Akina v. State of Hawaii

Filing 174

ORDER OVERRULING OBJECTIONS, AND ADOPTING FINDINGS AND RECOMMENDATION TO DENY PLAINTIFFS' AMENDED MOTION FOR ATTORNEYS' FEES AND RELATED NON-TAXABLE EXPENSES. Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 6/6/2017. (afc) FINDINGS AND RECOMMENDATION to Deny Plaintiffs' Amended Motion for Attorneys' Fees and Related Non-Taxable Expenses under L.R. Civ. 54.3 ("F&R"): ECF no. 165 . Plaintiffs' OBJECTIONS to F&R: ECF no. 170 . P laintiffs' Amended Motion for Attorneys' Fees and Related Non-taxable Expenses: ECF no. 152 . CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

KEALII MAKEKAU, et al.,

Civ. No. 15-00322 JMS-RLP

Plaintiffs,

ORDER OVERRULING
OBJECTIONS, AND ADOPTING
FINDINGS AND
RECOMMENDATION TO DENY
PLAINTIFFS’ AMENDED
MOTION FOR ATTORNEYS’ FEES
AND RELATED NON-TAXABLE
EXPENSES

vs.
THE STATE OF HAWAII, et al.,
Defendants.

ORDER OVERRULING OBJECTIONS AND ADOPTING FINDINGS
AND RECOMMENDATION TO DENY PLAINTIFFS’ AMENDED
MOTION FOR ATTORNEYS’ FEES AND RELATED NON-TAXABLE
EXPENSES
I. INTRODUCTION
Plaintiffs 1 Kealii Makekau, Joseph Kent, Yoshimasa Sean Mitsui,
Pedra Kanae Gapero, and Melissa Leinaala Moniz (“Plaintiffs”) object under 28
U.S.C. § 636(b)(1) to Magistrate Judge Richard Puglisi’s February 24, 2017
Findings and Recommendation to Deny Plaintiffs’ Amended Motion for

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On March 15, 2017, Magistrate Judge Puglisi granted Plaintiffs’ “Motion to Drop
Plaintiff Kelii Akina Pursuant to Fed. R. Civ. P. 21,” given Akina’s intervening election as a
Trustee of the Office of Hawaiian Affairs, where such Trustees are Defendants in their official
capacities in this action. ECF No. 169. Accordingly, the caption no longer reflects Akina as the
lead Plaintiff.

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Attorneys’ Fees and Related Non-Taxable Expenses Under L.R. Civ. 54.3” (the
“February 24, 2017 Findings and Recommendation”). ECF No. 170.
After due consideration, and being intimately familiar with the
extensive proceedings in this case, the court OVERRULES Plaintiffs’ Objections
and ADOPTS the February 24, 2017 Findings and Recommendation. The
Amended Motion for Attorneys’ Fees and Non-Taxable Expenses, ECF No. 152, is
DENIED.
II. BACKGROUND
The court need not reiterate this case’s full history and background,
which is detailed in several published decisions. See Akina v. Hawaii, 141 F.
Supp. 3d 1106 (D. Haw. 2015) (denying motion for preliminary injunction); Akina
v. Hawaii, 136 S. Ct. 581 (2015) (granting stay pending final disposition of the
appeal then-pending before the Ninth Circuit) (mem.); Akina v. Hawaii, 835 F.3d
1003 (9th Cir. 2016) (affirming in part and dismissing appeal as moot in part).
And the February 24, 2017 Findings and Recommendation further describes the
procedural history, which this court adopts as modified as follows.
This action arises from Native Hawaiian self-governance efforts. As
part of those efforts, Defendant Na<i Aupuni was planning an election of delegates
to a proposed constitutional convention to discuss, and possibly organize, a Native
Hawaiian governing entity. The voters in this election were based on a “Roll” of
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“qualified Native Hawaiians” as set forth in Act 195, 2011 Haw. Sess. Law, as
amended. Prospective registrants to the Roll were asked to make three declarations
related to Native Hawaiian sovereignty, their connection to the Native Hawaiian
community, and their Native Hawaiian ancestry. The delegate election was
scheduled for November 1 through November 30, 2015. The elected delegates
would then attend a constitutional convention to discuss forming a government and
possibly to draft a constitution. Any proposed constitution would then be subject
to a ratification vote by qualified Native Hawaiians listed on the Roll.
Plaintiffs filed this suit on August 13, 2015, alleging that the
restrictions on registering for the Roll, and the election process, violated the United
States Constitution and the Voting Rights Act of 1965. See ECF No. 1. Plaintiffs
named as Defendants the State of Hawaii; the Governor in his official capacity; the
Trustees and Chair of the Office of Hawaiian Affairs, in their official capacities;
the Commissioners, Chair, and Executive Director of the Native Hawaiian Roll
Commission, in their official capacities; Na<i Aupuni; and the Akamai Foundation,
a non-profit organization that was a party to an agreement that provided funds for
Na<i Aupuni’s efforts. Plaintiffs sought to enjoin Defendants “from requiring
prospective applicants for any voter roll to confirm Declaration One, Declaration
Two, or Declaration Three, or to verify their ancestry” and to enjoin “the use of the

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Roll that has been developed using these procedures, and the calling, holding, or
certifying of any election utilizing the Roll.” Id. at 32.
Approximately two weeks after filing the Complaint, Plaintiffs moved
for a preliminary injunction preventing Defendants “from undertaking certain voter
registration activities and from calling or holding racially-exclusive elections for
Native Hawaiians.” See ECF No. 47, Mot. at 3. This court denied Plaintiff’s
motion for preliminary injunction on October 23, 2015 (followed by a written
order on October 29, 2015), concluding that Plaintiffs had not met their burden of
demonstrating that excluding them from the election was unconstitutional or would
otherwise violate federal law. ECF Nos. 103, 114. The primary basis for denying
relief was a lack of state action -- the subject election was not a public election.
Akina, 141 F. Supp. 3d at 1126-29. Na<i Aupuni proceeded with the election of
delegates by mailing ballots to certified Native Hawaiians on November 1, 2015.
See ECF No. 157 at 11. The deadline to vote was November 30, 2015. Id.
Plaintiffs appealed the court’s order denying a preliminary injunction
to the Ninth Circuit, and filed an “Urgent Motion for an Injunction While Appeal is
Pending.” ECF Nos. 122, 173-2. The Ninth Circuit denied that motion on
November 19, 2015. ECF No. 122. On November 23, 2015 -- three days before
the Thanksgiving holiday -- Plaintiffs filed with the U.S. Supreme Court an
Emergency Application for Injunction Pending Appellate Review. ECF No. 170-2.
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After Defendants filed an Opposition on November 25, 2015, Supreme Court
Justice Anthony Kennedy issued an order on November 27, 2015 (the day after
Thanksgiving) that enjoined the counting of ballots and certification of winners
“pending further order” of the court. See Akina v. Hawaii, 2015 WL 7691943
(Nov. 27, 2015). This was three days before voting in the delegate election was to
end. On December 2, 2015, a five-Justice majority of the Supreme Court issued an
order (the “December 2, 2015 order”) which read in full:
[The] [a]pplication for injunction pending appellate
review presented to Justice Kennedy and by him referred to the
Court [is] 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, 136 S. Ct. at 581; see also ECF No. 171-6 (original order).
Two weeks after the Supreme Court’s order, Na<i Aupuni cancelled
the delegate election, which had been extended in the interim. See Akina, 835 F.3d
at 1009. Instead of holding the delegate election, Na<i Aupuni offered all delegate
candidates “a seat as a delegate” to the convention “to learn about, discuss and
hopefully reach a consensus on a process to achieve self-governance.” Id.
Plaintiffs responded by filing a motion for civil contempt in the Supreme Court,
arguing that Na<i Aupuni’s actions essentially declared all the candidates winners
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and violated the Supreme Court’s injunction pending appeal. See ECF No. 157-5.
In particular, Plaintiff asked the Supreme Court (1) to instruct Defendants “to
withdraw the December 15, 2015 certification of the delegates and cease and desist
in any effort to send delegates to the convention,” ECF No. 173-6 at 21-22;
(2) require Defendants “to judicially preclear any further steps they seek to take
with regard to selection of delegates or holding of the convention while the
Temporary Injunction remains in force,” id. at 22; and (3) “award to [Plaintiffs] the
attorney’s fees and costs incurred in bringing this Motion.” Id. at 23. The
Supreme Court denied Plaintiff’s contempt motion. ECF No. 173-7, Akina v.
Hawaii, 136 S. Ct. 922 (2015) (mem.).
The convention took place in February 2016, resulting in a proposed
constitution for a Native Hawaiian government. Akina, 835 F.3d at 1009. Na<i
Aupuni decided not to fund a ratification vote and returned the remaining grant
funds allocated for the ratification. Id. In April 2016, Na<i Aupuni dissolved as an
entity. Id.; ECF No. 173-8.
On August 29, 2016, the Ninth Circuit issued an Opinion dismissing
as moot Plaintiffs’ interlocutory appeal of this court’s order denying Plaintiffs’
motion for a preliminary injunction. Akina, 835 F.3d at 1011. In determining that
Plaintiffs’ appeal was moot, the Ninth Circuit focused on the fact that the delegate

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election had been cancelled, no ratification vote was scheduled, and Na<i Aupuni
had dissolved as a non-profit corporation. Id. On November 30, 2016, this court
granted Plaintiffs’ motion to voluntarily dismiss this action without prejudice, and
declined to award fees or costs as a condition of dismissal. ECF No. 146.
Thereafter, on January 17, 2017, Plaintiffs filed the present Amended
Motion for Attorney Fees and Related Non-Taxable Expenses. ECF No. 152.
Magistrate Judge Puglisi issued the February 24, 2017 Findings and
Recommendation, recommending that the Amended Motion be denied. ECF No.
165. On March 24, 2017 Plaintiffs filed objections to the February 24, 2017
Findings and Recommendation, ECF No. 170, and Defendants filed their
Responses on April 7, 2017. ECF Nos. 171-73.
III. STANDARD OF REVIEW
When a party objects to a magistrate judge’s findings or
recommendations, the district court must review de novo those portions to which
the objections are made and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he
district judge must review the magistrate judge’s findings and recommendations de
novo if objection is made, but not otherwise.”).
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Under a de novo standard, this court reviews “the matter anew, the
same as if it had not been heard before, and as if no decision previously had been
rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United
States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district court need not
hold a de novo hearing; however, it is the court’s obligation to arrive at its own
independent conclusion about those portions of the magistrate judge’s findings or
recommendation to which a party objects. United States v. Remsing, 874 F.2d 614,
618 (9th Cir. 1989).
IV. DISCUSSION
Plaintiffs lost at almost every juncture of this action. This court
denied Plaintiffs’ Motion for Preliminary Injunction on October 23, 2015, ECF No.
103 (oral ruling), and on October 29, 2015, ECF No. 114 (written Order). The
Ninth Circuit denied Plaintiffs’ emergency motion seeking an injunction pending
appeal on November 19, 2015. ECF No. 122. The Supreme Court denied
Plaintiffs’ motion for civil contempt on January 19, 2016. ECF No. 173-7. The
Ninth Circuit ultimately dismissed Plaintiffs’ appeal on August 29, 2016. ECF No.
136. And this court granted Plaintiffs’ Motion to Voluntarily Dismiss Complaint
pursuant to Federal Rule of Civil Procedure 41(a)(2) on November 30, 2016. ECF
No. 146.

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Plaintiffs contend, however, that they are “prevailing parties” for
purposes of entitlement to attorney’s fees under 42 U.S.C. § 1988(b) because they
obtained the December 2, 2015 order from the United States Supreme Court -- an
order granting preliminary relief that preserved the status quo. 2 ECF No. 123. As
set forth above, the Supreme Court enjoined Defendants “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.” Akina, 136 S. Ct. at 581. Read in context, the order simply limited
irreparable harm that might come from a private election that was alleged to be
unconstitutional, until a final decision on the merits by the Ninth Circuit as to
Plaintiffs’ then-pending Ninth Circuit appeal. 3
But “virtually every circuit court to consider the question has
concluded that a preliminary injunction granting temporary relief that merely
maintains the status quo does not confer prevailing party status.” N. Cheyenne

2

Section 1988(b) provides in pertinent part that “[i]n any action or proceeding to enforce
a provision of [42 U.S.C. § 1983] . . . the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee as part of the costs[.]”
3

Indeed, Plaintiffs made this very argument to the Supreme Court. See ECF No. 173-3
at 11 (arguing that “Injunctive relief under the All Writs Act is necessary to prevent irreparable
harm to Applicants during the appellate process, and to preserve this Court’s jurisdiction
regarding the issues raised in this case”); id. at 35 (“The Court may issue a writ to maintain the
status quo and take action ‘in aid of the appellate jurisdiction which might otherwise be
defeated.’”) (citation omitted).

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Tribe v. Jackson, 433 F.3d 1083, 1086 (8th Cir. 2006) (citing Thomas v. Nat’l Sci.
Found., 330 F.3d 486, 493 (D.C. Cir. 2003); John T. Ex Rel. Paul T. v. Delaware
Cty., 318 F.3d 545, 558-59 (3rd Cir. 2003); Dubuc v. Green Oak Twp., 312 F.3d
736, 753-54 (6th Cir. 2002); Race v. Toledo-Davila, 291 F.3d 857, 858 (1st Cir.
2002); and Smyth v. Rivero, 282 F.3d 268, 276-77 (4th Cir. 2002)). “Some initial
injunctions, sometimes called stay-put or status quo injunctions, turn more on the
grave risks of irreparable harm to one party or to the public interest than on the
legal virtues of the parties’ positions.” McQueary v. Conway, 614 F.3d 591, 600
(6th Cir. 2010) (citation omitted).
For example, LaRouche v. Kezer, 20 F.3d 68 (2d Cir. 1994),
concluded that a party obtaining an injunction pending appeal was not a prevailing
party for purposes of § 1988(b) where there was no indication that such provisional
relief was based on the merits of the underlying claims. Id. at 75. LaRouche
reasoned in part that “a grant of provisional relief that merely preserves the status
quo does not constitute final relief on the merits,” id. at 74, and reiterated that “the
procurement of a TRO in which the court does not address the merits of the case
but simply preserves the status quo to avoid irreparable harm to the plaintiff is not
by itself sufficient to give a plaintiff prevailing party status.” Id. (quoting
Christopher P. v. Marcus, 915 F.2d 794, 805 (2d Cir. 1990)). Ninth Circuit
authority, although not directly on point, is consistent with this principle. See, e.g.,
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LSO, Ltd. v. Stroh, 205 F.3d 1146, 1161 (9th Cir. 2000) (finding that an
organization that obtained a TRO was a prevailing party because “[i]t is clear that
the TRO in this case did more than preserve the status quo”); Friedman v. State of
Ariz., 912 F.2d 328, 333 (9th Cir. 1990) (“Although [appellant] prevailed on the
injunction pending appeal, he is not the prevailing party on the merits[.]”),
superseded by statue on other grounds, as recognized in Warsoldier v. Woodford,
418 F.3d 989, 997 (9th Cir. 2005).
Here, nothing on the face of the Supreme Court’s December 2, 2015
one-paragraph order indicates it was based, even in part, on the merits of the
underlying claims. See LaRouche, 20 F.3d at 75 (“Although the stay panel could
have granted the injunction pending appeal based on a determination as to the
merits, there is no indication that it did so.”). As Larouche reasoned, “[a]n
injunction pending appeal that is not clearly based on the merits merely heightens
the confusion. As a general matter, a court should not resolve the uncertainty in
favor of a finding that plaintiff prevailed.” Id. (citations omitted). See also
Dearmore v. City of Garland, 519 F.3d 517, 524 (5th Cir. 2008) (requiring “an
unambiguous indication of probable success on the merits” to qualify as a
prevailing party).
Further, the timing -- where the emergency motion was being
considered over the Thanksgiving holiday only three days before voting was to end
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-- is also a factor indicating that the stay was not sufficiently “on the merits.” The
circumstances suggest, instead, that the Supreme Court was acting to prevent
irreparable harm based on an allegedly unconstitutional election. Although this
court certainly believes that the Supreme Court thoroughly reviewed the filings
submitted on the emergency motion, the December 2, 2015 order simply does not
indicate it was based on any assessment of the merits. Indeed, the order left the
merits to the Ninth Circuit in its then-pending appeal. See Dupuy v. Samuels, 423
F.3d 714, 722 (7th Cir. 2005) (concluding that a fee award was premature where
further proceedings on the merits were clearly contemplated).
In contrast, Plaintiffs’ contempt motion did seek relief on the merits -(1) a “withdrawal” of Na<i Aupuni’s December 15, 2015 certification of delegates
and a halt to “any effort to send delegates to the convention,” (2) “preclearance” of
“any further steps . . . with regard to selection of delegates or holding of the
convention,” and (3) an award of attorney’s fees and costs incurred in bringing its
contempt motion. ECF No. 173-6 at 21-23. And when squarely presented with the
merits of Defendants’ ongoing activities, the Supreme Court summarily denied that
request.
In any event, even assuming that the Supreme Court’s December 2,
2015 order did more than merely maintain the status quo, Plaintiffs otherwise fail
to prove they are entitled to fees and costs under § 1988(b). As the February 24,
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2017 Findings and Recommendation correctly analyzed, Plaintiffs fail to meet the
test set forth in Higher Taste, Inc. v. City of Tacoma, 717 F.3d 712 (9th Cir. 2013),
which analyzed a situation where a plaintiff “wins a preliminary injunction but
does not litigate the case to final judgment,” id. at 716, such as where a case is
rendered moot before final judgment. Id. at 717. Higher Taste describes the test
as follows:
[T]wo recurrent questions arise when making prevailing-party
determinations in this context: First, is the court’s preliminary
injunction ruling sufficiently “on the merits” to satisfy
[Buckhannon Board and Care Home, Inc. v. West Virginia
Department of Health and Human Resources, 532 U.S. 598
(2001)’s] “judicial imprimatur” requirement? And second, has
the plaintiff obtained relief sufficiently enduring to satisfy the
“material alteration of the parties’ legal relationship”
requirement?
Id. at 716.4
Applying Higher Taste, the court agrees with the February 24, 2017
Findings and Recommendation that the December 2, 2015 order was not
sufficiently on the merits to satisfy the “judicial imprimatur” requirement, and that

4

Higher Taste reiterated that “[a] plaintiff ‘prevails’ for purposes of § 1988 ‘when actual
relief on the merits of his claim materially alters the legal relationship between the parties by
modifying the defendant’s behavior in a way that directly benefits the plaintiff.’” 717 F.3d at
715 (quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)). In turn “[r]elief ‘on the merits’
occurs when the material alteration of the parties’ legal relationship is accompanied by ‘judicial
imprimatur on the change.’” Id. (quoting Buckhannon, 532 U.S. at 605).

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even if it was, Plaintiffs did not obtain “relief sufficiently enduring” to satisfy the
“material alteration of the parties’ legal relationship” requirement.
Again, the December 2, 2015 order did not mention the merits, and
the timing of the order strongly suggests its purpose was to prevent irreparable
harm, should a court subsequently find Defendants’ actions to be unconstitutional.
Although the December 2, 2015 order appears to have been based on the All Writs
Act -- leading to Plaintiffs’ argument that the Supreme Court rarely issues such
orders in this context and must have found the legal rights at issue to have been
“indisputably clear” -- the order does not recite this standard, nor make mention of
any legal rights. And the Court can issue injunctions pending appeal under the All
Writs Act that are not “on the merits.” See Wheaton Coll. v. Burwell, 134 S. Ct.
2806, 2807 (2014) (granting stay while expressly withholding views on the
merits); Little Sisters of the Poor Home for the Aged v. Sebelius, 134 S. Ct. 1022
(2014) (same); Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1100-01 (11th
Cir. 2004).
Further, the relief obtained -- preventing the counting of the ballots
cast, and the certification of the winners -- was “ephemeral” and not an “enduring”
change in the parties’ relationship. See Higher Taste, 717 F.3d at 717. Nothing
with the December 2, 2015 order compels the remaining Defendants (i.e., besides
the now-dissolved Na<i Aupuni, and Akamai Foundation) from using the Roll for
14

self-determination efforts, or from conducting a different private election. And
nothing requires Defendants to make any modifications to the Roll, or to include
all Hawaii citizens in the process. Rather, the action has been dismissed without
prejudice, and presumably such actions of Defendant could be challenged in the
future. See Cadkin v. Loose, 569 F.3d 1142, 1148 (9th Cir. 2009) (“Because ‘a
dismissal without prejudice is not a decision on the merits’ and plaintiff was free to
re-file his complaint in federal court, ‘dismissal without prejudice does not alter the
legal relationship of the parties [for purposes of the prevailing-party inquiry]
because the defendant remains subject to the risk of re-filing.’”) (quoting Oscar v.
Alaska Dep’t of Educ. & Early Dev., 541 F.3d 978, 981 (9th Cir. 2008)). In short,
there has been no enduring material alteration of the legal relationship between the
parties.
Finally, although Na<i Aupuni voluntarily cancelled the delegate
election, nothing obtained by Plaintiffs specifically prevented the subsequent
convention. At best, Plaintiffs’ suit and the December 2, 2015 order was a
“catalyst” for change by Defendants, but such a “catalyst” theory of prevailingparty status was abrogated in Buckhannon for federal fee-shifting statutes. See 523
U.S. at 610.
///
///
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V. CONCLUSION
Plaintiffs’ objections are OVERRULED. The court ADOPTS the
February 24, 2017 Findings and Recommendation to Deny Plaintiffs’ Amended
Motion for Attorneys’ Fees and Related Non-taxable Expenses Under L.R. Civ.
54.3. ECF No. 165. The Amended Motion, ECF No. 152, is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 6, 2017.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Akina, et al. v. State of Hawaii, et al., Civ. No. 15-00322 JMS-RLP, Order Overruling
Objections, And Adopting Findings And Recommendation To Deny Plaintiffs’ Amended Motion
For Attorneys’ Fees And Related Non-Taxable Expenses

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