Dearmore v. City of Garland

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

FILED
March 10, 2008

No. 06-11007 Charles R. Fulbruge III
Clerk

ROY DEARMORE, Individually and as Representative of all
Owners of Single Family Residential Property in Garland,
Texas; A C BLAIR, Individually and as Representative of all
Property Managers in Garland, Texas; MARIE COMBS,
Individually and as Representative of all Tenants of Single
Family Residential Property in Garland, TX

Plaintiffs-Appellees
v.

CITY OF GARLAND

Defendant-Appellant

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

Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Defendant-Appellant City of Garland (“the City”) appeals from the district
court’s order awarding attorney’s fees to Plaintiffs-Appellees Roy Dearmore, A.C.
Blair, and Marie Combs (collectively “Dearmore”), under 42 U.S.C. § 1988(b).
This statute authorizes an award of attorney’s fees to a “prevailing party” in an
action to enforce the provisions of certain federal statutes, including 42 U.S.C.
§ 1983. The City also appeals from the district court’s order denying its motion
to alter or amend judgment under Federal Rule of Civil Procedure 59(e). Because
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we conclude that Dearmore is a prevailing party and the district court
committed no reversible error in its Rule 59(e) order, we affirm.
I. FACTS AND PROCEEDINGS
On June 16, 2005, Dearmore filed a complaint against the City under 42
U.S.C. § 1983, challenging the constitutionality of Garland City Ordinance No.
5895 (“the Ordinance”), which related to the maintenance of rental properties in
the City. The complaint alleged that various minimum housing standards and
inspection procedures contained in the Ordinance violated the Fourth, Fifth, and
Fourteenth Amendments of the United States Constitution. That same day,
Dearmore filed a motion for a temporary restraining order, seeking to enjoin the
City from enforcing the Ordinance.
On June 28, 2005, the district court denied Dearmore’s motion for a
temporary restraining order. In response, on July 1, 2005, Dearmore filed an
amended motion for a temporary restraining order and a motion to reconsider
its denial of the temporary restraining order, or in the alternative, a request for
an expedited preliminary injunction hearing. On July 6, 2005, the City filed a
motion pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss
Dearmore’s complaint for failure to state a claim. Thereafter, Dearmore
amended his complaint and removed his Fifth and Fourteenth Amendment
takings and due process claims. Thus, Dearmore’s amended complaint alleged
only that the Ordinance authorized warrantless searches of private homes, failed
to provide a mechanism to notify tenants, property owners, or property
managers of their right to refuse a search, and required applicants to disclose
personal information, all in violation of the Fourth and Fourteenth
Amendments. Dearmore’s amended complaint sought a declaratory judgment,
injunctive relief, and attorney’s fees and costs.

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On November 3, 2005, the district court granted Dearmore’s motion for a
preliminary injunction.1 In its order, the district court held that in so far as the
Ordinance allowed inspections and searches of unoccupied property, it violated
a property owner’s Fourth Amendment right to be free from unreasonable
searches and seizures. As a result, the district court issued a preliminary
injunction enjoining the City from enforcing section 32.09(F) of the Ordinance,
which required a property owner who rents or leases a single-family dwelling to
allow an inspection of the rental property as a condition of issuing a permit, or
penalizes the lessor for refusing to allow an inspection.2 The district court also
dismissed Dearmore’s other Fourth Amendment claims. On the same date, the
district court issued a scheduling order establishing discovery deadlines and
setting the case for trial on October 2, 2006.
Following the issuance of these orders on November 3, 2005, counsel for
the City informed counsel for Dearmore that he did not need to post the bond
necessary to enforce the preliminary injunction because the City planned to
amend the Ordinance to address the district court’s order. On November 15,
2005, the Garland City Council amended the Ordinance, removing the provisions
related to a nonresident owner’s consent to the inspection of single-family rental
properties and clarifying the circumstances under which the City may seek a
warrant to inspect such properties when consent has been refused or could not

1
The district court construed Dearmore’s amended motion for a temporary restraining
order as a motion for a preliminary injunction, because Dearmore had requested a preliminary
injunction in his amended complaint.
2
The Ordinance provided for criminal penalties for certain violations. Specifically, the
Ordinance made it an offense if an owner rented property without a permit. It also made it
an offense if an owner refused to allow an inspection by the City. The fines for both offenses
were up to $2000 per day.

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be obtained. The City notified the district court of this amendment and filed a
motion to dismiss Dearmore’s action as moot, which Dearmore did not oppose.
On November 30, 2005, the district court granted the City’s motion and entered
final judgment dismissing the case as moot and with prejudice. The order
granting this motion found that Dearmore was a “prevailing party” and awarded
him attorney’s fees and costs under 42 U.S.C. § 1988(b).
On December 12, 2005, the City filed a motion to alter or amend judgment
pursuant to Rule 59(e), requesting that the district court not designate
Dearmore as a prevailing party and asking that the court re-tax costs against
the parties incurring them. On December 13, 2005, Dearmore filed a motion for
attorney’s fees pursuant to Rule 54(d)(2). On August 29, 2006, the district court
denied the City’s motion to alter or amend judgment. On September 6, 2006,
following a stipulation by the parties as to the amount of fees only, the district
court granted Dearmore’s motion for attorney’s fees. The City appeals both
rulings.
II. STANDARD OF REVIEW
The district court has broad discretion to award attorney’s fees under
§ 1988(b). See Hopwood v. Texas, 236 F.3d 256, 277 (5th Cir. 2000). In
evaluating whether the district court abused its discretion to award attorney’s
fees, this Court reviews the factual findings supporting the grant or denial of
attorney’s fees for clear error and the conclusions of law underlying the award
de novo. Energy Mgmt. Corp. v. City of Shreveport, 467 F.3d 471, 482 (5th Cir.
2006). “[T]he characterization of prevailing-party status for awards under fee-
shifting statutes such as § 1988 is a legal question subject to de novo review.”
Bailey v. Mississippi, 407 F.3d 684, 687 (5th Cir. 2005). The denial of a motion

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to alter or amend judgment under Rule 59(e) is reviewed for abuse of discretion.
Molina v. Equistar Chems. LP, No. 06-41574, 2008 WL 104077, at *2 (5th Cir.
Jan. 10, 2008) (unpublished). “However, to the extent that a ruling was a
reconsideration of a question of law . . . the standard of review is de novo.” Id.
(internal quotations omitted). This appeal presents a question of law that is
reviewed de novo.
III. DISCUSSION
In § 1988(b), Congress created an exception to the “American Rule” that
litigants pay for their own attorney’s fees. See Sole v. Wyner, 127 S. Ct. 2188,
2191 (2007); Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &
Human Res., 532 U.S. 598, 602 (2001). This section provides that “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. § 1988(b). This appeal
presents an issue of first impression in this Circuit: Whether a plaintiff qualifies
as a “prevailing party” under § 1988(b) when he obtains a preliminary injunction
after the district court makes an unambiguous indication of probable success on
the merits of his claim and the defendant subsequently moots the case before
trial in direct response to the court’s preliminary injunction order.
Supreme Court and Fifth Circuit precedent provide general guidance on
the qualifications for prevailing party status. The Supreme Court has noted that
“‘[t]he touchstone of the prevailing party inquiry’ . . . is ‘the material alteration
of the legal relationship of the parties in a manner which Congress sought to
promote in the fee statute.’” Sole, 127 S. Ct. at 2194 (quoting Tex. State Teachers
Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792–93 (1989)); see
Buckhannon, 532 U.S. at 603 (explaining that “Congress intended to permit the

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interim award of counsel fees only when a party has prevailed on the merits of
at least some of his claims” (internal quotations omitted)). Such a material
alteration must have the “necessary judicial imprimatur.” See Buckhannon, 532
U.S. at 605. The Buckhannon Court did not expressly define “judicial
imprimatur” but stated that enforceable judgments on the merits and consent
decrees are sufficient for prevailing party status. Id. at 604. In so holding, the
Buckhannon Court rejected the “catalyst theory,” explaining that a defendant’s
voluntary change in conduct in response to the plaintiff’s lawsuit and not a court
order, although perhaps accomplishing what the plaintiff sought to achieve,
lacks the necessary judicial imprimatur to establish prevailing party status. Id.
at 601, 605. This Court considered such Supreme Court precedent in Energy
Management and held that, to be a prevailing party, a plaintiff must “(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
the judgment or settlement.” 467 F.3d at 482.
Although an enforceable judgment on the merits and a court-ordered
consent decree have sufficient judicial imprimatur, these examples are not
exclusive. See Buckhannon, 532 U.S. at 605 (referencing the judgment on the
merits and consent decree as mere “examples”); Dupuy v. Samuels, 423 F.3d 714,
719 (7th Cir. 2005); Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 945
(D.C. Cir. 2005); John T. v. Del. County Intermediate Unit, 318 F.3d 545, 558 (3d
Cir. 2003); Dubuc v. Green Oak Twp., 312 F.3d 736, 753–54 (6th Cir. 2002);
Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002). As a result,
lower courts have had difficulties in ascertaining what other forms of judicial

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action have the “necessary judicial imprimatur” to create prevailing party
status, particularly in the context of preliminary injunctions. The Supreme
Court has never expressed a view “on whether, in the absence of a final decision
on the merits of a claim for permanent injunctive relief, success in gaining a
preliminary injunction may . . . warrant an award of counsel fees.” Sole, 127 S.
Ct. at 2196. Without a Supreme Court decision on point, circuit courts
considering this issue have announced fact-specific standards that are anything
but uniform. See Planned Parenthood of Houston & Se. Tex. v. Sanchez, 480
F.3d 734, 740–41 (5th Cir. 2007). As this Court has noted,
several circuits have determined that a preliminary injunction that
merely preserves the status quo temporarily will not confer
“prevailing party” status on a party; instead, the preliminary
injunction must (i) reflect a merits-based decision on an issue
involved in the case, see, e.g., John T. v. Del. County Intermediate
Unit, 318 F.3d 545, 558–59 (3d Cir. 2003); Dubuc v. Green Oak
Twp., 312 F.3d 736, 753 (6th Cir. 2002); Taylor v. City of Fort
Lauderdale, 810 F.2d 1551, 1558 (11th Cir. 1987); (ii) constitute
substantive, indefeasible relief akin to final relief on the merits
because, for example, “the party’s claim [for a] permanent injunction
is rendered moot by the impact of the preliminary injunction,” N.
Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1086 (8th Cir. 2006); see
also, e.g., Dupuy v. Samuels, 423 F.3d 714, 719, 723 (7th Cir. 2005);
(iii) grant the party concrete and irreversible relief in a merits-based
decision that vindicates the party’s claim and is not appealed by the
opposing party, see, e.g., Select Milk Producers, Inc. v. Johanns, 400
F.3d 939, 947–48 (D.C. Cir. 2005); or (iv) incorporate some
combination of these factors.
Yousuf v. Motiva Enters. LLC, 246 F. App’x 891, 894 (5th Cir. 2007) (per curiam)
(footnotes omitted) (citing Planned Parenthood, 480 F.3d at 740–41). “The Ninth
Circuit has . . . taken a relatively generous approach, at least in principle,
stating that a ‘preliminary injunction issued by a judge carries all the ‘judicial

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imprimatur’ necessary to satisfy Buckhannon.’” Planned Parenthood, 480 F.3d
at 741 (quoting Watson, 300 F.3d at 1096). The Ninth Circuit, however, did note
that a plaintiff would not qualify as a prevailing party if he obtained a
preliminary injunction early in the litigation but later lost on the merits and had
a judgment entered against him. Id. (citing Watson, 300 F.3d at 1096). “By
contrast, the Fourth Circuit has expressed strong skepticism that a preliminary
injunction could ever serve as the basis for prevailing party status,” because “‘the
merits inquiry in the preliminary injunction context is necessarily abbreviated.’”
Id. (quoting Smyth v. Rivero, 282 F.3d 268, 276 (4th Cir. 2002)).
This Court has not yet created or endorsed a particular test. Instead, this
Court has held that a plaintiff who obtains a preliminary injunction is not a
prevailing party if he fails to qualify under any of the other circuits’ tests. In
Planned Parenthood, the plaintiffs alleged in part that Rider 8, a statute that
prohibited the distribution of federal family funds to those who performed
elective abortion procedures or who contracted or provided funds to those who
perform such procedures, violated the Supremacy Clause. 480 F.3d at 736–37.
The district court granted the plaintiffs’ motion for a preliminary injunction,
enjoining enforcement of Rider 8, and the defendant appealed. Id. at 737. On
interlocutory appeal, this Court determined that Rider 8 did not violate the
Supremacy Clause and remanded the case, with instructions to dissolve the
injunction. Id. On remand, the district court granted the defendant’s motion to
dismiss the case and denied the plaintiffs attorney’s fees. Id. The plaintiffs
appealed the denial of fees. Id. This Court held that the plaintiffs were not
prevailing parties because (1) the preliminary injunction involved an
abbreviated inquiry into the merits coupled with a weighing of likely harms, (2)

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the preliminary injunction only preserved the status quo between the parties,
(3) the case was not mooted after the preliminary injunction was granted and the
defendant appealed, and (4) on remand, the plaintiffs did not seek to avoid the
dissolution of the injunction and eventually lost on the merits. Id. at 741–42.
Under these facts, this Court had no need to choose between the tests of the
other circuits because the plaintiffs clearly failed to qualify under any of them.
See id. at 741.
Likewise, in Yousuf, this Court held that the plaintiff was not a prevailing
party because he did not qualify under any test. 246 F. App’x at 894. The
plaintiff, who leased and operated a Shell service station pursuant to a franchise
agreement with the defendant, filed suit after the defendant notified him of its
intent to terminate the franchise relationship. Id. at 892. After suit was filed,
the parties executed a “Stipulated Standstill Agreement,” where they agreed to
maintain the status quo of the franchise relationship pending the district court’s
decision on the preliminary injunction, which the district court adopted as an
order of the court. Id. As discovery progressed, the parties reached another
agreement and filed a joint stipulation and motion for the entry of a consent
judgment on the plaintiff’s preliminary injunction motion. Id. The district court,
in accordance with the stipulation and motion, issued the preliminary injunction
maintaining the franchise relationship, but the order stated that the court made
no findings of fact or law on the motion. Id. at 892–93. Before the case could
proceed to a jury trial, Hurricane Katrina destroyed the service station, and the
defendant terminated the franchise agreement. Id. at 893. The plaintiff then
moved to dismiss the case as moot and filed for attorney’s fees under the
Petroleum Marketing Practices Act, 15 U.S.C. § 2801 et seq., based on the entry

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of the standstill agreement and preliminary injunction. Id. The district court
denied the attorney’s fees, and plaintiff appealed. Id. On appeal, this Court
affirmed the district court and determined that the plaintiff was not a prevailing
party because (1) the preliminary injunction did nothing more than “temporarily
preserve the status quo, maintaining the parties’ preexisting franchise
relationship until the legal issues surrounding the approaching termination of
that relationship could be addressed on the merits,” (2) the district court did not
consider the merits of plaintiff’s claim and explicitly noted that it had not made
any findings of fact or conclusions of law in its order granting the preliminary
injunction per the parties’ agreement, and (3) the plaintiff’s claim became moot
“not because the court orders were so successful for [the plaintiff] that they
rendered any further relief unnecessary, but rather because of the unrelated
impact of Hurricane Katrina.” Id. at 894–95.
Unlike Planned Parenthood or Yousuf, this case does not fail every test
employed by the other circuits. As noted, the Sixth Circuit provides that a
plaintiff is a prevailing party if the preliminary injunction represents an
“unambiguous indication of probable success on the merits, and not merely a
maintenance of the status quo ordered because the balance of equities greatly
favors the plaintiff.” Dubuc, 312 F.3d at 753 (internal quotations omitted).
Likewise, the Seventh Circuit states that a plaintiff may obtain attorney’s fees
when the district court engaged in a discussion on the merits of the claim when
considering a preliminary injunction motion, and the case was mooted after the
plaintiffs were granted a preliminary injunction but before they requested
attorney’s fees. See Dupuy, 423 F.3d at 722–23. Further, the Ninth Circuit
holds that a plaintiff is entitled to attorney’s fees if he obtained a preliminary

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injunction and the case was subsequently mooted. See Watson, 300 F.3d at 1096.
Here, the district court considered the merits of Dearmore’s claim and clearly
concluded that a provision of the Ordinance violated the Fourth Amendment.
In response to the district court’s grant of this preliminary injunction, the City
amended the offending provision of the Ordinance, thereby mooting the case.
Under these facts, at a minimum, it appears that Dearmore qualifies as a
prevailing party under the Sixth, Seventh, and Ninth Circuits’ tests. As a result,
we are not required to reverse the district court’s grant of attorney’s fees to
Dearmore under Planned Parenthood, 480 F.3d at 740–42, or Yousuf, 246 F.
App’x at 894.
The City urges this Court to hold that Dearmore is not a prevailing party
because the preliminary injunction simply maintained the status quo until trial,
did not provide final relief on the merits, and did not materially alter the legal
relationship between the parties. The City contends that it changed its position
by amending the offending provision of the Ordinance voluntarily, not because
the preliminary injunction required it to do so. Dearmore, on the other hand,
argues that he is a prevailing party because he won a preliminary injunction
sufficiently grounded in the merits, which provided him with some judicial relief.
Dearmore also asserts that the grant of the preliminary injunction and the City’s
subsequent amendment of the offending portion of the Ordinance represents a
judicially-sanctioned material change in the legal relationship between the
parties.
The position urged by the City is simply not compelled by Buckhannon.
Contrary to the City’s argument, Buckhannon does not stand for the proposition
that a defendant should be allowed to moot an action to avoid the payment of the

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plaintiff’s attorney’s fees when a district court grants a preliminary injunction
based upon an unambiguous indication of probable success on the merits.
Instead, we agree with Dearmore that this preliminary injunction, coupled with
the City’s subsequent mooting of the case, is sufficient to establish prevailing
party status.
Under these facts, to qualify as a prevailing party under § 1988(b), we hold
that the plaintiff (1) must win a preliminary injunction, (2) based upon an
unambiguous indication of probable success on the merits of the plaintiff’s claims
as opposed to a mere balancing of the equities in favor of the plaintiff, (3) that
causes the defendant to moot the action, which prevents the plaintiff from
obtaining final relief on the merits.3 Such a test satisfies Buckhannon, because
it requires that a party obtain a judicial ruling which results in a material
change in the legal relationship between the parties. It also does not implicate
the “catalyst theory,” which the Supreme Court struck down in Buckhannon,
because this test grants prevailing party status only when the defendant moots
the plaintiff’s action in response to a court order, not just in response to the filing
of a lawsuit. Likewise, it complies with the general prevailing party standard
announced by this Court in Energy Management, 467 F.3d at 482.
Dearmore clearly satisfies the three-prong test for prevailing party status
announced herein. First, it is undisputed that the district court granted

3
Although not part of our test, we note that when a defendant moots an action in
response to the district court’s preliminary injunction order, the defendant will have generally
acceded to the order and thus will not have appealed. This lack of an appeal by a defendant
has been noted by this Court and others to be a factor favoring a finding of prevailing party
status. See, e.g., Planned Parenthood of Houston & Se. Tex. v. Sanchez, 480 F.3d 734, 741–42
(5th Cir. 2007); Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 948 (D.C. Cir. 2005).

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Dearmore a preliminary injunction—an enforceable judgment—by court order
on November 3, 2005. Thus, Dearmore has satisfied the first prong of the test.
Second, the district court granted the preliminary injunction based upon
its assessment that Dearmore would likely succeed on the merits of his Fourth
Amendment claim, not because of any balancing of the equities in his favor. See
Dubuc, 312 F.3d at 753 (holding that a plaintiff is entitled to prevailing party
status when he obtains a preliminary injunction based upon the merits of his
claim); Haley v. Pataki, 106 F.3d 478, 483 (2d Cir. 1997) (holding that “[w]hen
a party receives a stay or preliminary injunction but never obtains a final
judgment, attorney’s fees are proper if the court’s action in granting the
preliminary injunction is governed by its assessment of the merits”); Taylor v.
City of Fort Lauderdale, 810 F.2d 1551, 1558 (11th Cir. 1987) (stating that “a
preliminary injunction on the merits, as opposed to a merely temporary order
which decides no substantive issues but merely maintains the status quo,
entitles one to prevailing party status and an award of attorney’s fees”). In its
order, the district court clearly informed the City that certain provisions of its
Ordinance violated the Fourth Amendment, stating:
Inspections and searches of unoccupied property would clearly
infringe on the property owner’s right under the Fourth Amendment
to the United States Constitution to be free from unreasonable
search and seizure. In these limited situations, where the property
is unoccupied, the protections guaranteed by the Fourth
Amendment to the United States Constitution to the property owner
outweigh any interest that the government has in protecting the
health, safety or welfare of the public . . . . The ease with which the
City could acquire an administrative search warrant makes
unnecessary the need for the City to require property owners to
forego in advance their rights guaranteed by the Fourth
Amendment. The court fully understands that the City has a valid

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and important governmental interest in protecting the public,
however, the court sees no reason why this should be done at the
expense of infringing on rights guaranteed by the Fourth
Amendment to the United States Constitution.
Dearmore v. City of Garland, 400 F. Supp. 2d 894, 903 (N.D. Tex. 2005).
Although the district court indicated that it was “viewing [the facts] in the light
most favorable to Dearmore” and that Dearmore was likely to prevail, see id. at
904, this language was used to conform to the standard necessary for the
issuance of a preliminary injunction. Therefore, this is not a case where the
preliminary injunction was based less on the district court’s view of the merits
than on a perceived hardship to the plaintiff. Rather, the district court’s grant
of the preliminary injunction was clearly merit-based, and thus Dearmore has
satisfied the second prong of the test.
Third, the district court’s grant of the preliminary injunction directly
caused the City to amend the offending portion of the Ordinance, thereby
mooting the case and preventing Dearmore from obtaining final relief on the
merits. We note that this is not a case in which the City voluntarily changed its
position before judicial action was taken. Indeed, if the City had mooted the case
through amending the Ordinance before the court granted the preliminary
injunction, then Dearmore could not qualify as a prevailing party under
Buckhannon because it would have improperly invoked the “catalyst theory.”
The City, however, mooted the case after and in direct response to the district
court’s preliminary injunction order. There is an obvious direct causal link
between the district court’ s issuance of the preliminary injunction and the City’s
subsequent amendment of the Ordinance to moot the case. Almost immediately
following the district court’s issuance of the preliminary injunction, counsel for

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the City informed counsel for Dearmore that Dearmore need not post the bond
to enforce the injunction, because the City planned to amend the Ordinance to
address the district court’s concerns. Twelve days after the district court issued
the injunction, the Garland City Council amended the provision of the Ordinance
that the district court held to be violative of the Fourth Amendment. Dearmore
has satisfied the third prong of the test, and thus he is entitled to attorney’s fees
and costs under § 1988(b).4
In support of our holding, we note that the merits-based preliminary
injunction here, coupled with the City’s mooting of the action in direct response
to the injunction, caused a material alteration in the legal relationship between
the parties. The fact that Dearmore never obtained a final judgment on the
merits does not affect our ruling, as a final judgment is not required. We, like
the District of Columbia Circuit, conclude that “Buckhannon embraces the
possibility that, under certain circumstances, a preliminary injunction, like a
consent decree [which does not always include an admission of liability], may
result in a court-ordered change in the legal relationship between the parties
that is sufficient to make the plaintiff a ‘prevailing party’ under a fee-shifting
statute.” Select Milk Producers, 400 F.3d at 945. This is such a case. When the
district court granted the preliminary injunction, it provided Dearmore with the
interim judicial relief that he requested—it blocked the City from enforcing the
portion of the Ordinance that violated the Fourth Amendment. Because of this

4
We note that the test we articulate here is only applicable in the limited factual
circumstances described above. By its terms, it only applies when a plaintiff obtains a
preliminary injunction based on an unambiguous indication of probable success on the merits,
which causes the defendant to moot the action, thereby preventing the plaintiff from obtaining
final relief on the merits. As a result, this test does not signal any disagreement with the
approaches adopted by the other circuits, with the exception of the Fourth Circuit.

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injunction, the City could not conduct warrantless searches or impose criminal
penalties for noncompliance under the offending provision of the Ordinance.
When the City modified its behavior in direct response to the injunction and
mooted the case, it ultimately provided Dearmore with his desired result.
Dearmore was never subjected to section 32.09(F) of the Ordinance, which is
what he sought. Such a situation satisfies Buckhannon and justifies conferring
prevailing party status to Dearmore under these facts.
IV. CONCLUSION
The district court’s award of attorney’s fees and denial of the City’s Rule
59(e) motion is AFFIRMED.

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