Planned Parenthood Sw. Ohio Region v. Dewine

• Decision Date: 21 July 2017
• Docket Number: Case No. 1:04-cv-00493
• Court: U.S. District Court — Southern District of Ohio
• Parties: PLANNED PARENTHOOD SOUTHWEST OHIO REGION, et al., Plaintiffs, v. MIKE DEWINE, et al., Defendants.

PLANNED PARENTHOOD SOUTHWEST OHIO REGION, et al., Plaintiffs, v. MIKE DEWINE, et al., Defendants.

Case No. 1:04-cv-00493

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

July 21, 2017

Judge Susan J. Dlott

ORDER GRANTING PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND COSTS

In this civil action, Plaintiffs challenged the constitutionality of Ohio Revised Code ("O.R.C.") § 2919.123 (the "Act") under 42 U.S.C. § 1983.¹ The Act requires that a physician providing RU-486 (mifepristone) to another person "for the purpose of inducing an abortion" must do so "in accordance with all provisions of federal law." O.R.C. § 2919.123(A). As construed by the Ohio Supreme Court, this language mandates that a physician may provide mifepristone "only by using the dosage indications and treatment protocols expressly approved by the [U.S. Food and Drug Administration] in the drug's final printed labeling as incorporated by the drug approval letter." Cordray v. Planned Parenthood Cincinnati Region, 122 Ohio St. 3d 361, 368, 911 N.E.2d 871, 879, 2009-Ohio-2972, ¶ 35 (2009).

Subsequent action by the U.S. Food and Drug Administration ("FDA")—nearly twelve years following the initiation of this lawsuit on August 2, 2004—mooted the proceedings and resulted in a voluntary dismissal of this case without prejudice. (Doc. 206.) Now before the Court is Plaintiffs' Motion for Attorneys' Fees and Costs (Doc. 91), as supplemented (Doc. 209),and the responses in opposition from the Ohio Attorney General (Docs. 99, 212) and the Prosecuting Attorney for Hamilton County, Ohio (Doc. 211).² For the reasons that follow, the Court will GRANT Plaintiffs' Motion.

I. BACKGROUND

In Orders at various junctures throughout this case's long history, the Court has provided detailed summations of the facts and issues presented. The Court will not reiterate the case's entire trajectory here, but will summarize its history to the extent relevant to this ruling.

Plaintiffs' First Amended Complaint (Doc. 18) asserted four Fourteenth Amendment Due Process violation counts based upon the Act's unconstitutional vagueness, its violation of bodily integrity, its failure to include an exception for the health or life of the woman, and the unconstitutional burden it imposed on a woman's right to seek an abortion. (Doc. 18 at PageID 273-74.) On September 22, 2004, this Court entered an Order preliminarily enjoining the Act. Planned Parenthood Cincinnati Region v. Taft, 337 F. Supp. 2d 1040 (S.D. Ohio 2004) (Doc. 36) ("Taft I"). On appeal from that ruling, the Sixth Circuit issued an order on April 13, 2006 that "affirm[ed] the preliminary injunction insofar as it prohibits unconstitutional applications of the Act, but vacate[d] the preliminary injunction insofar as it prohibits constitutional applications of the Act[,]" and remanded the case for further proceedings related to the appropriate scope of the injunction. Planned Parenthood Cincinnati Region v. Taft, 444 F.3d 502 (6th Cir. 2006) ("Taft II").³ On remand, this Court found the Act unconstitutionally vague and therefore "permanently enjoin[ed] Defendants from enforcing any provisions of the Act." PlannedParenthood Cincinnati Region v. Taft, 459 F. Supp. 2d 626, 628 (S.D. Ohio 2006) (Doc. 81) ("Taft III").

Defendants appealed Taft III. On June 23, 2008, the Sixth Circuit issued an order that sua sponte certified two related questions to the Ohio Supreme Court.⁴ Planned Parenthood Cincinnati Region v. Strickland, 531 F.3d 406 (6th Cir. 2008) ("Strickland I"). Upon the Ohio Supreme Court's resolution of these questions,⁵ the Sixth Circuit vacated the permanent injunction ordered in Taft III, but expressly affirmed its continuing approval of the preliminary injunction as articulated in Taft II and again remanded the case for reconsideration of the scope of the injunction in light of its opinion and the Ohio Supreme Court's opinion. Planned Parenthood Southwest Ohio Region v. Strickland, 331 F. App'x 387 (6th Cir. 2009) ("Strickland II"). While dispositive motions were pending, this Court issued an Order that clarified that the scope of the preliminary injunction initially issued—narrowed by Taft II—to prohibit enforcement of the Act to the extent that enforcement would foreclose an exception for thehealth or life of the woman. Planned Parenthood Cincinnati Region v. DeWine, No. 1:04-CV-493, 2011 WL 463093 (S.D. Ohio Feb. 4, 2011) (Doc. 158).

Shortly following this clarifying Order, the Court denied Plaintiffs' renewed Motion for Summary Judgment and granted Defendants' Motion for Summary Judgment, both related to the Act's unconstitutional vagueness, in view of the Ohio Supreme Court's Cordray decision. Planned Parenthood Southwest Ohio Region v. DeWine, No. 1:04-CV-493, 2011 WL 9158009 (S.D. Ohio May 23, 2011) (Doc. 161 at PageID 2636-2648). Defendants had also moved for summary judgment as related to Plaintiffs' three remaining due process arguments: the Act's violation of bodily integrity, its lack of exception for the health or life of the woman, and the unconstitutional burden it imposed upon a woman's right to an abortion. The Court granted Defendants' Motion as to the bodily integrity and unconstitutional burden counts, but denied it as to the health or life of the woman count. Id. at PageID 2648-2656.

While the history recounted above spans nearly seven years, Plaintiffs limit their attorneys' fees and costs request to approximately the first eighteen months of this case. Namely, they seek recovery of those fees and costs incurred in connection with securing the initial preliminary injunction in Taft I through the first appeal thereof⁶—as well as the fees and costs associated with the filing and oral argument of the present Motion, as supplemented.⁷

II. STANDARD OF LAW

Under the common law "American Rule," attorneys' fees generally are not awarded to prevailing parties absent explicit statutory authority. McQueary v. Conway, 614 F.3d 591 (6thCir. 2010) (internal quotation omitted). Just such an explicit exception, however, is present here. Attorneys' fees incurred in litigation to enforce § 1983 may be recovered, in the Court's discretion, by the "prevailing party." 42 U.S.C. § 1988(b). "Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit . . . . [T]he most critical factor is the degree of success obtained." Hensley v. Eckerhart, 103 S.Ct. 1933, 1941, 461 U.S. 424, 436 (1983). This section was enacted to "ensure 'effective access to the judicial process' for persons with civil rights grievances." Hensley, 461 U.S. at 429 (quoting H.R.Rep. No. 94-1558, p. 1 (1976)). Cognizant of this purpose, courts avoid letting the fees and costs inquiry split off into "satellite," "fact-based and speculative inquiries" that compound the dispute between the parties. McQueary, 614 F.3d at 598; Hensley, 461 U.S. at 437 ("A request for attorney's fees should not result in a second major litigation.").

The meaning of the term "prevailing party" is vigorously disputed by the parties. Case law interpreting this provision—in the absence of a clear-cut "prevailing party" in the traditional sense of the term—acknowledges a "thorny" analysis that requires a "contextual and case-specific inquiry." McQueary, 614 F.3d at 596, 601. The Court therefore turns to the application of this case law to the circumstances at bar.

III. ANALYSIS

The resolution of Plaintiffs' Motion requires a two-step analysis. First, the Court must decide whether Plaintiffs are eligible to claim fees and costs under § 1988 as a "prevailing party." If so, the Court must decide whether the requested fees are reasonable. The Court addresses each issue below.

A. Are Plaintiffs a "Prevailing Party" for Purposes of § 1988?

Plaintiffs' fee request must be evaluated in the context of the Sixth Circuit's declaration that "when a claimant wins a preliminary injunction and nothing more, that usually will not suffice to obtain fees under § 1988." Id. at 604 (emphasis added). In the same opinion, however, the Sixth Circuit acknowledged that a litigant obtains "prevailing party" status for purposes of § 1988 "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; Hensley, 461 U.S. at 433 (the threshold under § 1988 is "generous," and a party is considered prevailing "if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.") (quotation omitted). Like here, where there has not been a final disposition on the merits, a district court's task is to reconcile the tension between these two instructions and to determine whether an exception to the general rule is appropriate. See McQueary, 614 F.3d at 604.

Supreme Court precedent makes clear that any asserted catalytic effect of Plaintiffs' lawsuit short of a final merits determination (e.g., the FDA's decision to change the labeling for RU-486, which mooted the controversy at bar) is not sufficient in and of itself to warrant fees under § 1988. Id. at 597 (discussing Buckhannon Bd. & Care Home v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 121 S.Ct. 1835 (2001)). Instead, if fees are appropriate at all in such a case, it is clear that a plaintiff's success—albeit preliminary—must "create a lasting change in the legal relationship between the parties." Id. at 601; Sole v. T.A. Wyner, 551 U.S. 74, 78, 127 S.Ct. 2188, 2192 (2007) ("a transient victory at the threshold of an action" does not warrant fees); O'Neill v. Coughlan, 490 F. App'x 733, 735 (6th Cir. 2012) (preliminary relief may warrant "prevailing party" status only if the injunction represents an unambiguousindication of probable success on the merits, and not merely a maintenance of the status quo.) (internal quotation omitted). Practical success alone may not be enough. Put differently, a party must demonstrate...