IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40856

THE HONORABLE TERRY PETTEWAY; THE HONORABLE DERREC

ROSE; THE HONORABLE MICHAE MONTEZ; THE HONORABLE PENNY

POPE; THE HONORABLE SONNY JAMES; THE HONORABLE STEPHE

HOLMES; THE HONORABLE PATRIC DOYLE; ROOSEVELT

HENDERSON,

Plaintiffs - Appellees

v.

THE HONORABLE MARK HENRY; GALVESTON COUNTY, TEXAS,

Defendants - Appellants

Appeal from the United States District Court 

for the Southern District of Texas

Before JOLLY, DeMOSS, and SOUTHWICK, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal presents only the question of whether the Plaintiffs are

prevailing parties in a voting rights case, entitling them to attorney’s fees. The

underlying case arises from a dispute between the Plaintiffs – seven elected

officials and one citizen of Galveston County, Texas – and Galveston County,1

challenging the County’s redistricting following the 2010 census, on grounds that

United States Court of Appeals

Fifth Circuit

F I L E D

December 17, 2013

Lyle W. Cayce

Clerk

1 The other nominal defendant in the case is Mark Henry. Henry is the County Judge

and Chief Officer of Galveston County. Because he is sued only in his official capacity, we will

refer to the County as the defendant.

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the County’s proposed electoral maps violated the Constitution and the Voting

Rights Act. At the conclusion of the adversary proceeding, the Plaintiffs moved

for the award of attorney’s fees in accordance with 42 U.S.C. § 1973l(e). The

County opposed the award of attorney’s fees on the grounds that the Plaintiffs

were not prevailing parties. The district court ruled in favor of the Plaintiffs and

awarded fees. The County now appeals. For the reasons that follow, we hold

that the Plaintiffs are not prevailing parties and accordingly, are not entitled to

attorney’s fees. We therefore REVERSE the judgment of the district court and

REMAND for entry of judgment for the County.

I.

The Voting Rights Act of 1965 requires that certain jurisdictions with

histories of voting discrimination, known as “covered jurisdictions,” receive

specified approval before implementing changes to any “standard, practice, or

procedure with respect to voting. . . .” 42 U.S.C. § 1973c(a). The County is a

covered jurisdiction. Before making changes to its election districts, the County

must receive preclearance for those changes either by filing a declaratory

judgment action in the United States District Court for the District of Columbia

or by soliciting preclearance from the Attorney General of the United States. Id.

In August 2011, the County drafted new election maps in response to the

2010 population changes and the “one person, one vote” constitutional

requirement. The proposed changes affected three county elections: county

commissioner, constable, and justice of the peace. On August 30, after holding

several public meetings and considering different plans, the County adopted two

orders – one proposing new boundaries for the county commissioner election, and

the other proposing new boundaries for the constable and justice of the peace

elections. The county commissioner plan maintained the same number of

districts (four), but reallocated voters among the districts to maintain conformity

with the “one person, one vote” principle. The justice of the peace and constable

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plan reduced the number of constable and justice of the peace districts from

eight to five.

On October 14, the County submitted its redistricting plan for the county

commissioners election to the United States Department of Justice (DOJ) for

preclearance. The County’s plans for the constable and justice of the peace

elections were submitted a few days later. The submissions contained all

information required by the DOJ, including a provision that the new plans were

“effective on the later of January 1, 2012, or when preclearance is obtained.” 

II.

On November 14, 2011, one month after the County filed for preclearance

of its plan, the Plaintiffs brought this action in the federal district court alleging

that the redistricting plans violated the Constitution and the Voting Rights Act. 

The Plaintiffs sought a declaratory judgment that the proposed maps violated

the Constitution as well as Sections 2 and 5 of the Voting Rights Act, an

injunction to prevent the County from using the unprecleared maps, and an

injunction to preclude the County from engaging in unlawful voter registration

practices. The County assured the court, as it had the DOJ, that it would not

implement any maps before receiving preclearance from the DOJ. The district

court nevertheless granted the motion for a temporary restraining order (TRO)

on November 21. 

Upon the entry of the TRO, the district judge notified the Chief Judge of

the Fifth Circuit of the County’s request for a three-judge panel pursuant to

42 U.S.C. § 1973c(a) and 28 U.S.C. § 2284. The Chief Judge, in accordance with

§ 2284, designated two other judges to make up the panel. The three-judge

district court immediately held an evidentiary hearing on the TRO. At this

hearing, the Plaintiffs presented their own set of maps, which they urged the

court to adopt and implement as interim plans. Following the hearing, the court

vacated the TRO. The majority of the three-judge district court held that the

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Plaintiffs were not entitled to a TRO because the County was already seeking

preclearance from the DOJ. The dissenting judge made clear that not only

would he keep the TRO in place, he would also implement the Plaintiffs’ maps.

On December 19, the DOJ requested additional information from the

County relating to the maps and their potential impact on minority voters. 

Contending that this request indicated a decreased likelihood of preclearance,

the Plaintiffs asked the three-judge court to reconsider its decision vacating the

TRO. The County again argued that injunctive relief was unnecessary because

it would not take any action to implement the redistricting plans prior to

preclearance. The County provided affidavits from relevant employees reflecting

this commitment. Nonetheless, the court granted the Plaintiffs’ motion and

enjoined the County from taking any steps to enforce the unprecleared plans. 

The court again, however, refused to implement the maps that the Plaintiffs

proposed. 

In March 2012, the DOJ formally objected to both of the County’s

redistricting plans, that is the commissioner plan, and the justice of the peace

and constable plan. The DOJ found the plans retrogressive and raised concerns

that the County did not meet “its burden of showing that the proposed plan was

adopted with no discriminatory purpose.” Following the formal objection, the

County promptly entered into direct discussions with the DOJ in an attempt

speedily to obtain preclearance for a new set of maps. Shortly, on March 23, the

County and the DOJ jointly presented to the court a new precleared set of county

commissioner maps. Additionally, all parties agreed that the 2001 benchmark

map would govern the upcoming justice of the peace and constable elections.2

The three-judge court entered its final order directing that the elections be held

2 Because the justice of the peace and constable elections are not subject to the “one

person, one vote” principle, the 2001 maps could be used notwithstanding the changes in

population distribution.

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under these maps, permanently enjoining the County from implementing any

plans for the 2012 elections that had not been precleared, and dissolving the

three-judge court.

Following the dissolution,thePlaintiffs filed a motion to recover attorney’s

fees for the case before a single district court judge. The Plaintiffs contended

that the suit had resulted in postponing any elections until the County received

preclearance. Furthermore, the Plaintiffs asserted that their advocacy before

the DOJ had led to the County’s initial submissions being rejected. The County

opposed the grant of attorney’s fees on the grounds that the Plaintiffs were not

prevailing parties and thus not entitled to attorney’s fees. Upon considering the

arguments of the parties, the district judge entered an order awarding attorney’s

fees for all of the work claimed by the Plaintiffs, including the lobbying done

before the DOJ. The County appeals, challenging the award of attorney’s fees.

III.

The County raises two distinct challenges to the fee award. First, the

County argues that the Plaintiffs are entitled to no attorney’s fees because the

Plaintiffs have failed to satisfy the most fundamental requirement for a fee

award – prevailing party status. Because the Plaintiffs are not prevailing

parties, the County argues, the district court erred in awarding attorney’s fees.

Second, the County argues that, assuming the Plaintiffs are prevailing

parties in this injunction case, the district court erred in granting fees for

lobbying the DOJ during the preclearance process because this work is not

sufficiently related to the court litigation for fees to be awarded under

42 U.S.C. § 1973.

A.

We turn first to the County’s challenge to the Plaintiffs’ prevailing

party status under 42 U.S.C. § 1973l(e). In an action seeking to “enforce the

voting guarantees of the fourteenth or fifteenth amendment, the court, in its

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

reasonable attorney’s fee, reasonable expert fees, and other reasonable

litigation expenses as part of the costs.” 42 U.S.C. § 1973l(e). A district

court’s judgment awarding fees is reviewed for an abuse of discretion. Volk v.

Gonzalez, 262 F.3d 528, 534 (5th Cir. 2001). That discretion does not arise,

however, unless the claimant is a “prevailing party.” Whether a party is a

“prevailing party” is a legal question that we review de novo. El Paso Indep.

School Dist. v. Richard R., 591 F.3d 417, 422–23 (5th Cir. 2009). 

The Supreme Court has laid out the requirements for establishing

prevailing party status. Buckhannon Bd. & Care Home, Inc. v. West Virginia

Dep’t of Health & Human Resources, 532 U.S. 598 (2001). The Court held

that to achieve prevailing party status, a party must achieve some judicially

sanctioned relief that either creates or materially alters a legal relationship

between the parties. Id. at 604. Building on Buckhannon, this court has

established three requirements that must be satisfied for a plaintiff to

demonstrate prevailing party status: (1) the plaintiff must achieve judiciallysanctioned relief, (2) the relief must materially alter the legal relationship

between the parties, and (3) the relief must modify the defendant’s behavior

in a way that directly benefits the plaintiff at the time the relief is entered. 

See Dearmore v. City of Garland, 519 F.3d 517, 521 (5th Cir. 2008). When

moving for attorney’s fees, “the fee applicant bears the burden of establishing

entitlement to an award. . . .” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

Under this test, a plaintiff need not receive a final judgment in its

favor, but if the plaintiff’s success on a claim is purely technical or de

minimis, it is not a prevailing party. See Jenevein v. Willing, 605 F.3d 268,

271 (5th Cir. 2010); see also, Dearmore, 519 F.3d at 521. A plaintiff’s success,

however, need not address the central claim of the case; instead, a party may

attain prevailing status by succeeding on “any significant issue in litigation

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which achieves some of the benefit the parties sought in bringing suit.” Texas

State Teachers Ass’n v. Garland Indep. School Dist., 489 U.S. 782, 789 (1989)

(internal quotation marks omitted). It is also clear that a defendant’s

voluntary change in conduct, although perhaps achieving the relief that the

plaintiff desired, lacks the necessary judicial imprimatur to support

prevailing party status. Buckhannon, 532 U.S. at 605.

The parties agree that the first prong of the prevailing party analysis has

been satisfied – that is, the Plaintiffs achieved judicially-sanctioned relief

flowing from their complaint – a temporary, and then a permanent injunction.

The County, however, challenges whether the other two requirements

have been satisfied. First, the County argues that the judicially sanctioned relief

– the injunction – failed materially to alter the relationship between the parties;

consequently, the injunctive relief was purely technical or de minimis. The

County characterizes the relief as de minimis because the injunction only

required that the County continue its previously established conduct – refraining

from implementing any unprecleared redistricting plans.

Second, the County contends that, irrespective of whether the lawsuit

altered the relationship between the parties, it did not change the County’s

behavior in a way that benefitted the Plaintiffs. Specifically, the County argues

that notwithstanding this lawsuit, the County simply followed the routine

required by the Voting Rights Act: it sought preclearance from the DOJ, and,

when the electoral maps were questioned, it worked with the DOJ to resolve its

concerns; and once these concerns were resolved and preclearance granted, it

conducted the election under the precleared maps. Although this process and

preclearance may have benefitted the Plaintiffs, the County argues, those

benefits were the result of the County’s voluntary conduct, not the injunction.

In response to the County, the Plaintiffs argue that this lawsuit did in fact

materially alter the behavior of the County. They primarily emphasize that the

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injunction prevented the County from implementing its redistricting plans prior

to preclearance. Specifically, the Plaintiffs point to evidence that the County

was taking steps to implement the unprecleared plans. The Plaintiffs also point

to the DOJ’s initial denial of preclearance, which the Plaintiffs assert resulted

from their lobbying the DOJ. More generally, the Plaintiffs highlight the

undisputed relief granted from their original complaint: a temporary and

permanent injunction enjoining the County from implementing any

unprecleared redistricting plans. 

IV.

Now that we have addressed the applicable law and set out the respective

contentions of the parties, we will turn to consider, first, whether the injunction

materially altered the legal relationship between the parties and, second,

whether the injunction changed the County’s behavior in a way that benefitted

the Plaintiffs.

A.

In arguing that the injunction was a material legal victory, the Plaintiffs

contend that, before the injunction issued, the County was preparing to accept

candidate filings for the 2012 primary, was preparing to accept filing fees for the

2012 primary, and was preparing for precinct modifications. There is some

disagreement about whether the County was engaged in these activities or

whether the political parties in the County were responsible for them. The

Plaintiffs assert that the distinction is irrelevant and maintain that even if the

political parties have some role in the primaries, it is only as a subdivision of the

County government. The Plaintiffs are clearly correct that the actions of a

political party can be covered by Section 5 if the political parties “act under

authority” of a covered jurisdiction. See Morse v. Republican Party of

Virginia,517 U.S. 186, 194–95 (1996).

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Assuming, however, that the County was prepared to permit preliminary

filings and was in the process of determining potential polling locations, an

injunction to stop these activities is properly characterized as de minimis relief. 

To iterate what has been stated, the maps had already been submitted to the

DOJ for preclearance; and the County had already committed to refrain from

implementing the maps until they were precleared. This course of action was

neither prompted nor changed by the injunction. Although a new legal

relationship between the parties was created by filing the injunction, there is no

evidence that such a change materially affected the conduct of the County. It is

true that the injunction postponed some preliminary procedural steps that the

County (or the political parties) had undertaken to expedite the election once

precleared, but the changes were never permanently implemented before

preclearance. Filing fees could be refunded, candidate filings could be

resubmitted for the correct precinct, and new polling places could be found. In

short, these tentative pre-election steps were de minimis considerations to the

conduct of a future election and were amenable to a flexible response to conform

with the preclearance process.

In this way, this case is similar to Jenevein. Jenevein, a Texas state judge,

was censured by the Texas State Commission on Judicial Conduct for holding a

press conference in his courtroom while wearing his judicial robes. Jenevein, 605

F.3d at 269–70. He challenged his censure on First Amendment grounds, and

this court remanded, holding that the censure must be expunged to the extent

that it addressed his action beyond the use of his courtroom and robe to send his

message. Id. at 270. On remand, Jenevein filed a motion for attorney’s fees on

the basis that parts of his censure were ordered expunged. Id. Despite the

limited legal success of Jenevein’s appeal, this court held that he was not a

prevailing party. Id. at 272. We find the reasoning of Jenevein instructive in

this appeal; the panel held that Jenevein was not a prevailing party because only

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a few recurring sentences were stricken from the censure order, and all of the

violations of the Code of Judicial conduct remained on Jenevein’s record. So

despite Jenevein’s technical victory on some claims, that success did not change

significantly the outcome of the censure proceedings against him. 

In the same manner here, the injunction had no effect on the

implementation of the electoral map, either before or after preclearance. 

Preclearance had always been an express condition of any election, a position to

which the County unequivocally had committed itself. Thus, postponing these

preparatory activities for the eventual election under a precleared map cannot

be characterized as a material legal success, and consequently, the Plaintiffs

have failed to meet the test of prevailing parties.

B. 

Alternatively, and of equal import to our decision today, we hold that if

enjoining election preparations constituted a material change in the conduct of

the County, the record nevertheless fails to establish that the injunction directly

benefitted the Plaintiffs.3 The Plaintiffs argue, however, that by stymieing 

these initial preparatory steps, they were directly benefitted because the

injunction prevented the County from taking even further steps toward

executing its ultimate plan to conduct an election under the unprecleared maps. 

But the Plaintiffs engage in only speculation that this result – that is, that no

unprecleared election was ever conducted – flowed from the injunction. Once

again: The County voluntarily had, on the record, committed to the court and to

the DOJ to forbear making any permanent changes in the electoral map until

they were precleared by the DOJ. And the assurances were voluntarily made

before the injunction was issued. So, the fact that the County may have been

3 The test for prevailing party status is conjunctive, but we nevertheless address both

contested prongs to make clear that the judgment rendered herein, reversing the district court,

rests on both.

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enjoined from taking steps towards preparing for a precleared election did not

directly or materially benefit the Plaintiffs. Nor have the Plaintiffs shown

evidence of any benefit derived from the isolated act, in and of itself, of stopping

the County from making preliminary plans for the election. By failing to provide

any evidentiary support that the injunction prevented an illegal election – or

otherwise benefitted the Plaintiffs – the Plaintiffs have failed to meet their

burden of demonstrating that they are prevailing parties.4 See Dearmore, 519

F.3d at 521 (recognizing that to achieve prevailing party status, the relief

achieved must modify the defendant’s behavior in a way that directly benefits

the plaintiff at the time the relief is entered).

C.

The Plaintiffs also rely on the outcome of the preclearance proceeding

before the DOJ as evidence of their prevailing party status, even for purposes of

this injunction litigation. They assert that because the DOJ objected to the

County’s proposed maps and required further investigation of and ultimately

modification of, the County’s proposed plan, they are a prevailing party in this

litigation. Again, there is simply no evidence to support a causal connection

between the court injunction and the DOJ’s conduct. Because the County had

sought preclearance before this suit was filed, the preclearance process received

no jump-start from the Plaintiffs’ injunction; nor did the injunction motivate the

DOJ to act as far as this record shows. See Craig v. Gregg County, 988 F.2d 18,

4 The Plaintiffs do argue that the entry of the injunction itself demonstrates that the

three-judge district court felt that the County was moving towards holding an election under

an unprecleared plan. The Plaintiffs assert that if this were not the case, the injunction would

have been unnecessary and thus never entered. We do not see the need to speculate on the

motivation of the three-judge district court in entering the injunction. Suffice it to say that

the legal test for the appropriateness of an injunction is distinct from the test we are bound

to apply in determining prevailing party status. Compare Dennis Melancon, Inc. v. City of

New Orleans, 703 F.3d 262, 268 (5th Cir. 2012) (laying out the factors for determining whether

a preliminary injunction is warranted) with Dearmore, 519 F.3d at 521 (5th Cir. 2008)

(providing the test for prevailing party status).

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21 (5th Cir. 1993) (denying prevailing party status under the catalyst theory

when suit was filed after preclearance was sought). Although it is true that the

Plaintiffs lobbied the DOJ during the preclearance process, we have been shown

no evidence of the substance of the Plaintiffs’ presentations to the DOJ.5

Without such evidence, the Plaintiffs cannot meet their burden of demonstrating

that they are prevailing parties in the injunction litigation simply based on the

DOJ’s objection to the County’s proposed maps. In the absence of evidence to the

contrary, we must assume that whatever aspects of the proposed maps the DOJ

found objectionable under the Act would have been treated similarly by the DOJ

without the intervention of the Plaintiffs.6

V.

5 To the extent that we can divine from the record the effect that the Plaintiffs had on

the DOJ’s decision, the concerns of the DOJ’s objections provide weak support for the

Plaintiffs’ claims. Throughout the proceedings before the district court, the Plaintiffs

requested that the district court use its power to adopt the Plaintiffs’ proposed maps. The

district court consistently declined the invitation. In proposing these maps, the Plaintiffs

focused their objections on the makeup of District One for the county commissioner elections.

The Plaintiffs argued that the County’s proposed plan impermissibly decreased the Black and

Hispanic voting age population of District One, while the Plaintiffs’ proposed plan would

maintain an acceptable minority influence in the district. The DOJ’s objection letter, however,

focused entirely on the makeup of District Three for the county commissioner elections; and

in allaying the concerns of the DOJ, the County actually moved a predominantly Caucasian

neighborhood from District Three to District One, further diluting the combined proportion

of Blacks and Hispanics among the voting age population in District One. These actions do

not support that the DOJ was influenced by the recommendations of the Plaintiffs.

As to the justice of the peace and constable elections, the County did revert to using the

2001 benchmark plan – the same map that the Plaintiffs asked the district court to adopt –

after preclearance was initially denied, but the record contains no evidence that the Plaintiffs’

efforts caused the DOJ to object to the County’s submission. The mere fact that the DOJ and

the County, after negotiations, settled on the same preexisting map that the Plaintiffs

suggested does not inform whether the Plaintiffs influenced the DOJ’s decision to object to the

County’s plans.

6 Finally, the Plaintiffs appeal to the importance of attorney’s fees in civil rights

litigation, particularly when that litigation can only lead to equitable relief and not monetary

damages. We do not underestimate the importance of attorney’s fee awards to encourage

potential plaintiffs to bring suit, but this general policy argument is irrelevant to the issue of

this appeal.

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To conclude: We hold that the Plaintiffs are not prevailing parties because

the injunctive relief the Plaintiffs achieved was not material to the outcome of

this case, and, alternatively, nor did this relief directly or materially benefit the

Plaintiffs.7 Accordingly, the judgment of the district court is REVERSED and

the case is REMANDED for entry of judgment for Galveston County.

REVERSED and REMANDED for entry of judgment.

7 Because we hold that the Plaintiffs are not prevailing parties, we need not reach the

County’s second argument regarding the awarding of fees for lobbying the DOJ.

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