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Miller v. Davis

United States District Court, E.D. Kentucky, Northern Division, Ashland

July 21, 2017

APRIL MILLER, et al. PLAINTIFFS
v.
KIM DAVIS, individually and in her official capacity, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          David L. Bunning United States District Judge

         I. INTRODUCTION

         In the summer of 2015, the Supreme Court put the national debate concerning same-sex marriage to bed. The Court determined that same-sex couples need not “await further legislation, litigation, and debate, ” and held that the Constitution's fundamental right to marry extended to same-sex couples. Obergefell v. Hodges, 135 S.Ct. 2584, 2605 (2015). The dissenting justices warned that there would be “consequences to shutting down the political process on an issue of such profound public significance.” Id. at 2625 (Roberts, J., dissenting). At least in some respects, the dissenting justices' concerns proved correct. Obergefell's watershed decision floated downstream to district courts, including this one.

         Less than one week after the Supreme Court's decision in Obergefell, the instant case landed on the Court's docket when Kim Davis, the Rowan County Clerk, refused to issue marriage licenses. This litigation has produced many appeals, a jailing for contempt, at least two marriages, and legislative action. Now, this protracted case has boiled down to a single remaining issue: attorneys' fees.

         Pursuant to this Court's September 21, 2016 Order (Doc. # 184), Plaintiffs' Motion for Attorneys' Fees and Costs (Doc. # 183) was referred to Magistrate Judge Edward B. Atkins for a Report and Recommendation (“R&R”). Judge Atkins recommended that the Court deny Plaintiffs' Motion for Attorneys' Fees and Costs. (Doc. # 199). The Plaintiffs having objected to the R&R (Doc. # 201), the Defendants having filed their Responses (Docs. # 203 and 204), and the Plaintiffs having filed a Reply (Doc. # 205), the R&R is ripe for review. For the reasons set forth herein, Plaintiffs' Objections are sustained, the R&R is rejected as the findings of fact and conclusions of law of the Court, and the Plaintiffs' Motion for Attorneys' Fees and Costs is granted as set forth herein.

         II. FACTUAL AND PROCEDURAL BACKGROUND

         On June 26, 2015, the Supreme Court issued its landmark decision in Obergefell, reaffirming that the right to marry is a fundamental right under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and holding that same-sex couples may not be deprived of that right. Obergefell, 135 S.Ct. 2584. Accordingly, Kentucky's constitutional amendment defining marriage as a union between one man and one woman violated the Constitution, and Kentucky could no longer “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Id. at 2605.

         Just hours after the Supreme Court's decision in Obergefell, Defendant Kim Davis, the Rowan County Clerk, unilaterally decided that her office would no longer issue marriage licenses to any couples, same-sex or otherwise. (Doc. # 43 at 1). That same day, Plaintiffs April Miller and Karen Roberts, who had been in a committed same-sex relationship for eleven years, decided to get married. (Doc. # 21 at 25). Four days later, Ms. Miller and Ms. Roberts went to the Rowan County Clerk's Office and requested a marriage license. Id. at 26. The couple's request was denied and they were informed of the Rowan County Clerk's “no marriage license” policy. Id. Two opposite-sex couples- Kevin Holloway and Jody Fernandez and Shantel Burke and Stephen Napier-as well as another same-sex couple-Barry Spartman and Aaron Skaggs-claimed to have suffered a similar fate when they requested marriage licenses from the Rowan County Clerk's Office. Id. at 36, 42-44.

         On July 2, 2015, Plaintiffs April Miller, Karen Roberts, Shantel Burke, Stephen Napier, Jody Fernandez, Kevin Holloway, Aaron Skaggs, and Barry Spartman (collectively “Plaintiffs”) filed a civil-rights complaint pursuant to 42 U.S.C. § 1983 against Defendants Rowan County, Kentucky and Kim Davis, individually and in her official capacity as Rowan County Clerk (collectively “Defendants”). (Doc. # 1). Plaintiffs also filed a Motion for Preliminary Injunction. (Doc. # 2). In their Complaint, Plaintiffs claimed their constitutional rights were violated by the Rowan County Clerk's “no marriage license” policy, which refused marriage licenses to couples who were otherwise legally entitled to marry. (Doc. # 1 at ¶ 1). Specifically, Plaintiffs brought claims against Defendants for violations of the First and Fourteenth Amendments and requested seven specific types of relief: (1) class certification under Federal Rule of Civil Procedure 23, (2) a preliminary injunction, (3) a permanent injunction, (4) a declaratory judgment, (5) damages, (6) attorneys' fees and costs, and (7) a trial by jury. (Doc. # 1 at pp. 10-14).

         In response, Davis filed a Motion to Dismiss Plaintiffs' Complaint (Doc. # 32), opposed Plaintiffs' Motion for Preliminary Injunction (Doc. # 29), and filed a Third-Party Complaint (Doc. # 34) and Motion for Preliminary Injunction (Doc. # 39) against then-Governor of Kentucky, Steven Beshear, and the Commissioner of the Kentucky Department for Libraries and Archives, Wayne Onkst[1] (collectively “the State Defendants”).[2] In her Third-Party Complaint, Davis claimed that the “Commonwealth of Kentucky, acting through Governor Beshear, deprived [her] of her religious conscience rights guaranteed by the United States and Kentucky Constitutions and laws, by insisting that [she] issue marriage licenses to same-sex couples contrary to her … sincerely held religious beliefs.” (Doc. # 34 at ¶ 1). Davis further claimed that Governor Beshear was “not only liable to Davis for Plaintiffs' claims, ” but “also obligated to effect Kentucky marriage licensing policies that uphold Davis's rights of religious conscience.” Id.

         On August 12, 2015, the Court granted Plaintiffs' Motion for Preliminary Injunction (Doc. # 2), and preliminarily enjoined Davis, in her official capacity as Rowan County Clerk, from applying her “no marriage licenses” policy to future marriage license requests submitted by Plaintiffs. (Doc. # 43). Davis appealed that ruling to the United States Court of Appeals for the Sixth Circuit. (Docs. # 66, 82, and 83). The Sixth Circuit denied Davis's request to stay the preliminary injunction pending appeal and held that “[i]n light of the binding holding of Obergefell, it cannot be defensibly argued that the holder of the Rowan County Clerk's Office … may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court.” Miller v. Davis, No. 15-5880, 2015 WL 10692640, at *1 (6th Cir. Aug. 26, 2015) (Doc. # 28-1 therein). Davis further appealed to the United States Supreme Court, which also denied her application for stay. Davis v. Miller, 136 S.Ct. 23 (2015).

         Despite this Court's directive and her failed appeals, Davis refused to comply with the Court's Order. (Doc. # 67). Therefore, the Court ordered Davis, as well as her deputy clerks, [3] to appear for a contempt hearing. (Doc. # 69). On September 3, 2015, the Court found Davis to be in contempt of the Court's Order and remanded her to the custody of the United States Marshal pending compliance. (Doc. # 75). That same day, the Court modified the preliminary injunction and clarified that Davis, in her official capacity as Rowan County Clerk, was “preliminarily enjoined from applying her ‘no marriage licenses' policy to future marriage license requests submitted by Plaintiffs or by other individuals who are legally eligible to marry in Kentucky.” (Doc. # 74) (emphasis added).[4]

         Five days later, on September 8, 2015, the Plaintiffs filed a Status Report indicating that they had obtained marriage licenses from the Rowan County Clerk's Office without incident. (Doc. # 84). Accordingly, the Court lifted the contempt sanction, released Davis from custody, and ordered her not to interfere with her deputy clerks' efforts to issue marriage licenses to all legally eligible couples. (Doc. # 89). On September 14, 2015, Davis returned to work at the Rowan County Clerk's Office. (Doc. # 120). However, the Court continued to monitor compliance with its Orders and required the deputy clerks to file Status Reports regarding their compliance and the issuance of marriage licenses. (Doc. # 89) (requiring Status Reports every fourteen days); (Doc. # 130) (limiting required Status Reports to every thirty days); (Doc. # 163) (requiring Status Reports every ninety days).

         While multiple appeals were pending before the Sixth Circuit, the Kentucky General Assembly passed Senate Bill 216, [5] which removed county clerks' names from the prescribed marriage license forms. Ky. Rev. Stat. Ann. § 402.100.[6] Because the parties agreed that the change in the law rendered the consolidated appeals[7] moot, the Sixth Circuit granted Davis's Motion to Dismiss for Lack of Jurisdiction and dismissed the appeals.[8] (Doc. # 179). In its July 13, 2016 Order, the Sixth Circuit remanded the matter to this Court, “with instructions to vacate” the August 12, 2015 and September 3, 2015 Preliminary Injunction Orders.[9] Id. After the mandate issued (Doc. # 180), this Court complied with the Sixth Circuit's instructions and vacated the Preliminary Injunction Orders (Doc. # 181), denied all pending motions as moot, and dismissed and struck this matter from the Court's active docket. (Doc. # 182). Shortly thereafter, the Plaintiffs filed a Motion for Attorneys' Fees and Costs pursuant to 42 U.S.C. § 1988. (Doc. # 183).

         III. ANALYSIS

         A. Standard of Review

         Although a magistrate judge is not permitted to determine costs or fees, the district court may refer the matter to a magistrate judge for the preparation of a report and recommendation. McCombs v. Meijer, Inc., 395 F.3d 346, 360 (6th Cir. 2005) (citing Massey v. City of Ferndale, 7 F.3d 506, 510-11 (6th Cir. 1993)); see also Fed. R. Civ. P. 72. A party may file written objections to the R&R within fourteen days. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). The objections must be specific; “vague, general or conclusory objections … [are] tantamount to a complete failure to object.” Cole v. Yukins, 7 F. App'x 354, 356 (6th Cir. 2001). “The district court cannot simply ‘concur' in the magistrate's findings.” McCombs, 395 F.3d at 360. Instead, the Court must review the entire record and “conduct its own review” to determine whether the recommendation should be adopted. Id.

         Judge Atkins found that Plaintiffs were not entitled to attorneys' fees under § 1988 and recommended that Plaintiffs' Motion for Attorneys' Fees and Costs be denied. (Doc. # 199). The Plaintiffs object to Judge Atkins's R&R, claiming the recommendation misapplied the relevant law. (Doc. # 201). The Court will consider the Plaintiffs' objections and conduct a de novo review.

         B. Attorneys' Fees under § 1988

         “Our legal system generally requires each party to bear his own litigation expenses, including attorney's fees, regardless whether he wins or loses.” Fox v. Vice, 563 U.S. 826, 832 (2011). Thus, courts do not award “fees to a prevailing party absent explicit statutory authority.” Buckhannon Bd. & Care Home v. W.Va. Dep't of Health & Human Res., 532 U.S. 598, 602 (2001) (quoting Key Tronic Corp. v. United States, 511 U.S. 809, 819 (1994)). Under 42 U.S.C. § 1988, Congress “explicitly empowered the courts to grant fees to parties who win § 1983 actions.” Id. Accordingly, a “court, in its discretion, may allow the prevailing party … a reasonable attorney's fee as part of the costs.”[10] 42 U.S.C. § 1988(b).

         Therefore, the pending motion requires the Court to answer a critical threshold question: Did the Plaintiffs prevail?

         “Prevailing party” is a “legal term of art.” Buckhannon, 532 U.S. at 603. “The Supreme Court has stated that in providing for fees under § 1988, ‘Congress intended to permit the … award of counsel fees only when a party has prevailed on the merits.'” Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 620 (6th Cir. 2013) (quoting Hanrahan v. Hampton, 446 U.S. 754, 758 (1980)). “Over time, ‘prevailing on the merits' has been distilled to succeeding on any significant issue which achieves some of the benefit the parties sought in bringing suit, the settling of some dispute which affects the behavior of the defendant towards the plaintiff, and resolution of the dispute in a way that … alters the legal relationship of the parties.” Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Hewitt v. Helms, 482 U.S. 755, 761 (1987); Tex. State Teachers Ass'n v. Harland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)).

         However, not just any change in the legal relationship between the plaintiff and the defendant is sufficient to establish prevailing-party status. “The touchstone of the prevailing party inquiry … is the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.” Sole v. Wyner, 551 U.S. 74, 82 (2007) (emphasis added) (internal citations and quotation marks omitted). “A material change ‘directly benefits' a plaintiff by modifying the defendant's behavior toward him.” McQueary v. Conway, 614 F.3d 591, 598 (6th Cir. 2010) (quoting Farrar v. Hobby, 506 U.S. 103, 111 (1992)).

         Moreover, the modification in the defendant's behavior must be “judicially sanctioned.” Buckhannon, 532 U.S. at 605. “A defendant's voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.” Id. Therefore, if the plaintiff is successful because the defendant voluntarily elected to change course, even if the litigation was the “catalyst” for the change, the plaintiff did not “prevail.” McQueary, 614 F.3d at 597.

         The “court-ordered change in the legal relationship” between the parties must also be “enduring and irrevocable.” Id. Thus, “a plaintiff who achieves a transient victory at the threshold of an action can gain no award under [§ 1988's] fee-shifting provision if, at the end of the litigation, her initial success is undone and she leaves the courthouse emptyhanded.” Sole, 551 U.S. at 78.

         Satisfying this standard is a tall order for preliminary-injunction winners. In Sole, the Supreme Court held that a “plaintiff who secures a preliminary injunction, then loses on the merits as the case plays out and judgment is entered against her, has won a battle but lost the war, ” and is not entitled to attorneys' fees. Id. at 86 (internal citations and quotation marks omitted). However, the Court limited its holding to those particular facts and expressly declined to consider “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. (emphasis added).

         Recently, the Sixth Circuit addressed the very issue left open in Sole. McQueary, 614 F.3d 591. To answer that difficult question, McQueary considered and rejected a variety of approaches. The first one-preliminary-injunction success never establishes prevailing-party status-was too harsh. Id. at 599. The “never” approach “fails to account for fact patterns in which the claimant receives everything it asked for in the lawsuit, and all that moots the case is court-ordered success and the passage of time.” Id. The next one-preliminary-injunction winners are always eligible for fees-was too generous. The "always” approach awards parties with successful preliminary injunctions that had “nothing to do with the merits” and “turn[ed] more on the grave risks of irreparable harm … than on the legal virtues of the parties' positions.” Id. at 600. Finally, McQueary's “Goldilocks”[11] analysis arrived at an approach that fit “just right”: district courts are to engage in a contextual and case-specific inquiry to determine whether a preliminary-injunction winner “prevailed” within the meaning of § 1988.

         Although the Sixth Circuit declined to say that preliminary-injunction winners always are, or never are, “prevailing parties, ” McQueary provided a cautionary tale: “the ‘preliminary' nature of the relief-together with the requirement that a prevailing party victory must create a lasting change in the legal relationship between the parties and not merely ‘catalyze' the defendant to voluntary action-will generally counsel against fees in the context of preliminary injunctions.” Id. at 601.

         Therefore, the Court must engage in “a contextual and case-specific inquiry” to determine if this case is one of the rare instances where preliminary-injunction winners are entitled to attorneys' fees. Id. However, the Court is mindful that “the idea behind § 1988 is to award fees to deserving parties, not to generate ‘satellite' disputes over fees” and will conduct its analysis accordingly. Id. at 598 (citing City of Burlington v. Dague, 505 U.S. 557, 566 (1992)).

         C. Did Plaintiffs Prevail?

         Although McQueary “generally counsel[s] against fees in the context of preliminary injunctions, ” that rule gives way when a preliminary-injunction winner receives “everything [that he or she] asked for in the lawsuit, and all that moots the case is court-ordered success and the passage of time.” McQueary, 614 F.3d at 599. In those scenarios, the preliminary injunction does establish prevailing-party status.

         For example, “[w]hen protesters seek an injunction to exercise their First Amendment rights at a specific time and place-say to demonstrate at a Saturday parade-a preliminary injunction will give them all the court-ordered relief they need and the end of the parade will moot the case.” Id. Such claimants are prevailing parties. Id. (citing Young v. City of Chicago, 202 F.3d 1000 (7th Cir. 2000)). Likewise, “a government employee who seeks to exclude an unconstitutionally obtained report from an administrative hearing and obtains a preliminary injunction that irrevocably excludes the report” is a “prevailing party.” Id. (citing Watson v. Cty. of Riverside, 300 F.3d 1092 (9th Cir. 2002)). So too is “a plaintiff who seeks to delay enforcement of a statute until a certain event occurs-say a public referendum-and the preliminary injunction brings about that result.” Id. (relying on Grano v. Barry, 783 F.2d 1104, 1108-09 (D.C. Cir. 1986)).

         On the other hand, a protestor who seeks and obtains a preliminary injunction enjoining government officials from enforcing laws, which prevented him from protesting at military funerals, is not entitled to attorneys' fees if his claim becomes moot because the government-defendants voluntarily repealed the challenged laws. McQueary v. Conway (McQueary Remand), No. 06-cv-24-KKC, 2012 WL 3149344, *3 (E.D. Ky. Aug. 1, 2012), aff'd, McQueary v. Conway (McQueary II), 508 F. App'x 522 (6th Cir. 2012). In such a case, the plaintiff's claim for relief did not become “moot because the preliminary injunction granted him all the relief he sought and there was nothing more [the] Court could do.” Id. at *2. Instead, his “claim for permanent injunctive relief became moot because the Defendant voluntarily repealed the challenged” laws. Id.

         Plaintiffs liken their case to Young, Watson, and Grano, and claim that this case provides the rare circumstances that entitle preliminary-injunction winners to attorneys' fees under § 1988. (Doc. # 183). Defendants rely heavily on McQueary and argue that Plaintiffs have no path to prevailing-party status. (Docs. # 193 & 203). Specifically, Defendants argue that Plaintiffs are not entitled to attorneys' fees because Kentucky voluntarily changed its laws, because the preliminary relief Plaintiffs obtained was not “enduring” or “irrevocable, ” and because Plaintiffs did not receive “everything they wanted from” the preliminary injunction. (Doc. # 193 at 17-20). Furthermore, Defendants claim that “conferring prevailing party status on Plaintiffs would contradict and frustrate the vacatur remedy awarded by the Sixth Circuit.” Id. at 21-23.

         In the R&R, Judge Atkins found that two factors prevented Plaintiffs from establishing prevailing-party status. First, the R&R reasons that Plaintiffs did not receive “the full and final relief they sought” because they were only granted a preliminary injunction; they did not obtain the permanent injunction, class certification, declaratory judgment, trial by jury, or damages they sought. (Doc. # 199 at 6). And second, the R&R concluded that the case became moot because of the Kentucky General Assembly's “voluntary conduct” in “changing the marriage license forms, ” and therefore, Plaintiffs did not “prevail.” Id. Accordingly, Judge Atkins recommended that the Court deny Plaintiffs' Motion for Attorneys' Fees and Costs. Id.

         In their Objections, Plaintiffs argue that the R&R's application of McQueary's contextual and case-specific analysis is flawed because it “fails to adequately address the central inquiry … whether the merits-based preliminary injunction materially altered the parties' legal relationship.” (Doc. # 201 at 2). Plaintiffs also claim that the R&R “adopts a construction” of McQueary that “would effectively preclude” preliminary-injunction winners from ever attaining prevailing-party status. (Doc. # 201 at 2). The Court agrees. The R&R misapplies McQueary.

         1. Plaintiffs' unsuccessful claims for relief do not prevent them from “prevailing.”

         In addition to a preliminary injunction, Plaintiffs also sought permanent injunctive relief, class certification, a declaratory judgment, trial by jury, and damages. (Doc. # 1 at pp. 10-14). Because Plaintiffs only obtained a preliminary injunction, the R&R reasons that Plaintiffs did not “prevail.” (Doc. # 199 at 5-6). This conclusion turns McQueary on its head. McQueary specifically held that a party who obtained a preliminary injunction on the merits, which materially altered the parties' legal relationship, can establish prevailing-party status without succeeding on every claim. McQueary, 614 F.3d at 598.

         A plaintiff “crosses the threshold to ‘prevailing party' status by succeeding on a single claim, even if he loses on several others and even if that limited success does not grant him the ‘primary relief' he sought.” Id. at 603 (quoting Tex. State Teachers Ass'n, 489 U.S. at 790-91); see also Green Party of Tenn. v. Hargett, 767 F.3d 533, 552 (6th Cir. 2014). “[C]ourts do not look to the number of claims on which the plaintiff succeeded, the magnitude of the relief obtained, or whether the plaintiff obtained the primary relief sought; the question is simply whether the plaintiff has won on at least one claim.” Woods v. Willis, 631 F. App'x 359, 364 (6th Cir. 2015). “The significance of the relief obtained goes only to the amount of fees” a prevailing party may recover, not to whether the party in fact “prevailed.” McQueary, 614 F.3d at 603 (citing Eckerhart, 461 U.S. at 434-35).

         Although McQueary advises courts to “measure the plaintiff's gain based on the relief requested in his complaint” and “not based on the practical significance of the relief obtained, ” context clarifies that this inquiry is directed at determining whether the relief obtained materially altered the parties' legal relationship. Id. at 602 (citing Farrar, 506 U.S. at 111-12). The Sixth Circuit did not instruct courts to score plaintiffs on the total number of successful requests for relief in their complaints, which often include boilerplate language. Rather, McQueary prohibits courts from relying on extraneous practicalities to undermine a party's legal success. For example, courts cannot refuse to conclude that a plaintiff “prevailed” because “statutes he never challenged” would have prevented him from protesting, despite his preliminary-injunction success. Id.

         Therefore, Plaintiffs' “unsuccessful” requests for permanent injunctive relief, class certification, a declaratory judgment, trial by jury, and damages do not prevent them from establishing prevailing-party status.[12] Plaintiffs sought and obtained a preliminary injunction; they have cleared the threshold hurdle of succeeding on a single claim. If the preliminary injunction effected an enduring and material change in the parties' legal relationship, Plaintiffs can establish prevailing-party status.

         2. The vacatur of the preliminary injunctions does not prevent Plaintiffs from “prevailing.”

         Awarding Plaintiffs attorneys' fees does not contradict or frustrate the Sixth Circuit's Order instructing this Court to vacate the preliminary injunctions. “When a case becomes moot, courts often vacate their earlier rulings on the theory that a ruling should not stand when the party opposing it is deprived of a chance to obtain a final ruling on the issue or to seek appellate review of it-due to events outside of the party's control.” McQueary, 614 F.3d at 600. Therefore, vacatur serves the interests of justice by “clear[ing] the path for future relitigation of the issues between the parties.” United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950). It does not, however, prevent a preliminary-injunction winner from “prevailing” or preclude an award of attorneys' fees.

         If it did, the Sixth Circuit could have said so in McQueary. Instead, McQueary specifically addressed vacatur when discussing the “never” approach, and acknowledged that vacatur under Munsingwear would provide a “straightforward approach to the fees question.” McQueary, 614 F.3d at 600. However, the Sixth Circuit explicitly rejected such an approach because it “fails to account for the instances in which a party has prevailed by every measure of victory.” Id. Therefore, awarding attorneys' fees to the Plaintiffs does not “contradict [or] entirely frustrate the purpose of the Sixth Circuit's decision to apply the equitable doctrine of vacatur” to the preliminary injunctions, as Davis suggests. (Doc. # 193 at 23). Instead, permitting vacatur to prevent Plaintiffs from establishing prevailing-party status would be most inequitable. Accordingly, the Court must examine the context and specific facts of this case, and if Plaintiffs have “prevailed, ” award attorneys' fees under § 1988. McQueary, 614 F.3d at 600.

         3. The preliminary injunction materially altered the parties' legal relationship, and that court-ordered change was enduring and irrevocable.

         The contextual and case-specific inquiry required by McQueary is at odds with the R&R's rigid prevailing-party analysis. Although preliminary-injunction winners must fit within precise parameters to establish prevailing-party status, there are many sets of facts that can fall within those boundaries. Therefore, this case need not be exactly like another case where a court held attorneys' fees were warranted. Rather, the Court views McQueary and the cases awarding attorneys' fees to preliminary-injunction winners on a spectrum-with Young, Watson, and Grano on one side-and the McQueary Remand on the other. These cases provide examples, not rules. McQueary, 614 F.3d at 599. Any other interpretation is incompatible with McQueary's contextual and case-specific inquiry. Therefore, the question is: Where does this case fall on that spectrum?

         The unique facts of this case fall somewhere in between Young, Watson, and Grano, and McQueary. The Plaintiffs obtained a preliminary injunction on the merits that materially changed the relationship between the parties, and that court-ordered change gave Plaintiffs what they asked for - marriage licenses.[13] However, like McQueary, the Sixth Circuit held that a subsequent legislative change mooted the case, not Plaintiffs' “court-ordered success and the passage of time.” Id.

         In the McQueary Remand, the district court concluded, and the Sixth Circuit agreed, that the defendants' “voluntary conduct” in repealing the statutes that the plaintiff-protester challenged prevented him from “prevailing” within the meaning of § 1988. McQueary II, 508 F. App'x at 524. But not every legislative change strips a plaintiff of their prevailing-party status. See Hargett, 767 F.3d at 553 (Sixth Circuit held “plaintiffs qualif[ied] as prevailing parties” despite a legislative change). “When plaintiffs clearly succeeded in obtaining the relief sought before the district court and an intervening event rendered the case moot on appeal, plaintiffs are still prevailing parties.” Id. at 552. Thus, despite the eventual legislative change that mooted this case, if Plaintiffs prevailed, they will not be “stripped of their prevailing party status by the legislature's decision to amend the relevant statutes … months after the district court issued its order but before the defendants' appeal was heard.” Id. at 553. Accordingly, the Sixth Circuit's determination that the legislative change rendered this case moot does not prevent Plaintiffs from “prevailing, ” nor does it extinguish the relief the preliminary injunction afforded to Plaintiffs.

         Here, the context and specific facts of this case establish that Plaintiffs “prevailed” within the meaning of § 1988. Plaintiffs' preliminary-injunction success materially altered the legal relationship between Plaintiffs and Davis. Plaintiffs did not achieve “only a symbolic victory.” McQueary, 614 F.3d at 598. The preliminary injunction “directly benefited” Plaintiffs by modifying Davis's behavior towards them. Id. at 601-02. And the material change in the legal relationship between Plaintiffs and Davis was judicially sanctioned. “No one [can] dispute” that Davis refused to issue marriage licenses “in the absence of an injunction.” Id. at 601. The preliminary injunction enjoined Davis from applying her unconstitutional “no marriage licenses” policy and “materially changed [Davis's] behavior toward [Plaintiffs]-at least [eventually].” Id. at 602.

         The R&R relied exclusively on McQueary, and found that the Kentucky General Assembly's voluntary conduct in changing the law in 2016 prevented Plaintiffs from obtaining prevailing-party status. (Doc. # 199). But this case resembles McQueary only at ¶ 30, 000-foot view, where the lines between Plaintiffs' Motion for Preliminary Injunction, Defendant/Third Party Plaintiff Davis's unsuccessful Motion for Preliminary Injunction against the State Defendants, [14] and the eventual change in the law are blurred. This case, through third-party pleading, combined two distinct cases into one. To determine whether Plaintiffs “prevailed, ” the Court must focus exclusively on Plaintiffs' claims.

         Plaintiffs asked the Court to enjoin Davis, in her official capacity, from refusing to issue marriage licenses in violation of their constitutional rights, and the Court did so. (Docs. # 2, 43, and 74). Plaintiffs did not challenge any law, nor did they request changes to the marriage license form.[15] It was Davis who had an issue with the law, which required her to issue marriage licenses, and Davis who sought modification of the marriage license form. (Doc. # 39). Therefore, it is Davis's claims, and not Plaintiffs', that resemble McQueary.

         Davis did not voluntarily change her conduct; “[a]n immediately enforceable preliminary injunction compelled [her] to.” McQueary, 614 F.3d at 599. In fact, Davis refused to change her conduct even after the Court ordered her to, and she was held in contempt and briefly jailed. (Doc. # 75). In her absence, the deputy clerks in the Rowan County Clerk's Office issued marriage licenses to all legally eligible couples in compliance with the preliminary injunction. (Docs. # 84 and 89). After her release from custody, Davis made minor changes to the license forms, but continued to issue marriage licenses. (Doc. # 161). There are no voluntary actions by Davis that would suggest the material alteration of the parties' legal relationship was anything other than court-ordered.

         Even assuming the General Assembly's voluntary conduct in changing the law could be attributed to Davis, [16] the legislative change does not preclude Plaintiffs from “prevailing” within the meaning of § 1988. In McQueary, the defendants voluntarily repealed the laws the plaintiff had challenged, and the legislative change benefited the plaintiff. Put another way, the preliminary injunction prohibited the Commonwealth from enforcing the challenged laws, and “merely catalyze[d] the defendant[s]” into voluntarily repealing the challenged laws. McQueary Remand, 2012 WL 3149344, at *1. In this case, the preliminary injunctions did not merely “catalyze” the Kentucky General Assembly into voluntary legislative action. Buckhannon, 532 U.S. at 602. The preliminary injunction did not require any modification, or prohibit enforcement, of the law; it compelled Davis to comply with the law.

         Moreover, the legislative change did not affect or benefit Plaintiffs in any way; it simply afforded Davis an alternative (and to her, more appeasing) method of complying with the Court's order and the Constitution. The Court recognizes that it must reject any invitation to engage in a “fact-based and speculative inquir[y] into why government bodies altered their conduct.” Tex. State Teachers Ass'n, 489 U.S. at 791. However, the Court is not prevented from examining the substance and the effect of the legislative change.

         The legislative change in McQueary simply “changed the form of [plaintiff's] relief”-a repeal of the challenged laws, as opposed to an injunction prohibiting the enforcement of the laws. O'Neil v. Coughlan, 490 F. App'x 733, 737 (6th Cir. 2012). By contrast, Plaintiffs' action sought to force Davis to comply with the law, obey the Constitution, and cease violating Plaintiffs' fundamental rights. The preliminary injunction accomplished that goal. The legislative change did not render Plaintiffs' legal success unnecessary; it provided Davis an accommodation, [17] mooted the case, and rendered Davis's requested relief unnecessary. Therefore, this case is factually distinguishable from McQueary. Accordingly, the legislative change does not prevent Plaintiffs from “prevailing.”[18]

         Further, the court-ordered change in the parties' legal relationship was enduring and irrevocable. A “preliminary injunction … does not establish prevailing party status if it is ‘reversed, dissolved, or otherwise undone by the final decision in the same case.'” McQueary, 614 F.3d at 597 (quoting Sole, 551 U.S. at 83). Therefore, an adverse decision on the merits would dispose of Plaintiffs' attorneys' fees claim. See Sole, 551 U.S. 74. But here, Plaintiffs' preliminary success was not undermined by a later decision on the merits. This case became moot, which prevented a final decision on the merits. In the absence of a final decision, a preliminary injunction may establish prevailing-party status. McQueary, 614 F.3d at 597. Likewise, the vacation of the preliminary injunction due to mootness does not revoke Plaintiffs' legal relief. Id. at 600. If the Plaintiffs have “prevailed by every measure of victory, ” they can obtain attorneys' fees, even in the face of their vacated preliminary injunction. Id.

         Davis claims the relief Plaintiffs obtained is not permanent because “[r]eality counsels that a substantial number of marriages end, whether by death or divorce, despite the best of intentions.” (Doc. # 193 at 18). Her argument is too clever by half. Every marriage, even the most abiding, will eventually end by death or divorce. That fact does not minimize the permanency of the relief obtained. Under Davis's flawed logic, prevailing-party status would never be obtainable in the marriage context, even if Plaintiffs had been granted a permanent injunction.

         In this case, the Plaintiffs “prevailed by every measure of victory.” The relief Plaintiffs obtained-the ability to secure marriage licenses and marry-was “preliminary” in name only. It is not the “fleeting” success that fails to establish prevailing-party status. After the Court obtained compliance with the Preliminary Injunction Orders, Plaintiffs received marriage licenses.[19] And once the plaintiff-couples received their marriage licenses, their rights were not subject to revocation. A benefit is irrevocable when it cannot be taken away. Plaintiffs obtained marriage ...


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