              Case: 16-10028   Date Filed: 01/30/2017     Page: 1 of 9


                                                          [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 16-10028
                          ________________________

                      D.C. Docket No. 2:14-cv-01091-RDP



APRIL AARON-BRUSH,
GINGER AARON-BRUSH,

                                                    Plaintiffs - Appellants,

                                     versus

ATTORNEY GENERAL STATE OF ALABAMA,
in his official capacity as Attorney General of Alabama,
JULIE MAGEE,
in her official capacity as Commissioner of Revenue of the
State of Alabama,
HUGH B. MCCALL,
Colonel, in his official capacity as Director of the
Alabama Department of Public Safety,

                                                    Defendants - Appellees.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                               (January 30, 2017)
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Before WILSON and JILL PRYOR, Circuit Judges, and BARTLE, * District Judge.

PER CURIAM:

       Plaintiffs April and Ginger Aaron-Brush, a same-sex couple married in

Massachusetts and living in Alabama, sued the Alabama Attorney General,

Commissioner of Revenue, and Director of the Department of Public Safety under

42 U.S.C. § 1983 for Alabama’s refusal to recognize their legal marriage. During

the course of the parties’ litigation but before the district court ruled on the merits

of the Aaron-Brushes’ claims, the Supreme Court in Obergefell v. Hodges, 135 S.

Ct. 2584 (2015), recognized a constitutional right of same-sex couples to marry

and the obligation of states to recognize those couples’ marital rights. After

Obergefell, the district court convened a conference with the parties at which the

defendants agreed to comply with the Supreme Court’s decision and, specifically,

to ensure that the Aaron-Brushes were able to receive new driver’s licenses from

the Department of Public Safety and to file their taxes jointly. After the

conference, the district court dismissed the Aaron-Brushes’ claims as moot and

denied the couple’s motion for attorney’s fees. In this appeal from the denial of

attorney’s fees, we must decide whether there was a judicially sanctioned change

in the relationship of the parties that would justify an award of attorney’s fees.


       *
        Honorable Harvey Bartle III, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.


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After careful review, and with the benefit of oral argument, we conclude that there

was no such judicially sanctioned change and affirm the district court’s ruling.

                                   I.     Background

      The Aaron-Brushes were married in Massachusetts in 2012. Despite the

legality of their marriage under Massachusetts law, Alabama refused to recognize

the marriage and its appurtenant rights, including the rights to file tax returns

jointly and to obtain driver’s licenses that reflected their marriage, because

Alabama banned same-sex marriage under its state constitution and statutory code.

See Ala. Const. art. 1, § 36.03; Ala. Code § 30-1-19. The couple sued the

defendants under 42 U.S.C. § 1983, alleging that the refusal to recognize their

marriage violated their rights under the Due Process and Equal Protection Clauses

of the Fourteenth Amendment to the United States Constitution. The couple

requested relief in the form of a declaratory judgment that Alabama’s same-sex

marriage ban was unconstitutional and permanent injunctions directing the

defendants to recognize marriages validly entered into outside of Alabama and

preventing the defendants from enforcing the state’s marriage ban.

      When the Supreme Court granted certiorari in Obergefell, the parties jointly

asked the district court for an extension of time to file dispositive motions. The

district court granted the motion. When the Supreme Court in Obergefell

recognized the right of same-sex couples to marry and the obligation of states to


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recognize these marriages, the parties filed a joint motion to set a briefing

schedule, which stated: “The parties are now in agreement that the Supreme

Court’s decision in Obergefell v. Hodges . . . conclusively resolves the legal issues

in this case and that no further briefing on the merits is necessary.” Doc. 26 at 1.1

Nonetheless, “the parties disagree[d] as to the proper course of action.” Id. The

parties asked the court for a new briefing schedule pursuant to which they could

address these remaining disagreements.

      In response to the motion, the district court held a status conference. The

court opened the conference by asking, “Do we all agree that [Obergefell] is now

the law of the land?” Doc. 50-1 at 4. Both sides agreed that it was the law of the

land and was binding on the defendants. When asked whether “each of the

defendants [was] committed to complying with the Supreme Court’s decision,” the

defendants affirmed that they were. Id.

      Notwithstanding the defendants’ concessions, the Aaron-Brushes requested

that the district court grant them relief, either in the form of an injunction, a

consent judgment, or a declaratory judgment. The district court expressed

skepticism that these forms of relief would be necessary or appropriate because the

defendants had already conceded that Obergefell bound them. But, when the

Aaron-Brushes reiterated that, in addition to a statement that the defendants would


      1
          “Doc.” refers to the numbered entry on the district court’s docket in this case.
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recognize their marriage, they wanted their names changed on their driver’s

licenses to reflect their marriage and assurances that they could file taxes jointly,

the district court facilitated those requests. The court proposed that the defendants:

(1) deliver to the Aaron-Brushes a letter stating that the Alabama Department of

Revenue would allow them to file their taxes jointly; (2) help coordinate the

Aaron-Brushes’ visit to the Department of Public Safety to obtain new licenses;

and (3) notify the court in writing that they had completed these two steps and

agreed to be bound by Obergefell. The defendants agreed to take these steps.

      The defendants thereafter filed a notice in conformance with the district

court’s directive. The Aaron-Brushes responded to the notice by requesting that

the district court issue a declaratory judgment and permanent injunctions as sought

in their complaint. The defendants moved to dismiss the action as moot. The

district court denied the Aaron-Brushes’ request and granted the defendants’

motion. The Aaron-Brushes did not appeal the mootness order; rather, they moved

for attorney’s fees under 42 U.S.C. § 1988(b), which permits a “prevailing party”

(other than the United States) in § 1983 litigation to recover a reasonable attorney’s

fee. The district court denied the motion for attorney’s fees, concluding that the

Aaron-Brushes were not prevailing parties.

      This is the Aaron-Brushes’ appeal of the denial of an attorney’s fee award.




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                                II.      Standard of Review

      “We review the factual findings underlying a district court’s determination

regarding ‘prevailing party’ status for clear error.” Church of Scientology Flag

Serv., Org. v. City of Clearwater, 2 F.3d 1509, 1512 (11th Cir. 1993). “Whether

the facts as found suffice to render the plaintiff a ‘prevailing party’ is a legal

question reviewed de novo.” Id. at 1513. Because the parties dispute whether the

facts as found sufficed to render the Aaron-Brushes prevailing parties under

§ 1988(b), our review is de novo.

                                        III.   Discussion

      “In the United States, parties are ordinarily required to bear their own

attorney’s fees—the prevailing party is not entitled to collect from the loser . . . .

Congress, however, has authorized the award for attorney’s fees to the ‘prevailing

party’ in numerous statutes,” including § 1988(b). Buckhannon Bd. & Care Home,

Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 602 (2001). A

plaintiff “prevails” within the meaning of Buckhannon when an action of the

district court involves a “court-ordered change in the legal relationship between the

plaintiff and the defendant,” such as a judgment on the merits of her claim, a

consent decree, or a settlement agreement that the district court either incorporates

into its final order of dismissal or explicitly retains jurisdiction to enforce. Id.

(alterations and internal quotation marks omitted); see Am. Disability Ass’n v.

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Chmielarz, 289 F.3d 1315, 1319-20 (11th Cir. 2002) (noting that the judicial

actions discussed in Buckhannon—relief on the merits and consent decrees—are

merely examples of actions through which a plaintiff may “prevail,” emphasizing

that “[t]he essential test established by the [Buckhannon] Court requires the

plaintiff to achieve a ‘judicially sanctioned change in the legal relationship of the

parties.’” (quoting Buckhannon, 532 U.S. at 605)). Conversely, a “defendant’s

voluntary change in conduct, although perhaps accomplishing what the plaintiff

sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the

change.” Buckhannon, 532 U.S. at 605.

      The characteristic shared by judicial actions that pass Buckhannon’s test is

that such actions entail district court oversight and enforcement authority. See

Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 279-81 (4th Cir. 2002). Whereas

private settlements “do not entail . . . judicial approval and oversight” and therefore

cannot satisfy Buckhannon, consent decrees and settlement agreements approved

by the court—which do satisfy Buckhannon—involve an “obligation to comply”

with the court’s directives. Id. (internal quotation marks omitted); see also

Roberson v. Giuliani, 346 F.3d 75, 83 (2d Cir. 2003) (“In the case of both consent

decrees and private settlement agreements over which a district court retains

enforcement jurisdiction, the district court has the authority to force compliance

with the terms agreed upon by the parties.”).


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      The Aaron-Brushes contend that the district court’s directives during the

status conference constituted a judicially sanctioned change in the parties’

relationship within the meaning of Buckhannon. Again, these three directives were

that the defendants submit a letter confirming that the couple could file taxes

jointly, coordinate the couple’s trip to the Department of Public Safety for new

driver’s licenses, and file a notice with the court stating the defendants’ intent to

comply with Obergefell. In our view, the district court’s directives were too

informal to satisfy Buckhannon’s test. The record reflects that after the parties

jointly notified the district court that Obergefell resolved the legal issues in the

case, the district court confirmed the defendants’ recognition of the Aaron-

Brushes’ rights under Obergefell and moderated the parties’ agreements to satisfy

the couple’s specific concerns about their ability to exercise those rights in

Alabama. Instead of directing the parties to act or else face the court’s

enforcement, the district court supplied the parties with suggestions for facilitating

the defendants’ voluntary compliance.

      Put another way, the defendants’ agreement to comply with Obergefell,

rather than district court’s directives, was the impetus for the parties’ resolution of

their dispute. Thus, on this record, the Aaron-Brushes have not demonstrated that

they benefitted from a judicially sanctioned change in their legal relationship with

the defendants such that they must be deemed prevailing parties under § 1988(b).


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                                  IV.   Conclusion

      For these reasons, we affirm the district court’s denial of the Aaron-Brushes’

motion for attorney’s fees.

      AFFIRMED.




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