Makekau v. State

Citation943 F.3d 1200
Decision Date26 November 2019
Docket NumberNo. 17-16360,17-16360
Parties 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.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

943 F.3d 1200

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

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 21, 2019 Honolulu, Hawaii
Filed November 26, 2019


GRABER, Circuit Judge:

943 F.3d 1202

We must decide whether a plaintiff who obtains a preliminary injunction under the All Writs Act, 28 U.S.C. § 1651(a), qualifies 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. We hold that the answer is "no."

BACKGROUND

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 pools 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 actors by conducting the 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. Plaintiffs moved for a preliminary injunction to prevent Defendants "from undertaking certain voter registration activities and

943 F.3d 1203

from calling or holding racially-exclusive elections for Native Hawaiians."

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 Supreme 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 disposition 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 , ––– U.S. ––––, 136 S. Ct. 581, 581, 193 L.Ed.2d 464 (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 that motion. Akina v. Hawaii , ––– U.S. ––––, 136 S. Ct. 922, 193 L.Ed.2d 786 (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 Federal Rule of Civil Procedure 41(a)(2). Plaintiffs subsequently 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 Defendants to cancel the challenged election and referendum. The district court denied Plaintiffs’ motion, holding that Plaintiffs were not a "prevailing party" within the meaning of the statute.

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, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) ). Relief "on

943 F.3d 1204

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, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) ).

Accordingly, two questions drive the analysis 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, 28 U.S.C. § 1651(a), and "the legal rights at issue are indisputably clear," Hobby Lobby Stores, Inc. v. Sebelius , 568 U.S. 1401, 1403, 133 S.Ct. 641, 184 L.Ed.2d 448 (2012) (Sotomayor, J., in chambers) (internal quotation marks omitted). Plaintiffs contend that the Supreme Court always must consider the merits when deciding whether to issue an injunction under the All Writs Act, whether the Court grants or denies relief. Not so. In several prior cases, the Supreme Court has expressly disavowed any view of the merits when addressing a party’s request for an All Writs Act injunction. See, e.g. , Wheaton College v. Burwell , 573 U.S. 958, 134 S. Ct. 2806, 2807, 189 L.Ed.2d 856 (2014) (granting relief and stating that "this order should not be construed as an expression of the Court’s views on the merits"); Little Sisters of the Poor Home for the Aged v. Sebelius , 571 U.S. 1171, 134 S. Ct. 1022, 1022, 187 L.Ed.2d 867 (2014) (Mem.) (same); Hobby Lobby , 568 U.S. at 1403, 133 S.Ct. 641 (denying relief and stating: "First, whatever the ultimate merits of the applicants’ claims, their entitlement to relief is not ‘indisputably clear.’ " (emphasis added)).

At oral argument, Plaintiffs relied on Dunn v. McNabb , ––– U.S. ––––, 138 S. Ct. 369...

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