48 F.4th 412
5th Cir.2022Background
- Five sole-proprietor plaintiffs sued to enjoin Texas H.B. 89, which barred state contracts with companies that "boycott Israel," claiming injury from lost contracts or coerced certifications.
- Plaintiffs obtained a district-court preliminary injunction finding probable success on the merits of their First Amendment challenge to H.B. 89.
- While the case was pending, the Texas Legislature enacted H.B. 793, exempting sole proprietorships from H.B. 89; the Governor signed it shortly after the preliminary injunction.
- The Fifth Circuit stayed the preliminary injunction, vacated it on appeal, and remanded for dismissal of the complaints with attorneys’ fees left for determination.
- On remand plaintiffs sought roughly $850,000 in fees under 42 U.S.C. § 1988; the district court found them "prevailing parties" and awarded $341,515; the Attorney General appealed.
- The Fifth Circuit reversed the attorneys’ fee award, holding plaintiffs were not prevailing parties because the legislative amendment was not shown to have been caused by the court’s preliminary injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs are "prevailing parties" under §1988 after obtaining a preliminary injunction that was later mooted | Amawi: preliminary injunction constitutes the primary relief and suffices for prevailing-party status (Doe) | Paxton: Buckhannon/Sole require a judicially sanctioned change (judgment/consent decree) or narrow Dearmore showing; PI alone doesn't suffice | Not prevailing; fee award reversed — plaintiffs failed to show the requisite judicial imprimatur/causation |
| Which precedent governs: Doe or the Buckhannon/Dearmore framework | Amawi: apply Doe (preliminary injunction enough when primary relief obtained) | Paxton: Dearmore (Buckhannon-compliant narrow exception) controls; Doe is outdated | Dearmore governs; Doe rejected as inconsistent with later Supreme Court precedent |
| Whether the legislative amendment (H.B. 793) was enacted in response to the preliminary injunction (causation required by Dearmore) | Amawi: legislature acted to moot plaintiffs' claims after injunction | Paxton: objective timeline and record show H.B. 793 was not enacted in response to the injunction | No causal link shown; bill predated or was in process before injunction and had broad support, so Dearmore’s causation element fails |
| Whether the district court's fee-order was a final, appealable decision under §1291 | Amawi: order not final because precise fee amount was not yet determined | Paxton: the district court’s prevailing-party determination and formula made the order final | Order is final and appealable; motion to dismiss for lack of jurisdiction denied |
Key Cases Cited
- Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Res., 532 U.S. 598 (2001) (rejects "catalyst theory"; prevailing party requires judicial imprimatur altering legal relationship)
- Sole v. Wyner, 551 U.S. 74 (2007) (preliminary injunctions reversed/dissolved by final decision do not confer prevailing-party status)
- Dearmore v. City of Garland, 519 F.3d 517 (5th Cir. 2008) (narrow exception: a PI showing probable success that causes a defendant to moot the case can support fee award)
- Energy Mgmt. Corp. v. City of Shreveport, 467 F.3d 471 (5th Cir. 2006) (sets a three-part Buckhannon-compliant test for prevailing-party status)
- Doe v. Marshall, 622 F.2d 118 (5th Cir. 1980) (older Fifth Circuit precedent treating preliminary relief as sufficient; court declined to apply here)
- Davis v. Abbott, 781 F.3d 207 (5th Cir. 2015) (applied Dearmore-type analysis where state adopted court’s interim plan, showing causation)
- Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782 (1989) (material alteration of legal relationship is touchstone for prevailing-party inquiry)
- Hensley v. Eckerhart, 461 U.S. 424 (1983) (fee applicant bears burden to establish entitlement and reasonableness of fee)
- American Bar Ass’n v. FTC, 636 F.3d 641 (D.C. Cir. 2011) (legislative enactment that moots a case, without objective evidence of response to judicial action, does not establish causation)