PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

KANSAS JUDICIAL WATCH; 

HONORABLE CHARLES M. 

HART; ROBB RUMSEY, 

 Plaintiffs - Appellants, 

v. 

MIKE L. STOUT, in his official 

capacity as a Member of the 

Kansas Commission on Judicial 

Qualifications; JENNIFER L. 

JONES, in her official capacity as a 

Member of the Kansas 

Commission on Judicial 

Qualifications; NANCY 

ANSTAETT, in her official 

capacity as a Member of the 

Kansas Commission on Judicial 

Qualifications; J. PATRICK 

BRAZIL, in his official capacity as 

a Member of the Kansas 

Commission on Judicial 

Qualifications; THEODORE B. 

ICE, in his official capacity as a 

Member of the Kansas 

Commission on Judicial 

Qualifications.; CHRISTINA 

PANNBACKER; WILLIAM B. 

SWEARER, in his official capacity 

as a Member of the Kansas 

Commission on Judicial 

Qualifications; CAROLYN 

 No. 09-3356

FILED 

United States Court of Appeals 

Tenth Circuit 

August 9, 2011

Elisabeth A. Shumaker 

Clerk of Court
2 

TILLOTSON, in her official 

capacity as a Member of the 

Kansas Commission on Judicial 

Qualifications; ROBERT 

FLEMING; BRUCE 

BUCHANAN; MARY 

DAVIDSON COHEN; ROBERT 

A. CREIGHTON, in his official 

capacity as a Member of the 

Kansas Commission on Judicial 

Qualifications; DAVID J. KING, 

in his official capacity as a 

Member of the Kansas 

Commission on Judicial 

Qualifications; LAWRENCE E. 

SHEPPARD, in his official 

capacity as a Member of the 

Kansas Commission on Judicial 

Qualifications; EDWARD G. 

COLLISTER, JR., in his official 

capacity as Commission Examiner 

for the Kansas Commission on 

Judicial Qualifications; STANTON 

A. HAZLETT, in his official 

capacity as Disciplinary 

Administrator; FRANK D. DIEHL, 

in his official capacity as Deputy 

Disciplinary Administrator; 

ALEXANDER M. WALCZAK, in 

his official capacity as Deputy 

Disciplinary Administrator; 

JANITH A. DAVIS, in her official 

capacity as Deputy Disciplinary 

Administrator; GAYLE B. 

LARKIN, in her official capacity 

as Admissions Attorney, 

 Defendants - Appellees.

 

Appeal from the United States District Court 
3 

 for the District of Kansas 

(D.C. No. 5:06-CV-04056-JAR-KGS)

 

Josiah S. Neeley, Bopp, Coleson & Bostrom, Terre Haute, Indiana (Jeffrey P. Gallant, 

James Bopp, Jr., and Anita Y. Woudenberg, Bopp, Coleson & Bostrom, Terre Haute, 

Indiana; and Austin K. Vincent, Topeka, Kansas, with him on the briefs) for 

Plaintiffs-Appellants. 

George T. Patton, Jr., Bose McKinney & Evans LLP, Indianapolis, Indiana (Marisol 

Sanchez, Bose McKinney & Evans LLP, Indianapolis, Indiana; and Stephen O. Phillips, 

Office of the Attorney General of the State of Kansas, Topeka, Kansas, on the brief) for 

Defendants-Appellees. 

 

Before KELLY, EBEL, and HOLMES, Circuit Judges. 

EBEL, Circuit Judge. 

 

 Plaintiffs-Appellants Kansas Judicial Review (“KJR”), the Honorable Charles M. 

Hart, and Robb Rumsey appeal from the district court’s order denying their motion for 

attorney’s fees. This case requires us to decide whether Appellants qualify as “prevailing 

parties” entitled to attorney’s fees under 42 U.S.C. § 1988 where they secured a 

preliminary injunction that afforded some of the relief sought in the complaint, the 

district court granted the injunction after finding that Appellants were substantially likely 

to succeed on the merits of their claims, and the actions of third parties mooted the case 

before this Court had the opportunity to determine the validity of the preliminary 

injunction on appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we hold that the 
4 

preliminary injunction conferred prevailing-party status on Appellants. Accordingly, we 

REVERSE the judgment of the district court and REMAND for further proceedings. 

I. BACKGROUND 

 Our two prior opinions in this case discuss the relevant factual background in 

some detail, and we recite only those facts necessary to resolve the instant appeal. See

Kan. Judicial Review v. Stout (Stout IV), 562 F.3d 1240, 1244–45 (10th Cir. 2009); Kan. 

Judicial Review v. Stout (Stout II), 519 F.3d 1107, 1111–14 (10th Cir. 2008). Kansas 

provides for the popular election of judges in almost half of its judicial districts. In 1995, 

the Kansas Supreme Court adopted the Kansas Code of Judicial Conduct (the “Code”) to 

govern the behavior of judges and candidates for state judicial office. See Kan. Sup. Ct. 

R. 601A (1995). Until March 1, 2009, the Code prohibited judicial candidates from 

making certain kinds of pledges and commitments and from personally soliciting support 

for their campaigns. Canon 5A(3)(d)(i) stated that judicial candidates “should not make 

pledges or promises of conduct in office other than the faithful and impartial performance 

of the duties of the office” (“Pledges Clause”). (Aplt. App., vol. I at 23.) Canon 

5A(3)(d)(ii) prohibited judicial candidates from “mak[ing] statements that commit or 

appear to commit the candidate with respect to cases, controversies or issues that are 

likely to come before the court” (“Commits Clause”). (Id.) Canon 5C(2) provided that 

“a candidate shall not personally . . . solicit publicly stated support” (“Solicitation 

Clause”). (Id. at 24.) 
5 

In May 2006, KJR, Hart, and Rumsey sued the individual members of the Kansas 

Commission on Judicial Qualifications (the “Commission”)1

 under 42 U.S.C. § 1983 to 

challenge the constitutionality of these canons. Appellants claimed that the Pledges, 

Commits, and Solicitation clauses violated the First and Fourteenth Amendments to the 

U.S. Constitution by infringing on their rights of free speech and association. 

Specifically, KJR, a nonpartisan political action committee that educates citizens about 

judicial candidates, alleged that it wished to collect and publish responses to a “2006 

Judicial Candidate Questionnaire” (the “Questionnaire”) before the primary election on 

August 1, 2006. But candidates would not respond to the questions, which were designed 

to elicit their views on a variety of political and legal issues, for fear of being disciplined 

under the Pledges and Commits clauses. Hart, an incumbent district judge up for reelection in 2008, asserted that he desired to go door-to-door to seek signatures on a 

nomination petition, but he feared discipline under the Solicitation Clause. And Rumsey, 

a candidate for district judge in the 2006 election, alleged that he wanted to express his 

views to the public by answering the Questionnaire but was afraid to do so because of the 

canons. Appellants sought a declaration that the canons were unconstitutional, as well as 

preliminary and permanent injunctive relief prohibiting enforcement of the canons. 

On the same day that they filed their complaint, KJR, Hart, and Rumsey also 

moved for a preliminary injunction to prevent the Commission from initiating 

 1

 The Commission is responsible for investigating allegations of Code violations 

and recommending disciplinary action when necessary. 
6 

disciplinary proceedings under the canons against judicial candidates who responded to 

the Questionnaire. After a hearing, the district court issued a written order granting 

preliminary relief. See Kan. Judicial Watch v. Stout (Stout I), 440 F. Supp. 2d 1209 (D. 

Kan. 2006). In a thoughtful and comprehensive opinion, the district court determined 

that Appellants satisfied each of the four requirements for a preliminary injunction.2

 Id.

at 1225–39. The court first concluded that Appellants were substantially likely to 

succeed on the merits of their claims. Id. at 1225–38, 1240. It analyzed the canons in 

light of the Supreme Court’s decision in Republican Party of Minnesota v. White, 536 

U.S. 765 (2002), and found each of the Pledges, Commits, and Solicitation Clauses 

unconstitutional on its face and as applied. Stout I, 440 F. Supp. 2d at 1233–34 (Pledges 

and Commits clauses), 1237–38 (Solicitation Clause); see also id. at 1240 (“This Court 

follows the Supreme Court’s opinion in White and finds certain Kansas judicial canons 

unconstitutional.”). After a painstaking examination of the merits prong of the 

 2

 In order to secure a preliminary injunction, the moving party must establish the 

following elements: (1) a substantial likelihood of success on the merits; (2) irreparable 

injury will result if the injunction does not issue; (3) the threatened injury to the movant 

outweighs any damage the injunction may cause the opposing party; and (4) issuance of 

the injunction would not be adverse to the public interest. Schrier v. Univ. of Co., 427 

F.3d 1253, 1258 (10th Cir. 2005). If, however, the movant can demonstrate that the latter 

three elements weigh heavily in its favor, “the test is modified, and the [movant] may 

meet the requirement for showing success on the merits by showing that questions going 

to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe 

for litigation and deserving of more deliberate investigation.” Davis v. Mineta, 302 F.3d 

1104, 1111 (10th Cir. 2002) (internal quotation marks omitted). The district court in this 

case did not apply the “modified” test. For reasons that will be explained below, that fact 

is critical to our determination that Appellants are “prevailing parties.” 
7 

preliminary-injunction standard, the court succinctly concluded that Appellants satisfied 

the other three elements. See id. at 1239 (finding that (1) the chilling effect of the canons 

on the exercise of Appellants’ First Amendment rights constituted irreparable injury, (2) 

the injury to Appellants outweighed any harm to the Commission, and (3) the injunction 

would serve the public’s interest in receiving speech and learning about judicial 

candidates). Accordingly, the district court enjoined the Commission from enforcing the 

canons against any judicial candidate. Id. at 1241. 

The Commission appealed the grant of the preliminary injunction to this Court on 

August 11, 2006. Because the appeal “presented . . . several novel and unsettled 

questions of state law, the resolution of which could substantially alter our determination 

of the federal constitutional issues at stake,” we certified five questions regarding 

interpretation of the canons to the Kansas Supreme Court. Stout II, 519 F.3d at 1122. In 

December 2008, that court answered our questions and also indicated that it had been 

presented with, but not yet considered, proposed revisions to the Code. Kan. Judicial 

Review v. Stout (Stout III), 196 P.3d 1162, 1171–79 (Kan. 2008). Approximately one 

month later, the Kansas Supreme Court amended the Code by adopting Rule 601B, which 

took effect on March 1, 2009. See Kan. Sup. Ct. R. 601B (2009) (superseding Kan. Sup. 

Ct. R. 601A (1995)). Rule 601B “completely eliminate[d] the challenged portion of the 

Solicitation Clause” and “materially narrow[ed] the language and scope of the Pledges 

and the Commits Clauses.” Stout IV, 562 F.3d at 1245. Consequently, this Court 
8 

vacated the preliminary injunction, dismissed the Commission’s appeal as moot, and 

remanded the case to the district court for dismissal. Id. at 1249. 

After the district court dismissed the case, KJR, Hart, and Rumsey filed a motion 

seeking attorney’s fees. They argued that they qualified as “prevailing parties” entitled to 

a fee award under 42 U.S.C. § 1988 because the preliminary injunction constituted a 

“judicially enforceable judgment that materially alter[ed] the legal relationship between 

the parties.” (Aplt. App., vol. III at 426–27.) On November 19, 2009, the district court 

denied the motion, reasoning, in pertinent part, as follows: 

The primary relief sought by plaintiffs was declaratory relief. While 

plaintiffs succeeded in preserving the status quo—no disciplinary action for 

answering the questionnaire and for soliciting publicly-stated support—

they did not succeed in obtaining relief on the merits. Plaintiffs did not 

merely seek an injunction that allows them to answer and distribute the 

questionnaire and solicit publicly-stated support in the 2006 primary 

election. They sought declarations that the judicial canons at issue were 

unconstitutional both on their face and as applied to the questionnaire and 

petitions, in 2006 and beyond. Under these circumstances, the Court does 

not find that the legal relationship between the parties was materially 

altered by the preliminary injunction.

(Id. at 629.) 

Appellants now seek review of the district court’s ruling that the preliminary 

injunction did not make them “prevailing parties” for purposes of § 1988. 

II. DISCUSSION

 In 42 U.S.C. § 1988(b), Congress created an exception to the “American Rule” 

that each party ordinarily must pay its own attorney’s fees. Section 1988(b) provides that 

in civil-rights actions brought under 42 U.S.C. § 1983, “the court, in its discretion, may 
9 

allow the prevailing party, other than the United States, a reasonable attorney’s fee as part 

of the costs.” 42 U.S.C. § 1988(b). Whether a litigant qualifies as a “prevailing party” 

under a fee-shifting statute such as § 1988 is a question of law that we review de novo. 

See Lorillard Tobacco Co. v. Engida, 611 F.3d 1209, 1214–15 (10th Cir. 2010); AlMaleki v. Holder, 558 F.3d 1200, 1204 (10th Cir. 2009). 

A. Meaning of “Prevailing Party” in the Context of Preliminary Injunctions 

The Supreme Court set forth the general standard governing the prevailing-party 

determination in Texas State Teachers Ass’n v. Garland Independent School District

(TSTA), 489 U.S. 782 (1989). There, the Court stated that “[t]he touchstone of the 

prevailing party inquiry must be the material alteration of the legal relationship of the 

parties in a manner which Congress sought to promote in the fee statute.” Id. at 792–93. 

The Court explained that a material alteration in the parties’ legal relationship occurs 

when “the plaintiff has succeeded on any significant issue in litigation which achieved 

some of the benefit the parties sought in bringing suit.” Id. at 791–92 (internal alteration 

and quotation marks omitted). This standard requires that “‘a plaintiff receive at least 

some relief on the merits of his claim before he can be said to prevail.’” Id. at 792 

(quoting Hewitt v. Helms, 482 U.S. 755, 760 (1987)). 

 This Court has twice addressed whether a plaintiff who secured a preliminary 

injunction could satisfy the standard set forth in TSTA. In Dahlem v. Board of 

Education, 901 F.2d 1508 (10th Cir. 1990), Scott Dahlem, a high-school senior, desired 

to participate in interscholastic gymnastics. Id. at 1510. But Dahlem’s school only had a 
10 

girls’ gymnastics team, and the state high-school activities association did not allow boys 

to join girls’ athletics teams. Id. Dahlem filed suit under 42 U.S.C. § 1983, alleging that 

this situation amounted to unconstitutional gender discrimination under the Fourteenth 

Amendment. Id. After an initial hearing, the district court granted Dahlem a preliminary 

injunction that allowed him to participate in interscholastic gymnastics during the 

pendency of the case. Id. The defendants appealed the district court’s interlocutory 

ruling to this Court, but while the appeal was pending, the gymnastics season ended. Id. 

This rendered the case moot because Dahlem was scheduled to graduate before the 

beginning of the next season. Id. After the district court vacated the injunction and 

dismissed the case per our instructions, Dahlem filed a motion for attorney’s fees, which 

the district court denied. Id.

On appeal, we considered whether the preliminary injunction rendered Dahlem a 

“prevailing party” even though the injunction was vacated on mootness grounds before 

the defendants could challenge its validity in this Court. Id. at 1511. We began by 

stating that “[f]or the purpose of deciding whether a plaintiff is a prevailing party, a 

preliminary injunction is considered a decision on the merits so long as it represents an 

unambiguous indication of probable success on the merits, and not merely a maintenance 

of the status quo.” Id. (internal alteration and quotation marks omitted). The injunction 

at issue there met that standard because the district court’s order granting preliminary 

relief explicitly stated that there was a substantial likelihood that Dahlem would 

ultimately prevail on his claim. Id. We next observed that TSTA requires a plaintiff to 
11 

receive at least some relief on the merits of his claim before he may be deemed a 

“prevailing party,” but that nothing in TSTA or any other Supreme Court case precludes 

a plaintiff from obtaining that relief by some means other than a final judgment. See id.

at 1512. Thus, we adopted the rule that “a party which achieves the objective of its suit 

by means of an injunction issued by the district court [after an unambiguous finding of 

probable success on the merits] is a prevailing party in that court, notwithstanding the 

fact that the case becomes moot, through no acquiescence by the defendant, while the 

order is on appeal.” Id. (footnote omitted). Under that rule, Dahlem qualified for 

prevailing-party status because the preliminary injunction afforded him all of the relief he 

sought in bringing suit: 

[Dahlem] brought suit so that he could participate in interscholastic gymnastics 

during his senior year. Because of the district court’s preliminary injunction, he 

did so participate. No subsequent judicial proceedings could have given him any 

more relief on his claim. It cannot be suggested that Dahlem’s foray into the legal 

system was anything but completely successful. 

Id. at 1513. 

 We reached a different conclusion in Biodiversity Conservation Alliance v. Stem, 

519 F.3d 1226 (10th Cir. 2008). In that case, the U.S. Forest Service authorized a sale of 

timber in the Cement Region of the Black Hills National Forest (the “Cement Project”). 

Id. at 1227–28. The Biodiversity Conservation Alliance (“BCA”) filed a complaint 

alleging that the Forest Service’s actions in planning and developing the Cement Project 

violated various environmental statutes and the Administrative Procedures Act (“APA”). 
12 

Id. at 1228. BCA also moved for a preliminary injunction to stop the imminent timber 

sale. Id.

In ruling on BCA’s motion, the district court found that BCA would suffer 

irreparable injury as a result of permanent species loss if the sale went forward. Id. 

Further, because “the equities tipped heavily towards [BCA],” the district court required 

only that BCA raise substantial questions on the merits rather than prove a substantial 

likelihood of success on the merits. Id. (internal alteration and quotation marks omitted). 

The court concluded that BCA satisfied the “substantial questions” standard and granted 

the preliminary injunction “to maintain the status quo antebellum” until the court could 

make a final ruling. Id. (internal quotation marks omitted). 

During the pendency of the litigation, a forest fire destroyed approximately ten 

percent of the timber in the Cement Region that the Forest Service had planned to sell. 

Id. Consequently, the Forest Service withdrew the Cement Project, and the district court 

dismissed the case as moot. Id. BCA then moved for attorney’s fees, relying in part on 

the preliminary injunction. Id. The district court granted the motion, and the Forest 

Service appealed. Id. at 1229. 

On appeal, we cited TSTA and explained that “[a] preliminary injunction that does 

not provide a plaintiff with relief on the merits of her claim cannot serve as the basis for 

prevailing party status.” Id. at 1232. Applying that rule, we held that the preliminary 

injunction obtained by BCA was insufficient to make BCA a “prevailing party” because 

the injunction did not provide any of the relief that BCA sought in its complaint. Id. 
13 

BCA sought a determination that the Cement Project violated environmental statutes and 

the APA, but the district court’s order granting preliminary relief did not “address[] 

whether the Cement Project was arbitrary and capricious.” Id. Instead, the court granted 

the injunction largely because the balance of equities favored BCA. Id. Therefore, in 

obtaining the preliminary injunction, BCA won nothing more than “the right to have the 

status quo preserved, so that had [BCA] prevailed on the merits, its victory would have 

meaning.” Id.

In dicta in Biodiversity, we questioned whether Dahlem remains good law after 

the Supreme Court’s decisions in Buckhannon Board and Care Home, Inc. v. West 

Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), and Sole v. 

Wyner, 551 U.S. 74 (2007). Biodiversity, 519 F.3d at 1232. We declined to resolve that 

issue, however, because the validity of Dahlem was irrelevant to our conclusion that 

BCA failed to obtain relief on the merits and thus could not meet the “stringent” 

prevailing-party standard of TSTA. See id. at 1232. Having carefully analyzed 

Buckhannon and Sole, we now hold that Dahlem survives those decisions. 

 The plaintiff in Buckhannon sought to recover attorney’s fees under the “‘catalyst 

theory,’ which posits that a plaintiff is a ‘prevailing party’ if it achieves the desired result 

because the lawsuit brought about a voluntary change in the defendant’s conduct.” 532 

U.S. at 601. But the Supreme Court explicitly rejected that theory as inconsistent with its 

prior cases recognizing that a “prevailing party” must obtain some form of judicial relief, 

such as a judgment on the merits or court-ordered consent decree. Id. at 604–06. The 
14 

Court explained that “[a] defendant’s voluntary change in conduct, although perhaps 

accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary 

judicial imprimatur on the change.” Id. at 605. Buckhannon thus stands for the 

proposition that there must be a judicially sanctioned alteration in the legal relationship 

between the parties before a plaintiff can be deemed a “prevailing party.”3

In Dahlem, we held that the plaintiff attained prevailing-party status on the basis 

of a preliminary injunction. Buckhannon does not undermine that conclusion. A 

preliminary injunction is a form of court-ordered relief. Thus, “[a] preliminary injunction 

issued by a judge carries all the ‘judicial imprimatur’ necessary to satisfy Buckhannon.” 

Watson v. Cnty. of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002); see also People 

Against Police Violence v. City of Pittsburg, 520 F.3d 226, 233 n.5 (3d Cir. 2008) (“We 

need not determine in this case the outer limits of the requisite ‘judicial imprimatur.’ 

Whatever those may be, preliminary injunctions are certainly within them.” (citation 

omitted)). We do not mean to suggest, of course, that every preliminary injunction will 

necessarily render the recipient a “prevailing party.” As we have already explained, “to 

 3

 Although the Supreme Court in Buckhannon interpreted the term “prevailing 

party” under the fee-shifting provisions of the Fair Housing Amendments Act of 1988, 42 

U.S.C. § 3613(c)(2), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 

12205, the Court recognized that “prevailing party” is a term of art that Congress has 

used to mean the same thing in numerous statutes. See Buckhannon, 532 U.S. at 602–03 

& n.4. Accordingly, Buckhannon’s “judicial imprimatur” requirement applies to the 

prevailing-party analysis under § 1988. See Bell v. Bd. of Cnty. Comm’rs, 451 F.3d 

1097, 1102 (10th Cir. 2006) (applying Buckhannon’s definition of “prevailing party” in a 

§ 1988 case). 

 
15 

be a prevailing party on the basis of a preliminary injunction requires ‘relief on the 

merits.’” Lorillard Tobacco Co., 611 F.3d at 1217 (quoting Biodiversity, 519 F.3d at 

1232). We hold only that Buckhannon’s “judicial imprimatur” requirement does not 

make preliminary injunctions categorically insufficient to create prevailing-party status. 

In Sole, the Supreme Court addressed the question whether “a plaintiff who gains 

a preliminary injunction after an abbreviated hearing, but is denied a permanent 

injunction after a dispositive adjudication on the merits, qualif[ies] as a ‘prevailing party’ 

within the compass of § 1988(b).” 551 U.S. at 77. The Court answered that question in 

the negative, reasoning that whatever “fleeting success” a plaintiff may achieve when a 

court grants preliminary injunctive relief is negated if the court ultimately rules against 

the plaintiff on the merits. Id. at 83–86. Thus, the Court held that “[p]revailing party 

status . . . does not attend achievement of a preliminary injunction that is reversed, 

dissolved, or otherwise undone by the final decision in the same case.” Id. at 83. 

Significantly, however, the Court explicitly declined to consider the issue involved in 

both Dahlem and Biodiversity: 

We express no view on whether, in the absence of a final decision on 

the merits of a claim for permanent injunctive relief, success in gaining a 

preliminary injunction may sometimes warrant an award of counsel fees. 

We decide only that a plaintiff who gains a preliminary injunction does not 

qualify for an award of counsel fees under § 1988(b) if the merits of the 

case are ultimately decided against her. 

Id. at 86; see also Biodiversity, 519 F.3d at 1231 (“Unlike the injunction in Sole, the 

preliminary injunction here was not undone by a final decision on the merits. It is thus in 
16 

the area explicitly left open by Sole.” (citation omitted)); id. at 1232 (“Sole explicitly 

declined to decide the question in [Dahlem] . . . .”). Consequently, Sole, like 

Buckhannon, leaves our holding in Dahlem undisturbed. 

Given that both Dahlem and Biodiversity stand as controlling precedent in this 

circuit, we must consider both cases when deciding whether a plaintiff who has secured a 

preliminary injunction qualifies as a “prevailing party” eligible for an award of attorney’s 

fees under § 1988. Those cases, along with the relevant Supreme Court precedent, 

establish two overarching principles: 

First, and most fundamental, in order for a preliminary injunction to serve as the 

basis for prevailing-party status, the injunction must provide at least some relief on the 

merits of the plaintiff’s claim(s). A preliminary injunction provides relief on the merits 

when it (a) affords relief sought in the plaintiff’s complaint and (b) represents an 

unambiguous indication of probable success on the merits. By contrast, a preliminary 

injunction does not provide relief on the merits if the district court does not undertake a 

serious examination of the plaintiff’s likelihood of success on the merits but nonetheless 

grants the preliminary injunction to preserve the status quo because the balance of 

equities favors the plaintiff. 

Second, if a preliminary injunction satisfies the relief-on-the-merits requirement, 

the plaintiff qualifies as a “prevailing party” even if events outside the control of the 

plaintiff moot the case. If, however, the preliminary injunction is undone by a 
17 

subsequent adverse decision on the merits, the plaintiff’s transient success in obtaining 

the injunction does not render the plaintiff a “prevailing party.” 

These principles must constitute the beginning point (and, perhaps in many cases, 

also the ending point) of the prevailing-party inquiry when a plaintiff relies on a 

preliminary injunction as the basis for an award of attorney’s fees. 

B. The Preliminary Injunction Obtained by KJR, Hart, and Rumsey 

 In light of the principles set forth above, we have no trouble concluding that KJR, 

Hart, and Rumsey are “prevailing parties” in this case. 

First, the district court’s preliminary injunction provided relief on the merits of 

Appellants’ claims. Regarding the first prong of the relief-on-the-merits requirement, the 

preliminary injunction afforded Appellants relief that they specifically requested in their 

complaint. Appellants sought two basic types of relief in their complaint: (1) a 

declaration that the Pledges, Commits, and Solicitation clauses were unconstitutional; and 

(2) preliminary and permanent injunctions that would prohibit the Commission from 

enforcing the canons against judicial candidates who responded to KJR’s questionnaire. 

The preliminary injunction issued by the district court provided the second form of relief 

as long as it was in effect. That is, the preliminary injunction prohibited enforcement of 

the challenged canons and allowed Appellants to engage in their speech activities without 

fear of a disciplinary action during the pendency of the case. 

 Furthermore, the district court was clear about Appellants’ ultimate likelihood of 

success on the merits. After carefully analyzing the Pledges, Commits, and Solicitation 
18 

clauses under the First Amendment, the court expressly concluded that those clauses 

were unconstitutional and that Appellants were substantially likely to succeed on the 

merits of their challenge to the clauses. Stout I, 440 F. Supp. 2d at 1240 (“The Court 

finds that plaintiffs are substantially likely to succeed on the merits of their claims 

concerning the pledges . . . , commits, and solicitation clauses under Republican Party of 

Minnesota v. White.”); id. (“This Court follows the Supreme Court’s opinion in White

and finds certain Kansas judicial canons unconstitutional.”). We find it difficult to 

imagine a more “unambiguous indication of probable success on the merits.” Dahlem, 

901 F.2d at 1511 (internal quotation marks omitted). To borrow the words of the D.C. 

Circuit, “this is not a case in which a preliminary injunction was based less on the trial 

court’s view of the merits than on a perceived hardship to the plaintiff. Rather, 

[Appellants] secured a preliminary injunction in this case largely because their likelihood 

of success on the merits was never seriously in doubt.” Select Milk Producers, Inc. v. 

Johanns, 400 F.3d 939, 948 (D.C. Cir. 2005) (citation omitted). 

 Second, this Court dissolved the preliminary injunction only after the Kansas 

Supreme Court amended the challenged canons and rendered Appellants’ claims against 

the Commission moot. Significantly, no court ever ruled against Appellants on the 

merits. Accordingly, the preliminary injunction was sufficient to confer prevailing-party 

status on Appellants, “notwithstanding the fact that the case bec[a]me[] moot, through no 

acquiescence by the [Commission], while the order [was] on appeal.” Dahlem, 901 F.2d 
19 

at 1512; see also, e.g., Dupuy v. Samuels, 423 F.3d 714, 723 & n.4 (7th Cir. 2005); Select

Milk Producers, 400 F.3d at 947–48; Watson, 300 F.3d at 1096. 

 The district court determined that Appellants were not “prevailing parties” because 

they never obtained the “primary relief sought.” Specifically, the court reasoned that 

“[t]he primary relief sought by plaintiffs was declaratory relief. . . . Plaintiffs did not 

merely seek an injunction . . . . They sought declarations that the judicial canons at issue 

were unconstitutional . . . . Under these circumstances, the Court does not find that the 

legal relationship between the parties was materially altered by the preliminary 

injunction.” (Aplt. App., vol. III at 629.) 

We cannot agree with the district court’s analysis, as it conflicts with the Supreme 

Court’s directives in TSTA. In that case, the Court made clear that the prevailing-party 

determination does not turn on whether the plaintiff has prevailed on the “central issue” 

or obtained the “primary relief sought.” 489 U.S. at 790–92. “[T]he search for the 

‘central’ and ‘tangential’ issues in the lawsuit, or for the ‘primary,’ as opposed to the 

‘secondary,’ relief sought, much like the search for the golden fleece, distracts the district 

court from the primary purposes behind § 1988 and is essentially unhelpful in defining 

the term ‘prevailing party.’” Id. at 791. Instead, the critical inquiry is whether “the 

plaintiff has succeeded on any significant issue in litigation which achieved some of the 

benefit the parties sought in bringing suit.” Id. at 791–92 (emphases added) (alteration 

and internal quotation marks omitted); see also McQueary v. Conway, 614 F.3d 591, 603 

(6th Cir. 2010) (“A plaintiff crosses the threshold to ‘prevailing party’ status by 
20 

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.”). Where, as in this case, that 

standard has been met, “the degree of the plaintiff’s overall success goes to the 

reasonableness of the award . . . , not to the availability of a fee award vel non.” TSTA, 

489 U.S. at 793; see also McQueary, 614 F.3d at 603 (“The significance of the relief 

obtained goes only to the amount of fees.”). 

In its brief, the Commission raises one ground for affirmance that was not relied 

on by the district court. Specifically, the Commission contends that the preliminary 

injunction cannot serve as the basis for prevailing-party status because it was ultimately 

vacated, leaving Appellants without an enforceable judgment. This argument ignores our 

holding in Dahlem and the critical distinction between preliminary injunctions vacated on 

mootness grounds and preliminary injunctions vacated as a result of an adverse decision 

on the merits.4

 Appellants secured a preliminary injunction that materially altered the 

legal relationship between the parties by providing relief on the merits of Appellants’ 

 4

 The First Circuit recently explained the distinction as follows: 

Reversal on the merits deprives a plaintiff of “prevailing party” status 

because it repudiates the favorable change in the parties’ legal relationship 

effectuated by the district court’s judgment and holds that the plaintiff was 

never legally entitled to such relief. In contrast, in the mootness context, a 

“prevailing party” is a party who managed to obtain a favorable, material 

alteration in the legal relationship between the parties prior to the 

intervening act of mootness. 

Diffenderfer v. Gomez-Colon, 587 F.3d 445, 453 (1st Cir. 2009). 
21 

claims. This injunction continued in effect until the Kansas Supreme Court took actions 

that mooted the case. Neither this Court nor the district court ever issued an order 

undermining the district court’s assessment of the merits of Appellants’ claims or 

Appellants’ legal entitlement to relief. Accordingly, the fact that the preliminary 

injunction was vacated does not deprive Appellants of their status as “prevailing parties.” 

III. CONCLUSION 

KJR, Hart, and Rumsey obtained a preliminary injunction that provided some of 

the relief sought in the complaint, represented an unambiguous indication of probable 

success on the merits, and was dissolved only after the actions of third parties mooted the 

case. Under these circumstances, we hold that Appellants are “prevailing parties” within 

the meaning of 42 U.S.C. § 1988. Therefore, we REVERSE the judgment of the district 

court and REMAND for further proceedings.