Ramos v. Nielsen

• Court: District Court, N.D. California
• Decided: July 16, 2025
• Docket: 3:18-cv-01554
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CRISTA RAMOS, et al., Case No. 18-cv-01554-EMC

8 Plaintiffs, ORDER DENYING PLAINTIFFS’ 9 v. MOTION FOR ATTORNEYS’ FEES

10 KIRSTJEN NIELSEN, et al., Docket No. 228 11 Defendants.

12 13 14 The instant case relates to the first Trump administration’s termination of Temporary 15 Protected Status (“TPS”) for a number of countries. Previously, the Court granted Plaintiffs’ 16 motion for a preliminary injunction, a decision that the government appealed to the Ninth Circuit. 17 The Ninth Circuit panel (a majority) reversed, but that decision was subsequently vacated for en 18 banc review. Ultimately, the en banc hearing never took place because the government granted 19 new TPS designations or rescinded the previous TPS terminations. As a result, the Ninth Circuit 20 dismissed the appeal. On remand, Plaintiffs amended their complaint, and the government moved 21 to dismiss, largely on the basis of mootness. The Court agreed with the government and thus 22 granted the motion to dismiss. 23 Now pending before the Court is Plaintiffs’ motion for attorneys’ fees and costs pursuant 24 to the Equal Access to Justice Act (“EAJA”). The EAJA allows a party to seek fees and costs 25 against the government where it is the prevailing party and the government’s position was not 26 substantially justified. Having considered the parties’ briefs and accompanying submissions, the 27 oral argument of counsel, and the supplemental briefs filed by the parties after the Supreme 1 motion. 2 I. FACTUAL & PROCEDURAL BACKGROUND 3 A. History of Proceedings in Ramos 4 The Ramos suit was initiated in March 2018. The Ramos Plaintiffs challenged the TPS 5 terminations of four countries: Haiti, El Salvador, Nicaragua, and Sudan. In August 2018, the 6 Court denied the government’s motion to dismiss, rejecting, inter alia, the government’s 7 contention that the TPS statute precluded the from conducting a judicial review of the agency 8 actions. See Ramos v. Nielsen, 321 F. Supp. 3d 1083 (N.D. Cal. 2018) [hereinafter Ramos I]. In 9 October 2018, the Court granted Plaintiffs’ motion for a preliminary injunction. It found that the 10 balance of hardships tipped sharply in Plaintiffs’ favor and therefore Plaintiffs only had to show 11 serious questions on the merits in order to obtain injunctive relief. The Court then held that 12 Plaintiffs were likely to succeed on their APA claim (i.e., that DHS changed its practices with 13 respect to TPS designations and failed to acknowledge the change or provide an explanation). As 14 for the equal protection claim, there were, at the very least, serious questions on the merits. See 15 Ramos v. Nielsen, 336 F. Supp. 3d 1075 (N.D. Cal. 2018) [hereinafter Ramos II]. 16 The government appealed the Court’s preliminary injunction decision to the Ninth Circuit. 17 In September 2020, a panel ruled in favor of the government (two to one) and thus vacated the 18 preliminary injunction. On the APA claim, the panel agreed with the government that the TPS 19 statute precluded judicial review of the decisions the DHS Secretary had made. On the equal 20 protection claim, the panel held that there was, in particular, a lack of evidence tying President 21 Trump’s alleged animus to the TPS terminations. See Ramos v. Wolf, 975 F.3d 872 (9th Cir. 22 2020) [hereinafter Ramos III]. Plaintiffs sought a rehearing en banc. 23 Subsequently, in January 2021, President Biden took office. The parties jointly moved to 24 have the appeal referred to the Ninth Circuit’s mediation program. See Docket No. 222 (Order at 25 4). 26 In August 2021, DHS published a Federal Register designating Haiti for TPS for 18 27 months. In April 2022, DHS did the same for Sudan. Both countries were later redesignated. See 1 In October 2022, after settlement negotiations between the parties were not successful, the 2 Ninth Circuit released the appeal from the mediation program. Several months later, in February 3 2023, the Ninth Circuit granted a rehearing en banc. See Docket No. 222 (Order at 5). 4 In June 2023, one week before the en banc hearing, DHS published Federal Register 5 notices announcing the rescission of the TPS terminations and the extension of the TPS 6 designations for El Salvador and Nicaragua – as well as two additional countries, Honduras and 7 Nepal, which were the subject of the related Bhattarai case (see below). See Docket No. 222 8 (Order at 5). 9 About a week later, the Ninth Circuit granted the government’s motion to voluntarily 10 dismiss the appeal. See Docket No. 222 (Order at 6). The case was remanded to this Court. 11 In July 2023, the government argued before this Court that the then-operative complaint 12 was moot. Plaintiffs, however, asserted that the case was not moot and further indicated that they 13 wanted to amend the complaint and formally consolidate the case at bar with Bhattarai. See 14 Docket No. 205 (minutes). 15 In August 2023, Plaintiffs filed their amended complaint which, inter alia, consolidated 16 Ramos and Bhattarai. See Docket No. 204 (amended complaint). The government moved to 17 dismiss, largely based on mootness. The Court granted the motion, agreeing with the government 18 that the claims challenging the TPS terminations were moot. See Docket No. 222 Order at 17 19 (stating that “the government has met its burden of showing that the challenged conduct cannot 20 reasonably be expected to recur”). 21 Plaintiffs now move for their attorneys’ fees and costs incurred for Ramos, as well as for 22 Bhattarai which is briefly discussed below. 23 B. History of Proceedings in Bhattarai 24 Bhattarai was filed in February 2019, i.e., several months after the Court issued the 25 preliminary injunction in Ramos. Bhattarai challenged the TPS terminations of two countries: 26 Nepal and Honduras. In March 2019, the Court granted the parties’ stipulation to stay proceedings 27 pending disposition of the Ramos appeal. See Bhattarai, Docket No. 23 (stipulation and order). 1 to consolidate Ramos and Bhattarai. As noted above, at that time, the Ramos appeal had been 2 dismissed. 3 C. Fees and Costs Motion 4 As stated above, Plaintiffs now move for fees and costs incurred in conjunction with both 5 Ramos and Bhattarai. The motion is pursuant to the Equal Access to Justice Act (“EAJA”). In 6 their opening motion, Plaintiffs requested (1) $3,507,052.12 in fees (representing approximately 7 7,903.47 hours) and (2) $147,080.44 in costs. See Commons Decl., Ex. F (chart). Plaintiffs 8 subsequently increased the amount of fees sought, as reflected in their reply brief, noting that their 9 counsel spent more time in working on the pending motion. Thus, now, Plaintiffs ask for 10 $3,684,282.56 in fees.1 See Reply at 15. 11 Fees were incurred by (1) seven different public interest organizations and (2) one law firm 12 (Sidley Austin). Plaintiffs are asking for compensation for work done by about a dozen attorneys 13 from the public interest organizations and thirty attorneys from Sidley Austin (about three partners 14 and the rest mostly associates). Thus, altogether, there are more than forty attorneys for whom 15 Plaintiffs are seeking fees. For some, but not all attorneys, Plaintiffs ask for more than the EAJA 16 statutory rate – i.e., they seek enhanced rates. 17 II. DISCUSSION 18 A. Legal Standard 19 Plaintiff seeks fees and costs for Ramos and Bhattarai pursuant to the EAJA. See 28 20 U.S.C. § 2412. “‘The clearly stated objective of the EAJA is to eliminate financial disincentives 21 for those who would defend against unjustified governmental action and thereby to deter the 22 unreasonable exercise of Government authority.’ Congress specifically intended the EAJA to 23 deter unreasonable agency conduct.” Ibrahim v. United States Dep't of Homeland Sec., 912 F.3d 24 1147, 1166-1167 (9th Cir. 2019). 25 The relevant provision from the EAJA states as follows: 26 / / /

27 (d) 1 (1) 2 (A) Except as otherwise specifically provided by 3 statute, a court shall award to a prevailing party other than the United States fees and 4 other expenses, in addition to any costs awarded pursuant to subsection (a), incurred 5 by that party in any civil action (other than cases sounding in tort), including proceedings 6 for judicial review of agency action, brought by or against the United States in any court 7 having jurisdiction of that action, unless the court finds that the position of the United 8 States was substantially justified or that special circumstances make an award unjust. 9 . . . . 10 (C) The court, in its discretion, may reduce the 11 amount to be awarded pursuant to this subsection, or deny an award, to the extent 12 that the prevailing party during the course of the proceedings engaged in conduct which 13 unduly and unreasonably protracted the final resolution of the matter in controversy. 14 15 Id. § 2412(d)(1) (emphasis added). 16 As indicated by the italicized language above, there are two critical elements for a plaintiff 17 to be awarded fees and costs under the EAJA: (1) the plaintiff must be the prevailing party in the 18 case and (2) the government’s position must not have been substantially justified. In the case at 19 bar, the government argues that Plaintiffs should not be awarded fees and costs because neither 20 element has been satisfied. The government also argues that, even if Plaintiffs are entitled to some 21 fees and costs, the amount sought by Plaintiffs is excessive and unreasonable. 22 B. Prevailing Party 23 1. Lackey 24 In the instant case, the critical issue is whether Plaintiffs are the prevailing party. In Sole v. 25 Wyner, 551 U.S. 74 (2007), the Supreme Court held that a plaintiff who obtains a “preliminary 26 injunction after an abbreviated hearing, but denied a permanent injunction after a dispositive 27 adjudication on the merits” is not a prevailing party. See id. at 77 (emphasis added). “[P]revailing 1 or otherwise undone by the final decision in the same case.” Id. at 83; see also id. at 86 (stating 2 that “[a] plaintiff who ‘secur[es] a preliminary injunction, then loses on the merits as the case 3 plays out and judgment is entered against [her],’ has ‘[won] a battle but los[t] the war’”). The 4 Court, however, “express[ed] no view on whether, in the absence of a final decision on the merits 5 of a claim for permanent injunctive relief, success in gaining a preliminary injunction may 6 sometimes warrant an award of counsel fees.” Id. (emphasis added). 7 While the Sole Court did not address the issue above, circuit courts, including the Ninth 8 Circuit, subsequently expressed some views on the subject. For example, in Higher Taste, Inc. v. 9 City of Tacoma, 717 F.3d 712 (9th Cir. 2013), the Ninth Circuit noted as follows:

10 We have previously held that when a plaintiff wins a preliminary injunction and the case is rendered moot before final judgment, 11 either by the passage of time or other circumstances beyond the parties' control, the plaintiff is a prevailing party eligible for a fee 12 award. In those cases, although the plaintiff never secured a final judgment granting permanent injunctive relief, the preliminary 13 injunction ended up affording all the relief that proved necessary. The plaintiff therefore received relief that was as enduring as a 14 permanent injunction would have been and, by virtue of the case's mootness, that relief was no longer subject to being "reversed, 15 dissolved, or otherwise undone by the final decision in the same case." 16 Other circuits have applied the same reasoning when the plaintiff 17 wins a preliminary injunction and the case is subsequently rendered moot by the defendant's own actions. (A typical scenario: The 18 plaintiff wins a preliminary injunction prohibiting enforcement of a particular statute, and the defendant renders the case moot by 19 repealing the statute before final judgment is entered.) In that circumstance, too, courts have held that the plaintiff is a prevailing 20 party under § 1988. There is again no concern that the relief the plaintiff won at the preliminary-injunction stage will prove to be 21 ephemeral. The defendant's action in rendering the case moot ensures that the injunction's alteration of the parties' legal 22 relationship will not be undone by subsequent rulings in the litigation. 23 24 Id. at 717 (emphasis added). 25 At the time of the August 2024 hearing on Plaintiffs’ motion, Higher Taste was binding 26 precedent on this Court. Nevertheless, the Court exercised its discretion to stay proceedings 27 because the Supreme Court had recently taken up the issue of whether a party is a prevailing party 1 Sole. See generally Lackey, 145 S. Ct. at 659. 2 In February 2025, the Supreme Court issued its decision in Lackey. The plaintiffs in 3 Lackey initiated suit to challenge a Virginia statute under which a person’s driver’s license would 4 be suspended if she failed to pay a fine or cost lawfully assessed against her for a violation of a 5 federal, state, or local law. The suspension would continue until the amount was paid in full or the 6 driver entered into a court-approved payment plan. The plaintiffs filed suit because they could not 7 afford to pay the fines assessed against them or keep up with their payment plans. They argued 8 that the Virginia statute violated their right to due process and equal protection. See Lackey, 145 9 S. Ct. at 664-65. 10 The district court granted the plaintiffs’ motion for a preliminary injunction, holding that 11 they were likely to succeed on one of their due process claims. See id. at 665. Subsequently, 12 about four months before the trial was to begin, the defendant (the Commissioner of the Virginia 13 Department of Motor Vehicles) moved to dismiss the case on the basis of mootness, or at least to 14 stay the case, because (1) the Virginia legislature had recently adopted a budget amendment 15 eliminating the suspension of drivers’ licenses for failure to pay court fines and costs through a 16 certain date and (2) the defendant expected the legislature would likely repeal the challenged 17 statute in the next legislative session. See id. The district court granted the request for a stay. 18 Thereafter, the legislature did repeal the statute and required the permanent reinstatement of 19 licenses suspended under the law. The parties thus agreed that the lawsuit had become moot and 20 stipulated to a dismissal. See id. 21 The issue for the Supreme Court was, as noted above, whether the plaintiffs were entitled 22 to attorneys’ fees because they had successfully obtained a preliminary injunction even though no 23 final judgment on the merits was rendered in their favor (specifically, because the Virginia 24 legislature had taken action that rendered the lawsuit moot). See id. at 666 (“We granted certiorari 25 to determine whether the term ‘prevailing party’ in [42 U.S.C.] §1988(b) encompasses a party who 26 is awarded a preliminary injunction, if the case becomes moot before the court reaches a final 27 judgment.”). The Court held that the plaintiffs were not the prevailing party. 1 the matter is finally set at rest.’” Id. at 667. But a preliminary injunction “do[es] not conclusively 2 resolve [a] legal dispute” because it may be issued based on simply a likelihood of success on the 3 merits (and other factors besides likelihood of success on the merits are considered). Id.

4 Because preliminary injunctions do not conclusively resolve the rights of parties on the merits, they do not confer prevailing party 5 status. A plaintiff who secures a preliminary injunction has achieved only temporary success at an intermediary “stage[ ] of the 6 suit.” It cannot yet be said that he will “ultimately prevail[ ] when the matter is finally set at rest” or that he will have “successfully 7 maintained” his claim “at the end.” And external events that render a dispute moot do not convert a temporary order designed to 8 preserve the status of the parties into a conclusive adjudication of their rights. 9 10 Id. at 667-68 (emphasis added). 11 The Lackey Court added that its holding flowed “naturally” from its precedents:

12 In Sole, we established that the change in the legal relationship between the parties must be “enduring.” In Buckhannon, we 13 established that the change must be “judicially sanctioned.” Today, we establish that the enduring nature of that change must itself be 14 judicially sanctioned. A plaintiff who wins a transient victory on a preliminary injunction does not become a “prevailing party” simply 15 because external events convert the transient victory into a lasting one. Rather, a plaintiff “prevails” under the statute when a court 16 conclusively resolves a claim by granting enduring judicial relief on the merits that materially alters the legal relationship between the 17 parties. 18 Id. at 669; see also id. at 671 (stating that “both the change in relationship and its permanence 19 must result from a judicial order”). 20 Finally, the Lackey Court stated that its ruling served the interests of judicial economy, i.e., 21 by providing a bright-line rule. It added that any concern a defendant who “lost at the preliminary 22 injunction stage [would] strategically moot litigation rather than risk a fee award where [it] to 23 ultimately lose on the merits” was too speculative. Id. at 669 (stating that “such risk could arise in 24 only a small number of contexts” because, “if a plaintiff ‘has a cause of action for damages, a 25 defendant’s change in conduct will not moot the case,’” and, “even if the plaintiff seeks only 26 injunctive relief, voluntary cessation of the challenged conduct does not moot an action ‘unless it 27 is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to 1 2. Stipulated Order in Case at Bar 2 Following the Supreme Court’s decision in Lackey, the Court permitted supplemental 3 briefing on whether Plaintiffs were entitled to fees and costs in light of the ruling. In their 4 supplemental brief, Plaintiffs no longer argue – as they did in their opening brief – that they are 5 entitled to fees and costs because they obtained a preliminary injunction. Instead they argue that 6 they are the prevailing party in the case at bar based on a stipulation between the parties that was 7 approved by the Court and entered as an order. See Docket No. 138 (stipulation and order). 8 The stipulated order at issue is captioned as one “stay[ing] district court proceedings 9 pending appellate review of [the] preliminary injunction.” Docket No. 138. The stipulated order 10 notes that, in October 2018, the Court issued a preliminary injunction in Plaintiffs favor; that the 11 Court asked the government to report back on the administrative steps taken to comply with the 12 preliminary injunction; and that the government subsequently appealed the preliminary injunction 13 to the Ninth Circuit. See Docket No. 138 (Stip. & Order ¶¶ 1-2). Paragraph 3 of the stipulated 14 order then stated as follows:

15 [O]n October 23, 2018, pursuant to this Court’s Order, Defendants reported on the administrative steps they are undertaking in response 16 to the preliminary injunction. In the Declaration of Donald Neufeld [ECF No. 135-1] attached to that filing, Defendants represented that, 17 in the event the preliminary injunction was reversed on appeal, any termination of TPS for Sudan, Haiti, El Salvador, and Nicaragua 18 would go into effect no sooner than 120 days from the issuance of any appellate mandate to this Court. See Declaration of Donald 19 Neufeld [ECF No. 135-1] ¶ 10. Defendants further represented in the Neufeld Declaration that the planned administrative steps 20 described therein were based on an agreement reached with Plaintiffs “as part of a negotiation to stay district court proceedings 21 pending appellate review of the preliminary injunction.” 22 Docket No. 138 (Order ¶ 3) (emphasis added). 23 Consistent with ¶ 3, the stipulated order stated, at ¶ 6 that,

24 [f]ollowing the conclusion of the appeal of the preliminary injunction, TPS will remain in effect for Sudan, Haiti, El Salvador, 25 and Nicaragua for a minimum of the later of a) 120 days following the issuance of any mandate to the district court or b) the Secretary’s 26 previously-announced effective date for the termination of TPS designations for each individual country . . . . 27 1 Docket No. 138 (Order ¶ 6).2 2 As noted above, Plaintiffs contend that this stipulated order makes them a prevailing party 3 for purposes of awarding fees and costs under Lackey. The government disagrees. 4 As an initial matter, the government asserts that the Court should not entertain Plaintiffs’ 5 argument because, in its original opposition brief, the government had made note of the Lackey 6 case then-pending before the Supreme Court, see Docket No. 244 (opposition), but Plaintiffs never 7 argued that they should be awarded relief based on anything but the preliminary injunction. The 8 government essentially argues that Plaintiffs have waived the position that they now take in their 9 supplemental brief – i.e., that there is another order issued by the Court that makes them a 10 prevailing party. While the government’s position is not entirely without basis, the Court 11 nevertheless entertains the merits of Plaintiffs’ argument. For Plaintiffs to make an informed 12 argument on Lackey, the actual Supreme Court decision on Lackey had to be issued. 13 That being said, the Court ultimately agrees with the government on the merits – i.e., under 14 Lackey,3 the stipulated order is not enough to make Plaintiffs the prevailing party in the instant 15 action. The relief provided for in the stipulated order was not enduring as contemplated by 16 Lackey. It was only temporary, as indicated by the fact that the purpose of the stipulated order was 17 simply to stay proceedings before this Court pending the appeal and to provide a mechanism (and 18 some limited temporary protection for TPS holders) for moving forward once the appeal was 19 resolved. The stipulated order contemplated that litigation on the merits would continue following 20 resolution of the appeal. That Plaintiffs obtained some relief under the stipulated order does not 21 2 A similar stipulation and order was entered in Bhattarai. See Bhattarai, No. C-10-0731 EMC 22 (N.D. Cal.) (Docket No. 23) (Order ¶ 11(c)) (“Following the conclusion of the appeal of the preliminary injunction, TPS will remain in effect for Honduras and Nepal for a minimum of the 23 [later] of a) 120 days following the issuance of any mandate to the district court, or b) the Secretary’s previously announced effective date for the termination of TPS designations for each 24 individual country . . . .”).

25 3 To the extent Plaintiffs have suggested that Lackey has no relevance or application to the instant case because this case involves the EAJA and not § 1988 (as in Lackey), the Court disagrees. See, 26 e.g., Holman v. Vilsack, 117 F.4th 906, 911 (6th Cir. 2024) (“[I]nterpretations of the phrase ‘prevailing party’ in cases involving 42 U.S.C. § 1988 and the EAJA are equally applicable to 27 both statutes.”); Animal Lovers Volunteer Asso. v. Carlucci, 867 F.2d 1224, 1225 n.1 (9th Cir. 1 mean that they had a degree of success “‘at the end of the suit’” or “‘when the matter [was] finally 2 set at rest.’” Lackey, 145 S. Ct. at 667 (quoting Black’s Law Dictionary in assessing what is 3 meant by “prevailing party”). As the Supreme Court underscored in Lackey, “the favorable 4 resolution of a dispute is [not] tantamount to success on a claim in a legal action.” Id. at 670 5 (emphasis in original). 6 Plaintiffs point out that, under Lackey, it is still possible for an interim order to make a 7 party a prevailing party, see Pls.’ Supp. Br. at 3, but this is true only in limited circumstances. The 8 Supreme Court stated that its “decisions simply indicate that attorney’s fees may be awarded when 9 conclusive, enduring judicial relief is meted out on an incremental basis.” Lackey, 145 S. Ct. at 10 670 (noting as an example school desegregation cases, where “‘many final orders may issue in the 11 course of the litigation’ because injunctive relief ‘must prove its efficacy . . . over a period of time 12 and often with frequent modifications’”). The relief in the instant case is not comparable to that in 13 the school desegregation cases to which the Lackey Court pointed. This is not a situation where 14 the plaintiff prevailed ultimately on the merits and the relief had to be implemented in stages. 15 Plaintiffs suggest still that the stipulated order in the case at bar is similar to a consent 16 decree, but the Court is not persuaded. In Lackey, the Supreme Court did find that a consent 17 decree could be a basis for deeming a party the prevailing party because

18 a consent decree is like a final judgment in the relevant ways: It conclusively resolves the claim, bears a judicial imprimatur, and 19 may grant enduring relief that materially alters the legal relationship between the parties. That is why “[w]e have only awarded 20 attorney’s fees where the plaintiff has received a judgment on the merits or obtained a court-ordered consent decree.” 21 Id. at 671 (emphasis added). But here, the stipulated order is not comparable to a consent decree 22 as it did not conclusively resolve Plaintiffs’ claims nor did it give them enduring relief. 23 Finally, Plaintiffs suggest that the Court should deem the stipulated order enduring in 24 nature because it was 25 “final” in the relevant sense: [it was] not reversible. And even 26 though [it] happened in an interim phase of the case, [it] “conclusively resolved” Plaintiffs’ right to (at least) approximately 27 six months of TPS status.[4] The agreement between the parties 1 coupled with this Court’s order memorializing it ensured that no appeal or later act by Defendants could modify, alter, or otherwise 2 infringe upon Plaintiffs’ right to that period of status. 3 Pls.’ Supp. Br. at 3. The problem for Plaintiffs is that the Lackey Court did not define “enduring” 4 as being “not reversible.” Indeed, any stipulation between parties in a litigation (and subsequently 5 approved by a court) could be deemed not reversible. That does not make any stipulation and 6 order enduring relief for purposes of prevailing party status and attorneys’ fees and costs. 7 3. Retroactivity 8 Plaintiffs contend that, even if the Court agrees with the government on the merits, they 9 should still be awarded their fees and costs because Lackey should not be retroactively applied to 10 the case at bar. The Court rejects Plaintiffs’ position. 11 The case law is clear that, “[w]hen [the Supreme] Court applies a rule of federal law to the 12 parties before it, that rule is the controlling interpretation of federal law and must be given full 13 retroactive effect in all cases still open on direct review . . . .” Harper v. Va. Dep’t of Taxation, 14 509 U.S. 86, 971 (1993); see also Nunez-Reyes v. Holder, 646 F.3d 684, 691 (9th Cir. 2011) 15 (recognizing Harper); Holt v. Shalala, 35 F.3d 376, 380 n.3 (9th Cir. 1994) (also citing Harper 16 but noting that, “[b]ecause the Supreme Court in Schaefer did not apply the new rule it announced 17 to the case at bar, we apply traditional Chevron [Oil Co. v. Huson, 404 U.S. 97 (1971)] analysis 18 here”) (emphasis added). 19 Here, the government contends that the Lackey Court did retroactively apply the rule it 20 announced to the parties before it. The government is correct. The Lackey Court reversed the 21 ruling of the Fourth Circuit which had held that fees and costs could be awarded in the situation in 22 which a plaintiff is awarded a preliminary injunction but the case becomes moot before final 23 judgment. Thus, the rule announced in Lackey was applied to the parties before the Supreme 24 Court. See Melton v. Moore, 964 F.2d 880, 882 (9th Cir. 1992) (“Although Grogan did not 25 expressly address the question of retroactivity, the effect of the Court's reversal of the court of 26

27 4 Although the stipulated order provided for a wind down period of 120 days, Plaintiffs note that it 1 appeals’ judgment was to give the parties the benefit of the rule that the preponderance of the 2 || evidence standard applied. Thus, the Court in Grogan did apply the rule retroactively to the 3 litigants before it.”); see also Hajro v. United States Citizenship & Immigration Servs., 811 F.3d 4 1086, 1099 (9th Cir. 2016) (“When the Supreme Court announces a new rule and retroactively 5 applies it to the case before it, all courts must apply the rule retroactively. Silence on the issue 6 || indicates that the decision is to be given retroactive effect. Otherwise, the retroactivity depends on 7 || the three-prong test from Huson.”) (emphasis added); accord Harper, 509 U.S. at 97-98 (“When 8 || this Court does not ‘reserve the question whether its holding should be applied to the parties 9 || before it,’ ... an opinion announcing a rule of federal law ‘is properly understood to have 10 || followed the normal rule of retroactive application’ and must be ‘read to hold... that its rule 11 should apply retroactively to the litigants then before the Court.’”). Plaintiffs have not explained 12 || how the Lackey rule was not retroactively applied, particularly in light of the authorities cited 5 13 above. Accordingly, Lackey is retroactive to pending cases confronting the same issue, including 14 the case at bar. See, e.g., Maryville Baptist Church v. Beshear, 132 F.4th 453, 464 (6th Cir. 2025) 3 15 (in a decision issued about a month after Lackey, applying Lackey to the case under consideration). 16 I. | CONCLUSION 3 17 For the foregoing reasons, the Court denies Plaintiffs’ motion for fees and costs pursuant to || me BAIA. 19 This order disposes of Docket No. 228. 20 21 IT IS SO ORDERED. 22 23 Dated: July 16, 2025 24 25 ED : 26 United States District Judge 27 28