United States District Court, E.D. Kentucky, Northern Division, Ashland
APRIL MILLER, et al. PLAINTIFFS
KIM DAVIS, individually and in her official capacity, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
L. Bunning United States District Judge
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.
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'
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.
FACTUAL AND PROCEDURAL BACKGROUND
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
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.
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).
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 (collectively “the
State Defendants”). 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.
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).
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,  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).
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).
multiple appeals were pending before the Sixth Circuit, the
Kentucky General Assembly passed Senate Bill 216,
which removed county clerks' names from the prescribed
marriage license forms. Ky. Rev. Stat. Ann. §
402.100. Because the parties agreed that the change
in the law rendered the consolidated appeals moot, the Sixth
Circuit granted Davis's Motion to Dismiss for Lack of
Jurisdiction and dismissed the appeals. (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. 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).
Standard of Review
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.
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
Attorneys' Fees under § 1988
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.” 42 U.S.C.
the pending motion requires the Court to answer a critical
threshold question: Did the Plaintiffs prevail?
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,
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)).
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.
“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.
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.
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,
“Goldilocks” 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.
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.
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
Did Plaintiffs Prevail?
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.
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)).
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.
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.
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
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
Plaintiffs' unsuccessful claims for relief do not prevent
them from “prevailing.”
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.
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).
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.
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. 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
The vacatur of the preliminary injunctions does not prevent
Plaintiffs from “prevailing.”
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
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.
The preliminary injunction materially altered the
parties' legal relationship, and that court-ordered
change was enduring and irrevocable.
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
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. 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.
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.
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
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,  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.
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. 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.
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.
assuming the General Assembly's voluntary conduct in
changing the law could be attributed to Davis,  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.
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
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,  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
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.
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.
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. 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 ...