                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                           F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                           October 6, 2006
                                   FOR THE FIFTH CIRCUIT
                                                                                     Charles R. Fulbruge III
                                                                                             Clerk


                                            No. 05-30551


ENERGY MANAGEMENT CORP.;
TELLUS OPERATING GROUP, LLC,
                                                                                Plaintiffs-Appellants,

                                                versus

CITY OF SHREVEPORT,

                                                                               Defendants-Appellee.
                       __________________________________________

                          Appeal from the United States District Court
                             for the Western District of Louisiana
                       __________________________________________


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

CARL E. STEWART, Circuit Judge:

       Plaintiff-Appellant Energy Management Corporation (“EMC”) appeals the district court’s

judgment on remand declaring City of Shreveport (“Shreveport”) Ordinance 221“invalid” rather than

“preempted.” EMC also challenges the district court’s refusal to award damages, attorney’s fees and

costs. For the following reasons, we reverse and remand the judgment of the district court regarding

the declaratory judgment language, holding that the prior panel intended Ordinance 221 be preempted

by state law. We affirm the district court’s refusal to award damages and attorney’s fees and we

remand the issue of allocation of costs to the district court for further consideration.
                      I. FACTUAL AND PROCEDURAL BACKGROUND

        Cross Lake, the focal point of this litigation, is the main source of water for Shreveport,

Louisiana. Energy Mgmt. Corp. v. City of Shreveport (Energy Mgmt. I), 397 F.3d 297, 299 (5th Cir.

2005). In 1910, the Louisiana legislature authorized the transfer of Cross Lake to Shreveport but the

state reserved all minerals and mineral rights, as well as the right to drill and operate wells. Id. Then,

in 1959, Louisiana established the Louisiana Office of Conservation (“LOC”) as the exclusive

authority to grant drilling permits; under Louisiana Revised Statute section 30:28(F), a city

government is specifically precluded from interfering with the decision of the LOC on these matters.

La. Rev. Stat. § 30:28(F) (2005). In 1990, Shreveport enacted Ordinance 221, forbidding any new

drilling within 1,000 feet of Cross Lake (“1,000 feet zone”)1 and setting up, among other rules, a

comprehensive regulatory scheme relating to various aspects of drilling activities within 5,000 feet

of the lake.2 EMC, a Mississippi corporation that owns Louisiana state-granted mineral interests

under and around Cross Lake, had already acquired mineral leases from the state by this time, but had

not obtained a permit from the LOC. EMC first attempted to negotiate with Shreveport to ease its



        1
        Both attorneys, during oral argument and in their respective briefs, refer to this area as
the “1,000 feet zone.”


        2
          Ordinance 221 is located at volume 1, pages 12-24 of the record. In addition to the
drilling requirements mentioned, the ordinance’s regulations include, for example, minimum
casing requirements, § 37-137, insurance requirements, § 37-146, plugging and abandonment
requirements, § 37-148, and a requirement to submit diagrams of well locations, § 37-138, and
drilling fluid programs, § 37-136, to Shreveport’s Director of Water and Sewerage for the
Director’s approval. Each provision of the ordinance relates in some way to the regulation of the
oil and gas drilling or production process.


                                                    2
restrictions within the 1,000 feet zone. The negotiations proved unsuccessful; thus, no permit was

ever obtained from the LOC, and eventually, EMC lost its ownership in the subject leases.

        In 1997, EMC brought this diversity suit, alleging that Shreveport had no authority to regulate

drilling around Cross Lake. Energy Mgmt. I, 397 F.3d at 300. In that prior appeal, this court

concluded,

        [T]he City of Shreveport’s Ordinance 221 is preempted by state law and is invalid to
        the extent that it purports to prohibit the drilling of oil and gas wells in an area within
        the state of Louisiana, an authority granted exclusively by state statute and regulations
        to the [LOC].

Id. at 306. This court reasoned that Louisiana statutory and case law as well as opinions of the

Louisiana Attorney General supported this decision. Id. at 303–04. Therefore, the matter was

remanded to the district court “for entry of declaratory judgment declaring that Ordinance 221 is

invalid to the extent stated above and for consideration of any further relief to which EMC may be

entitled.” Id.

        On remand, the district court requested briefing from the parties regarding appropriate

declaratory judgment language and any additional relief for EMC. Subsequently, the district court

entered the judgment as follows: “Ordinance 221 is hereby DECLARED invalid to the extent that it

purports to prohibit the drilling of oil and gas wells in an area within the state of Louisiana.” Energy

Mgmt. Corp. v. City of Shreveport, No. 97-2408 (W.D. La. May 5, 2005) (order granting

declaratory judgment). The district court did not track the language of the prior panel in Energy

Management I, which stated that the ordinance was preempted by state law. Moreover, the district

court found that EMC was not entitled to additional relief. The court stated:

         Under Louisiana laws and legal principles, oil, gas and other minerals are fugacious
         matter and are subject to capture. The damages complained of and testified to by


                                                   3
           EMC experts are based on the value of lost production. The sought after minerals are
           still in place and subject to capture. They are not “lost.”

Id. The court also stated, without explanation, that EMC was not entitled to attorney’s fees but made

no comment regarding EMC’s entitlement to costs. See id. Because it argues that Shreveport is

actively interpreting3 the language of the district court as invalidating only the 1,000 feet provision

and continuing to enforce the remainder of the ordinance, EMC appeals the district court’s ruling.

                                          II. DISCUSSION

A. The District Court’s Interpretation of the Declaratory Judgment Language

1. Standard of Review

       This court has a limited scope of review after remand. Volk v. Gonzalez, 262 F.3d 528, 533

(5th Cir. 2001). “On a second appeal following remand, the only issue for consideration is whether

the court below reached its final decree in due pursuance of [this court’s] previous opinion and

mandate.” Id. (alteration in original) (quoting Burroughs v. FFP Operating Partners, 70 F.3d 31,

33 (5th Cir. 1995)). We can consider a prior opinion to determine what was actually intended, but

we will not reconsider issues already decided by the earlier panel. Burroughs, 70 F.3d at 33.

2. Analysis

       Before we reach the merits of this appeal, we first address Shreveport’s claim that EMC lacks

standing to contest the entirety of the ordinance and that an opinion issued by this court declaring the

ordinance entirely preempted would be nothing more than an advisory opinion. At oral argument,


       3
        Furthermore, the only court to interpret the holding in Energy Management I
characterizes it as, “the EMC case pertains to a mineral lessee challenging the validity of a
Shreveport city ordinance relating to drilling within 1,000 feet of Cross Lake.” Holland v.
Questar Exploration & Prod. Co., No. 03-2087, 2006 WL 461127, *3 n.3 (W.D. La. February,
23, 2006) (emphasis added).


                                                   4
counsel for Shreveport explained that because EMC was not a LOC permit holder, and the state of

Louisiana is not a party to the suit, this court cannot render a judgment as to whether the entirety of

Ordinance 221 conflicts with state law because such a judgment would amount to an advisory

opinion. Shreveport’s argument, however, is incorrect. The panel in Energy Management I

specifically found that EMC had standing to bring this suit and nowhere stated that EMC’s standing

was limited.4 Energy Mgmt. I, 397 F.3d at 301–02. As we have explained, the issues decided by the

first panel will not be relitigated. See Burroughs, 70 F.3d at 33. Shreveport’s contention that the

1,000 feet zone portion of Ordinance 221 is the only portion invalidated by the district court’s

decision because EMC only had standing to contest Ordinance 221 as it related to the 1,000 feet

zone, therefore, must fail. Likewise, this opinion is not advisory because EMC brought suit against

Shreveport contesting Ordinance 221 in its entirety.

        This court has previously determined that EMC has the necessary standing; therefore, our

holding today turns solely on our determination of whether the prior panel intended that Louisiana

law preempt Ordinance 221 and, if so, whether the declaratory judgment language of the district court

reflects that intent. EMC contends that the Energy Management I panel found Ordinance 221

preempted in whole; however, the language of the district court’s opinion does not reflect this

conclusion. EMC is concerned that this overly narrow language could lead to the enforcement of

provisions that do not prohibit drilling but, nevertheless, restrict related activities because the present

judgment implies that Shreveport retains the ability to enforce costly and unnecessary requirements



        4
        In fact, in order to fully address whether EMC had standing, the Energy Management I
panel withdrew its previous opinion in its entirety, Energy Mgmt. Corp. v. City of Shreveport, 03-
30677, 2004 WL 2192376 (5th Cir. Oct 15, 2004), and substituted the opinion referred to infra as
Energy Management I.

                                                    5
not required by Louisiana for the drilling of oil and gas wells within the state. In contrast, Shreveport

argues that the only right exclusively statutorily reserved to the LOC is the oversight of drilling and,

therefore, Ordinance 221 is not invalid in its additional respects; it asserts that the district court

tracked the limiting language of this court’s Energy Management I decision.

        Our duty is to review this case considering whether the court below effected the mandate of

the first panel. Volk, 262 F.3d at 533. Our reading of the Energy Management I panel opinion

clearly indicates that the court evaluated the various regulatory aspects of the ordinance and

ultimately determined that Ordinance 221 was preempted in its entirety. Therefore, Shreveport’s

claims on this matter are unsupported by the prior opinion. A closer look at Energy Management

I is not only instructive, but also dispositive.

The prior panel stated:

        “Local power is not pre-empted unless it was the clear and manifest purpose of the
        legislature to do so, or the exercise of dual authority is repugnant to a legislative
        objective; if there is no express provision mandating pre-emption, the courts will
        determine the legislative intent by examining the pervasiveness of the state regulatory
        scheme, the need for state uniformity, and the danger of conflict between the
        enforcement of local laws and the administration of the state program.” Palermo
        Land Co. v. Planning Comm’n of Calcasieu Parish, 561 So. 2d 482, 497 (La.
        1990). In this case there is no express provision mandating pre-emption. However,
        all other inquiries lead to the conclusion that local regulation of oil and gas drilling
        activities is preempted by comprehensive state regulation of oil and gas activities
        under the LOC.

        Regulations by the state of oil and gas drilling activity through the LOC are clearly
        pervasive addressing every phase of the oil and gas exploration process from
        exploration and prospecting to cleanup of abandoned oilfield waste sites. . . . In every
        case which has been brought to our attention involving a challenge to the authority
        of the LOC, its far-reaching authority has been upheld.

397 F.3d at 303. The opinion’s reference not just to drilling but to drilling “activities,” as well as its

statement that the regulations address “every phase of the . . . process,” supports our interpretation


                                                    6
that the prior panel’s language effectuated the preemption of Ordinance 221 in its entirety.

Furthermore, in support of its determination, the prior panel highlighted Louisiana cases upholding

the “far-reaching” authority of the LOC, cases which addressed not only drilling5 but also other

aspects of the drilling process, including post-drilling disposal.6

        Thereafter, the prior panel relied on Louisiana Attorney General (“AG”) opinions to support

its holding. According to the panel, the Louisiana AG “has consistently concluded that attempts at

local regulation of drilling operations are preempted by state law.” Id.7 One of the opinions

addressed whether a local governing body could require permits from oil and gas operators for the

use of local roads. La. Op. Att’y Gen. 88-418 (1988), 1988 WL 428412. The AG found such

permits to be an impermissible interference with a valid permit issued by the LOC. Id. Likewise,

Ordinance 221 greatly complicates the drilling process around Cross Lake and, arguably, interferes

with drilling. For example, under section 37-133 of the ordinance, titled “Approval Required,” the




        5
          Energy Mgmt. I, 397 F.3d at 303 (citing Greater New Orleans Expressway Comm’n v.
Traver Oil Co., 494 So. 2d 1204 (La. Ct. App. 1986) (holding that the Commission could not
restrict drilling within one mile of the New Orleans Causeway Bridge contrary to authorization of
LOC and Corps of Engineers)).
        6
          Energy Mgmt. I, 397 F.3d at 303 (citing Rollings Envtl. Servs. of La., Inc. v. Iberville
Parish Police Jury, 371 So. 2d 1127 (La. 1979) (determining that LOC regulations preempted a
parish ordinance prohibiting disposal of hazardous waste within the parish); Desormeaux Enters.,
Inc. v. Vill. of Mermentau, 568 So. 2d 213 (La. Ct. App. 1990) (invalidating an ordinance
prohibiting a corporation from operating a disposal facility on property within the village only
after it received a permit from the commissioner of conservation)); see also Twin Parish Port
Comm’n v. Berry Bros., Inc., 663 So. 2d 257 (La. Ct. App. 1995) (declaring an ordinance
regulating the discharge of oil into a navigable water preempted by comprehensive state
regulations).
        7
        The Energy Mgmt. I panel cited three opinions from the Louisiana Attorney General, two
of which dealt directly with permitting for well drilling. 397 F.3d at 303 (citing La. Op. Att’y
Gen. 82-1021 and 89-416.)

                                                   7
ordinance provides that drilling within the 5,000 feet area may not proceed unless Shreveport’s

Director of Water and Sewerage has found that all requirements of the ordinance are met. The

ordinance then lists thirteen requirements (e.g., site diagrams, spill prevention plans, proof of

insurance) that must accompany an application for approval. Such requirements are analogous to the

road permitting requirements found invalid by Louisiana courts and the AG opinion.

       The prior panel also examined Louisiana Revised Statute section 30:28(F), the provision

which grants exclusive authority to the LOC to regulate drilling in Louisiana. The panel found one

passage from the statute particularly significant:

       [The statute] provides that “[n]o other agency or political subdivision of the state
       shall have the authority, and they are hereby expressly forbidden, to prohibit or in any
       way interfere with the drilling of a well or test well in search of minerals by the holder
       of such permit.”

Energy Mgmt. I, 397 F.3d at 304 (quoting La. Rev. Stat. § 30:28(F) (2005)). This language

compelled the panel to conclude that it was “clear” that the “process of regulating when and where

an oil and gas well may be drilled” is entirely vested in the LOC. Id. Finally, the panel noted that

“the statute gives the Commissioner [of the LOC] authority to issue regulations and orders to ‘ensure

ground water aquifer safety,’ which is the same concern motivating the adoption of Ordinance 221.”

Id.

       The holding of the prior opinion is clear, in fact, the prior panel leads off by unequivocally

stating in the introductory paragraph, “[We] find that Ordinance 221 is preempted by Louisiana’s

comprehensive regulation of oil and gas drilling.” Perhaps, as counsel for Shreveport argued, the

ambiguity in this case lies in the concluding paragraph of the opinion. There, the court stated that

the ordinance is “preempted by state law and is invalid to the extent that it purports to prohibit the

drilling of oil and gas wells in an area within the state of Louisiana.” Energy Mgmt. I, 397 F.3d at

                                                     8
305 (emphasis added). We agree that this language (i.e., “invalid to the extent that . . .”), when read

out of context and not in conjunction with the entire opinion, is seemingly limiting; as we have

explained, however, we do not agree that it was intended by the prior panel to be construed as such.



       Therefore, we find the following three aspects of Energy Management I instructive and

supportive of our conclusion that Ordinance 221 is preempted in its entirety: (1) the express language

of Energy Management I does not suggest the ordinance was intended to be invalid only to the

limited extent urged by Shreveport; (2) the cases and the AG opinions on which the prior panel relied

relate to more than drilling and therefore suggest to us that Energy Management I addressed aspects

of the ordinance beyond drilling prohibition in the 1,000 feet zone, contrary to Shreveport’s

argument; (3) La. Rev. Stat. section 30:28(F) provides that local political subdivisions are expressly

forbidden to “in any way interfere with the drilling of a well.” Accordingly, we hold the prior panel

opinion held that Ordinance 221 is entirely preempted by state law.

B. The District Court’s Determination regarding Damages

1. Standard of Review

       We review legal conclusions underlying an award of damages de novo. Nat’l Hispanic

Circus, Inc. v. Rex Trucking, Inc., 414 F.3d 546, 552 (5th Cir. 2005). “If the district court

committed no legal error, we review its factual findings for clear error.” Id.

2. Analysis

       The district court declined to award damages on the basis that the oil and gas underlying the

1,000 feet zone is not “lost.” In dismissing EMC’s damages claim, the district court cited the rule

of capture, which governs the ownership rights of landowners over the natural resources underlying


                                                  9
their land. See La. Rev. Stat. § 31:6. Under the rule of capture, “[o]wnership of land does not

include ownership of oil [and] gas. . . . The landowner has the exclusive right to explore and develop

his property for the production of such minerals and to reduce them to possession and ownership.”

Id. It is indisputable that this is the law in Louisiana, but EMC urges that there are other avenues for

recovery for a mineral lease owner who has lost the ability to enjoy his lease rights.

        EMC claims that the rule of capture is inapplicable to this case, and that it is entitled to

damages under state law and/or 42 U.S.C. § 1983. EMC explains it established by a preponderance

of uncontroverted evidence at trial that the value of lost production from two specific units8 was

$9,817,000.000. Furthermore, EMC argues that the district court’s reasoning is without merit

because EMC lost its mineral leases and, along with that, its ownership rights in the leases and

minerals, specifically as a result of Shreveport’s enforcement of Ordinance 221. EMC, however, has

not clearly explained to us its underlying cause of action–specifically, how it overcomes the hurdle

of its state law takings claim being prescribed.9 EMC states that § 1983 extends protection to all

rights guaranteed by the Fourteenth Amendment and that it provides an independent federal remedy



        8
         EMC stated in its brief that though its losses included thousands of acres of mineral
interests, it limited its claims for damages to the losses included in only two particular units, the
“HOSS RC SUA” and “HOSS RC SUB” Units.

        9
         EMC also fails to address whether its federal claim is time-barred. See Drury v. U.S.
Army Corps. of Eng’rs, 359 F.3d 366, 367 n.1 (5th Cir. 2004) (“If [the appellant’s] state claim is
time-barred, his federal claim is also time-barred.”) (citing Braden v. Tex. A&M Univ. Sys., 636
F.2d 90, 92 (5th Cir. 1981), for the proposition that “[s]ection 1983 has no statute of limitations
period, thus federal courts apply the state prescription statute governing the most analogous cause
of action.”); see also Liberty Mut. Ins. Co. v. Brown, 380 F.3d 793, 799 (5th Cir. 2004) (finding
that the three year prescriptive period for an inverse condemnation action in Louisiana had
expired, and, therefore, the appellant’s takings claim was prevented from ever ripening, and the
federal court lacked jurisdiction to consider the takings claim).

                                                  10
regardless of the availability of an adequate remedy under state law. EMC does not offer further

explanation regarding the nature of its § 1983 claim except to state that the takings claim is an

alternative claim “in case the ordinance was found valid.” Notwithstanding EMC’s argument, the

record reflects that the Energy Management I panel held that EMC’s takings claim was prescribed.10

Therefore, EMC’s takings claim is without merit.

       As another potential damage recovery avenue, EMC briefly turns from state law to federal

law, alleging that Shreveport violated its due process rights under the Fourteenth Amendment, “in

that the ordinance is arbitrary and unreasonable and that the means employed by the ordinance lack

a real and substantial relation to the goal Shreveport seeks to achieve.”11 The essence of EMC’s

argument is to urge a substantive due process claim under § 1983. Even though the prior panel made



       10
           EMC devoted a substantial portion of its damages discussion in its brief and at oral
argument to this issue as a potential means of recovery. It explains that “[p]roperty shall not be
taken or damaged by the state or its political subdivisions except for public purposes and with just
compensation paid to the owner or into court for his benefit.” La. Const. art. 1, § 4, cl. B.
Furthermore, it points out that Louisiana Revised Statute 13:5111 provides for attorney’s fees
and other relief in a successful takings claim.
         Relief, however, is not available if the takings claim has prescribed; “[a]ctions for
compensation for property taken by the state, a parish, municipality, or other political subdivision
or any one of their respective agencies shall prescribe three years from the date of such taking.”
La. Rev. Stat. § 13:5111 (2005). In this case, Shreveport enacted Ordinance 221 in 1990; the
earliest date evidencing action in this lawsuit is December 12, 1997, when EMC paid its filing fee.
This is well beyond the statutorily provided prescription period. EMC begs to differ and relies on
HC Gun & Knife Shows, Inc. v. City of Houston, 201 F.3d 544, 546 (5th Cir. 2000), and Huggs,
Inc. v. LPC Energy, Inc., 889 F.2d 649 (5th Cir. 1989), as support for its position that its takings
claim is not prescribed. These cases, however, are inapplicable to the instant appeal; both were
brought within the required statute of limitations or prescriptive period. Accordingly, it is clear to
us that EMC has no takings cause of action under state law because, as the Energy Management
I panel concluded, its claim is subject to the Louisiana law of prescription, and the record reflects
that its claim has prescribed.



       11
            EMC quotes from the district court’s Memorandum Ruling, dated June 13, 2003.
                                                 11
no mention of any § 1983 claim, we will analyze whether EMC should be awarded damages for a

substantive due process violation under § 1983.12

       Section 1983 provides a civil remedy in federal court for violations, under color of state law,

of the rights, privileges and immunities secured by the Constitution and laws of the United States.

Findeisen v. N. E. Indep. Sch. Dist., 749 F.2d 234, 236-37 (5th Cir. 1984). Section 1983 extends

protection to all rights guaranteed by the Fourteenth Amendment, including substantive due process.

Id. at 237. In determining whether EMC has alleged a substantive due process violation, this court

reviews Shreveport’s actions “against the deferential ‘rational basis’ test that governs substantive due

process.” Simi Inv. Co. v. Harris County, Tex., 236 F.3d 240, 249 (5th Cir. 2000). In the initial step

of this analysis, EMC must demonstrate that it has a constitutionally protected property right to which

the Fourteenth Amendment’s due process protection applies. Simi, 236 F.3d at 249–50. Even

though EMC did not fully develop its § 1983 claim via its brief or during oral argument before this

panel, we are safe to assume that EMC does have such a right, because the prior panel found that

EMC had a “legally protected property right” to “exploit its mineral interests.” Energy Mgmt. I, 397

F.3d at 302. Therefore, the next step in the substantive due process inquiry is whether the action is

rationally related to a legitimate government interest. Simi, 236 F.3d at 250–51 . (citing FM Props.

Operating Co. v. City of Austin, 93 F.3d 167, 174 (5th Cir. 1988)). This court has said that “[t]he



       12
          EMC claims in its brief that the ordinance is “arbitrary”; a “substantive due process claim
based on an allegedly arbitrary and unlawful attempt to interfere with private property rights
suggests that this claim is one of substantive due process.” Simi Inv. Co. v. Harris County, Tex.,
236 F.3d 240, 249 (5th Cir. 2000). On the other hand, with a procedural due process claim,
EMC would have to show that the process provided by the state of Louisiana was inadequate and
did not secure EMC’s liberty interests. See Wilkinson v. Austin, 125 S. Ct. 2384, 2395-96
(2005). EMC has made no such showing. We note, however, that we are analyzing this
substantive due process claim out of an abundance of caution, as EMC only mentions a possible
due process claim in a footnote.
                                                 12
question is only whether a rational relationship exists between the [policy] and a conceivable

legitimate objective. If the question is at least debatable, there is no substantive due process

violation.” Simi, 236 F.3d at 250-51 (citing FM Props. Operating Co., 93 F.3d at 175 (alteration in

original)).

        Our analysis reveals that the enactment of Ordinance 221 was rationally related to

Shreveport’s interest in protecting its water supply. The state of Louisiana gave Shreveport the

authority in Act 31 of 1910 to adopt ordinances to protect its water supply; further, the preamble to

Ordinance 221 specifically states that Shreveport is empowered to protect its water and that the intent

of the ordinance is to do so. See Energy Mgmt. I, 397 F.3d at 302. The fact that the ordinance is

deemed preempted by state law does not convert Shreveport’s actions into a violation of EMC’s due

process rights. FM Props. Operating Co., 93 F.3d at 174.

        We hold the district court did not err in denying the award of damages to EMC upon either

ground contended in its brief. Though the district court relied on the rule of capture as support for

this determination, we conclude that the overriding reason the denial of damages is proper is because

EMC’s takings claim is time-barred and its due process claim fails on the merits; neither state nor

federal law provide a present path for recovery. Finding no basis to award damages to EMC, we do

not entertain EMC’s pre-and post-judgment interest request.

C. The District Court’s Determination Regarding Awarding Attorney’s Fees

1. Standard of Review

        The district court has broad discretion to award attorney’s fees, and an appellate court has

only a limited opportunity to “appreciate the complexity of trying any given case and the level of

professional skill needed to prosecute it.” Hopwood v.Texas, 236 F.3d 256, 277 (5th Cir. 2000).


                                                  13
Accordingly, we review the factual findings supporting a district court’s grant or denial of attorney’s

fees for clear error and the conclusions of law underlying the award are reviewed de novo. Volk, 262

F.3d at 534; see also CenterPoint Energy Houston Elec. LLC v. Harris County Toll Road Auth., 436

F.3d 541 n.17 (5th Cir. 2006).

2. Analysis

        The district court did not explain why it refused to award attorney’s fees to EMC. EMC

claims that it is entitled to attorney’s fee under 42 U.S.C. § 1988. Section 1988 governs attorney’s

fees awards in § 1983 suits and states that “[i]n any action or proceeding to enforce a provision of

[§ 1983] . . . the court, in its discretion, may allow the prevailing party, other than the United States,

a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). This court has noted that,

to be deemed a “prevailing party,” “at a minimum, a plaintiff must receive ‘some relief on the merits

of his claim.’” Walker v. City of Mesquite, Tex., 313 F.3d 246, 249 (5th Cir. 2002) (quoting Hewitt

v. Helms, 482 U.S. 755, 760 (1987)). Furthermore, this court has determined that for a party to

qualify as a prevailing party it must (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 the judgment or

settlement.” Walker, 313 F.3d at 249 (citing Farrar v. Hobby, 506 U.S. 103, 111–12(1992)).

        We find unpersuasive EMC’s reasoning that if we find Ordinance 221 preempted, then EMC

must be the “prevailing party” for purposes of § 1988 and is deserving of attorney’s fees. As we

previously stated, EMC has not successfully proven its damages claim; its takings claim is time-barred

and its § 1983 due process claim fails on the merits. EMC, therefore, does not pass the threshold

outlined in Walker, as we interpret the threshold “relief” in this case to be the award of damages


                                                   14
rather than the determination that Ordinance 221 is entirely preempted by state law. Therefore,

attorney’s fees are not warranted under § 1988, as urged by EMC, because EMC is not a prevailing

party as it pertains to the issue of damages.

        Nonetheless, EMC directs this court to Williams v. Hanover Housing Authority, 113 F.3d

1294, 1297–98 (1st Cir. 1997), for the proposition that an award of attorney’s fees under § 1988 is

possible even when a party prevails under state law rather than on federal grounds. EMC

misconstrues the impact of this case on its situation. It is true that the significance of the First

Circuit’s decision in Williams was that attorney’s fees were possible under § 1988 when the party has

prevailed on state, though not federal grounds, on an alleged constitutional violation. Id. at 1297.

EMC, however, has not prevailed on its damages claim on state or federal grounds; thus, Williams

is not applicable. A plain reading of both Williams and Walker explains that without any recovery,

attorney’s fees are out of EMC’s reach. Therefore, even though EMC has prevailed based on this

court’s holding that Energy Management I determined that Ordinance 221 is entirely preempted by

state law, this ruling is separate and apart from its claim for damages based on state law, its claim for

damages based on federal law, its subsequent § 1988 claim to recover attorney’s fees, and its request

for cost. Accordingly, we hold that the district court did not err in refusing to award attorney’s fees.

4. The District Court’s Determination Regarding Awarding Costs

1. Standard of Review

        A district court has wide discretion whether to award costs to the prevailing party. Brazos

Valley Coal. of Life, Inc. v. City of Bryan, Tex., 421 F.3d 314, 327 (5th Cir. 2005); Medina v.

Ramsey Steel Co., Inc., 238 F.3d 674, 686 (5th Cir. 2001). The court, however, recognizes a “strong

presumption” that the district court will likely do so. Salley v. E.I. DuPont de Nemours & Co., 966


                                                   15
F.2d 1011, 1017 (5th Cir. 1992). “We review for abuse of discretion, but if the court does not award

costs to the prevailing party, we require the district court to state its reasons.” Id.

2. Analysis

        The district court in this case did not award costs to EMC and it did not state its reasons; in

fact, the court did not even mention costs in its judgment. EMC argues that it is the “prevailing

party” under 42 U.S.C. § 1988 and, therefore, Federal Rule of Civil Procedure 54 provides that it

is entitled to costs. See Fed. R. Civ. P. 54(d) (“[C]osts other than attorney’s fees shall be allowed

as of course to the prevailing party unless the court otherwise directs”). Furthermore, EMC points

out that it was awarded costs in its prior appeal, as evidence that it should again be deemed as the

prevailing party for purposes of this issue. As we explained earlier, EMC is not a prevailing party for

purposes of § 1988 and did not prevail on its damages claim under § 1983 or on state law grounds.

EMC has, however, prevailed on the declaratory judgment language issue, as this opinion mandates

that, on remand, the district court’s declaratory judgment language mirror the intent of the Energy

Management I opinion. Accordingly, we remand the issue of allocation of costs to the district court

for further consideration; the district court may exercise its discretion to grant or deny costs–with

stated reasons.

                                         III. CONCLUSION

        Quoting the language of the Energy Management I panel, “[i]n summary, we conclude that

the City of Shreveport’s Ordinance 221 is preempted by state law.” 397 F.3d at 306. Accordingly,

we VACATE the district court’s declaratory judgment and REMAND this case for entry of

declaratory judgment language in accordance with the prior panel’s expressed intent that Ordinance

221 be preempted in its entirety. Furthermore, we AFFIRM the district court’s refusal to award


                                                   16
damages and attorney’s fees and REMAND the issue of allocation of costs to the district court for

further relief to which EMC may be entitled.




                                               17
