Rule 60(b)(5) Vacatur of § 1988 Fees After Jurisdictional Vacatur of Merits Relief (No Separate Fee Appeal Required)

1. Introduction

This third-trip appeal arises from a long-running constitutional challenge to “qualified voter” restrictions in the City of Houston’s home-rule charter governing who may circulate initiative and referendum petitions. The plaintiffs—Joe Richard Pool, III; Trenton Donn Pool; Accelevate2020, L.L.C.; Liberty Initiative Fund; and Paul Jacob—wanted to circulate a petition for a campaign-contribution-limiting ordinance but were barred by charter provisions requiring circulators to be Houston residents and registered Houston voters.

The litigation’s trajectory is unusual. In Pool v. City of Houston (Pool I), the Fifth Circuit held plaintiffs had standing and the case was not moot despite the City’s asserted non-enforcement posture. Later, in Pool v. City of Houston (Pool II), a different panel held there never was an Article III case or controversy because (as that panel viewed it) the parties agreed from the beginning the provisions were unconstitutional and unenforceable—requiring dismissal without prejudice.

The present appeal concerns a collateral—but financially significant—consequence: after plaintiffs obtained a TRO and a declaratory judgment and were awarded attorney’s fees under 42 U.S.C. § 1988(b) (which the City paid), Pool II vacated the merits judgment for lack of jurisdiction. On remand, the district court granted the City relief under Rule 60(b)(5), vacated the fee award, and ordered plaintiffs to refund the paid fees. Plaintiffs appealed that Rule 60(b)(5) order.

2. Summary of the Opinion

The Fifth Circuit affirmed. The court held that, once Pool II vacated the merits judgment on the ground that no Article III controversy existed “from the beginning,” the TRO and declaratory judgment that supported the district court’s prevailing-party finding lost their jurisdictional foundation. Under Rule 60(b)(5) and Fifth Circuit precedent, the district court acted within its discretion by vacating the § 1988 fee award and ordering repayment.

The court also rejected arguments that (i) the Supreme Court’s decision in Lackey v. Stinnie controlled; (ii) the City needed to have appealed the fee award to later seek Rule 60(b)(5) relief; (iii) the mandate rule barred the district court’s action; and (iv) repayment was unfairly prejudicial.

3. Analysis

3.1 Precedents Cited

A. Petition-circulator restrictions and “zombie laws” background

• Buckley v. American Constitutional Law Foundation, Inc.: The Supreme Court invalidated a registered-voter-only restriction for initiative petition circulators. This case supplied the substantive constitutional benchmark that made Houston’s “qualified voter” rule highly vulnerable and framed the City’s later position that the charter provisions were unconstitutional.
• Pool v. City of Houston (Pool I): The first Fifth Circuit decision held plaintiffs had standing to seek prospective declaratory and injunctive relief and that the City’s post-suit disavowal did not moot the controversy. The current panel notes Pool I for procedural history and recognizes plaintiffs’ contention that Pool II sits uneasily with it.
• Pool v. City of Houston (Pool II): The second Fifth Circuit decision vacated the final judgment and ordered dismissal without prejudice for lack of adversity/Article III case or controversy. In the present appeal, Pool II is treated as controlling mandate: once it declares no jurisdiction existed “from the beginning,” the district court’s earlier merits and fee rulings cannot stand.

B. Prevailing-party fees under § 1988

• Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources: Establishes that “prevailing party” status requires a “judicially sanctioned” material alteration of the parties’ legal relationship (rejecting purely “catalyst” theories).
• Petteway v. Henry: Cited for the Fifth Circuit’s three-part formulation “building on Buckhannon”: (1) judicially sanctioned relief, (2) material alteration of the legal relationship, and (3) defendant behavior modification directly benefitting plaintiff at the time relief is entered.
• Lackey v. Stinnie: Held that obtaining a preliminary injunction did not make the challengers prevailing parties where the state repealed the law without court-ordered merits resolution. The panel finds Lackey distinguishable because plaintiffs here had a declaratory judgment and the City repealed in direct response to that order—yet that distinction ultimately does not save the fee award once Pool II eliminates jurisdiction entirely.

C. Rule 60(b)(5) and vacatur of fee awards after merits reversal

• Flowers v. S. Reg'l Physician Servs., Inc.: The central Fifth Circuit authority applied here. It recognizes Rule 60(b)(5) relief where “a prior judgment upon which [the fee award] is based has been reversed or otherwise vacated,” and affirms vacatur of fees when the merits predicate is undone.
• Roberts v. Wal-Mart La., L.L.C.: Cited for the abuse-of-discretion standard on Rule 60(b) rulings.
• Koenning v. Suehs: District-court application (citing Flowers) vacating a fee award after the underlying judgment was vacated by the Fifth Circuit—supporting the remedial mechanism used here.
• Ca. Med. Assoc. v. Shalala and Maul v. Constan (also Mother Goose Nursery Sch., Inc. v. Sendak): Sister-circuit support for the proposition that a party need not file a separate appeal from a fee award when the only challenge is that the underlying merits judgment was reversed; Rule 60(b)(5) can remove the “underpinnings” of the fee award.

D. Mandate rule, law of the case, and procedural choices after Pool II

• Deutsche Bank Nat'l Tr. Co. v. Burke and Gen. Universal Sys., Inc. v. HAL, Inc. (also United States v. Matthews): Cited to define the mandate rule—on remand, the district court must implement the letter and spirit of the appellate mandate.
• USPPS, Ltd. v. Avery Dennison Corp. (quoting Todd Shipyards Corp. v. Auto Transp., S.A.; also citing Morrow v. Dillard and Free v. Abbott Labs., Inc.): Cited for the law-of-the-case doctrine and its scope (“necessary implication” included).
• Frew v. Young (Frew VIII): Plaintiffs invoked this “collateral order” discussion to argue the City had to appeal fees. The panel rejects that reading, distinguishing the context (interim fees in consent-decree enforcement) and reiterating Flowers controls where the merits foundation is vacated.
• Lowry Dev., L.L.C. v. Groves & Assocs. Ins., Inc. (citing Werner v. Carbo) and Shipes v. Trinity Indus., Inc.: Used to reject plaintiffs’ “severe prejudice” argument; some prejudice and uncertainty is inherent when a fee award rests on merits rulings still subject to appellate review.

3.2 Legal Reasoning

A. The controlling move: treating Pool II as eliminating jurisdiction ab initio

The opinion’s logic is anchored to the consequences of a jurisdictional vacatur. Pool II vacated the district court’s final judgment and ordered dismissal without prejudice because there was allegedly no Article III adversity “from the beginning.” This panel treats that mandate as dispositive: if the federal courts lacked jurisdiction from the outset, then the district court’s earlier merits relief (the TRO and declaratory judgment) was issued without jurisdictional authority.

From that premise, the fee award collapses. The district court had found plaintiffs were prevailing parties because they had obtained “judicially sanctioned relief” (TRO plus declaratory judgment) and because the City later adopted Ordinance No. 2022-455 “in direct response to” the declaratory judgment. But if the merits relief is vacated for want of jurisdiction, then the “judicially sanctioned” predicate disappears.

B. Rule 60(b)(5) as the procedural vehicle for undoing fees and ordering repayment

Rule 60(b)(5) authorizes relief when “a prior judgment upon which [the challenged judgment] is based has been reversed or otherwise vacated.” The panel applies Flowers v. S. Reg'l Physician Servs., Inc. to hold that, once the merits basis for fees is vacated, it is “perfectly designed” for Rule 60(b)(5) to unwind the fee award—even when the defendant did not directly appeal the fee order.

Importantly, the panel frames the district court’s action as faithful to the mandate rule: vacating fees is not “doing something else,” but implementing the implications (“the spirit”) of Pool II’s jurisdictional dismissal.

C. Why Lackey v. Stinnie does not decide the case—and why that ultimately doesn’t matter

The court agrees with plaintiffs that Lackey v. Stinnie is distinguishable on its own terms: Lackey involved only a preliminary injunction and a legislative repeal without court-ordered merits relief, while here plaintiffs obtained a declaratory judgment and the City repealed in direct response to it.

Yet the dispositive point is not whether plaintiffs once satisfied the Buckhannon/Petteway prevailing-party factors; it is that Pool II later erased the jurisdictional foundation for the very orders that supplied “judicially sanctioned relief.” Thus, even if Lackey would not have barred fees had the merits judgment remained intact, Rule 60(b)(5) relief remains appropriate after the jurisdictional vacatur.

D. The court’s refusal to reconcile Pool I and Pool II in this posture

Plaintiffs argued that reading Pool II as repudiating Pool I would implicate law-of-the-case and the Fifth Circuit’s rule of orderliness. The panel acknowledges the argument has “some merit” but holds it cannot rescue plaintiffs here because they did not seek rehearing after Pool II (invoking Federal Rule of Appellate Procedure 40). In essence, the panel treats plaintiffs’ failure to pursue available intra-court correction mechanisms as foreclosing a later attempt—via appeal of a Rule 60(b)(5) order—to “clear up an inconsistency.”

3.3 Impact

A. Fee awards are vulnerable when the merits predicate is later vacated for lack of jurisdiction

The decision reinforces (and extends in application) a practical rule: § 1988 fee awards that rest on merits relief can be unwound under Rule 60(b)(5) if the underlying merits judgment is later vacated—here, even more starkly, because the vacatur is jurisdictional and framed as eliminating federal power “from the beginning.” For civil-rights litigants, it underscores that fee recovery is not secure until jurisdiction and merits rulings survive appellate review.

B. No separate appeal from the fee award is required to later seek Rule 60(b)(5) relief

Echoing Flowers v. S. Reg'l Physician Servs., Inc., the court rejects the argument that a defendant must have appealed the fee award itself. Where the challenge is derivative (the merits predicate disappeared), Rule 60(b)(5) may provide the corrective mechanism.

C. Strong incentive to petition for rehearing when an appellate mandate creates tension with prior circuit precedent

The opinion signals an institutional preference: perceived conflicts between panel decisions should be addressed promptly through rehearing petitions, not indirectly through later collateral appeals. Practically, litigants who believe a panel opinion disrupts law-of-the-case or rule-of-orderliness principles face heightened risk if they “do nothing and wait for the mandate.”

D. Government defendants and “no adversity” defenses

Although the merits constitutionality question is not decided here, the case’s posture highlights a litigation hazard in “zombie law” challenges: if a court accepts that the government has fully disavowed enforcement and agrees on unconstitutionality, a later jurisdictional dismissal can retroactively undo merits relief and fees. Future plaintiffs may respond by building clearer records of adversity (e.g., enforcement posture, formal policy statements, binding commitments) to avoid a post hoc “faux dispute” characterization.

4. Complex Concepts Simplified

• “Article III case or controversy” / adversity: Federal courts can only decide real disputes between adverse parties. If a court concludes both sides truly agree and no one will enforce the challenged law, it may find no jurisdiction.
• “Zombie” laws: Laws that remain on the books but are effectively unenforceable (or conceded unconstitutional). They can still chill conduct, which is why plaintiffs often seek injunctions or declarations.
• “Prevailing party” (42 U.S.C. § 1988(b)): A party eligible for attorney’s fees in many civil-rights suits, typically by obtaining court-ordered relief that materially changes the parties’ legal relationship.
• Rule 60(b)(5): A rule allowing a court to relieve a party from a judgment when the earlier judgment it depended on has been reversed or vacated. Here: fees depended on merits relief; merits relief was vacated; fees can be vacated.
• Mandate rule: After an appellate court sends a case back, the district court must follow the appellate court’s instructions and the necessary implications of those instructions.
• Law of the case: Issues decided earlier in the same case generally should not be relitigated later in that case—unless properly revisited through established procedures.

5. Conclusion

Pool v. City of Houston (Jan. 2, 2026) holds that when a prior appellate mandate vacates the merits judgment for lack of Article III jurisdiction “from the beginning,” a district court acts within its discretion under Rule 60(b)(5) to vacate a previously paid § 1988 attorney’s fee award that was predicated on now-vacated merits relief—and the defendant’s failure to appeal the fee order itself does not bar that relief. The decision also underscores a procedural takeaway: parties who perceive intra-circuit inconsistency created by a panel opinion must promptly seek rehearing rather than attempting to repair the conflict indirectly in later proceedings.