.3d at 552. Indeed, the petition appears to recognize that its characterization of
the First Circuit applies only “where ‘precipitant circumstances permit[ ] no thorough examination of the
merits.’” Pet. 12 (quoting Sinapi, 910 F.3d at 551).
The Third Circuit applies the same non-categorical
inquiry, as the States’ amicus brief admits. See States
Amicus Br. 10 n.2. In People Against Police Violence
v. City of Pittsburgh, the Third Circuit “agree[d]” with
its sister circuits “that relief obtained via a preliminary injunction can, under appropriate circumstances, render a party ‘prevailing,’” and thus upheld
a fee award based on a preliminary injunction. 520
F.3d 226, 232-233 & n.4 (3d Cir. 2008) (collecting
cases). Once again, the petition’s only support for its
contrary claim says the opposite. In Singer Management Consultants, Inc. v. Milgram, the en banc Third
Circuit expressly affirmed “the well-supported legal
17
proposition that, in some cases, interim injunctive relief may be sufficient to warrant attorney’s fees.” 650
F.3d 223, 230 n.4 (3d Cir. 2011) (en banc) (quotation
marks omitted) (discussing People Against Police Violence). The Third Circuit has repeatedly reaffirmed
this position since Singer. See, e.g., Nat’l Amusements
Inc. v. Borough of Palmyra, 716 F.3d 57, 64 (3d Cir.
2013); Tilden Recreational Vehicles, Inc. v. Belair, 786
F. App’x 335, 344 (3d Cir. 2019); Doe 1 v. Upper Saint
Clair Sch. Dist., No. 22-2106, 2023 WL 179846, at *1
(3d Cir. 2023); Doe 1 v. N. Allegheny Sch. Dist., No. 222245, 2023 WL 179845, at *1 (3d Cir. 2023).
The Eleventh Circuit likewise considers whether a
party has received “merits-based relief.” Common
Cause Ga. v. Georgia, 17 F.4th 102, 107 (11th Cir.
2021). And the D.C. Circuit asks whether a preliminary injunction order was based “on the trial court’s
view of the merits” as opposed to “a perceived hardship to the plaintiff.” Select Milk Producers, Inc. v.
Johanns, 400 F.3d 939, 948 (D.C. Cir. 2005); see also
District of Columbia v. Jeppsen ex rel. Jeppsen, 514
F.3d 1287, 1290 (D.C. Cir. 2008) (reaffirming Select
Milk Producers).
3. When confronting the question presented, all of
these circuits have repeatedly cited one another, acknowledging the fundamental similarity of their positions. Thus, the very courts that Petitioners claim are
in disagreement maintain that they are applying the
same standards.
The Third Circuit, for instance, has noted its
“agree[ment]” with “nearly every Court of Appeals,”
citing decisions from the Sixth, Seventh, Ninth, Elev-
18
enth, and D.C. Circuits. People Against Police Violence, 520 F.3d at 232-233 & n.4. The Fifth Circuit
has acknowledged that its approach “does not signal
any disagreement” with the approaches followed in
the Third, Sixth, Seventh, Eighth, Ninth, Eleventh,
and D.C. Circuits. See Dearmore, 519 F.3d at 521-523,
525, 526 n.4. Similarly, the Sixth Circuit has cited
with approval decisions from the Seventh, Ninth, and
D.C. Circuits. McQueary, 614 F.3d at 599. The Seventh Circuit signaled agreement with its “sister circuits” of the Ninth, Eleventh, and D.C. Circuits in
Dupuy v. Samuels, 423 F.3d 714, 723 n.4 (7th Cir.
2005), which the Eighth Circuit in turn cited with approval, Northern Cheyenne Tribe v. Jackson, 433 F.3d
1083, 1086 (8th Cir. 2006). Reciprocating, the Ninth
Circuit has recognized its alignment with the Eighth
Circuit as well as the Second, Third, Fifth, Sixth, Seventh, and Eleventh Circuits. Higher Taste, 717 F.3d
at 716-717. And, finally, the Tenth Circuit has cited
with approval decisions from the Third, Sixth, and
Ninth Circuits. Kan. Jud. Watch, 653 F.3d at 1237,
1240. These courts plainly do not consider themselves
to be at odds with one another.
4. The only arguable outlier is a twenty-year-old decision from the Fourth Circuit, decided before Sole:
Smyth ex rel. Smyth v. Rivero, 282 F.3d 268 (4th Cir.
2002). Although Smyth appears to foreclose attorney’s fees when plaintiffs secure only a preliminary
injunction because the court’s “merits inquiry * * * is
necessarily abbreviated,” id. at 276, the en banc
Fourth Circuit is currently reconsidering this position
in light of its outlier status. Stinnie v. Holcomb, 37
F.4th 977 (4th Cir. 2022), reh’g en banc granted, No.
19
21-1756, 2022 WL 3210714 (4th Cir. Aug. 9, 2022).
The court held argument in late January and its decision remains pending.
The timing of Smyth, and the background principles
animating it, explain why this decision has remained
an outlier. The Smyth opinion followed on the heels
of this Court’s decision in Buckhannon, holding that
purely voluntary changes in conduct in response to litigation cannot support a fee award under Section
1988. See Smyth, 282 F.3d at 274-275. At the time,
the Fourth Circuit held that “[a] plaintiff’s burden to
show a likelihood of success on the merits * * *
varie[d] according to the harm the plaintiff would be
likely to suffer absent an injunction.” Id. at 277.
Therefore, when “Smyth was decided, courts in [the
Fourth Circuit] could grant preliminary injunctions
on equitable grounds without a showing of likely success on the merits.” Stinnie, 37 F.4th at 984 (Harris,
J., concurring).
Based on that procedural framework, Smyth concluded that a preliminary injunction was “closely
analogous * * * to the examples of judicial relief
deemed insufficient in Buckhannon” to confer prevailing party status, such as denying a motion to dismiss,
where the merits inquiry was “necessarily abbreviated.” Smyth, 282 F.3d at 276. Smyth thus reflected
a concern about awarding “prevailing party” status to
a plaintiff who had obtained preliminary relief primarily due to the balance of the harms. See id. at 276277; Stinnie, 37 F.4th at 984 (Harris, J., concurring).
But the Fourth Circuit has since adopted a new
framework for analyzing preliminary-injunction requests. Real Truth About Obama, Inc. v. Fed. Election
20
Comm’n, 575 F.3d 342, 346 (4th Cir. 2009), vacated on
other grounds, 559 U.S. 1089 (2010). Today, the
Fourth Circuit requires a plaintiff to “make a clear
showing that it will likely succeed on the merits at
trial” in order to obtain a preliminary injunction. Id.
at 346-347. This framework mitigates the concern underpinning Smyth. See Stinnie, 37 F.4th at 984 (Harris, J., concurring).
As Petitioners begrudgingly admit, Pet. 12 n.2, the
en banc Fourth Circuit is currently reconsidering
Smyth in Stinnie, No. 21-1756 (argued Jan. 25, 2023).
In her concurring opinion calling for en banc review,
Judge Harris explained that these later developments
had significantly undermined Smyth’s rationale and
confirmed that Smyth “is a complete outlier” because
no other circuit employs “a bright-line rule that a preliminary injunction never can satisfy the prevailing
party standard.” Id. at 984-985 (Harris, J., concurring). Judge Harris also expressed concern that
Smyth’s rule “allows defendants to game the system”
by “litigating” a suit challenging a “very probably illegal provision * * * through the preliminary injunction
stage,” waiting until the “court confirms the likely
merit of the plaintiff’s claim,” then “ceas[ing] the challenged conduct (or persuad[ing] the legislature to do
so), moot[ing] the case, and avoid[ing] the payment of
fees.” Id. at 985.
This Court regularly denies review when it appears
that any tension among the circuits may self-correct.
See Stephen M. Shapiro et al., Supreme Court Practice
§ 4.4 (11th ed. 2019). Granting review before the
21
Fourth Circuit clarifies its position would be premature, given the consensus that has emerged in the
other circuits.
B. There is no meaningful split over what constitutes an “enduring” change in the parties’
legal relationship.
There is similarly no split among the circuits on the
standards for demonstrating “enduring” relief. This
Court has said that in order to qualify as a prevailing
party, a plaintiff must secure an “enduring ‘chang[e]
[in] the legal relationship’ between herself and the”
defendant. Sole, 551 U.S. at 86 (quoting Tex. State
Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.
782, 792 (1989)). In other words, a plaintiff does not
qualify as a prevailing party on the basis “of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.”
Id. at 83.
This rule has not generated confusion in the lower
courts. The petition attempts to manufacture a circuit
split by claiming that some courts have adopted a
“strict framework” that requires a preliminary injunction to provide “all” the relief requested by a party in
order to qualify as “enduring.” Pet. 14-15. The petition does not expressly define what “all” entails—and
whether it includes both preliminary and permanent
relief, or whether “all” means preliminary relief on all
substantive claims. But whatever the petition intends, no court has adopted such a rule. To the contrary, this Court has already held that a prevailing
party is one who “receive[s] at least some relief on the
merits of his claim.” Buckhannon, 532 U.S. at 603
22
(emphasis added) (quotation marks omitted). Unsurprisingly, the petition therefore fails to demonstrate
the existence of a split on this issue. In fact, the only
judicial opinion Petitioners cite that advocates for this
“strict framework” is the single-judge dissent in this
very case, Pet. App. 14-15, which in turn does not cite
any published decision from any court that has
adopted its proposed rule.5
In an effort to obfuscate this omission, the petition
attempts to muster a secondary split on an entirely
different issue: whether a plaintiff must show “that
the preliminary injunction caused the defendant to
moot the action.” Pet. 17 (quotation marks and brackets omitted). But the primary source for this claimed
split, the Fifth Circuit, expressly disclaimed any outlier status from its sister circuits in the very decision
Petitioners cite. See Dearmore, 519 F.3d at 521-522,
526 n.4.
1. No circuit requires parties to obtain “all the relief
requested” to be “enduring.” The petition expressly
recognizes that the Second, Third, Sixth, Ninth, and
Eleventh Circuits are aligned on when relief qualifies
as “enduring.” Pet. 16-17. So is the D.C. Circuit. In
all these circuits, preliminary relief is “enduring” if it
5
The dissent claimed that the Sixth Circuit applied this rule
in an unpublished decision, McQueary v. Conway, 508 F. App’x
522 (6th Cir. 2012) (per curiam). But that decision merely considered whether the district court had abused its discretion in
denying fees in part on that basis, and lauded the district court’s
“contextual and case-specific inquiry.” Id. at 524 (quotation
marks omitted). As the court’s decision in this case proves, the
Sixth Circuit does not follow the absolute rule the dissent advocates.
23
is neither “transient,” “fleeting,” or “ephemeral,” nor
“reversed, dissolved, or otherwise undone by the final
decision in the same case.”
See, e.g., Planned
Parenthood Sw. Ohio Region v. DeWine, 931 F.3d 530,
539 (6th Cir. 2019) (quoting Sole, 551 U.S. at 78, 83,
86). The plaintiff need not receive “everything it
asked for” in order to qualify as a prevailing party. Id.
at 540; see also Haley, 106 F.3d at 483-484 (2d Cir.);
Singer, 650 F.3d at 230 n.4 (3d Cir.); People Against
Police Violence, 520 F.3d at 232-233 (3d Cir.); Higher
Taste, 717 F.3d at 717 (9th Cir.); Watson v. County of
Riverside, 300 F.3d 1092, 1094, 1096 (9th Cir. 2002);
Common Cause/Georgia v. Billups, 554 F.3d 1340,
1356 (11th Cir. 2009); Select Milk Producers, 400 F.3d
at 945 (D.C. Cir.); Xereas v. Heiss, 987 F.3d 1124, 1136
(D.C. Cir. 2021). Applying this test, these circuits
have awarded attorney’s fees based on preliminary injunctions where the facts and circumstances warranted, and denied fees where they did not.
Contrary to the petition’s claim, the Seventh and
Eighth Circuits are aligned with the consensus position. Petitioners argue that the Seventh Circuit has
established a rule that relief is “enduring” only when
a preliminary injunction provides “all the relief” requested. Pet. 15 (quotation marks omitted). The Seventh Circuit has said no such thing. Like the rest of
the circuits, that court looks to whether a preliminary
injunction “resolved any aspect of the case in a sufficiently concrete and irreversible way,” or whether the
relief was “defeasible by further proceedings.” Dupuy,
423 F.3d at 719, 722 (emphasis added) (quotation
marks omitted).
24
Neither of the two Seventh Circuit cases Petitioners
cite support their claims. In Young v. City of Chicago,
202 F.3d 1000 (7th Cir. 2000) (per curiam), the Seventh Circuit affirmed a fee award based on a preliminary injunction, even though the City mooted the case
before it could reach final judgment. The court explained that “[a] defendant cannot defeat a plaintiff’s
right to attorneys’ fees by taking steps to moot the
case after the plaintiff has obtained the relief he
sought, for in such a case mootness does not alter the
plaintiff’s status as a prevailing party.” Id. at 100001. Young did not consider a situation involving a
plaintiff who received some, but not all, of the relief
requested.
Petitioners’ characterization of Dupuy is even further afield. Pet. 15. There, the Seventh Circuit affirmed its decision not to adopt “a hard and fast rule
that a preliminary injunction can never be an adequate predicate for” a fee award. Dupuy, 423 F.3d at
723. In so holding, the Seventh Circuit expressly
aligned itself with other circuits holding “that attorneys’ fees may be awarded after a party has obtained
a preliminary injunction and the case subsequently
has become moot.” Id. at 723 n.4; see also Zessar v.
Keith, 536 F.3d 788, 798 (7th Cir. 2008) (acknowledging that fees may be appropriate “where, despite there
being no final judgment or consent decree, the legal
relationship of the parties will be changed due to a defendant’s change in conduct brought about by a judicial act exhibiting sufficient finality”). Applying this
rule in Dupuy, the Seventh Circuit declined to award
fees only because it was unclear whether the district
court’s preliminary ruling was sufficiently “‘concrete
25
and irreversible’” to “warrant an interim attorneys’
fee award” while the case was still pending. 423 F.3d
at 722.
Relying on Northern Cheyenne, Petitioners also argue that the Eighth Circuit has adopted a “strict
framework” that requires plaintiffs to obtain everything they ask for to qualify as a prevailing party. Pet.
15-16. But Northern Cheyenne merely asked whether
the preliminary injunction had altered the legal relationship between the parties. See Northern Cheyenne,
433 F.3d at 1085-86. Consistent with the consensus
position, supra pp. 12-17, the Eighth Circuit held that
a preliminary injunction that merely preserves the
“status quo” to avoid the risk of irreparable harm before a merits decision is typically not a “material alteration,” as opposed to a preliminary injunction that
rests on an assessment of likely success on the merits.
See id. at 1086-87. Because the injunction in Northern
Cheyenne was the former kind, fees were not appropriate. Id.
The Eighth Circuit’s decision in Rogers Group represents a straightforward application of Northern
Cheyenne—not, as Petitioners suggest, some sort of
makeshift “workaround.” See Pet. 16. There, “the district court engaged in a thorough analysis of the probability that Rogers Group would succeed on the merits
of its claim.” Rogers Grp., 683 F.3d at 910. Because
“the preliminary injunction was not one that merely
maintained the status quo” but was instead “a courtordered change in the legal relationship between the
parties,” the court upheld the fee award. Id. (quotation marks omitted).
26
To be sure, the dissenting judge below does appear
to articulate a strict all-the-relief-requested requirement. See Pet. App. 14-15. But, as the foregoing discussion makes clear, no court of appeals has ever
adopted such a rule—which would be at odds with this
Court’s decision in Buckhannon, 532 U.S. at 603. The
petition’s efforts to leverage the dissent’s isolated and
novel proposition into a genuine circuit split rests on
out-of-context language drawn from circuits that do
not apply such a rule.
2. The petition also fails in its attempt to manufacture yet another sub-split, this time over whether a
plaintiff must show that the defendant acted to moot
the case “in response to a court order, not just in response to the filing of a lawsuit,” to qualify for prevailing party status. Amawi v. Paxton, 48 F.4th 412, 418
(5th Cir. 2022) (quoting Dearmore, 519 F.3d at 524).
Notably, even if this were the standard, Respondents
here would still qualify for fees, so this case provides
no reason to address this issue. See infra p. 28.
But the Fifth Circuit’s consideration in Amawi of
whether a preliminary injunction caused the defendant to moot the case does not make it an outlier. In
fact, when it first articulated this consideration, the
court expressly declared that its “test does not signal
any disagreement with the approaches adopted by the
other circuits, with the exception of the Fourth Circuit”—which had not yet taken this question en banc.
Dearmore, 519 F.3d at 526 n.4; see also id. at 521-522
(collecting cases).
Those other circuits have considered the causal relationship between the court order and any subsequent mootness as a factor in their context-driven
27
analysis of whether relief is sufficiently enduring.
See, e.g., People Against Police Violence, 520 F.3d at
233-234; Select Milk Producers, 400 F.3d at 949-950.
The same goes for the Eighth Circuit’s passing consideration of causation in Northern Cheyenne. 433 F.3d
at 1086. Like the Fifth Circuit, the Eighth Circuit has
emphasized the similarity of its approach to that of its
sister circuits. See supra p. 18. Tellingly, the petition
does not cite a single example of a fee award that
would have been rejected in the Fifth or Eighth Circuits, but was affirmed elsewhere.
In short, there is no division among the circuits that
requires harmonization. There is no split on when a
preliminary injunction constitutes relief “on the merits,” or on when a preliminary injunction is “enduring,” or on the causal relationship between a preliminary injunction and any subsequent mootness. The
circuits have coalesced around a context-specific test
for addressing those questions, meaning there is no
need for this Court’s intervention.
II.
THIS CASE IS A POOR VEHICLE TO
ADDRESS THE QUESTION PRESENTED.
In any event, this case is a poor vehicle to review the
question presented because Respondents would prevail under any of the approaches described in the Petition—except the Fourth Circuit’s outlier approach in
Smyth, which the en banc court is actively reconsidering. See Klehr v. A.O. Smith Corp., 521 U.S. 179, 192
(1997) (the Court “should not consider differences
among the various * * * rules used by the Circuits”
where they “would [not] affect the outcome in this
case”).
28
There is no serious dispute in this case about the petition’s leading issue—whether the relief here was “on
the merits.” Both the majority below (Pet. App. 7) and
the dissent (Pet. App. 14) agree that the preliminary
injunction here rested on the legal merits of the case.
Moreover, Petitioners did not argue below that preliminary injunctions can never qualify as sufficient relief on the merits to result in a “prevailing party” determination, making this a particularly poor vehicle
for addressing that question. See Br. of DefendantsAppellants, Tenn. State Conf. of NAACP v. Hargett, 53
F.4th 406 (6th Cir. 2022) (No. 21-6024); Reply Br. of
Defendants-Appellants, Hargett, 53 F.4th 406 (No. 216024).
This case is also a poor vehicle to consider whether
the relief was sufficiently “enduring” because—even
assuming the petition has identified a meaningful division among the circuits—Respondents would win
under any of the approaches Petitioners purport to
identify. The Sixth Circuit expressly determined that
Respondents secured “irrevocable” relief, Pet. App. 89 (quotation marks omitted)—echoing the language
Petitioners rely on in the Seventh and Eighth Circuit
cases that the petition cites on this issue. See supra
pp. 23-25. This case also satisfies any “causal component” of the analysis. Pet. 17. Petitioners and legislators expressly and repeatedly acknowledged that
the subsequent amendment to the law was prompted
by, and designed to comply with, the district court’s
preliminary injunctions. See supra pp. 6-7.
Tellingly, the dissent below did not employ a test
used by any circuit. Instead, it broke new ground in
arguing that a preliminary injunction must grant
29
“everything” a plaintiff asks for to qualify as sufficiently “enduring.” See Pet. App. 14-16. Although Petitioners have yet to clearly state what analysis they
think this Court should apply to the question presented, see Pet. 23-24, even they do not appear to defend the dissent’s radical departure from the post-Sole
consensus approach among the lower courts.
III. THE DECISION BELOW IS CORRECT.
The Sixth Circuit’s approach to determining prevailing-party status is firmly grounded in this Court’s
precedents and was correctly applied in this case.
The Sixth Circuit’s inquiry follows directly from this
Court’s precedents. In order to qualify as a “prevailing party” under Section 1988, the plaintiff must obtain “at least some relief on the merits of his claim.”
Buckhannon, 532 U.S. at 603 (quotation marks omitted). That relief must represent a “material alteration
of the legal relationship of the parties.” Id. at 604
(quotation marks omitted); see also Lefemine v. Wideman, 568 U.S. 1, 4 (2012) (per curiam). It “must not
have been ‘reversed, dissolved, or otherwise undone
by the final decision in the same case.’” Pet. App. 7
(quoting Sole, 551 U.S. at 83). And it must be “enduring.” Id. (quoting Sole, 551 U.S. at 74).
The Sixth Circuit correctly held that the first three
requirements were “undisputedly met here: the district court entered a preliminary injunction that enjoined defendants from enforcing H.B. 1079 against
them” after extensively analyzing the merits, and
“that injunction was never reversed, dissolved, or
even vacated.” Id.
30
The Sixth Circuit thus correctly focused on the only
issue disputed by Petitioners: “whether the court’s relief was ‘enduring’ enough to support prevailing party
status.” Id. (quoting Sole, 551 U.S. at 74). Consistent
with Sole and the approach taken in all circuits to
have addressed this issue since Sole, the Sixth Circuit
appropriately distinguished between “fleeting” or
“hasty” injunctions, on the one hand, and “enduring”
and “irrevocable” relief on the other. Pet. App. 8-9;
see, e.g., Sinapi, 910 F.3d at 552; Minisink, 531 F.
App’x at 80; Higher Taste, 717 F.3d at 717-718.
Applying this consensus approach, the Sixth Circuit
correctly determined that the relief Respondents secured was sufficiently enduring. The District Court
never vacated or dissolved the injunction, nor did Petitioners appeal or otherwise seek vacatur. Pet. App.
6-7. Given the District Court’s extensive merits analysis, the prospect that the District Court might “reverse course, and enter judgment in favor of the defendants, was remote in the extreme.” Id. at 9-10.
And, practically speaking, the relief was irrevocable:
Respondents were able to communicate with the public regarding voter registration and engage in their
voter registration activities for seven months before
the 2020 election without meeting the law’s requirements—and the effects of their actions cannot now be
undone. Id. at 8-9.
The Sixth Circuit’s approach is plainly not the “catalyst” theory rejected in Buckhannon. Under the catalyst theory, a plaintiff could be deemed a prevailing
party “where there is no judicially sanctioned change
in the legal relationship of the parties.” Buckhannon,
532 U.S. at 605. In Buckhannon, the defendant
31
changed its conduct to moot the case immediately after the complaint was filed. Id. at 600-601. Here, by
contrast, Petitioners changed their conduct only after
a court-ordered preliminary injunction materially altered the legal relationship between the parties, and
the relief awarded by the court could not be undone.
See Pet. App. 32-33. Thus, contrary to the petition
and dissent’s claims, granting fees under these circumstances does not “promote[ ] * * * the catalyst theory.” Pet. 9; Pet. App. 13. On the contrary, the Sixth
Circuit’s decision is entirely consistent with the precedents—Buckhannon and Sole—rejecting that theory.
IV. THE QUESTION PRESENTED DOES NOT
WARRANT THIS COURT’S REVIEW.
Finally, this Court has repeatedly declined to review
the question presented here.
Yost v. Planned
Parenthood Sw. Ohio Region, 141 S. Ct. 189 (2020)
(No. 19-677); Davis v. Abbott, 136 S. Ct. 534 (2015)
(No. 15-46); King v. Kan. Jud. Watch, 565 U.S. 1246
(2012) (No. 11-829); Live Gold Operations, Inc. v. Dow,
565 U.S. 977 (2011) (No. 11-211); Conway v.
McQueary, 562 U.S. 1137 (2011) (No. 10-569).
This Court has repeatedly denied review for good
reason: The circuits’ common approach is correct and
does not give rise to any practical problems. The only
relevant development since the Court’s most recent
denial of the petitions cited above is that the Fourth
Circuit has decided to address this issue en banc—
making the question presented an even less suitable
candidate for this Court’s review now. Petitioners’
and the States’ contrary arguments are red herrings.
32
1. The question presented is inherently narrow: It
arises only when plaintiffs have secured a preliminary
injunction but a case is mooted before final judgment—and even then only in the limited circumstances when the case-specific inquiry applied by the
circuits is satisfied. See, e.g., Amawi, 48 F.4th at 416
(describing this as a “narrow” situation); McQueary,
614 F.3d at 601 (acknowledging test “will generally
counsel against fees in the context of preliminary injunctions”).
Attorney’s fees are not available, for example, if a
State voluntarily moots the case before a preliminary
injunction decision issues or where the State obtains
reversal of the preliminary injunction on appeal or
chooses to continue litigating through the merits and
ultimately prevails. Sole, 551 U.S. at 83. Furthermore, contrary to the amicus States’ claim, no circuit
allows a fee award simply “because changing a law
would better serve the public interest.” States’ Amicus Br. 15. That is because, under the prevailing contextual and case-specific inquiry, fees are only available where a preliminary injunction is based on a thorough assessment of the merits, as opposed to just balancing the equities.
2. Given these realities, there is no merit to Petitioner’s claims (Pet. 18-19) that the consensus approach of the circuits places an unwarranted financial
burden on the States. Attorney’s fees in cases involving preliminary injunctions alone are generally for
relatively modest amounts compared with awards following merits decisions. Petitioners call out “six-figure” fee awards in individual cases, Pet. 18-19, but
they do not attempt to contextualize those figures in
33
any way, let alone compare those fees to the costs associated with litigating those cases to final judgment.
And, tellingly, Petitioners did not seek to appeal the
amount of the fees awarded here.
Moreover, the consensus approach has been the rule
in virtually every circuit for over a decade—yet Petitioners can identify no more than a handful of isolated
instances of such significant awards. That is strong
evidence that the consensus approach has not had an
unmanageable impact on state budgets.
States can also take a number of intermediate approaches to reduce or limit fee awards, including negotiating with plaintiffs to limit or forgo fee awards in
exchange for a voluntary settlement. Or, if a State
believes it must adopt a different approach, it can appeal the preliminary injunction and/or litigate the
case to a merits judgment, with the clear understanding that this course may impose a greater financial
burden—both in terms of the State’s own litigation
costs and a potential fee award.
3. Contrary to the petition’s claims, fee awards
based on preliminary injunctions do not “ossify state
law and policy” or lead States to “litigate cases toothand-nail.” Pet. 19-20. Attorney’s fees are far from the
only element of a state official’s political calculus, and
there is no reason to think that leaving the status quo
in place will somehow “drive[ ] state lawmakers away
from compromise.” Id. at 19. Petitioners’ behavior in
this very case proves the point. Neither the District
Court’s opinion granting fees nor the Sixth Circuit’s
opinion affirming the fee award broke new legal
ground. See Pet. App. 33-37, 9-10. Petitioners were
thus on notice that they might face a fee award as a
34
result of the preliminary injunction under existing
precedent. But despite that risk, Petitioners did not
feel compelled to appeal the preliminary injunction or
litigate the merits case to judgment, nor did the legislature feel any apparent constraint to avoid changing
the law. That is because States consider many factors
when deciding whether to resolve litigation after a
preliminary injunction order—most importantly,
whether they assess a district court’s analysis to be
strong enough to hold up as the litigation moves forward. That is an entirely appropriate consideration
when government officials are deciding whether to
change course.
35
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted,
DAMON T. HEWITT**
JON M. GREENBAUM*
*Counsel of Record for
All Respondents
EZRA D. ROSENBERG
POOJA CHAUDHURI
LAWYERS’ COMMITTEE FOR
CIVIL RIGHTS UNDER LAW
1500 K Street, N.W.
Suite 900
Washington, DC 20005
(202) 662-8315
jgreenbaum@lawyerscommittee.org
**Admitted in Pennsylvania
only. Practice limited to matters
before federal courts.
JESSICA L. ELLSWORTH
ALLISON M. RYAN
REEDY C. SWANSON
DANIELLE DESAULNIERS
STEMPEL
SIMON CHIN
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, DC 20004
IRA M. FEINBERG
HOGAN LOVELLS US LLP
390 Madison Ave.
New York, NY 10017
YAEL BROMBERG
BROMBERG LAW LLC
43 West 43rd Street
Suite 32
New York, NY 10036
Counsel for Tennessee State Conference of the NAACP, et al.
DAVIN M. ROSBOROUGH
Counsel of Record for
League of Women Voters of Tennessee, et al.
SOPHIA LIN LAKIN
CECILLIA D. WANG
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
DANIELLE LANG
MOLLY E. DANAHY
PAUL M. SMITH
CAMPAIGN LEGAL CENTER
1101 14th Street N.W.
Suite 400
Washington, DC 20005
36
125 Broad Street
New York, NY 10014
(703) 380-0804
drosborough@aclu.org
DAVID D. COLE
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th Street, NW
Washington, DC 20005
STELLA YARBROUGH
ACLU FOUNDATION
OF TENNESSEE
P.O. Box 120160
Nashville, TN 37212
MICHELLE KANTER COHEN
FAIR ELECTIONS CENTER
1825 K Street N.W.
Suite 701
Washington, DC 20006
WILLIAM H. HARBISON
C. DEWEY BRANSTETTER, JR.
HUNTER C. BRANSTETTER
SHERRARD ROE VOIGT &
HARBISON
150 3rd Avenue South
Suite 1100
Nashville, TN 37301
Counsel for League of Women Voters of Tennessee, et al.
APRIL 2023
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.