[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-10028

________________________

D.C. Docket No. 2:14-cv-01091-RDP

APRIL AARON-BRUSH, 

GINGER AARON-BRUSH, 

 Plaintiffs - Appellants,

versus

ATTORNEY GENERAL STATE OF ALABAMA, 

in his official capacity as Attorney General of Alabama, 

JULIE MAGEE, 

in her official capacity as Commissioner of Revenue of the 

State of Alabama, 

HUGH B. MCCALL, 

Colonel, in his official capacity as Director of the 

Alabama Department of Public Safety, 

 Defendants - Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

________________________

(January 30, 2017)

Case: 16-10028 Date Filed: 01/30/2017 Page: 1 of 9 
2

Before WILSON and JILL PRYOR, Circuit Judges, and BARTLE,* District Judge.

PER CURIAM: 

Plaintiffs April and Ginger Aaron-Brush, a same-sex couple married in 

Massachusetts and living in Alabama, sued the Alabama Attorney General, 

Commissioner of Revenue, and Director of the Department of Public Safety under 

42 U.S.C. § 1983 for Alabama’s refusal to recognize their legal marriage. During 

the course of the parties’ litigation but before the district court ruled on the merits 

of the Aaron-Brushes’ claims, the Supreme Court in Obergefell v. Hodges, 135 S. 

Ct. 2584 (2015), recognized a constitutional right of same-sex couples to marry 

and the obligation of states to recognize those couples’ marital rights. After 

Obergefell, the district court convened a conference with the parties at which the 

defendants agreed to comply with the Supreme Court’s decision and, specifically, 

to ensure that the Aaron-Brushes were able to receive new driver’s licenses from 

the Department of Public Safety and to file their taxes jointly. After the 

conference, the district court dismissed the Aaron-Brushes’ claims as moot and 

denied the couple’s motion for attorney’s fees. In this appeal from the denial of 

attorney’s fees, we must decide whether there was a judicially sanctioned change 

in the relationship of the parties that would justify an award of attorney’s fees. 

 * Honorable Harvey Bartle III, United States District Judge for the Eastern District of 

Pennsylvania, sitting by designation.

Case: 16-10028 Date Filed: 01/30/2017 Page: 2 of 9 
3

After careful review, and with the benefit of oral argument, we conclude that there 

was no such judicially sanctioned change and affirm the district court’s ruling.

I. Background

The Aaron-Brushes were married in Massachusetts in 2012. Despite the 

legality of their marriage under Massachusetts law, Alabama refused to recognize 

the marriage and its appurtenant rights, including the rights to file tax returns 

jointly and to obtain driver’s licenses that reflected their marriage, because

Alabama banned same-sex marriage under its state constitution and statutory code. 

See Ala. Const. art. 1, § 36.03; Ala. Code § 30-1-19. The couple sued the 

defendants under 42 U.S.C. § 1983, alleging that the refusal to recognize their 

marriage violated their rights under the Due Process and Equal Protection Clauses 

of the Fourteenth Amendment to the United States Constitution. The couple 

requested relief in the form of a declaratory judgment that Alabama’s same-sex 

marriage ban was unconstitutional and permanent injunctions directing the 

defendants to recognize marriages validly entered into outside of Alabama and 

preventing the defendants from enforcing the state’s marriage ban.

When the Supreme Court granted certiorari in Obergefell, the parties jointly 

asked the district court for an extension of time to file dispositive motions. The 

district court granted the motion. When the Supreme Court in Obergefell

recognized the right of same-sex couples to marry and the obligation of states to 

Case: 16-10028 Date Filed: 01/30/2017 Page: 3 of 9 
4

recognize these marriages, the parties filed a joint motion to set a briefing 

schedule, which stated: “The parties are now in agreement that the Supreme 

Court’s decision in Obergefell v. Hodges . . . conclusively resolves the legal issues 

in this case and that no further briefing on the merits is necessary.” Doc. 26 at 1.1

 

Nonetheless, “the parties disagree[d] as to the proper course of action.” Id. The 

parties asked the court for a new briefing schedule pursuant to which they could 

address these remaining disagreements. 

In response to the motion, the district court held a status conference. The 

court opened the conference by asking, “Do we all agree that [Obergefell] is now 

the law of the land?” Doc. 50-1 at 4. Both sides agreed that it was the law of the 

land and was binding on the defendants. When asked whether “each of the 

defendants [was] committed to complying with the Supreme Court’s decision,” the 

defendants affirmed that they were. Id. 

Notwithstanding the defendants’ concessions, the Aaron-Brushes requested 

that the district court grant them relief, either in the form of an injunction, a 

consent judgment, or a declaratory judgment. The district court expressed 

skepticism that these forms of relief would be necessary or appropriate because the 

defendants had already conceded that Obergefell bound them. But, when the 

Aaron-Brushes reiterated that, in addition to a statement that the defendants would 

 

1 “Doc.” refers to the numbered entry on the district court’s docket in this case.

Case: 16-10028 Date Filed: 01/30/2017 Page: 4 of 9 
5

recognize their marriage, they wanted their names changed on their driver’s 

licenses to reflect their marriage and assurances that they could file taxes jointly, 

the district court facilitated those requests. The court proposed that the defendants: 

(1) deliver to the Aaron-Brushes a letter stating that the Alabama Department of 

Revenue would allow them to file their taxes jointly; (2) help coordinate the 

Aaron-Brushes’ visit to the Department of Public Safety to obtain new licenses; 

and (3) notify the court in writing that they had completed these two steps and 

agreed to be bound by Obergefell. The defendants agreed to take these steps.

The defendants thereafter filed a notice in conformance with the district 

court’s directive. The Aaron-Brushes responded to the notice by requesting that 

the district court issue a declaratory judgment and permanent injunctions as sought 

in their complaint. The defendants moved to dismiss the action as moot. The 

district court denied the Aaron-Brushes’ request and granted the defendants’ 

motion. The Aaron-Brushes did not appeal the mootness order; rather, they moved 

for attorney’s fees under 42 U.S.C. § 1988(b), which permits a “prevailing party” 

(other than the United States) in § 1983 litigation to recover a reasonable attorney’s 

fee. The district court denied the motion for attorney’s fees, concluding that the 

Aaron-Brushes were not prevailing parties. 

This is the Aaron-Brushes’ appeal of the denial of an attorney’s fee award.

Case: 16-10028 Date Filed: 01/30/2017 Page: 5 of 9 
6

II. Standard of Review

“We review the factual findings underlying a district court’s determination 

regarding ‘prevailing party’ status for clear error.” Church of Scientology Flag 

Serv., Org. v. City of Clearwater, 2 F.3d 1509, 1512 (11th Cir. 1993). “Whether 

the facts as found suffice to render the plaintiff a ‘prevailing party’ is a legal 

question reviewed de novo.” Id. at 1513. Because the parties dispute whether the 

facts as found sufficed to render the Aaron-Brushes prevailing parties under 

§ 1988(b), our review is de novo.

III. Discussion

“In the United States, parties are ordinarily required to bear their own 

attorney’s fees—the prevailing party is not entitled to collect from the loser . . . . 

Congress, however, has authorized the award for attorney’s fees to the ‘prevailing 

party’ in numerous statutes,” including § 1988(b). Buckhannon Bd. & Care Home, 

Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 602 (2001). A 

plaintiff “prevails” within the meaning of Buckhannon when an action of the 

district court involves a “court-ordered change in the legal relationship between the 

plaintiff and the defendant,” such as a judgment on the merits of her claim, a 

consent decree, or a settlement agreement that the district court either incorporates 

into its final order of dismissal or explicitly retains jurisdiction to enforce. Id.

(alterations and internal quotation marks omitted); see Am. Disability Ass’n v. 

Case: 16-10028 Date Filed: 01/30/2017 Page: 6 of 9 
7

Chmielarz, 289 F.3d 1315, 1319-20 (11th Cir. 2002) (noting that the judicial 

actions discussed in Buckhannon—relief on the merits and consent decrees—are 

merely examples of actions through which a plaintiff may “prevail,” emphasizing 

that “[t]he essential test established by the [Buckhannon] Court requires the 

plaintiff to achieve a ‘judicially sanctioned change in the legal relationship of the 

parties.’” (quoting Buckhannon, 532 U.S. at 605)). Conversely, 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.” Buckhannon, 532 U.S. at 605.

The characteristic shared by judicial actions that pass Buckhannon’s test is 

that such actions entail district court oversight and enforcement authority. See 

Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 279-81 (4th Cir. 2002). Whereas 

private settlements “do not entail . . . judicial approval and oversight” and therefore 

cannot satisfy Buckhannon, consent decrees and settlement agreements approved 

by the court—which do satisfy Buckhannon—involve an “obligation to comply” 

with the court’s directives. Id. (internal quotation marks omitted); see also 

Roberson v. Giuliani, 346 F.3d 75, 83 (2d Cir. 2003) (“In the case of both consent 

decrees and private settlement agreements over which a district court retains 

enforcement jurisdiction, the district court has the authority to force compliance 

with the terms agreed upon by the parties.”).

Case: 16-10028 Date Filed: 01/30/2017 Page: 7 of 9 
8

The Aaron-Brushes contend that the district court’s directives during the 

status conference constituted a judicially sanctioned change in the parties’

relationship within the meaning of Buckhannon. Again, these three directives were 

that the defendants submit a letter confirming that the couple could file taxes 

jointly, coordinate the couple’s trip to the Department of Public Safety for new 

driver’s licenses, and file a notice with the court stating the defendants’ intent to 

comply with Obergefell. In our view, the district court’s directives were too 

informal to satisfy Buckhannon’s test. The record reflects that after the parties 

jointly notified the district court that Obergefell resolved the legal issues in the 

case, the district court confirmed the defendants’ recognition of the AaronBrushes’ rights under Obergefell and moderated the parties’ agreements to satisfy 

the couple’s specific concerns about their ability to exercise those rights in 

Alabama. Instead of directing the parties to act or else face the court’s 

enforcement, the district court supplied the parties with suggestions for facilitating 

the defendants’ voluntary compliance. 

Put another way, the defendants’ agreement to comply with Obergefell, 

rather than district court’s directives, was the impetus for the parties’ resolution of 

their dispute. Thus, on this record, the Aaron-Brushes have not demonstrated that 

they benefitted from a judicially sanctioned change in their legal relationship with 

the defendants such that they must be deemed prevailing parties under § 1988(b). 

Case: 16-10028 Date Filed: 01/30/2017 Page: 8 of 9 
9

IV. Conclusion

For these reasons, we affirm the district court’s denial of the Aaron-Brushes’ 

motion for attorney’s fees.

AFFIRMED.

Case: 16-10028 Date Filed: 01/30/2017 Page: 9 of 9