UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

Deborah S. Hunt 

Clerk

100 EAST FIFTH STREET, ROOM 540 

POTTER STEWART U.S. COURTHOUSE 

CINCINNATI, OHIO 45202-3988 

Tel. (513) 564-7000 

www.ca6.uscourts.gov

Filed: June 15, 2021 

Mr. Mark R. Brown 

Capital University Law School 

303 E. Broad Street 

Columbus, OH 43215 

Ms. Pamela Joy Holder 

Portage County Prosecutor's Office 

241 S. Chestnut Street 

Ravenna, OH 44266 

Mr. Mark G. Kafantaris 

Law Offices 

625 City Park Avenue 

Columbus, OH 43206 

Re: Case No. 20-4025, William Schmitt, et al v. Frank LaRose, et al

Originating Case No.: 2:18-cv-00966 

Dear Counsel, 

 The Court issued the enclosed Order today in this case. 

Sincerely, 

s/Antoinette Macon 

Case Manager 

Direct Dial No. 513-564-7015 

cc: Mr. Richard W. Nagel 

Enclosure 

Mandate to issue 

Case: 2:18-cv-00966-EAS-EPD Doc #: 84 Filed: 06/15/21 Page: 1 of 6 PAGEID #: 649 (1 of 6)
NOT RECOMMENDED FOR PUBLICATION 

No. 20-4025 

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

WILLIAM T. SCHMITT; CHAD THOMPSON; 

DEBBIE BLEWITT, 

 Plaintiffs-Appellants, 

v. 

FRANK LAROSE, Ohio Secretary of State, 

 Defendant, 

and 

CRAIG M. STEPHENS; PATRICIA NELSON; 

DORIA DANIELS; ELAYNE J. CROSS, in their 

official capacities as members of the Portage 

County Board of Elections, 

 Defendants-Appellees. 

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE SOUTHERN DISTRICT OF 

OHIO 

 O R D E R 

Before: SUTTON, Chief Judge; CLAY and NALBANDIAN, Circuit Judges. 

PER CURIAM. William T. Schmitt, Chad Thompson, and Debbie Blewitt appeal the 

district court’s denial of their motion for attorney’s fees against the Portage County Board of 

Elections. Because the district court did not abuse its discretion when it denied the fee request, we 

affirm. 

In 2018, Schmitt and Thompson circulated identical initiatives in Garrettsville and 

Windham, two villages within Portage County, Ohio, in an effort to place the initiatives on each 

village’s November 2018 election ballot. The Portage County Board of Elections declined to 

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No. 20-4025

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certify the initiatives for the ballot, deeming them “administrative in nature, rather than

legislative.” 

A couple months before the November election, Schmitt and Thompson, along with 

Blewitt (who had signed the initiative circulated for the Windham ballot) sued the Board and thenOhio Secretary of State Jon Husted under 42 U.S.C. § 1983. They raised as-applied and facial 

First Amendment challenges to Ohio’s ballot-initiative statutes, see O.R.C. §§ 3501.11(K), 

3501.38(M)(1)(a), and 3501.39(A), which vest in local boards of election the responsibility to act 

as “gatekeepers” to Ohio’s popular initiative ballots. 

In September 2018, the district court granted the Plaintiffs’ application for a temporary 

restraining order based on the as-applied challenge. It directed the defendants to place both 

initiatives on the November 2018 ballots. Soon after, the district court converted the temporary 

restraining order into a preliminary injunction that would expire the day after the election. The 

Board complied with the order, and on November 6, 2018, the Windham initiative passed, while 

the Garrettsville initiative failed. 

Thereafter, the court ordered additional briefing on the Plaintiffs’ facial challenge. It 

ultimately concluded that the Plaintiffs had prevailed on their facial-constitutional challenge to the 

ballot-initiative process. So the court converted the preliminary injunction into a permanent 

injunction and entered a final judgment. The Secretary of State appealed the judgment. 

In an opinion issued on August 7, 2019, we reversed the district court’s order and vacated

the permanent injunction. Schmitt v. LaRose, 933 F.3d 628 (6th Cir. 2019). 

After this court issued its mandate, the Plaintiffs sought attorney’s fees. They argued that 

“notwithstanding [the Secretary of State]’s successful appeal, Plaintiffs remain entitled to costs 

and attorneys’ fees for their preliminary success on their as-applied challenge, which was not 

appealed.”

The district court denied the Plaintiffs’ motion for attorney’s fees. Relying on the Supreme 

Court’s decision in Sole v. Wyner, 551 U.S. 74 (2007), the district court found the Plaintiffs were 

not entitled to attorneys’ fees under § 1988(b) because the final decision from this court on appeal 

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reversed the sole ground on which the Plaintiffs initially succeeded. In other words, “the merits

that won preliminary injunction for Plaintiffs were identical to those that lost the appeal.” 

The Plaintiffs moved for relief under Civil Rule 59(e) to alter the judgment, claiming that, 

because the Board did not appeal the district court’s merits ruling, it could not take advantage of 

the Sixth Circuit decision that upheld the validity of the initiative process against this free-speech 

challenge. But the district court explained that “awarding attorneys’ fees in this situation would 

raise form over substance” because the Sixth Circuit “reversed the merits of the decision upon 

which Plaintiffs now stand.” “This decision,” it observed, “does not implicate the effects of joining 

or not joining an appeal, but instead only relates to [its] discretionary power to award attorneys’ 

fees under Section 1988 and to amend a judgment under Rule 59.” 

The Plaintiffs appeal the district court’s decision to deny their motion for attorney’s fees

and the denial of their Rule 59(e) motion. 

The relevant question on appeal is whether the district court abused its discretion in

denying the Plaintiffs’ motion for attorney’s fees. See Berger v. City of Mayfield Heights, 265 

F.3d 399, 402 (6th Cir. 2001).

Section 1988 provides that when a party files suit under § 1983 “the [district] court, in its 

discretion, may 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)). “Although the text of the provision does not specify

any limits upon the district courts’ discretion to allow or disallow fees, in a system of laws 

discretion is rarely without limits.” Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 758 

(1989). Though a prevailing plaintiff should “ordinarily recover an attorney’s fee,” that is not the 

case when “special circumstances would render such an award unjust.” Newman v. Piggie Park 

Enters., Inc., 390 U.S. 400, 402 (1968). “Neither the Supreme Court nor this Court have 

defined what ‘special circumstances’ could defeat an attorney’s fee award to a prevailing plaintiff.” 

Cleveland v. Ibrahim, 121 F. App’x 88, 90 (6th Cir. 2005). As a result, our court “has eschewed 

adopting a predetermined formula in favor of a case-by-case approach.” Hescott v. City of 

Saginaw, 757 F.3d 518, 523 (6th Cir. 2014) (quotations omitted). 

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The district court did not abuse its discretion in denying this fee request. The rejection of 

a party’s key legal argument on appeal counts at a minimum as a special circumstance justifying 

a district court’s decision to deny fees. The Supreme Court’s decision in Sole v. Wyner helps to 

show why. In that case, T.A. Wyner sought preliminary injunctive relief against state interference 

with a Valentine’s Day peace sign display as well as permanent injunctive relief against 

interference with future expressive activities. 551 U.S. at 79. The district court granted the 

preliminary injunction, and the peace sign display took place the next day at the Valentine’s Day

event. Id. at 80. Wyner then pursued her demand for a permanent injunction. But the district 

court denied Wyner’s request. Id. Yet it awarded her attorney’s fees for her success in obtaining 

preliminary relief. Id. The Supreme Court reversed, reasoning that prevailing 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; see also id. at 78 (“A plaintiff who achieves a 

transient victory at the threshold of an action can gain no award under that fee-shifting provision 

if, at the end of the litigation, her initial success is undone and she leaves the courthouse 

emptyhanded.”).

The traditional rule, then, is that temporary relief with respect to a specific event—an 

election day or Valentine’s Day or some other day—does not justify fees if the legal premise of 

that decision is later reversed on appeal during the permanent injunction phase of the case. See id.

at 85 (dismissing the contention that the form of initial relief, whether as applied or something 

else, makes a difference once a later decision undermines the legal basis of an earlier one). That 

rule at a minimum suggests Judge Sargus did not abuse his discretion in denying the Plaintiffs’ 

request for fees. 

This conclusion does not change merely because the State, but not the County, appealed 

the permanent injunction decision. That the State alone appealed a decision with respect to the 

constitutionality of a state law does not deprive the County of the benefit of that later appellate 

decision, particularly when it comes to the district court’s exercise of discretion over an attorneys’

fee request. It is not unusual for States to litigate in the interests of agencies of the State or 

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ENTERED BY ORDER OF THE COURT 

Deborah S. Hunt, Clerk 

No. 20-4025

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subdivisions of the State. Those agencies may benefit from those decisions (when the State wins)

or pay the price for them (when the State loses). 

Accordingly, we affirm the district court’s order denial of the Plaintiffs’ motion for

attorneys’ fees and the order denying the Plaintiffs’ Rule 59(e) motion. 

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