KEALII MAKEKAU; JOSEPH KENT; YOSHIMASA SEAN MITSUI; PEDRO KANA‘E GAPERO; MELISSA LEINA‘ALA MONIZ, Plaintiffs-Appellants, v. STATE OF HAWAII; DAVID Y. IGE, Governor; ROBERT K. LINDSEY, JR., Chairperson, Board of Trustees, Office of Hawaiian Affairs, in his official capacity; COLETTE Y. MACHADO; PETER APO; HAUNANI APOLIONA; ROWENA M.N. AKANA; JOHN D. WAIHE‘E IV; CARMEN HULU LINDSEY; DAN AHUNA; LEINA‘ALA AHU ISA, Trustees, Office of Hawaiian Affairs, in their official capacities; KAMANA‘OPONO CRABBE, Chief Executive Officer, Office of Hawaiian Affairs, in his official capacity; JOHN D. WAIHE‘E III, Chairman, Native Hawaiian Roll Commission, in his official capacity; NA‘ALEHU ANTHONY; LEI KIHOI; ROBIN DANNER; MAHEALANI WENDT, Commissioners, Native Hawaiian Roll Commission, in their official capacities; CLYDE W. NAMU‘O, Executive Director, Native Hawaiian Roll Commission, in his official capacity; THE AKAMAI FOUNDATION; THE NA‘I AUPUNI FOUNDATION, Defendants-Appellees.
No. 17-16360
D.C. No. 1:15-cv-00322-JMS-RLP
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed November 26, 2019
Before: Susan P. Graber, Milan D. Smith, Jr., and Paul J. Watford, Circuit Judges.
J. Michael Seabright, Chief District Judge, Presiding
Argued and Submitted October 21, 2019
Honolulu, Hawaii
Opinion by Judge Graber;
Concurrence by Judge Milan D. Smith, Jr.
Attorney Fees
Affirming the district court’s denial of attorney fees under
In the underlying action, Appellants challenged a planned election in Hawaii that restricted the pools of delegates and voters to, among other requirements, people who qualified as Native Hawaiians. Appellants sought a preliminary injunction to prevent Appellees from “undertaking certain voter registration aсtivities and from calling or holding racially-exclusive elections for Native Hawaiians.” The district court denied the injunction and this Court denied Appellants’ motion for an injunction pending appeal. The United States Supreme Court subsequently granted Appellants’ application for an injunction pending appeal under the All Writs Act and Appellees cancelled the delegate election and ratification vote. Appellants’ pending appeal in this Court was subsequently determined to be moot, and the district court granted Appellants’ motion to voluntarily dismiss their complaint without prejudice. Appellants then sought attorney fees under
Concurring in the result, Judge M. Smith wrote separately to express his view that the key legal issues in this case were close to equipoise. Judge Smith stated that were it not for the uncertainty surrounding the standard under which the Supreme Court grants injunctions under the All Writs Act, he would hold that Appellants were the prevailing parties and entitled to attorney fees.
COUNSEL
Robert D. Poрper (argued), Paul J. Orfanedes, Lauren M. Burke, and Chris Fedeli, Judicial Watch Inc., Washington, D.C.; Michael A. Lilly, Ning Lilly & Jones, Honolulu, Hawai‘i; H. Christopher Coates, Law Offices of H. Christopher Coates, Charleston, South Carolina; for Plaintiffs-Appellants.
Robert T. Nakatsuji (argued) and Donna H. Kalama, Deputy Attorneys General; Russell A. Suzuki, Attorney General;
Kurt W. Klein (argued), Robert G. Klein, and Jordan K. Inafuku, McCorriston Miller Mukai MacKinnon LLP, Honolulu, Hawai‘i; Kannon K. Shanmugam and Ellen E. Oberwetter, Williams & Connolly LLP, Washington, D.C.; for Defendants-Appellees Robert K. Lindsey Jr., Colette Y. Machado, Peter Apo, Haunani Apoliona, Rowena M.N. Akana, John D. Waihe‘e IV, Carmen Hulu Lindsey, Dan Ahuna, Leina‘ala Ahu Isa, Kamana‘opono Crabbe, John D. Waihe‘e III, Na‘alehu Anthony, Lei Kihoi, Robin Danner, Mahealani Wendt, and Clyde W. Namu‘o.
Miyoko T. Pettit-Toledo (argued) and David J. Minkin, McCorriston Miller Mukai MacKinnon LLP, Honolulu, Hawai‘i, for Defendant-Appellee Na‘i Aupuni Foundation.
William Meheula and Natasha L.N. Baldauf, Honolulu, Hawai‘i, for Defendant-Appellee The Akamai Foundation.
OPINION
GRABER, Circuit Judge:
We must decide whether a plaintiff who obtains a preliminary injunction under the All Writs Act,
In 2011, the Hawaii legislature enacted measures designed “to provide for and to implement the recognition of the Native Hawaiian people by means and methods” that would help Native Hawaiians move toward “self-governance.” Haw. Rev. Stat. § 10H-2. Those measures included establishing a commission to maintain and publish “a roll of qualified Native Hawaiians,” thereby “facilitat[ing] the process under which qualified Native Hawaiians may independently commence the organization of a convention of qualified Native Hawaiians, established for the purpose of organizing themselves.” Id. §§ 10H-3(a)(1), 10H-5.
Defendant Na‘i Aupuni, a private nonprofit entity, supported self-governance efforts. Akina v. Hawaii, 835 F.3d 1003, 1008 (9th Cir. 2016) (per curiam) (”Akina I“). In 2015, Na‘i Aupuni sought and received grant funding from Defendant Office of Hawaiian Affairs (“OHA“), a state agency, to use for three events: a delegate election, a constitutional convention of the elected delegates, and a referendum to ratify any governing documents produced at the convention. Id. Na‘i Aupuni scheduled a vote-by-mail delegate election to run during November 2015. Id. Na‘i Aupuni restricted the poоls of delegates and voters to people who appeared on the commission’s roll of qualified Native Hawaiians and who also affirmed “the unrelinquished sovereignty of the Native Hawaiian people.”
In August 2015, Plaintiffs—five registered Hawaii voters—sued the State of Hawaii, OHA, other state agencies and officials, Na‘i Aupuni, and another private nonprofit that participated in the election efforts. Id. Plaintiffs alleged that Na‘i Aupuni and the other nonprofit entity became state
The district court denied Plaintiffs’ motion in October 2015. Voting for the delegate election began on November 1. On November 19, we denied Plaintiffs’ urgent motion for an injunction pending appeal. Four days later, Plaintiffs, relying on the All Writs Act, filed an emergency application for an injunction pending appeal in the Suрreme Court. On November 27, Justice Kennedy enjoined ballot-counting in the delegate election.
After Justice Kennedy’s order issued, Na‘i Aupuni extended the voting deadline to December 21, 2015. Plaintiffs notified the Supreme Court of the extension. On December 2, the Supreme Court granted Plaintiffs’ emergency application. In full, the order stated:
Application for injunction pending appellate review presented to Justice Kennedy and by him referred to the Court granted. Respondents are enjoined from counting ballots cast in, and certifying winners of, the election described in the application, pending final dispositiоn of the appeal by the United States Court of Appeals for the Ninth Circuit.
Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.
Akina v. Hawaii, 136 S. Ct. 581, 581 (2015) (Mem.) (“injunction order“).
In mid-December, Na‘i Aupuni announced that it had “terminated” the delegate election and would not count the votes, but would continue the self-governance process by inviting all delegates to the constitutional convention planned for February 2016. Plaintiffs filed a motion for civil contempt, arguing that Defendants had violated the Supreme Court’s injunction order by certifying all delegates as winners of the election. The Supreme Court summarily denied thаt motion. Akina v. Hawaii, 136 S. Ct. 922 (2016) (Mem.).
The convention took place in February 2016 and produced a proposed constitution. Akina I, 835 F.3d at 1009. But Na‘i Aupuni decided not to hold a ratification vote. Na‘i Aupuni returned OHA’s remaining grant funds, which had been allocated to cover the cost of a ratification vote. Na‘i Aupuni dissolved as an entity in April 2016.
Several months later, we dismissed as moot Plaintiffs’ appeal of the district court’s denial of their preliminary injunction. Id. at 1011. The district court then granted Plaintiffs’ motion to dismiss their complaint voluntarily and without prejudice under
DISCUSSION
We review de novo a district court’s denial of attorney fees where, as here, the denial “turns on an issue of statutory construction—the meaning of ‘prevailing party.’” Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 715 (9th Cir. 2013). To qualify as a “prevailing party” under a fee-shifting statute, a plaintiff must obtain “actual relief on the merits” that “materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.” Id. (quoting Farrar v. Hobby, 506 U.S. 103, 111–12 (1992)). Relief “on the merits” requires some form of “judicial imprimatur on the change.” Id. (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001)).
Accordingly, two questions drive the аnalysis in determining whether a plaintiff “who wins a preliminary injunction but does not litigate the case to final judgment” is a prevailing party: (1) whether the preliminary injunction was “sufficiently ‘on the merits’ to satisfy Buckhannon’s ‘judicial imprimatur’ requirement“; and (2) whether the plaintiff “obtained relief sufficiently enduring” to cause a material alteration of the parties’ legal relationship. Id. at 715–16. Because we conclude that the injunction order did not address the merits of Plaintiffs’ claims, we answer only the first question.
Under the All Writs Act, a court may issue an injunction only where it is “necessary or appropriate in aid” of the court’s jurisdiction,
At oral argument, Plaintiffs relied on Dunn v. McNabb, 138 S. Ct. 369 (2017) (Mem.), for the proposition that the All Writs Act requires a court to consider the merits before granting relief. There, the Supreme Court held that the All Writs Act “does not excuse a court from making [certain] findings” before enjoining an inmate’s execution, because “[i]nmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits.” Id. at 369 (internal quotation marks omitted). Read in context, Dunn stands only for the unremarkable proposition that the All Writs Act does not erase separate legal requirements for a given type of claim.
Moreover, in “appropriate circumstances,” a court may direct an order under the All Writs Act “to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice.” United States v. N.Y. Tel. Co., 434 U.S. 159, 174 (1977). Plainly, an order directed to a nonparty who engaged in no wrongdoing would stem from considerations separate from the merits of a case.
Thus, contrary to Plaintiffs’ view, the mere fact that the injunction order issued under the All Writs Act does not prove that the Supreme Court found Plaintiffs’ claims to be even potеntially meritorious. There is simply no indication that the injunction order addressed the merits. Aside from the
AFFIRMED.
M. SMITH, Circuit Judge, concurring in the result:
I write separately to express my view that the key legal issues in this case are close to equipoise. I differ from the majority because I find that the “on the merits” analysis only narrowly disfavors Appellants. I would find that the “sufficiently enduring relief” analysis favors Appellants.
I briefly recount the most essential facts. Appellants, five registered Hawaii voters, sued the State of Hawaii, various state officers including the trustees and director of the Office of Hawaiian Affairs (OHA), and the nonprofit entities Na‘i Aupuni and the Akamai Foundation, on constitutional and statutory grounds alleging race- and viewpoint-based voting discrimination. The Akina lawsuit challenged efforts by Na‘i Aupuni—using grant funds awarded by, and a voter roll of “qualified Native Hawaiians” maintained by, OHA—to hold
Appellants unsuccessfully sought a preliminary injunction from the district court, and then an injunction pending interlocutory appeal from our court, which denied the injunctions under Winter v. NRDC, 555 U.S. 7 (2008),1 primarily for failure to show likelihood of proving that Na‘i Aupuni was a state actor. Akina v. Hawaii, 141 F. Supp. 3d 1106, 1125–35 (D. Haw. 2015); Akina v. Hawaii, 835 F.3d 1003, 1009 (9th Cir. 2016). As a result, voting in the delegate election began as scheduled.
Plaintiffs then applied to Justice Kennedy for an emergеncy interlocutory injunction. With a few days of voting remaining, Justice Kennedy enjoined ballot counting and certification of winners pending further order of the Court, offering no explanation for his reasoning. Id. Na‘i Aupuni publicly announced the injunction and officially extended the voting deadline. On referral, a divided Supreme Court re-entered the same injunction pending resolution of the appeal to our court, again offering no explanation. Akina v. Hawaii, 136 S. Ct. 581 (2015) (mem.). Shortly thereafter, Na‘i Aupuni cancelled the delegate election with several days of voting remaining, declared that the ballots would not be counted, and invited аll of the delegate candidates to a convention. Appellants filed a motion for civil contempt with the Supreme Court, arguing that Na‘i Aupuni’s invitation was tantamount to certifying all of the candidates as winners. The
Na‘i Aupuni then initiated efforts to hold a ratification election, again using the disputed voter roll. Appellants submitted briefing to our court citing the upcoming ratification election as evidence that the appeal was not moot. Before we issued any decision, Na‘i Aupuni canceled the ratificаtion election, and thereafter dissolved as an entity. This court dismissed the appeal as moot. Akina, 835 F.3d at 1010–11.
Appellants voluntarily dismissed their complaint without prejudice and moved for attorney’s fees as the “prevailing party” in a civil rights lawsuit. The district court denied the motion, concluding that the writ Appellants obtained was merely a status quo injunction driven by considerations regarding irreparable harm, and that it was not based on—as required for prevailing party status—the merits of Appellants’ claims. This appeal followed.
I. On the Merits
In certain civil rights actions, “the court, in its discretion, may allow the prevailing party . . . a reasonаble attorney’s fee as part of the costs.”
I begin with the first question. “Judicial imprimatur” can take the form of “an enforceable judgment on the merits,” “a court-ordered consent decree,” or “[o]ther court-approved actions . . . , provided they entail a judicial determination that the claims on which the plaintiff obtains relief are potentially meritorious.” Id. at 715 (emphasis added); see also Jensen v. City of San Jose, 806 F.2d 899, 900 (9th Cir. 1986) (“[T]he benefit a party achieves must come from success on the merits of a civil rights claim, not from success on procedural or collateral issues.“).
The judicial determinations on which Appellants stake their claim for attorney’s fees are the injunctions entered by Justice Kennedy and subsequently by the full Supreme Court pursuant to the All Writs Act,
A. Writs of Interlocutory Injunction
The All Writs Act authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of
The first Supreme Court precedent recognizing the power of the federal courts to issue § 1651(a) writs “in the form of compulsory injunctions aimed at private parties” seems to have been FTC v. Dean Foods Co., 384 U.S. 597, 605 & n.3 (1966) (upholding writ enjoining consummation of merger pending final review by FTC). The Court justified an appellate court’s writ in that сase based on a threat to the court’s jurisdiction, and notably did not discuss the underlying merits or any other factor typically relevant to preliminary injunctions. See id. at 605.3
By contrast, in Sampson v. Murray, 415 U.S. 61 (1974), the Court readily assumed that the four preliminary injunction factors apply to status quo injunctions granted under the All Writs Act, and held that a heightened version of those factors should have applied in the context at hand. See id. at 83–84 & n.53 (recognizing the law governing available relief in the
Around the same time as Murray, the Justices of the Supreme Court began developing a terse body of case law applying a unique “indisputably clear” standard to § 1651(a) interlocutory injunction applications addressed to individual Justices. See Communist Party of Ind. v. Whitcomb, 409 U.S. 1235, 1235 (1972) (Rehnquist, J., in chambers) (“the applicants’ right to relief must be indisputably clear“) (citing no authority). Justice Scalia placed this standard in the context of other authority in Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regulatory Commission, 479 U.S. 1312 (1986) (Scalia, J., in chambers):
A Circuit Justice’s issuance of [a § 1651(a) writ of injunction]—which, unlike a . . . stay,
does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts—demands a significantly higher justification than that described in the . . . stay cases cited by the applicant. The Circuit Justice’s injunctive power is to be used “sparingly and only in the most critical and exigent circumstances,” and only where the legal rights at issue are “indisputably clear.” Moreover, the applicant must demonstrate that the injunctive relief is “necessary or appropriate in aid of [the Court’s] jurisdictio[n].”
Id. at 1313 (emphasis added) (citations omitted) (first quoting Fishman v. Schaffer, 429 U.S. 1325, 1326 (1976) (Marshall, J., in chambers), second quoting Communist Party, 409 U.S. at 1235, third quoting
Though many individual Justice opinions have denied § 1651(a) interlocutory injunctions based on the “indisputably clear” standard,5 most relevant to the case at hand are the few
The most recent § 1651(a) interlocutory injunction of which I am aware is the 2015 writ granted to Appellants. Akina, 136 S. Ct. at 581. As is precisely at issue here, that order did not articulate the standard under which it was granted, nor did the immediately preceding writ issued by Justice Kennedy.
The same can be said of the two similar writs granted in 2014. In both Wheaton College v. Burwell, 134 S. Ct. 2806 (2014) (mem.), and Little Sisters of the Poor Home for the Aged v. Sebelius, 571 U.S. 1171 (2014) (mem.), the Court granted a § 1651(a) writ enjoining the federal government from requiring the plaintiff religious nonprofit entities to fill out and send a form to their third party insurers regarding their objections to the Affordable Care Act’s contraceptive coverage mandate. 134 S. Ct. at 2807; 571 U.S. at 1171. Neither memorandum order hinted as to the standard the Court had applied in granting the writ. In both cases, the Court expressly directed that the order “not be construed as an expression of the Court’s views on the merits.” 134 S. Ct. at 2807; 571 U.S. at 1171.
Taking the Court at its word, Wheaton College and Little Sisters demonstrate that the Court has authority to issue § 1651(a) interlocutory injunctions without applying the “indisputably clear” standard (whatever that standard may entail), and indeed without reaching the merits of thе underlying legal challenge.8
The delegate election and related self-governance processes challenged in the Akina lawsuit began to unravel only after Justice Kennedy and then the full Court issued writs of injunction. I have no trouble thus concluding that “judicial imprimatur” was present. Higher Taste, 717 F.3d at 716. The difficulty in this case comes from the uncertainty regarding whether that “judicial imprimatur” represented a finding that Appellants’ civil rights claims were “potentially meritorious.” Id. at 715 (quoting Buckhannon, 532 U.S. at 606).
Because I find little indication that the Supreme Court was applying the Winter framework, I do not attempt to reverse engineer the Court’s likely assessment of the Winter factors (which would have to have been contrary to this court’s assessment when we denied an interlocutory injunction). Nor will I attempt to evaluate whether the Court’s jurisdiction was genuinely at stake, as I am aware of no Supreme Court precedent clearly endorsing a distinction between jurisdictional and merits-based § 1651(a) injunctions.
If Justice Kennedy or the Court had said anything at all about the merits of Appellants’ claims, even without making an express finding of “probable success on the merits,” I might have some basis on which to state confidently that Justice Kennedy or the Court considered the claims at least “potentially meritorious.” Id. But, given the Court’s clеarly expressed authority to avoid the merits entirely in Wheaton College and Little Sisters, there is too much uncertainty in the
Accordingly, I concur in the denial of attorney’s fees on the grounds that the judicial relief obtained provided no indication that Appellants’ claims were potentially meritorious.
II. Sufficiently Enduring Relief
I turn now to the second question we ask of a would-be prevailing party who has won a preliminary injunction but not litigated the case to final judgment: “[H]as the plaintiff obtained relief sufficiеntly enduring to satisfy the ‘material alteration of the parties’ legal relationship’ requirement?” Higher Taste, 717 F.3d at 716 (quoting Buckhannon, 532 U.S. at 605). I would hold that Appellants have obtained relief “sufficiently enduring.” Id.
“A material alteration of the parties’ legal relationship occurs when ‘the plaintiff can force the defendant to do something he otherwise would not have to do.’” Id. (quoting Fischer v. SJB–P.D. Inc., 214 F.3d 1115, 1118 (9th Cir. 2000)).
Plaintiffs ultimately did get much of what they sought in the Akina lawsuit: the delegate election and the ratification election were both cancelled; no election based on the disputed voter roll was ever counted or certified; and no DOI-qualifying self-governance document was produced through processes dependent on the disputed voter roll. However, most of these victories went beyond any judicial ruling, and therefore must be excluded from consideration as an impermissible application of the “catalyst theory.” Buckhannon, 532 U.S. at 609.
I disagree with the district court’s conclusion that Appellants obtained only “ephemeral” relief. Appellants’ lawsuit sought to enjoin the “calling, holding, or certifying of any election” using the disputed voter roll. Appellants successfully enjoined the certifying of one such election.11 Moreover, our subsequent dismissal of Appellants’ appeal as moot depended on the conclusion that “the allegedly wrongful behavior could not reasonably be expected to recur.” Akina v. Hawaii, 835 F.3d 1003, 1010 (9th Cir. 2016).