LISA ROMAIN; STACEY GIBSON; JOANIKA DAVIS; SCHEVELLI ROBERTSON; JERICHO MACKLIN; DAMEION WILLIAMS; BRIAN TRINCHARD, Plaintiffs - Appellants
MARKETA GARNER WALTERS, in her official capacity as Secretary, Department of Children & Family Services, Defendant-Appellee
from the United States District Court for the Eastern
District of Louisiana ON PETITION FOR REHEARING EN BANC
WIENER, DENNIS, and HAYNES, Circuit Judges.
court having been polled at the request of one of its
members, and a majority of the judges who are in regular
active service and not disqualified not having voted in favor
(Fed. R. App. P. 35 and 5th Cir. R. 35), en banc
reconsideration of this case is DENIED. In the en banc poll,
six judges voted in favor of rehearing (Judges Jolly, Jones,
Smith, Clement, Owen and Elrod) and eight judges voted
against rehearing (Chief Judge Stewart and Judges Dennis,
Prado, Southwick, Haynes, Graves, Higginson, and Costa).
BROWN CLEMENT, Circuit Judge, joined by JONES, SMITH, and
OWEN, Circuit Judges, dissenting from the denial of rehearing
panel's reversal of the district court's denial of
attorney's fees rests on a faulty prevailing party
analysis. Under 42 U.S.C. § 1988, a district court
"in its discretion, may allow the prevailing party . . .
a reasonable attorney's fee as part of the costs."
"[T]o achieve prevailing party status, a party must
achieve some judicially sanctioned relief that either creates
or materially alters a legal relationship between the
parties." Petteway v. Henry, 738 F.3d 132, 137
(5th Cir. 2013) (citing Buckhannon Bd. & Care Home,
Inc. v. W.Va. Dep't of Health & Human Res., 532
U.S. 598, 604 (2001)). A plaintiff seeking fees bears the
burden of proving that: (1) it "achieve[d]
judicially-sanctioned relief"; (2) the relief
"materially alter[ed] the legal relationship between the
parties"; and (3) the relief "modif[ied] the
defendant's behavior in a way that directly benefit[ted]
the plaintiff at the time the relief [was] entered."
satisfy this test, a plaintiff must show that any alteration
in the parties' relationship had "the necessary
judicial imprimatur." Id. The Supreme
Court has "not expressly define[d] judicial
imprimatur, but [has] stated that enforceable
judgments on the merits and consent decrees are sufficient
for prevailing party status." Dearmore v. City of
Garland, 519 F.3d 517, 521 (5th Cir. 2008) (internal
quotation marks omitted). But that does not mean that
obtaining a consent decree automatically confers prevailing
party status. The plaintiff must still show that
said consent decree "materially alter[ed] the legal
relationship between the parties." Petteway,
738 F.3d at 137. It is readily apparent from the timeline
here that Romain has failed to do so.
Friday, December 18, 2015, Romain sued the Louisiana
Department of Children and Family Services
("DCFS"), seeking a temporary restraining order to
prevent DCFS from terminating their food stamp benefits once
the state-wide waiver of the "work requirement"
lapsed. The very next business day, Governor-Elect John Bel
Edwards sent a letter to the U.S. Department of Agriculture
to "request that [it] work with [DCFS] to ensure there
is no gap in benefits, " reaffirming his campaign
promise to reinstitute the waiver once he took office. That
same day, the district court denied the motion for a
temporary restraining order at the parties' request.
Three weeks later, the parties submitted a "Stipulation
and Order of Settlement, " citing Governor-Elect
Edwards's letter as the impetus for settlement. The
district court signed the order on January 19, 2016.
settlement order at issue merely memorialized the existing
policy of the incoming administration. It did not actually
alter the relationship between the parties. "Governor
Edwards was elected on November 21, 2015. His policy with
regard to this waiver was known, or easily discernable, long
before this suit was filed on December 18, 2015." His
policy made inevitable the relief ultimately mandated in the
this, the panel remanded the case to the district court
"to assess whether special circumstances apply" to
justify not awarding attorney's fees-namely whether
"even though the plaintiffs received the benefits
desired from their litigation, their efforts did not
contribute to achieving those results." Romain v.
Walters, 856 F.3d 402, 407-08 (5th Cir. 2017) (internal
quotation marks omitted). I see no reason to move onto this
step when Romain has demonstrably failed to show that the
parties' legal relationship today would be different in
the absence of the settlement order. Categorizing the issue
as a possible "special circumstance" unfairly flips
the burden of proof onto the State. See Pruett v. Harris
Cty. Bail Bond Bd., 499 F.3d 403, 417 (5th Cir. 2007).
This is en banc worthy because by failing to correct this
error, the court exposes the ...