### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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: T h i s appeal presents only the question of whether t he Plaintiffs ar e prevailing parties in a voting rights case, entitling them to attorney’s fees. The underlying c ase arises from a dispute between the Plaintiffs

– seven elected officials and one citizen of Galveston County, Texas

– a n d G a l v eston County, 1 challenging the County’s redi s t ri c t i n g f o l l o w i n g th e 2 0 1 0 c e n s us, on grounds that U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D Decem ber 17, 2013 Ly l e W . Cay ce Clerk

1 The other nom inal d ef end ant in the cas e is M ark Henry. H enry is the County Jud ge and Chief O f

f icer of G alves ton County. Becaus e he is s ued only in his of f icial cap acity, w e w ill ref er to the C ounty as the d ef end ant. Case: 12-40856 Document: 00512474523 Page: 1 Date Filed: 12/17/2013No. 12-40856

the County’s proposed electoral maps violated the Constitution and t he Voting Rights Act. At t he conclusion of the adversary proceeding, the Plaintiffs moved f o r the award of attorney’s fees in accordance with 42 U.S.C. § 1973 l (e). T h e County opposed the award of attorney’s fees on the grounds that the Plaintiffs

were not prevailing parties. The district court r uled in favor of the Plaintiffs and awarded fees. T h e County now appeals. For the reasons that follow, we hold that the P laintiffs a re not p revailing parties and accordingly, are not entitled to attorney’s fees. We therefore REVERSE the j udgment of the district court and REMAND for entry of judgment for the County. I. The Voting R ights Act of 1965 requires tha t c e r t a in jurisdictions with histories of voting discrimination, known as “covered jurisdictions, ” receive specified approval before impl e m e n t ing changes to any “standard, practice, or
proc e d u r e with respect to voting.

. . . ” 42 U.S.C. § 1973c(a). The County is a covered jurisdiction. B efore m aking changes t o its e lection districts, the County
must receive p r e c l e a rance for those changes e ither b y filing a declaratory judgment action i n the United States District Court for the District o f C olumbia

or by soliciting preclearance from the Attorney General of the U nited States. I d

. In August 2011, the County drafted new election maps in response to the 2010 population changes and the “one pe r s on, one vote” constitutional requirement. T he pr o p o sed changes affected t h ree county elections: county commissioner, constable, a nd justice of the peace. O n August 3 0, after holding several public meetings and considering different plans, the County a dopted two orders – one p r o p o s i n g n e w b o u n daries for the county commissioner e lection, and the other proposing new boundaries for the co n s t a b l e and justice o f the peace election s
. T he county commissioner p lan maintained t he same number of districts (four), but reallocated voters a mong the di s t ri c t s t o m a i nt a in conformity with the “one person, one v ote” principle. The justice of the peace and constable

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plan reduced th e n u m ber o f constable and justice o f the peace districts from eight to five. On October 14, t h e C ounty submitted its redistricting p l an for the county commissioners election t o t he United States Department of Justice (DOJ) for preclearance. The County’s p l a n s for the constable and justice of the peace elections w e r e s u b m itted a few days later. T he submissions contained all information required by the DOJ, including a p rovision that the new plans were “effective on the later of January 1, 2012, or when preclearance is obtained.” I I. On November 14, 2011, one month after the County filed for p reclearance of i t s plan, the Plaintiffs b rought this action in the federal district court alleging that the redistricting plans violated the Constitution and t h e Voting Rights Act. The Plaintiffs sought a declaratory judgment that the proposed maps violated the Constitution as w ell a s S e c t i o n s 2 and 5 of the Voting Rights Act, an i nj u n c t i on to prevent the County from using the unprecleared maps, and an injunction to preclude the County from engaging i n u nlawful voter registration practices. The C o u n t y a ssured t he court, as it had the DOJ, that it w ould not implement any maps before receiving preclearance from the D OJ. The district
court nevertheless granted the motion for a temporary restraining o rder (TRO) on November 21. Upon the entry of t he TRO, the district judge notified the Chief Judge of the Fifth C ircuit of the County’s request for a three-jud g e p a nel p u rsuant to 42 U.S.C. § 1973c(a) and 28 U.S.C. § 2284. The C hief Judge, i n accordance with § 2 284, designated two other judges to make u p the p anel. T h e three-judge district c ourt immediately h e l d a n evidentiary hearing on the TRO. At this hearing, the Plaintiffs presented their own set of maps, whic h t h e y urged the
court to adopt and implement as interim plans. Following t he hearing, the court vacated the TRO. The majority of t he three-judge d istric t court held that the

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Plaintiffs w ere n o t entitled to a T RO because the County was already seeking preclearance from the DOJ. The dissenti n g judge made clear that not only would he keep the TRO in p lace, he would a lso implement the Plaintiffs’ maps. On D e c ember 19, the DOJ requested additional information from the County re l a t i n g t o the maps and their potential impact on minority voters. Contending t h a t this request indicated a decreased likelihood of preclearance, the Plaintiffs asked the three-judge c o urt to reconsider its decision v acating 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 preclear a n c e

. Th e C o u n ty p r o vi d e d a f f i d avits from relevant employees reflecting this commitment. N o n e theless, the court granted the Plaintiffs’ motion and enjoined the C o u nty from taking any steps to enforce the unprecleared plans. The court again, however, r ef u s e d to implement the maps t h at the Plaintiffs proposed. In March 2012, the DOJ formally o bjected to b oth o f t he County’s redistricting plans, that is the commissioner pla n , a n d the justice of the peace and constable plan. The DOJ found the p lans retrogressive and raised c oncerns that the County did not meet “its burden of showing that t he proposed plan was adopted with n o discriminatory purpose.” Following the formal o bjection, the County p romptly e ntered i n t o direct discussions with the DOJ in a n attempt speedily to obtain preclearance for a n ew set of maps. Shortly, on March 23, the County and the DOJ jointly presented to t h e court a new precleared s et of county commissioner maps. Additionally, all parties agreed that t he 2001 benchmark

map would govern the upcoming justice of the peace a nd co n s t a b l e e l ections. 2 The t hree-judge court entered its final order directing t h at the elections be held

2 Becaus e the jus tice of the p e a c e and cons table elections are not s ubject to the “one p ers on, one vote” p rincip le, the 2001 m ap s could be us ed notw iths t a n d i n g t he changes in p op ulation d is tribution.
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under these m a p s , p ermanently enjoining the County from i mplementing any plans for t he 2 012 elections t hat had n o t b e e n precleared, and dissolving the three-judge court. Following the di s s o l u t i o n , th e P laintiffs f iled a motion to recover a ttorney’s fees for the case before a s ingle d istrict court judge. T h e Plaintiffs contended that the s uit had resulted in postponing a ny elections until the County received preclearance. F urthermore, the Plaintiffs asserte d t h at their advocacy before the DOJ had led to the County’s initial s ubmissions b eing rejected. The County opposed the grant of attorney’s fees on the grounds that the P laintiffs were not prevailing parties and t hus not entitled to attorney’s fees. Upon considering the

ar gu m ents of the parties, t he district judge e ntered an o rder awarding a ttorney’s fees for all o f the work c laimed by th e P l aintiffs, including the l obbying done before the DOJ. The County appeals, challenging the award of attorney’s fees. III. The County raises two distinct challenge s to the f ee award. First, the County argues t hat the Plaintiffs are entitled to no attorney’s fees because the P l a i ntiffs have failed to satisfy the most fundamental requirement for a f e e award – prevailing pa rty status. Because the Plaintiffs are not prevailing parties, t he County argues, the d istrict court e rred in awarding attorney’s fees. Second, the C o u n t y argues that, assuming the P laintiffs a re prevailing parties in this injunction c a s e , t h e d istrict court erred i n granting fees for lobbying the D OJ d uring t he preclearance p rocess because this work is not sufficiently rel a t e d t o the court litigation for fees t o 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. § 1973 l ( 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. § 1973 l (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 todemonstrate 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 a nalysis has been satisfied – t hat is, the Plaintiffs achieved judicially-sanctioned relief flowing f rom their complaint – a temporary, and then a permanent injunction. The County, howev e r , c hallenges whether the other t wo requirements have been satisfied. First, t h e County argues that th e j u di c i ally sanctioned relief

– the i n junction – failed materially to alter the relationship between the parties; consequently, the injunctive relief was p urely t echnical or d e m i nimis. The County characterizes the relief as d e minimis because the injunction only

r e qu i r ed that the County continue its previously es t ab l i s h e d c o n du c t

– r e f r a i n i n g from implementing any unprecleared redistricting plans. Second, the County contends that, i r respective of whether th e lawsuit altered the relationship between the part i e s , it did not change the County’s behavior in a way that b enefitted the Plaintiffs. Specifically, t he County argues that notwithstanding t h i s l a w s u it, the County simply followed the routine required by t h e V o t i ng R ights Act: it sought p reclearance from the DOJ, and, when the electoral maps were questioned, it worked with the DOJ to resolve its

concerns; and once t h ese concerns were resolved and preclearance granted, it conducted the election under the precleared maps. Although th i s p r o c ess and preclearance m ay have benefitted the Plain t i f f s , t he County argues, those benefits were the result of the County’s voluntary conduct, not the injunction. In response to the County, the Plaintiffs argue t hat this lawsuit d id in fact materially alter the behavior of the County. They primarily e mphasize that the

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injunction prevented the County from implementing i t s redistricting p lans prior
to preclearance. Specifically, the Plaintiffs point t o evid e n c e t hat t h e County

was t aking steps t o i mplement the unprecleared plans. The Plaintiffs also point to the DOJ’s initial denial of preclearance, which the Plaintiffs assert resulted from thei r l o b bying the D OJ. More generally, the Plaintiffs highlight the undisputed relief granted from their origi n al c omplaint: a temporary and permanent i nj u n ction e njoining the County from implementing any unprecleared redistricting plans. IV. Now that we have addressed the a pplicable law and set out the respective contentions of the parties, we will turn to consider, f irst, whether the injunction materially altered the legal re l a t i o n s hip between the p arties 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 t he injunction issued, t he County was preparing to accept candidate f

ilings for the 2 012 primary, was p reparing to accept f iling fees for the 2012 primary, and was preparing for precinct modificat i o n s
. There is some disagreement about whether the County was engaged in these activities or wh e t h e r 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 P laintiffs are clearly correct t h a t t h e a c tions of a political party can be c overed by Section 5 i f t he political p arties “act under authority” of a covered jurisdiction. Se e M o r se v. Republican P arty of Virginia ,517 U.S. 186, 194–95 (1996).

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Assuming, however, that the County was prepared to permit p reliminary filings and was i n the process of det e rmining potential polling locations, an injunction to stop these activities is properly characterized a s de minimis relief. To iterate w h a t has been stated, the maps had already been submitted to the DOJ f or p reclearance; and the County had a lready committed to refrain from implementing the maps until they were precleared. This course of acti o n was neither prompted nor changed by the i njunction. Alth o u g h a new legal relationship between the parties w as created by f iling the injunction, there is no evidence that such a change m aterially affected the conduct of the County. It is
true that the i njunction postponed some preliminary procedural steps that the County (or the political parties) had undert a k e n t o expedite the election once precleared, b ut the changes were never permanently imp l e m e n ted before preclearance. Filing fees co u l d b e refunded, candidate filings c ould be resubmitted for t he 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 e lection and were amenable t o a flexible response to conform with the preclearance process. In this way, this case is similar to Jenevein

. Jenevein, a T exas s t ate judge,

was censured by the Texas State Commission on Judicial Conduct f or holding a
press conference i n his c ourtroom while wearing h is judicial robes

. J e nevein , 605 F.3d at 269–70. He challenged his censure on First Amendment grounds, and this court remanded, holding that the censure must be e xpunged t o t he extent that it addressed his a ction b eyond the u s e of his courtroom and robe to send his

message. Id

. at 2 70. On remand, Jenevein filed a motion for attorney’s fees on the basis t hat p arts of his c e n s u r e w e r e ordered expunged. Id

. Despite the limited legal success of Jenevein’s appeal, this court held that he w a s n o t 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 b ecause only

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a few r ecurring sentences were stricken from the censure or d e r , and a ll of the violations of t he Code of Judicial co n d u c t remained on Jenevein’s record. So despite Jenevein’s technical victory on s o me claims, that s uccess did n ot change significantly the outcome of the censure proceedings against him. In the s ame manner here, the injunction h a d n o effect on the implementat i o n o f the e lectoral m ap, either before or after preclearance. Preclearance h ad always been an express condition of any election, a position to which the County unequivocally had committed i tself. 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 o ur decision t o d a y , we hold that if enjoining election preparations constituted a material change i n the conduct of the County, the record nevertheless fails to establish t hat the i njunction directly benefitted the P laintiffs. 3 The P laintiffs argue, h o w ever, t h at by stymieing these i nitial p reparatory s teps, they w e r e d irectly benefitted because the injunction prevented the County f rom takin g e v en further steps toward executing i ts ultimate plan t o conduct an election under the unprecleared maps. But t he Plaintiffs engage in only speculat i o n t h a t t h is result – that is, that no unpreclea r e d election w as ever conducted – flowed from the injunction. Once again: The County voluntarily had, o n the record, committed to the court and to the DOJ to for b e a r m a king any permanent changes in the electoral map until they were precleared by the DOJ. And the assurances were v o l u n t a r ily made before t he injunction was issued. So, the fact t h at t he County may have been

3 The tes t f

or prevailing p arty s tatus is conjunctive, but w e nevertheles s ad d res s both contes ted p rongs to m ak e clear that the jud g me n t rend ered herein, revers ing the d is trict court,
res ts on both.
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enjoined from taking steps towards p reparing for a preclear ed election did not directly or materially benefit the Pl a i n t iffs. Nor have the Plaintiffs shown evidence of any benefit derived from the isolated act, in and of itself, of stopping the C ounty f

r om making p reliminary plans for the election. By failing to provide

any evidentiary s upport that the injunction prevented a n illegal election – or otherwise be n e f

i t t e d the Plaintiffs

– the Plaintiffs have failed to meet their burden of demonstrating t hat they are p r evailing parties. 4 See Dearmore , 519 F.3 d a t 521 (recognizing that to achieve prevailing party status, the relief achieved must modify t he defendant’s behavior i n a way that directly benefits the plaintiff at the time the relief is entered). C. The Pla i n t i f

f s also rely on the outcome of the preclearance proceeding before the DOJ as evidence o f their prevailing party status, even for purposes of this injunction litigation. They a ssert that becau s e t h e D O J objected to the County’s proposed maps and required furthe r investigation o f a nd u ltimately modification of, the County’s proposed plan, they are a prevailing party in this litigation. Again, there is simply n o e v i d ence to support a causal connection between the court injunction and the D OJ’s conduct. Because the County had sought preclearance before this suit was filed, the preclearance process received

no j ump-start from the Plaintiffs’ injunction; nor did the injunction motivate the DOJ to act as f

ar as this record shows. See Craig v. Gregg County , 988 F.2d 18,

4 The Plaintif

f s d o argue that the entry of the injunction its elf d em ons trates that the three- jud ge d is trict court f elt that the County w as m oving tow ard s hold ing an election und er an unp recleared p lan. The Plaintif f s as s ert that if this w ere not the cas e, the injunction w ould have been unneces s ary and thus never entered

. We d o not see the need t o s p eculate on the

m otivati o n of the three- jud ge d is trict court in entering the injunction. Suf f ice it to s ay that the legal tes t f

or the ap p rop riatenes s of an injunction is d is tinct f rom the tes t we are bound to ap ply in d eterm ining p revailing p arty s tatus

. Com p a re D enni s M

el ancon, Inc. v

. Ci ty of N ew O rl ea ns , 703 F. 3d 262, 268 ( 5th Cir. 2012) (laying out the factors f or d eterm ining w hether

a prelim inary injunction is w arranted ) w i th D ea rm ore , 519 F .3d at 521 (5th Cir. 2008) ( p rovid ing the tes t f

or prevailing p arty s tatus )

.

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2 1 ( 5 th Cir. 1993) (denying p revailing party s tatus u nder the catalyst theo r y when suit was filed after preclearance was sought). Although it is t rue that the Plaintiffs lobbied the DOJ during the preclearance p rocess, we h ave been shown

no evidence o f the substance of t he P l a intiffs’ presentations to the DOJ. 5 Without such e vidence, the Pl a i n t if f s c annot meet their burden of demonstrating that they a re prevailing p arties in the injunction litigation s imply b ased on the DOJ’s o bjection to the County’s proposed maps. In the absence of evidence to the contrary, we must a ssume that whatever aspects of t he proposed maps the DOJ found o bjectionable u nder the Act would have been treated similarly by the DOJ without the intervention of the Plaintiffs. 6 V.

5 To the extent that w e can d ivine f rom the record the ef

f ect that the Plaintif

f s had on the D O J’s d ecis ion, the c o n c e r n s o f the D O J’s objections p rovid e weak s up p ort f or the Plaintif f s ’ claim s
. Throughout the p roceed in g s bef ore the d is trict court, the Plaintif f s reques ted that the d is tr i c t court us e its p ow er to ad op t the P laintif f s ’ p rop os ed m ap s
. T he d i s t r ict court cons is tently d eclined the invitation. In p rop os ing thes e map s , the Plaintif fs f ocus ed their objections on the m ak eup of D is trict O ne f or the county com m is s ioner elections

. The Plaintif

fs argued that the County’s p rop os ed p lan im p erm is s ibly d ecreas ed the B lack and H is p anic voting age p op ulation of D is trict O ne, w hile the Plaintif f s ’ p r o pos ed p lan w ould

m aintain an accep table m inority inf luence in the d is trict. The D O J’s objection letter, how ever, f ocus ed entirely on the m ak eup of D is trict Three f or the county com m is sioner elections ; and in allaying the concerns of the D O J, the County actually m oved a p red om inantly C aucas ian neighborho o d f

r o m D is trict Three to D is trict O ne, f urther d iluting the com bined p rop ortion of Black s and His p anics am ong the voting age pop ulation in D is trict One. Thes e actions d o not s up p ort that the D OJ w as inf luenced by the recom m end ations of the Plaintif fs

. As to the j us tice of the p eace and cons table elections , the County d id revert to us ing the 2001 benchm ark p lan – the sam e m ap that the Plaintif f s as k ed the d is trict court to ad op t

– af ter preclearance w as initially d enied , but the record contains no evid ence that the Plaintif f s ’ ef f orts caus ed the D O J to object to the County’s subm is sion. The m ere f act that the D O J and t he County, af

ter negotiations , s ettled on the s am e p reexis ting m ap that the Plain t i f fs s ugges ted d oes not inf orm w hether the Plaintif f s inf luenced the D O J’s d ecis ion to object to the County’s p lans

.

6 F inally, the Plaintif f s ap p eal to the im p ortance o f a ttorney’s f ees in civil rights litigation, p articularly w hen that litigation can only lead to equitable relief and not monetary d am ages

. We d o not und eres t i m a t e t h e im p ortance of attorney’s f ee aw ard s to encourage p otential p laintif

f s to bring s uit, but this general p olicy argum ent is irrelevant to the is s ue of this ap p eal.
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To conclude: We h old t hat the Plaintiffs are not prevailing p arties because the injunctive relief t he P laintiffs achieved was not material to the outcome of this c a se, and, alternatively, nor did this relief directly or materially benefit the Plaintiffs. 7 Accordingly, the judgment of t he district c o urt is REVERSED and the case is REMANDED for entry of judgment for Galveston County. R EVERSED and REMANDED for entry of judgment.

7 Becaus e w e hold that the Plaintif f s are not p revailing parties , we need not reach the County’s s econd argum ent regard ing the aw ard ing of f ees f or lobbying the D O J.
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