     Case: 10-30321    Document: 00511245119         Page: 1    Date Filed: 09/27/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                      September 27, 2010

                                    No. 10-30321                         Lyle W. Cayce
                                  Summary Calendar                            Clerk



RICHARD C. BENTLEY,

                                                 Plaintiff – Appellant
v.

BOBBY FANGUY,

                                                 Defendant – Appellee




                  Appeal from the United States District Court
                     for the Western District of Louisiana
                            USDC No. 6:08-CV-600


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Richard C. Bentley brought suit against his former neighbor, Bobby
Fanguy for alleged violations of the Clean Water Act (CWA). The district court
dismissed the lawsuit pursuant to Rule 12(b)(6) and taxed Bentley with costs.
In a subsequent order, the district court awarded Fanguy $5,976 in attorney’s
fees. On appeal, Bentley does not challenge the dismissal of his complaint, but
rather argues that the district court erred in awarding Fanguy attorney’s fees


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR . R. 47.5.4.
   Case: 10-30321    Document: 00511245119      Page: 2   Date Filed: 09/27/2010



because he is not a “prevailing or substantially prevailing party” for purposes of
the Clean Water Act.
      We review “the district court’s award of attorney’s fees for abuse of
discretion.” Gagnon v. United Technisource Inc., 607 F.3d 1036, 1043 (5th Cir.
2010) (citation omitted). The district court summarily dismissed Bentley’s
complaint and subsequently awarded attorney’s fees after conducting a hearing
in which the court concluded:
      I don’t think this [complaint] complies with the Clean Water Act. I
      think it is a tremendous stretch of the imagination. This is a – this
      is litigation between two neighbors, who, for whatever reason, can’t
      get along. And whatever problems there are, this belongs in state
      court where it is firmly rested and I am going to dismiss this action
      at plaintiff’s cost.

      Bentley argues that the district court erred in awarding Fanguy attorney’s
fees as a prevailing or substantially prevailing party because the dismissal of the
lawsuit obtained by Fanguy did not create a material alteration of the parties’
legal relationship. We disagree.
      The “American Rule” is the starting point for fee awards: Even prevailing
litigants are ordinarily not entitled to attorney’s fees from the losing party.
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Servs.,
532 U.S. 598, 602 (2001). Under the American Rule, a fee-shift is allowed only
if there is some “specific and explicit” statutory exception. See, e.g., Alyeska
Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 260 (1975). Under the CWA,
Congress has provided for such a fee-shift in 33 U.S.C. § 1365(d), which, in
relevant part provides:
      The court, in issuing any final order in any action brought pursuant
      to this section, may award costs of litigation (including reasonable
      attorney and expert witness fees) to any prevailing or substantially
      prevailing party, whenever the court determines such award is

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         appropriate.

Id. While this court has not specifically addressed whether a defendant who
obtains a dismissal with prejudice is a prevailing or substantially prevailing
party for purposes of the CWA, we have considered that question in analogous
areas.
         In Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, the
Supreme Court interpreted § 304(d) of the Clean Air Act (CAA), which
authorizes an award of attorney’s fees to a successful party. 478 U.S. 546, 560
(1986). Relevant here, the Court interpreted § 304(d) of the CAA in the same
manner as the Civil Rights Attorney’s Fee Awards Act of 1976, 42 U.S.C. § 1988,
stating “[g]iven the common purpose of both § 304(d) and § 1988 to promote
citizen enforcement of important federal policies, we find no reason not to
interpret both provisions governing attorney’s fees in the same manner.” Id.
“The language of § 304(d) of the CAA is essentially the same as § 1365(d), the
attorney’s fees provision of the CWA before us today.” St. John’s Organic Farm
v. Gem Cnty. Mosquito Abatement Dist., 574 F.3d 1054, 1062-1063 (9th Cir.
2009). “The only difference is the absence of any ‘prevailing party’ language in
§ 304(d), but the Supreme Court has read ‘prevailing party’ into § 304(d) and
other attorney’s fees provisions in environmental statutes.” Id. (citing Penn. v.
Del. Valley Citizens’ Council for Clean Air (“Delaware Valley II”), 483 U.S. 711,
713 (1987); Ruckelshaus v. Sierra Club, 463 U.S. 680, 682 n.1 (1983)).
         In Anthony v. Marion County General Hospital, we concluded that a
defendant was a prevailing party under § 1988 when a plaintiff’s Title VII racial
discrimination suit was involuntarily dismissed with prejudice for want of
prosecution. 617 F.2d 1164, 1169–70 (5th Cir. 1980). We stated that:
         Although there has not been an adjudication on the merits in the


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         sense of a weighing of facts, there remains the fact that a dismissal
         with prejudice is deemed an adjudication on the merits for the
         purposes of res judicata. As such, the [defendant] has clearly
         prevailed in this litigation.

Id. (5th Cir. 1980) (emphasis added); see also, e.g., Schwarz v. Folloder, 767 F.2d
125, 130 (5th. Cir. 1985) (“[A] dismissal with prejudice gives the defendant the
full relief to which he is legally entitled and is tantamount to a judgment on the
merits.”).
         Fanguy obtained a dismissal with prejudice of Bentley’s CWA claim. This
outcome gave Fanguy “the full relief to which he is legally entitled and is
tantamount to a judgment on the merits.” Id. As such, Fanguy has “clearly
prevailed in this litigation,” Anthony, 617 F.2d at 1170, and, as such, the district
court did not err in awarding him attorney’s fees under the CWA as a prevailing
party.
         The judgment of the district court is AFFIRMED.




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