Case: 21-50360 Document: 00516462743 Page: 1 Date Filed: 09/07/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 7, 2022
No. 21-50360
Lyle W. Cayce
Clerk
Bahia Amawi
Plaintiff— Appellee/Cross-Appellant,
versus
Ken Paxton, in his official capacity as Attorney
General of Texas,
Defendant— Appellant/Cross-Appellee,
_______________________________
John Pluecker; Obinna Dennar; Zachary Abdelhadi;
George Hale;
Plaintiffs—Appellees,
versus
Board of Regents of the University of Houston System;
Trustees of the Klein Independent School District;
Trustees of the Lewisville Independent School
District; Board of Regents of the Texas A&M
University System,
Defendants.
Case: 21-50360 Document: 00516462743 Page: 2 Date Filed: 09/07/2022
No. 21-50360
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. 1:18-CV-1091, 1:18-CV-1100
Before King, Jones, and Duncan, Circuit Judges.
Edith H. Jones, Circuit Judge:
Plaintiffs brought suit challenging a Texas law, which was later
amended so as to moot their claims before the merits were adjudicated.
Nevertheless, the district court determined that their fleeting success in
obtaining a preliminary injunction rendered them “prevailing parties” under
42 U.S.C. § 1988. We disagree, and accordingly REVERSE and REMAND
the judgment.
BACKGROUND
Plaintiffs are five sole proprietors who filed suit to overturn Texas’s
House Bill 89 (H.B. 89), which prohibited state governmental entities from
contracting with companies that “boycott Israel.” TEX. GOV’T CODE ANN.
§ 2270.001, et seq. These proprietors had either lost contract opportunities
or, in one case, signed a “No Boycott of Israel” verification “against his
conscience” because of H.B. 89. Plaintiffs sought a preliminary injunction
against the statute’s enforcement. Before the district court held a hearing on
the motion, Texas legislators voted out of committee a new bill, House Bill
793 (H.B. 793), that would make H.B. 89 inapplicable to sole proprietorships.
Despite this development, the district court granted Plaintiffs’ preliminary
injunction. Amawi v. Pflugerville Indep. Sch. Dist. (Amawi I), 373 F. Supp. 3d
717 (W.D. Tex. 2019). In its opinion, the court determined that Plaintiffs
demonstrated a likelihood of success in showing that H.B. 89 is
unconstitutional.
Id. at 742–58.
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Only twelve days later, Texas Governor Greg Abbott signed H.B. 793
into law after it had passed in the legislature by a veto-proof majority. The
Attorney General moved this court to stay the preliminary injunction
pending appeal, arguing that Plaintiffs’ claims were moot. This court agreed
and granted the stay. A merits panel later “vacate[d] the preliminary
injunction and remand[ed] th[e] case to the district court to enter an
appropriate judgment dismissing the complaints[,] . . . leav[ing] only
attorney’s fees to be decided on remand.” Amawi v. Paxton (Amawi II),
956 F.3d 816, 822 (5th Cir. 2020).
On remand, Plaintiffs moved for approximately $850,000 in
attorneys’ fees and costs under 42 U.S.C. § 1988 against the Attorney
General. The Attorney General countered that Plaintiffs were not
“prevailing parties” within the meaning of § 1988 and, thus, were not
entitled to attorneys’ fees. The district court held, however, that Plaintiffs
were “prevailing parties,” but it reduced the requested amount in certain
respects. Amawi v. Pflugerville Indep. Sch. Dist. (Amawi III), No. 1:18-CV-
1091-RP,
2021 WL 1226569, at *2–6, *7–10 (W.D. Tex. Mar. 31, 2021). The
parties filed a joint proposed order, which calculated the attorneys’ fees in
accordance with the court-ordered reductions. The Attorney General then
noticed an appeal. The next day, the district court entered the proposed
order without change, awarding $341,515 in attorneys’ fees and costs.
STANDARD OF REVIEW
This court reviews an award of attorneys’ fees for abuse of discretion,
reviewing factual findings for clear error and legal questions de novo. LifeCare
Mgmt. Servs. LLC v. Ins. Mgmt. Adm’rs, 703 F.3d 835, 846 (5th Cir. 2013)
(citation omitted). “[T]he characterization of prevailing party status for
awards under fee-shifting statutes such as § 1988 is a legal question subject
to de novo review.” Romain v. Walters,
856 F.3d 402, 405–06 (5th Cir. 2017)
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(citation omitted). The fee applicant bears the burden of establishing
entitlement to an award. Hensley v. Eckerhart, 461 U.S. 424, 437,
103 S. Ct.
1933, 1941 (1983).
DISCUSSION 1
In any action under 42 U.S.C. § 1983, “the court, in its discretion,
may allow the prevailing party . . . a reasonable attorney’s fee as part of the
costs.”
42 U.S.C. § 1988(b). “The 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.” Tex. State
Tchrs. Ass’n v. Garland Indep. Sch. Dist.,
489 U.S. 782, 792–93,
109 S. Ct.
1486, 1494 (1989). “Such a material alteration must have the ‘necessary
judicial imprimatur.’” Dearmore v. City of Garland,
519 F.3d 517, 521
(5th Cir. 2008) (emphasis in original) (quoting Buckhannon Bd. & Care Home,
Inc. v. W. Virginia Dep’t of Health & Hum. Res.,
532 U.S. 598, 605,
121 S. Ct.
1835, 1840 (2001)). In other words, there must be a “judicially sanctioned
1
We briefly address a jurisdictional argument raised by one Plaintiff, who contends
that the order from which the Attorney General appeals—the order granting in part and
denying in part Plaintiffs’ fee motions—is not a final decision under 28 U.S.C. § 1291
because “the District Court had not yet decided on the final amount of recoverable
attorneys’ fees.” We disagree.
In assessing finality, “we examine the language and nature of an order, along with
the district court’s intent.” Sw. Elec. Power Co. v. Certain Underwriters at Lloyd’s of London,
772 F.3d 384, 387 (5th Cir. 2014) (collecting cases). We “look not to terminology, but to
the substantial effect of the order.” Hewlett-Packard Co. v. Quanta Storage, Inc.,
961 F.3d
731, 742 n.7 (5th Cir. 2020) (quoting McCoy v. La. State Bd. of Educ.,
345 F.2d 720, 721
(5th Cir. 1965) (per curiam)). The district court’s order finding Plaintiffs to be “prevailing
parties” effectively ended the litigation. Additionally, though it left the precise amount to
be calculated by the parties “[t]o ensure accuracy,” the court reduced the award to a “sum
certain” by providing an exact formula. Amawi III,
2021 WL 1226569, at *7–10. Whatever
task remained after the district court’s order was purely ministerial, and the court entered
the joint proposed order without change. Accordingly, the order was final and there is no
jurisdictional barrier here.
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change in the legal relationship of the parties.” Buckhannon, 532 U.S. at 605,
121 S. Ct. at 1840.
The Supreme Court holds 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.” Sole v. Wyner,
551 U.S. 74, 83,
127 S. Ct. 2188, 2195 (2007). But the Court reserved the
question presented in this case—“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.”
Id. at 86,
127 S. Ct. at 2196. This circuit has answered that question in two
cases that recognize a narrow basis for attorneys’ fees arising from the
Supreme Court’s hypothetical. As will be explained, our cases do not
ultimately support these Plaintiffs’ request.
Before the Supreme Court’s seminal opinion in Buckhannon, the Fifth
Circuit recognized what was known as the “catalyst theory” for discerning
“prevailing parties.” See, e.g., Foreman v. Dallas County, 193 F.3d 314, 319-
20 (5th Cir. 1999). Under that theory, a plaintiff was a “prevailing party” if
he proved “(1) that the relief sought by plaintiff was in fact obtained, and
(2) that the suit itself caused the defendant to alter its conduct.” Id. at 320
(citing Pembroke v. Wood County,
981 F.2d 225, 230 (5th Cir. 1993)). Long
before that, this court had concluded that mootness does not alter
“prevailing party” status because “[a]ll that is required is that the plaintiff
obtain the primary relief sought.” Doe v. Marshall,
622 F.2d 118, 120
(5th Cir. 1980). In Doe, the only relief plaintiff obtained before mootness was
a preliminary injunction.
Id. See also Staley v. Harris Cnty., Tex.,
485 F.3d
305, 314 (5th Cir. 2007) (en banc). Plaintiffs contend that the Doe standard
applies, and the preliminary injunction here conferred “prevailing party”
status because they ultimately obtained the primary relief sought. But
Plaintiffs’ position ignores important developments succeeding Doe.
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In Buckhannon, the Supreme Court rejected the “catalyst theory”
because “[i]t allow[ed] an award where there is no judicially sanctioned
change in the legal relationship of the parties.” Buckhannon, 532 U.S. at 605,
121 S. Ct. at 1840. Instead, “prevailing party” status requires “a
corresponding alteration in the legal relationship of the parties.”
Id. A
defendant’s voluntary change “lacks the necessary judicial imprimatur on the
change,” even if the plaintiff ultimately received its desired outcome.
Id. To
conform with Buckhannon, the Fifth Circuit replaced the “catalyst theory”
with a three-part test. Thus, to be a “prevailing party,” the plaintiff now
must “(1) obtain actual relief, such as an enforceable judgment or a consent
decree; (2) that materially alters the legal relationship between the parties;
and (3) modifies the defendant’s behavior in a way that directly benefits the
plaintiff at the time of the judgment or settlement.” Energy Mgmt. Corp. v.
City of Shreveport,
467 F.3d 471, 482 (5th Cir. 2006).
While Buckhannon did not define the exact parameters of judicially
sanctioned relief, it clarified that enforceable judgments on the merits and
consent decrees are sufficient. 532 U.S. at 604,
121 S. Ct. at 1840. On the
other hand, the Court later held that preliminary injunctions that are
“reversed, dissolved, or otherwise undone by the final decision” will not
confer “prevailing party” status. Sole,
551 U.S. at 83,
127 S. Ct. at 2195. The
Supreme Court left it up to the circuits to apply Buckhannon and Sole to more
ambiguous judicial actions, including preliminary injunctions that are not
“reversed, dissolved, or otherwise undone by the final decision”—e.g., those
that are terminated by mootness. The Fifth Circuit carefully canvassed
circuit court decisions in Dearmore and ultimately noted that Buckhannon did
not foreclose prevailing party status in the narrow circumstances where
defendants voluntarily mooted a case after an adverse preliminary injunction
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precisely to avoid paying attorneys’ fees. In Dearmore, the narrow
circumstances entailed that the plaintiff 2
(1) must win a preliminary injunction, (2) based upon an
unambiguous indication of probable success on the merits of
the plaintiff’s claims as opposed to a mere balancing of the
equities in favor of the plaintiff, (3) that causes the defendant
to moot the action, which prevents the plaintiff from obtaining
final relief on the merits.
Dearmore, 519 F.3d at 524; see also
id. (“Such a test satisfies Buckhannon,
because it requires that a party obtain a judicial ruling which results in a
material change in the legal relationship between the parties.”); Davis v.
Abbott,
781 F.3d 207, 217–18 (5th Cir. 2015) (acknowledging the Dearmore
test as “persuasive guidance” in reviewing district court orders that were
“functionally similar to preliminary injunctions”). Importantly, the third
factor is only satisfied “when the defendant moots the plaintiff’s action in
response to a court order, not just in response to the filing of a lawsuit,” thus
distinguishing it from the “catalyst theory.” 3 Dearmore,
519 F.3d at 524.
Dearmore holds that the mooting of the case must be caused by the
preliminary injunction, i.e., a judicially sanctioned order.
519 F.3d at 524
(“The City, however, mooted the case after and in direct response to the
district court’s preliminary injunction order.” (emphasis in original)).
2
The court clarified the narrowness of this exception by emphasizing that this test
“is only applicable in the limited factual circumstances” where “a plaintiff obtains a
preliminary injunction based on an unambiguous indication of probable success on the
merits, which causes the defendant to moot the action, thereby preventing the plaintiff
from obtaining final relief on the merits.” Dearmore, 519 F.3d at 526 n.4.
3
In Buckhannon, in contrast, the defendant changed its conduct to moot the case
immediately after the complaint was filed. The Supreme Court deemed this conduct
voluntary because it was not caused by any judicially sanctioned order. Buckhannon,
532 U.S. at 600-01,
121 S. Ct. at 1838, 1840.
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Although Dearmore failed to acknowledge Doe expressly, the later
court evidently was intending to conform prevailing party analysis with
Buckhannon and Sole, while also preventing defendants from voluntarily
mooting a case following an adverse preliminary injunction to avoid the
statutory attorneys’ fee obligation. Dearmore, in practice, strikes a balance
between Buckhannon and Doe. In light of the subsequent authorities from the
Supreme Court and this court, we decline Plaintiffs’ request to apply Doe’s
outdated holding. 4 Where a plaintiff’s sought-for preliminary injunction has
been granted and the case is thereafter mooted before a final adjudication on
the merits, Dearmore applies.
The first two Dearmore factors are uncontested: Plaintiffs received a
preliminary injunction based on the district court’s unambiguous indication
of the probable success on their claim. But Plaintiffs have failed to satisfy the
final requirement by showing that H.B. 793 was passed in direct response to
the district court’s preliminary injunction. In fact, that almost certainly was
not precipitated by the court’s decree. The deadline to introduce new bills
for the 2019 legislative session was in March, while the district court issued
the preliminary injunction at the end of April. The legislature passed the bill
with a veto-proof majority shortly thereafter, but Plaintiffs provided nothing
to the district court or this court evincing that the legislature had the
preliminary injunction in mind when it completed passage of H.B. 793. And
“[t]he mere fact that a legislature has enacted legislation that moots an
[action], without more, provides no grounds for assuming that the legislature
was motivated by” the “unfavorable precedent.” Am. Bar Ass’n v. FTC,
4
“It is a well-settled Fifth Circuit rule of orderliness that one panel of our court
may not overturn another panel's decision, absent an intervening change in the law, such
as by . . . the Supreme Court . . . .” Jacobs v. Nat’l Drug Intel. Ctr., 548 F.3d 375, 378
(5th Cir. 2008).
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636 F.3d 641, 649 (D.C. Cir. 2011) (quoting Nat’l Black Police Ass’n v. District
of Columbia,
108 F.3d 346, 352 (D.C. Cir. 1997)).
We emphasize that Dearmore does not require inquiry into the
subjective intent of the legislators. 5 Rather, such a showing could be
accomplished in reference to purely objective metrics, for example, by
establishing a compelling timeline, an outright admission, or the statutory
language itself. See Dearmore, 519 F.3d at 520 (noting that the defendant’s
counsel admitted to plaintiff’s counsel that the city planned to amend the
enjoined ordinance “to address the district court’s order”); Davis,
781 F.3d
at 217 (Texas repealed the original plan and then “adopted the district
court’s interim plan . . . without change,” thus illustrating that the district
court’s enjoining orders caused Texas to moot the case). Cf.
id.
(acknowledging legislative history insofar as it “confirms” the objective
indicators of causation). The introduction of the ameliorative statute here,
however, predated the district court’s action, and given the bill’s speedy
passage through both houses and overwhelming legislative support, there is
no basis to infer that the Texas legislature was motivated by a desire to
preclude attorneys’ fees.
CONCLUSION
We REVERSE the judgment for attorneys’ fees, and the motion to
dismiss for lack of jurisdiction is DENIED.
5
When judicial inquiry of legislative motivation “seeks to go behind objective
manifestations it becomes a dubious affair indeed.” Flemming v. Nestor, 363 U.S. 603, 617,
80 S. Ct. 1367, 1376 (1960); see also McQueary v. Conway,
614 F.3d 591, 598 (6th Cir. 2010).
9
