     Case: 09-40311     Document: 00511003870          Page: 1    Date Filed: 01/13/2010




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

                                                  FILED
                                                                          January 13, 2010

                                       No. 09-40311                    Charles R. Fulbruge III
                                                                               Clerk

BRYAN G. HOLE; ERIC E. GONZALEZ,

                                                   Plaintiffs–Appellants
v.

TEXAS A&M UNIVERSITY; ROBERT GATES; DAVID PARROT; MICHAEL
COLLINS; LAURA SOSH-LIGHTSY; JACQUIE VARGAS,

                                                   Defendants–Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 1:04-CV-00175


Before HIGGINBOTHAM, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
        Appellants Bryan G. Hole and Eric E. Gonzalez voluntarily incurred
attorney’s fees and costs in a state court action which they initiated and
eventually lost. Now, Appellants argue that these attorney’s fees and costs are
sufficient to establish injury under 42 U.S.C. § 1983. We disagree. Further, we
find that Appellants do not sufficiently allege any injury other than attorney’s




        *
         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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40311    Document: 00511003870      Page: 2    Date Filed: 01/13/2010

                                  No. 09-40311

fees and costs, and do not have access to attorney’s fees under 42 U.S.C. § 1988.
Accordingly, we AFFIRM the district court’s dismissal of their claims.
                               I. BACKGROUND
      The Parsons Mounted Cavalry (“PMC”) is a student organization at Texas
A&M University (“TAMU”). Appellees, which include TAMU and several of its
officers, received a complaint that PMC members were hazing recruits.
Appellees initiated disciplinary proceedings against numerous PMC members,
including Appellants. Before Appellees completed any disciplinary hearings,
Appellants and others filed suit in state court, alleging constitutional violations.
The state court enjoined Appellees from pursuing disciplinary actions against
Appellants or enforcing any sanctions previously assessed. Later, the state court
issued a judgment in Appellants’ favor.
      Appellees appealed to the Texas Court of Appeals, which reversed on the
ground that Appellants’ suit was not yet ripe. Tex. A&M Univ. v. Hole, 194
S.W.3d 591, 593 (Tex. App.—Waco 2006, pet. denied). The Texas Court of
Appeals reasoned that because no Appellant had actually completed TAMU’s
disciplinary process, there was no legally-cognizable injury. Id. The Supreme
Court of Texas declined to review the case.        Hole v. Tex. A&M Univ., No.
10-04-00287-CV, 2007 Tex. LEXIS 173, at *1 (Tex. Feb. 23, 2007).
      After the state trial court ruled in Appellants’ favor, but before the Texas
Court of Appeals reversed, Appellants filed suit in the United States District
Court for the Southern District of Texas, seeking injunctive relief under § 1983,
compensatory damages under § 1988 including attorney’s fees and expenses, and
declaratory relief under 28 U.S.C. § 2201. The district court stayed proceedings
pending the outcome of the state court appeal.
      After the Texas Court of Appeals reversed the state trial court’s ruling, the
district court resumed its proceedings. Appellees filed a motion for judgment on
the pleadings under Federal Rule of Civil Procedure 12(c), which the district

                                         2
   Case: 09-40311     Document: 00511003870     Page: 3    Date Filed: 01/13/2010

                                  No. 09-40311

court granted. The district court reasoned that “the dispute between the parties
. . . never ripened into an actual case or controversy because [Appellants] did not
suffer an injury-in-fact from [Appellees’] complained-of conduct.” Hole v. Tex.
A&M Univ., No. 4-175, slip op. at 4 (S.D. Tex. Feb. 10, 2009). The district court
noted that the combination of Appellants’ graduations from TAMU and the
Texas Court of Appeals’ dismissal of Appellants’ suit rendered moot any
injunctive or declaratory relief. Id. Further, the district court stated that
because Appellants did not prevail in the state court action, they were not
permitted to receive attorney’s fees under § 1988. Id.
      Appellants appeal only the district court’s finding that there was no injury.

                                 II. ANALYSIS

      We have jurisdiction over an appeal of the district court’s final ruling
under 28 U.S.C. § 1291. We review de novo a Rule 12(c) motion for judgment on
the pleadings. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.
2007). To survive a Rule 12(c) motion, a complaint must allege “sufficient
factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 570 (2007)); see also In re Katrina Canal Breaches Litig.,
495 F.3d at 205 (stating that the standard for a Rule 12(c) motion is the same as
that for a Rule 12(b)(6) motion). “[W]here the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct,” the pleader has
failed to show that he “is entitled to relief,” and dismissal is appropriate. Iqbal,
129 S. Ct. at 1950.

      As an initial matter, Appellees argue that Appellants waived their right
to challenge the district court’s ruling on mootness and ripeness because
Appellants stated that they were only appealing the district court’s conclusion
that they did not allege a legally-cognizable injury under § 1983. It is true that



                                         3
     Case: 09-40311   Document: 00511003870      Page: 4   Date Filed: 01/13/2010

                                   No. 09-40311

Appellants said they were only appealing the district court’s decision that they
did not state a claim under § 1983, but ripeness and mootness are related to this
determination. Thus, Appellants did not waive their right to challenge the
district court’s ruling on these issues.

A.      Whether Appellants’ Attorney’s Fees and Costs Constitute a
        Legally-Cognizable Injury under § 1983
        To have standing under § 1983, a plaintiff must suffer a legally-cognizable
injury. See, e.g., Allen v. Wright, 468 U.S. 737, 751 (1984). Here, the district
court found that Appellants’ state court attorney’s fees and costs do not
constitute a legally-cognizable injury. We agree.

        Appellants argue that the cases the district court relies on—Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83 (1998) and Lopez v. Houston
Independent School District, 124 F. App’x 234 (5th Cir. 2005) (per curiam)—are
distinguishable. It is true that these cases are not entirely on point factually.
In Steel, the petition sought costs and attorneys fees incurred in the “prosecution
of this matter,” 523 U.S. at 105 (emphasis added), while in the instant case
Appellants argue that their injury stems from attorney’s fees incurred in the
state action. Likewise, in Lopez, the federal court plaintiff was the attorney for
the state court plaintiff, 124 F. App’x at 235–36, while here the federal court
plaintiffs were the plaintiffs in state court.

        Although factually distinct, Steel and Lopez inform the general principle
that a party who voluntarily initiates litigation and does not win a judgment,
cannot then sue to recover attorney’s fees as a compensable injury. See Steel,
523 U.S. at 86 (“[A] plaintiff cannot achieve standing to litigate a substantive
issue by bringing suit for the cost of bringing suit.”); Lopez, 124 F. App’x at 236
(explaining that attorney’s fees incurred by a party who did not win the
underlying suit are not a legally-cognizable injury).       “[T]he mere fact that
continued adjudication would provide a remedy for an injury that is only a

                                           4
     Case: 09-40311   Document: 00511003870      Page: 5   Date Filed: 01/13/2010

                                   No. 09-40311

byproduct of the suit itself does not mean that the injury is cognizable under Art.
III.” Diamond v. Charles, 476 U.S. 54, 70–71 (1986).

        In addition, Appellants argue that the threat of disciplinary sanctions left
them no choice but to sue.       Appellants’ argument assumes that Appellees’
disciplinary process would inevitably have led to sanctions, and that these
sanctions would have violated Appellants’ constitutional rights. This argument
is speculative, and we do not accept it as true.

B.      Whether Appellants Allege Damages other than Attorney’s Fees
        and Costs
        In their Amended Complaint, Appellants allege that “[a]s a result of
[Appellees’] conduct and actions, [Appellants] suffered damages. Such damages
include the attorneys’ fees and expenses that were incurred by [Appellants] to
protect their constitutional rights.”     Now, Appellants argue that the word
“include” is intended to indicate that the attorney’s fees and expenses were not
an exhaustive list of their damages. Although the Amended Complaint hints at
other damages—injuries to Appellants’ reputations, liberty interests, and
educations—these hints do not reach the level of specificity required in a
complaint. Iqbal, 129 S. Ct. at 1950. Accordingly, Appellants fail to allege
sufficiently any cognizable damages.

C.      Whether Appellants May Recover Attorney’s Fees under § 1988
        Under § 1988, a party that wants to recover attorney’s fees incurred in a
prior proceeding must have prevailed in that proceeding. 42 U.S.C. § 1988(b)
(“In any action or proceeding to enforce [§ 1983] a court, in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee as part of the costs
. . . .”) (emphasis added); Castellano v. Fragozo, 311 F.3d 689, 711 (5th Cir.
2002), reh’g granted, 321 F.3d 1202 (5th Cir. 2003). To be a prevailing party
under § 1988, a plaintiff must obtain actual relief, such as an enforceable
judgment. Farrar v. Hobby, 506 U.S. 103, 111 (1992). Here, Appellants did not


                                          5
   Case: 09-40311    Document: 00511003870      Page: 6   Date Filed: 01/13/2010

                                  No. 09-40311

obtain actual relief. Although the state trial court granted Appellants injunctive
relief and ruled in their favor, the Texas Court of Appeals reversed. Thus,
Appellants do not have an enforceable judgment, are not the prevailing party,
and do not have access to attorney’s fees under § 1988.

                              III. CONCLUSION

      Appellants’ state court attorney’s fees and costs do not constitute sufficient
injury to establish standing under § 1983.          Further, Appellants do not
sufficiently allege any injury other than their state court attorney’s fees and
costs. Finally, Appellants do not have access to attorney’s fees under § 1988
because they did not prevail in state court. Accordingly, we AFFIRM the district
court’s ruling.




                                         6
