     Case: 16-30929   Document: 00513983405     Page: 1   Date Filed: 05/08/2017




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

                                                                         FILED
                                                                        May 8, 2017
                                 No. 16-30929
                                                                       Lyle W. Cayce
                                                                            Clerk
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


Before WIENER, DENNIS, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
      The district court determined that Plaintiffs in this matter were not
prevailing parties and denied recovery of attorneys’ fees. As discussed below,
we REVERSE and REMAND.
                                I. Background
      Plaintiffs Lisa Romain, Stacey Gibson, Joanika Davis, Schevelli
Robertson, Jericho Macklin, Dameion Williams, and Brian Trinchard are
residents of Louisiana who qualify for benefits under the Supplemental
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Nutritional Assistance Program (“SNAP”). 1 Plaintiffs relied on a state-wide
waiver to meet the “work requirement,” which is one of many requirements an
individual must meet in order to qualify for SNAP benefits. For at least the
last eighteen years, the Louisiana Department of Children & Family Services
(“Department”) consistently requested a waiver from the work requirement
based on the high levels of unemployment in Louisiana. Defendant Marketa
Garner Walters is the current Secretary of the Department. 2                       Despite
remaining eligible for the waiver, the Secretary did not apply for the waiver in
2015, which resulted in the waiver expiring on September 30, 2015. As a result
of the waiver’s expiration, approximately 62,000 SNAP recipients became
subject to the work requirement on October 1, 2015.
       The Department sent out letters in September 2015 to individuals who
were previously covered by the waiver stating both that the recipient would be
subject to the work requirement beginning October 1, 2015, and that the
recipient’s SNAP benefits would expire in three months unless they met the
requirement. Starting on or around December 1, 2015, these same individuals
began receiving notifications from the Department that their SNAP benefits
were being changed or eliminated on January 1, 2016, due to their failure to
meet the work requirement.
       Plaintiffs filed suit on December 18, 2015, arguing that the September
letters discussing the waiver, the December notices reducing or terminating
SNAP benefits, and the decision of Defendant to terminate SNAP benefits
without individual investigations or fair hearings violated both Plaintiffs’ due
process rights and their rights under 7 U.S.C. § 2015(o). Their complaint



       1   SNAP is more commonly known as the food stamps program.
       2 The suit was originally brought against Suzy Sonnier, who served as Secretary prior
to the appointment of Walters.
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sought both declaratory relief that Defendant’s actions violated their rights
under the aforementioned laws and injunctions staying Defendant from
terminating their SNAP benefits.        The complaint requested reasonable
attorneys’ fees and costs pursuant to 42 U.S.C. § 1988.               Plaintiffs
simultaneously filed both a motion for class certification and a motion for
temporary restraining order and preliminary injunction.
      On January 8, 2016, the parties filed a proposed stipulation and order of
settlement (“Settlement Order”) with the district court. The Settlement Order
quoted a December 21, 2015 letter from then-Governor-Elect John Bel
Edwards to the USDA stating his intention to extend the work requirement
waiver statewide in 2016. Edwards’s letter requested the USDA to work with
the Department “to ensure that there is no gap in benefits until the waiver can
be formally extended after I take office [on January 11, 2016],” and stated that
“I am willing to work with your office and [the Department] to ensure these
benefits are not cut off on December 31st.”
      The Settlement Order contained three specific orders to the parties.
First, in the event that the USDA granted a waiver, Defendant was ordered to
(a) “[t]ake all steps necessary to ensure that SNAP benefits due for January
2016, are issued no later than January 22, 2016 in accordance with federal law
and regulations”; (b) take steps to make sure the three-month work
requirement limitation period did not commence for Plaintiffs and members of
the class; and (c) issue notice to Plaintiffs and members of the class of the
actions taken in conformity with the grant of the waiver and the Settlement
Order. Second, if the USDA granted the waiver and Defendant complied with
the above conditions, the complaint would be dismissed with prejudice. Third,
in the event that the USDA did not grant the waiver in time to guarantee that
Plaintiffs and members of the class received their January 2016 SNAP
benefits, Plaintiffs could “restore the matter,” including their motions for
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                                      No. 16-30929
injunctive relief, by filing a letter with the district court. The district court
signed the Settlement Order on January 19, 2016.
       Counsel for Plaintiffs subsequently moved for attorneys’ fees and costs
pursuant to 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 54(d). The
motion requested $136,253.25 in fees and $1,888.57 in costs.                    Defendant
opposed the motion, alleging that the fee request was excessive and
unreasonable. Defendant also argued that the district court lacked jurisdiction
over the fee request because Plaintiffs both had failed to exhaust state
administrative remedies and were barred from suing Defendant under the
Eleventh Amendment. The district court denied Plaintiffs’ motion on the
grounds that Plaintiffs were not the prevailing party under § 1988.
                   II. Jurisdiction and Standard of Review
       The district court had jurisdiction over Plaintiffs’ suit under 28 U.S.C.
§ 1331. Shortly after the district court signed the Settlement Order, Governor
Edwards applied for and received the waiver. 3 Given that the settlement
conditions have been met, by resolving the fee dispute, the district court
rendered “a decision . . . that ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Martin v. Halliburton,
618 F.3d 476, 481 (5th Cir. 2010) (quoting Henry v. Lake Charles Am. Press,
LLC, 556 F.3d 164, 171 (5th Cir. 2009)). We therefore have jurisdiction to hear
Plaintiffs’ appeal from the order on attorneys’ fees under 28 U.S.C. § 1291.
       The issues raised by Plaintiffs’ appeal involve three standards of review.
First, “[t]he characterization of prevailing party status for awards under fee-
shifting statutes such as § 1988 is a legal question subject to de novo review.”
Dearmore v. City of Garland, 519 F.3d 517, 520 (5th Cir. 2008) (quoting Bailey



       3 At oral argument, the parties affirmed to the court that all conditions in the order
had been met.
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v. Mississippi, 407 F.3d 684, 687 (5th Cir. 2005)). Second, a denial of § 1988
attorneys’ fees is reviewed for an abuse of discretion. Sanchez v. City of Austin,
774 F.3d 873, 878 (5th Cir. 2014) (quoting Dean v. Riser, 240 F.3d 505, 507 (5th
Cir. 2001)). Finally, “this [c]ourt reviews the factual findings supporting the
grant or denial of attorney’s fees for clear error . . . .” Dearmore, 519 F.3d at
520 (citing Energy Mgmt. Corp. v. City of Shreveport, 467 F.3d 471, 482 (5th
Cir. 2006)).
                                  III. Discussion
      A. Prevailing Party
      In its order denying attorneys’ fees and costs, the district court began by
stating that:
               Although a party-negotiated settlement resulting in a
               consent judgment can, under certain circumstances,
               support a finding of “prevailing party” status and
               issuance of an attorney fee award . . . the [c]ourt, on
               the limited showing made, does not find the facts and
               circumstances of the instant matter to warrant such a
               finding.
After noting the rapid pace of the litigation, the district court expressed its
belief “that no relief provided to Plaintiffs . . . is fairly attributable, to any
extent, to the instant lawsuit and the efforts of Plaintiffs’ counsel, rather than
merely the voluntary action of Defendant based on the announced policy of
Louisiana’s (then) Governor-Elect John Bel Edwards.” The district court relied
on these reasons to deny Plaintiffs prevailing party status.
      In order to determine which party in a lawsuit is the “prevailing party”
for purposes of § 1988, we apply a three-part test. Petteway v. Henry, 738 F.3d
132, 137 (5th Cir. 2013). Under that test: “(1) the plaintiff must achieve
judicially-sanctioned relief, (2) the relief must materially alter the legal
relationship between the parties, and (3) the relief must modify the defendant’s
behavior in a way that directly benefits the plaintiff at the time the relief is
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entered.” Id. (citation omitted). As the party requesting fees, Plaintiffs carry
the burden to prove that they are the prevailing party. Id. (citation omitted).
      Applying this test, we hold that Plaintiffs were the prevailing party
before the district court. First, Plaintiffs obtained judicially-sanctioned relief
in the form of the Settlement Order. Second, the Settlement Order materially
altered the legal relationship of the parties by making Defendant subject to
additional requirements not included under the SNAP program.                 The
Settlement Order required Defendant to (1) have SNAP benefits for January
2016 issued no later than January 22, 2016; (2) take necessary steps to ensure
that no individual loses his or her SNAP benefits due to the timing of the
waiver application by Defendant; and (3) issue a new notice to individuals
covered by the old waiver informing them of the order and the new waiver.
These are all changes in the legal relationship between the parties, as they go
above and beyond the requirements of simply applying for and obtaining the
waiver. Therefore, this “court-ordered consent decree[] create[s] the ‘material
alteration of the legal relationship of the parties’ necessary to permit an award
of attorney’s fees.”   Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of
Health & Human Res., 532 U.S. 598, 604 (2001) (quoting Tex. State Teachers
Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792–93 (1989)). Finally, the
Settlement Order modified Defendant’s behavior in a way that directly
benefited Plaintiffs at the time relief was entered by requiring Defendant to
both obtain the waiver and issue a new notice. By obtaining the Settlement
Order, Plaintiffs benefitted from no longer having to determine other ways to
meet the work requirement.
      In its most recent discussion of prevailing party status under § 1988, the
Supreme Court stated that “[a] plaintiff ‘prevails,’ . . . ‘when actual relief on
the merits of his claim materially alters the legal relationship between the
parties by modifying the defendant’s behavior in a way that directly benefits
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the plaintiff.’” Lefemine v. Wideman, 133 S. Ct. 9, 11 (2012) (per curiam) (citing
Farrar v. Hobby, 506 U.S. 103, 111–12 (1992)). Plaintiffs’ lawsuit did just that.
The district court made an error of law in concluding otherwise.
      B. Special Circumstances
      Determining that Plaintiffs were prevailing parties does not end the
debate about whether they are entitled to fees because “special circumstances”
can justify a decision not to award fees: Plaintiffs as prevailing parties
“ordinarily [should] recover an attorney’s fee unless special circumstances
would render such an award unjust.”         Sanchez, 774 F.3d at 879 (quoting
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)). Only one of the two categories
of special circumstances we have previously recognized may apply to this case:
“cases in which ‘even though the plaintiffs received the benefits desired from
their litigation, their efforts did not contribute to achieving those results.’”
Grisham v. City of Fort Worth, 837 F.3d 564, 569 (5th Cir. 2016) (quoting
Riddell v. Nat’l Democratic Party, 624 F.2d 539, 543–44 (5th Cir. 1980)).
      On appeal, Plaintiffs argue both that no special circumstances exist and
that the “did not contribute” special circumstance is no longer applicable
precedent. Although Plaintiffs correctly point out that we have never found
this special circumstance warranted the denial of fees to a prevailing party, we
have nonetheless acknowledged its continued viability as recently as Grisham.
See 837 F.3d at 569. The Supreme Court’s decision in Buckhannon does not
affect this exception. Buckhannon only addressed the manner in which a
district court determines the prevailing party. But, as we have recognized,
“[t]he two inquiries—prevailing-party status and special circumstances—are
distinct.” Sanchez, 774 F.3d at 881 (citing Lefemine, 133 S. Ct. at 11–12). We
therefore continue to be bound by our precedent.
      Plaintiffs’ other argument on appeal, that no special circumstances exist,
is better left to the district court on remand. See Higher Taste, Inc. v. City of
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Tacoma, 717 F.3d 712, 718–19 (9th Cir. 2013) (after reversing the district
court’s prevailing party determination, the court of appeals stated that “[o]n
remand, the district court should determine in the first instance whether such
special circumstances exist”). We note that our precedent requires a defendant
arguing special circumstances to “make an ‘extremely strong showing’ of
special circumstances to avoid paying attorneys’ fees and that ‘the discretion
to deny § 1988 fees is . . . extremely narrow.’” Pruett v. Harris Cty. Bail Bond
Bd., 499 F.3d 403, 417 (5th Cir. 2007) (quoting Hous. Chronicle Publ’g Co. v.
City of League City, 488 F.3d 613, 623 (5th Cir. 2007) and Espino v. Besteiro,
708 F.2d 1002, 1005 (5th Cir. 1983)).
      Thus, to deny attorneys’ fees to Plaintiffs on remand, Defendant must
present evidence, not supposition, showing that Plaintiffs’ lawsuit did not
contribute to either Governor Edward’s application for the waiver or Governor
Edward’s work to ensure that no individual lost their SNAP benefits due to the
timing of the waiver application. See Pruett, 499 F.3d at 417 (defendant has
the burden to prove special circumstances); Kirchberg v. Feenstra, 708 F.2d
991, 1001 (5th Cir. 1983) (“[W]e have also requested that the court on remand
make record findings on those special circumstances that justify denial of an
award.” (citing Concerned Democrats of Fla. v. Reno, 601 F.2d 891, 892 (5th
Cir. 1979)). The district court has discretion (subject to review on appeal) to
determine how this evidence will be presented and to oversee the types of
evidence presented in this unusual situation of determining what motivated
the specific action of a governor to be, including whether such evidence should
include prior campaign statements and similar published platforms.
      In the event the district court determines that no special circumstances
apply, the district court must then determine the amount of reasonable and
necessary attorneys’ fees. “[I]n [the] absence of special circumstances a district
court not merely ‘may’ but must award fees to the prevailing plaintiff.”
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Sanchez, 774 F.3d at 880 (quoting Indep. Fed’n of Flight Attendants v. Zipes,
491 U.S. 754, 761 (1989)).
                               IV. Conclusion
        For the reasons discussed above, we REVERSE the district court and
hold that Plaintiffs were prevailing parties for purposes of attorneys’ fees and
costs under 42 U.S.C. § 1988 as a matter of law. We further REMAND this
case to the district court to assess whether special circumstances apply and, if
they do not, to determine the amount of reasonable and necessary attorneys’
fees.




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