                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-4145
                                    ___________

Northern Cheyenne Tribe, et al.,        *
                                        *
      Plaintiffs - Appellants,          *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the
Alphonso Jackson, in his official       * District of South Dakota.
capacity as United States Secretary     *
of Housing and Urban Development,       *
                                        *
      Defendant - Appellee,             *
                                   ___________

                              Submitted: September 16, 2005
                                 Filed: January 18, 2006
                                  ___________

Before LOKEN, Chief Judge, LAY and SMITH, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

      Bear Butte is a mountain formation seven miles northeast of Sturgis, South
Dakota. It is a site of great spiritual significance for certain Native American tribes.
In February 2003, six tribes and an unincorporated association (collectively, “the
Tribes”) commenced this action against multiple defendants, seeking to enjoin
construction of a shooting range near Bear Butte. The district court1 preliminarily


      1
       The HONORABLE KAREN E. SCHREIER, United States District Judge for
the District of South Dakota.
enjoined the United States Department of Housing and Urban Development (HUD)
and its Secretary from disbursing additional funds to the State of South Dakota for
construction of the shooting range. When HUD later determined that the shooting
range would not generate necessary public benefits, South Dakota withdrew its
funding and the developers abandoned the project. The Tribes then dismissed their
claims as moot. The district court denied an award of attorneys’ fees, concluding the
Tribes are not prevailing parties under the Supreme Court’s decision in Buckhannon
Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532
U.S. 598 (2001). The Tribes appeal the denial of an award against HUD, arguing that
the relief afforded by the preliminary injunction made them “prevailing parties”
entitled to an attorneys’ fee award. We disagree and therefore affirm.

                                          I.

       The City of Sturgis and its Industrial Expansion Corporation (collectively, “the
City”) planned to purchase land and construct the shooting range. To fund the project,
the City applied for and received a grant of $825,000 from funds allocated to the State
of South Dakota under the Community Development Block Grant (CDBG) program
established by Title I of the Housing and Community Development Act of 1974, 42
U.S.C. §§ 5301 et seq. Under that program, HUD allocates funds to each State to
support development projects by local governments. Once funds are allocated, the
State makes awards to local governments without prior HUD approval, but HUD
conducts periodic audits to ensure that the State is properly awarding grants and
administering the program. See 24 C.F.R. § 570.493.

      The Tribes filed their complaint against the Secretary of HUD, the City of
Sturgis, and two private parties. The Tribes promptly moved for a preliminary
injunction to prevent construction of the shooting range until the litigation was
resolved. The Secretary moved to dismiss. The other defendants agreed to stay
construction of the shooting range. The district court dismissed some claims but

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granted a preliminary injunction against the Secretary and HUD based on the Tribes’
claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and
the Religious Freedom Restoration Act (RFRA). As the State had previously
transferred some CDBG funds to the City, the practical effect of the preliminary
injunction was to compel HUD to bar the State -- a non-party to the lawsuit -- from
accessing additional CDBG funds for the shooting range project.

       In June 2003, after conducting a periodic review of South Dakota’s CDBG
program, HUD advised the State that the Bear Butte shooting range project failed to
satisfy any of the CDBG program objectives -- to benefit low and moderate income
persons, to aid in preventing or eliminating slums or blight, and to meet other urgent
community development needs. In September 2003, South Dakota responded by
cancelling its CDBG grant to the City. With this loss of funding, the City abandoned
its plans to build the shooting range. Defendants then moved to dismiss the lawsuit
as moot; the Tribes agreed except for the issue of attorneys’ fees. The court dismissed
the complaint as moot but granted the Tribes additional time to move for an award of
attorneys’ fees. This appeal followed denial of that motion.

                                            II.

        Congress has granted district courts discretion to award attorneys’ fees to a
“prevailing party” in an action to enforce RLUIPA or RFRA against the United States
or its officials. See 42 U.S.C. § 1988(b); 28 U.S.C. § 2412(b). In Buckhannon, the
Supreme Court rejected the “catalyst theory” then prevailing in the circuit courts,
which permitted a plaintiff to recover fees if the lawsuit achieved the desired result
through a voluntary change in the defendant’s conduct. Instead, the Court held that,
to be a prevailing party entitled to a statutory attorneys’ fee award, a party must obtain
a judicially sanctioned material alteration of the legal relationship of the parties to the
lawsuit. 532 U.S. at 604-05; see Cody v. Hillard, 304 F.3d 767, 772-73 (8th Cir.
2002). Citing prior decisions, the Court noted in Buckhannon that court-ordered

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consent decrees and enforceable judgments on the merits create the requisite material
alteration in the parties’ relationship. 532 U.S. at 604. By contrast, we have held that
a judicially approved class action settlement, and a declaratory judgment awarding no
relief, do not. See Christina A. v. Bloomberg, 315 F.3d 990, 992-93 (8th Cir. 2003);
Sierra Club v. City of Little Rock, 351 F.3d 840, 845 (8th Cir. 2003).2

       Here, the only relief the Tribes obtained in the lawsuit was a preliminary
injunction that barred HUD from providing funds for construction of the shooting
range from the time the injunction was entered until South Dakota canceled its block
grant to the City. The issue, then, is whether that judicially sanctioned injunction
effected the requisite material alteration in legal relationship to make the Tribes
prevailing parties against the federal defendant. We review this issue de novo.
Christina A., 315 F.3d at 992.

       The Tribes first argue that they are prevailing parties because they “obtain[ed]
an interim order granting them relief, even though their complaint ultimately [was]
dismissed.” It is of course literally true that every preliminary injunction effects some
judicially sanctioned change in the parties’ legal relationship. If that were all
Buckhannon requires, then every recipient of a preliminary injunction becomes a


      2
        The dissent in Christina A. and some of our sister circuits have misread that
decision as limiting prevailing party status under Buckhannon to those who obtain
consent decrees and judgments on the merits. See Christina A., 315 F.3d at 996
(Melloy, J., dissenting); Roberson v. Giuliani, 346 F.3d 75, 81-82 (2d Cir. 2003);
Smith v. Fitchburg Pub. Schs, 401 F.3d 16, 23 (1st Cir. 2005). The issue in Christina
A. was whether judicial approval of a private class action settlement under Fed. R.
Civ. P. 23(e) was the equivalent of a court-ordered consent decree under Buckhannon.
Our divided panel held it was not. As our later discussion in Sierra Club v. Little
Rock made clear, the majority in Christina A. did not consider, and certainly did not
foreclose, the question whether other types of court orders, such as declaratory
judgments and preliminary injunctions, may ever result in the requisite judicially
sanctioned material alteration in the parties’ legal relationship.

                                          -4-
prevailing party eligible for an attorneys’ fee award. But when dealing with a non-
final order such as a preliminary injunction, the argument ignores an important
principle established by the Supreme Court well before Buckhannon and re-
emphasized in the Buckhannon opinion:

      Congress intended to permit the interim award of counsel fees only when
      a party has prevailed on the merits of at least some of his claims. For
      only in that event has there been a determination of the “substantial
      rights of the parties,” which Congress determined was a necessary
      foundation for departing from the usual rule in this country that each
      party is to bear the expense of his own attorney.

Hanrahan v. Hampton, 446 U.S. 754, 758 (1980), quoted in Buckhannon, 532 U.S. at
603. Applying this principle, it is apparent that a preliminary injunction that grants
only temporary relief pendente lite is not, without more, a judicially sanctioned
material alteration of the parties’ legal relationship within the meaning of
Buckhannon. Thus, virtually every circuit court to consider the question has
concluded that a preliminary injunction granting temporary relief that merely
maintains the status quo does not confer prevailing party status. See Thomas v. Nat’l
Sci. Found., 330 F.3d 486, 493 (D.C. Cir. 2003); John T. Ex Rel. Paul T. v. Delaware
Cty., 318 F.3d 545, 558-59 (3rd Cir. 2003); Dubic v. Green Oak Township, 312 F.3d
736, 753-54 (6th Cir. 2002); Race v. Toledo-Davila, 291 F.3d 857, 858 (1st Cir.
2002); Smyth v. Rivero, 282 F.3d 268, 276-77 (4th Cir.), cert. denied, 537 U.S. 825
(2002). We agree.

       The Tribes further argue that they are entitled to prevailing party status because
they obtained relief based on the merits of their claims. Most of our sister circuits
have concluded that some preliminary injunctions are sufficiently akin to final relief
on the merits to confer prevailing party status. See, e.g. Dupuy v. Samuels, 423 F.3d
714, 723 & n.4 (7th Cir. 2005). We are inclined to agree. For example, the grant of
a preliminary injunction should confer prevailing party status if it alters the course of

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a pending administrative proceeding and the party’s claim a for permanent injunction
is rendered moot by the impact of the preliminary injunction. See Role Models
Amer., Inc. v. Brownlee, 353 F.3d 962, 966 (D.C. Cir. 2004); Watson v. County of
Riverside, 300 F.3d. 1092, 1096 (9th Cir. 2002), cert. denied, 538 U.S. 923 (2003).
That type of preliminary injunction functions much like the grant of an irreversible
partial summary judgment on the merits.

       Here, on the other hand, although the district court before issuing the
preliminary injunction considered whether the Tribes were likely to prevail on the
merits, as we required in Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th
Cir. 1981) (en banc), the court granted only interim relief that preserved the status quo
until it could resolve the merits of the Tribes’ claims. Moreover, in granting the
preliminary injunction, the court primarily considered the merits of those claims
against the other defendants, who had agreed voluntarily to stay construction of the
shooting range. The court did not discuss whether those claims would entitle the
Tribes to final relief on the merits against the Secretary, given HUD’s relatively
remote and indirect role in the shooting range project.

       In the end, the Tribes achieved their desired result because of a regulatory
action taken by HUD under the CDBG program for reasons unrelated to the merits of
the Tribes’ RFRA and RLUIPA claims, and because of voluntary decisions by the
other defendants to abandon the shooting range project. In these circumstances, it
would be ironic, to say the least, if the Tribes were awarded attorneys’ fees against the
defendant whose voluntary action triggered this result. We conclude that such an
award is not authorized by the governing statutes and Supreme Court decisions. The
Tribes obtained no relief on the merits of their claims against the Secretary. The
preliminary injunction preserved one limited aspect of the status quo without in any
way effecting a judicially sanctioned material alteration in the relationship between




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the Tribes and HUD. Accordingly, under Buckhannon, the Tribes may not be
awarded attorneys’ fees as prevailing parties.

     The order of the district court dated September 28, 2004, is affirmed.
                      ______________________________




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