Kealii Makekau v. State of Hawaii, 943 F.3d 1200

Hawaii created a roll of "qualified Native Hawaiians" and statutes to facilitate Native Hawaiian self-governance; Na‘i Aupuni (a private nonprofit) used the roll and race-based eligibility criteria to run a 2015 mail-in delegate election.
Five registered Hawaii voters sued state actors and Na‘i Aupuni under the Fourteenth and Fifteenth Amendments and the Voting Rights Act, seeking to enjoin the racially restricted elections.
District court denied a preliminary injunction; the Ninth Circuit denied an injunction pending appeal. Plaintiffs then obtained an emergency All Writs Act injunction from Justice Kennedy and the full Supreme Court enjoining ballot counting and certification.
After the injunction, Na‘i Aupuni extended voting, then canceled the delegate election, later abandoned a ratification vote, and dissolved; the Ninth Circuit dismissed the appeal as moot and plaintiffs voluntarily dismissed their complaint without prejudice.
Plaintiffs sought attorneys’ fees under 42 U.S.C. § 1988 as the "prevailing party," arguing the Supreme Court injunction materially altered defendants’ conduct; the district court denied fees.
The Ninth Circuit affirmed, holding the All Writs Act injunction did not reflect a merits-based judicial imprimatur and therefore did not make plaintiffs a prevailing party for fee purposes.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a plaintiff who obtains an All Writs Act injunction that says nothing about merits is a "prevailing party" for § 1988 fees	The Supreme Court injunction enjoining counting/certification materially altered defendants' behavior and thus qualifies plaintiffs as prevailing parties	An All Writs Act injunction can be issued without deciding merits; without a merits-based judicial imprimatur, plaintiff is not a prevailing party	No. The injunction did not address the merits; plaintiffs are not prevailing parties
Whether courts issuing § 1651(a) injunctions must apply a merits-based or "indisputably clear" standard	Court must assess merits before granting such writs	The All Writs Act does not universally require a merits determination; prior Supreme Court orders expressly avoid merit statements	No. The All Writs Act does not always require a merits finding; the Court may issue writs without expressing views on merits
Whether the injunction produced relief sufficiently enduring to materially alter legal relationship (separate prevailing-party requirement)	Cancellation of elections after the injunction made relief durable, so plaintiffs prevailed	Relief was temporary/status-quo and not an adjudication on the merits; fee entitlement requires judicial imprimatur	Majority: not reached (decided on merits-imprimatur). Concurrence: would find relief sufficiently enduring and award fees

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001) (requires judicial imprimatur for prevailing-party status; rejects "catalyst theory")
Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712 (9th Cir. 2013) (articulates two-step test for whether preliminary relief confers prevailing-party status)
Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (standard factors for preliminary injunctions)
Akina v. Hawaii, 835 F.3d 1003 (9th Cir. 2016) (prior Ninth Circuit proceedings, mootness dismissal)
Wheaton College v. Burwell, 134 S. Ct. 2806 (2014) (mem.) (Court granted All Writs Act relief while disclaiming views on merits)
Little Sisters of the Poor Home for the Aged v. Sebelius, 134 S. Ct. 1022 (2014) (mem.) (similar Supreme Court practice of granting writs without expressing merits views)
United States v. New York Telephone Co., 434 U.S. 159 (1977) (All Writs Act orders may reach nonparties to protect court jurisdiction)
Sampson v. Murray, 415 U.S. 61 (1974) (applies preliminary-injunction principles to certain All Writs Act relief)