     Case: 16-30929   Document: 00514089740     Page: 1   Date Filed: 07/26/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 16-30929


LISA ROMAIN; STACEY GIBSON; JOANIKA DAVIS; SCHEVELLI
ROBERTSON; JERICHO MACKLIN; DAMEION WILLIAMS; BRIAN
TRINCHARD,

             Plaintiffs - Appellants

v.

MARKETA GARNER WALTERS, in her official capacity as Secretary,
Department of Children & Family Services,

             Defendant - Appellee




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


                ON PETITION FOR REHEARING EN BANC
Before WIENER, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:
      The court having been polled at the request of one of its members, and a
majority of the judges who are in regular active service and not disqualified
not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), en banc
reconsideration of this case is DENIED. In the en banc poll, six judges voted
in favor of rehearing (Judges Jolly, Jones, Smith, Clement, Owen and Elrod)
and eight judges voted against rehearing (Chief Judge Stewart and Judges
Dennis, Prado, Southwick, Haynes, Graves, Higginson, and Costa).
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                                  No. 16-30929
EDITH BROWN CLEMENT, Circuit Judge, joined by JONES, SMITH, and
OWEN, Circuit Judges, dissenting from the denial of rehearing en banc.

      The panel’s reversal of the district court’s denial of attorney’s fees rests
on a faulty prevailing party analysis. Under 42 U.S.C. § 1988, a district court
“in its discretion, may allow the prevailing party . . . a reasonable attorney’s
fee as part of the costs.” “[T]o achieve prevailing party status, a party must
achieve some judicially sanctioned relief that either creates or materially alters
a legal relationship between the parties.” Petteway v. Henry, 738 F.3d 132, 137
(5th Cir. 2013) (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598, 604 (2001)). A plaintiff seeking fees bears
the burden of proving that: (1) it “achieve[d] judicially-sanctioned relief”;
(2) the relief “materially alter[ed] the legal relationship between the parties”;
and (3) the relief “modif[ied] the defendant’s behavior in a way that directly
benefit[ted] the plaintiff at the time the relief [was] entered.” Id.
      To satisfy this test, a plaintiff must show that any alteration in the
parties’ relationship had “the necessary judicial imprimatur.” Id. The Supreme
Court has “not expressly define[d] judicial imprimatur, but [has] stated that
enforceable judgments on the merits and consent decrees are sufficient for
prevailing party status.” Dearmore v. City of Garland, 519 F.3d 517, 521 (5th
Cir. 2008) (internal quotation marks omitted). But that does not mean that
obtaining a consent decree automatically confers prevailing party status. The
plaintiff must still show that said consent decree “materially alter[ed] the legal
relationship between the parties.” Petteway, 738 F.3d at 137. It is readily
apparent from the timeline here that Romain has failed to do so.
      On Friday, December 18, 2015, Romain sued the Louisiana Department
of Children and Family Services (“DCFS”), seeking a temporary restraining
order to prevent DCFS from terminating their food stamp benefits once the
state-wide waiver of the “work requirement” lapsed. The very next business
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                                  No. 16-30929
day, Governor-Elect John Bel Edwards sent a letter to the U.S. Department of
Agriculture to “request that [it] work with [DCFS] to ensure there is no gap in
benefits,” reaffirming his campaign promise to reinstitute the waiver once he
took office. That same day, the district court denied the motion for a temporary
restraining order at the parties’ request. Three weeks later, the parties
submitted a “Stipulation and Order of Settlement,” citing Governor-Elect
Edwards’s letter as the impetus for settlement. The district court signed the
order on January 19, 2016.
      The settlement order at issue merely memorialized the existing policy of
the incoming administration. It did not actually alter the relationship between
the parties. “Governor Edwards was elected on November 21, 2015. His policy
with regard to this waiver was known, or easily discernable, long before this
suit was filed on December 18, 2015.” His policy made inevitable the relief
ultimately mandated in the settlement order.
      Recognizing this, the panel remanded the case to the district court “to
assess whether special circumstances apply” to justify not awarding attorney’s
fees—namely whether “even though the plaintiffs received the benefits desired
from their litigation, their efforts did not contribute to achieving those results.”
Romain v. Walters, 856 F.3d 402, 407-08 (5th Cir. 2017) (internal quotation
marks omitted). I see no reason to move onto this step when Romain has
demonstrably failed to show that the parties’ legal relationship today would be
different in the absence of the settlement order. Categorizing the issue as a
possible “special circumstance” unfairly flips the burden of proof onto the State.
See Pruett v. Harris Cty. Bail Bond Bd., 499 F.3d 403, 417 (5th Cir. 2007). This
is en banc worthy because by failing to correct this error, the court exposes the
State—and by extension tax payers—to predatory lawyering, allowing
attorneys to profit from announced policy changes by filing strategically-timed
law suits, all the while wasting valuable judicial resources.
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                           No. 16-30929
 Accordingly, I respectfully dissent from the denial of en banc review.




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