United States Court of Appeals

Fifth Circuit

FILED

March 1, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

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No. 06-50013

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PLANNED PARENTHOOD OF CENTRAL TEXAS, PLANNED PARENTHOOD OF

HOUSTON AND SOUTHEAST TEXAS, PLANNED PARENTHOOD OF NORTH TEXAS,

PLANNED PARENTHOOD OF SAN ANTONIO AND SOUTH CENTRAL TEXAS,

PLANNED PARENTHOOD OF WEST TEXAS, and PLANNED PARENTHOOD OF THE

TEXAS CAPITAL REGION,

Plaintiffs-Appellants,

v.

EDUARDO J. SANCHEZ, Texas Commissioner of Health 

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

No. A03-CA-415 SS

Before SMITH, BENAVIDES, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Six Planned Parenthood organizations located in Texas

(collectively, “Plaintiffs”) appeal from the district court’s

denial of their request for attorney’s fees under 42 U.S.C.

§ 1988. This request came at the tail end of a multi-year

litigation prompted by the Texas Legislature’s 2003 passage of

legislation barring the distribution of federal family planning

money to entities that perform abortion procedures. For the

reasons that follow, we AFFIRM the judgment of the district
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court. 

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 2, 2003, the Texas Legislature passed Rider 8(b) to

the General Appropriations Act 2004-2005 Biennium, 78th Leg.,

R.S., H.B. 1 (Tex. 2003) (“Rider 8”). Rider 8 prohibited the

distribution of federal family planning funds to “individuals or

entities that perform elective abortion procedures or that

contract with or provide funds to individuals or entities for the

performance of elective abortion procedures.” On June 10, 2003,

the Texas Department of Health (“TDH”) sent each Plaintiff a

letter declaring that, to maintain its eligibility for receipt of

family planning funds, the Plaintiff must sign an affidavit

pledging that it would no longer perform elective abortions, nor

contract with or provide funds to any entity for the performance

of elective abortions. The TDH letter requested that the

affidavit be returned by June 30, 2003.

Instead of returning the affidavit, Plaintiffs filed suit

against Eduardo J. Sanchez, the Texas Commissioner of Health (the

“Defendant”). Plaintiffs alleged (1) that Rider 8 violated the

Supremacy Clause by imposing additional requirements on

Plaintiffs’ receipt of federal funds, (2) that Rider 8 imposed an

unconstitutional burden on a woman’s right to obtain an abortion,

and (3) that Rider 8 imposed an unconstitutional condition on

Plaintiffs’ eligibility for funds. Plaintiffs characterized their
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suit as having been brought “pursuant to 42 U.S.C. § 1983.” 

On June 30, 2003, the district court granted Plaintiffs’

request for a temporary restraining order, and on August 2, 2003,

the district court issued a preliminary injunction barring the

Defendant from enforcing Rider 8. Planned Parenthood of Cent.

Tex. v. Sanchez, 280 F. Supp. 2d. 590 (W.D. Tex. 2003). The

district court determined that Plaintiffs were likely to succeed

on the merits of their Supremacy Clause claim, though the court

found that this claim was not properly characterized as a § 1983

claim. Id. at 596-606. The district court also concluded that

Plaintiffs were likely to succeed on the merits of one of their

Fourteenth Amendment claims: that Rider 8 placed an

unconstitutional condition on their receipt of federal funding.

Id. at 606-09. In finding for the Plaintiffs, the district court

adopted their argument that Rider 8 could not be interpreted to

allow Plaintiffs to continue receiving TDH funds by creating

independent legal affiliates to perform abortions. Id. at 611. 

The Defendant filed an interlocutory appeal with this court,

which handed down an opinion on March 11, 2005. Planned

Parenthood of Houston & Se. Tex. v. Sanchez, 403 F.3d 324 (5th

Cir. 2005). This court affirmed the district court’s exercise of

jurisdiction over Plaintiffs’ Supremacy Clause claim, finding

other grounds for jurisdiction even if § 1983 was not an

available vehicle. Id. at 335. The court went on to explain,

however, that Rider 8 did not violate the Supremacy Clause
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because it could be construed to allow Plaintiffs to continue

receiving TDH funds by establishing independent affiliates to

perform abortion procedures. Id. at 337-42. The court noted that

an affiliation requirement would not conflict with federal law if

a “relatively empty formalism” but likely would conflict with

federal law if a “more substantial obstacle.” Id. at 342. The

court remanded the case to the district court, with instructions

that the injunction be dissolved “unless the Appellees carry

their burden of demonstrating that the use of affiliates would so

hinder their operations as to work in practical terms an

impermissible prohibition by the State of Texas . . . .” Id. at

343. The court did not, however, address the district court’s

conclusion that Plaintiffs were likely to succeed on the merits

of their Fourteenth Amendment unconstitutional conditions claim,

which conclusion was a second basis for the district court’s

grant of a preliminary injunction.

Following this court’s decision, the parties met and agreed

that the TDH would by April 29, 2005, provide written guidelines

setting out affiliation requirements, and that Plaintiffs would

have until May 31, 2005, to comply with these guidelines or

inform the Defendant that they would seek to avoid the

dissolution of the district court’s preliminary injunction. The

TDH did issue written “Affiliation Requirements,” and Plaintiffs

took the necessary steps to establish legally separate affiliates

to provide abortion services. Plaintiffs thereby maintained their
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eligibility for receiving TDH family planning funds. 

On July 29, 2005, Plaintiffs filed a motion with the

district court for a declaratory judgment and for attorney’s

fees. On August 1, 2005, the Defendant filed a motion to dissolve

the permanent injunction and for the entry of a final judgment

dismissing Plaintiffs’ claims with prejudice. On December 15,

2005, the district court entered an order and final judgment

granting the Defendant’s motion to dismiss and denying

Plaintiffs’ motion for a declaratory judgment as moot. The

district court also denied Plaintiffs’ request for attorney’s

fees, concluding that Plaintiffs were not a prevailing party

within the meaning of 42 U.S.C. § 1988. This appeal by the

Plaintiffs of the district court’s ruling on attorney’s fees

followed.

II. APPELLATE JURISDICTION AND STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 1291, we have jurisdiction over this

appeal from the district court’s December 15, 2005 final order

and judgment.

This court reviews a district court’s decision to award or

deny attorney’s fees pursuant to 42 U.S.C. § 1988 for abuse of

discretion. Volk v. Gonzalez, 262 F.3d 528, 534 (5th Cir. 2001).

The factual findings supporting the district court’s decision are

reviewed for clear error, and the conclusions of law de novo. Id.

In Bailey v. Mississippi, 407 F.3d 684, 687 (5th Cir. 2005), this
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court stated that following the Supreme Court’s analysis in 

Buckhannon Board & Care Home, Inc. v. West Virginia Department of

Health & Human Resources, 532 U.S. 598 (2001), “the

characterization of prevailing-party status for awards under feeshifting statutes such as § 1988 is a legal question subject to

de novo review.”

III. DISCUSSION

Plaintiffs assert their right to attorney’s fees under 42

U.S.C. § 1988(b). This section provides that “the court, in its

discretion, may allow the prevailing party, other than the United

States, a reasonable attorney’s fee. . . .” Plaintiffs argue that

they are entitled to attorney’s fees on the basis of (1) the

district court’s August 2003 grant of a preliminary injunction

against the enforcement of Rider 8; and (2) this court’s March

2005 ruling on the parties’ interlocutory appeals. 

A. Preliminary Injunction 

The district court granted a preliminary injunction to

Plaintiffs based on the perceived likelihood of success of two of

their claims: their Supremacy Clause claim, and their Fourteenth

Amendment unconstitutional condition claim. We address initially

whether either claim can support the award of attorney’s fees

under 42 U.S.C. § 1988(b).

1. Plaintiffs’ Fee-Supporting and Non-Fee-Supporting

Claims

The availability of attorney’s fees under § 1988(b) is
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expressly limited to actions or proceedings to enforce certain

enumerated provisions of federal law, including § 1983. The

circuit courts that have addressed the issue have held that

claims brought under the Supremacy Clause do not support an award

of attorney’s fees under § 1988. “[P]reemption of state law under

the Supremacy Clause––being grounded not on individual rights but

instead on considerations of power––will not support an action

under § 1983, and will not, therefore, support a claim for

attorneys’ fees under § 1988.” Segundo v. City of Rancho Mirage,

813 F.2d 1387, 1394 (9th Cir. 1987). “[F]ederal preemption of

local ordinances pursuant to the Supremacy Clause is not

actionable under Section 1983. Therefore, there can be no award

of attorney’s fees under Section 1988.” Md. Pest Control Assoc.

v. Montgomery County, 884 F.2d 160, 163 (4th Cir. 1989). See also

Boston & Me. Corp. v. Town of Ayer, 330 F.3d 12, 18 (1st Cir.

2003); Gustafson v. City of Lake Angelus, 76 F.3d 788, 792 (6th

Cir. 1996). In this case, the district court correctly held that

Plaintiffs’ Supremacy Clause claim was not actionable under

§ 1983. It follows that their Supremacy Clause claim, standing

alone, would not support an award of attorney’s fees under

§ 1988.

The district court’s preliminary injunction order was also,

however, based on Plaintiffs’ Fourteenth Amendment

unconstitutional condition claim. This was a claim that Rider 8
1 We express no opinion on the merits of the district court’s

conclusion that Plaintiffs were likely to succeed on this claim.

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violates Plaintiffs’ right to privacy under the Due Process

Clause of the Fourteenth Amendment because it bars them from

receiving a subsidy for “participat[ing] in the constitutionally

protected activity of providing abortion services to women.”

Planned Parenthood, 280 F. Supp. 2d at 606.1 Section 1983 is the

proper vehicle for a claim alleging that a state official has

violated the Plaintiffs’ rights under the Fourteenth Amendment.

Section 1988 expressly authorizes a court to award a reasonable

attorney’s fee to the prevailing party in a § 1983 action. 42

U.S.C. § 1988(b). Accordingly, Plaintiffs’ unconstitutional

condition claim is a claim that supports an award of attorney’s

fees under § 1988.

We have previously addressed situations where a plaintiff

brought a § 1983 claim that supports a grant of attorney’s fees

and another claim that does not, and the court found in favor of

the plaintiff on the non-fee bearing claim but did not address

the § 1983 claim. Recognizing that courts will often justifiably

refrain from addressing a constitutional question where it can be

avoided, we have held that such a plaintiff may obtain attorney’s

fees even though the § 1983 claim was not decided “provided that

1) the § 1983 claim of constitutional deprivation was

substantial; and 2) the successful pendant claims arose out of a
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common nucleus of operative facts.” Sw. Bell Tel. Co. v. City of

El Paso, 346 F.3d 541, 551 (5th Cir. 2003) (internal quotation

marks omitted). While this doctrine arose in the context of

successful pendant state law claims, it has been used to award

§ 1988 fees to plaintiffs prevailing on non-fee-supporting

federal statutory claims (Espino v. Bestiero, 708 F.2d 1002, 1008

(5th Cir. 1983)) as well as non-fee-supporting federal

constitutional claims (Gerling Global Reinsurance Corp. of Am. v.

Garamendi, 400 F.3d 803, 808 (9th Cir. 2005))(cert. denied, 126

S. Ct. 563 (2005)). Given our willingness to allow attorney’s

fees based on a successful pendant claim where the § 1983 claim

was not addressed by the court, it would make no sense to deny

attorney’s fees for either claim where the § 1983 claim was also

successful. Therefore, where a plaintiff prevails on both a

§ 1983 claim and a Supremacy Clause claim that are based on a

“common nucleus of operative facts,” the plaintiff may recover

attorney’s fees for both claims. 

Here, because Plaintiffs’ Supremacy Clause and

unconstitutional condition claims arise from a common nucleus of

operative facts, Plaintiffs would be entitled to attorney’s fees

on both claims if they could show that they qualify as

“prevailing parties” on the basis of their success in obtaining a

preliminary injunction from the district court.

2. Preliminary Injunction Did Not Entitle Plaintiffs to

Prevailing Party Status
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a. Supreme Court Precedent

The Supreme Court most recently addressed the meaning of

“prevailing party” in Buckhannon, 532 U.S. 598. There the Court

stated that a prevailing party exists where there is a

“judicially sanctioned change in the legal relationship of the

parties.” Id. at 605. The Court noted that two circumstances that

meet this test are “a judgment on the merits” and a “courtordered consent decree.” Id. The Court held, however, that

parties were not entitled to attorney’s fees under the “catalyst

theory,” that is, in circumstances in which a plaintiff “achieved

the desired result because the lawsuit brought about a voluntary

change in the defendant’s conduct.” Id. at 600. The Court found

that the catalyst theory failed because 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.

b. Caselaw on Preliminary Injunctions

Since Buckhannon, this circuit has not addressed under what

circumstances, if any, a preliminary injunction may support an

award of attorney’s fees under § 1988. A number of other circuits

have taken on this question, however, with varying analyses.

Several circuits have declared that a preliminary injunction

that merely preserves the status quo ante will not create a

“prevailing party.” The Eleventh Circuit has stated that “a
2 Taylor is a pre-Buckhannon case, but the Eleventh Circuit

reaffirmed its holdings in Wyner v. Struhs, 179 F. App’x 566, 568

(11th Cir. 2006) (unpublished) (cert. granted, 127 S. Ct. 1055

(2007)). 

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preliminary injunction on the merits, as opposed to a merely

temporary order which decides no substantive issues but merely

maintains the status quo, entitles one to prevailing party status

and an award of attorney’s fees.” Taylor v. City of Fort

Lauderdale, 810 F.2d 1551, 1558 (11th Cir. 1987). An exception

exists where a court later determines that the preliminary

injunction that would otherwise support prevailing party status

was granted by the district court through “a mistake in law.” Id.2

Similarly, the Eighth Circuit has stated that “a preliminary

injunction granting temporary relief that merely maintains the

status quo does not confer prevailing party status.” N. Cheyenne

Tribe v. Jackson, 433 F.3d 1083, 1086 (8th Cir. 2006). The court

did allow that “some preliminary injunctions are sufficiently akin

to final relief on the merits to confer prevailing party status.”

Id. An example of the latter is where the preliminary injunction

“alters the course of a pending administrative proceeding and the

party’s claim for a permanent injunction is rendered moot by the

impact of the preliminary injunction.” Id.

Like the Eighth Circuit, the Seventh Circuit has held that a

preliminary injunction may create prevailing party status where

the case is mooted after the preliminary injunction is granted.
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The Seventh Circuit has interpreted the Supreme Court’s precedent

on fee awards to hold that “once a plaintiff obtains substantive

relief that is not defeasible by further proceedings, he can seek

interim fees and the district court has the power to award them.”

Dupuy v. Samuels, 423 F.3d 714, 719 (7th Cir. 2005). The Seventh

Circuit stated that while there is no “hard and fast rule that a

preliminary injunction can never be an adequate predicate” for an

attorney’s fees award, an injunction that merely “constrains the

defendants’ conduct until it is reversed” cannot support a fee

award. Id. at 723; Palmer v. City of Chi., 806 F.2d 1316, 1321-22

(7th Cir. 1986). Attorney’s fees would be available, however,

where “the plaintiffs had obtained a preliminary injunction, and

the case was mooted before they sought attorneys’ fees.” Dupuy,

423 F.3d at 723. 

Using a slightly different analysis, the Sixth Circuit has

held that “[a] preliminary injunction can suffice” to create

prevailing party status. Sandusky County Democratic Party v.

Blackwell, 191 F. App’x 397, 399 (6th Cir. 2006). However, “there

is only prevailing party status if the injunction represents ‘an

unambiguous indication of probable success on the merits, and not

merely a maintenance of the status quo ordered because the balance

of the equities greatly favors the plaintiff.’” Dubuc v. Green Oak

Twp, 312 F.3d 736, 753 (6th Cir. 2002) (quoting Webster v.

Sowders, 846 F.2d 1032, 1036 (6th Cir. 1988)). The D.C. Circuit
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has concluded that “Buckhannon surely does not endorse a per se

rule that a preliminary injunction can never transform a party in

whose favor the injunction is issued into a ‘prevailing party’. .

. .” Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 945

(D.C. Cir. 2005). The D.C. Circuit determined that the plaintiff

who was granted a preliminary injunction qualified as a prevailing

party where the plaintiff obtained substantial relief and the

defendant declined to appeal the injunction. Id. at 947-50. While

citing a number of “mootness” cases, the D.C. Circuit suggested

that there are other situations in which a preliminary injunction

may create a prevailing party. Id.

The Ninth Circuit has also taken a relatively generous

approach, at least in principle, stating that a “preliminary

injunction issued by a judge carries all the ‘judicial imprimatur’

necessary to satisfy Buckhannon.” Watson v. County of Riverside,

300 F.3d 1092, 1096 (9th Cir. 2002). Like several other circuits,

the Ninth Circuit has allowed attorney’s fees in cases where a

party obtained a preliminary injunction and then the case was

subsequently mooted. Id.; Williams v. Alioto, 625 F.2d 845, 847

(9th Cir. 1980). The Ninth Circuit did note, however, that

there will be occasions when the plaintiff scores an

early victory by securing a preliminary injunction, then

loses on the merits as the case plays out and judgment is

entered against him––a case of winning the battle but

losing the war. The plaintiff would not be a prevailing

party in that circumstance.

Watson, 300 F.3d at 1096. 
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By contrast, the Fourth Circuit has expressed strong

skepticism that a preliminary injunction could ever serve as the

basis for prevailing party status. The court explained that

“[w]hile granting such an injunction does involve an inquiry into

the merits of the party’s claim . . . and is, like any court

order, ‘enforceable,’ the merits inquiry in the preliminary

injunction context is necessarily abbreviated.” Smyth v. Rivero,

282 F.3d 268, 276 (4th Cir. 2002). The court declared that 

[t]he interplay of [] equitable and legal considerations

and the less stringent assessment of the merits of claims

that are part of the preliminary injunction context belie

the assertion that the district court’s decision to grant

a preliminary injunction was “an enforceable judgment on

the merits” or something akin to one for prevailing party

purposes.

Id. at 277 (citing Buckhannon, 121 S. Ct. at 1840.) 

c. Analysis

We need not at this time choose between the approaches used

by our sister circuits, because Plaintiffs fail to qualify as

prevailing parties under any of these approaches. The preliminary

injunction obtained by Plaintiffs involved a necessarily

abbreviated inquiry into the merits coupled with a weighing of

likely harms, and therefore would fail under the Fourth Circuit’s

restrictive approach. By barring the initial enforcement of Rider

8, and thereby maintaining the flow of federal funds to

Plaintiffs, the preliminary injunction preserved the status quo

between the parties. It therefore fails to create a prevailing
3 This court did not address Plaintiffs’ Fourteenth Amendment

unconstitutional condition claim, which the district court had

also found likely to succeed, in its March 2005 opinion. By

remanding the entire case to the district court with instructions

to dissolve the injunction, however, we implicitly rejected that

claim as well. 

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party under the Eighth and Eleventh Circuit’s approaches.

Moreover, this case was not mooted after the preliminary

injunction was granted, nor did the Defendant fail to appeal. Far

from upholding the district court’s order on appeal, this court

disagreed with the district court’s conclusion that Rider 8 did

not allow for affiliation and, as a consequence, rejected the

district court’s preliminary determination that Rider 8 violated

the Supremacy Clause. Planned Parenthood, 403 F.3d at 337-42. We

remanded the case to the district court with instructions that

the injunction be dissolved unless Plaintiffs could show that

“the burden of forming affiliates in forthcoming years would in

practical terms frustrate their ability to receive federal

funds.” Id. at 342.3 We thus placed the burden of avoiding the

dissolution of the injunction squarely on the Plaintiffs.

Plaintiffs did not seek to avoid the dissolution of the

injunction, and it was dissolved. Accordingly, this case

resembles the scenario described by the Ninth Circuit as failing

to create prevailing party status: “the plaintiff scores an early

victory by securing a preliminary injunction, then loses on the

merits as the case plays out and judgment is entered against him
4 This is a feature that distinguishes this case from Walker

v. City of Mesquite, 313 F.3d 246 (5th Cir. 2002), a case relied

upon by Plaintiffs. In Walker, where we concluded that the

plaintiffs did have prevailing party status, “this court held . .

. that the remedial order was unconstitutional for precisely the

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. . . .” Watson, 300 F.3d at 1096. We hold that the preliminary

injunction that Plaintiffs obtained before the district court

does not entitle them to prevailing party status. 

B. Fifth Circuit Decision 

Plaintiffs also maintain that they should be considered

prevailing parties on the basis of this court’s March 2005

decision. They argue that they prevailed in the litigation

because they were able to continue receiving TDH funding and

because TDH was compelled to issue guidelines for affiliation

that were a “relatively empty formalism.” As the above discussion

suggests, we do not believe that Plaintiffs may be deemed the

prevailing party on the basis of this court’s March 2005

decision.

It is true that, at the termination of the litigation,

Plaintiffs maintained their TDH funding while continuing (through

the vehicle of independent affiliates) to perform abortions, and

it is true that this court’s suggestion that the affiliation

requirement must not present a “substantial obstacle” benefitted

the Plaintiffs. It is also true, however, that in its March 2005

opinion, this court adopted a position that had been maintained

by the Defendant throughout this litigation.4
reasons argued by the [plaintiffs] in their request for

declaratory relief.” Id. at 250.

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In the Defendant’s response to Plaintiffs’ application for a

temporary restraining order, the Defendant pointed to Planned

Parenthood of Mid-Missouri & E. Kansas, Inc. v. Dempsey, 167 F.3d

458 (8th Cir. 1999), a case where the Eighth Circuit had saved

the constitutionality of a statute similar to Rider 8 by

construing the statute to permit grantees of funds to engage in

abortion services through independent affiliates. The Defendant

argued that “Rider 8 can be interpreted in the same way as the

Missouri statute” and that Plaintiffs “can establish affiliates

and meet the requirements of Rider 8.” The Defendant reasserted

this argument by reference in his response to Plaintiffs’

application for a preliminary injunction. And in his appeal to

this court, the Defendant, proposing that the district court

could have construed Rider 8 in a way that would not raise

constitutional issues, again cited Dempsey and asserted that

“nothing in Rider 8 prohibits the creation of such affiliates.”

By contrast, Plaintiffs throughout this litigation maintained

that Rider 8 could not be construed to allow affiliation. We

cannot reasonably deem Plaintiffs the prevailing parties where

the highest court to hear their claims rejected their litigation

position and embraced that of the Defendant.

Plaintiffs are correct that the TDH’s June 2003 letter to
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Plaintiffs did not mention the possibility of affiliation and

that guidelines for affiliation were not at that time in place.

Immediately following the passage of Rider 8, the TDH seemed to

adopt a strict interpretation of Rider 8 that would prohibit

Plaintiffs from contracting with entities that perform abortions.

Had Plaintiffs not commenced this lawsuit, it is possible that

the Defendant would not have embraced the position that Rider 8

could be construed to permit affiliation. But to conclude that

the Defendant’s change in position makes Plaintiffs the

prevailing parties in the litigation would be to adopt the

catalyst theory rejected by the Supreme Court in Buckhannon, 532

U.S. 598. Accordingly, we hold that Plaintiffs are not prevailing

parties in the litigation and are not entitled to attorney’s

fees.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court denying attorney’s fees to Plaintiffs.

AFFIRMED