Pool v. City of Houston

Case: 20-20328 Document: 00515900496 Page: 1 Date Filed: 06/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
___________ FILED
June 15, 2021
No. 20-20328
___________ Lyle W. Cayce
Clerk
Joe Richard Pool, III; Trenton Donn Pool;
Accelevate2020, L.L.C.,
Plaintiffs—Appellants,
versus
City of Houston; Anna Russell, in her official capacity as the
City Secretary of the City of Houston,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-2236
______________________________
Before Willett, Ho, and Duncan, Circuit Judges.
Per Curiam: *
Joe Pool and Richard Pool sued the City of Houston under 42 U.S.C.
§ 1983 for alleged violations of their First and Fourteenth Amendment
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-20328 Document: 00515900496 Page: 2 Date Filed: 06/15/2021
No. 20-20328
rights. 1 They challenged provisions of the City’s home-rule charter
mandating certain residency and voter registration requirements be met by
individuals seeking to gather signatures and place initiatives and referenda on
ballots through petitions. Houston, Tex., City Charter, art. VII-a,
§ 2; art VII-b §§ 2–3. Under these Charter provisions, the Pools are
ineligible to circulate petitions. Seeking to place a proposed ordinance
limiting campaign contributions from City contractors to candidates for
municipal office on the Houston ballot, they initiated this suit in 2019.
They sought a preliminary injunction permitting them to gather
signatures for this petition, a declaratory judgment that the challenged
provisions of the Charter are unconstitutional, permanent injunctive relief,
and nominal damages. They also sought and were granted a temporary
restraining order (TRO) allowing them to conduct their activities through the
relevant deadline for placing initiatives on the ballot. The district court later
dismissed the Pools’ claims as moot. The Pools moved to alter or amend the
judgment under Federal Rule of Civil Procedure 59(e), but the district court
concluded that there was no longer a live controversy and denied the motion.
The Pools appealed, and this court—finding that the Pools have
standing and that their claims are not moot—reversed and remanded to the
district court, where the merits of this suit now lie. Pool v. City of Houston,
978 F.3d 307, 314 (5th Cir. 2020).
The appeal before us now concerns only the Pools’ quest for
attorney’s fees for the portion of the litigation resulting in the grant of the
TRO. They moved for attorney’s fees under 42 U.S.C. § 1988, but the
district court denied the motion on the ground that the Pools failed to
demonstrate that they are “prevailing parties.” 42 U.S.C. § 1988; Dearmore
1
Accelevate2020, L.L.C. is Trent Pool’s company, and we refer to the Plaintiffs
collectively as “the Pools.”
2
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No. 20-20328
v. City of Garland, 519 F.3d 517, 521 (5th Cir. 2008) (prevailing party status
requires a plaintiff to “(1) obtain actual relief, such as an enforceable
judgment or a consent decree; (2) that materially alters the legal relationship
between the parties; and (3) modifies the defendant’s behavior in a way that
directly benefits the plaintiff at the time of judgment or settlement”) (citation
omitted).
The City has moved to dismiss this appeal on ripeness grounds
because the Pools’ merits challenge to the Charter is now back before the
district court, which can reaffirm, reverse, or modify its decision with respect
to attorney’s fees connected to those claims. It maintains that we lack
appellate jurisdiction because the district court’s order denying attorney’s
fees is not final and has not “dispose[d] finally of the attorney’s fee
question.” Shipes v. Trinity Indus., Inc., 883 F.2d 339, 341–42 (5th Cir. 1989).
See also Ruiz v. Estelle, 609 F.2d 118, 118–19 (5th Cir. 1980) (finding that an
interim award of attorney’s fees under § 1988 was not final under 28 U.S.C.
§ 1291 because it “did not conclusively determine the issue [and] was
manifestly subject to later reconsideration by the [district] court”).
The Pools “agree that there is no reason for the parties or this court
to expend further resources litigating this fee appeal in light of the merits
remand.” They concede that they “can request fees at the conclusion of the
case . . . including fees incurred with respect to the TRO,” regardless of
whether they ultimately win on the merits at the district court; that “the
district court has the authority to reconsider, modify, or consider anew the
issue of prevailing party status”; and that they “will still be able to seek fees
in the district court for all phases of the case,” even if this appeal is dismissed
for lack of jurisdiction or for prudential reasons. They ultimately only dispute
the City’s contention that we lack jurisdiction to hear the appeal, arguing that
the denial of attorney’s fees was final at time this appeal was filed because it
followed the district court’s denial of their Rule 59(e) motion.
3
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But that is not the relevant timeframe for determining ripeness. As
“ripeness is peculiarly a question of timing, it is the situation now rather than
the situation at the time of the District Court’s decision that must govern.”
Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974). See also
Anderson v. Green, 513 U.S. 557, 559 (1995) (per curiam) (action taken by
court of appeals after the Supreme Court’s grant of certiorari made the claim
unripe). “[I]n weighing a ripeness claim, an appellate court may properly
consider events occurring after the trial court’s decision.” DM Arbor Ct.,
Ltd. v. City of Houston, 988 F.3d 215, 219 (5th Cir. 2021) (quoting New
Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 833 F.2d 583, 586
n.2 (5th Cir. 1987). See also 13B Charles Alan Wright et al.,
Federal Practice and Procedure § 3532.7 (3rd ed. 2020)
(“Ripeness should be decided on the basis of all the information available to
the court. Intervening events that occur after decision in lower courts should
be included . . . .”).
Our remand of the merits case rendered the order denying attorney’s
fees interim. A district court’s award or denial of interim attorney’s fees is
not a final order within the meaning of § 1291 and does not fall within the
collateral order doctrine. See, e.g., Shipes, 883 F.2d at 341–45; Ruiz, 609 F.2d
at 118–19.
Accordingly, there is no jurisdictional basis for this appeal, and the
City’s motion to dismiss the appeal is granted. 2
2
We do not consider and pass no judgment upon the district court’s analysis or
any of the parties’ arguments with respect to “prevailing party” status.
4