Makekau v. Hawaii, No. 17-16360 (9th Cir. 2019)
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A plaintiff who obtains a preliminary injunction under the All Writs Act does not qualify as a prevailing party for fee-shifting purposes by virtue of that injunction, where the order granting injunctive relief makes no mention of the merits of the plaintiff's claims.
In this case, plaintiffs filed suit against the State of Hawaii and other defendants, alleging that defendants became state actors by conducting elections and that the State's involvement in the self-governance process violated the Fourteenth and Fifteenth Amendments and the Voting Rights Act of 1965 because of the race-based restrictions on eligibility. Although the district court denied the injunction and this court denied a motion for an injunction pending appeal, the Supreme Court subsequently granted plaintiffs' application for an injunction under the All Writs Act.
The Ninth Circuit affirmed the district court's denial of attorney fees under 42 U.S.C. 1988, holding that there was no indication that the Supreme Court's injunction order addressed the merits. Furthermore, plaintiffs sought and received a voluntary dismissal without prejudice in the district court, which was the opposite of an adjudication on the merits. Therefore, plaintiffs were not prevailing parties entitled to attorney fees.
Court Description: Attorney Fees. Affirming the district court’s denial of attorney fees under 42 U.S.C. § 1988, the panel rejected Appellants’ assertion that they were the prevailing parties because the Supreme Court had entered, under the All Writs Act, an injunction pending appeal in their civil rights action. 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 activities 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 42 U.S.C. § 1988, arguing that they were the “prevailing party” because they obtained an injunction from the Supreme Court that caused Appellees to cancel the challenged election and referendum. 4 MAKEKAU V. STATE OF HAWAI‘I The panel held that a plaintiff who obtains a preliminary injunction under the All Writs Act, 28 U.S.C. § 1651(a), does not qualify as a “prevailing party” for fee-shifting purposes by virtue of that injunction, where the order granting injunctive relief makes no mention of the merits of the plaintiff’s claims. The panel concluded that in this case there was simply no indication that the Supreme Court’s injunction order addressed the merits. Moreover, the panel noted that Appellants sought (and received) a voluntary dismissal without prejudice in the district court—the opposite of an adjudication on the merits. The panel concluded that Appellants were not the prevailing parties. 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.
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