morning your honor is in may it please the court hannah wilson the ohio attorney general also be speaking this morning on behalf of the hamilton county prosecutor i'd like to reserve four minutes for rebuttal and mcqueary versus conway this court injunction there was dissolved when a third parties independent actions mooted the underlying case that was legal error and the court should reverse for three reasons first the plaintiffs are not prevailing party because they received no court ordered  but it was actively litigated for almost all of that time i think it was held for a short period of months during the heller stat decision at the us supreme court but otherwise it was lasted a very long time because the plaint pursued four different claims and lost on three of them they pursued four different claims seeking to invalidate ohio's law and they lost on three of them and the polluter injunction was issued at the very beginning of the litigation but the point is that the relief that they did obtain was a preliminary injunction and it lasted no further in this case there's no lasting change in the legal relationship as is required by supreme court precedent now the second point is that this circuit has that there are a casual exceptions are occasional exceptions to the general presumption against fees in the p i context this case however does not fit into one of those exceptions and the third point is that even if the court things that the plaintiffs are prevailing parties which they are not as well demonstrate it must greatly reduce their award to account for their very limited success in this matter so i'd like to begin with the prevailing party question because i think that's how the court should resolve this case the plaintiffs received no court ordered relief that endured beyond this litigation as required by sol but they got everything they asked for not at all your honor they saw a total permanent ongoing band of ohio's law and they received a partial topiary for all we know hypothetical imagine that the f d a were to change its label tomorrow and go back to the old label that required only the use up to forty nine days of planned parenthood would have to sue ohio again to get any relief there is no court ordered health exception to the enforcement of the highest law and that's clear because it was the injunction that was in place was only in place for as long as the litigation was in place it was dissolved in the plaintiffs voluntarily but it was based on a of success on the merits and that's correct your honor but that's not sufficient under mcqueary that's the issue that probably strikes to make this make this because the order of it was limited the use of this act for the entire twelve year period and at the conclusion of that time the very thing that the supplying tubes had brought  for transpired so help me understand your argument that a new six sales over a twelve year injunction and that ended in them being in us the defendant as was the case in mcqueary where fees were denied but it came from a third party so ohio was deprived of the ability to make this case like sole where the plaintiff won a poor eleven or injunction but lost on the permanent injunction so where we have these moving circumstances sixth circuit precedent just that fees will rarely be available and that's mcqueary case and held out that there are occasional exceptions that will but this case certainly does not fit into it they have no lasting change in the legal relationship with ohio by court order certainly they got what they wanted from a third party but not with the necessary judicial imprimatur as buckhannon supreme court precedent requires and the occasional exception that mcqueary recognize was one where a preliminary injunction gives the plaintiffs all that they want and the only thing that with the action is court ordered success and the passage of time this infallibly does not fit into that example here and help me understand under circumstances that the district where thought that they were discussing were but they can explain so that's part of what could explain the mcqueary remain and i think the result mcqueary was quite clear and you look at the second mcqueary decision where this court  view and gave it back to the district court to make the assessment applying the correct standard it strikes me as odd because we've not been shy in cases where we think the law is clearly settled and there is one exemplar to which it applies in some things and if you had this case that is the example of mcqueary one i don't understand why you would have to consider an application if the standard that you argue for was so clearly articulated in mcqueary so i think the reason why is that it was not clearly settled in this circuit when the case came to the circuit in mccleary one so sol reserved the question specifically that arose in mcqueary and in this case and so the court was interpreted so in the mooted case situation for the circuit and delivered new instructions to the district court and in light of those new instructions which had not been the district or to not have the benefit of those remained it had to give the district court the first crack at the apple following the correct rule of law but the bottom line your honour's is if fees were denied in a query where the defendant itself was responsible for moving the case in depriving the plaintive of the ability to take it to a permanent injunction it follows that they must also be denied here were ohio bears no responsibility for the circumstances that led to this kate becoming moot and ohio was prepared to take it to a permanent injunction proceeding the permanent injunction stayed but we would have liked to take it and mediately but we were responsible for the delays in this case planned parenthood pursued for claims against ohio they had the health exception undue burden vagueness and bodily integrity after right at the time frame for the initial preliminary injunction so so that's moving into a different question that's not whether they're prevailing parties that's weather and they certainly are not with respect to the other three claims they and ambiguously lost those claims in the district court was correct in noting that they have no basis to request fees from that but that's moving towards the reason most of the fees when it's not even established that they are prevailing parties entitle to any fees at all and they're not prevailing parties because what they sought just like the pla they sought permanent ongoing relief and the policeman an injunction for no matter how long it lasted which judging by that would be an arbitrary standard they sought they received only temporary relief so yes but that really was reviewed twice by total injunction and limited to only much narrower circumstances and again that's only a likelihood of success ohio was prepared to take that to a permanent injunction proceedings but was sidetracked as planned parenthood pursued three losing claims over the next twelve years  or more like ten years but the bottom line is like the plaintiff mcqueary all they got was a temporary injunction that was dissolved when a third party mooted this case except in mcqueary it was actually the defendant that made it the case and that's not all the relief that they stopped they wanted a total and they got less they wanted a permanent ban so do you have a case law from other circuits from this or other circuit saying well if it's mooted by a third party that just takes it completely out of  the that's the rule in this circuit that's mcqueary other circuits have awarded preliminary party prevailing party status in cases where there's like they've accepted a catalyst theory based on a preliminary injunction mcqueary decided we know this is not a closest example are in this case that's been cited is the north tribes case which i believe is from the eighth circuit and there they denied prevailing party status where that's a slightly more complicated because in that case the one defendant hud housing and urban development had been joined looked at the law and looked at the grant in that case for other reasons unrelated to the injunction decided not to pursue it and the other defendants who were not part of that injunction decided to bail on the project so that case was mooted out by parties who were not actually enjoined and the eighth circuit in tribes actually with side with us and say no you're not a prevailing party you didn't get the relief but here the bottom line your honour's and i see my time is up where fees were denied in a query where the defendant actually responded to the conduct included the case it follows that they must be denied here or ohio was deprived of the ability to make this case like s case because planned parenthood after twelve years of litigation was the prevailing party with regard to enjoying the enforcement of the statute as it related to the unconstitutional position that medical board could not be used when a woman's life was in danger or whether her health was in danger and this case was filed within two months of the law being passed preliminary injunction hearing was held evidence was taken experts testified and it was clear to the district court into this with this court in three appeals that it could affect enforcement this law could affect the health of women who could not have a surgical abortion because of basically problems with their uterus or fibroids or some genital anomaly and because there would be harm to those women the government would not be allowed to enforce the law as applied to them the plaintiffs in this case of the prevailing party we didn't win the war i agree we didn't have to go to war we won the battle and the what happened was during those twelve years until the case was mooted was that the parties were playing to planned parenthood and the doctors were prescribing this medication until one day the defendant said you know narrowed and the defendants kept saying is we're going to enforce it in this situation you know maybe we will enforce it in this situation and the plaintiff said wait we're going to stop performing medical abortions until we get clarification from the district court it took less than a month the district court issued an order for the first time in two thousand and eleven narrowed the original injunction and said prohibiting enforcement altogether narrowed it just to no that is sufficient for planned parenthood to be a prevailing party because what should the court look at what does the district court do when it's trying to do this weighing that hensley were in the supreme court require yes your prevailing party but did you really win that much how much is did you win here really part of the argument here opposing counsel is that it turns on who gave you the wrong do you think that that's a key distinction in determining who yes in the sense that if the relief that we got was the state repealed the law then sol says we loose cannon by canon says we lose because the states act repeal the law and it was a voluntary act we do not we are not prevailing parties but no in this sense the state didn't repeal the law the relief we received was from the district court and this court affirming the district court and movements so i have two things that the reason that days that gave us the relief that we wanted and what we look at to determine the relief that the plaintiffs wanted is the second amendment complaint this is the complaint we were about to go to trial on in two thousand and sixteen this complaint the only relief that we are requesting is that the statute not be enforced when it's necessary to preserve the health and safety of the health and life of the patient that was it we got one hundred percent of what we wanted when the a change the rules so i think this is much more akin to the saturday parade or the the national science case thomas a versus national science foundation where there was a preliminary injunction to not enforce the law until the voters could vote on repeal of the law and it was the voters voting and repealing the law the mooted the need to go forward with a permanent hearing in the national science foundation case that's what we are doing here i think the prating saturday parade example is also a great example the saturday parade came in one and no need to have a permanent hearing in our situation this statute yes it still exists today we don't need to challenge it because the f d a has now determined that the pill can be used up to seventy days for any reason not just for health and safety so i think we need to both we need both the state not to repeal the statute and we needed judicial action and because time mooted the need for a permanent injunction we won everything that we need i excellent question and i think the state argued that the injunction was dissolved and that is not in the our record if you look at record two of six that is the district court's order that frankly the parties crafted together and presented to the poor we are all in agreement with that this order was appropriate it says that the complaint is moot and that the party seek a voluntary dismiss the case was dismissed without prejudice there's no mention of the injunction there's no discussion of whether it's moot or whether it's dissolved this is silent and addition attached to the order is a letter to all the prosecuting attorneys th the injunction being dissolved or being moot it says that the f d a changed the enforcement and there's no longer controversy between the parties and the case has been dismissed so there is no there was never a decision from the court that the order should be vacated mooted or dissolved and because of that in addition to the fact that the full relief was granted the plaintiffs are prevailing parties under mc y in addition i wanted to mention that the the the judge merit asked at the beginning how long the act had been held in abeyance and i think the correct answer to that is seven years in full abeyance and then five years in partial advance for the period of the twelve years that the injunction was in effect and to answer judge struck strange his question about court in this case has been on the case the entire twelve years now going on to our fourteenth year and that judge has seen all of the action that took place yes there were requests to have a trial on the vagueness claimant on the body integrity claim and the due process claim by the plaintiffs but those were all the reason those didn't go to merit hearing was because the defendants file motions to dismiss on those and on the health and life exception claim the defendants filed motions for summary judgment the parties both all read that we should stay while the supreme court addressed heller stat and those delays in coming to a merits hearing decision on the merits the district court has to make a decision whether to stay that we did not ask for a stay fees we immediately filed within the time frame our request for fees after the primary injunction was affirmed by this court and if there  we had gone forward with that if the state had not asked for a stay there would have been a decision then there would have been in judgment it would have gone on the record we're not going to collect on the judgment until the cases can looted but interest could have occurred i mean that's what happens when you get a feel bored and wait ten twelve fourteen maybe it'll be twenty one thousand before this case is resolved or this issue is resolved all that time so i think the delay here is for the fault of the defendants and the plane the should yes i mean i think the this court was expecting henri man to weighing in the factor similar to what the district court did in this case but what the district court in the end did was say this is not a prevailing party not because of those factors but because of buckhannon frankly the fact that the state repealed the statute and what in the district court did go further a little bit with that analysis and looked at what the pla wanted he wanted a protest funerals for average not just one funeral like a saturday parade he wanted to do that every single time and not be prohibited by the government from doing that and the court and analysis was he didn't get that differently the relief he got was one time he got to do that because he had a preliminary injunction but as soon as kentucky changed the statute in repealed that section his relief was no longer available to  that is a distinction that i think the district court or an analysis that was appropriate for the district court to me is so it in addition to the prevailing party argument i would i would say that the issue about which was in the brief and maybe the state is not focused on that currently because they said when they say when the well they argued this morning that this case really turned on her bailing party but i think the the amount of the fee is was an argument that they made below that i just want to briefly address and that would be that the district court had a duty and this is now an abuse of discretion standard so unless the district court was duty was to consider the whether there should be reduction in fees because of the amount of success in the case and the district court had no trouble because a district court has been presiding over this case for more than  twelve years that the success of the plaintiffs or sieved the injunction that we've already discussed for twelve years was a significant success if the case had gone the full merit hearing that's all the that's all that the plaintiffs would have asked for was an injunction against the enforcement of the statute and that was achieved through the twelve years that the preliminary injunction was in place in addition the district court used the ten percent reduction in fees that voluntarily submitted when we fit submitted our fee petitions all the lawyers and their declarations stated that they exercised billing judgment before they even wrote their feet petition and asked for their hours on top of that exercising billet billing judgement we took a temper cent discount and only asked for ninety percent of that time in addition the plaintiffs did not ask for any time defending the injunction in the appeal and twenty nineteen or in the motion to dismiss that the defendants filed later with the district court that time would be commensurable commensurable should be should be paid by the state but we chose to limit our time for fees to this very narrow window of three months from the day the statute was enacted until the effective date where the entire complaint was drafted the motion was drafted the experts were found in hearing was held and post trial briefs were done that was a lot of work done in a very short order of time and then the time for that that appeal that went to th and sixteen we haven't asked for any time after that and given all of those reductions in time i think that the court did a studio in reduce in deciding and looking at whether to reduce the fee and deciding the fee should not be reduced  the state did not mention today within their briefing that our two thousand and sixteen rate shouldn't be used we should be using our two thousand and six race our response to that frankly is if they had asked for a motion to stay they would have gotten that and then we would just be getting an interest if we end up winning in the end on the judgment on the on the fee petition in addition that the time that the plaintiffs i'm sorry my time is the time rates that we all use here in the southern district of ohio and with market rates whether you look at two thousand and six or two thousand and sixteen rates so i believe those should also be a firm for that reason we would ask that this court affirmed the district court i think your honor i just like to briefly address a couple of factual points in a couple of legal points actually when they're talking about the law was enjoined in its entirety for periods of time during this litigation each time that was vacated by this narrow fashion and then it entered a full permanent injunction on vagueness grounds that was completely reversed by this court so the only valid injunction was the narrow preliminary injunction that was in place and only because plaintiffs continue to pursue and lose on other cl proceedings and twenty two thousand and four in there the operative complaint was the first amended complaint which sought a full injunction of the law not in their own health exception they wanted total permanent ongoing relief and what's important for the prevailing party questions of getting to the legal points is that she got less than they stopped they wanted a full ongoing injunction they only got a temporary injunction that lasted only insofar as this case last it and they said there's nothing  never formally dissolved but i'm not sure that the district court retains jurisdiction over an injunction where it retains no jurisdiction over the case today so i know of no case where a permanent injunction or a preliminary injunction would proceed into preliminary injunction context is where the plaintiff's injunction gives them all that they sought the only thing that with the action is the court ordered success in the passage of time this case in patently does not fit into that framework here the preliminary injunction did not give them everything they sought again looking at the first amended complaint which was operative during these proceedings they sought permanent ongoing relief in the same way that the plaintiff and mcqueary saw permanent ongoing relief they got only temporary leave the fact that this case was not mooted is clear by the fact that they continue to litigate and seek permanent total ongoing relief for the next twelve years nor did the p i itself move the action as mcqueary said it must account for fees pulmonary injunction  was not the thing that caused this case to go away in the same way that a plaintiff who gets a piano for a saturday parade there's no reason for them to come back to the court for permanent relief because when that parade is over there's nothing more for the court to give them there's nothing that the defendant can take away the fact that the plaintiffs wanted more relief from the court and continue to seek it over the next twelve years shows that this is not a case like mcqueary fees were denied in mcqueary or the defendant itself was responsible for moving the action in response to the   junction it follows that they must be denied here where ohio was the one deprived of the opportunity to take this case to permanent injunction proceedings and make it like sole there are no further questions i would ask that the court reverse