     Case: 10-50399     Document: 00511511779          Page: 1    Date Filed: 06/16/2011




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

                                                  FILED
                                                                            June 16, 2011

                                       No. 10-50399                         Lyle W. Cayce
                                                                                 Clerk

LULAC OF TEXAS; MEXICAN AMERICAN BAR ASSOCIATION OF
HOUSTON, TEXAS (MABAH); ANGELA GARCIA; BERNARDO J GARCIA;
ELVIRA RIOS; ROGER ROCHA; ROSARIO VERA; RAYMUNDO VELARDE,


                                           Plaintiffs - Appellees Cross - Appellants

v.

TEXAS DEMOCRATIC PARTY,


                                           Defendant - Appellant Cross - Appellee




                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No. 5:08-CV-389


Before JONES, Chief Judge, and KING and BARKSDALE, Circuit Judges.
PER CURIAM:*
        At issue is an award of attorney’s fees and costs to plaintiffs (LULAC)
under the Voting Rights Act (VRA) against the Texas Democratic Party (TDP).
For this action, filed in 2008, under VRA §§ 2 and 5 against the State of Texas



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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and TDP, a district judge denied a preliminary injunction and granted
defendants’ motions to dismiss. LULAC appealed regarding § 5; and, inter alia,
our court affirmed the State’s dismissal and remanded for a three-judge court to
consider the § 5 claim against TDP. On remand, after being denied summary
judgment, TDP voluntarily obtained § 5 preclearance from the United States
Attorney General; and this action was dismissed as moot.
      TDP contests the subsequent award of attorney’s fees and costs to LULAC,
contending it is not a requisite “prevailing party”.     LULAC challenges the
amount of fees awarded and the award’s being stayed without TDP’s being
required to post a bond. Because LULAC is not a prevailing party, the award is
VACATED.
                                       I.
      In May 2008, LULAC filed this action against TDP and the State, claiming
violations of VRA §§ 2 and 5, 42 U.S.C. §§ 1973, 1973c. Section 2 prohibits a
“standard, practice, or procedure” with respect to voting that denies voters an
equal opportunity to elect candidates of their choice. 42 U.S.C. § 1973. Under
§ 5, preclearance is required for any change by a covered “State or political
subdivision” to a “standard, practice, or procedure with respect to voting
different from that in force or effect”. 42 U.S.C. § 1973c. LULAC challenged
TDP’s delegate-allocation method for calculating the number of delegates that
could be elected to TDP’s nominating conventions.
      TDP’s method, adopted in 1988, operated as follows. For its nominating
conventions for the 2008 election, TDP allocated the number of delegates each
convention could elect to attend the next convention, based on raw votes for the
2006 Democratic Party gubernatorial candidate. Those who attended precinct
conventions elected delegates to the county or state senatorial district
conventions (county conventions were held if the county was in a single senate
district; senatorial district conventions, if parts of a county were in more than
one senate district); the delegates from the precinct conventions attending

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county or senatorial district conventions elected delegates to the state
convention; and those elected to attend the state convention elected delegates to
the national convention.
      TDP held its primary election and its precinct conventions in early March
2008; its county and senatorial district conventions, in late March. In filing this
action that May, LULAC claimed TDP’s delegate-allocation method denied
“Latino voters an equal opportunity to participate in the electoral process and
select candidates of their choice, in violation of Section 2 of the [VRA]”. Further,
LULAC complained that TDP had not submitted its method for § 5 preclearance.
LULAC sought to “enjoin [TDP] . . . from conducting elections pursuant to the
non pre-cleared changes and illegal delegate allocation plan”.
      LULAC moved for a preliminary injunction; TDP and the State, to dismiss.
(TDP asserted, inter alia: because the changes were adopted in 1988, equitable
principles should bar LULAC’s claims as untimely. On the subsequent first
appeal, our court noted that equitable doctrines might affect the remedy, but did
not provide grounds for dismissal. LULAC of Tex. v. Texas, 318 F. App’x 261,
264 (5th Cir. 2009).)    In May 2008, a district judge denied a preliminary
injunction and granted the motions to dismiss. TDP’s state convention was held
that June.
      LULAC appealed, contending, for the first time, that its § 5 claim should
have been referred to a three-judge court. Because its preliminary-injunction
motion had requested only § 5 relief, LULAC did not challenge the dismissal of
its § 2 claim, and contested only a three-judge court’s not being utilized to decide
its § 5 claim.
      In early 2009, our court:      affirmed the State’s dismissal (one judge
dissenting); reversed TDP’s dismissal; and remanded for a three-judge court to
consider the § 5 claim against TDP (whether § 5 covered the contested change,
and, if so, the appropriate remedy). LULAC, 318 F. App’x at 262-63. In so
doing, our court noted that whether preclearance was required turned on three

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issues: was the delegate-allocation method a “standard, practice, or procedure
with respect to voting within the meaning of § 5”; did that method constitute a
“change” to the most recent practice that was both precleared and in force or
effect; and was TDP a “political subdivision subject to § 5”. Id. at 263 (internal
citation and quotation marks omitted).
      On remand, TDP moved for summary judgment, contending it was not a
“political subdivision” subject to § 5 and asserting two defenses: First
Amendment associational rights; and justiciability. At the summary-judgment
hearing, TDP conceded that its method was a “change”.
      In August 2009, the three-judge court denied TDP’s motion, holding: it
was a “political subdivision” with respect to its delegate-allocation method; and
TDP had failed to present evidence to support either of its defenses. LULAC of
Tex. v. Tex. Democratic Party, 651 F. Supp. 2d 700, 710-14 (W.D. Tex. 2009). In
denying the motion, the court stated that “political expediency and the TDP’s
stated support for Section 5 might counsel it now to seek preclearance of its
delegate allocation rules”. Id. at 713.
      Following TDP’s being denied summary judgment, LULAC moved for it,
seeking to have TDP required to obtain preclearance, and for resolution on the
merits of its § 5 claim.   LULAC asserted that the remaining § 5 coverage
issue—whether TDP’s method was a “standard, practice, or procedure with
respect to voting within the meaning of § 5”—should be resolved in its favor.
      The three-judge court was never required, however, to rule on LULAC’s
summary-judgment motion. Instead, TDP voluntarily submitted its method for
§ 5 preclearance. Concomitantly, TDP moved for, and was granted, abatement
of this action pending a preclearance response by the Attorney General.
Preclearance was granted; and, in November 2009, TDP’s motion to dismiss this
action as moot was granted.
      Contending it was a prevailing party, LULAC moved for attorney’s fees
($129,971.72) and costs ($11,071.18), pursuant to 42 U.S.C. §§ 1973l(e) and 1988.

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The three-judge court granted that motion in April 2010, ruling that its denial
of TDP’s summary-judgment motion constituted the requisite “judicial
imprimatur” for prevailing-party status. See, e.g., Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 605 (2001)
(requiring judicial imprimatur for prevailing-party status). It awarded fees of
$56,320.88 (approximately 40 percent of request) and the requested costs.
LULAC of Tex. v. Texas, No. SA-08-CA-389 (W.D. Tex. 7 Apr. 2010) (order
granting attorney’s fees and costs). TDP’s motion to stay the fees-and-costs
order was granted, without requiring TDP to post a bond.
                                        II.
      TDP challenges the fees-and-costs motion’s being granted; LULAC, the
amount of fees awarded and the award’s being stayed without requiring a bond.
Because we hold LULAC was not a prevailing party, we need not address its
cross-appeal.
      Under the VRA, 42 U.S.C. § 1973l(e), and the Civil Rights Attorney’s Fees
Award Act, 42 U.S.C. § 1988(b), a district court has discretion to award
reasonable attorney’s fees to a “prevailing party”. Accordingly, its decision is
reviewed for abuse of discretion. E.g., Volk v. Gonzalez, 262 F.3d 528, 534 (5th
Cir. 2001). Factual findings are reviewed for clear error; conclusions of law, de
novo. Id. Along that line, a prevailing-party determination, post-Buckhannon,
is a conclusion of law, subject to de novo review. E.g., Bailey v. Mississippi, 407
F.3d 684, 687 (5th Cir. 2005).
      Prior to Buckhannon, our court applied the catalyst theory to determine
prevailing-party status. Id. at 686-87. Under that theory, “plaintiffs were
considered prevailing parties even if their cases settled or became moot, so long
as the lawsuit itself was a substantial factor or significant catalyst that caused
the defendants to voluntarily change their behavior to the result plaintiffs
desired”. Id. at 687.



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      The Supreme Court rejected the catalyst theory in Buckhannon, holding
it improperly allowed “an award where there is no judicially sanctioned change
in the legal relationship of the parties”. Buckhannon, 532 U.S. at 605. The
Court held a prevailing party is one who has obtained some form of judicially-
sanctioned relief materially altering the legal relationship between the parties,
such as a judgment on the merits or a consent decree. Id. at 604.
      In the light of Buckhannon, our court has held that, for prevailing-party
status: plaintiff must obtain judicially-sanctioned relief, such as a judgment on
the merits or a consent decree (judicial imprimatur); the relief must materially
alter the legal relationship between the parties; and it must modify defendant’s
behavior in a way directly benefitting plaintiff at the time of the relief granted.
Dearmore v. City of Garland, 519 F.3d 517, 521 (5th Cir. 2008). “Where the
plaintiff’s success on a legal claim can be characterized as purely technical or de
minimis, he is not a prevailing party.” Jenevein v. Willing, 605 F.3d 268, 271
(5th Cir. 2010) (citation and internal quotation marks omitted). Moreover,
“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 (emphasis added).
      In awarding fees and costs, the three-judge court ruled that its summary-
judgment denial: resulted in TDP’s “revers[ing] the position it had held for
many months, [and] deciding to seek preclearance from the Attorney General”;
and, therefore, constituted the requisite judicial imprimatur. TDP contends
LULAC was not a prevailing party because: it did not obtain actual relief
altering the legal relationship of the parties; the summary-judgment denied TDP
did not award LULAC relief; and TDP’s obtaining preclearance was not a
modification of its behavior directly benefitting LULAC. LULAC counters that
the summary-judgment denial constituted the requisite judicial imprimatur on
TDP’s submitting its delegate-allocation method for preclearance.



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      We hold LULAC was not a prevailing party because it was not awarded
judicially-sanctioned relief on any of its claims and, therefore, TDP’s voluntary
submission of its method for preclearance lacked the requisite judicial
imprimatur. In the light of that holding, we need not address the other two
above-described requirements for prevailing-party status (material alteration
and modification of defendant’s behavior).
                                        A.
      First, LULAC was not awarded its primary requested relief: a declaratory
judgment and injunctive relief. See Staley v. Harris Cnty., Tex., 485 F.3d 305,
314 (5th Cir. 2007) (stating plaintiff must obtain primary relief sought to qualify
as prevailing party). LULAC requested, inter alia, the following relief: (1) a
declaratory judgment that TDP’s method violated VRA §§ 2 and 5; (2) injunctive
relief against TDP’s using the challenged method; and (3) an order requiring
TDP to comply with § 5 preclearance requirements.
      LULAC primarily sought relief under § 2, on the ground that TDP’s
delegate-allocation method denied Latino voters an equal opportunity to
participate in the electoral process. LULAC also sought § 5 preclearance of
TDP’s method; however, based on the language of the complaint, it appears
LULAC believed TDP’s method would not be precleared.
      Ultimately, LULAC sought to enjoin TDP from using its delegate-
allocation method, to be replaced by one more favorable to Latino voters. It did
not simply seek to have TDP’s method precleared. Because this action was
dismissed as moot, LULAC’s primary requested relief was never ruled upon,
much less granted.    See, e.g., Energy Mgmt. Corp. v. City of Shreveport, 467
F.3d 471, 482 (5th Cir. 2006) (holding no prevailing-party status where plaintiff
did not prevail on its threshold relief—an award of damages).
                                        B.
      Second, LULAC was not awarded judicially-sanctioned relief on its
secondary requested relief: § 5 preclearance. As the record reflects, and as

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conceded by LULAC at oral argument here, the three-judge court’s summary-
judgment denial was the only potential order awarding LULAC relief on its § 5
claim. Contrary to the court’s ruling on awarding fees and costs, however, that
summary-judgment denial did not award LULAC relief.
      There are three reasons why that order did not satisfy the judicial-
imprimatur requirement. As an initial matter, it did not require TDP to obtain
preclearance, nor did it hold that TDP’s method, without preclearance, violated
§ 5. See Planned Parenthood of Hous. & Se. Tex. v. Sanchez, 480 F.3d 734, 741
(5th Cir. 2007) (noting that, in two of our sister circuits, preliminary injunction
failed to create prevailing-party status because it merely preserved status quo).
TDP was not ordered to adopt a new delegate-allocation method or to cease using
its then-challenged method.     Needless to say, the court’s statement in its
summary-judgment denial, that “political expediency and the TDP’s stated
support for Section 5 might counsel it now to seek preclearance”, was not an
order of relief. LULAC, 651 F. Supp. 2d at 713.
      As stated, the § 5 coverage determination turned on whether:             the
delegate-allocation method was a “standard, practice, or procedure with respect
to voting within the meaning of § 5”; the method was a “change” to the most
recent practice (conceded by TDP); and TDP was a “political subdivision”.
LULAC, 318 F. App’x at 262-63.        The summary-judgment denial was also
insufficient as a judicial imprimatur because the three-judge court ruled on only
one of the two contested requirements for § 5 coverage—whether TDP was a
“political subdivision”. The three-judge court decided in LULAC’s favor on the
political-subdivision issue, but a favorable statement of the law “cannot bestow
prevailing party status”. Farrar v. Hobby, 506 U.S. 103, 112-13 (1992) (citation
omitted); see Walker v. City of Mesquite, 313 F.3d 246, 249-50 (5th Cir. 2002)
(ruling plaintiffs prevailing parties where they not only achieved favorable
statement of law, but also obtained declaratory relief, partial vacation of
remedial order, and revision of that order in district court).

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      Although TDP conceded, at the summary-judgment hearing, that its
delegate-allocation method was a change (again, made in 1988), the three-judge
court never ruled on whether that method was a “standard, practice, or
procedure with respect to voting within the meaning of § 5”. Following the
summary-judgment denial, LULAC moved for summary judgment on that issue,
but the court never ruled on that motion.
      Because the § 5 coverage determination was never ruled upon in its
entirety, any favorable statement of the law was de minimus. For example, in
Jenevein, a state judge, after being censured by the Texas State Commission on
Judicial Conduct, filed an action against its members to have the censure
expunged. Jenevein, 605 F.3d at 269. The district court dismissed; but, our
court reversed and remanded, granting partial expungement. Id. On remand,
Jenevein appealed the subsequent denial of his motion for attorney’s fees. Id.
In affirming that denial, our court held that the relief awarded, ordering the
district court to expunge part of the censure, was de minimis. Id. at 271.
Although Jenevein received part of his requested relief, the censure remained
in effect. Id.
      Similarly, although the three-judge court decided one of the two contested
§ 5 issues in favor of LULAC—that TDP constituted a “political subdivision”
within the meaning of § 5—that ruling was de minimis. The summary-judgment
denial left undecided whether the delegate-allocation method was a “standard,
practice, or procedure with respect to voting within the meaning of § 5”. See also
Roark & Hardee LP v. City of Austin, 522 F.3d 533, 556 (5th Cir. 2008) (holding
success de minimis where plaintiff succeeded on claim which had not been
appealed on merits, and failed on numerous other claims).
      In addition, for TDP’s First Amendment associational defense to § 5
coverage, asserted in support of its summary-judgment motion, the court stated
that TDP failed to explain how preclearance would implicate its associational
rights, leaving open the possibility that it could develop that defense as litigation

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progressed. Subsequently, in response to LULAC’s summary-judgment motion,
TDP provided evidence in support of that defense. Again, the court never ruled
on LULAC’s motion. Ultimately, the summary-judgment denial was “not the
stuff of which legal victories are made”. Buckhannon, 532 U.S. at 605 (citation
and internal quotation marks omitted). (Moreover, it goes without saying that,
had LULAC obtained a final judgment from the three-judge court, TDP could
have appealed.)
      In sum, because the three-judge court never awarded LULAC relief on its
§ 5 claim, there was no judicial imprimatur for TDP’s voluntary submission of
its method for preclearance. See Boyd v. Texas, 301 F. App’x 363, 367 (5th Cir.
2008) (holding State’s decision to provide letter to judges, confirming no policy
prohibited plaintiff from wearing religious head scarf in court, unaccompanied
by judicial relief, insufficient for prevailing-party status). There was no order
requiring TDP to seek preclearance; in its opposition to LULAC’s fees-and-costs
motion, it maintained it had voluntarily requested preclearance because it was
confident it would obtain a favorable response from the Attorney General. That
a causal relationship may exist between LULAC’s filing this action and TDP’s
seeking preclearance is insufficient, post-Buckhannon, to obtain prevailing-party
status. Buckhannon, 532 U.S. at 605.
                                      III.
      For the foregoing reasons, the order awarding attorney’s fees and costs is
VACATED.




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