Poor Bear et al v. The County of Jackson et al
MEMORANDUM OPINION AND ORDER denying 96 Motion for Attorney Fees and Costs. Signed by U.S. District Judge Karen E. Schreier on 1/4/17. (SLW)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
THOMAS POOR BEAR, DON DOYLE,
CHERYL D. BETTELYOUN, and
JAMES RED WILLOW,
THE COUNTY OF JACKSON, a political
subdivision and public corporation
organized under the laws of the State of
THE BOARD OF COMMISSIONERS FOR
THE COUNTY OF JACKSON, a political
subdivision and public corporation
organized under the laws of the State of
VICKI WILSON, in her official capacity as
the Jackson County Auditor
GLEN BENNETT, in his official capacity
as Jackson County Commissioner;
LARRY DENKE, in his official capacity as
Jackson County Commissioner;
LARRY JOHNSTON, in his official
capacity as Jackson County
JIM STILWELL, in his official capacity as
Jackson County Commissioner; and
RON TWISS, in his official capacity as
Jackson County Commissioner,
MEMORANDUM OPINION AND ORDER
DENYING MOTION FOR
ATTORNEY FEES AND COSTS
Plaintiffs seek attorney fees and costs under section 14(e) of the Voting
Rights Act, codified at 52 U.S.C. § 20510(c). Docket 96. Defendants oppose the
motion. Docket 100. On July 11, 2016, this court granted plaintiffs’ motion to limit
its motion for attorney fees to address only the issue of entitlement to attorney fees
and costs. Docket 95. For the reasons that follow, the court denies plaintiffs’
motion for attorney fees and costs.
The Pine Ridge Indian Reservation is located in southwestern South Dakota
and encompasses the southern half of Jackson County and all of Oglala Lakota
County, South Dakota. Plaintiffs are enrolled members of the Oglala Sioux Tribe
who reside in Jackson County, South Dakota, on the Pine Ridge Indian
Reservation. Defendants are entities and individuals responsible for managing
elections in Jackson County.
Plaintiffs filed this action on September 18, 2014, seeking injunctive and
declaratory relief that would require defendants to establish a satellite office for
voter registration and in-person absentee voting in the town of Wanblee on the
Pine Ridge Indian Reservation. On October 15, 2014, the parties participated in a
settlement conference before United States Magistrate Judge Veronica Duffy. After
the settlement conference, Jackson County agreed to fund a satellite office for the
remaining time period leading up to the 2014 general election.
On November 13, 2015, the Jackson County Commission formed an
agreement with the South Dakota Secretary of State’s Office under which all funds
necessary to operate a satellite office in Wanblee would be provided during all
federal primary and general elections through January 1, 2023. With funding in
place for the satellite office, defendants moved to dismiss the complaint on
Additional background facts can be found in the court’s prior memorandum
opinion and orders. Docket 34 at 2-6 and Docket 92 at 2-4.
grounds of ripeness. Docket 45. Defendants’ motion to dismiss on ripeness
grounds was granted on June 17, 2016. Docket 92.
Standard for Award of Attorney Fees
“ ‘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.’ ” Doe
v. Nixon, 716 F.3d 1041, 1048 (8th Cir. 2013) (quoting Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 602 (2001)). “An
exception to this general rule applies when Congress has provided explicit
statutory authority for awarding fees to a prevailing party.” Id. One such exception
is found in the Voting Rights Act, which provides that a “court may allow the
prevailing party (other than the United States) reasonable attorney fees, including
litigation expenses, and costs.” 52 U.S.C. § 20510(c).
In Buckhannon, 532 U.S. at 604-05, the Supreme Court set forth a two-part
test for determining whether a party is considered a prevailing party when there is
no final judgment on the merits of the case. 2 The first step requires a party to
demonstrate a “material alteration of the legal relationship of the parties.” Id. at
604 (quoting Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782,
792–93 (1989)). The second step requires that the relief be “judicially sanctioned.”
Id. at 605. Only when both steps of this analysis are satisfied, can a party be
The term “prevailing party” is to be interpreted consistently whenever it is used
by Congress in a fee-shifting statute. See, e.g., CRST Van Expedited, Inc. v.
E.E.O.C., 136 S.Ct. 1642, 1646 (2016) (citing Buckhannon, 532 U.S. at 602-03)
(“Congress has included the term ‘prevailing party’ in various fee-shifting statutes,
and it has been the Court's approach to interpret the term in a consistent
manner.”)); Cody v. Hillard, 304 F.3d 767, 773 n.3 (8th Cir. 2002) (“We agree with
our sister circuits that Buckhannon applies broadly to fee-shifting statutes that
employ the ‘prevailing party’ language.”).
deemed a prevailing party. See Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of
Land Mgmt., 589 F.3d 1027, 1030 (9th Cir. 2009) (“The material alteration and the
judicial sanction are two separate requirements.”); see also Coates v. Powell, 639
F.3d 471, 474 (8th Cir. 2011) (“A ‘prevailing party’ is one that obtains a judicially
sanctioned, material alteration of the legal relationship of the parties.”).
Through its Buckhannon decision, “the Supreme Court rejected the ‘catalyst
theory’ then prevailing in the circuit courts, which permitted a plaintiff to recover
fees if the lawsuit achieved the desired result through a voluntary change in the
defendant's conduct.” N. Cheyenne Tribe v. Jackson, 433 F.3d 1083, 1085 (8th Cir.
2006). The Supreme Court “determined that a legal change, rather than a
voluntary change, in the relationship of the parties is required [to confer prevailing
party status].” Christina A. v. Bloomberg, 315 F.3d 990, 992 (8th Cir. 2003). Thus,
“[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. In determining what
actions provide the necessary judicial imprimatur to bestow prevailing party status,
the Eighth Circuit has observed that “a mere private settlement does not qualify,
because ‘[p]rivate settlements do not entail the judicial approval and oversight
involved in consent decrees.’ ” Bill M. v. Neb. Dep’t of Health & Human Servs. & Fin.
Support, 570 F.3d 1001, 1003 (8th Cir. 2009) (quoting Buckhannon, 532 U.S. at
604 n.7); see also Buckhannon, 532 U.S.at 604 n.7 (observing that “federal
jurisdiction to enforce a private contractual settlement will often be lacking unless
the terms of the agreement are incorporated into the order of dismissal”).
Whether Plaintiffs were a Prevailing Party
Plaintiffs did not obtain a final judgment because the court dismissed as
moot plaintiff’s case. See Docket 92. Thus, for plaintiffs to be considered the
prevailing party thereby allowing plaintiffs to recover attorney fees under the
Voting Rights Act, they must meet both steps of Buckhannon’s two-part test as
described above. See Loudner v. United States, 379 F.Supp.2d 1048, 1051 (D.S.D.
2005) (describing how the relief obtained by a prevailing party must “ ‘materially
alter the legal relationship between the parties’ ” and that “ ‘the change in the
relationship must be judicially sanctioned’ ” (quoting Sierra Club v. City of Little
Rock, 351 F.3d 840 (8th Cir.2003))).
Whether there was a “Material Alteration of the Legal
With regard to the first step of the Buckhannon test, 532 U.S. at 604,
plaintiffs advance several arguments in an attempt to show a “material alteration
of the legal relationship of the parties.” First, plaintiffs argue that the action was
not dismissed “because of a voluntary change in conduct by Jackson County but
because Jackson County bound itself in an agreement with the State of South
Dakota to maintain the in-person absentee voting location on the Pine Ridge
Reservation for every federal primary and general election through December 31,
2022.” Docket 97 at 7. Next, plaintiffs argue that because they “are residents of
Jackson county and the Pine Ridge Reservation, they are among the beneficiaries
of [the] state-enforced contract [to operate a satellite office in Wanblee, South
Dakota].” Id. at 8. Finally, plaintiffs contend that Jackson County’s decision to
have the agreement to operate a satellite office enforced “by the executive branch
rather than the judiciary makes its agreement no less public than a consent
decree.” Docket 101 at 3. Essentially, plaintiffs use these arguments to show that
they are entitled to prevailing party status because they obtained the relief they
sought based on the merits of their claims.
In Northern Cheyenne Tribe, 433 F.3d at 1086, the Eighth Circuit affirmed
this court's denial of attorney's fees where “the Tribes achieved their desired result
. . . for reasons unrelated to the merits of the Tribes' RFRA and RLUIPA claims,
and because of voluntary decisions by the other defendants to abandon the
shooting range project.” Id. Under such circumstances, the Court of Appeals
observed how “it would be ironic, to say the least, if the Tribes were awarded
attorneys' fees against the defendant whose voluntary action triggered this result.”
Id. Thus, because the Tribes only achieved their desired result following the
voluntary action of the defendant, the Eighth Circuit concluded that “under
Buckhannon, the Tribes may not be awarded attorneys' fees as prevailing parties.”
Id. at 1087.
Plaintiffs fail to distinguish their case from Northern Cheyenne Tribe. Here,
the court denied plaintiffs’ request for a preliminary injunction as moot following
the agreement between Jackson County and the State of South Dakota to operate
a satellite office in Wanblee, South Dakota, during the 2014 general election. See
Docket 34 at 6 n.3. Thus, plaintiffs cannot point to the court’s decision to deny the
request for a preliminary injunction in attempting to show that there was a
material alteration in the legal relationship of the parties. Further, plaintiffs have
failed to demonstrate how defendants’ actions were anything other than voluntary.
And as noted above, the Supreme Court has rejected the “catalyst theory” as a
basis for determining whether a party was a “prevailing party” because that theory
“allows an award [of attorney fees] where there is no judicially sanctioned change
in the legal relationship of the parties.” Buckhannon, 532 U.S. at 605.
While plaintiffs may be correct that they are the beneficiaries of the
agreement between Jackson County and the State of South Dakota to operate a
satellite office, plaintiffs fail to show how Jackson County’s voluntary action of
entering into the agreement alters the legal relationship between plaintiffs and
defendants. And plaintiffs cite no authority to support their argument that
Jackson County’s decision to have the agreement to operate a satellite office
enforced “by the executive branch rather than the judiciary makes its agreement
no less public than a consent decree.” Docket 101 at 3. Thus, plaintiffs have failed
to show that under the first step of the Buckhannon test, 532 U.S. at 604, there
was a material alteration of the legal relationship of the parties. Thus, under these
circumstances, “it would be ironic, to say the least, if [plaintiffs] were awarded
attorneys' fees against the defendant[s] whose voluntary action triggered this
result.” N. Cheyenne Tribe, 433 F.3d at 1086.
Whether Plaintiffs’ Relief was “Judicially Sanctioned”
Even if the court concluded that there was a material alteration of the legal
relationship of the parties, plaintiffs would still have to show under the second
part of the Buckhannon test, 532 U.S. at 605, that they received relief that was
“judicially sanctioned.” Plaintiffs make two main arguments to show that they
received “judicially sanctioned” relief and are entitled to prevailing party status.
First, plaintiffs argue that the decision to open the satellite office in
Wanblee, South Dakota, for the 2014 general election was the result of “a
settlement conference conducted by Magistrate Judge Veronica L. Duffy on
October 15, 2014,” which led to “a cancellation by the Court of the preliminary
injunction hearing scheduled for October 17, 2014.” Docket 97 at 6. According to
plaintiffs, these events “certainly constitutes ‘judicial imprimatur’ on Defendants’
change of conduct prior to the 2014 general election.” Docket 101 at 3.
Plaintiffs next argue that evidence of judicially sanctioned relief can be
found in the timing of defendants’ agreement with the State of South Dakota to
operate a satellite office. To support this argument, plaintiffs allege that
defendants were “mischievous” and forced plaintiffs to litigation “through extensive
fact discovery and service of expert witness reports before changing its conduct,”
and “avoid[ing] a trial on the merits only by contractually binding itself . . . to
provide all the relief Plaintiffs sought for at least eight years.” Docket 97 at 7.
Plaintiffs also allege that a judicial imprimatur can be found in the fact that
defendants only entered into the agreement with the State of South Dakota to
operate a satellite office—which led the court to dismiss plaintiffs’ case on ripeness
grounds—at “the close of discovery and [as] summary judgment practice was
looming.” Docket 101 at 5.
The Eighth Circuit’s decision in Coates v. Powell, 639 F.3d 471, 475 (8th
Cir. 2011), is instructive here. In Coates, the parties entered into a settlement
agreement the night before trial. Id. This agreement was never written into a
formal settlement contract or incorporated into a settlement decree or incorporated
into a judgment for dismissal. Id. Thus, under these facts the Court of Appeals
determined that “the district court took no action judicially sanctioning or
materially altering the legal relationship of the parties.” Id.; see also Coates, 639
F.3d at 475 (concluding that there was “no judicial imprimatur on the settlement
which could give rise to prevailing party status”).
Additionally, in determining whether a private settlement can provide the
necessary judicial imprimatur to bestow prevailing party status, the Eighth Circuit
has observed that “a mere private settlement does not qualify, because ‘[p]rivate
settlements do not entail the judicial approval and oversight involved in consent
decrees.’ ” Bill M., 570 F.3d at 1003 (quoting Buckhannon, 532 U.S. at 604 n.7);
see also Buckhannon, 532 U.S.at 604 n.7 (observing that “federal jurisdiction to
enforce a private contractual settlement will often be lacking unless the terms of
the agreement are incorporated into the order of dismissal”); Christina A., 315 F.3d
at 992-93 (concluding that a district court’s review of a class action settlement
agreement for fairness and reasonableness “does not require the court to establish
the terms of the agreement” and therefore is only a private settlement agreement
and not an enforceable judgment or consent decree).
This line of cases forecloses plaintiffs’ arguments in attempting to show a
judicial imprimatur that would give rise to prevailing party status. A court
mediated agreement is not the same as a judgment on the merits, a consent
decree, or a preliminary injunction—all of which involve a measure of court action
and potential continued court oversight. See, e.g., N. Cheyenne Tribe, 433 F.3d at
1085-86 (discussing various types of court actions and whether they are sufficient
to result in a “judicially sanctioned material alteration of the legal relationship of
the parties to a lawsuit” (emphasis in original)). Further, plaintiffs’ argument that
the mediated settlement agreement and the cancelled preliminary injunction
hearing creates a judicial imprimatur belies the court’s opinion denying the
preliminary injunction motion as moot. Docket 34 at 6 n.3 (“Because the parties
resolved the preliminary injunction without action by the court, the motion for
preliminary injunction (Docket 13) is denied as moot.” (emphasis added)).
Additionally, plaintiff’s argument that the timing of the agreement between
Jackson County and the State of South Dakota to operate the satellite office
creates prevailing party status is rejected. As is clear for the Eighth Circuit’s
decision in Coates, 639 F.3d at 475, the timing of a settlement agreement is
irrelevant in deciding whether there is a judicially sanctioned approval of a
material alteration of the legal relationship of parties.
Finally, to the extent that plaintiffs argue that the court’s dismissal of
plaintiffs’ claim on ripeness grounds makes plaintiffs the prevailing party, the
argument is also rejected. In Doe, 716 F.3d at 1050-51, the Eighth Circuit rejected
a similar argument that a district court’s order dismissing the plaintiffs’ case on
mootness grounds conferred prevailing party status upon the plaintiffs. Thus,
under Doe, 716 F.3d at 1050-51, a district court’s dismissal of a case on ripeness
grounds also fails to confer prevailing party status upon a plaintiff. See id. (citing
Klamath, 589 F.3d at 1033 (holding that order of dismissal could not confer
prevailing party status because “[a]s a matter of law and logic, the district court
cannot have awarded Klamath any relief if it dismissed the case because it could
not grant relief. And that is exactly what a dismissal on mootness or ripeness
Plaintiffs have failed to show that they were the prevailing party under the
Supreme Court’s two-step analysis. See Buckhannon, 532 U.S. at 604-05.
Therefore, because plaintiffs cannot show (1) a material alteration of the legal
relationship between themselves and defendants (2) that was judicially sanctioned,
plaintiffs are not entitled to attorney fees and costs under 52 U.S.C. § 20510(c).
Thus, it is
ORDERED that plaintiffs’ motion for attorney fees and costs (Docket 96) is
DATED January 4, 2017.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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