IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-30321

Summary Calendar

RICHARD C. BENTLEY,

Plaintiff – Appellant

v.

BOBBY FANGUY,

Defendant – Appellee

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 6:08-CV-600

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:

*

Richard C. Bentley brought suit against his former neighbor, Bobby

Fanguy for alleged violations of the Clean Water Act (CWA). The district court

dismissed the lawsuit pursuant to Rule 12(b)(6) and taxed Bentley with costs.

In a subsequent order, the district court awarded Fanguy $5,976 in attorney’s

fees. On appeal, Bentley does not challenge the dismissal of his complaint, but

rather argues that the district court erred in awarding Fanguy attorney’s fees

United States Court of Appeals

Fifth Circuit

F I L E D

September 27, 2010

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 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not be published and is not precedent except under the limited circumstances set forth in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 CIR. R. 47.5.4.

Case: 10-30321 Document: 00511245119 Page: 1 Date Filed: 09/27/2010
because he is not a “prevailing or substantially prevailing party” for purposes of

the Clean Water Act.

We review “the district court’s award of attorney’s fees for abuse of

discretion.” Gagnon v. United Technisource Inc., 607 F.3d 1036, 1043 (5th Cir.

2010) (citation omitted). The district court summarily dismissed Bentley’s

complaint and subsequently awarded attorney’s fees after conducting a hearing

in which the court concluded:

I don’t think this [complaint] complies with the Clean Water Act. I

think it is a tremendous stretch of the imagination. This is a – this

is litigation between two neighbors, who, for whatever reason, can’t

get along. And whatever problems there are, this belongs in state

court where it is firmly rested and I am going to dismiss this action

at plaintiff’s cost.

Bentley argues that the district court erred in awarding Fanguy attorney’s

fees as a prevailing or substantially prevailing party because the dismissal of the

lawsuit obtained by Fanguy did not create a material alteration of the parties’

legal relationship. We disagree.

The “American Rule” is the starting point for fee awards: Even prevailing

litigants are ordinarily not entitled to attorney’s fees from the losing party.

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Servs.,

532 U.S. 598, 602 (2001). Under the American Rule, a fee-shift is allowed only

if there is some “specific and explicit” statutory exception. See, e.g., Alyeska

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 260 (1975). Under the CWA,

Congress has provided for such a fee-shift in 33 U.S.C. § 1365(d), which, in

relevant part provides:

The court, in issuing any final order in any action brought pursuant

to this section, may award costs of litigation (including reasonable

attorney and expert witness fees) to any prevailing or substantially

prevailing party, whenever the court determines such award is

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appropriate.

Id. While this court has not specifically addressed whether a defendant who

obtains a dismissal with prejudice is a prevailing or substantially prevailing

party for purposes of the CWA, we have considered that question in analogous

areas.

In Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, the

Supreme Court interpreted § 304(d) of the Clean Air Act (CAA), which

authorizes an award of attorney’s fees to a successful party. 478 U.S. 546, 560

(1986). Relevant here, the Court interpreted § 304(d) of the CAA in the same

manner as the Civil Rights Attorney’s Fee Awards Act of 1976, 42 U.S.C. § 1988,

stating “[g]iven the common purpose of both § 304(d) and § 1988 to promote

citizen enforcement of important federal policies, we find no reason not to

interpret both provisions governing attorney’s fees in the same manner.” Id.

“The language of § 304(d) of the CAA is essentially the same as § 1365(d), the

attorney’s fees provision of the CWA before us today.” St. John’s Organic Farm

v. Gem Cnty. Mosquito Abatement Dist., 574 F.3d 1054, 1062-1063 (9th Cir.

2009). “The only difference is the absence of any ‘prevailing party’ language in

§ 304(d), but the Supreme Court has read ‘prevailing party’ into § 304(d) and

other attorney’s fees provisions in environmental statutes.” Id. (citing Penn. v.

Del. Valley Citizens’ Council for Clean Air (“Delaware Valley II”), 483 U.S. 711,

713 (1987); Ruckelshaus v. Sierra Club, 463 U.S. 680, 682 n.1 (1983)).

In Anthony v. Marion County General Hospital, we concluded that a

defendant was a prevailing party under § 1988 when a plaintiff’s Title VII racial

discrimination suit was involuntarily dismissed with prejudice for want of

prosecution. 617 F.2d 1164, 1169–70 (5th Cir. 1980). We stated that:

Although there has not been an adjudication on the merits in the

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sense of a weighing of facts, there remains the fact that a dismissal

with prejudice is deemed an adjudication on the merits for the

purposes of res judicata. As such, the [defendant] has clearly

prevailed in this litigation.

Id. (5th Cir. 1980) (emphasis added); see also, e.g., Schwarz v. Folloder, 767 F.2d

125, 130 (5th. Cir. 1985) (“[A] dismissal with prejudice gives the defendant the

full relief to which he is legally entitled and is tantamount to a judgment on the

merits.”).

Fanguy obtained a dismissal with prejudice of Bentley’s CWA claim. This

outcome gave Fanguy “the full relief to which he is legally entitled and is

tantamount to a judgment on the merits.” Id. As such, Fanguy has “clearly

prevailed in this litigation,” Anthony, 617 F.2d at 1170, and, as such, the district

court did not err in awarding him attorney’s fees under the CWA as a prevailing

party.

The judgment of the district court is AFFIRMED.

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