In Pool v. City of Houston, No. 24-20138 (5th Cir. Jan. 2, 2026), the Fifth Circuit affirms a post-judgment vacatur of attorney’s fees after the original judgment in plaintiff’s favor was vacated by the Fifth Circuit for lack of subject-matter jurisdiction. While the plaintiffs may have had a valid law-of-the-case argument to otherwise sustain the fee award, the panel holds that they forfeited that argument by not seeking rehearing of the second panel’s decision.
The first decision by the Fifth Circuit (978 F.3d 307 (5th Cir. 2020) (Pool I)) originally upheld subject-matter jurisdiction. See Just in Time for Halloween, Fifth Circuit Reanimates Challenge to “Zombie” Law. The plaintiffs sought to circulate a “2019 petition sought to put an ordinance on the Houston ballot that would limit campaign contributions from City contractors to candidates for municipal office.” The city’s petition form continued to state that only qualified voters could legally circulate petitions despite that the Supreme Court held a similar law unconstitutional twenty years earlier. See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 193–97 (1999). In the Fifth Circuit’s 2020 decision, it held that the case was not moot, despite the city’s concession that the law was unconstitutional, and that the plaintiffs had standing because there was some demonstrable risk that the city might seek to enforce ordinance.
But the Fifth Circuit completely reversed course in 2023 and dismissed the same action in a two-page order (87 F.4th 733 (5th Cir. 2023) (Pool II)) on the ground that there was never a dispute between the parties about the constitutionality of the city ordinance. See Lack of “Adversity” Between Litigants Over a Constitutional Question Deprives Court of Article III Case or Controversy, Holds Fifth Circuit. “It is well settled that, where the parties agree on a constitutional question, there is no adversity and hence no Article III case or controversy . . . . The City has repeatedly and consistently emphasized its agreement with the plaintiffs throughout this suit . . . Such faux disputes do not belong in federal court.”
As I noted in my blog entry then: “[T]hus, pop, goes four years of litigation (and quite possibly attorney’s fees under 42 U.S.C. § 1988 as well).” And this came to pass. The City filed a Fed. R. Civ. P. 60(b)(5) motion in the district court to vacate the fee award, which the judge granted.
On this third and final appeal, the Fifth Circuit affirms the vacatur of the fee award. The appeal presents two significant issues: (1) whether the second panel decision, which whipsawed the first decision on subject-matter jurisdiction, violated the law-of-the-case doctrine; and (2) whether Rule 60(b)(5) was a proper vehicle here for vacating the award.
On the first issue, the panel finds that it has no need to reach the merits of the argument because the plaintiffs forfeited it. Plaintiff argued that “the question of justiciability was answered definitively in Pool I, and thus it would contravene the law-of-the-case doctrine to read Pool II ‘as a repudiation of Pool I’s holding that [Appellants] established standing and that the case was not moot at the time of Pool I.”
The panel holds that the time to have raised law-of-the-case was in 2023, on a Fed. R. App. P. 40 petition for panel rehearing or for rehearing en banc of Pool II, and that once the mandate issued unchallenged from the second appeal, the district court was obliged to enforce it.
While the plaintiffs’ law-of-the-case “argument has some merit,” unfortunately for them, “following the Pool II decision, they made no attempt to rectify it. After Pool II was issued, Appellants had two options before them: ‘A party may seek rehearing of a decision through a petition for panel rehearing, a petition for rehearing en banc, or both.’ Federal Rule of Appellate Procedure 40. Instead, Appellants elected to do nothing and wait for the mandate to be issued. Appellants chose to appeal the effect of the decision rather than the decision itself—they allowed the Pool II mandate to undo their prevailing party status without so much as filing a motion before our court.”
“Appellants now come back to our circuit, for a third time, asking this panel to clear up an inconsistency that they had the opportunity to resolve, had they not sat on their own hands. We decline to do so. Appellants had ample opportunity to file a petition for rehearing. Fed. R. App P. 40. Because they have not done so, this will not overturn the district court’s proper application of the Pool II mandate.”
On the second issue, the panel holds – in an issue of first impression for the circuit – that Rule 60(b)(5) may be used to vacate a fee award after the judgment that originally supported it is vacated, despite that the defendant never appealed the award.
Looking to decisions from the Seventh and Ninth Circuit, it holds that a defendant ordinarily needn’t separately appeal a fee award to preserve such a challenge unless “it challenges some aspect of the award itself.” The decisions from the sister circuits are “particularly persuasive” because they “represent scenarios in which the appellate courts remanded for entry of an order vacating § 1988 fee awards—which had already been paid by the defendants—after determining that the district courts abused their discretion by denying the defendants’ Rule 60(b)(5) motions for relief from the fee awards.”
“[I]n the present case, the district court’s award of attorney’s fees to Appellants was grounded in the merits relief they received in the form of a TRO and declaratory judgment, which gave them ‘prevailing party’ status under § 1988. Then, Pool II held that there was no case or controversy in the suit to begin with and remanded for dismissal without prejudice, which effectively vacated the preceding TRO and declaratory relief. With the footing of the fee award now removed, the district court acted well within its discretion in granting the City’s motion for relief under Rule 60(b)(5).”
“We are not strangers to finding that Rule 60(b)(5) is suitable for a movant seeking reversal of a fee award when the award is rooted in merits relief that has been nullified on appeal . . . . That is the case here after Pool II held that no federal jurisdiction existed from the outset of this suit. The fact that the City did not appeal the fee award itself does not render the district court’s grant of Rule 60(b)(5) relief erroneous.”
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