United States Court of Appeals

for the Fifth Circuit ___________ 

No. 20-20328

___________ 

Joe Richard Pool, III; Trenton Donn Pool; 

Accelevate2020, L.L.C.,

Plaintiffs—Appellants,

versus

City of Houston; Anna Russell, in her official capacity as the 

City Secretary of the City of Houston,

Defendants—Appellees.

______________________________ 

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:19-CV-2236 

______________________________ 

Before Willett, Ho, and Duncan, Circuit Judges.

Per Curiam: *

Joe Pool and Richard Pool sued the City of Houston under 42 U.S.C. 

§ 1983 for alleged violations of their First and Fourteenth Amendment 

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this 

opinion should not be published and is not precedent except under the limited 

circumstances set forth in 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 15, 2021

Lyle W. Cayce

Clerk

Case: 20-20328 Document: 00515900496 Page: 1 Date Filed: 06/15/2021
No. 20-20328

2

rights. 1 They challenged provisions of the City’s home-rule charter 

mandating certain residency and voter registration requirements be met by 

individuals seeking to gather signatures and place initiatives and referenda on 

ballots through petitions. Houston, Tex., City Charter, art. VII-a, 

§ 2; art VII-b §§ 2–3. Under these Charter provisions, the Pools are 

ineligible to circulate petitions. Seeking to place a proposed ordinance 

limiting campaign contributions from City contractors to candidates for 

municipal office on the Houston ballot, they initiated this suit in 2019.

They sought a preliminary injunction permitting them to gather 

signatures for this petition, a declaratory judgment that the challenged 

provisions of the Charter are unconstitutional, permanent injunctive relief, 

and nominal damages. They also sought and were granted a temporary 

restraining order (TRO) allowing them to conduct their activities through the 

relevant deadline for placing initiatives on the ballot. The district court later 

dismissed the Pools’ claims as moot. The Pools moved to alter or amend the 

judgment under Federal Rule of Civil Procedure 59(e), but the district court 

concluded that there was no longer a live controversy and denied the motion.

The Pools appealed, and this court—finding that the Pools have 

standing and that their claims are not moot—reversed and remanded to the 

district court, where the merits of this suit now lie. Pool v. City of Houston, 

978 F.3d 307, 314 (5th Cir. 2020).

The appeal before us now concerns only the Pools’ quest for 

attorney’s fees for the portion of the litigation resulting in the grant of the 

TRO. They moved for attorney’s fees under 42 U.S.C. § 1988, but the 

district court denied the motion on the ground that the Pools failed to 

demonstrate that they are “prevailing parties.” 42 U.S.C. § 1988; Dearmore 

1 Accelevate2020, L.L.C. is Trent Pool’s company, and we refer to the Plaintiffs 

collectively as “the Pools.”

Case: 20-20328 Document: 00515900496 Page: 2 Date Filed: 06/15/2021
No. 20-20328

3

v. City of Garland, 519 F.3d 517, 521 (5th Cir. 2008) (prevailing party status 

requires a plaintiff to “(1) obtain actual relief, such as an enforceable 

judgment or a consent decree; (2) that materially alters the legal relationship 

between the parties; and (3) modifies the defendant’s behavior in a way that 

directly benefits the plaintiff at the time of judgment or settlement”) (citation 

omitted).

The City has moved to dismiss this appeal on ripeness grounds 

because the Pools’ merits challenge to the Charter is now back before the 

district court, which can reaffirm, reverse, or modify its decision with respect 

to attorney’s fees connected to those claims. It maintains that we lack 

appellate jurisdiction because the district court’s order denying attorney’s 

fees is not final and has not “dispose[d] finally of the attorney’s fee 

question.” Shipes v. Trinity Indus., Inc., 883 F.2d 339, 341–42 (5th Cir. 1989). 

See also Ruiz v. Estelle, 609 F.2d 118, 118–19 (5th Cir. 1980) (finding that an 

interim award of attorney’s fees under § 1988 was not final under 28 U.S.C. 

§ 1291 because it “did not conclusively determine the issue [and] was 

manifestly subject to later reconsideration by the [district] court”).

The Pools “agree that there is no reason for the parties or this court 

to expend further resources litigating this fee appeal in light of the merits 

remand.” They concede that they “can request fees at the conclusion of the 

case . . . including fees incurred with respect to the TRO,” regardless of 

whether they ultimately win on the merits at the district court; that “the 

district court has the authority to reconsider, modify, or consider anew the 

issue of prevailing party status”; and that they “will still be able to seek fees 

in the district court for all phases of the case,” even if this appeal is dismissed 

for lack of jurisdiction or for prudential reasons. They ultimately only dispute 

the City’s contention that we lack jurisdiction to hear the appeal, arguing that 

the denial of attorney’s fees was final at time this appeal was filed because it 

followed the district court’s denial of their Rule 59(e) motion.

Case: 20-20328 Document: 00515900496 Page: 3 Date Filed: 06/15/2021
No. 20-20328

4

But that is not the relevant timeframe for determining ripeness. As 

“ripeness is peculiarly a question of timing, it is the situation now rather than 

the situation at the time of the District Court’s decision that must govern.” 

Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974). See also 

Anderson v. Green, 513 U.S. 557, 559 (1995) (per curiam) (action taken by 

court of appeals after the Supreme Court’s grant of certiorari made the claim 

unripe). “[I]n weighing a ripeness claim, an appellate court may properly 

consider events occurring after the trial court’s decision.” DM Arbor Ct., 

Ltd. v. City of Houston, 988 F.3d 215, 219 (5th Cir. 2021) (quoting New 

Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 833 F.2d 583, 586 

n.2 (5th Cir. 1987). See also 13B Charles Alan Wright et al., 

Federal Practice and Procedure § 3532.7 (3rd ed. 2020) 

(“Ripeness should be decided on the basis of all the information available to 

the court. Intervening events that occur after decision in lower courts should 

be included . . . .”).

Our remand of the merits case rendered the order denying attorney’s 

fees interim. A district court’s award or denial of interim attorney’s fees is 

not a final order within the meaning of § 1291 and does not fall within the 

collateral order doctrine. See, e.g., Shipes, 883 F.2d at 341–45; Ruiz, 609 F.2d 

at 118–19.

Accordingly, there is no jurisdictional basis for this appeal, and the 

City’s motion to dismiss the appeal is granted.2

2 We do not consider and pass no judgment upon the district court’s analysis or 

any of the parties’ arguments with respect to “prevailing party” status.

Case: 20-20328 Document: 00515900496 Page: 4 Date Filed: 06/15/2021