Case: 09-50064 Document: 00511096918 Page: 1 Date Filed: 04/30/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 30, 2010
No. 09-50064
Lyle W. Cayce
Clerk
ROBERT JENEVEIN,
Plaintiff-Appellant,
versus
SEANA WILLING, Acting Executive Director of
the Texas State Commission on Judicial Conduct;
R.C. ALLEN, III,
Member of the Texas State Commission on Judicial Conduct;
ELIZABETH COATES,
Member of the Texas State Commission on Judicial Conduct;
JOSEPH B. MORRIS,
Member of the Texas State Commission on Judicial Conduct;
KATHLEEN H. OLIVARES,
Member of the Texas State Commission on Judicial Conduct;
MONICA GONZALEZ,
Member of the Texas State Commission on Judicial Conduct;
JAMES A. HALL,
Member of the Texas State Commission on Judicial Conduct;
RONALD D. KRIST,
Member of the Texas State Commission on Judicial Conduct;
FAYE BARKSDALE,
Member of the Texas State Commission on Judicial Conduct;
HONORABLE REX G. BAKER, III; HONORABLE MICHAEL FIELDS;
W.A. “BUCK” PREWITT,
Commissioner of the State Commission on Judicial Conduct,
Defendants-Appellees.
Case: 09-50064 Document: 00511096918 Page: 2 Date Filed: 04/30/2010
Appeal from the United States District Court
for the Western District of Texas
Before JONES, Chief Judge, SMITH and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
After being censured by the Texas State Commission on Judicial Conduct,
Robert Jenevein, a state judge, sued the members of the commission to have the
censure expunged from his record. The district court dismissed the suit, but we
reversed and remanded in part, granting Jenevein partial expungement. Jene-
vein appeals the denial of his motion for attorney’s fees as a “prevailing party”
under 42 U.S.C. § 1988(b). Because he is not a “prevailing party,” we affirm.
I.
The story behind the commission’s decision to censure Jenevein is de-
scribed in detail in Jenevein v. Willing (“Jenevein I”), 493 F.3d 551, 552-57 (5th
Cir. 2007). In summary, Jenevein held a press conference in his courtroom,
wearing his judicial robe, to respond to allegations about his wife contained in
a petition pending in the Dallas County Court-at-Law, where he served. He
claimed that the allegations were baseless and that he considered them to be an
abusive litigation tactic, designed to force his recusal from the case. He ex-
plained that he had issued an emergency order at an earlier stage of the liti-
gation and that, based on that order, the plaintiff’s lawyer likely believed Jene-
vein would rule against his client. Later, Jenevein sent a follow-up email about
the case and the press conference to seventy-six people.
On the basis of his press conference and email, the commission censured
Jenevein for violating the Texas Code of Judicial Conduct and the Texas Consti-
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No. 09-50064
tution. Jenevein attempted, unsuccessfully, to appeal the censure in state court.
He then sued the members of the commission, in their official capacities, in fed-
eral court under 42 U.S.C. § 1983, claiming the commission had violated the
First Amendment, because his press conference and email comments were pro-
tected speech for which he could not be disciplined. He sought to have the cen-
sure expunged.1 The district court denied all relief.
We reversed in part, holding that the First Amendment required that the
censure be expunged “to the extent it reached beyond Judge Jenevein’s use of the
courtroom and his robe to send his message.” Jenevein I, 493 F.3d at 562. We
held that “the censure order survive[d] strict scrutiny to the extent that it [was]
directed at Judge Jenevein’s use of the trappings of judicial office to boost his
message, his decision to hold a press conference in his courtroom, and particu-
larly stepping out from behind the bench, while wearing his judicial robe, to ad-
dress the cameras,” because “[t]he state has a compelling interest in preserving
the integrity of the courtroom, and judicial use of the robe.” Id. at 560. We or-
dered that the censure be expunged, however, “[t]o the extent that the commis-
sion censured Judge Jenevein for the content of his speech, shutting down all
communication between the Judge and his constituents.” Id. On remand, the
district court denied attorney’s fees on the ground that the censure was a judicial
act, by judicial officers, that § 1988(b) specifically exempts from serving as the
basis for attorney’s fees.2 Jenevein appeals.
1
Jenevein also alleged that his Fourteenth Amendment right to due process had been
violated, and he sought attorney’s fees for defending himself during the censure proceeding.
The district court dismissed both claims, and Jenevein did not raise them on appeal.
2
Section 1988(b) provides:
In any action or proceeding to enforce a provision of section[] . . . 1983 . . . of
[title 42] . . . 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, except
(continued...)
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II.
Section 1988(b) gives federal courts discretion to “allow the prevailing par-
ty, other than the United States, a reasonable attorney’s fee as part of the costs”
of litigating under § 1983. The district court passed over, without discussion, the
threshold question of whether our partial reversal in Jenevein I made Jenevein
a prevailing party for purposes of § 1988. We review that question of law de no-
vo. Energy Mgmt. Corp. v. City of Shreveport, 467 F.3d 471, 482 (5th Cir. 2006).
“To qualify as a prevailing party, the plaintiff must (1) obtain actual relief,
such as an enforceable judgment or 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 the judgment or settle-
ment.” Walker v. City of Mesquite, Tex., 313 F.3d 246, 249 (5th Cir. 2002) (citing
Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)). To “prevail” under § 1988, a par-
ty need not procure a favorable judgment or settlement on every claim. Fernan-
des v. Limmer, 663 F.2d 619, 637 (Former 5th Cir. Dec. 1981). Nevertheless, “a
technical victory may be so insignificant . . . as to be insufficient to support pre-
vailing party status.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489
U.S. 782, 792 (1989). “Where the plaintiff’s success on a legal claim can be char-
acterized as purely technical or de minimis,” he is not a prevailing party. Id.
Jenevein obtained relief by way of Jenevein I, and we ordered the district
court to expunge part of the censure. That relief, however, along with its effect
on the legal relationship between Jenevein and the commission, and the benefit
it conferred on Jenevein, were de minimis. On remand, the district court left al-
2
(...continued)
that in any action brought against a judicial officer for an act or omission taken
in such officer’s judicial capacity such officer shall not be held liable for any
costs, including attorney’s fees, unless such action was clearly in excess of such
officer’s jurisdiction.
(Emphasis added.)
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most all of the original censure order untouched. Only two recurring sentence
fragments, referring to the specific content of Jenevein’s press conference and
email, were stricken from the censure.3 All six violations of the Code of Judicial
Conduct and Texas Constitution found by the commission remain on Jenevein’s
record.
In Roark & Hardee LP v. City of Austin, 522 F.3d 533 (5th Cir. 2008), bar
owners asked the court, on First Amendment and due process grounds, to strike
down and enjoin enforcement of a city ordinance that prohibited smoking in en-
closed public places. The district court complied but denied fees under § 1988.
Reversing in part, we upheld the ordinance’s constitutionality under the First
Amendment, though we left in place the district court’s finding that it violated
due process to the extent it allowed the city to revoke permits and licenses with-
out providing expeditious judicial review. We also considered the plaintiff’s
cross-appeal asserting that the district court had abused its discretion by deny-
ing attorney’s fees. “Considering the numerous other claims Plaintiffs lost and
3
For example, in the three paragraphs addressing violations stemming from the press
conference, the court struck the following language from the censure:
Judge Jenevein’s actions on July 28, 2000, during the court’s normal business
hours, in holding a press conference in his courtroom, while wearing his judicial
robe, in order to read a prepared statement concerning the Yahoo Case and his
personal feelings and criticisms about the conduct of Freidman and his clients
in connection with that still-pending Case, was a willful violation of the Code
of Judicial Conduct and violated Article 5, Section 1-a(6)A of the Texas Consti-
tution.
In the three paragraphs addressing Jenevein’s email, the court struck the following language:
Judge Jenevein’s actions on August 8, 2000, during the court’s normal business
hours, in using the county computer system to send the unsolicited communica-
tion to approximately seventy-six (76) family members, friends, lawyers, and
judges, in order to further discuss the Yahoo Case, Friedman, and the July 28th
press conference, was willful conduct that is clearly inconsistent with the proper
performance of his duties and violated Article 5, Section 1-a(6)A of the Texas
Constitution.
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the fact that the City [could] still enforce the license revocation provision, as long
as it provide[d] expeditious judicial review,” we held that the bar owners’ success
was “at most, de minimis.” Id. at 556.
Jenevein’s position is similar to that of the bar owners. Though he re-
ceived partial vindication in Jenevein I, the commission’s censure remains in
effect. Its impact on his record, like the ordinance’s impact on the bar owners’
businesses, was not diminished. Accordingly, any relief Jenevein can claim was
de minimis, so he is not a prevailing party under § 1988.
Jenevein argues that he is a prevailing party like the plaintiffs in Walker
and Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980). In Walker, home-
owners challenged a remedial order requiring the construction of public housing
projects in “predominantly white” neighborhoods. Walker, 313 F.3d at 248. Af-
ter an appeal on the merits, we found the remedial order unconstitutional and
remanded for the revision and staySSbut not total dismissalSSof the order. Id.
The homeowners then requested attorney’s fees, which the district court denied,
in part because it found the homeowners were not prevailing parties. Id. at 249.
A second appeal followed, and we reversed. Crucially, we held that “the Home-
owners achieved exactly the outcome they desired” in the litigation and thus
were prevailing parties. Id. at 250.
Unlike the homeowners in Walker, Jenevein did not receive exactly the
outcome he sought. All the violations found by the censure remain on his record.
In Familias Unidas, a group of Mexican-American students and adults
challenged the constitutionality of a state law that gave county judges the power
to exact public disclosure of the membership of organizations considered to be
interfering with the peaceful operation of public schools. Familias Unidas, 619
F.2d at 394. The plaintiffs won declaratory relief, and the statute was struck
down, but they did not receive actual damages. We held that the plaintiffs could
recover attorney’s fees under § 1988SSexcept for those costs related to their pur-
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suit of actual damagesSSbecause they prevailed with respect to the central issue
of the case, the constitutionality of the statute.4 Id. at 405.
Jenevein has not achieved anything close to what the Familias Unidas
plaintiffs accomplished. Those plaintiffs won the lasting benefit of having a law
struck down, never again to be enforced against them. Jenevein had a few claus-
es removed from a censure, which otherwise remains in full effect.
In sum, the relief Jenevein received from the partial expungement of the
commission’s censure was de minimis. Therefore, he is not a prevailing party
under § 1988 and may not recover attorney’s fees. Because he is not a prevailing
party, we need not address the holding that the commission’s censure constitut-
ed a judicial act performed by judicial officers.5
AFFIRMED.
4
In Texas State Teachers Association, 489 U.S. at 789, the Court clarified that, to be
considered a prevailing party, one need not necessarily prevail in the “central issue” of the liti-
gation, so long as he “succeed[s] on any significant issue in the litigation which achieves some
of the benefit the parties sought in bringing the suit.” (Citation omitted.) In Farrar, 506 U.S.
at 111-12, the Court explained further that a plaintiff “prevails” whenever “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.” Neither of those deci-
sions conflicts with Familias Unidas or with our decision today. In Familias Unidas, the
plaintiffs obtained relief on a significant issueSSindeed, the most significant issueSSthat mate-
rially altered the relationship between the parties in a way that directed benefited them. Jen-
evein did not achieve that level of success; his relief, as we have explained, was de minimis.
5
Although the district court based its dismissal on the “judicial act” ground, and we af-
firm on the ground that Jenevein is not a prevailing party, “[w]e may affirm on any grounds
supported by the record.” Wells v. SmithKline Beecham Corp., No. 09-50244, 2010 U.S. App.
LEXIS 5894, at *6 (5th Cir. Mar. 22, 2010) (citing Berquist v. Wash. Mut. Bank, 500 F.3d 344,
349 (5th Cir. 2007)). The parties contested the prevailing-party status in the district court,
and we requested and received supplemental letter briefs on that issue.
7