Kealii Makekau v. State of Hawaii

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KEALII MAKEKAU; JOSEPH KENT; No. 17-16360
YOSHIMASA SEAN MITSUI; PEDRO
KANA‘E GAPERO; MELISSA D.C. No.
LEINA‘ALA MONIZ, 1:15-cv-00322-
Plaintiffs-Appellants, JMS-RLP

v.
OPINION
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
2 MAKEKAU V. STATE OF HAWAI‘I

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.

Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, Chief District Judge, Presiding

Argued and Submitted October 21, 2019
Honolulu, Hawaii

Filed November 26, 2019

Before: Susan P. Graber, Milan D. Smith, Jr.,
and Paul J. Watford, Circuit Judges.

Opinion by Judge Graber;
Concurrence by Judge Milan D. Smith, Jr.
 MAKEKAU V. STATE OF HAWAI‘I 3

SUMMARY*

Attorney Fees

Affirming the district court’s denial of attorney fees under
42 U.S.C. § 1988, the panel rejected Appellants’ assertion
that they were the prevailing parties because the Supreme
Court had entered, under the All Writs Act, an injunction
pending appeal in their civil rights action.

In the underlying action, Appellants challenged a planned
election in Hawaii that restricted the pools of delegates and
voters to, among other requirements, people who qualified as
Native Hawaiians. Appellants sought a preliminary
injunction to prevent Appellees from “undertaking certain
voter registration activities and from calling or holding
racially-exclusive elections for Native Hawaiians.” The
district court denied the injunction and this Court denied
Appellants’ motion for an injunction pending appeal. The
United States Supreme Court subsequently granted
Appellants’ application for an injunction pending appeal
under the All Writs Act and Appellees cancelled the delegate
election and ratification vote. Appellants’ pending appeal in
this Court was subsequently determined to be moot, and the
district court granted Appellants’ motion to voluntarily
dismiss their complaint without prejudice. Appellants then
sought attorney fees under 42 U.S.C. § 1988, arguing that
they were the “prevailing party” because they obtained an
injunction from the Supreme Court that caused Appellees to
cancel the challenged election and referendum.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 MAKEKAU V. STATE OF HAWAI‘I

The panel held that a plaintiff who obtains a preliminary
injunction under the All Writs Act, 28 U.S.C. § 1651(a), does
not qualify as a “prevailing party” for fee-shifting purposes
by virtue of that injunction, where the order granting
injunctive relief makes no mention of the merits of the
plaintiff’s claims. The panel concluded that in this case there
was simply no indication that the Supreme Court’s injunction
order addressed the merits. Moreover, the panel noted that
Appellants sought (and received) a voluntary dismissal
without prejudice in the district court—the opposite of an
adjudication on the merits. The panel concluded that
Appellants were not the prevailing parties.

Concurring in the result, Judge M. Smith wrote separately
to express his view that the key legal issues in this case were
close to equipoise. Judge Smith stated that were it not for the
uncertainty surrounding the standard under which the
Supreme Court grants injunctions under the All Writs Act, he
would hold that Appellants were the prevailing parties and
entitled to attorney fees.

COUNSEL

Robert D. Popper (argued), Paul J. Orfanedes, Lauren M.
Burke, and Chris Fedeli, Judicial Watch Inc., Washington,
D.C.; Michael A. Lilly, Ning Lilly & Jones, Honolulu,
Hawai‘i; H. Christopher Coates, Law Offices of
H. Christopher Coates, Charleston, South Carolina; for
Plaintiffs-Appellants.

Robert T. Nakatsuji (argued) and Donna H. Kalama, Deputy
Attorneys General; Russell A. Suzuki, Attorney General;
 MAKEKAU V. STATE OF HAWAI‘I 5

Department of the Attorney General, Honolulu, Hawai‘i; for
Defendants-Appellees State of Hawaii and David Y. Ige.

Kurt W. Klein (argued), Robert G. Klein, and Jordan K.
Inafuku, McCorriston Miller Mukai MacKinnon LLP,
Honolulu, Hawai‘i; Kannon K. Shanmugam and Ellen E.
Oberwetter, Williams & Connolly LLP, Washington, D.C.;
for Defendants-Appellees Robert K. Lindsey Jr., 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, Kamana‘opono Crabbe, John D.
Waihe‘e III, Na‘alehu Anthony, Lei Kihoi, Robin Danner,
Mahealani Wendt, and Clyde W. Namu‘o.

Miyoko T. Pettit-Toledo (argued) and David J. Minkin,
McCorriston Miller Mukai MacKinnon LLP, Honolulu,
Hawai‘i, for Defendant-Appellee Na‘i Aupuni Foundation.

William Meheula and Natasha L.N. Baldauf, Honolulu,
Hawai‘i, for Defendant-Appellee The Akamai Foundation.

OPINION

GRABER, Circuit Judge:

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.”
6 MAKEKAU V. STATE OF HAWAI‘I

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
 MAKEKAU V. STATE OF HAWAI‘I 7

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 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.
8 MAKEKAU V. STATE OF HAWAI‘I

Justice Ginsburg, Justice Breyer, Justice
Sotomayor, and Justice Kagan would deny the
application.

Akina v. Hawaii, 136 S. Ct. 581, 581 (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, 136 S. Ct. 922 (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’
 MAKEKAU V. STATE OF HAWAI‘I 9

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 (1992)). Relief “on 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 (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
10 MAKEKAU V. STATE OF HAWAI‘I

at issue are indisputably clear,” Hobby Lobby Stores, Inc. v.
Sebelius, 568 U.S. 1401, 1403 (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, 134 S. Ct. 2806, 2807 (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, 134 S. Ct.
1022, 1022 (2014) (Mem.) (same); Hobby Lobby, 568 U.S.
at 1403 (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,
138 S. Ct. 369 (2017) (Mem.), for the proposition that the All
Writs Act requires a court to consider the merits before
granting relief. There, the Supreme Court held that the All
Writs Act “does not excuse a court from making [certain]
findings” before enjoining an inmate’s execution, because
“[i]nmates seeking time to challenge the manner in which the
State plans to execute them must satisfy all of the
requirements for a stay, including a showing of a significant
possibility of success on the merits.” Id. at 369 (internal
quotation marks omitted). Read in context, Dunn stands only
for the unremarkable proposition that the All Writs Act does
not erase separate legal requirements for a given type of
claim.
 MAKEKAU V. STATE OF HAWAI‘I 11

Inmates seeking a stay of execution always must show “a
significant possibility of success on the merits.” Hill v.
McDonough, 547 U.S. 573, 584 (2006). But that requirement
of a merits showing has nothing to do with the All Writs Act;
it applies no matter the vehicle for an inmate’s claim. See,
e.g., id. (addressing a 42 U.S.C. § 1983 claim for a stay of
execution and stating that the inmate “must satisfy all of the
requirements for a stay, including a showing of a significant
possibility of success on the merits”); Barefoot v. Estelle,
463 U.S. 880, 895 (1983) (stating that, to obtain a stay of
execution, a habeas petitioner needed to show both “a
reasonable probability that four members of the Court would
consider the underlying issue sufficiently meritorious for the
grant of certiorari” and “a significant possibility of reversal
of the lower court’s decision”). This case does not involve an
inmate seeking a stay of execution (or any party seeking a
stay of anything), so Dunn cannot bear the weight that
Plaintiffs ask it to carry.

Moreover, in “appropriate circumstances,” a court may
direct an order under the All Writs Act “to persons who,
though not parties to the original action or engaged in
wrongdoing, are in a position to frustrate the implementation
of a court order or the proper administration of justice.”
United States v. N.Y. Tel. Co., 434 U.S. 159, 174 (1977).
Plainly, an order directed to a nonparty who engaged in no
wrongdoing would stem from considerations separate from
the merits of a case.

Thus, contrary to Plaintiffs’ view, the mere fact that the
injunction order issued under the All Writs Act does not
prove that the Supreme Court found Plaintiffs’ claims to be
even potentially meritorious. There is simply no indication
that the injunction order addressed the merits. Aside from the
12 MAKEKAU V. STATE OF HAWAI‘I

brevity of the order, the Supreme Court later denied
Plaintiffs’ contempt motion in a one-sentence order, which
strongly suggests that the injunction order was not on the
merits. And Plaintiffs sought (and received) a voluntary
dismissal without prejudice in the district court—“the
opposite” of an adjudication on the merits. See Semtek Int’l
Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505 (2001)
(stating that Rule 41(a), “in discussing the effect of voluntary
dismissal by the plaintiff, makes clear that an ‘adjudication
upon the merits’ is the opposite of a ‘dismissal without
prejudice’”). In short, Plaintiffs are not prevailing parties.

AFFIRMED.

M. SMITH, Circuit Judge, concurring in the result:

I write separately to express my view that the key legal
issues in this case are close to equipoise. I differ from the
majority because I find that the “on the merits” analysis only
narrowly disfavors Appellants. I would find that the
“sufficiently enduring relief” analysis favors Appellants.

I briefly recount the most essential facts. Appellants, five
registered Hawaii voters, sued the State of Hawaii, various
state officers including the trustees and director of the Office
of Hawaiian Affairs (OHA), and the nonprofit entities Na‘i
Aupuni and the Akamai Foundation, on constitutional and
statutory grounds alleging race- and viewpoint-based voting
discrimination. The Akina lawsuit challenged efforts by Na‘i
Aupuni—using grant funds awarded by, and a voter roll of
“qualified Native Hawaiians” maintained by, OHA—to hold
 MAKEKAU V. STATE OF HAWAI‘I 13

a delegate election, a convention, and a ratification election
for purposes of Native Hawaiian self-governance.

Appellants unsuccessfully sought a preliminary injunction
from the district court, and then an injunction pending
interlocutory appeal from our court, which denied the
injunctions under Winter v. NRDC, 555 U.S. 7 (2008),1
primarily for failure to show likelihood of proving that Na‘i
Aupuni was a state actor. Akina v. Hawaii, 141 F. Supp. 3d
1106, 1125–35 (D. Haw. 2015); Akina v. Hawaii, 835 F.3d
1003, 1009 (9th Cir. 2016). As a result, voting in the delegate
election began as scheduled.

Plaintiffs then applied to Justice Kennedy for an
emergency interlocutory injunction. With a few days of
voting remaining, Justice Kennedy enjoined ballot counting
and certification of winners pending further order of the
Court, offering no explanation for his reasoning. Id. Na‘i
Aupuni publicly announced the injunction and officially
extended the voting deadline. On referral, a divided Supreme
Court re-entered the same injunction pending resolution of
the appeal to our court, again offering no explanation. Akina
v. Hawaii, 136 S. Ct. 581 (2015) (mem.). Shortly thereafter,
Na‘i Aupuni cancelled the delegate election with several days
of voting remaining, declared that the ballots would not be
counted, and invited all of the delegate candidates to a
convention. Appellants filed a motion for civil contempt with
the Supreme Court, arguing that Na‘i Aupuni’s invitation was
tantamount to certifying all of the candidates as winners. The

1
Winter considers (1) the plaintiff’s likelihood of prevailing on the
merits, (2) whether the plaintiff will suffer irreparable harm, (3) the
balance of equities amongst the parties, and (4) the public interest.
555 U.S. at 20–22.
14 MAKEKAU V. STATE OF HAWAI‘I

Court summarily denied the motion. Akina v. Hawaii, 136 S.
Ct. 922 (2016) (mem.). Na‘i Aupuni held the convention and
the participants produced a document.

Na‘i Aupuni then initiated efforts to hold a ratification
election, again using the disputed voter roll. Appellants
submitted briefing to our court citing the upcoming
ratification election as evidence that the appeal was not moot.
Before we issued any decision, Na‘i Aupuni canceled the
ratification election, and thereafter dissolved as an entity.
This court dismissed the appeal as moot. Akina, 835 F.3d
at 1010–11.

Appellants voluntarily dismissed their complaint without
prejudice and moved for attorney’s fees as the “prevailing
party” in a civil rights lawsuit. The district court denied the
motion, concluding that the writ Appellants obtained was
merely a status quo injunction driven by considerations
regarding irreparable harm, and that it was not based on—as
required for prevailing party status—the merits of Appellants’
claims. This appeal followed.

I. On the Merits

In certain civil rights actions, “the court, in its discretion,
may allow the prevailing party . . . a reasonable attorney’s fee
as part of the costs.” 42 U.S.C. § 1988. To determine
whether a preliminary injunction without a final judgment
entitles a plaintiff to prevailing party status, we ask two
questions: “First, is the court’s preliminary injunction ruling
sufficiently ‘on the merits’ to satisfy Buckhannon’s ‘judicial
imprimatur’ requirement? And second, has the plaintiff
obtained relief sufficiently enduring to satisfy the ‘material
alteration of the parties’ legal relationship’ requirement?”
 MAKEKAU V. STATE OF HAWAI‘I 15

Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712, 716 (9th
Cir. 2013) (quoting Buckhannon Bd. & Care Home, Inc. v. W.
Va. Dep’t of Health & Human Res., 532 U.S. 598, 605
(2001)).

I begin with the first question. “Judicial imprimatur” can
take the form of “an enforceable judgment on the merits,” “a
court-ordered consent decree,” or “[o]ther court-approved
actions . . . , provided they entail a judicial determination that
the claims on which the plaintiff obtains relief are potentially
meritorious.” Id. at 715 (emphasis added); see also Jensen v.
City of San Jose, 806 F.2d 899, 900 (9th Cir. 1986) (“[T]he
benefit a party achieves must come from success on the
merits of a civil rights claim, not from success on procedural
or collateral issues.”).

The judicial determinations on which Appellants stake
their claim for attorney’s fees are the injunctions entered by
Justice Kennedy and subsequently by the full Supreme Court
pursuant to the All Writs Act, 28 U.S.C. § 1651(a).
Appellants’ claim narrowly fails because there is a reasonable
argument that those injunctions did not involve a judicial
determination that Appellants’ claims were “potentially
meritorious.” Higher Taste, 717 F.3d at 715. Fundamentally,
it is unresolved whether such writs require an assessment of
the merits.

A. Writs of Interlocutory Injunction

The All Writs Act authorizes federal courts to “issue all
writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
16 MAKEKAU V. STATE OF HAWAI‘I

law.” 28 U.S.C. § 1651(a).2 Relevant to this case is the
§ 1651(a) writ for an interlocutory injunction.

The first Supreme Court precedent recognizing the power
of the federal courts to issue § 1651(a) writs “in the form of
compulsory injunctions aimed at private parties” seems to
have been FTC v. Dean Foods Co., 384 U.S. 597, 605 & n.3
(1966) (upholding writ enjoining consummation of merger
pending final review by FTC). The Court justified an
appellate court’s writ in that case based on a threat to the
court’s jurisdiction, and notably did not discuss the
underlying merits or any other factor typically relevant to
preliminary injunctions. See id. at 605.3

By contrast, in Sampson v. Murray, 415 U.S. 61 (1974),
the Court readily assumed that the four preliminary injunction
factors apply to status quo injunctions granted under the All
Writs Act, and held that a heightened version of those factors
should have applied in the context at hand. See id. at 83–84
& n.53 (recognizing the law governing available relief in the

2
This authorization survives nearly unchanged from the Judiciary Act
of 1789. See Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 73, 81–82. For
greater historical detail pertaining to the discussion that follows, through
note 4, see Samuel I. Ferenc, Note, Clear Rights and Worthy Claimants:
Judicial Intervention in Administrative Action Under the All Writs Act,
118 Colum. L. Rev. 127, 136–62 (2018).
3
This omission cannot be explained away as simply pre-dating the
Court’s 2008 articulation of the four factors in Winter. As early as Ex
Parte Young, the Court recognized that “no [preliminary] injunction ought
to be granted unless in a case reasonably free from doubt,” and
acknowledged that the injunction at hand was justified by “great and
irreparable injury” to the complainants. 209 U.S. 123, 166–67 (1908).
See generally Thomas R. Lee, Preliminary Injunctions and the Status
Quo, 58. Wash. & Lee L. Rev. 109 (2001).
 MAKEKAU V. STATE OF HAWAI‘I 17

federal employment dispute context). However, the Court
specifically held that frustration of the court’s jurisdiction
was not at stake as it was in Dean Foods. Id. at 78–80.
Murray did not clarify whether an injunction that is justified
by jurisdictional threats might also need to satisfy the
traditional injunction factors, if not the heightened version the
Court ultimately applied in that case.4

Around the same time as Murray, the Justices of the
Supreme Court began developing a terse body of case law
applying a unique “indisputably clear” standard to § 1651(a)
interlocutory injunction applications addressed to individual
Justices. See Communist Party of Ind. v. Whitcomb, 409 U.S.
1235, 1235 (1972) (Rehnquist, J., in chambers) (“the
applicants’ right to relief must be indisputably clear”) (citing
no authority). Justice Scalia placed this standard in the
context of other authority in Ohio Citizens for Responsible
Energy, Inc. v. Nuclear Regulatory Commission, 479 U.S.
1312 (1986) (Scalia, J., in chambers):

A Circuit Justice’s issuance of [a § 1651(a)
writ of injunction]—which, unlike a . . . stay,

4
Different circuits have supplied different answers to this question at
different times. See, e.g., United States v. BNS Inc., 848 F.2d 945, 947
(9th Cir. 1988) (requiring both jurisdictional threat and irreparable harm);
Wagner v. Taylor, 836 F.2d 566, 571, 575–76 (D.C. Cir. 1987) (requiring
both jurisdictional threat and all four preliminary injunction factors);
V.N.A. of Greater Tift County Inc. v. Heckler, 711 F.2d 1020, 1030 (11th
Cir. 1983) (requiring both jurisdictional threat and a heightened showing
on all four preliminary injunction factors); Klay v. United Healthgroup,
376 F.3d 1092, 1100, 1101–02 n.13 (11th Cir. 2004) (asserting that
jurisdictionally justified writs require no analysis of the preliminary
injunction factors, unless the writ is “in reality” a preliminary injunction),
called into doubt by Alabama v. U.S. Army Corps of Engineers, 424 F.3d
1117, 1131 n.20 (11th Cir. 2005).
18 MAKEKAU V. STATE OF HAWAI‘I

does not simply suspend judicial alteration of
the status quo but grants judicial intervention
that has been withheld by lower
courts—demands a significantly higher
justification than that described in the . . . stay
cases cited by the applicant. The Circuit
Justice’s injunctive power is to be used
“sparingly and only in the most critical and
exigent circumstances,” and only where the
legal rights at issue are “indisputably clear.”
Moreover, the applicant must demonstrate
that the injunctive relief is “necessary or
appropriate in aid of [the Court’s]
jurisdictio[n].”

Id. at 1313 (emphasis added) (citations omitted) (first quoting
Fishman v. Schaffer, 429 U.S. 1325, 1326 (1976) (Marshall,
J., in chambers), second quoting Communist Party, 409 U.S.
at 1235, third quoting 28 U.S.C. § 1651(a)).

Though many individual Justice opinions have denied
§ 1651(a) interlocutory injunctions based on the “indisputably
clear” standard,5 most relevant to the case at hand are the few

5
See, e.g., Brown v. Gilmore, 533 U.S. 1301, 1303–04 (2001)
(Rehnquist, C.J., in chambers) (denying the writ because it was unclear
whether Virginia’s “minute of silence” statute had enough of a secular
purpose to distinguish it from an Alabama statute previously invalidated
as mandating school prayer) (citing Wallace v. Jaffree, 472 U.S. 38, 56
(1985)); Lux v. Rodrigues, 561 U.S. 1306, 1307 (2010) (Roberts, C.J., in
chambers) (denying the writ because it was unclear whether Virginia’s
residency requirement for a petition signature’s witness was
distinguishable from Colorado petition circulation restrictions previously
invalidated as violating free speech rights) (citing Meyer v. Grant,
486 U.S. 414, 422 (1988); Buckley v. Am. Const. L. Found., Inc., 525 U.S.
 MAKEKAU V. STATE OF HAWAI‘I 19

and far between cases in which a Justice or the Court has
actually granted the writ. No such case, as far as I could find,
has ever applied the “indisputably clear” standard.

The most recent § 1651(a) interlocutory injunction of
which I am aware is the 2015 writ granted to Appellants.
Akina, 136 S. Ct. at 581. As is precisely at issue here, that
order did not articulate the standard under which it was
granted, nor did the immediately preceding writ issued by
Justice Kennedy.

The same can be said of the two similar writs granted in
2014. In both Wheaton College v. Burwell, 134 S. Ct. 2806
(2014) (mem.), and Little Sisters of the Poor Home for the
Aged v. Sebelius, 571 U.S. 1171 (2014) (mem.), the Court
granted a § 1651(a) writ enjoining the federal government
from requiring the plaintiff religious nonprofit entities to fill
out and send a form to their third party insurers regarding
their objections to the Affordable Care Act’s contraceptive
coverage mandate. 134 S. Ct. at 2807; 571 U.S. at 1171.
Neither memorandum order hinted as to the standard the
Court had applied in granting the writ. In both cases, the
Court expressly directed that the order “not be construed as
an expression of the Court’s views on the merits.” 134 S. Ct.
at 2807; 571 U.S. at 1171.

182, 186–87 (1999)); Hobby Lobby Stores, Inc. v. Sebelius, 568 U.S.
1401, 1403 (2012) (Sotomayor, J., in chambers) (denying writ because the
Court had not yet decided whether “closely held for-profit corporations
and their controlling shareholders” have religious free exercise rights). I
disagree with the majority that any of these cases can be interpreted as not
considering the merits. See id. (disclaiming any determination of the
“ultimate merits” while nevertheless considering the merits in order to
recognize that the merits were not “indisputably clear”).
20 MAKEKAU V. STATE OF HAWAI‘I

Although Little Sisters was decided unanimously, a three-
Justice dissent criticized the Wheaton College majority for
failing to apply the “indisputably clear” standard. 134 S. Ct.
at 2808 (Sotomayor, J., dissenting) (quoting Turner
Broadcasting, 507 U.S. at 1303).6 Notably, the dissent cited
no precedent in which a single Justice or the full Court had
granted a writ after applying the “indisputably clear”
standard. See id. at 2808, 2810–11 & n.3.7

Taking the Court at its word, Wheaton College and Little
Sisters demonstrate that the Court has authority to issue
§ 1651(a) interlocutory injunctions without applying the
“indisputably clear” standard (whatever that standard may
entail), and indeed without reaching the merits of the
underlying legal challenge.8

6
The dissent distinguished Little Sisters because, “whatever the
merits of that unusual order, it did not affect any individual’s access to
contraceptive coverage.” Id. at 2814 n.6 (noting that Little Sisters’ third
party insurer was a “church plan” that also had no obligation to provide
contraceptive coverage).
7
Prior to Little Sisters, the most recent case I am aware of in which
a single Justice or the Court granted a § 1651(a) interlocutory injunction
was Lucas v. Townsend, 486 U.S. 1301, 1304 (1988) (Kennedy, J., in
chambers). Despite ruling two years after Ohio Citizens, Justice Kennedy
in Lucas applied the test typically applied to a § 1651(a) application for a
stay pending certiorari, including “a fair prospect that five Justices will
conclude that the case was erroneously decided below.” Id. Given the
intervening three decades, it is unlikely that the Court was tacitly applying
this stay standard in Little Sisters, Wheaton College, or Akina.
8
I agree with the majority that Dunn v. McNabb, 138 S. Ct. 369
(2017) (mem.) does not prove that the Court or any individual Justice is
required to find “a significant possibility of success on the merits” before
granting a § 1651(a) interlocutory injunction outside the context of capital
punishment stays. Id. at 369 (quoting Hill v. McDonough, 547 U.S. 573,
 MAKEKAU V. STATE OF HAWAI‘I 21

B. Application

The delegate election and related self-governance
processes challenged in the Akina lawsuit began to unravel
only after Justice Kennedy and then the full Court issued
writs of injunction. I have no trouble thus concluding that
“judicial imprimatur” was present. Higher Taste, 717 F.3d
at 716. The difficulty in this case comes from the uncertainty
regarding whether that “judicial imprimatur” represented a
finding that Appellants’ civil rights claims were “potentially
meritorious.” Id. at 715 (quoting Buckhannon, 532 U.S.
at 606).

Because I find little indication that the Supreme Court
was applying the Winter framework, I do not attempt to
reverse engineer the Court’s likely assessment of the Winter
factors (which would have to have been contrary to this
court’s assessment when we denied an interlocutory
injunction). Nor will I attempt to evaluate whether the
Court’s jurisdiction was genuinely at stake, as I am aware of
no Supreme Court precedent clearly endorsing a distinction
between jurisdictional and merits-based § 1651(a)
injunctions.

If Justice Kennedy or the Court had said anything at all
about the merits of Appellants’ claims, even without making
an express finding of “probable success on the merits,” I
might have some basis on which to state confidently that
Justice Kennedy or the Court considered the claims at least
“potentially meritorious.” Id. But, given the Court’s clearly
expressed authority to avoid the merits entirely in Wheaton
College and Little Sisters, there is too much uncertainty in the

584 (2016)).
22 MAKEKAU V. STATE OF HAWAI‘I

Akina writs’ silence to reach this conclusion.9 The
“indisputably clear” standard does not appear to be a
universal requirement, nor do we have any example of the
Court granting a writ under the “indisputably clear” standard
that would illustrate its meaning.

Accordingly, I concur in the denial of attorney’s fees on
the grounds that the judicial relief obtained provided no
indication that Appellants’ claims were potentially
meritorious.

II. Sufficiently Enduring Relief

I turn now to the second question we ask of a would-be
prevailing party who has won a preliminary injunction but not
litigated the case to final judgment: “[H]as the plaintiff
obtained relief sufficiently enduring to satisfy the ‘material
alteration of the parties’ legal relationship’ requirement?”
Higher Taste, 717 F.3d at 716 (quoting Buckhannon,
532 U.S. at 605). I would hold that Appellants have obtained
relief “sufficiently enduring.” Id.

“A material alteration of the parties’ legal relationship
occurs when ‘the plaintiff can force the defendant to do
something he otherwise would not have to do.’ Id. (quoting
Fischer v. SJB–P.D. Inc., 214 F.3d 1115, 1118 (9th Cir.

9
I note, however, that Appellees argued to the Supreme Court in
briefing on the writ that the relevant standard was whether it was
“indisputably clear” that Appellants would prevail under the Winter test,
including consideration of the merits. Appellees’ convenient reversal on
this position is troubling.
 MAKEKAU V. STATE OF HAWAI‘I 23

2000)).10 If a preliminary injunction creating such material
alteration is rendered moot by the defendant’s own actions,
prevailing party status is not disturbed. See id. at 717–18.
“The defendant’s action in rendering the case moot ensures
that the injunction’s alteration of the parties’ legal
relationship will not be undone by subsequent rulings in the
litigation.” Id. A plaintiff’s “relief sufficiently enduring”
need not encompass all of the demands made in their
complaint. “[P]laintiffs may be considered ‘prevailing
parties’ . . . if they succeed on any significant issue in
litigation which achieves some of the benefit the parties
sought in bringing the suit.” Jensen, 806 F.2d at 900 (quoting
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

Plaintiffs ultimately did get much of what they sought in
the Akina lawsuit: the delegate election and the ratification
election were both cancelled; no election based on the
disputed voter roll was ever counted or certified; and no DOI-
qualifying self-governance document was produced through
processes dependent on the disputed voter roll. However,
most of these victories went beyond any judicial ruling, and
therefore must be excluded from consideration as an
impermissible application of the “catalyst theory.”
Buckhannon, 532 U.S. at 609.

10
Other circuits have held that a preliminary injunction granting
temporary relief that merely maintains the status quo pending final
resolution of the merits does not confer prevailing party status. See N.
Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1086 (8th Cir. 2006)
(collecting cases). We have left the question open. Higher Taste,
717 F.3d at 716 n.1. I see no need to disturb that silence here, where the
Supreme Court had to foresee that its writ would affect the behavior of
voters in the ongoing election. See Purcell v. Gonzalez, 549 U.S. 1, 4
(2006).
24 MAKEKAU V. STATE OF HAWAI‘I

Appellants’ one victory directly tied to a judicial ruling
was the enjoining of vote counting and certification of
winners in the 2015 delegate election. This was a “significant
issue” because a publicized vote count and certification of
winners would have effectuated the results of a race- and
viewpoint-restricted voting process. Jensen, 806 F.2d at 900.
By voluntarily then cancelling the delegate election before the
end of the voting period, Na‘i Aupuni permanently voided it.
This action ensured that the Court’s writ would “not be
undone by subsequent rulings in the litigation.” Higher
Taste, 717 F.3d at 717–18. It does not matter that Appellees
remain able to pursue various other actions Appellants sought
to enjoin through their lawsuit (e.g. hold a new election via a
new nonprofit using the same disputed voter roll), because
“some of the benefit” Plaintiffs sought became permanent.
Jensen, 806 F.2d at 900.

I disagree with the district court’s conclusion that
Appellants obtained only “ephemeral” relief. Appellants’
lawsuit sought to enjoin the “calling, holding, or certifying of
any election” using the disputed voter roll. Appellants
successfully enjoined the certifying of one such election.11
Moreover, our subsequent dismissal of Appellants’ appeal as
moot depended on the conclusion that “the allegedly
wrongful behavior could not reasonably be expected to
recur.” Akina v. Hawaii, 835 F.3d 1003, 1010 (9th Cir.
2016).

11
The Supreme Court’s denial of Appellants’ civil contempt motion
should be read to preclude the theory that Appellants failed to prevent
certification of the winners of the election. See Akina, 136 S. Ct. at 922.
If Na‘i Aupuni’s invitation of all the delegate candidates to the convention
had counted as certifying them as winners, the Court would have granted
the contempt motion.
 MAKEKAU V. STATE OF HAWAI‘I 25

Thus, were it not for the uncertainty surrounding the
standard of review applied in the Akina writs, I would hold
that Appellants are prevailing parties and entitled to
attorney’s fees.