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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10028
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D.C. Docket No. 2:14-cv-01091-RDP
APRIL AARON-BRUSH,
GINGER AARON-BRUSH,
Plaintiffs - Appellants,
versus
ATTORNEY GENERAL STATE OF ALABAMA,
in his official capacity as Attorney General of Alabama,
JULIE MAGEE,
in her official capacity as Commissioner of Revenue of the
State of Alabama,
HUGH B. MCCALL,
Colonel, in his official capacity as Director of the
Alabama Department of Public Safety,
Defendants - Appellees.
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Appeal from the United States District Court
for the Northern District of Alabama
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(January 30, 2017)
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Before WILSON and JILL PRYOR, Circuit Judges, and BARTLE, * District Judge.
PER CURIAM:
Plaintiffs April and Ginger Aaron-Brush, a same-sex couple married in
Massachusetts and living in Alabama, sued the Alabama Attorney General,
Commissioner of Revenue, and Director of the Department of Public Safety under
42 U.S.C. § 1983 for Alabama’s refusal to recognize their legal marriage. During
the course of the parties’ litigation but before the district court ruled on the merits
of the Aaron-Brushes’ claims, the Supreme Court in Obergefell v. Hodges, 135 S.
Ct. 2584 (2015), recognized a constitutional right of same-sex couples to marry
and the obligation of states to recognize those couples’ marital rights. After
Obergefell, the district court convened a conference with the parties at which the
defendants agreed to comply with the Supreme Court’s decision and, specifically,
to ensure that the Aaron-Brushes were able to receive new driver’s licenses from
the Department of Public Safety and to file their taxes jointly. After the
conference, the district court dismissed the Aaron-Brushes’ claims as moot and
denied the couple’s motion for attorney’s fees. In this appeal from the denial of
attorney’s fees, we must decide whether there was a judicially sanctioned change
in the relationship of the parties that would justify an award of attorney’s fees.
*
Honorable Harvey Bartle III, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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After careful review, and with the benefit of oral argument, we conclude that there
was no such judicially sanctioned change and affirm the district court’s ruling.
I. Background
The Aaron-Brushes were married in Massachusetts in 2012. Despite the
legality of their marriage under Massachusetts law, Alabama refused to recognize
the marriage and its appurtenant rights, including the rights to file tax returns
jointly and to obtain driver’s licenses that reflected their marriage, because
Alabama banned same-sex marriage under its state constitution and statutory code.
See Ala. Const. art. 1, § 36.03; Ala. Code § 30-1-19. The couple sued the
defendants under 42 U.S.C. § 1983, alleging that the refusal to recognize their
marriage violated their rights under the Due Process and Equal Protection Clauses
of the Fourteenth Amendment to the United States Constitution. The couple
requested relief in the form of a declaratory judgment that Alabama’s same-sex
marriage ban was unconstitutional and permanent injunctions directing the
defendants to recognize marriages validly entered into outside of Alabama and
preventing the defendants from enforcing the state’s marriage ban.
When the Supreme Court granted certiorari in Obergefell, the parties jointly
asked the district court for an extension of time to file dispositive motions. The
district court granted the motion. When the Supreme Court in Obergefell
recognized the right of same-sex couples to marry and the obligation of states to
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recognize these marriages, the parties filed a joint motion to set a briefing
schedule, which stated: “The parties are now in agreement that the Supreme
Court’s decision in Obergefell v. Hodges . . . conclusively resolves the legal issues
in this case and that no further briefing on the merits is necessary.” Doc. 26 at 1.1
Nonetheless, “the parties disagree[d] as to the proper course of action.” Id. The
parties asked the court for a new briefing schedule pursuant to which they could
address these remaining disagreements.
In response to the motion, the district court held a status conference. The
court opened the conference by asking, “Do we all agree that [Obergefell] is now
the law of the land?” Doc. 50-1 at 4. Both sides agreed that it was the law of the
land and was binding on the defendants. When asked whether “each of the
defendants [was] committed to complying with the Supreme Court’s decision,” the
defendants affirmed that they were. Id.
Notwithstanding the defendants’ concessions, the Aaron-Brushes requested
that the district court grant them relief, either in the form of an injunction, a
consent judgment, or a declaratory judgment. The district court expressed
skepticism that these forms of relief would be necessary or appropriate because the
defendants had already conceded that Obergefell bound them. But, when the
Aaron-Brushes reiterated that, in addition to a statement that the defendants would
1
“Doc.” refers to the numbered entry on the district court’s docket in this case.
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recognize their marriage, they wanted their names changed on their driver’s
licenses to reflect their marriage and assurances that they could file taxes jointly,
the district court facilitated those requests. The court proposed that the defendants:
(1) deliver to the Aaron-Brushes a letter stating that the Alabama Department of
Revenue would allow them to file their taxes jointly; (2) help coordinate the
Aaron-Brushes’ visit to the Department of Public Safety to obtain new licenses;
and (3) notify the court in writing that they had completed these two steps and
agreed to be bound by Obergefell. The defendants agreed to take these steps.
The defendants thereafter filed a notice in conformance with the district
court’s directive. The Aaron-Brushes responded to the notice by requesting that
the district court issue a declaratory judgment and permanent injunctions as sought
in their complaint. The defendants moved to dismiss the action as moot. The
district court denied the Aaron-Brushes’ request and granted the defendants’
motion. The Aaron-Brushes did not appeal the mootness order; rather, they moved
for attorney’s fees under 42 U.S.C. § 1988(b), which permits a “prevailing party”
(other than the United States) in § 1983 litigation to recover a reasonable attorney’s
fee. The district court denied the motion for attorney’s fees, concluding that the
Aaron-Brushes were not prevailing parties.
This is the Aaron-Brushes’ appeal of the denial of an attorney’s fee award.
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II. Standard of Review
“We review the factual findings underlying a district court’s determination
regarding ‘prevailing party’ status for clear error.” Church of Scientology Flag
Serv., Org. v. City of Clearwater, 2 F.3d 1509, 1512 (11th Cir. 1993). “Whether
the facts as found suffice to render the plaintiff a ‘prevailing party’ is a legal
question reviewed de novo.” Id. at 1513. Because the parties dispute whether the
facts as found sufficed to render the Aaron-Brushes prevailing parties under
§ 1988(b), our review is de novo.
III. Discussion
“In the United States, parties are ordinarily required to bear their own
attorney’s fees—the prevailing party is not entitled to collect from the loser . . . .
Congress, however, has authorized the award for attorney’s fees to the ‘prevailing
party’ in numerous statutes,” including § 1988(b). Buckhannon Bd. & Care Home,
Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 602 (2001). A
plaintiff “prevails” within the meaning of Buckhannon when an action of the
district court involves a “court-ordered change in the legal relationship between the
plaintiff and the defendant,” such as a judgment on the merits of her claim, a
consent decree, or a settlement agreement that the district court either incorporates
into its final order of dismissal or explicitly retains jurisdiction to enforce. Id.
(alterations and internal quotation marks omitted); see Am. Disability Ass’n v.
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Chmielarz, 289 F.3d 1315, 1319-20 (11th Cir. 2002) (noting that the judicial
actions discussed in Buckhannon—relief on the merits and consent decrees—are
merely examples of actions through which a plaintiff may “prevail,” emphasizing
that “[t]he essential test established by the [Buckhannon] Court requires the
plaintiff to achieve a ‘judicially sanctioned change in the legal relationship of the
parties.’” (quoting Buckhannon, 532 U.S. at 605)). Conversely, a “defendant’s
voluntary change in conduct, although perhaps accomplishing what the plaintiff
sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the
change.” Buckhannon, 532 U.S. at 605.
The characteristic shared by judicial actions that pass Buckhannon’s test is
that such actions entail district court oversight and enforcement authority. See
Smyth ex rel. Smyth v. Rivero, 282 F.3d 268, 279-81 (4th Cir. 2002). Whereas
private settlements “do not entail . . . judicial approval and oversight” and therefore
cannot satisfy Buckhannon, consent decrees and settlement agreements approved
by the court—which do satisfy Buckhannon—involve an “obligation to comply”
with the court’s directives. Id. (internal quotation marks omitted); see also
Roberson v. Giuliani, 346 F.3d 75, 83 (2d Cir. 2003) (“In the case of both consent
decrees and private settlement agreements over which a district court retains
enforcement jurisdiction, the district court has the authority to force compliance
with the terms agreed upon by the parties.”).
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The Aaron-Brushes contend that the district court’s directives during the
status conference constituted a judicially sanctioned change in the parties’
relationship within the meaning of Buckhannon. Again, these three directives were
that the defendants submit a letter confirming that the couple could file taxes
jointly, coordinate the couple’s trip to the Department of Public Safety for new
driver’s licenses, and file a notice with the court stating the defendants’ intent to
comply with Obergefell. In our view, the district court’s directives were too
informal to satisfy Buckhannon’s test. The record reflects that after the parties
jointly notified the district court that Obergefell resolved the legal issues in the
case, the district court confirmed the defendants’ recognition of the Aaron-
Brushes’ rights under Obergefell and moderated the parties’ agreements to satisfy
the couple’s specific concerns about their ability to exercise those rights in
Alabama. Instead of directing the parties to act or else face the court’s
enforcement, the district court supplied the parties with suggestions for facilitating
the defendants’ voluntary compliance.
Put another way, the defendants’ agreement to comply with Obergefell,
rather than district court’s directives, was the impetus for the parties’ resolution of
their dispute. Thus, on this record, the Aaron-Brushes have not demonstrated that
they benefitted from a judicially sanctioned change in their legal relationship with
the defendants such that they must be deemed prevailing parties under § 1988(b).
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IV. Conclusion
For these reasons, we affirm the district court’s denial of the Aaron-Brushes’
motion for attorney’s fees.
AFFIRMED.
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