# Petition for Writ of Certiorari — Foreman v. Dallas County

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1067

## Text

No. 991334 FEB7 - 2000
——————

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

B.C. FOREMAN, IDA CLARK, OTIS TARVER,
Louis Davis, and MAnpy PEsINA,

¥ Petitioners,

DALLAS COUNTY, TEXAS; COMMISSIONERS COURT OF
DALLAS County, TExAsS; LEE F. JACKSON, Dallas
County Judge; Jim JACKSON, JOHN WILEY PRICE, MIKE
CANTRELL, and KENNETH MAYFIELD, Dallas County
Commissioners; and BRUCE SHERBET, Elections Ad-
ministrator of Dallas County, Texas,

Respondents.

Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

PAUL M. SMITH * J. GERALD HEBERT
DONALD B. VERRILLI, JR. J. GERALD HEBERT, P.C.
SAM HIRSCH 5019 Waple Lane
JENNER & BLOCK Alexandria, VA 22304
601 Thirteenth Street, N.W. (703) 567-5873
Washington, D.C. 20005 Counsel for Petitioners

(202) 639-6000

KENNETH H. MOLBERG
ROGER G. WILLIAMS
WILSON, WILLIAMS &
MOLBERG, P.C.
2214 Main Street
Dallas, TX 75201-43824
(214) 748-5276 * Counsel of Record

FE RE EE PEE DENIAL OE AL LTE TOS LES TLE OD LS ET ROI TIS IID
WILSON-Epgs PRINTING Co., INC. - (202) 789-0096 - WASHINGTON, D.C. 20001

QUESTIONS PRESENTED

1. Whether this Court’s decision in Farrar v. Hobby, 506
U.S. 103 (1992), repudiated the “catalyst theory” for
determining whether a civil-rights plaintiff is a “prevailing
party” eligible to recover attorneys’ fees.

2. Whether plaintiffs who brought an enforcement action
under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c,
“prevailfed]” and hence became eligible to recover attorneys’
fees under Section 14(e) of the Act, id. § 1973/(e), when they
succeeded in forcing the defendants to replace a voting
procedure that was racially and ethnically discriminatory and
had not been precleared under Section 5 with a new voting
procedure that is not discriminatory and has been precleared.

il

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ........-------++++0+00> i
TABLE OF AUTHORITIES ..........--2eeeeeecces iV
¢ . § 4 26) ge aie 2
ee inc wk p eas vse seeceereseese seen 2
STATUTE TNVOLVED .o nc csc e esc ccccccenssecess 2
EE ep ee ee ee ee ee ee 2
REASONS FOR GRANTING THE WRIT .........--- 12
I. THE FIFTH CIRCUIT’S RULING EFFECTIVELY
PRECLUDES RELIANCE ON THE CATALYST THEORY
AND THUS SQUARELY CONFLICTS WITH RULINGS
OF MOST OTHER CIRCUITS. .....-----2eeeeeceees 14
Il. THE CONFLICT OVER THE CATALYST THEORY
SHOULD BE RESOLVED NOW. .......----+-eeee85 20
cape wear aveee ee teseneee eee 27
APPENDICES
APPENDIX A
Foreman vy. Dallas County, 193 F.3d 314
(Sth Cir. 1999)... 0.2... ccc e eee cece ee eeees la
APPENDIX B

Foreman v. Dallas County, Civil Action No.
3:96-CV-2764-D (N.D. Tex. Oct. 3, 1996)
(Temporary Restraining Order) .....---.-.--- 28a

ill
APPENDIX C

Foreman vy. Dallas County, 521 U.S. 979 (1997) ... 3la
APPENDIX D

Foreman vy. Dallas County, No. Civ. A.
3:96-CV-2764 (N.D. Tex. June 25, 1998)

(awarding attorneys’ fees)..------+--s5505 7" 34a
APPENDIX E
Foreman vy. Dallas County, No. 98-10864
(Sth Cir. Nov. 9, 1999) (denying rehearing) .... 50a
APPENDIX F
Statutory Provisions ee: Pe ree eee 52a
APPENDIX G
Declaration of Royce West ....------+sssrrttte 56a
APPENDIX H
Declaration of Debra Danburg ..---------++++7° 6la
APPENDIX I
Declaration of Terri Hodge ....-------ssssrttte 65a
APPENDIX J

Declaration of Steve McDonald ......----+:-++: 70a

Bibi seen. oe

~~

iV

TABLE OF AUTHORITIES
CASES
Baumgartner v. Harrisburg Housing Authority,

21 F.3d 541 (3d Cir. 1994) ..........-04-- 13, 21, 27
Beard v. Teska, 31 F.3d 942 (10th Cir. 1994) ......... 13
Board of Education of Oak Park v. Nathan R. ex rel.

Richard R., 199 F.3d 377 (7th Cir. 2000) .......-.- 20
Brooks v. Georgia State Board of Elections,

997 F.2d 857 (fith Cir. 1993) ..... 0. cece eeccees 17
Christiansburg Garment Co. v. EEOC, 434 U.S. 412

Li | eee meh onnas te Dare ei ras 2 ee ea 2 eee 17
Citizens Against Tax Waste v. Westerville City School,

985 F.2d 255 (6th Cir. 1993) ........--- eee ee eens 13
City of Riverside v. Rivera, 477 U.S. 561 (1986) . . . 20, 21
Farrar v. Hobby, 506 U.S. 103 (1992) ........-. passim
Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) .....--- 23

Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 120 S. Ct. 693 (2000) .... passim

Garcia v. Guerra, 744 F.2d 1159 (Sth Cir. 1984),

cert. denied, 471 U.S. 1065 (1985) ...........- 15, 16
Haley v. Pataki, 106 F.3d 478 (2d Cir. 1997) .......-. 16
Hanrahan vy. Hampton, 446 U.S. 754 (1980) ......--- 22
Hensley v. Eckerhart, 461 U.S. 424 (1983) ....-- passim
Hewitt v. Helms, 482 U.S. 755 (1987) ........--- passim

v

Institutionalized Juveniles v. Secretary of Public

Welfare, 758 F.2d 897 (3d Cir. 1985) ...---- eee eee 19
Kilgour v. City of Pasedena, 53 F.3d 1007

i ) ee a Sao Se cca 13
Little Rock School District v. Pulaski County Special

School District, #1, 17 F.3d 260 (8th Cir. 1994)..... 13
Lopez v. Monterey County, 119 S. Ct. 693 (1999) ...... 3
Maduka v. Meissner, 114 F.3d 1240 (D.C. Cir. 1997) .. 13
Maher v. Gagne, 448 U.S. 122 (1980) .....----- . 22,24
Maloney v. City of Marietta, 822 F.2d 1023

RO Cie IGRT) qo in ne es hadnt ees tne ne eens 15
Marbley v. Bane, 57 F.3d 224 (2d Cir. 1995) ..-.-- 13, 20
Marek v. Chesney, 473 U.S. 1 (1985)... +--+ see ere 12
Missouri v. Jenkins, 491 U.S. 274 (1989) ......----- 21
Morris v. City of West Palm Beach, 194 F.3d 1203

ANG Cie, T9DD) oss 55 6 5 Free savin s ns Coes 13
Morse v. Republican Party, 972 F. Supp. 355

CULT. Vin. TST) uw co nce c ns ese senor ren cccsse es 6

National Black Police Association v. District of
Columbia Board of Elections & Ethics,
168 F.3d 525 (D.C. Cir. 1999) ....----- seer erecee 16

Paris v. United States Department of Housing &
Urban Development, 988 F.2d 236 (Ist Cir. 1993) ... 13

Pennsylvania v. Delaware Valley Citizens’ Council
for Clean Air, 478 U.S. 546 (1986) ...-- eee eee 18

Rhodes v. Stewart, 488 U.S. 1 (1988) ...---++-- passim

vi
Robinson y. Kimbrough, 652 F.2d 458 (Sth Cir. 1981) . 10

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) ..... 12

S-1 & S-2 v. State Board of Education, 6 F.3d 160
(4th Cir.), vacated and reh'g granted (4th Cir. 1993) . 22

S-1 & S-2 v. State Board of Education, 21 F.3d 49
(4th Cir.), cert. denied, 513 U.S. 876 (1994) ... passim

Texas State Teachers Association v. Garland
Independent School District, 489 U.S. 782
ih, Seewenreroe tree rrrere frre hore er passim

Williams v. Leatherbury, 672 F.2d 549 (Sth Cir. 1982) ..8
Zinn vy. Shalala, 35 F.3d 273 (7th Cir. 1994) 13, 20, 26, 27

STATUTES & REGULATIONS
y BRE Yam or. |) errr errs re eee ere ee 2
SS UIA. BUS oo concen cancsaebeyarvasesys 21
tk foe Oo: rr ere ree re ee eee 3
Peg bh Soe Dk er ee ee ee ee ee passim
42 U.S.C. § 197T3BK]) 2... cccenncscesecsnccees passim

ek ee | ree eT eee or 21, 23
po ae ee Gr ey ei ee eg ce YS 3

Tex. Elec. Code Ann. § 32.002(c)
(West Supp. 1998) .........--- eee eeeeeeees passim

Vil

LEGISLATIVE MATERIAL

S. Rep. No. 94-295 (1975), reprinted in

1975 U.S.C.C.A.N. 774 ...cccecceeces 18, 20, 21, 25
Civil Rights Attorney's Fees Awards Act of 1976,
OG Geet DEAL... wb dy ccc cae cr bins Ce en e o'e'e 22

as oot C—

Weta ns Lait ue

IN THE

Supreme Court of the United States

No.

B.C. FOREMAN, IDA CLARK, OTIS TARVER, LOUIS DAVIS, and
MANDY PESINA,
Petitioners,
V.

DALLAS COUNTY, TEXAS; COMMISSIONERS COURT OF DALLAS
COUNTY, TEXAS; LEE F. JACKSON, Dallas County Judge; Jim
JACKSON, JOHN WILEY PRICE, MIKE CANTRELL, and KENNETH
MAYFIELD, Dallas County Commissioners; and BRUCE
SHERBET, Elections Administrator of Dallas County, Texas,
Respondents.

Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners seek review of a decision of the United States
Court of Appeals for the Fifth Circuit reversing an award of
attorneys’ fees under Section 14(e) of the Voting Rights Act, 42
U.S.C. § 1973i(e).'

' All parties in the court below are listed in the caption, except for
Dominic De La Cruz, a plaintiff below who is now deceased.

2

OPINIONS BELOW

The Court of Appeals’ opinion is reported at 193 F.3d 314
(Sth Cir. 1999) and reprinted at Pet. App. la, and its order
denying rehearing is reprinted at Pet. App. 50a. The District
Court’s opinion and order granting the plaintiffs’ motion for an
award of attorneys’ fees is reprinted at Pet. App. 34a.

JURISDICTION

The Court of Appeals issued its decision on October 14,
1999, and its order denying a timely petition for rehearing on
November 9, 1999. This Court has jurisdiction under 28
U.S.C. § 1254(1).

STATUTES INVOLVED

Section 5 of the Voting Rights Act of 1965, 79 Stat. 439,
as amended, 42 U.S.C. § 1973c, is reprinted at Pet. App. 52a.
Section 14(e) of the Voting Rights Act, 89 Stat. 404 (1975), 42
U.S.C. § 1973K(e), is reprinted at Pet. App. 54a. Section
32.002(c) of the Texas Election Code, as amended in 1997,
Tex. Elec. Code Ann. § 32.002(c) (West Supp. 1998), is
reprinted at Pet. App. 55a.

STATEMENT

Six African-American and Hispanic citizens brought a
successful enforcement action under Section 5 of the Voting
Rights Act, 42 U.S.C. § 1973c, which forced the defendant
Dallas County to implement a new, nondiscriminatory
procedure for appointing precinct election judges. The District
Court held that the plaintiffs were “prevailing parties” within

3

the meaning of the Act and ordered Dallas County to pay them
reasonable attorneys’ fees. A divided panel of the Court of
Appeals for the Fifth Circuit reversed. The Fifth Circuit's
decision misread this Court’s precedents and exacerbated an
existing conflict among the circuits — a circuit split that this
Court expressly recognized (but did not resolve) earlier this
Term, in Friends of the Earth, Inc. v. Laidlaw Environmental
Services (TOC), Inc., 120 S. Ct. 693, 711-12 (2000) (citing
cases). See infra page 13-14 and note 6. This Court should
grant certiorari now to resolve that circuit split.

Like other political subdivisions of the State of Texas,
defendant Dallas County, because of its history of
discriminatory voting practices, is a jurisdiction covered by
Section 5 of the Voting Rights Act. See 42 U.S.C. §§ 1973b,
1973c; 28 C.F.R. Pt. 51, App. It therefore may not implement
any change in a “standard, practice, or procedure with respect
to voting” without first obtaining either administrative
preclearance from the Attorney General or judicial preclearance
from the United States District Court for the District of
Columbia. 42 U.S.C. § 1973c. A proposed voting change can
be precleared only if the covered jurisdiction proves that the
change “does not have the purpose and will not have the effect
of denying or abridging the right to vote on account of race or
color, or [membership in a language minority group].”” /d. See
generally Lopez v. Monterey County, 119 S. Ct. 693, 696-97
(1999).

The issue in this case involved the methods that Dallas
County used to select precinct election judges — officials who
supervise polling places on election days. Between November
1, 1972, when Texas and its political subdivisions first became
covered jurisdictions under Section 5, and October 3, 1996,
when plaintiffs filed this case, Dallas County changed its
procedures for selecting and appointing clection judges at least

4

twice,’ but never sought preclearance for any of these voting
changes. Pet. App. 3a. In September 1996, Dallas County
adopted a new appointment procedure that caused at least 75
African-American and Hispanic election judges, including the
six plaintiffs in this case, to lose their positions. See Pet. App.
Sa.

After Dallas County refused to seek preclearance of this
new method, the plaintiffs filed a Section 5 enforcement action
in the United States District Court for the Northern District of
Texas. Pet. App. 4a, 18a-19a, 36a. Plaintiffs sought to block
Dallas County from implementing the new, unprecleared
method and to force it to adopt a racially and ethnically
nondiscriminatory, precleared method in its place. Pet. App.
4a, 19a, 31a, 35a. Within a year, plaintiffs achieved precisely
those goals and were reappointed as election judges, along with
several dozen other African-American and Hispanic citizens.
See Pet. App. 6a & n.3, 27a, 38a & n.3.

On October 3, 1996, the day they filed their original
complaint, the plaintiffs won a temporary restraining order
(TRO) from the District Court, which prevented the defendants
from implementing their unprecleared September 1996 method
for appointing election judges. Pet. App. 4a, 19a, 27a-30a, 36a,
39a-40a. On October 8, 1996, just five days after the District
Court issued the TRO, Dallas County rescinded the September
1996 method and replaced it with a new method, which it also

2 The record in this case does not disclose how Dallas County
appointed election judges before 1983, so it is unclear how many times, if
any, the procedures changed between 1972 and 1983. See Brief for United
States as Amicus Curiae at 2-3, Foreman v. Dallas County, 521 U.S. 979
(1997) (per curiam) (Nos. 96-987 & 96-1389). The parties stipulated that
Dallas County changed its appointment procedures in August 1995 and in
September 1996. See id. at 4-5. And, since the filing of this suit, it changed
them again two more times. See infra pages 4-5.

5

refused to submit for preclearance. Pet. App. 4a-5a, 19a-20a,
37a. Plaintiffs therefore amended their complaint to challenge
the latest unprecleared method. Pet. App. 5a, 20a, 37a.

The three-judge District Court denied plaintiffs’ motion for
a preliminary injunction and later dismissed their amended
complaint for failure to state a claim upon which relief could be
granted. Pet. App. 5a, 20a, 32a. But the plaintiffs prevailed
again when they appealed the dismissal and won a decision
from this Court, which required Dallas County to obtain
Section 5 preclearance before implementing any new method
for selecting and appointing election judges. Foreman v.
Dallas County, 521 U.S. 979, 980-81 (1997) (per curiam)
(vacating the District Court’s dismissal of plaintiffs’ amended
complaint), Pet. App. 31a; see also Pet. App. 27a. Because the
record was silent on the precise procedures Dallas County had
used to appoint election judges when it became a covered
jurisdiction in 1972 — a potentially dispositive fact under
Section 5 — this Court remanded the case for further
proceedings. Pet. App. 20a n.2, 33a.

While the case was on remand, a new Texas statute took
effect. Tex. Elec. Code Ann. § 32.002(c) (West Supp. 1998),
Pet. App. 55a. The statute mandated that all Texas counties use
a new, nondiscriminatory method for appointing election
judges. The Attorney General precleared the statute on
September 2, 1997, and Dallas County reappointed the
plaintiffs as election judges five weeks later. Pet. App. 6a &
n.3, 27a, 38a & n.3. Thus, the plaintiffs achieved their ultimate
goal — the replacement of a procedure that was racially and
ethnically discriminatory and had not been precleared with one
that was nondiscriminatory and had been precleared. The
plaintiffs’ success largely mooted the litigation, see Pet. App.
2a, 6a, 20a-21a, 40a, but raised the issue whether Dallas
County should pay the fees for the plaintiffs’ attorneys.

6

Pursuant to Section 14(e) of the Voting Rights Act, 42
U.S.C. § 1973e),’ the plaintiffs moved for an award of
attorneys’ fees, expenses, and costs, totaling roughly $183,000.
Pet. App. 34a-35a. The plaintiffs filed four affidavits
demonstrating that their lawsuit had been the “catalyst” for the
introduction and passage of the new Texas statute requiring
Dallas County to alter its method for appointing election
judges. Pet. App. 56a, 61a, 65a, 70a. Three affiants were
members of the Legislature, including the bill’s Senate sponsor
(who represented part of Dallas County) and the bill’s House
sponsor (who chaired the Committee on Elections). Pet. App.
23a-24a, 43a-45a. The fourth affiant was a Democratic Party
official who had testified in favor of the bill at a Texas Senate
hearing and had specifically cited this litigation as a reason for
enacting the bill. Pet. App. 70a; see also Pet. App. 25 n.3. The
affidavits explained that the Texas Legislature had decided to
enact the new procedure as a result of the plaintiffs’ suit. Pet.
App. 23a-24a, 43a-45a. Dallas County filed no counter-
affidavits from other legislators or hearing witnesses. It merely
pointed out that, in 1995, a similar bill had been introduced and
had passed in the Texas House of Representatives. Pet. App.
24a-25a, 27a, 47a. That bill, however, died in the Texas
Senate, and no other such bill was introduced until after the
plaintiffs brought this suit and obtained a TRO. Pet. App. 14a
& n.7, 25a.

* Section 14(e) provides, in full: “In any action or proceeding to
enforce the voting guarantees of the fourteenth or fifteenth amendment, the
court, in its discretion, may allow the prevailing party, other than the United
States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. §
1973e); see also Morse v. Republican Party, 972 F. Supp. 355, 358-61
(W.D. Va. 1997) (three-judge court) (awarding attorneys’ fees under Section
14(e) to prevailing plaintiffs in a Section 5 enforcement action).

On June 25, 1998, the District Court granted in full the
plaintiffs’ motion for attorneys’ fees. Pet. App. 34a, 49a. The
judge — who had sat on the three-judge District Court as well —
held that the plaintiffs were the “prevailing part[ies|” within the
meaning of Section 14(e) because they had prevailed in
obtaining a TRO and because their lawsuit had been “a
substantial factor or a significant catalyst in causing the Texas
Legislature to enact [the statute requiring Dallas County] to
alter its method for appointing election judges.” Pet. App. 34a;
see also Friends of the Earth, 120 S. Ct. at 711 (explaining
that, under the “catalyst theory,” a “plaintiff can be a
‘prevailing party’ for purposes of [a fee-shifting statute] if it
was the ‘catalyst’ that triggered a favorable outcome’). The
court also found that the plaintiffs’ attorneys had charged
reasonable hourly rates and that the total sum requested was
‘amply supported by the record.” Pet. App. 48a.

On appeal, a divided panel of the Fifth Circuit reversed the
award of attorneys’ fees and, rather than remand the case to the
District Court, “render[{ed] judgment that the plaintiff's [sic]
take no attorney’s fees.”” Pet App. 2a. The opinion of the two-
judge majority did not question the reasonableness of the
award, but instead held that the plaintiffs - who had not
formally obtained a consent decree, a settlement agreement, or
an enforceable final judgment against Dallas County — had not
“prevail[ed].” Pet. App. 10a-1la, 15a.

The court began its discussion of “prevailing party” status
by quoting extensively from this Court’s opinion in Farrar v.
Hobby, 506 U.S. 103 (1992), a case involving a plaintiff who
had received an enforceable final judgment but only for
nominal damages, see id. at 105, 107. Pet. App. 7a-10a.
Although the majority opinion expressly invoked Farrar 17
times, Pet. App. 7a-15a, it never mentioned or even alluded to
Farrar’s actual holding — that the plaintiff, who had received

8

only one dollar in nominal damages, was nonetheless a
“prevailing party” eligible to recover attorneys’ fees. Farrar,
506 U.S. at 105, 112, 116. Instead, the court stated that Farrar
“seemed to narrow the circumstances in which a party may
claim prevailing party status.” Pet. App. 9a (emphasis added).
The court based that conclusion on a few lines of dicta from
Farrar that arguably implied that a plaintiff could be deemed
a “prevailing party” only if he became “‘entitled to enforce a
judgment, consent decree, or settlement against the
defendant.’” Pet. App. 9a (quoting Farrar, 506 U.S. at 113
(dicta)) (emphasis added by the court below); see also Farrar,
506 U.S. at 111 (“The plaintiff must obtain an enforceable
judgment against the defendant from whom fees are sought . .
. or comparable relief through a consent decree or settlement .
.. .”) (citations omitted) (dicta), quoted in Pet. App. 9a.

Having elevated those dicta to a “guiding principle[],” Pet.
App. 7a, the court then went on to address at some length
Dallas County’s argument that “prevailing party status can no
longer be based on a catalyst theory after the Supreme Court's
decision in Farrar.” Pet. App. 8a. The “catalyst theory,” the
court explained, had been “routinely applied” in the 1980s and
early 1990s to allow “a plaintiff to achieve prevailing party
status — even in the absence of a formal victory in court — if the
plaintiffs suit was a ‘substantial factor or a significant catalyst’
in obtaining the relief sought.” Pet. App. 8a (quoting Williams
v. Leatherbury, 672 F.2d 549, 550-51 (Sth Cir. 1982)).

The court asserted that Farrar had placed “the continuing
validity of the catalyst theory . . . in serious doubt” and that
Farrar’s language (the dicta quoted above) was “seemingly at
odds with the catalyst theory” and had “‘led at least one court to
conclude that Farrar has swept the catalyst theory into the
judicial trash heap.” Pet. App. 8a-9a (citing S-/ & S-2 v. State
Bd. of Educ., 21 F.3d 49, 51 (4th Cir.) (en banc) (per curiam),

9

cert. denied, 513 U.S. 876 (1994)). The Fourth Circuit opinion
that the court cited was a 7-to-6 en banc decision expressly
overruling the catalyst theory and holding that a plaintiff may
only qualify as a “prevailing party” by virtue of “having
obtained an enforceable judgment, consent decree, or
settlement giving some of the legal relief sought.” S-/ & S-2,
21 F.3d at 51 (citing Farrar, 506 U.S. at 111-13).4

The court below recognized that at least five other circuits
had expressly disagreed with the Fourth Circuit, but noted that
the question remained open in the Fifth Circuit. Pet. App. 9a-
10a (citing cases). Rather than expressly addressing the
question, the court said it would “[a]ssum[e], without deciding,
that the catalyst theory still applies in th{e Fifth] Circuit.” Pet.
App. 10a; see Pet. App. 15a.

Having thus skirted the “potential conflict between the
catalyst theory and Farrar,” Pet. App. 10a, the majority below
purported to apply the catalyst theory to the facts of the case
and ruled against the plaintiffs. First, the court held that a TRO
cannot make a plaintiff a prevailing party because it is not “a
final remedy” and it does not provide ‘actual relief on the
merits.” Pet. App. 15a (quoting Farrar, 506 U.S. at 111).

Second, the court held that the plaintiffs did not in fact
obtain the relief they sought in their lawsuit. Pet. App. 1la-
12a. It stated that the plaintiffs’ complaint requested four
specific forms of declaratory and injunctive relief under Section

* The Fourth Circuit, sitting en banc, vacated the panel’s decision, and
the seven-judge majority adopted as its own the dissenting panel opinion of
Judge Wilkinson. See S-/ & S-2, 21 F.3d at 51 (adopting S-/ & S-2 v. State
Bd. of Educ., 6 F.3d 160, 168-72 (4th Cir. 1993) (Wilkinson, J.,
dissenting)). The six dissenting judges adopted Judge Phillips’ opinion for
the panel majority. See id. (adopting S-/ & S-2, 6 F.3d at 161-68 (Phillips,
J.)).

2
| nee et a a ae

10

5 of the Voting Rights Act and did not expressly ask Dallas
County to adopt a new method for appointing election judges.
Pet. App. 11-12a. The court stated “that the relief sought by the
plaintiffs’ suit, i.e., preclearance by the Department of Justice
of a change in voting procedures, is entirely separate and
distinct from . . . a substantive change in the procedure for
selecting [election] judges.” Pet. App. 14a n.7; see also id. at
12a (referring to the latter as perhaps one of plaintiffs’ “hidden
motives”). That Dallas County adopted a new procedure for
selecting election judges was immaterial, the court explained,
because the plaintiffs never received the permanent injunction
or the specific declaratory judgments requested in their
complaint. Pet. App. lla-12a. Thus, the court reasoned, “the
plaintiffs went home empty handed . . . [and] received none of
the substantive relief for which they originally filed suit.” Pet.
App. lla.

Third, the court held that, even assuming the plaintiffs
obtained the relief they sought, there was insufficient evidence
of a causal connection between their lawsuit and the Texas
Legislature’s decision to revamp the procedures for appointing
election judges in Dallas County. Pet. App. 12a-15a. That is,
the plaintiffs had not proved that “the lawsuit itself, as a
discrete event,” was “‘a substantial factor or a significant
catalyst’” in achieving the relief sought. Pet. App. lla, 13a
(quoting Robinson v. Kimbrough, 652 F.2d 458, 466 (Sth Cir.
1981)). The court explained that it would be “a formidable
task” for any plaintiff to prove that his lawsuit “was the catalyst
behind the passage of general legislation” because “the
legislative process is fraught with compromises, competing
concerns, and unspoken motives.” Pet. App. 13a. Therefore,
the court held, three affidavits from state legislators who
introduced and fought for passage of the bill — even if
uncontradicted by any counter-affidavits or other substantive
evidence — could not prove that a lawsuit had been a substantial

ONE kh NW Sen DO

1]

factor in a legislature’s decision. Pet. App. 13a-14a.

In dissent, Judge Stewart argued that the majority had not
applied the catalyst theory properly and had failed to accord
“broad discretion” to “the district court’s superior
understanding of the litigation.” Pet. App. 17a.

As for the TRO, Judge Stewart argued that the plaintiffs,
within five days of filing their suit, had successfully induced
Dallas County to abandon its September 1996 method for
appointing election judges. Pet. App. 19a. It was irrelevant,
Judge Stewart explained, that the plaintiffs achieved this goal
through a TRO rather than through a declaratory judgment that
the September 1996 method was legally unenforceable. Pet.
App. 19a, 26a-27a.

As for the plaintiffs’ obtaining the relief they sought in
their amended complaint, Judge Stewart noted that this Court
had agreed with plaintiffs that procedures for appointing
election judges are subject to Section 5’s preclearance
requirement, that the Texas Legislature had sought and
obtained preclearance of a statute requiring new appointment
procedures; that the Texas statute had forced Dallas County “to
implement a system of selection which was precleared” under
Section 5; and that the plaintiffs had all been reappointed to
their offices. Pet. App. 19a-21a. Thus, the plaintiffs had in fact
obtained the relief they sought. Pet. App. 26a-27a.

Finally, Judge Stewart rejected the majority’s analysis of
the causation issue because “a// the substantive evidence
presented to the district court [demonstrated that] this new
legislation was catalyzed by the plaintiffs’ lawsuit.” Pet. App.
27a (emphasis added); see Pet. App. 56a-74a. He explained
that, in denying any weight to the affidavits of the three Texas
legislators, the majority had confused legislative intent, that is,
the interpretation of a statute’s meaning — a question best

12

answered by the statute’s plain text — with legislative motive,
the relevant inquiry here. Pet. App. 21a-23a. In attempting to
determine whether a lawsuit motivated the introduction and
passage of a piece of legislation, the text will rarely answer the
question; but affidavits from legislative sponsors can provide
powerful evidence, Judge Stewart explained. Pet. App. 23a.
Wholesale rejection of affidavits about legislative motive
would be tantamount, Judge Stewart suggested, to “holding that
a party can never conclusively establish that a lawsuit is a
catalyst for legislation.” Pet. App. 23a (emphasis added). “It
is important to note,” Judge Stewart wrote, “that the defendants
offered no affidavits or evidence that contradicted the swom
testimony of [the] three Texas legislators who all clearly stated
that the present lawsuit was a significant factor in the
introduction and passage of the legislation which forced [Dallas
County] to adopt the precleared . . . method for appointing
election judges.” Pet. App. 24a-25a. Finally, Judge Stewart
took the majority to task for ignoring the plaintiffs’ fourth
affidavit, in which a party official recounted his testimony at a
Texas Senate hearing “specifically cit[ing] this litigation as a
reason for the Senate to adopt the bill.” See Pet. App. 25a-26a
n.3.

REASONS FOR GRANTING THE WRIT

The decision below conflicts with decisions of this Court
and of almost every other Court of Appeals, with the exception
of the Fourth Circuit. The case hinges on an important
interpretive issue — the proper definition of the term “prevailing
party,” which appears in numerous federal fee-shifting statutes. °

> See Ruckelshaus v. Sierra Club, 463 U.S. 680, 684 & n.3 (1983)
(listing statutes authorizing fee awards to the “prevailing party”); id. at 701
(continued...)

13

Although this Court has repeatedly given that term a broad
reading consistent with congressional intent, a few lines of
dicta in the most recent opinion, Farrar v. Hobby, 506 U.S.
103, 111, 113 (1992), have led the Fourth Circuit and now the
Fifth Circuit to go astray by effectively holding that a plaintiff
cannot “prevail” unless he obtains an enforceable final
judgment, consent decree, or settlement agreement. As this
Court acknowledged earlier this Term, that interpretation
squarely conflicts with the decisions of seven Courts of
Appeals that “have expressly concluded that Farrar did not
repudiate the catalyst theory” and two “{o]ther Courts of
Appeals [that] have likewise continued to apply the catalyst
theory notwithstanding Farrar.” Friends of the Earth, 120 S.
Ct. at 711 (citing cases in the First, Second, Third, Sixth,
Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits®); see also

*(...continued)
n.12 (Stevens, J., dissenting) (same); cf. Marek v. Chesney, 473 U.S. 1, 43-
51 (1985) (Brennan, J., dissenting) (listing 119 federal statutes authorizing
court-awarded attorneys’ fees).

° Marbley v. Bane, 57 F.3d 224, 234 (2d Cir. 1995) (expressly
concluding that Farrar did not repudiate the catalyst theory); Baumgartner
v. Harrisburg Hous. Auth., 21 F.3d 541, 546-50 (3d Cir. 1994) (same); Zinn
v. Shalala, 35 F.3d 273, 276 (7th Cir. 1994) (same); Little Rock Sch. Dist.
v. Pulaski County Special Sch. Dist., #1, 17 F.3d 260, 263 n.2 (8th Cir.
1994) (same); Kilgour v. City of Pasadena, 53 F.3d 1007, 1010 (9th Cir.
1995) (same); Beard v. Teska, 31 F.3d 942, 951-52 (10th Cir. 1994) (same);
Morris v. City of West Palm Beach, 194 F.3d 1203, 1207 (11th Cir. 1999)
(same); see Paris v. United States Dep't of Hous. & Urban Dev., 988 F.2d
236, 238 (Ist Cir. 1993) (applying the catalyst theory notwithstanding
Farrar); Citizens Against Tax Waste v. Westerville City Sch., 985 F.2d 255,
257 (6th Cir. 1993) (same); see also Maduka v. Meissner, 114 F.3d 1240,
1241 (D.C. Cir. 1997) (per curiam) (holding that a plaintiff had not
“prevailed” because his lawsuit was not “a catalytic, necessary or substantial
factor” in obtaining the relief for which he filed his lawsuit). But see S-/ &

(continued...)

14

id. (quoting the Fifth Circuit’s majority opinion in this case,
and citing the Fourth Circuit’s en banc decision in S-/ & S-2,
21 F.3d at 51). Having percolated in the lower courts for seven
years, the question whether Farrar effectively repudiated the
catalyst theory is now ripe for this Court’s disposition. In
Friends of the Earth, this Court recognized the importance of
that question, but declined to address it because the district
court in that case had neither denied nor awarded attorneys’
fees to the plaintiffs. Friends of the Earth, 120 S. Ct. at 711-
12. By contrast, this case squarely presents the question.

I. THE FIFTH CIRCUIT’S RULING EFFECTIVELY
PRECLUDES RELIANCE ON THE CATALYST THEORY AND
THUS SQUARELY CONFLICTS WITH RULINGS OF MOST
OTHER CIRCUITS.

Although the majority below purported to assume the
continued validity of the catalyst theory, its reasoning
effectively bars any award of attorneys’ fees to a plaintiff who
has not received a final judgment awarding the precise relief
sought in the complaint. As the District Court and the dissent
below recognized, see Pet. App. 17a-27a, 34a-49a, if there were
ever acase in which the plaintiffs should be awarded fees under
the catalyst theory, this was such a case. But the Court of
Appeals overturned the fee award in a manner that will ensure
that no plaintiff in the Fifth Circuit will ever succeed in
obtaining fees on the basis of the catalyst theory. It follows that
this case presents the Court with an opportunity to resolve the
conflict among the circuits on this important question.

The court below made three erroneous holdings. First, the

*(...continued)
S-2, 21 F.3d at 51.

[5

court held that a TRO can never be a basis for a finding of
prevailing-party status because it is not a final adjudication on
the merits. See Pet. App. 14a-15a. But that ruling is not only
contrary to the intent of Congress, see infra pages 20-21 — it
also amounts to a ruling that the catalyst theory is a dead letter.
After all, in many cases, preliminary relief will lead defendants
to rectify their conduct permanently. Here, for example, Dallas
County abandoned the September 1996 selection method that
was the subject of the TRO — albeit replacing it with another
method that was then challenged in an amended complaint.
But the Court of Appeals has held that, no matter how
significant the effects of preliminary relief may be on the
conduct of defendants, a final order is required.

By contrast, the majority view is that a “final remedy” is
not a prerequisite for “prevailing party” status. The practicality
of the majority view is particularly apparent in voting-rights
cases. When a State or county threatens to adopt a
discriminatory procedure for an upcoming election, a TRO or
preliminary injunction blocking that procedure is often the only
meaningful relief plaintiffs can seek, as there typically is not
enough time before the election to litigate the case to a final
conclusion on the merits. In those circumstances, federal
courts applying the catalyst theory have not hesitated to award
fees to voting-rights plaintiffs solely on the basis of their having
obtained nonfinal relief such as a TRO or a preliminary
injunction. See, e.g., Maloney v. City of Marietta, 822 F.2d
1023, 1024-27 (11th Cir. 1987) (holding that plaintiffs in a
Section 5 enforcement action were “prevailing parties” because
they received a TRO that induced the defendant city to seek
preclearance for its new election ordinance, even though the
ordinance proved to be nondiscriminatory and therefore was
precleared); Garcia v. Guerra, 744 F.2d 1159, 1161-66 (Sth
Cir. 1984) (reversing a denial of attorneys’ fees where plaintiffs
in a Section 5 enforcement action got no formal relief other

16

than a TRO restraining the county from holding the election on
an unprecleared date when Hispanic farm workers would be
unable to go to the polls), cert. denied, 471 U.S. 1065 (1985).’

Second, the court below held that plaintiffs did not prevail
on the claims stated in their amended complaint (challenging
the selection procedure adopted after the TRO) because they
did not obtain precisely the same relief they had sought from
the District Court — a formal order requiring preclearance of the
challenged selection method. See Pet. App. 11a-12a. But here
again, that ruling is utterly inconsistent with the Fifth Circuit’s
purported assumption that a catalyst theory can be valid.

In every practical sense, the plaintiffs prevailed. They
successfully forced Dallas County to replace an election
procedure that was racially and ethnically discriminatory and
that had not been submitted for preclearance, let alone
precleared, with one that is nondiscriminatory and has been
submitted and precleared. That change in election procedure
directly and “materially alter[ed] the legal relationship”
between Dallas County and the plaintiffs, as the County quickly
reappointed several dozen African-American and Hispanic
election judges, including the plaintiffs. Farrar, 506 U.S. at
111 (citing Texas State Teachers Ass'n v. Garland Ind. Sch.
Dist., 489 U.S. 782, 792-93 (1989)). These are precisely the
benefits the plaintiffs sought in bringing their Section 5
enforcement action. Cf. Farrar, 506 U.S. at 109-13; Garland,
489 U.S. at 791-92; Rhodes v. Stewart, 488 U.S. 1, 4 (1988)
(per curiam); Hewitt v. Helms, 482 U.S. 755, 760-61, 763
(1987); Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The
County’s change in conduct redressed the plaintiffs’ grievances

’ See also National Black Police Ass'n v. District of Columbia Bd. of
Elections & Ethics, 168 F.3d 525, 527-29 (D.C. Cir. 1999); Haley v. Pataki,
106 F.3d 478, 483-84 (2d Cir. 1997).

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no less than if the District Court had formally entered an
enforceable final judgment against Dallas County. Cf. Rhodes,
488 U.S. at 4; Hewitt, 482 U.S. at 760-61. Only 12 months
after filing their lawsuit, the plaintiffs had obtained “essentially
complete relief.” Hensley, 461 U.S. at 431; see also Farrar,
506 U.S. at 111.

In the course of that year, the plaintiffs were successful in
the courtroom, as well as in the legislative arena. They obtained
first a TRO that blocked Dallas County from implementing an
unprecleared election procedure, Pet. App. 28a-30a, and then
an opinion from this Court holding that changes in that election
procedure were, contrary to Dallas County’s contention, subject
to Section 5 of the Voting Rights Act. Pet. App. 3la-33a.®
Thus, on their principal claim — that changes in the method for
appointing election judges had to be precleared — the plaintiffs
prevailed on the merits, in the highest Court in the land. Cf
Farrar, 506 U.S. at 109, 111-12; Garland, 489 U.S. at 791-92;
Hewitt, 482 U.S. at 758; Hensley, 461 U.S. at 434. There can
be no doubt that the plaintiffs vindicated their rights under
Federal law. Cf. Farrar, 506 U.S. at 111; Garland, 489 U.S. at

* This Court’s June 1997 decision was unequivocal: Any new method
that Dallas County adopted for selecting and appointing election judges
would be subject to Section 5’s preclearance requirement. This Court
vacated and remanded, rather than reversed, only to allow Dallas County an
opportunity to prove that its October 1996 method was the same as its
November 1972 method — a purely factual point unaddressed in the record.
Pet. App. 33a. But the County’s September 1996 method differed from all
previous methods. Therefore, Dallas County clearly violated the Voting
Rights Act when it failed to seek preclearance of the September 1996
method. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 418
(1978).

793.?

Thus, the plaintiffs served the “private attorney general”
role that Congress meant to promote when it enacted Section
14(e) of the Voting Rights Act. See S. Rep. No. 94-295, at 40
(1975) [hereinafter S. Rep.], reprinted in 1975 U.S.C.C.A.N.
774, 807; see also Garland, 489 U.S. at 793. Because they
prevailed on the significant issues in their litigation and
obtained the relief they sought, the plaintiffs are “prevailing
parties” within the meaning of Section 14(e). See Farrar, 506
US. at 109; Garland, 489 U.S. at 791-93; Hewitt, 482 U.S. at
760; Hensley, 461 U.S. at 433. The Fifth Circuit’s contrary
decision — based on the plaintiffs’ failure to obtain a final
judgment before the case was rendered moot by remedial
legislation — amounts to a complete repudiation of the catalyst
theory.

Third, the court below held that uncontradicted affidavits
from key players in the Texas Legislature stating that this
lawsuit was the catalyst of the legislative remedy were not
sufficient proof of causation. See Pet. App. 12a-14a. That
ruling means, in effect, that it is impossible -- as a matter of law
— to demonstrate the motive of a legislature in passing a law
that mooted a civil-rights suit by providing all the relief sought.
As the dissent below recognized, if plaintiffs cannot
demonstrate legislative motivation through uncontradicted
sworn testimony, “a party can never conclusively establish that
a lawsuit is a catalyst for legislation.” Pet. App. 23a (emphasis

* In Brooks v. Georgia State Board of Elections, 997 F.2d 857 (11th
Cir. 1993), the court affirmed an award of fees not only for the time that
plaintiffs’ counsel spent litigating the Section 5 enforcement action, but also
for the time spent opposing administrative preclearance, because the latter
work was “crucial to the vindication of [plaintiffs’] rights.” /d. at 864
(citing Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air,
478 U.S. 546, 561 (1986)).

added).'°

In so ruling, the Fifth Circuit not only effectively barred
catalyst claims but also created an additional, more specific
circuit conflict. In a comparable case, the Third Circuit
expressly relied on an affidavit from a legislator in determining
that a lawsuit had been an important catalyst in the enactment
of legislation. See, e.g., Institutionalized Juveniles v. Secretary
of Pub. Welfare, 758 F.2d 897, 916-17 & nn.30-31 (3d Cir.
1985) (relying on a former state senator’s affidavit and
upholding a fee award).

If, to qualify as a prevailing party, a civil-rights plaintiff
must triumph in a “final” order, must obtain precisely the relief
requested in his complaint, and cannot rely on uncontradicted
testimony from key legislators to prove that his lawsuit induced
remedial legislation, then nothing remains of the catalyst
theory. It is now as dead in the Fifth Circuit as it has been for |
years in the Fourth Circuit.

'° In his dissent, Judge Stewart also correctly observed that “all the
substantive evidence presented to the district court [had demonstrated that]
this new legislation was catalyzed by the plaintiffs’ lawsuit.” Pet. App. 27a
(emphasis added); see Pet. App. 22a-27a. Plaintiffs’ four affidavits — from
three legislators and one hearing witness — were unambiguous and
uncontradicted. Pet. App. 23a-24a, 25a n.3. Dallas County offered no
counter-affidavits. Its only factual argument was that a similar bill had been
introduced in 1995. But the fact that the 1995 bill died and the 1997 bill
passed only strengthens the conclusion that the 1997 enactment was
catalyzed by the lawsuit filed in 1996. Sze Pet. App. 25a; see also Pet. App.
67a.

Given the County’s failure here to raise a genuine issue as to any
material fact, the court below apparently resolved the causation issue as a
matter of law, and hence its ruling should be reviewed de novo. See Pet.
App. 6a.

20

Il. THE CONFLICT OVER THE CATALYST THEORY SHOULD
BE RESOLVED Now.

In the wake of the ruling below, in two circuits civil-rights
plaintiffs can lose their eligibility for attorneys’ fees simply
because defendants acquiesce to their demands “voluntarily”
before a formal adjudication is obtained. In at least nine other
circuits, precisely the opposite rule applies. See supra page 13
and note 6.'' This conflict needs resolution now, for two
reasons.

First, it makes no sense to allow such a conflict to continue
to exist. Congress has made available attorneys’ fees for
prevailing plaintiffs in civil-rights cases based on a recognition
that these plaintiffs serve to protect and vindicate fundamental
rights and liberties. Like other civil-rights fee-shifting
provisions, Section 14(e) of the Voting Rights Act was enacted
because “Congress depends heavily upon private citizens to
enforce the fundamental rights involved” and “[f]ee awards are
a necessary means of enabling private citizens to vindicate
these Federal rights.” S. Rep., supra, at 40, reprinted in 1975
U.S.C.C.A.N. at 807. Congress limited the recovery of fees to
“prevailing parties,” however, to “filter out meritless cases.”
Marbley v. Bane, 57 F.3d 224, 233 (2d Cir. 1995).

As this case illustrates, there are many cases in which the
relief at stake, while important, is nonpecuniary and therefore
the plaintiffs might be unable to hire adequate counsel absent
a chance of fee-shifting. See City of Riverside v. Rivera, 477

'' Misreadings of Farrar’s dicta continue to spawn confusion in the
lower courts. Recently, the Seventh Circuit indicated that it also may be
reconsidering the validity of the catalyst theory in light of Farrar. See, e.g.,
Board of Educ. of Oak Park vy. Nathan R. ex rel. Richard R., 199 F.3d 377,
382 (7th Cir. 2000) (possibly creating an intracircuit split with Zinn v.
Shalala, 35 F.3d at 276).

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21

U.S. 561, 574-80 (1986) (plurality opinion); id. at 594-95
(Rehnquist, J., dissenting). Because of the importance of this
area of the law, the Court should be especially attentive to the
need to maintain consistency among the circuits.

Second, on the merits, the position of the Fourth and Fifth
Circuits is plainly contrary to the intent of Congress. Given the
importance that Congress attached to the vindication of
fundamental Federal voting rights, defendants’ strategic
avoidance of court-awarded fees had to be checked: “{I]f
defendants could deprive plaintiffs of attorneys’ fees by
unilaterally mooting the underlying case by conceding to
plaintiffs’ demands, attorneys might be more hesitant about
bringing these civil rights suits, a result inconsistent with
Congress’ intent ....” Baumgartner v. Harrisburg Hous.
Auth., 21 F.3d 541, 548 (3d Cir. 1994).

Congress therefore authorized fee awards not only for
plaintiffs who prevail in a formal, final judgment on the merits,
but also for plaintiffs who vindicate their civil rights either by
prevailing “on an important matter in the course of litigation”
or by obtaining informal relief. S. Rep., supra, at 41 (emphasis
added), reprinted in 1975 U.S.C.C.A.N. at 808; see also
Garland, 489 U.S. at 791-92 (recognizing that Congress has
authorized interim fee awards pendente lite); Missouri v.
Jenkins, 491 U.S. 274, 283 n.6 (1989) (same). Congress
certainly knew how to restrict fee awards to plaintiffs who have
won a final judgment. See, eg.,. 33 U.S.C. § 1365(d)
(authorizing the award of attorneys’ fees only by courts issuing
a “final order”). But Congress deliberately chose not to do so
in the context of civil rights. See, e.g., 42 U.S.C. §§ 1973/(e),
1988(b).

Prior to Farrar, this Court repeatedly recognized that
Congress intended to allow civil-rights plaintiffs to obtain fees
when they prevail without obtaining a formal and final

22

judgment.'* Just as the court below never mentioned or even
alluded to Farrar’s actual holding, it never referred to any of
the precedents that the Farrar Court itself had cited as
authoritative on the general issue of prevailing-party status.
See Farrar, 506 U.S. at 109-14 (citing Garland, 489 U.S. at
790-93; Rhodes, 488 U.S. at 2-4; Hewitt, 482 U.S. at 757, 760-
64; Hensley, 461 U.S. at 433, 436-38; Maher v. Gagne, 448
U.S. 122, 129 (1980)). Had the Fifth Circuit studied those
cases, it wouid have found that each of them “either expressly
or tacitly recognized the catalyst theory’s viability.” S-/ & S-2
v. State Bd. of Educ., 6 F.3d 160, 167 (4th Cir.), vacated and
reh’g granted, 6 F.3d at 160 (4th Cir. 1993) (en banc).

In Maher v. Gagne, 448 U.S. 122 (1980), this Court upheld
an award of fees in a case that had been settled by the entry of
a consent decree, without full litigation of the issues, without
the plaintiff formally obtaining relief, and without any judicial
determination that her rights had been violated. See id. at 124,
129-30.

The Court in Hensley v. Eckerhart, 461 U.S. 424 (1983),
then held that plaintiffs’ failure to prevail on some (but not all)
of their claims for relief did not deny them “prevailing party”
Status, but rather that the extent of their success should go to
the proper amount of a reasonable fee award. See id. at 436-37,
440. Writing for the majority, Justice Powell explained that the
Court’s “generous formulation” of the term “prevailing party”

'? The Court’s decisions deal primarily with the Civil Rights Attorney’s
Fees Awards Act of 1976, Pub. L. No. 94-559, 90 Stat. 2641, as amended,
42 U.S.C. § 1988 [hereinafter “Section 1988”], which was patterned after,
and is textually almost identical to, Section 14(e) of the Voting Rights Act.
See Hanrahan v. Hampton, 446 U.S. 754, 758 n.4 (1980) (per curiam).
This Court has generally applied the same standards to Section 14(e),
Section 1988, and all other federal statutes authorizing an award of fees to
a “prevailing party.” See Hensley, 461 U.S. at 433 n.7.

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23

“brings the plaintiff only across the statutory threshold. It
remains for the district court to determine what fee,” if any, is
“reasonable.” Jd. at 433; see Garland, 489 U.S. at 792
(reaffirming Hensley’s “generous formulation”).

Moreover, Justice Powell’s opinion for the Court tacitly
recognized the catalyst theory’s viability. The Court remanded
the case for a possible recalculation of the amount of the award.
See 461 U.S. at 438-40 & 439 n.15. In doing so, Justice Powell
explained that the size of the award might depend upon the
plaintiffs’ ability to show that their lawsuit had been the
“catalyst” for the defendants’ change in conduct. Jd. at 439
n.15. Justice Powell apparently believed the catalyst theory
was good law as of 1983, and no other Justice contradicted that
belief.

In Hewitt v. Helms, 482 U.S. 755 (1987), the Court simply
held that a plaintiff who had litigated to judgment, had lost on
all of his claims, and had obtained nothing from the defendants
was not a “prevailing party.” See id. at 759-62. Justice Scalia’s
opinion for the Court recognized, however, that “[i]t is settled
law, of course, that relief need not be judicially decreed in order
to justify a fee award.” Jd. at 760. “A lawsuit sometimes
produces voluntary action by the defendant that affords the
plaintiff all or some of the relief he sought through a judgment
~ €.g., a monetary settlement or a change in conduct that
redresses the plaintiff's grievances.” Id. at 760-61 (emphasis
added). “When that occurs,” the Court explained, “the plaintiff

'’ A “generous” definition of the term “prevailing party” creates little
risk of excessively burdening governmental defendants because a prevailing
plaintiff is merely eligible to recover attorneys’ fees; he is never entitled to
do so. The district court, in the sound exercise of its equitable discretion,
may determine that only a small award is “reasonable” within the meaning
of the statute. 42 U.S.C. §§ 1973/(e), 1988(b); cf. Fogerty v. Fantasy, Inc.,
510 U.S. 517, 534 (1994).

24

is deemed to have prevailed despite the absence of a formal
judgment in his favor.” /d. at 761 (citing Maher, 448 U.S. at
129). “In all civil litigation,” Justice Scalia continued, “the
judicial decree is not the end but the means. At the end of the
rainbow lies not a judgment, but some action (or cessation of
action) by the defendant that the judgment produces — the
payment of damages, or some specific performance, or the
termination of some conduct. Redress is sought through the
court, but from the defendant.” Jd. at 761 (emphasis in the
original). “/I]f the defendant, under pressure of the lawsuit,
alters his conduct (or threatened conduct) towards the plaintiff
that was the basis for the suit, the plaintiff will have prevailed.
That is the proper equivalent of a judicial judgment which
would produce the same effect... .” Jd. at 761 (emphasis
added).

The plaintiff in Hewitt also expressly raised the catalyst
theory, arguing that there was a clear causal link between his
lawsuit and the State’s amendment of its prison regulations.
See id. at 759, 763-64. The Court rejected that argument on the
ground that the plaintiff had been released from prison long
before the new regulations were promulgated and thus he “did
not and could not get redress from [them].” Jd. at 763.

One year later, the Court confronted a similar fact pattern.
Both cases had been filed by prisoners seeking changes in
prison policy, but unlike the plaintiff in Hewitt, the plaintiff in
Rhodes v. Stewart, 488 U.S. 1 (1988) (per curiam), had
obtained a declaratory judgment. See id. at 2-3. That
distinction proved irrelevant. The Court held that Rhodes was
controlled by the holding in Hewitt because plaintiffs in both
cases had been released from prison and therefore could not get
redress from any changes in prison policy caused by their
lawsuits. See id. at 4. Because the declaratory judgment did
not affect “the behavior of the defendant toward the plaintiff,”

25

it afforded him no relief whatsoever; and, in the absence of
relief, the plaintiff did not “prevail” and therefore was

precluded from recovering attorneys’ fees. Jd. at 4 (emphasis
added).

The Court’s last major decision on “prevailing party”
status prior to Farrar was delivered by Justice O’ Connor in her
opinion for a unanimous Court in Texas State Teachers
Association v. Garland Independent School District, 489 U.S.
782 (1989). Like the present case, Garland arose in Texas and
presented a circuit split in which the Fifth Circuit and one other
Court of Appeals had narrowly interpreted the phrase
“prevailing party,” contrary to holdings of the Second, Seventh,
Eighth, Ninth, and Tenth Circuits. See id. at 784 (citing cases).
This Court reversed the Fifth Circuit’s judgment and held that
plaintiffs are “prevailing parties” eligible for an award of
attorneys’ fees if they have “succeeded on any significant issue
in litigation which achieved some of the benefit the parties
sought in bringing suit.” Jd. at 791-92 (citations and internal
quotation marks omitted). “The touchstone of the prevailing
party inquiry must be the material alteration of the legal
relationship of the parties in a manner which Congress sought
to promote in the fee statute.” Jd. at 792-93. After reviewing
legislative history and this Court’s holding in Hensley, Justice
O’Connor noted that Congress intended to make interim fee
awards available to partially prevailing civil-rights plaintiffs:
“A prevailing party must be one who has succeeded on any
significant claim affording it some of the relief sought, either
pendente lite or at the conclusion of the litigation.” Jd. at 790-
91. Thus, Garland left no doubt that a party could “prevail”
without obtaining an enforceable final judgment against the
defendant. See S. Rep., supra, at 41, reprinted in 1975
U.S.C.C.A.N. at 808.

26

Finally, this Court decided Farrar v. Hobby in 1992. Once
again, this Court granted certiorari to resolve a circuit split over
the proper definition of the term “prevailing party” in a federal
civil-rights fee-shifting statute. See Farrar, 506 U.S. at 105,
108-09 & n.2. The case also arose in Texas and the split pitted
the Fourth and Fifth Circuits against the Second, Eighth, Ninth,
Tenth, and Eleventh Circuits. See id. at 105-07, 108 n.2 (citing
cases). And, as in the present case, a divided panel of the Fifth
Circuit had reversed an award of attorneys’ fees after holding
that the plaintiffs were not “prevailing parties.” See id. at 107-
09. All nine Justices disagreed with that conclusion, and the
Court held that the plaintiffs — who had sought $17 million in
damages from six defendants, but had ultimately received only
one dollar in nominal damages from one defendant — were
nonetheless “prevailing parties.” See id. at 105, 112, 116; see
also id. at 116-17 (O’Connor, J., concurring); id. at 122-23
(White, J., concurring in part). By a vote of 5 to 4, the Court
affirmed, however, on the basis that the most reasonable fee for
these plaintiffs was no fee at all. See 506 U.S. at 114-16.

Although Farrar included dicta arguably implying that an
enforceable judgment, consent decree, or settlement was a
prerequisite for prevailing-party status, there is no reason to
think the Court intended to nullify the reasoning of five recent
opinions on this subject sub silentio. The plaintiffs in Farrar
had obtained an enforceable final judgment against the
defendant (albeit for only one dollar in nominal damages). As
this Court recognized earlier this Term, Farrar “involved no
catalytic effect,” and therefore the issue of the continuing
validity of the catalyst theory “was not presented for this
Court’s decision in Farrar.” Friends of the Earth, 120 S. Ct.
at 711. It seems “implausible that [this] Court meant to abolish
a rule employed by nearly every circuit and previously
recognized by the Court itself as ‘settled law,’ without
expressly indicating that it was doing so.” Zinn v. Shalala, 35

27

F.3d 273, 276 (7th Cir. 1994) (quoting Hewitt, 482 U.S. at
760); see Baumgartner, 21 F.3d at 547 (“We believe it is not
likely that the Supreme Court would overturn such a wide-
spread theory without even once mentioning it, particularly
when it was inapplicable to the case at hand.”’).

This Court should grant certiorari, reaffirm the principles
enunciated in Farrar and the precedents it cited, respect the
Statute’s plain text, and resolve the conflict among the circuits
by rejecting the position of the Fourth and Fifth Circuits.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

PAUL M. SMITH* J. GERALD HEBERT
DONALD B. VERRILLI, JR. J. GERALD HEBERT, P.C.
SAM HIRSCH 5019 Waple Lane
JENNER & BLOCK Alexandria, VA 22304

601 Thirteenth Street, N.W. (703) 567-5873
Washington, D.C. 20005
(202) 639-6000 Counsel for Petitioners

KENNETH H. MOLBERG
ROGER G. WILLIAMS
WILSON, WILLIAMS &
MOLBERG, P.C.
2214 Main Street
Dallas, TX 75201-4324
(214) 748-5276 * Counsel of Record

APPENDICES

i

APPENDIX A

B.C. FOREMAN; Ida Clark; Otis Tarver; Dominic De La
Cruz; Louis Davis; Mandy Pesina,
Plaintiffs-Appellees,
v.
DALLAS COUNTY, TEXAS; Commissioners Court of Dallas
County, Texas; Lee F. Jackson, Dallas County Judge; Jim
Jackson; John Wiley Price; Mike Cantrell; Kenneth A.
Mayfield, Dallas County Commissioners; Bruce Sherbet,
Elections Administrator of Dallas County, Texas,
Defendants-Appellants.

No. 98-10864.

United States Court of Appeals,
Fifth Circuit.

Oct. 14, 1999.

Appeal from the United States District Court for the Northern
District of Texas.

Before SMITH, DeMOSS and STEWART, Circuit Judges.
DeMOSS, Circuit Judge:

The plaintiffs-appellees, B.C. Foreman, Ida Clark, Otis
Tarver, Dominic De La Cruz, Louis Davis, and Mandy Persina
(“plaintiffs”), served as precinct election judges in Dallas
County, Texas. The plaintiffs subsequently lost those positions
when the defendants-appellants, Dallas County, the
Commissioners Court of Dallas County, and _ other
(“defendants”), adopted a new method of appointing precinct

2a

election judges. The plaintiffs subsequently sued the
defendants under § 5 of the Voting Rights Act of 1965
(“VRA”), 42 U.S.C. § 1973 et seq., alleging that the defendants
had not precleared the appointment method for precinct judges
with the United States Department of Justice as required by
statute, 42 U.S.C. § 1973c. After lengthy and protracted
litigation, which included an appeal to the United States
Supreme Court, Foreman vy. Dallas County, Tex., 521 U.S. 979
(1997) (per curiam), the suit was dismissed by a three-judge
district court as moot when the Texas legislature eventually
enacted a new and different appointment method. In this
appeal we are asked to decide whether the district court erred
in granting the plaintiffs attorney’s fees as prevailing parties
under 42 U.S.C. § 1973Ke). We reverse the district court’s
award of attorney’s fees and render judgment that the plaintiff's
take no attorney’s fees.

I,

In Texas presiding election judges are assigned to local
precincts and are responsible for managing the elections which
occur there. See Tex. Elec.Code § 32.071. An election judge’s
responsibilities include administering oaths at polling places,
preserving order and preventing breaches of the peace, and
enforcing the provisions of the Texas Election Code. See Tex.
Elec.Code §§ 32.072-.075. The alternate presiding judge serves
as presiding judge for an election if the presiding judge is
unable to serve. Tex. Elec. Code § 32.001(b); Foreman v.
Dallas County, Tex., 990 F. Supp. 505 (N.D. Tex.1998)
(outlining various responsibilities of election judges).

In 1996, before this suit was filed, the Texas Election
Code required the Dallas County Commissioners Court to
appoint on an annual basis presiding and alternate election

3a

judges for each precinct. Tex. Elec. Code § 32.002(a) (repealed
1997). Although the Code required the Commissioners Court
to “consider” the recommendations of the County Elections
Administrator before making an appointment, the statute vested
the Commissioners Court with the discretion to appoint any
qualified person. Tex. Elec. Code § 32.002(d) (repealed 1997).

Between November 1, 1972, when Texas became a
covered jurisdiction under the Voting Rights Act, and October
1996, when the Commissioners Court adopted the appointment
plan at issue, the Commissioners Court adopted various
methods for selecting election judges, without first obtaining
preclearance from the Department of Justice. See Foreman,
990 F. Supp. at 507 (detailing the chronology of changes). For
example, between 1982 and 1995, the Commissioners Court
appointed election judges pursuant to a presidential election
formula. This formula required the presiding judge to be a
member of the party whose presidential candidate carried the
precinct in the most recent presidential election. The alternate
judge was appointed from the other party. In 1995, however,
the Commissioners Court adopted a senatorial method for
appointing election judges. This method was based on which
party carried a precinct in the most recent senate race. Dallas
County, Texas Order No. 95-1313 (1995) (repealed 1996)
(hereinafter “1995 Order’).

In September 1996, the Commissioners Court changed
its appointment method again. This time, in all precincts where
the Republican candidate for Senate received the most votes in
the 1994 election, the person submitted or approved by the
Republican party would be named the presiding election judge. '

' The person submitted or approved by the Democratic party would be
named alternate presiding election judge.

4a

A majority of the Commissioners Court could vote, however,
not to appoint the proposed judge. In all other precincts, the
commissioner who represented the precinct determined whether
the person submitted or approved by the Republican or
Democratic party would be appointed presiding election judge.
The person submitted or approved by the party whose candidate
was not chosen was named the alternate election judge, subject
to the veto of a majority of the Commissioners Court. Dallas
County, Texas Order No. 96-1630 (1996) (repealed 1996)
(hereinafter “1996 Order”). Because this new methodology
gave the individual commissioners influence over the
appointment of election judges in precincts where the
Republican Senate candidate did not win a majority, the
practical effect was more Republican and fewer Democratic
presiding judges.

On October 3, 1996, the plaintiffs — black and Hispanic
voters who had not been reappointed as election judges — filed
suit alleging that the 1996 Order, and its appointment
procedure, had not received preclearance as required by § 5 of
the Voting Rights Act. The plaintiffs also filed a motion for a
temporary restraining order to enjoin the defendants from
implementing the 1996 Order.? The district court granted the
motion and issued a temporary restraining order, and convened
a three-judge court as required by the VRA to consider the
merits.

A few days later the Commissioners Court rescinded the
1996 Order and, claiming authority from § 32.002 of the
Election Code, proceeded to appoint election judges in a purely
discretionary manner. The Commissioners Court, which

’ The plaintiffs also moved to enjoin the defendants from implementing
the previous 1995 Order.

Sa

consisted of four Republicans and one Democrat, then
appointed only Republicans as presiding election judges, and
Democrats as alternate presiding election judges. In addition
to clearing the precincts of all presiding election judges from
the Democratic party, at least 54 black and 33 Hispanic election
judges were not reappointed. Dallas County, Texas Order No.
96-1950 (1996) (repealed 1997) (“October Order’).

The plaintiffs subsequently amended their complaint
and sought declaratory and injunctive relief enjoining the
Commissioners Court from implementing the October Order
for failure to receive preclearance under § 5 of the VRA. The
three-judge court denied the request for injunctive relief and
allowed the 1996 elections to take place under the supervision
of the election judges that had been appointed under the
October Order. After the election was over, the three-judge
court dismissed the plaintiffs’ suit, holding that § 5 ofthe VRA
did not apply to the Commissioner Court’s procedures for
appointing precinct election judges. Because the entire Texas
Election Code had been precleared in 1985, the three-judge
court reasoned that the Commissioners Court was merely
exercising its discretion pursuant to the precleared Election
Code.

On appeal, the Supreme Court rejected the holding of
the three-judge court and found that the appointment
procedures were properly covered by § 5 of the VRA. Foreman
v. Dallas County, Tex., 117 S. Ct. 2357, 2358 (1997) (per
curiam). The Court noted, however, that the determinative
question was whether the county sought to administer a
procedure that was different from the one in place on
November 1, 1972, the date the VRA went into effect in Texas.
Id. at 2358-59. Because the record was silent on the procedures
for appointing election judges in 1972, the Supreme Court on

6a

June 27, 1997 vacated the three-judge court’s ruling and
remanded the case for further findings. /d. at 2359.

However, prior to the Supreme Court’s decision the
Texas legislature amended § 32.002 of the Texas Election
Code and adopted a gubernatorial method for selecting election
judges. See Tex. Elec. Code § 32.002 (1999). The Justice
Department precleared the revised statute on September 2,
1997, and on October 7, 1997, the Commissioners Court
appointed new election judges in accordance with the new
method.’ On January 8, 1998, the three-judge court dismissed
the plaintiffs’ § 5 preclearance claim as moot, leaving open the
question of attorney’s fees. On the plaintiffs’ motion, a single
district judge found that the plaintiffs were prevailing parties
within the meaning of 42 U.S.C. § 1973/(e), and awarded the
plaintiffs roughly $183,263 in attorney’s fees. The defendants
timely appealed.

Il.

We review a district court’s award of attorney’s fees for
abuse of discretion and its supporting factual findings for clear
error. Wilson v. Mayor of St. Francisville, 135 F.3d 996, 998
(Sth Cir. 1998). We review the conclusions of law underlying
the award of attorney’s fees de novo. Marre v. United States,
117 F.3d 297, 301 (Sth Cir. 1997) (citing Jexas Food Indus.
Ass'n v. United States Dept. of Agric,, 81 F.3d 578, 580 (Sth
Cir. 1996)).

iil.

On appeal the defendants assail the district court’s

* All six plaintiffs were reappointed as presiding judges.

7a

finding that the plaintiffs qualify as prevailing parties under 42
U.S.C. § 1973(e).* As reflected in its memorandum order, the
district court based that determination on two separate grounds.
The district court first found that the plaintiffs were prevailing
parties because their suit was a “significant catalyst” behind the
Texas legislature’s decision to amend § 32.002 of the Election
Code and enact a gubernatorial appointment procedure. The
court also found that the plaintiffs were prevailing parties
because the plaintiffs were successful in obtaining a temporary
restraining order. We begin our review of those two findings
with a brief look at our guiding principles.

Only “prevailing parties” may recover attorney’s fees
under 42 U.S.C. § 1973/(e).° What it means to “prevail” was
recently clarified by the Supreme Court in Farrar v. Hobby,
506 U.S. 103, 109(1992). There, the Supreme Court explained
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 the plaintiff.” Jd. at 111-12; TK’s Video, Inc. y.
Denton County, Texas, 24 F.3d 705, 711 (Sth Cir. 1994). The
Court further observed that “[n]o material alteration of the legal
relationship between the parties occurs until the plaintiff

* Section 1973/(e) provides in relevant part:
In any action or proceeding to enforce the voting guarantees of the
fourteenth or fifteenth amendment, the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney’s fee as
part of the costs.

42 U.S.C. § 1973i(e).

* Because the phrase “prevailing party” connotes the same general
meaning under § 1973/(e) and 42 U.S.C. § 1988, cases under both Acts
apply the same principles when determining plaintiffs’ entitlement to
attorney’s fees. See Posada v. Lamb County, 716 F.2d 1066, 1071 (Sth Cir.
1983).

8a

becomes entitled to enforce a judgment, consent decree, or
settlement against the defendant.” Farrar, 506 U.S. at 113.
Thus, “the plaintiff must be able to point to a resolution of the
dispute which changes the legal relationship between itself and
the defendant.” /d. at 111. With those standards in mind, we
turn to the substantive merits of this appeal.

A.

The first matter we address is the district court’s finding
that the plaintiffs are prevailing parties because their suit was
a significant “catalyst” behind the Texas legislature’s decision
to amend the appointment procedures. On appeal the
defendants argue that the district court’s finding is incorrect
because prevailing party status can no longer be based on a
catalyst theory after the Supreme Court’s decision in Farrar.
The defendants further contend that even if the catalyst theory
remains good law, it cannot be applied the acts of third parties
and, in particular, to the acts of a general legislature.

By bringing this challenge to the district court’s use of
the catalyst theory, the defendants have ventured into an
unsettled area of the law. Before the Supreme Court’s decision
in Farrar, the catalyst theory was routinely applied in this and
other circuits. See Heath v. Brown, 858 F.2d 1092, 1094 (Sth
Cir. 1988); Garcia v. Guerra, 744 F.2d 1159, 1162 (Sth Cir.
1984); Williams v. Leatherbury, 672 F.2d 549, 550-51 (5th Cir.
1982). It allowed a plaintiff to achieve prevailing party status
— even in the absence of a formal victory in court — if the
plaintiff's suit was a “substantial factor or a significant
catalyst” in obtaining the relief sought. See Leatherbury, 672
F.2d at 550-51 (explaining catalyst theory).

After Farrar, however, the continuing validity of the

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catalyst theory is in serious doubt. In Farrar the Supreme
Court seemed to narrow the circumstances in which a party
may claim prevailing party status. The Court noted that “to
qualify as a prevailing party . . . [t]he plaintiff must obtain an
enforceable judgment . . . or comparable relief through a
consent decree or settlement.” Id. at 111 (emphasis added).
The Court declared that “[o]nly under these circumstances can
civil rights litigation effect ‘the material alteration of the /egal
relationship of the parties’ and thereby transform the plaintiff
into a prevailing party.” Jd. (emphasis added). The Court
added that “(nJo material alteration of the legal relationship
between the parties occurs until the plaintiff becomes entitled
to enforce a judgment, consent decree, or settlement against the
defendant.” /d. at 113 (emphasis added).

The language in Farrar strongly suggests that a plaintiff
must obtain some merits-based relief which alters its legal
standing with the defendant before it may claim prevailing
party status. That, however, is seemingly at odds with the
catalyst theory which allows a plaintiff to claim prevailing party
status even if there is no material change in the legal
relationship between the parties. See Leatherbury, 672 F.2d at
550 (“Success by judgment may be self-evident, but a party
may still ‘prevail’ if its ends are accomplished as a result of the
litigation even without formal judicial recognition”). This has
led at least one court to conclude that Farrar has swept the
catalyst theory into the judicial trash heap. See S-] & S-2 v.
State Bd. of Educ., 21 F.3d 49, 51 (4th Cir.) (en banc), cert.
denied, 513 U.S. 876 (1994) (expressly overruling the
“catalyst” theory and stating that a plaintiff may only qualify as
a “prevailing party” by virtue of “having obtained an
enforceable judgment, consent decree, or settlement giving
some of the legal relief sought”). Other courts have disagreed,
finding that their respective versions of the catalyst theory

TE OO EE ll

10a

remain viable. See, e.g., Ellis v. University of Kansas Med.
Ctr, 163 F.3d 1186 (10th Cir. 1998); Brown v. Local 58, Int'l
Bd. of Elec. Workers, AFL-CIO, 76 F.3d 762 (6th Cir. 1996);
Marbley v. Bane, 57 F.3d 224 (2d Cir. 1995); Kilgour v. City
of Pasadena, 53 F.3d 1007 (9th Cir. 1995); Zinn v. Shalala, 35
F.3d 273 (7th Cir. 1994).

This Court has never fully explored the impact of
Farrar on the catalyst theory. There have been a few cases
after Farrar that have continued to apply the catalyst rule. See,
e.g., Watkins v. Fordice, 7 F.3d 453, 456 (Sth Cir. 1993)
(acknowledging the catalyst theory without discussing the
potential conflict with Farrar); Pembroke v. Wood County,
981 F.2d 225, 231 n. 27 (Sth Cir. 1993) (distinguishing Farrar
and seeming to limit its holding to suits seeking money
damages, but not discussing potential conflict between the
catalyst theory and Farrar); Milton v. Shalala, 17 F.3d 812,
814-15 (Sth Cir. 1994) (acknowledging the catalyst theory
without discussing potential conflict with Farrar). And in one
opinion we acknowledged the question and observed that the
catalyst theory “might” still be good law. Craig v. Gregg
County, 988 F.2d 18, 20-21 (Sth Cir. 1993). But we have never
addressed the issue directly. Though the defendants now urge
us to engage in that close debate, we decline the invitation.
Assuming, without deciding, that the catalyst theory still
applies in this Circuit, the facts of this case do not support a
finding that the plaintiffs were prevailing parties under 42
U.S.C. § 1973/(e).

We have held that under the catalyst theory a plaintiff
may obtain attorney’s fees as a prevailing party only if it
establishes (1) that the relief sought by plaintiff was in fact
obtained, and (2) that the suit itself caused the defendant to
alter its conduct. Pembroke, 981 F.2d at 230. In order to prove

lla

the requisite causation, the lawsuit must have been a “a
substantial factor or a significant catalyst” in motivating the
defendants to alter their behavior. Robinson vy. Kimbrough, 652
F.2d 458, 466 (Sth Cir. 1981). Here, the defendants assert that
the plaintiffs do not qualify as prevailing parties because they
failed to obtain the relief sought in their suit. The defendants
also contend that there is insufficient evidence that the
plaintiffs’ action was a substantial factor in the Texas
legislature’s decision to adopt the gubernatorial appointment
procedure. We agree on each count.

The plaintiffs brought suit under § 5 of the VRA. The
gravamen of their complaint is that the defendants adopted the
1996 appointment procedure without preclearing it with the
Department of Justice, as required by the statute. For relief the
plaintiffs requested: (1) a declaration from the district court
that the 1996 Order was legally unenforceable; (2) a temporary
and permanent injunction against the defendants’ use of any
procedure that had not been precleared; (3) a declaration from
the district court ordering the defendants to preclear the
procedure; and (4) a declaration from the district court
ordering that the 1996 election be conducted using a legally
enforceable procedure, or, alternatively, the procedure used
from 1982 to 1995.

From a cursory reading of the plaintiffs’ complaint it is
evident that the plaintiffs filed this action solely to enforce §
5’s preclearance procedures. It is equally apparent that all of
the plaintiffs’ requested relief flowed from the rights that
accrued under § 5 of the VRA. Thus, when the Texas
legislature adopted an entirely different appointment method,
mooting the litigation, the plaintiffs went home empty handed.
They received none of the substantive relief for which they
originally filed suit.

12a

The plaintiffs, however, would have us believe that they
successfully obtained relief in the form of the newly-enacted
gubernatorial method. They would point to the fact that under
that new method they were reappointed to their old positions.
Though carrying some initial appeal, their argument fails under
close scrutiny.

The plaintiffs’ complaint is filed under the narrow
confines of § 5 of the VRA, with the stated intent of forcing the
defendants to preclear the 1996 appointment procedure. !t may
be true that the plaintiffs filed this action with the goal of
pressuring the defendants into adopting a different procedure.
But hidden motives are not the stuff on which attorney’s fees
are based. A defendant cannot be asked to pay attorney’s fees
for relief which was never demanded, or even made clear, in
the plaintiffs complaint. Similarly, even under the catalyst
theory it will be a rare case indeed where a defendant is made
to pay attorney’s fees for relief that was secured from an
independent third-party who was never a party to the lawsuit.°
We conclude that the district court clearly erred in finding that
the plaintiffs were successful in obtaining the relief sought by
filing this action.

Likewise, even if we assume that the plaintiffs did
obtain some relief, there is insufficient evidence of a causal
connection between the plaintiffs’ individual suit and the Texas
legislature’s decision to revamp the appointment procedure. As
evidenced by its name, the catalyst theory requires that a
plaintiff prove that the suit itself was a catalyst for relief. That
is, the plaintiff must prove that the plaintiff's suit was a
“substantial facior” in achieving the relief sought. Robinson,

° We have been able to find no Fifth Circuit case which applies the
catalyst theory under such circumstances.

A AA A Wd PA Be RR al

l3a

652 F.2d at 466. Critically, a plaintiff does not satisfy that
standard with evidence of a causal connection in the most basic
sense. Instead, the plaintiff must prove the lawsuit itself, as a
discrete event, had a significant and identifiable influence on
the attainment of relief. Considering that the legislative process
is fraught with compromises, competing concerns, and
unspoken motives, a plaintiff who attempts to prove that his
individual suit was the catalyst behind the passage of general
legislation faces a formidable task. See Milton v. Shalala, 17
F.3d at 815 (“The mere possibility that Congress acted because
of an individual claimant’s suit (or reacted to a large number of
similar suits) is too speculative in our view considering the
many influences upon members of Congress in casting their
votes. We agree with the cases that have refused to credit the
change in law to a claimant’s individual Jaw suit and found the
nexus between Congress’s action and the law suit too
attenuated.’’)

In this case, the district court found the necessary level
of causation based solely on the affidavits of three Texas
legislators filed after the new appointment method was adopted
and after the suit was dismissed. In those affidavits the
legislators essentially stated that the Texas legislature decided
to enact the new procedure as a result of the plaintiffs’ suit.
The district court’s exclusive reliance on those three affidavits
was Clearly erroneous.

No one legislator, or even a group of three legislators,
has sufficient personal knowledge to declare the overall intent
of the Texas legislature. See Bread Political Action Comm. vy.
Federal Elec. Comm., 455 U.S. 577, 582 n. 3 (1982) (expressly
refusing to give probative weight to after-the-fact affidavit of
amendment sponsor regarding legislative intent); Milton, 17
F.3d at 815. For that we rely on the official legislative record,

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14a

which is itself often insufficient, unhelpful or confusing. In this
case, three post hoc, after-the-fact, affidavits do not, standing
alone, prove that the plaintiffs’ suit was a substantial factor in
the legislature’s decision. They may show that the plaintiffs’
lawsuit was a factor, to be sure. But they in no way show that
it was a “substantial factor.” We are strengthened in that
conclusion by the fact that the plaintiffs have pointed to no
other evidence in the legislative record which affirmatively
shows that the Texas legislature enacted the gubernatorial
method in response to the plaintiffs’ suit. Moreover, we find
it significant that the Texas legislature began the process of
amending the appointment method well before the plaintiffs
initiated this action.’

Thus, even were we to find that the plaintiffs received
the relief they sought, there is insufficient evidence that the
plaintiffs’ suit caused the Texas legislature to amend § 32.002
of the Election Code. We find that the district court committed
clear error in finding that the plaintiffs’ suit was the catalyst
behind that legislative decision. This leaves us with the last
remaining issue in this appeal, whether the district court erred

7 The defendants correctly point out that an almost identical version of
the bill that eventually became revised § 32.002 was introduced in the 1995
iexislative session. Compare Tex. H.B. 2241, 74th Leg., R.S. (1995), with
Tex. HB. 331, 75th Leg., R.S. (1997) (introduced version), and Tex.
Elec.Code § 32.002 (1999). The 1995 bill passed the Texas House as part
of an omnibus election bill, but never passed the Senate. Then, a nearly
identical bill was filed in the 1997 session. Tex. H.B. 331, 75th Leg., R.S.
(1997) (introduced version). Therefore, the statutory change that the
plaintiffs claim to have catalyzed was in fact being considered by the Texas
legislature well before the plaintiffs’ suit was filed. We note, additionally,
that the relief sought by the plaintiffs’ suit, i.e., preclearance by the
Department of Justice of a change in voting procedures, is entirely separate
and distinct from the change contemplated by the legislative acts, 1.¢., a
substantive change in the procedure for selecting precinct judges.

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in finding that the plaintiffs acquired prevailing party status by
seeking and receiving a temporary restraining order.

B.

In its written order the district court held that “the
plaintiffs did prevail with respect to their request for a
temporary restraining order to enjoin the September 3, 1996,
order.”” That, however, was the total extent of the district
court’s reasoning. On appeal the defendants assert that a
temporary restraining order does not make a plaintiff a
prevailing party. The defendants assert that it is merely a

transitory order that has no affect on the merits of the litigation.
We agree.

Farrar is clear. To achieve prevailing party status there
must be “actual relief on the merits” which “materially alters
the legal relationship between the parties.” Farrar, 506 U.S. at
111, 113 S. Ct. 566. A temporary restraining order is not
merits-based relief. Nor is it a final remedy. A temporary
restraining order is a “stay put,” equitable remedy that has as its
essential purpose the preservation of the status quo while the
merits of the cause are explored through litigation. As such, a
temporary restraining order cannot constitute the type merit-
based relief that affords a plaintiff prevailing party status. The

district court committed clear error in reaching a contrary
conclusion.

IV.

Although today we do not decide whether the catalyst
theory survives Farrar in this Circuit, we hold that even under
the catalyst theory the district court clearly erred in finding that
the plaintiffs were prevailing parties. Accordingly, as the

i

l6a

district court abused its discretion in granting attorney’s fees
under 42 U.S.C. § 1973/(e), we reverse and render judgment
that plaintiffs take no attorney’s fees.

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CARL E. STEWART, Circuit Judge, dissenting:

The majority has held that the district court clearly erred
in finding that the plaintiffs were prevailing parties, and that
therefore the district court abused its discretion in awarding the
plaintiffs attorneys’ fees under 42 U.S.C. § 1973/(e). While I
agree that the catalyst theory is the appropriate basis upon
which to decide this case, I cannot agree with the conclusion

reached by the majority. For the following reasons |
respectfully dissent.

This court reviews the district court’s award of
attorneys’ fees for abuse of discretion, and the underlying
factual findings are reviewed for clear error. See League of
United Latin American Citizens No. 4552 (LULAC) v. Roscoe
Independent School District, 119 F.3d 1228, 1232 (Sth Cir.
1997). This court has clearly emphasized that a district court
has broad discretion in determining the appropriate award of
attorneys’ fees. See Associated Builders and Contractors of
Louisiana Inc. v. Orleans Parish School Board, 919 F.2d 374,
379 (Sth Cir. £990); ZLULAC, 119 F.3d at 1232. The
determination of attorneys’ fees is an “intensely factual’’
inquiry, and thus the district court’s broad discretion in this
area 1S appropriate because of the district court’s superior
understanding of the litigation and the desirability of avoiding
frequent appellate review of what essentially are factual
matters. Associated Builders, 919 F.2d at 379 (quoting Hensley
v. Eckerhart, 461 U.S. 424, 437 (1983)); see also Posada v.
Lamb County, Tex., 716 F.2d 1066, 1072 (Sth Cir. 1983).
Viewing the facts of the present case from this deferential
standard of review, and considering the broad discretion that
should be accorded the district court in this area I cannot agree
with the majority that the district court clearly erred in its
factual findings, and abused its discretion in awarding

18a

attorneys’ fees to the plaintiffs.

To establish prevailing party status under the catalyst
theory,' the plaintiffs must demonstrate (1) that the relief they
sought was in fact obtained, and (2) that the suit itself caused
the defendant to alter its conduct. See Pembroke v. Wood
County, 981 F.2d 225, 230 (Sth Cir. 1993). The majority opines
that the plaintiffs filed this action solely to enforce the
preclearance procedures mandated by § 5 of the Voting Rights
Act, and that when the Texas legislature adopted a method of
appointment that was different from the one specifically
advocated by either the plaintiffs or defendants, the plaintiffs
“went home empty handed”. The record, however, does not
support the majority’s conclusion.

The plaintiffs, a group of African-American and
Hispanic voters of Dallas County who had served as election
judges, brought this complaint after the Commissioners Court
of Dallas County (“defendants”) sought to make changes in the
appointment procedures for election judges. These changes
which were adopted September 3, 1996 (“1996 Order”) meant
that the plaintiffs would lose their positions as election judges.
The plaintiffs’ original complaint, filed on October 3, 1996,
alleged that the defendants changed the procedures for

' In deciding this case the majority applies the catalyst theory, but
states that “the continuing validity of the catalyst theory is in serious doubt”
due to the Supreme Court's decision in Farrar v. Hobby, 506 U.S. 103, 109
(1992). The majority declines to decide whether the catalyst theory still
applies in this Circuit, however, it is critical to acknowledge that post-
Farrar this Circuit and the majority of other circuits have continued to apply
the catalyst theory. See, e.g., Pembroke v. Wood County, 981 F.2d 225, 231
n.27 (Sth Cir. 1993); Craig v. Gregg County, 988 F.2d 18 (Sth Cir. 1993);
Ellis v. University of Kansas Medical Center, 163 F.3d 1186 (10th Cir.
1999): Zinn v. Shalala, 35 F.3d 273 (7th Cir. 1994).

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appointing election judges without the preclearance of the
Department of Justice as required under § 5 of the Voting
Rights Act. The plaintiffs sought declaratory and injunctive
relief to block the implementation of any procedure that was
not precleared, including a specific declaration that the 1996
Order was not legally enforceable. The plaintiffs were
immediately successful on two fronts. First, the district court
granted the plaintiffs’ request for a temporary restraining order
which blocked the defendants from implementing the 1996
Order. Furthermore, a few days after the district court issued
the temporary restraining order the defendants rescinded the
1996 Order, and implemented a different procedure which
granted the Commissioners Court of Dallas County discretion
in selecting the election judges (“October Order’). As a result
of the defendants response to the temporary restraining order
the plaintiffs were successful in one of their goals for the
litigation which was to insure that the 1996 Order was not
implemented. While the plaintiffs did not achieve this goal
through a declaration from the district court that the 1996 Order
was legally unenforceable, it is clear from the record that the
defendants abandoned the 1996 Order in response to the
litigation. The defendants abandoned the 1996 Order only five
days after the temporary restraining order was issued that
resulted in a short term cessation of the implementation of the
1996 Order. This court has recognized that when a lawsuit
motivates a defendant to take voluntary action to alleviate the
conditions outlined in the complaint, the plaintiff can be
considered a prevailing party although they received no judicial
decree. See Pembroke, 981 F.2d at 230.

The second goal of the plaintiffs’ complaint was to have
the procedures for appointing election judges precleared by the
Department of Justice as prescribed in § 5 of the Voting Rights
Act. After the defendants abandoned the 1996 Order and

20a

replaced it with a discretionary method of selecting election
judges, the plaintiffs amended their complaint seeking § 5
preclearance of this procedure. The defendants steadfastly
maintained throughout this litigation that the procedures to
select election judges were not subject to preclearance under §
5 of the Voting Fights Act because these were discretionary
activities as provided for in the Texas Election Code, which
was precleared in 1985. The three judge district court agreed
with the defendants’ theory and refused the plaintiffs’
application for a permanent injunction on the grounds that the
defendants’ procedures were a proper exercise of discretion
granted by the state election statute.

Despite this setback, the plaintiffs were eventually
successful in receiving a judicial declaration that the procedures
for appointing election judges are subject to the requirements
of § 5 of the Voting Rights Act. The Supreme Court, in
Foreman v. Dallas County, 521 U.S. 979, 980 (1997) held that
the actions of the Commissioners Court of Dallas County in
selecting election judges may require preclearance because the
County’s exercise of its discretion under the Texas Election
Code does not shield its actions from § 5.2 Foreman v. Dailas
County, 521 U.S. 979, 980 (1979). This Supreme Court
decision meant that the defendants would no longer be able to
implement any procedure for appointing election judges
without meeting the requirements of § 5 of the Voting Rights
Act, including preclearance if the defendants sought to
implement procedures that had not previously been precleared.

The Supreme Court remanded the case for further

? The Supreme Court did not make a final determination whether
preclearance was required for the October Order because the record did not
contain sufficient information. See Foreman, 521 U.S. at 981.

2la

proceedings, but while the case was on appeal to the Supreme
Court the Texas Legislature amended § 32.002 of the Texas
Election Code to provide that all precinct election judges would
be chosen based on the results from the gubernatorial elections
(“gubernatorial method”’). Texas submitted the gubernatorial
method for Preclearance from the Department of Justice which
was granted by the Attorney General in September 1997. Thus,
the October 1996 Orders which were the subject of this
litigation were superceded by the precleared gubernatorial
method of selection adopted by the Texas legislature. As a
result of the legislation the plaintiffs were all reappointed as
election judges, and the defendants were forced to implement
a system of selection which was precleared under § 5 of the
Voting Rights Act.

The actions of the Texas legislature helped provide the
plaintiffs with one aspect of the relief they sought by forcing
the defendants to adopt a precleared method of appointing
election judges. Therefore to be prevailing parties under the
catalyst theory the plaintiffs must demonstrate that their suit
was a Significant contributing factor in the Texas legislature’s
actions. See Posada, 716 F.2d at 1072. The lawsuit need not be
the sole reason for the legislature’s action, but the plaintiffs’
actions must have made an important contribution to the
improvements which were achieved. /d.

The majority finds that the district court clearly erred in
finding that there was a causal link between the plaintiffs’
lawsuit and the actions of the Texas legislature. Specifically,
the majority holds that the district court clearly erred in its
reliance on the affidavits of three Texas legislatc~s to establish
this causal link. I disagree with the majority that the district
court clearly erred in relying on these affidavits.

22a

The majority cites Bread Political Action Committee v.
Federal Election Commitiee, 455 U.S. 577, 582 n.3(1982) for
the proposition that no single legislator, or even a group of
three legislators has sufficient personal knowledge to declare
the overall intent of the legislature. In Bread Political Action
Committee, the Supreme Court interpreted the language of the
Federal Election Campaign Act of 1971(“FECA”). The
plaintiffs argued that to interpret the meaning of FECA the
Court should not rely solely on the language of the statute but
instead should expansively construe the statute. See Bread
Political Action Comm., 455 U.S. at 581, 102 S. Ct. 1235. As
part of their evidence to convince the Court to adopt this
expansive construction of FECA the plaintiffs offered the
affidavit of the senator who sponsored the amendment as proof
that the legislature intended for the bill to be liberally construed
by the courts. The senator’s opinion contradicted the language
of the bill itself, and the Court concluded that the senator’s
statements should be given no probative weight regarding the
legislative intent. See Bread, 455 U.S. at 582 n. 3, 102 S. Ct.
1235.

The present case is clearly distinguishable from Bread
because in this case the district court did not rely on the
affidavits of the Texas legislators to interpret the meaning of
the Texas Election Code, or the legislative intent in regards to
how the statute should be applied. Instead the plaintiffs offered
these affidavits to demonstrate that their lawsuit was a catalyst
in the passage of the legislation, including motivating the
introduction of the legislation. The question in Bread was
legislative intent, and the question in this case is legislative
motive. In determining legislative motive it is helpful to
examine different factors.

It is logical that in seeking to interpret the meaning of

sre ANAS Wa dra AS Oar SN OD

23a

a Statute that courts should reject the post-hoc opinions of
legislators as controlling evidence because the courts already
have adequate information that can be gleaned from the
language of the statute itself or the official legislative history.
See Bread, 455 U.S. at 580, 102 S. Ct. 1235 (stating that
analysis of the issue of statutory construction must begin with
the language of the statute itself). However, what will often not
be found in the language of a statute or the official legislative
history is the motivation for introducing a bill, or each member
of the legislatures reasons for supporting the legislation. The
majority acknowledges that legislative history is often
“insufficient, unhelpful or confusing.” Absent a holding that a
party can never conclusively establish that a lawsuit is a
catalyst for legislation because of the impreciseness of the
proof available, we must acknowledge some reasonable method
for parties to prove that their actions were a catalyst in the
passage of legislation. One reasonable method of establishing
that a lawsuit was a significant factor in the introduction and
passage of legislation is to determine the legislators’ motivation
by considering the legislators’ statements about their
motivation.

The plaintiffs received affidavits from three Texas
legislators, Senator Royce West (“Senator West’),
Representative Debra Danburg (“Representative Danburg’’),
and Representative Terri Hodge (“Representative Hodge’).
Senator West stated that he introduced Senate Bill 130, which
advocated the gubernatorial method of appointing election
judges after hearing about the defendants’ 1996 Order which
would have altered the selection procedures. Senator West
further revealed that he attended a public meeting to voice his
concerns to the defendants about the change of procedures in
choosing presiding election judges. Finally, Senator West
stated that he was involved in discussions with the plaintiffs’

24a

counsel about pursuing the present lawsuit, and that the present
lawsuit served as a catalyst for his introduction of the
legislation in the Texas Senate. The majority states that the
legislators do not have personal knowledge of the motivations
of the legislature, however, as the sponsor of the Senate bill
Senator West certainly has personal knowledge of what caused
him to introduce the legislation which eventually was passed
into law by the legislature.

Representative Danburg, who serves as the chair of the
Texas House of Representatives Committee on Elections,
introduced House Bill 331 which was similar to Senator West’s
Senate bill in that it also advocated the use of the gubernatorial
method for appointing election judges. Representative
Danburg stated that when she introduced House Bill 331 she
was aware of the lawsuit and it served as a catalyst for her to
introduce the bill, and that the lawsuit was a causal factor in the
action taken by the legislature. It is difficult to dispute that a
legislator knows their own motivations for introducing bill and
what influenced them to take that action.

Representative Hodge who is a member of the Dallas
County delegation to the Texas House of Representatives
declared that she became aware of this lawsuit in the Fall of
1996, this lawsuit was the subject of conversation among her
colleagues in the legislature, and that the lawsuit was a catalyst
in the bringing about the legislative action.

It is important to note that the defendants offered no
affidavits or evidence that contradicted the sworn testimony of
these three Texas legislators who all clearly stated that the
present lawsuit was a significant factor in the introduction and
passage of the legislation which forced the defendants to adopt
the precleared gubernatorial method for appointing election

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25a

judges. The only support the defendants offered to bolster their
argument that the lawsuit was not a catalyst for the legislation
was a copy of a 1995 house bill with almost identical language
to the language used in Senate Bill 130 and House Bill 331.
The majority determines that the existence of a bill which
proposed the gubernatorial method of selection before the
lawsuit was filed demonstrates that the 1997 legislation was
already under consideration by the Texas legislature, and
therefore the 1997 legislation could not have been catalyzed by
the plaintiffs’ lawsuit. However, the 1995 bill which passed in
the Texas House was not adopted by the Texas Senate.
Therefore, a bill proposing the gubernatorial method of
appointment was not under consideration by the legislature
when the plaintiffs filed their lawsuit in the fall of 1996.
Moreover, there is no support in the case law for the notion that
the preexistence of a legislative concept is a per se bar to an
evidentiary determination of catalytic effect. Senator West and
Representative Danburg who introduced the 1997 bills in the
Senate and Houses were unequivocal in their testimony that it
was the plaintiffs’ lawsuit that was the catalyst for their
introduction of the bill. The majority does not appear to
question the truthfulness or veracity of Senator West or
Representative Danburg’s testimony. Therefore, absent the
presence of contradicting affidavits or other substantive
evidence the defendant’s alternative explanation of the 1995
bill as a motivation for the legislator’s introduction of the 1997
bill was correctly found by the district court to be unavailing.’

> The majority states that their conclusion that the three Texas
legislators’ statements are not sufficient evidence is strengthened by the fact
that plaintiffs’ point to no other evidence in the legislative record which
affirmatively shows that the Texas legislature acted in response to the
plaintiffs’ lawsuit. However, there was one mention of the lawsuit in the
legislative record. Steve McDonald, an employee of the Texas Democratic
party, submitted an affidavit to the district court which stated that he

26a

Finally, the majority cites Milton v. Shalala, 17 F.3d
812 (Sth Cir. 1994) for their proposition that it is difficult to
establish a causal connection between the legislature’s actions
and an individual suit. In Milton, this court rejected a
plaintiff's claim for attorneys’ fees where the plaintiff was one
of the thousands of litigants whose lawsuits may have helped
spur the enactment of a social security disability reform act.
The panel stated that the mere possibility that the United States
Congress acted because of an individual claimant’s suit is too
speculative to credit a change in the federal law to a claimant’s
individual lawsuit. Milton, 17 F.3d at 815. I do not quarrel
with the holaing in Milton. Unlike Milton, the present
plaintiffs’ lawsuit was not simply one of thousands of lawsuits
that all sought redress for the same complaint making it
difficult to establish a nexus between any one of the many
lawsuits and the congressional action. The record does not
indicate that there were any cther lawsuits pending to address
appointment procedures for election judges in Texas. Unlike
Milton, the plaintiffs’ action in this case was unique in its
challenge, and is specifically credited by the sponsoring
legislators as a catalyst in the introduction and passage of the
legislation. Furthermore, there is no indication that the plaintiff
in Milton offered any evidence to establish a causal link
between his individual lawsuit and the congressional action
taken. In contrast, these plaintiffs have offered the
uncontradicted, sworn declarations of three Texas legislators
who state that the present lawsuit was a catalyst in the passage
of the 1997 legislation.

For the above reasons I disagree with the majority that

testified about the 1997 bill in the Texas Senate, and during his testimony
specifically cited this litigation as a reason for the Senate to adopt the bill.
No counter affidavit is found in the record.

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27a

the district court clearly erred in finding that the plaintiffs’
lawsuit was not a substantial factor in the passage of legislation
which forced the defendants to adopt the precleared
gubernatorial method of appointing election judges. The
plaintiffs met the goals of their lawsuit in that the lawsuit
caused the defendants to abandon the 1996 order. The
plaintiffs also received a favorable decision from the Supreme
Court that the appointment procedures for election judges are
subject to § 5 of the Voting Rights Act. Finally, the plaintiffs
were reappointed to their offices as election judges. This
occurred as a result of the 1997 Texas legislation which forced
the defendants to modify their procedures. According to all the
substantive evidence presented to the district court this new
legislation was catalyzed by the plaintiffs’ lawsuit. The factual
determinations of the district court are amply supported by the
record. Therefore, the district court did not abuse its discretion
in awarding attorneys fees to the plaintiffs under 42 U.S.C. §
1973Ke). Accordingly, I respectfully dissent.

28a

APPENDIX B

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION
B.C. FOREMAN, et al., §
Plaintiffs, § Civil Action No.
§ 3:96-CV-2764-D
VS. §
DALLAS COUNTY, TEXAS, §
et al., §
Defendants. §
TEMPORARY RESTRAINING

ORDER
(Filed Oct. 3, 1996)

In this action brought pursuant to § § 5 and 12(d) of the
Voting Rights Act of 1965, plaintiffs have applied for a
temporary restraining order (“TRO”) to prevent defendants
from implementing two orders of the Dallas County
Commissioners Court that effect changes in the procedures for
selection and appointment of precinct election judges and
alternates in Dallas County, Texas. Plaintiffs have also applied
for a preliminary injunction, and they request that a three-judge
court be convened to consider their application.

A single judge of a three-judge court “may grant a
temporary restraining order on a specific finding, based on
evidence submitted, that specified irreparable damage will
result if the order is not granted.” 28 U.S.C. § 2284(b)(3).

Having considered plaintiffs’ evidentiary submissions

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29a

and arguments of counsel in chambers, the court finds and
concludes that plaintiffs have made the necessary preliminary
showing to obtain part of the TRO relief for which they have
applied. Specifically, they have demonstrated a substantial
likelihood that implementation of Dallas county commissioners
court Order No. 95-1313 and/or Order No. 96-1630 for the
November 5, 1996 election will violate § 5 of the Voting
Rights Act of 1965, 42 U.S.C. § 1973c, because the orders
effect changes in voting practices or procedures that have not
received pre-clearance from the Attorney General of the United
States. Plaintiffs have also demonstrated irreparable damage
from defendants’ maintaining and effecting election procedures
that violate federal law. They have also shown that the harm to
them outweighs the harm to defendants, and that entering a
TRO will not disserve the public interest.

Accordingly, pending further order of the undersigned
or of the three-judge court, or, if longer, for a period of 10 days,
defendants, their officers, agents, servants, employees, and
attorneys, and all persons in active concert or participation with
them who receive actual notice of this order by personal service
or otherwise, are temporarily restrained from implementing
Dallas County Commissioners Court Order No. 95-1313
(adopted August 8, 1995) and Order No. 96-1630 (adopted
September 3, 1996) for the November 5, 1996 election. This
restraining order also applies to Dallas County Commissioners
Court Order No. 96-1632 (adopted September 3, 1996) to the
extent necessary to effect the restraint hereby imposed on
implementation of Order No. 96-1630.

The three-judge court shall by separate order direct the
manner in which plaintiffs’ application for a preliminary
injunction shall be heard and considered.

30a

Nothing in this order precludes defendants from
rescinding the orders hereby restrained or from taking such
other actions as may be necessary in order for necessary pre-
clearance to be obtained.

SO ORDERED.
October 3, 1996 at 4:23 p.m.
/s/ Sidney A. Fitzwater

SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

3la

APPENDIX C

B.C. FOREMAN, et al.
Vv

DALLAS COUNTY, TEXAS, et al. (Two Cases)
Nos. 96-987, 96-1389.
Supreme Court of the United States

June 27, 1997.
PER CURIAM.

Texas by statute authorizes counties to appoint election
judges, one for each precinct, who supervise voting at the polls
on election days. In 1983 and several times thereafter, Dallas
County changed its procedures for selecting these officials.
Each of the new methods used party-affiliation formulas of one
sort or another. After the most recent change in 1996,
appellants sued the County and others in the United States
District Court, claiming that § 5 of the Voting Rights Act, 79
Stat. 439, as amended, 42 U.S.C. § 1973c, required that the
changes be precleared.

A three-judge court held that preclearance was not
required because the County was simply exercising, under the
state statute, its “discretion to adjust [the procedure for
appointing election judges] according to party power.” App. to
Juris. Statement 4a. The court apparently concluded that this
“discretionary” use of political power meant that the various
methods for selecting election judges were not covered changes
under § 5. The court also concluded that the Justice
Department’s preclearance of a 1985 submission from the State
~ the recodification of its entire election code — operated to

32a

preclear the County’s use of partisan considerations in selecting
election judges. The court denied injunctive relief, and later
dismissed appellant’s complaint pursuant to Fed. Rule Civ.
Proc. 12(b)(6). Appellants have brought both of these rulings
here.

We believe that the decision of the District Court is
inconsistent with our precedents. First, in NAACP v. Hampton
County Election Comm'n, 470 U.S. 166, 178 (1985), we held
that even ‘an administrative effort to comply with a statute that
had already received preclearance” may require separate
preclearance, because § 5 “reaches informal as well as formal
changes.” Thus, the fact that the County here was exercising its
“discretion” pursuant to a state statute does not shield its
actions from § 5. The question is simply whether the County,
by its actions, whether taken pursuant to a statute or not,
“enact[ed] or [sought] to administer any . . . standard, practice,
or procedure with respect to voting different from” the one in
place on November 1, 1972. § 5. The fact that the County’s
new procedures used political party affiliation as the selection
criteria does not mean that the methods were exempt from
preclearance.

Second, the State’s 1985 submission (the recodification
and a 30-page summary of changes to the old law) indicated
that the only change being made to the statute concerning
election judges was a change to “the beginning date and
duration of [their] appointment.” Thus, neither the recodified
statute nor the State’s explanations said anything about the use
of specific, partisan-affiliation methods for selecting election
judges. This submission was clearly insufficient under our
precedents to put the Justice Department on notice that the
State was seeking preclearance of the use of partisan affiliations
in selecting election judges. See, e.g., Young v. Fordice, 520

'

33a

U.S. 273, ---- - ---- , 1178S. Ct. 1228, 1236-1237 (1997); Lopez
v. Monterey Cty., 519 U.S. 9, ---- - ---- , 1178S. Ct. 340, 344-345
(1996); Clark v. Roemer, 500 U.S. 646, 658-659 (1991).

Because the parties agree that the record is silent as to
the procedure used by Dallas County for appointing election
judges as of November 1, 1972, the date on which Texas
became a covered jurisdiction under the Voting Rights Act, we
cannot make a final determination here as to whether
preclearance is in fact required. We therefore vacate the
judgment of the District Court in No. 96-1389, dismiss the
appeal from the District Court’s interlocutory judgment in No.
96-987, see Shaffer v. Carter, 252 U.S. 37, 44 (1920), and
remand for further proceedings.

It is so ordered.

34a
APPENDIX D

B.C. FOREMAN, et al., Plaintiffs,
V.
DALLAS COUNTY, Texas, et al., Defendants.

No. CIV. A. 3:96-CV-2764.
United States District Court, N.D. Texas.

June 25, 1998.
Entered on Docket, June 26, 1998,
Pursuant to Fed. R. Civ. P. 58, 79a.

FITZWATER, District Judge.

Plaintiffs’ motion for an award of attorney’s fees,
expenses, and costs in this Voting Rights Act suit presents the
principal question whether they are prevailing parties who are
entitled to recover such relief. Concluding that plaintiffs have
established by a preponderance of the evidence that they
prevailed in obtaining a temporary restraining order, and that
their lawsuit otherwise was a substantial factor or a significant
catalyst in causing the Texas Legislature to enact TEX.
ELECTION CODE ANN. § 32.002(c) (West Supp.1998),
which in turn required defendant Dallas County, Texas (“Dallas
County’) to alter its method for appointing election judges, the
court grants the motion.

I
The relevant background facts and procedural history
of this case are set out in the opinion of the three-judge court
and need not be repeated at length. See Foreman v. Dallas
County, Tex., 990 F. Supp. 505, 506-509 (N.D. Tex.1998)

35a

(three-judge court). The court will confine its discussion of the
facts and procedural history to those that bear on the attorney’s
fees issue.'

Plaintiffs contend they are entitled, pursuant to 42
U.S.C. § 1973(e), 42 U.S.C. § 1988, and 28 U.S.C. § 1920 to
recover the sum of $183,263.95 in attorney’s fees and
expenses, together with costs and any additional sums incurred
in litigating this case in this court. Defendants oppose the
motion on various grounds.

Plaintiffs brought this suit to enjoin Dallas County and
the individual defendants from implementing changes that the
Dallas County Commissioners Court had adopted in the
method for appointing presiding and alternate presiding judges
for county election precincts for the 1996-97 term. The version
of § 32.002 of the Texas Election Code in effect in 1996
required that the Commissioners Court annually appoint
presiding and alternate presiding election judges for each
regular county election precinct. TEX. ELECTION CODE
ANN. § 32.002(a) (repealed 1997). The Code mandated that
the Commissioners Court consider the recommendations of the
County Elections Administrator before making an appointment,
id. § 32.002(d) (repealed 1997), but vested the Commissioners
Court with the discretion to appoint any qualified person. From
1982 until 1995 Dallas County used a Presidential election
formula. In 1995 the Commissioners Court adopted a
Senatorial method to be followed during the 1995- 97 period.
DALLAS COUNTY, TEXAS ORDER NO. 95-1313 (1995)
(repealed 1996).

' The motion for attorney’s fees, expenses, and costs is to be decided
as a single judge matter. See id. at 508 n.8.

36a

In 1996 the Commissioners Court initiated the first of
a series of orders that culminated in the present litigation. On
September 3, 1996 it superseded the 1995 order by adopting the
following appointment procedures for the 1995-1997 period:
(1) In all voting precincts in which the Republican candidate
for United States Senator received the most votes in the 1994
general election, the person submitted or approved by the
Republican party would be named presiding election judge, and
the person submitted or approved by the Democratic party
would be named alternate presiding election judge, provided,
however, that a majority of the Commissioners Court could
choose not to appoint any individual. (2) In all other precincts,
the Commissioner who represented the precinct would
determine whether the person suggested or approved by the
Republican or Democratic party would be the presiding
clection judge. The person named or approved by the party
whose preference was not chosen to be presiding election judge
would be named alternate presiding election judge, provided,
however, that a majority of the Commissioners Court could
choose not to appoint any individual. DALLAS COUNTY,
TEXAS ORDER NO. 96-1630 (1996) (repealed 1996).

After the Commissioners Court adopted this new
method, plaintiffs filed this suit on October 3, 1996, seeking to
block implementation of the order on the ground that the
changes in the method of appointing election judges had not
received § 5 preclearance. This court entered a temporary
restraining order the same day,’ and on October 8, 1996 the
Commissioners Court rescinded its September order and
implemented a procedure that followed § 32.002 of the
Election Code, which had been precleared in 1985. DALLAS

* The undersigned issued the temporary restraining order as a single
judge matter

pence RNC 2A RET

37a

COUNTY, TEXAS ORDER NO. 96-1950 (1996) (repealed
1997). The Commissioners Court received and considered the
recommendations of the County Elections Administrator. It
appointed Republican party recommendees as _ presiding
election judges, and Democratic party recommendees as
alternate presiding election judges, to hold special and general
elections for the term beginning August 1, 1996 and ending
July 31, 1997.

Plaintiffs responded to the new order by amending their
complaint to allege that the October 1996 method violated § 5.
They applied for a temporary restraining order and a
preliminary injunction to preclude defendants from
implementing the order, contending the necessary preclearance
had not been obtained. The three-judge court denied the
application. The Supreme Court denied plaintiffs’ request to
stay the order pending appeal. Foreman v. Dallas County,
Tex., --- U.S. ----, 117 S. Ct. 378 (1996). The general elections
in Dallas County were then conducted under the direction of
presiding judges and alternate presiding judges selected under
the method adopted on October 8, 1996.

The three-judge court later dismissed plaintiffs’ suit on
the merits pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiffs
appealed the judgment and the Supreme Court vacated and
remanded for further proceedings. Foreman v. Dallas County,
Tex., --- U.S. ----, 117 S. Ct. 2357, 2359 (1997) (per curiam).
The Court held that the fact that Dallas County “was exercising
its ‘discretion’ pursuant to a state statute [did] not shield its
actions from § 5.” /d. at ----, 117 S. Ct. at 2358. Instead, the
controlling question was whether the County by its actions
enacted or sought to administer any standard, practice, or
procedure with respect to voting that was different from the one
in place on November |, 1972. /d. The Court also rejected the

38a

holding of the three-judge court that the 1985 preclearance of
the Election Code was sufficient to satisfy § 5. /d. Because the
record was silent concerning the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1006%3A1. Public record. Not legal advice.