author: GREGG COSTA, Circuit Judge:

text:
    Derrick DILLARD, Plaintiff-Appellant v. CITY OF AUSTIN, TEXAS, Defendant-Appellee
    No. 15-50779
    United States Court of Appeals, Fifth Circuit.
    September 16, 2016

      Kell Asher Simon, Law Offices of Kell A. Simon, Austin, TX, for Plaintiff-Appellant.
    Megan Mosby, Andralee Cain Lloyd, Austin, TX, for Defendant-Appellee.
    Before SOUTHWICK and COSTA, Circuit Judges, and OZERDEN , District Judge.

       District Judge of the Southern District of Mississippi, sitting by designation

   GREGG COSTA, Circuit Judge:

Derrick Dillard appeals the grant of summary judgment disposing of his disability discrimination claims against his former employer, the City of Austin. After a car accident left Dillard with lingering injuries that prevented him from performing his former tasks as a manual laborer and field supervisor, the City offered, and Dillard accepted, a new job as an administrative assistant. As a result of performance and behavior in the administrative position, the City eventually terminated Dillard. The questions on appeal are whether the new position was a reasonable accommodation and whether the City discriminated against Dillard when it terminated him. We conclude that summary judgment in favor, of the City was proper.

I

Dillard worked as a Street and Drainage Maintenance Senior for the City. This, was a blended position that included coordinating a work crew, operating machinery, and performing manual labor such as constructing guard rails. In March 2011, Dillard injured his back and shoulder in an on-the-job car accident. His injuries rendered him unable to perform his previous position and initially made him unable to work in any job. In late April 2011, the City gave him time off in accord with the Family Medical Leave Act (FMLA).

When his FMLA leave expired in July 2011, the City placed Dillard in its Return to Work Program, which helps injured employees find limited duty work or placement in an alternate position for which the employee meets minimum qualifications and can perform the job’s essential functions. Typically, the program provides a maximum 180 days of assistance in a year; 90 days in which his department tries to find an internal position, and 90 days in the “Citywide Alternaté Placement Process,” during which time the employee is considered for reassignment in other departments. Dillard exited the Return to Work Program in January 2012. The City was unable to place Dillard, as he remained on “no duty” status during the entire period he was enrolled in the program. Although Dillard exhausted both FMLA leave and his time limit in the Return to Work Program, the City allowed him to remaim on leave.

After exiting the Return to Work Program, Dillard was referred back to his original department, Public Works. Between late January and late April 2012, Dillard was released by his doctors to perform “limited duty” or “administrative duty” work. The City looked for positions within Public Works that Dillard could perform given the limitations imposed by his doctors. It offered Dillard a temporary position as an administrative assistant. Dillard testified that he was “stunned a little bit, because [he] didn’t know how to do no administrative work.” Despite expressing reservations about whether he could do the job, he accepted it. Dillard worked in this position from May through October 2012.

Dillard did not meet the listed minimum qualification for an administrative assistant position with the City, as he did not have the minimum three years clerical or secretarial experience. In light of his lack of experience, Dillard was given on-the-job typing and computer training, and shadowed another administrative assistant. Dillard’s supervisor, Valerie Dickens, testified that she repeatedly told Dillard to complete more training, and showed him how to sign up for the City’s training programs, but he did not do so. His computer and typing skills did not improve. Instead of working or training, he was found playing computer games and surfing the internet, sleeping, making personal calls, and applying for other positions within the City, Dickens also testified that Dillard repeatedly missed work without proper notice, came late and left early, and lied about his time. The City produced evidence that Dillard attended work only 74% of the time over a 21-week period. As a result of his performance and behavior issues, Dickens gave Dillard an “unsatisfactory” year-end evaluation in September 2012. Dillard does not dispute these assertions about his performance.

Dillabd did testify, however, that he was given almost no work to do, and that he could not finish the one assignment he was given 'in a timely manner because of his lack of typing skills. Dillard told Dickens that he was unhappy in the position and asked human resources to' give him a different position. Dickens also asked that he be removed because he did not have needed skills and was “demonstrating no initiative, no desire to learn,” but she was told to keep trying and to document his deficiencies. Dillard also notes that during the time he was working in the administrative position,' his doctors provided further releases and a functionality analysis — all of which expanded the list of activities he was cleared to perform, including some lifting and other physical activity.

Following his unsatisfactory review, Dillard was given a pretermination meeting. The Public Works Department Director noted that during this meeting, “Dillard was unapologetic for his inappropriate behavior and admitted that Dickens’ comments about his performance were accurate.” He reported that the City nonetheless looked for other options and accommodations after the meeting, but was unable to find one. The City fired Dillard on October 26, 2012. His termination letter notes:

Though you were provided with both on-the-job and computer training during the temporary assignment as an Administrative Assistant, you were unsuccessful performing the duties in the administrative role.., As you are currently at “no duty status” and are unable, to return to your position as a Street & Drainage Maintenance Senior, and the placement opportunity was unsuccessful, the Department has made the difficult decision to separate you from employment with the City of Austin....

Dillard brought suit in federal court claiming denial of reasonable accommodation and discrimination based on disability in violation of the Americans with Disabilities Act (ADA) and the Texas Commission on Human Rights Act. The City moved for summary judgment, which the court granted on both claims.

II

We review a summary judgment ruling de novo. Davis v. Fort Bend Cty., 765 F.3d 480, 484 (5th Cir. 2014). We interpret all facts and draw all reasonable inferences in favor of the nonmovant. Ion v. Chevron USA, Inc., 731 F.3d 379, 389 (5th Cir. 2013). Summary judgment is appropriate only when the record reveals “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

As Texas courts interpret their state’s disability legislation so as to mirror the federal statute, our analysis of Dillard’s ADA claims will determine the disposition of his state claims as well. See Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468, 473-74 (5th Cir. 2006) (citing NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999)).

Dillard alleges both that he was discharged because of his disability and that the City failed to take reasonable measures to accommodate him. The parties do not contest two of the elements these claims require: whether Dillard was disabled within the meaning of the Act or whether the City was aware of his disability and need for accommodation. See Feist v. La., Dep’t of Justice, Office of the Att’y. Gen., 730 F.3d 450, 452 (5th Cir. 2013) (reviewing these other elements).

A

We address first Dillard’s claim that the City terminated him based on his disability. The City maintains that it fired Dillard because of his record of misconduct and failure to perform' his duties while working as an administrative assistant. The evidence consistently supports the City’s assertions that Dillard was frequently absent or late, that he lied about his attendance, and that he used work time to play games or tend to personal business. In addition to this evidence of misconduct, it is uncontroverted that Dillard' failed to take advantage of training opportunities available to him, failed to perform the duties of his assigned position, and in the words of his supervisor, he “demons-trat[ed] np initiative, no desire to learn” in his new role.

As with other federal statutes proscribing workplace discrimination, the ADA places the initial burden on a plaintiff trying to prove a violation through circumstantial evidence to offer evidence that his termination was motivated by an unlawful factor. EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014). Once the defendant articulates' a nondiscriminatory reason for its decision, as the City has done here, the onus returns to the plaintiff, who must then bear the ultimate burden of proving that his dismissal was motivated by his disability. Id. at 702. Significantly, Dillard offered no evidence that the City’s reliance on his history of misconduct and poor performance was pretextual or blended with discriminatory motives. See id. (approving either form of proof). As such, the district court correctly held that Dillard failed to raise an issue of material fact as to whether the City terminated him because of his disability. See id. at 701-02 (“Terminating an employee whose performance is unsatisfactory according to management’s business judgment is legitimate and nondiscriminatory as a matter of law.”).

B.

Apart from any claim that an adverse employment action was motivated by the employee’s disability, an employer’s failure to reasonably accommodate a disabled employee may constitute a distinct violation of the Act. Id. at 703 n.6. This comes from the ADA’s definition of discrimination, which includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee....” 42 U.S.C. § 12112(b)(5)(A).

When it entered summary judgment on this reasonable accommodation claim, the trial court reasoned that the City could have fired Dillard once he exhausted his leave under federal law and city policy in January of 2012 — a time when he had not been medically cleared for work of any kind. See Reed v. Petroleum Helicopters, Inc., 218 F.3d 477, 481 (5th Cir. 2000) (holding that an employer need not accommodate with indefinite leave an employee who is unable to return to work in any role). The district court concluded that the City’s obligation to reasonably accommodate Dillard ceased at that time.

We disagree. Regardless of whether it could have discharged Dillard when his leave ran out, the City chose not to do so. Rather, it kept him on staff until it learned he was approved by his doctor for “limited duty” and placed him in the administrative assistant position. Because it continued to employ him, the City was obligated under the ADA to reasonably accommodate him once he was capable of returning to work. This follows from the principle that an employer’s obligation to accommodate is triggered when an employee requests an accommodation. See Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 165 (5th Cir. 1996). Nothing in the Act extinguishes that obligation merely because an employer had a basis for getting rid of the employee in the past.

What does the obligation to accommodate entail? Consistent with the interpretive guidance of the EEOC, 29 C.F.R. pt. 1630, app. § 1630.9, we have held that ADA compliance requires an employer to engage in an interactive process with an employee who requests an accommodation for her disability to ascertain what changes could allow her to continue working. LHC Grp., 773 F.3d at 700. In other words, employer and employee must work together in good faith, back and forth, to find a reasonable accommodation. EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 621-22 (5th Cir. 2009). This should be an ongoing, reciprocal process, not one that ends with “the first attempt at accommodation,” but one that “continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed.” Humphrey v. Memorial Hosps. Ass’n, 239 F.3d 1128, 1138 (9th Cir. 2001).

Dillard argues that the City failed to participate in the interactive process after it became clear he was not succeeding in the administrative position. Notably, he does not contend that his initial placement in that position was itself a failure to reasonably accommodate. He thus directs our attention to the record evidence showing that the City soon saw that the job was a poor fit for him as he lacked the skills and qualifications to do the work he was given. He also relies on evidence that his doctor steadily reported his improved condition and restored capacities during the months he worked as an assistant. In light of his improving condition, Dillard contends that the City should have considered him for alternative placements (identifying several vacancies he asserts he could have filled as his mobility improved) and that the City’s failure to do so violated its duty to work with him in good faith to find a reasonable accommodation.

Dillard’s position neglects that the interactive process is a two-way street; it requires that employer and employee work together, in good faith, to ascertain a reasonable accommodation. Chevron, 570 F.3d at 621-22. The City offered Dillard the administrative assistant position, and while he doubted his ability to do it, he accepted it. At this point, the ball was in his court: it was up to him to make an honest effort to learn and carry out the duties of his new job with the help of the training the City offered him. The same uncontroverted evidence of misconduct and poor performance that doomed Dillard’s discriminatory termination claim is thus also decisive for his reasonable accommodation claim. We stress the evidence of misconduct (making personal calls, nonattendance, napping, lying, playing games) because even an employee unable to perform office tasks needs no special skill to avoid misusing company time, dishonesty, falling asleep, or absenteeism. As he did not attempt to fill his new role in good faith, Dillard cannot rely on the fact that he did not. successfully adjust to that role to show that the City should have continued the interactive process by offering him a further alternative placement. See Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999) (“[A]n employer cannot be found to have violated the ADA when responsibility for the breakdown of the ‘informal, interactive process’ is traceable to the employee and not the employer.”).

We are mindful that an employer might elude its obligation to accommodate a disabled employee by giving him a job that he was destined to botch with or without training. Cf. id. at 737 n.6 (describing how an employer might leave an employee needing accommodations in his current position, enumerate his deficiencies, and use its list as a basis for terminating him). Such predictable failure could be traceable to the worker’s want of skills or the demoralizing effects of failure and appearing inept.

This case, however, does not present such a scenario. The City offered to make Dillard an assistant and he accepted. Dillard does not contend that the initial job assignment was an unreasonable accommodation. And once Dillard started the new position, the City provided training to help him gain necessary skills and gave him the opportunity of shadowing an experienced assistant. We thus do not see a basis for concluding that the City failed to engage in good faith by not finding him a new position after he had shown no desire to try and succeed in the first position. See EEOC. v. Agro Distribution, LLC, 555 F.3d 462, 471 (5th Cir. 2009) (“The ADA provides a right to reasonable accommodation, not to the employee’s preferred accommodation.”)- Given the undisputed evidence that Dillard did not make an honest attempt to succeed in the new position, he cannot make out a claim placing blame for the breakdown in the accommodation process on the City-.

The judgment is AFFIRMED.

      . Dillard asserts that the City’s search was inappropriately restricted to the Public Works Department and that he should have been considered for vacancies across all departments once it became clear that he was not performing well as an administrative assistant, The Director’s testimony does not specify the scope of the Cily’s search, but, in its brief, the City acknowledged that it looked only within Public Works. We need express no opinion on whether this restriction was consistent with the City’s obligation to accommodate Dillard. Our analysis locates the breakdown of the interactive process at the point when Dillard failed to make a good faith effort in the administrative position — a stage prior to when the City purportedly should have continued the interactive process by considering him for other jobs.

      . This of course does not decide the outcome of this appeal since we may affirm a summary judgment on any ground supported by the record and advanced below, regardless of whether the district court relied upon it. Ballard v. Devon Energy Prod. Co., 678 F.3d 360, 365 (5th Cir. 2012).


source: Caselaw Access Project

license: Public Domain

text:
    David GRISHAM, Plaintiff-Appellant v. CITY OF FORT WORTH, TEXAS; Jeffrey Halstead, in his official capacity as Chief of Police for the Fort Worth Police Department, Defendants-Appellees
    No. 15-10960
    United States Court of Appeals, Fifth Circuit
    FILED September 19, 2016

      Nathan W. Kellum, Center for Religious Expression, Memphis, TN, James A. Pikl, Trial Attorney, Scheef & Stone, L.L.P., Frisco, TX, for Plaintiff-Appellant.
    Laetitia Coleman Brown, Attorney, City Attorney’s Office for the City of Fort Worth, Fort Worth, TX, for Defendants-Appellees.
    Before SMITH, BARKSDALE, and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

David Grisham sued the City of Fort Worth alleging a denial of his First Amendment right to hand out religious literature at a public festival. Grisham and the City entered into a consent decree in which the City agreed to pay him a dollar in nominal damages. Among other provisions, that decree also prohibits the City from interfering with the free speech rights of Grisham or other individuals at future public events in downtown Fort Worth.

Left unresolved was the question of attorney’s fees. So Grisham filed an opposed motion for fees, which the district - court denied. It did so based on its belief that other than the award of nominal damages, nothing in the consent order changed the legal relationship between the parties (the court alternatively denied fees on the ground that the request was unreasonable). ■ ■

Because a plaintiff is a prevailing party when nominal damages are awarded, and this case does not present the special circumstances in which a prevailing civil rights plaintiff may be denied fees altogether, we vacate the order denying fees and remand for an assessment of the reasonableness of the fee request.

I;

Grisham is an evangelical Christian who distributes .religious -literature, typically Gospel tracts, at public events. One such event was- the 2014 Tarrant County Gay Pride Week Association Festival. This free and public festival took place in General Worth Square in downtown Fort Worth pursuant to a permit.

Grisham’s wife and daughter, who often work with him, entered the part of the square where the festival was taking place and passed out Gospel tracts. Grisham was doing the same in a separate part of the square away from the festival. According to the complaint Grisham later filed in federal court, officers with the Fort Worth Police Department told his wife and daughter, under threat of arrest, that they must leave the park and physically escorted them to the sidewalk across the street. Once they had crossed the street, another officer approached them and reiterated that they were not to cross the street to reenter the festival. Grisham noticed the officer talking to his family and intervened.

Grisham alleges that the following discussions ensued. He told the officer that he and his family were allowed to share their views on public property during a public event, and that while they would agree not to enter the festival, they wanted to pass out literature on the sidewalk adjacent to it. The officer maintained that the family must stay across the street, insisting that this restriction was for the safety of the Grisham family and because festival organizers had a permit that allowed them to close off the area. After further discussion, the officer brought over a festival organizer who told Grisham that he had a permit for the event and Grisham was not welcome. The officer then issued Grisham a trespass warning, telling him that if he crossed the street and reentered the square or adjoining sidewalk, he would be arrested. Fearing arrest, Grisham followed the command.

Grisham filed this lawsuit against the City of Fort Worth, its police chief, and the officer who instructed him not to return to the festival. The complaint alleges free speech and due process violations. It seeks nominal damages, a declaration recognizing that the City and officer violated Grisham's constitutional rights, an injunction prohibiting the City and its police department from violating these rights— both his and others’ in the community — in the future, and reasonable costs and attorney’s fees. The court dismissed the claims against the individual officer based on qualified immunity.

The City and police chief reached a settlement with. Grisham, and the court issued a consent order and final judgment accepting their agreement. The consent decree states in relevant part:

1. The City must allow the constitutionally-protected expression of David Grisham and other speakers on public sidewalks and streets, in downtown Fort Worth, Texas during an event that is free and open to the public within the limits of federal, state, and local law. Defendant City agrees to notify permittees of an outdoor event on public property that speakers will be allowed to exercise constitutionally-protected expression at any event that is free and open to the public.
2. Defendants will not enforce a policy or act in any other manner that would unlawfully ban or interfere with constitutionally-protected expression of David Grisham or other third-party speakers on public sidewalks and streets in downtown Fort Worth, Texas during public events.
3. Nothing in this consent order and final judgment prevents the City from enforcing reasonable, time, place and manner restrictions as allowed by law.
4. Defendants shall pay Plaintiff the amount of $1.00 as nominal damages.
5. Plaintiff shall file application for attorney’s fees under 42 U.S.C. § 1988 within 14 days after entry of this Order and Final Judgment.

That brings us to ■ the subject of this appeal: attorney’s fees. Grisham filed the fee request contemplated by the consent decree, requesting $79,074.36 in attorney’s fees and non-taxable expenses along with verified time sheets and affidavits addressing the reasonableness of hours billed. The City opposed' the motion, arguing that Grisham was not a prevailing party. The district court denied all fees and expenses, reasoning that although “plaintiff gained a technical victory by receiving a recovery of $1.00 as nominal damages, with the consequence that he is to be viewed as a ‘prevailing party’ under § 1988, the court has concluded that a proper exercise of its § 1988 discretion would be to deny plaintiffs motion.” The district court alternatively ruled that it could deny fees based on “the unreasonableness of the request,” as some of the time billed appeared excessive for the work performed.

II.

The district court thus found two reasons not to award Grisham any attorney’s fees even though the consent decree ordered him to file a fee application. We review that denial for abuse of discretion, but “the discretion afforded district courts to deny attorney’s fees, to prevailing plaintiffs under §■ 1988 is exceedingly narrow.” Sanchez v. City of Austin, 774 F.3d 873, 878 (5th Cir. 2014) (quoting Cruz v. Hauck, 762 F.2d 1230, 1233 (5th Cir. 1985)). A district court abuses this discretion if it applies an “erroneous interpretation of [ ] special circumstances” to justify denial of fees to an otherwise prevailing party. Id. (quoting Pruett v. Harris Cty. Bail Bond Bd., 499 F.3d 403, 417 (5th Cir. 2007)). Factual determinations underlying the denial of fees are reviewed for clear error; legal conclusions, including whether a party is “prevailing” under section 1988, are reviewed de novo. Id.

The “touchstone” of the prevailing party analysis is whether there has been “a material alteration of the legal relationship” between the parties. Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). A “material alteration” results when there is a “judgment for damages in any amount, whether compensatory or nominal,” because even a nominal award “forc[es] the defendant to pay an amount he otherwise would not pay.” Farrar v. Hobby, 506 U.S. 103, 113, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). Such a change in the parties’ relationship can be effectuated through an enforceable judgment or, as in this case, a consent decree or settlement. Id.; see also Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). The district court thus correctly recognized that Grisham is a prevailing party because he obtained an award of nominal damages in the consent decree. Farrar, 506 U.S. at 112, 113 S.Ct. 566. (“[A] plaintiff who wins nominal damages is a prevailing party under § 1988.”).

Despite recognizing Grisham’s status as a prevailing party, the district court continued to apply the “material alteration of the legal relationship” standard in determining that no fees should be awarded. It found that the “technical $1.00 nominal damage award constituted such an insignificant change in the relationship between plaintiff and defendant that this court is unwilling to exercise its discretion to award attorney’s fees.” This was error. As we recently explained, a “prevailing plaintiffs degree of success is not a special circumstance that justifies a complete denial of § 1988 fees.” Sanchez, 774 F.3d at 881; see also Pruett, 499 F.3d at 418 (explaining that the “standard for partial success [is] a different standard than the ‘special circumstances’ that occasionally allow a defendant to avoid attorneys’ fees altogether”). Instead, the degree of success (or in the terms used by the district court, the significance of the change in the parties’ relationship) is a factor — often an- important one — to consider in assessing the reasonableness of the fee request. Sanchez, 774 F.3d at 881 (citing Tex. State Teachers Ass’n, 489 U.S. at 793, 109 S.Ct. 1486).

Although degree, of success is not a basis for a full denial of fees, certain “special circumstances” may support denying fees altogether. Id. at 880. Because the district court focused its assessment on the significance of the relief obtained, it did not explore cases in which these circumstances have been found. They are few and far between. Id. (describing the “special circumstances” exception as a “narrow carve-out” of the general rule that prevailing civil rights plaintiffs should be awarded fees). “Because Congress believed that the incentive of attorney’s fees was critical to the enforcement óf the civil rights laws, section 1988 requires an extremely strong showing of special circumstances to justify a denial of fees.” Kirchberg v. Feenstra, 708 F.2d 991, 998 (5th Cir. 1983).

We recognized the'rarity of such circumstances long ago in Riddell v. National Democratic Party, 624 F.2d 539, 543-44 (5th Cir. 1980), which identified two types of cases in which full denial of fees have been upheld: (1) “situations in which the plaintiff filed under section 1983 to recover what was essentially a tort claim for private monetary damages,” which “did not require injunctive relief or confer significant civil rights to the public” and (2) cases in which “even though the plaintiffs received the benefits desired from their litigation, their efforts did not .contribute to achieving those results.” We have since rejected a host of other asserted special circumstances, including: a defendant’s good faith in enacting overturned laws or policies, Espino v. Besteiro, 708 F.2d 1002, 1005 (5th Cir. 1983); a defendant’s decision not to appeal a permanent injunction, Ellwest Stereo Theatre, Inc. v. Jackson, 653 F.2d 954, 955-56 (5th Cir. 1981); a plaintiffs ability to pay its own costs, id.', and the district court’s view that a prior award of fees was sufficient or that a supplemental request included some clerical work, Cruz, 762 F.2d at 1234-35.

The most prominent example of a court’s recognizing “special circumstances” that justify depriving a prevailing party of all fees is Farrar. The Supreme Court found a denial-of fees reasonable despite a jury’s award of nominal damages because the suit was primarily for compensatory damages — the plaintiff sought $17 million — and the jury awarded none. Farrar, 506 U.S. at 115,113 S.Ct. 566. It explained that “[w]hen a plaintiff recovers only nomb nal damages because of his failure to prove an essential element of his claim for monetary relief, the only reasonable fee is usually no fee at all.” Id. In that situation, in which substantial fees are expended in pursuit of a remedy that is never achieved, an award of fees amounts to a windfall for the unsuccessful attorneys. Id. at 115-16, 113 S.Ct. 566.

Grisham, however, is not an unsuccessful seeker of compensatory damages. -He obtained the relief he sought: nominal damages in recognition, that his rights were violated and injunctive relief prohibiting the City from violating his rights again. We have repeatedly held that the Farrar circumstance of nominal but no compensatory damages only justifies a complete denial of fees when monetary relief is the primary objective of a lawsuit. See Sanchez, 774 F.3d at 883 (holding that Farrar did not control because the plaintiff only sought nominal damages and declaratory and injunctive relief); Riley v. City of Jackson, Miss., 99 F.3d 757, 760 (5th Cir. 1996) (holding that Farrar did not control because it “is illustrative of cases where the plaintiff sought only money damages and was essentially unsuccessful”); Pembroke v. Wood Cty., Tex., 981 F.2d 225, 231 n.27 (5th Cir. 1993) (distinguishing Farrar because the plaintiffs before it “dismissed their damages claims early on and sought prospective remedies only”)'.

Indeed, Sanchez’s rejection of both the “degree of success” and “limited injury” of the plaintiff as “a special circumstance that justifies a complete denial of § 1988 fees” seems to cohtrol here. 774 F.3d at 881. The Occupy Wall Street protestors in Sanchez did not even obtain nominal damages as Grisham'did; they obtained a declaration that their constitutional rights were violated and an injunction preventing Austin from enforcing its policy concerning criminal trespass notices óñ city property. Id. at 876-77.

That finding of a constitutional violation, entered after a bench trial in Sanchez, is what Fort Worth argues is different here. It emphasizes that the consent decree does not contain an express admission of liability. That is not unusual. See Maher v. Gagne, 448 U.S. 122, 126 n.8, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980) (noting that it is “customary” for consent decrees to not “purport to adjudicate [plaintiffs] statutor ry or constitutional claims” and often to explicitly state that neither party admits fault). Despite the fact that “a consent decree does not always include an admission of liability by the defendant,” the Supreme Court has held it “nonetheless is a court-ordered ‘change in the legal relationship between the plaintiff and the defendant.’” Buckhannon Bd. & Care Home, Inc., 532 U.S. at 604, 121 S.Ct. 1835 (alteration in original) (citation omitted) (quoting Tex. State Teachers Ass’n, 489 U.S. at 792, 109 S.Ct. 1486). What is more, Gris-ham’s consent decree does contain an implicit admission of fault in the form of the nominal damage award to which the City agreed. “Every nominal damage award has as its basis a finding of liability....” Farrar, 506 U.S. at 120, 113 S.Ct. 566 (O’Connor, J., concurring); see also Damages, Black’s Law DictionaRy. (10th ed. 2014) (defining “nominal damages” as a “trifling sum awarded when a legal injury is suffered but there is no substantial loss or injury to be compensated.” (emphasis added)).

Nor do we agree with the view of the district court that the consent decree, in providing that the “City will allow the constitutionally-protected expression by plaintiff and other speakers on public sidewalks and streets in downtown Fort Worth” at public events, does nothing more than require the City to follow established First Amendment law. Requiring defendants to “comply with the law and safeguard [the plaintiffs] constitutional rights in the future” is often the objective of a civil rights suit, as the Supreme Court recently recognized in rejecting the perceived insignificance of that relief as a basis for denying attorney’s fees. Lefemine v. Wideman, — U.S. —, 133 S.Ct. 9, 11, 184 L.Ed.2d 313 (2012). Furthermore, enshrining rights in a consent decree changes the parties’ legal relationship in the following procedural respect: if Gris-ham believes that the City violates his rights in the future, he can pursue a contempt action rather than start from scratch with a new lawsuit. Lastly, the consent decree includes what appears to be a new measure that is directly responsive to Grisham’s allegation that the festival organizer told him he was not allowed to be present at the event. From now on, Fort Worth will notify permitholders that speakers are allowed to exercise their right to free speech at events that are free and open to the public.

Grisham thus is a prevailing party and there are no special circumstances to justify an outright denial of fees.

III.

As we said, however, the degree of success can be considered in determining the amount of a fee award. Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (“If ... a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.”). But Hensley’s degree-of-success factor does not warrant reducing Grisham’s fees. Grisham did not obtain prevailing party status despite “los[ing] on some claims,” Pruett, 499 F.3d at 418, such that the court needs to eliminate the time spent on unsuccessful claims. Hensley, 461 U.S. at 435, 103 S.Ct. 1933. Nor did he seek a large damage award but obtain only a modest one in which case the time spent is likely to be disproportionate to the result obtained. See Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1048 (5th Cir. 1998) (reversing a fee award as unreasonable in light of plaintiffs winning only $12,233.32 in damages despite seeking $325,000). Rather, Grisham received exactly what he asked for: nominal damages and a declaration that binds the City from infringing on his and other citizens’ First Amendment rights going forward. As a result, the degree of success factor does not serve as a basis for reducing Grisham’s fee award.

Although it mistakenly treated it as a basis for denying all fees, the district court identified another factor that can reduce a fee award: an excessive amount of time performing a task. Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974). From a “cursory review of the billing information,” the district court concluded that the time spent by Gris-ham’s counsel was excessive. As examples, it cited counsel’s devoting 34.3 hours to preparation of the complaint and spending 14.6 hours communicating with local counsel.

Given the deference owed the district court in assessing whether the time entries a lawyer submits in support of a fee request are “excessive, duplicative, or inadequately documented,” Jimenez v. Wood Cty., Tex., 621 F.3d 372, 379-80 (5th Cir. 2010), there is no basis to disturb the finding that Grisham’s counsel spent too much time on certain tasks. The proper response to such a finding, however, is to reduce, to a reasonable amount, the number of hours to be compensated for a specific task, Migis, 135 F.3d at 1048, pot to deny all fees. We remand so the district court can perform this task. We also instruct that the fee award include the reasonable costs and attorneys’ fees incurred in successfully prosecuting this appeal. See Sanchez, 774 F.3d at 885.

* * ⅝

The district court’s denial of Grisham’s Motion for Attorney’s Fees and Non-Taxable Expenses- is VACATED and we REMAND for the district court to calculate a reasonable fee award in accordance with this opinion.


author: EDITH BROWN CLEMENT, Circuit Judge:

text:
    Rodrigo Luis DELGADO, Plaintiff-Appellant v. Mariana Cecilia Luis OSUNA, Defendant-Appellee
    No. 15-41312
    United States Court of Appeals, Fifth Circuit.
    September 19, 2016

      Thomas Ray Jackson, Adrian Garcia, Lindsay Anne Hedrick, Jones Day, Dallas, TX, for Plaintiff-Appellant.
    Lara Elizabeth Bracamonte, Hannah Clare Stroud, Philips & Epperson, L.P., McKinney, TX, Jimmy Lynn Verner, Jr., Vemer Brumley McCurley Muellér Parker, P.C., Dallas, TX, for Defendant-Ap-pellee.
    Before WIENER, CLEMENT, and COSTA, Circuit Judges.
   EDITH BROWN CLEMENT, Circuit Judge:

In this Hague Convention case, Petitioner-Appellant Dr. Rodrigo Luis Delgado (“Dr. Delgado”) appeals the district court’s denial of his petition for return of his children. For the following reasons, we AFFIRM.

I.

On May 22, 2015, Dr. Delgado filed a verified petition under the Hague Convention on the Civil Aspects of International Child Abduction (the “Convention”) for return of abducted children, seeking the return of his seven-year-old and four-year-old sons (“J.A.L.O.” and “D.A.L.O.,” respectively, and referred to collectively herein as the “children”) to Venezuela. The district court ordered the Respondent-Ap-pellee, Mariana Cecilia Luis Osuna (“Osu-na”), to show cause why' the children should not be returned to Venezuela and why the relief requested by Dr. Delgado should not be granted. The district court conducted a show cause hearing and bench trial on the merits. The following findings of fact from the proceeding are relevant to this appeal.

Dr. Delgado is a dual citizen of Spain and Venezuela and is the biological father of the children in this case. Osuna is also a citizen of Venezuela and is the biological mother of the children in this case. Dr. Delgado and Osuna married in 2002. Dr. Delgado and Osuna have an apartment in Maracay, Venezuela, where they lived together from 2008 until May 2014. During this time, Dr. Delgado practiced urology, and Osuna was a stay-at-home mother.

J.A.L.O. was born in Maracay, Venezuela on July 17, 2008 and is a dual citizen of Spain and Venezuela. J.A.L.O. ■ lived in Venezuela from his birth until May 2014, when he moved with his mother to Frisco, Texas. He has been enrolled in school in the Frisco Independent School District (“Frisco ISD”) since approximately June 2014.

D.A.L.O. was born in Caracas, Venezuela on September 9, 2011 and is a dual citizen of Spain and Venezuela. He lived in Venezuela from his birth until May 2014, when he moved with his mother to Frisco.

Prior to traveling to the United States in May 2014, Dr. Delgado and Osuna frequently discussed the civil unrest and danger occurring in Venezuela, and they discussed relocating their family to another country. The possible new countries of residence included the United States, Spain, Panama, and Ecuador, among others. The discussions were motivated ■ by fear for their family, especially the children, after the family was robbed in 2013 in a Venezuelan hotel room while they slept. Additionally, Osuna testified that' her family, specifically her uncle and father,-had been involved in a military coup to overthrow the Venezuelan government. As a result, she and other members of her family had been threatened by the government, and she believed that her children had also been threatened. Specifically, Osuna testified that she believed her children were threatened on March 4, 2014, when she was asked to pass a message to her uncle and father to “stop messing with the government.” At. the conclusion of the conversation, the men who threatened her said, “Okay, you have a beautiful blondies [children], then take care.”

The family had previously planned to travel to the United States on May 14, 2014 so that Dr. Delgado could attend the annual Congress of Urology and the children could visit amusement parks. The family obtained six-month tourist visas for the visit. Originally, the family purchased four round-trip tickets arriving in Miami on May 14, 2014 and departing Miami to return to Venezuela on May 26, ’2014. Following the March threat to Osuna, one-way tickets were also purchased (sometime between March and May 2014) for Osuna and both children to travel to Osuna’s sister’s home in Frisco, for an undetermined period of time.

Also after the March 2014 threat, Osuna withdrew J.A.L.O. from school in Venezuela, and with Dr. Delgado’s knowledge and approval, she sent J.A.L.O.’s paperwork to the school in Frisco to prepare for his enrollment upon their arrival. The family packed as many belongings as they could fit inside eight suitcases (two per person), which was the maximum allowed by the airline before it charged a fee. Osuna brought all of her and her children’s important documents, including birth certificates, medical records, school records, and her marriage license. Osuna and Dr. Delgado also went to Osuna’s mother’s house to pick out jewelry to bring to the United States. She recalled telling her husband that they were looking “just like Jews ... trying to run out from Germany. We are taking all the jewels and all the gold that we can collect and put inside to go out from Venezuela.” Dr. Delgado also established a bank account in Frisco prior to the trip and deposited money into it.

On May 14, 2014, the family traveled to Miami, Florida. During this trip, Osuna and Dr. Delgado met with Maritza Ci-fuentes (“Cifuentes”), who assisted Osuna and the children with preparing their applications for political asylum in the United States. During the meeting, Dr. -Delgado learned that in order to practice urology in the United States, he would have to undergo an additional fourteen years of medical school and/or training. Accordingly, Dr. Delgado decided not to pursue asylum in the United States. On May 25, 2014, Osuna and the children flew to Texas. Dr. Delgado returned to Venezuela one day later. He did not return to the United States until the hearing before the district court.

Dr. Delgado testified that he intended for Osuna and the children to return to Venezuela sometime after the expiration of the six-month visas, but he had no specific time frame in mind. Osuna testified that she did not intend to ever return to Venezuela but that she discussed reuniting the family with Dr. Delgado in Spain if he was able to find a job there. Dr. Delgado testified that he was aware of the asylum applications but that he did not consent to or intend for Osuna and the children to live in the United States without him permanently. '

Dr. Delgado testified that the family left behind ninety percent of their personal belongings in Venezuela. They did not sell their apartment and only took the clothing and other items that they could fit in the suitcases allowed by the airline. Dr. Delgado did not attempt to sell his medical practice. He did, however, later sell one of the family’s two cars in Venezuela to pay some outstanding loans and send money to Osuna and the children in the United States.

Throughout the spring and summer of 2014, Osuna and the children resided in Frisco, and J.A.L.O. enrolled in school there. On July 9, 2014, Dr. Delgado signed a power of attorney giving Osuna the authority to make decisions regarding medical, educational, and other care for the children while in the United States. Both parties agreed that the power of attorney did not affect either parties’ custody rights. Yet, the parties’ testimony diverged concerning the reason for executing the power of attorney. Dr. Delgado testified that the power of attorney was intended to give Osuna the authority to make medical, educational, and other care-related decisions for the. children while they were in the United States. Osuna testified that the power of attorney was executed so that she could pursue the asylum applications for the children.

In the fall of 2014, Dr. Delgado packed and sent, through a family member, some winter clothes to Osuna and the children. Osuna testified that even as late as October 2014, Dr. Delgado was aware of .the asylum applications and continued to support her in pursuing asylum. Dr. Delgado provided approximately $500 a month to Osuna and the children until December 2014, when he ceased making these payments. Dr. Delgado testified that he. requested that Osuna and the children return home in September 2014 because the political situation in Venezuela was improving. She refused. Dr. Delgado, testified that his relationship with his wife had deteriorated, and he filed for divorce in January 2015.

⅜ ⅜ ⅝

At the conclusion of the hearing, the district court orally denied Dr. Delgado’s petition. Later, the district court issued a written opinion finding that Dr, Delgado “failed to meet his burden to establish by a preponderance of the evidence that the habitual residence of the children was Venezuela, and, thus, failed to demonstrate that the children were wrongfully removed and/or retained in the United States.” Additionally, the district court held that even if it erred in its determination that Dr. Delgado failed to establish Venezuela as the children’s habitual residence, “this error is harmless as the Court finds the consent exception to return applies here’.” The district court entered judgment dismissing the petition with prejudice. Dr. Delgado appealed.-

II.

“Resolving disputes under the Convention implicates multiple'standards of review.” Larbie v. Larbie, 690 F.3d 295, 306 (5th Cir. 2012). “[T]his court reviews factual findings for clear error and conclusions of law de novo.” Id. “A factual finding survives review so long as it is plausible in the light of the record ás a whole.” Id. (internal quotation marks omitted). A district court’s determination of a child’s “habitual residence” is a mixed question of law and fact subject to de novo review. Id. “The mixed standard of review means that the court accept[s] the district court’s historical or narrative facts unless they are clearly erroneous, but exercis[es] plenary review of the court’s choice of and interpretation of legal precepts and its application of those precepts to the facts.” Berezowsky v. Ojeda, 765 F.3d 456, 465-66 (5th Cir. 2014), cert. denied, — U.S. —, 135 S.Ct. 1531, 191 L.Ed.2d 559 (2015) (internal quotation marks omitted).

III.

Dr. Delgado argues that “the district court ignored Fifth Circuit precedent and applied an erroneous legal standard in its determination of the Children’s habitual residence”, and that the factual “record does not support the district court’s finding that the parties shared an intent to abandon Venezuela as the Children’s habitual residence.”

The Convention has two primary objectives: “(1) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (2) to ensure -that rights- of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.” Larbie, 690 F.3d at 306 (internal quotation marks omitted). A court in a Convention case does not inquire into the underlying custody dispute. See Berezowsky, 765 F.3d at 465. “Rather, our inquiry is limited to determining whether or not the child has been wrongfully removed from their country of ‘habitual residence.-’ ” Id.

A removal or retention is wrongful under the Convention when (1) it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention; and (2) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

Larbie, 690 F.3d at 307 (internal quotation marks omitted). For the petitioner to prevail, he must establish three elements by a preponderance of the evidence: (1) that the respondent removed or retained the child somewhere other than the child’s habitual residence; (2) that the removal or retention violated the petitioner’s rights of custody under the habitual-residence nation’s laws; and (3) that at the time of removal or retention, petitioner was exercising those rights or would have exercised those rights but for the removal or retention. Id. Even if a petitioner establishes the foregoing, a court may still deny a petition if the respondent proves one of several narrow affirmative defenses to wrongful removal or retention. Id. at 308.

A, ■ Challenged Holding as to the Children’s Habitual Residence

Dr. Delgado argues that he satisfies the first element of his wrongful removal claim because Osuna wrongfully removed and retained their children outside of their habitual residence — Venezuela — and moved them to the United States. The Convention does not define “habitual residence.” Larbie, 690 F.3d at 310. “The inquiry into a child’s habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case.” Id (internal quotation marks omitted). This circuit has

adopted an approach that begins with the parents’ shared intent or settled purpose regarding their child’s resi-dence_ This approach does not ignore the child’s experience, but rather gives greater weight to the parents’ subjective intentions relative to the child’s age. For example, parents’ intentions should be dispositive where, as here, the child is so young that he or she cannot possibly decide the issue of residency.

Id. (internal quotation marks and citations omitted). “[T]he threshold test is whether both parents intended for the child to abandon the [habitual residence] left behind.” Id. at 310-11 (internal quotation marks omitted). Absent the parents’ shared intent, “prior habitual residence should be deemed supplanted only where ‘the objective facts point unequivocally’ to this conclusion.” Id. at 311. “Notably, when ‘the child’s initial move from an established habitual residence was clearly intended to be for a specific, limited duration!,] ... most courts will find no change in habitual residence.’ ” Id.

This court reviews a district court’s shared intent determination for clear error. See Berezowsky, 765 F.3d at 466 n.7 (“[W]e join our sister circuits in treating the shared intent determination as a factual finding that is reviewed for clear error.”). Here, the district court found that the parties’ “last shared intent ... regarding their children’s future was that they would leave their habitual residence, Venezuela, and would not return.” The district court recognized that the parties’ shared intent eventually diverged but that after meeting with Cifuentes in the United States, the last shared intent was for Osuna and the children to seek political asylum in the United States and for Dr. Delgado to return to Venezuela to seek employment opportunities elsewhere. If Dr. Delgado was successful in finding employment outside of Venezuela, Osuna and the children would cancel their asylum applications and reunite with Dr. Delgado.

Dr. Delgado argues that he and Osuna did not form a shared intent to abandon Venezuela as the children’s habitual residence. Because the plan was laden with contingencies and did not foreclose a return to Venezuela, Dr. Delgado contends that there was not the requisite shared intent to change the habitual residence of the children. He argues that the district court ignored this court’s rejection of a similar argument in Berezowsky, 765 F.3d at 471.

Dr. Delgado’s arguments fall short. The district court did not clearly err in its shared intent determination. The record demonstrates that Osuna and Dr. Delgado’s last shared intent was to abandon Venezuela permanently as the children’s habitual residence. There was a meeting of their minds to abandon Venezuela as the children’s habitual residence. See Larbie, 690 F.3d at 310-11 (requiring a meeting of the parents’ minds to abandon the children’s habitual residence). Once Osuna and Dr. Delgado formed this shared intent and the children subsequently left Venezuela with their most important documents in tow, Venezuela was abandoned as the children’s habitual residence.

Dr. Delgado’s argument — that the shared intent to abandon a child’s habitual residence requires “making a joint decision to raise the child in the new country” and that the new country must be agreed upon by the parents — is not the law in this circuit. Berezoiosky, 765 F.3d at 471 (emphasis omitted). In Berezowsky, two Mexican nationals were engaged in a bitter custody battle over their child in Mexican and United States courts. Id. at 459. The fighting and procedural wrangling resulted in the child changing hands among the parents many times and moving between Mexico and the United States many times. Id. The child was born in Texas and spent the first two years of his life there with his mother. Id. at 459-60. The father filed a petition under the Convention in Texas to return the child to Mexico, but the Texas court denied his petition and found that it had jurisdiction over his fight for custody. Id. at 460. The father was awarded custody in the Texas state proceeding and thereafter moved the child to Mexico. Id. at 461. While in Mexico, the parents filed or continued actions in seven Mexican courts. Id. The mother regained possession of the child, and the father continued to fight for the child in Mexican and Texas courts. Id. at 461-62. Following an award of sole custody in Texas and a victory in Mexico in which the Mexican authorities gave the child back to the father, the father moved with the child to Texas. Id. at 463-64. Ultimately, the mother filed a petition under the Convention, alleging wrongful removal of the child from Mexico to Texas. Id.

In an attempt to establish Mexico as the child’s habitual residence, the mother argued that both parents decided individually to abandon Texas as the child’s habitual residence and decided individually to establish the child’s new residence in Mexico and that this sufficed for shared parental intent. Id. at 471. She based this argument on the fact that the child’s father had moved the child to Mexico from Texas after winning custody and that she subsequently stayed in Mexico with her son for thirteen months after getting the child back. Id. This court rejected the mother’s argument. Id. It stated that “[the mother] does not point to any case law supporting her novel argument that parents can form the shared intent necessary to abandon a prior habitual residence without — at some point in the child’s life — making a joint decision to raise the child in the new country.” Id.

Dr. Delgado relies on this language to support his position that parents must agree on “the new country of residence,” and not on an unspecified country to be determined. at a later time in order to abandon a child’s habitual residence. But the argument rejected in Berezowsky is highly distinguishable from the situation here. Berezowsky involved a bitter custody dispute where the child was moved back and forth between the United States and Mexico largely because the parents sought more favorable forums for their custody dispute. The parents did not share an intent concerning the location of their child’s habitual residence, and this court rejected the mother’s argument that a shared intent could be established by the parents individually. Here, in contrast, the parents held a shared intent for their children to abandon Venezuela. Thus, Dr. Delgado’s reliance on Berezowsky is misplaced. Simply because the Berezoivsky court used the term “the new country” as opposed to “a new country” does not inform our analysis here for an entirely different argument.

The district court applied the correct legal standard in determining the children’s habitual residence, and its shared intent determination was not clearly erroneous.

B. Challenged Factual Findings

Dr. Delgado challenges a number of the district court’s factual' findings that underpin its decision to deny his petition. Specifically, Dr. Delgado challenges the findings: that “[u]pon arrival in the United States, [Dr. Delgado] and [Osuna] would seek political asylum for themselves and the children, while residing in the United States with the children”; that there was no evidence that the family expected the trip to be of limited duration; and that the family intended- to abandon Venezuela with no intent to return. Dr. Delgado contends that these factual findings are “wholly unsupported by the record.”

Dr. Delgado faces a difficult task trying to show that any of the district court’s factual findings were clearly erroneous. See Larbie, 690 F.3d at 306 (“A factual finding survives review so long as it is plausible in the light of the record as a whole.” (internal quotation marks omitted)). In challenging the finding concerning seeking political asylum, Dr. Delgado argues that no evidence supports him ever intending to apply for asylum in the United States. We disagree. There is at least some evidence that supports this finding, namely that he attended the meeting with Cifuentes where he learned that he would be unable to practice medicine in the United States without multiple years of additional schooling and training. Regardless, Dr. Delgado’s intentions concerning his seeking political asylum are largely irrelevant for purposes of his petition. The important finding is that Dr. Delgado and Osuna agreed that she would seek political asylum for the children because this finding establishes the conclusion that Osuna and Dr. Delgado intended to abandon Venezuela as the children’s habitual residence. The record supports this finding. Thus, the relevant finding by the district court is not clearly erroneous.

Dr. Delgado’s challenge to the district court’s finding that there was no evidence that the family expécted the trip to the United States to be of limited duration has merit. This finding is not plausible in light of the record as a whole because there is at least some evidence that the trip to the United States was expected to be of limited duration. Osuna testified that she emailed Dr, Delgado expressing her plan to stay in the United States until Dr. Delgado obtained a job in Spain, whereupon she would cancel their asylum applications and move the family to meet him there. The family’s decision to leave ninety percent of their belongings behind in Venezuela and to forgo trying to sell all of their assets before the relocation is additional evidence of the trip to the United States being temporary. Even though the district court clearly erred by making this finding, this error is harmless because, it has no effect on our resolution of this appeal.

Evidence that Dr. Delgado and Osuna planned for Osuna and the children to stay in the United States only until Dr. Delgado secured a job in Spain does not change the fact that Dr. Delgado and Osuna held a shared intent for the children to abandon Venezuela permanently. In other words, the stay in the United States was initially planned to be temporary, but the intention for the children to abandon Venezuela was permanent. Thus, Dr. Delgado’s contention that the district court clearly erred by finding that the family intended to abandon Venezuela as the children’s habitual residence with no intent to return is without merit. This finding is plausible in light of the record.

Osuna traveled to the United States with all of her and her children’s most important documents — birth certificates, medical records, school records, and a marriage license — and she packed portable valuables like jewelry before leaving. She arranged for J.A.L.O. to attend school in Frisco before leaving for the United States. The move was prompted by increasing violence and instability in Venezuela and out of fear for Osuna and the children’s safety. Members of Osuna’s family had already left Venezuela, and Osuna diligently applied for asylum for her and her children so that they would not have to return to Venezuela. Dr. Delgado’s actions demonstrate that he agreed that the children should permanently abandon Venezuela. Even the fact that the family did not sell their most valuable assets — their home, two cars, and Dr. Delgado’s medical practice — does not call into question the finding that the parents held a shared intent to abandon Venezuela permanently as the children’s habitual residence. When placed in context of the family’s most recent shared plan — for Osuna and the children to move to the United States while Dr. Delgado obtained a job in Spain and then for the family to meet him there — it is plausible that the family could have sold these valuable assets after Dr. Delgado obtained employment in Spain. Sadly, Osu-na and Dr. Delgado’s last shared plan did not work out, and the family broke apart. Nevertheless, the district, court’s factual findings that underpin its conclusion that Osuna and Dr. Delgado held a shared intent to abandon Venezuela as the children’s habitual residence are supported by the record.

Dr. Delgado cannot meet his burden to show that the children were wrongfully removed from Venezuela or retained in the United States because Venezuela was abandoned as the children’s habitual residence. Thus, the district court correctly held that Dr. Delgado’s petition failed. Because his petition fails, we need not reach the district court’s alternate holding.

IV.

For the foregoing reasons, we AFFIRM.

      . By agreement, the parties consented to have the matter heard and resolved by the magistrate judge below. Because of this,'we refer to the magistrate judge as the “district court” throughout this opinion.

      . The parties experienced additional acts of violence in Venezuela. Dr. Delgado, one of his sons, and his mother-in-law were robbed at gunpoint in front of the marital home. And a person was assassinated in the lobby of the hospital where Dr. Delgado worked.

      . "As multiple courts have noted, the difficult cases arise when the persons entitled to fix the child’s residence do not agree on where it has been fixed. Much of the existing case law discussing a child’s habitual residence involves situations where the parents were still together at the time of the child's birth, made plans for the child’s future, and only later did the family unit begin to dissolve. In these situations, the court’s task is, usually to tiy to determine when the parents last had a shared plan regarding their child’s future, and what that plan entailed.” Berezowsky, 765 F.3d at 468 (internal quotation marks and citations omitted).

      . We need not decide if and when the children established a new habitual residence in the United States or if the children had no habitual residence for a period of time because those issues are immaterial to the resolution of. this petition.


author: JERRY E. SMITH, Circuit Judge:

text:
    INTEGRITY COLLISION CENTER; Buentello Wrecker Service, Plaintiffs-Appellees, v. CITY OF FULSHEAR, Defendant-Appellant.
    No. 15-20560
    United States Court of Appeals, Fifth Circuit.
    FILED September 20, 2016

      Keval M. Patel, Law Office of Keval Patel, P.C., Sugar Land, TX, Sesha Kala-patapu, Houston, TX, for Plaintiffs-Appel-lees.
    Eric Clayton Farrar, Patricia L. Hayden, Olson & Olson, L.L.P., Houston, TX, for Defendants-Appellants.
    Before KING, SMITH, and COSTA, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

The City of Fulshear, Texas, appeals an order sought by Integrity Collision Center (“Integrity”) and Buentello Wrecker Service (“Buentello”) requiring it to include them on the city’s “non-consent tow list” and to develop neutral criteria for that list. We reverse and render judgment in favor of the city.

I — }

After withdrawing from Fort Bend County’s pfogram in April2012, the city established its own non-consent tow list of private companies it calls upon to tow vehicles that are to be impounded. The police chief included only two companies, Riverside Collision and A&M Automotive, thus excluding Integrity and Buentello, which are towing companies operating in the county. There was no formal process for reaching that decision.

In May 2012, Integrity and, Buentello began requesting information on the requirements for being added to the list, and in January 2014 they received a response detailing the police department’s requirements. To be included, the police chief required towing companies to have outside and secure inside storage facilities within ten miles of the city, a million dollars in insurance coverage, a heavy-duty wrecker, so-called “rollback-capable wreckers,” the ability to handle hazardous materials, a thirty-minute response, time in the city, and background checks on their drivers. Integrity and Buentello claimed to have met all of those criteria except for the ten-mile limit, but the chief refused to include them on the list.

Discovery revealed that the chiefs actual requirements for inclusion were more amorphous. The ten-mile limit was only a generalized proximity requirement, and A&M Automotive was outside that range. The chief believed a more important factor was the ability of the companies on the list to “support each other.” He explained that “the -two wreckers that are satisfying the needs of what I have and what — -what I need out of wrecker companies.” But he also said that he “probably’ would have included a third company if it had met his requirements.

II.

Integrity and Buentello sued the city in state court in July 2014, alleging that its refusal to include them on the non-consent tow list violated the Equal Protection Clause of the Fourteenth Amendment. The city removed to federal court, and Integrity and Buentello amended the complaint to clarify that the claim was brought as a class-of-one claim under 42 U.S.C. § 1983.

The parties filed cross-motions for summary judgment. Integrity and Buentello contended that the city had no rational basis for excluding them despite being similarly situated to companies on the list. The city maintained that the plaintiffs had no legal claim (because creating the list was a discretionary decision that wás not subject to a class-of-one equal protection claim) and that there was a sufficient rational basis.

On August 28, 2015, the district court issued an “Opinion on Summary Judgment,” directing, inter alia, that “[t]he City of Fulshear must include Integrity and Buentello in its towing rotation” and granting summary judgment for them, holding that there was no rational basis for the refusal to include them on the list. Seven days later, the court entered an Initial Order on Remedy,” reading, in its entirely, as follows:

1. By 12:00 p.m, on September 9, 2015, the City of Fulshear must include Integrity Collision Center and Buentello Wrecker Service in the City’s towing rotation.
2. By October 23, 2015, the City of Fulshear'must publish rational, specific, and neutral criteria for other companies’ admission into the towing rotation. The published criteria must be the sole consideration for admission into the towing program — enforced consistently for all applicants.

On September 28, the city filed a notice of appeal “from the Opinion on Summary Judgment entered in this action on August 28, 2015 and the Initial Order on Remedy entered September 4, 2015.”

■ III.

The parties disagree on whether we have appellate jurisdiction. There is no doubt, however, that “we have jurisdiction to determine our 'own jurisdiction.” Brown v. Pac. Life Ins. Co., 462 F.3d 384, 390 (5th Cir. 2006).

In its opening brief,, the city asserts that “[t]his is not an appeal from a final order or judgment [but] is an appeal of a preliminary injunction under 28 U.S.C. § 1292(a),” which gives the courts of appeals “jurisdiction of appeals from: (1) interlocutory orders of the district courts ... granting, .continuing, modifying, refusing or dissolving injunctions,... ” In their brief, Integrity and Buentello “contend that no basis for appellate jurisdiction exists in this appeal,” reasoning that neither the Opinion on Summary Judgment nor the Initial Order on Remedy is a preliminary injunction.

Regarding them claim that nothing issued by the district court is presently appealable, Integrity and Buentello clarified, at oral argument, that they liken the Initial Order on Remedy to a discovery order, which normally would not be immediately appealable. We disagree with that explanation. “A district court ‘grant[s]’ an injunction when an action it takes is ‘directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought in the complaint in more than a temporary fashion.’ ” In re Deepwater Horizon, 793 F.3d 479, 491 (5th Cir. 2015). The district court ordered the city to include Integrity and Buentello on its non-consent tow list and to develop neutral, exclusive, published criteria for that list as the remedy for its judgment of liability against the city. That order is directed at the city, is subject to enforcement by the district court, and provides substantive relief for Integrity and Buentello. It is therefore an injunction, appealable under Section 1292(a)(1), so we have appellate jurisdiction.

IV.

The city questions the ruling that the exclusion of Integrity and Buentello from its non-consent tow list violates the Equal Protection Clause of the Fourteenth Amendment. The city contends that class-of-one equal-protection claims do not apply to the decision to exclude a company from a non-consent tow list and, if they do, the city has provided a sufficient rational basis for the exclusion. We agree.

A class-of-one equal-protection claim lies “where the plaintiff alleges that [it] has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564,120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000). “Typically, a class of one involves a discrete group of people, who do not themselves qualify as a suspect class, alleging the government has singled them out for differential treatment absent a rational basis.” Wood v. Collier, No. 16-20556, 836 F.3d 534, 541, 2016 WL 4750879, at *4, 2016 U.S. App. LEXIS 16693 at *12 (5th Cir. Sept. 12, 2016). Such a theory of recovery includes “forms of state action ... which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments.” Id. (quoting Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 603, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008)).

In Engquist, the Court held that class-of-one equal-protection claims are in-apposite in the context of discretionary public-employment decisions. To that effect, in Chavers v. Morrow, 449 Fed.Appx. 411 (5th Cir. 2011) (per curiam), we summarily affirmed a holding that a class-of-one equal-protection claim “is unavailable in a ‘public employment context.’ ” Chavers v. Morrow, 2010 WL 3447687, at *5, 2010 U.S. Dist. LEXIS 89432, at *13 (S.D. Tex. Aug. 30, 2010) (citing Engquist, 553 U.S. at 594, 128 S.Ct. 2146). That conclusion logically applies as well to a local government’s discretionary decision to include or not include a company on a non-consent tow list, where “allowing equal protection claims on such grounds ‘would be incompatible with the discretion inherent in the challenged action.’ ” Wood, 2016 WL 4750879, at *5, 2016 U.S. App. LEXIS 16693, at *13 (quoting Engquist, 553 U.S. at 604, 128 S.Ct. 2146). Alternatively, Integrity and Buentello’s class-of-one equal-protection claim fails because they have not shown that the city had a discriminatory intent and because the city has a rational basis for excluding them.

A.

Class-of-one equal-protection claims are “an application of [the] principle” that the seemingly arbitrary classification of a group or individual by a governmental unit requires a rational basis. Engquist, 553 U.S. at 602, 128 S.Ct. 2146. Such a potential theory of recovery is available where there is “a clear standard against which departures, even for a single plaintiff, could be readily assessed.” Id.. In Olech, 528 U.S. at 565, 120 S.Ct. 1073, the Court recognized an equal-protection claim where a municipality demanded more than double the easement onto the plaintiffs property, to connect her to the water supply, than for any other property. The physical space required for a water-line connection was measurable and allowed the Court reasonably to evaluate the municipality’s decision to demand the use of more land in that single instance. “There was no indication in Olech that the zoning board was exercising discretionary authority based on subjective, individualized determinations ... however typical such determinations may be as a general zoning matter.” Engquist, 553 U.S. at 602-03, 128 S.Ct. 2146.

Discretionary decisions about whom to hire as an employee or a service provider do not yield the same “clear standard” by which an equal-protection claim can be evaluated. In Engquist, id. at 603, 128 S.Ct. 2146, the Court held that employment decisions

by their nature involve discretionary de-cisionmaking based on a vast array of subjective, individualized assessments. In such cases the rule that people should be “treated alike, under like circumstances and conditions” is not-violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted. In such situations, allowing a challenge based on the arbitrary singling out of a particular person would undermine the very discretion that such state officials are entrusted to exercise.

The same type of “subjective, individualized assessments” go into a city’s decision to purchase services from private companies for its non-consent tows. There are measurable factors, such as proximity, insurance coverage amounts, and types of equipment, to be sure. There are also equally important factors that are not reasonably measurable, such as reputation, personal experience, and the particularities of how the city wishes to operate its non-consent tow program.

The police chiefs considerations as he drew up the non-consent tow list demonstrate this well. As part of the selection process, he considered previous experience working with the chosen companies on non-consent tows. He thought it important that the towing companies be able to “work together” and “support each other” in completing towing assignments. He concluded that two companies were enough to satisfy the city’s non-consent needs. Those considerations are a reasonable part of a purchasing decision, .and the exclusion of some companies is an inevitable result. Municipalities are not compelled by the Equal Protection Clause, as Integrity and Buentello claim, to develop a formal process with constitutionally measurable criteria for determining from whom they will purchase towing services. See Engquist, 553 U.S. at 606, 128 S.Ct. 2146. In this regard, the decision is not different from the process of selecting other outside services, such as a janitorial or pest-control service.

Furthermore, it is impractical for the court to involve itself in reviewing these countless discretionary decisions for équal-protection violations. Engquist, 553 U.S. at 608, 128 S.Ct. 2146. For example, Integrity and Buentello ask us to resolve whether it is plausible that a city has substantially increased the number of police officers but still requires only two companies for non-consent tows. Making such a determination is no more practical than second-guessing the merits of a given individual employment decision or of a de-cision not to use additional janitorial companies despite an increase in the number of city buildings. The quality and number of towing companies the city .requires to conduct non-consent tows is not for us to decide, nor is it something that the Equal Protection Clause informs. As with employment, “[t]he Equal Protection Clause does not require ‘[t]his displacement of managerial discretion by judicial supervision.’ ” Engquist, 553 U.S. at 608-09, 128 S.Ct. 2146 (quoting Garcetti v. Ceballos, 547 U.S. 410, 423, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)).

B.

Even if the Equal Protection Clause were applicable, Integrity and Buentello do not meet the requirements for bringing such a claim. They must show that the city “treat[ed] similarly situated individuals differently for a discriminatory purpose.” Discriminatory intent re-quires that the city’s decision must be made at least in part because of its discriminatory effect on. Integrity and Buen-tello rather .than mere knowledge that adverse consequences will result.

In the amended complaint, summary-judgment briefing, and appellate briefing, Integrity and Buentello do not allege or offer any evidence of an intent to discriminate, relying instead solely on the alleged arbitrariness of the decision. There is also no finding by the district court of discriminatory intent but only a similar reliance on the ad hoc decisionmaking of the police chief.

.[20,21] Integrity and Buentello also failed to demonstrate that there is no rational basis upon which the city could have excluded them from the non-consent tow list. Because there is no suspect class, the exclusion “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Heller v. Doe, 509 U.S. 812, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). “Moreover, the State need not articulate its reasoning at the moment a particular decision is made. Rather the burden is on the challenging party to negative ‘any reasonably conceivable state of facts that could provide a rational basis.’ ” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 367, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (quoting Doe, 509 U.S. at 320, 113 S.Ct. 2637).

The plaintiffs have not carried their burden of negating all rational bases for the decision to exclude them. That the police chief believes he needs no more than two companies to satisfy the city’s non-consent tow requirements is sufficient justification to survive rational-basis review.

The orders ' complained of are REVERSED, ■ and a judgment of dismissal with prejudice is RENDERED for the City of Fulshear.

      . On October 5, 2015, the district court denied the city’s motion for stay pending appeal, and on October 22, a motions panel of this court denied a motion for stay for a lack of a showing of irreparable harm but explained that "[t]his denial implies no position on the [city’s]. likelihood of success on the merits.”

      . Having found jurisdiction to review the September 4 order as an injunction, we need not address whether either that order or the August 28 order awarding summary judgment is a final judgment appealable under 28 U.S.C. § 1291 in the absence of a judgment entered as a “separate document” as required by Federal Rule of Civil Procedure 58(a).

      . A city is a consumer of towing companies’ services when it contracts for non-consent tows. Cardinal Towing & Auto Repair, Inc. v. City of Bedford, Tex., 180 F.3d 686, 697 (5th Cir. 1999).

      . Texas law imposes no standard for selecting companies for a non-consent tow list. Texas police officers have "been given legislative authorization to tow a vehicle, [and] inherent in that authorization is the right to make reasonable decisions about who is permitted to do the towing.” Fort Bend Cty. Wrecker Ass’n v. Wright, 39 S.W.3d 421, 425 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Towing companies also have no "entitlement for access to, presence upon, or the right to control a county wrecker rotation list” as long as they "still have a right to do business with private individuals.” Id, at 427. Integrity and Buentello do not claim that they are prohibited from so doing.

      . "Of course, an allegation that speeding tickets are given out on the basis of race or sex would state an equal protection claim, because such discriminatory classifications implicate basic equal protection concerns. But allowing an equal protection claim on the ground that a ticket was given to one person and not others, even if for no discernable or articulable reason, would be incompatible with the discretion inherent in the challenged action.” Engquist, 553 U.S. at 604, 128 S.Ct. 2146 (quoted in Wood, 2016 WL 4750879, at *5 n.33, 2016 U.S. App. LEXIS 16693, at *13 n.33).

      . Integrity and Buentello also have not satisfied the pleading requirements for a municipal-liability claim under Section 1983. Municipal liability for .a constitutional violation will lie where that violation results from an "official custom or policy” of the city. Piotrowski v. City of Hous., 237 F.3d 567, 579 (5th Cir. 2001).
      Integrity and Buentello challenge the single decision to exclude them from the non-consent tow list. The city can be liable for that decision only if it was made by an official with "final policymaking authority” as determined by state law) City of St. Louis v. Praprotnik, 485 U.S. 112, 123-24, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988), as distinguished from "final decisionmaking authority,” Bolton v. City of Dall., Tex., 541 F.3d 545, 548 (5th Cir. 2008). The plaintiffs have made no claim nor provided any evidence that the police chief has final policymaking authority. Instead, they plead that he was "acting without guidance from city officials or due consideration of any applicable statutes, code ordinances, or Constitutional obligations,” and the city is liable for that on a respondeat superior theory. Such a theory is not cognizable in a Section 1983 municipal-liability claim. See Praprotnik, 485 U.S. at 126, 108 S.Ct. 915.

        . Gil Ramirez Grp., L.L.C. v. Hous. Indep. Sch. Dist., 786 F.3d 400, 419 (5th Cir. 2015); see
        also Olech, 528 U.S. at 564, 120 S.Ct. 1073 ("Our cases have recognized successful equal protection claims brought by a ‘class of one,' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference, in treatment.”).

      . See Gil Ramirez Grp., 786 F.3d at 419-20 (citing Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)) (holding that discrimination in favor of others is insufficient, by itself, to show that the plaintiff was discriminated against).

      . Although the chief acknowledged that he "probably" would have added a third towing service to the list if any had met his requirements, there is no evidence that he ever did. Thus, the explanation that only two towing companies are necessary remains a sufficient conceivable rational basis, given that the city has never expanded the list.


author: STEPHEN A. HIGGINSON, Circuit Judge:

text:
    Paula Sue GRAVES, Plaintiff-Appellant v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant-Appellee
    No. 16-10340
    Summary Calendar
    United States Court of Appeals, Fifth Circuit.
    September 21, 2016

      Paul Bradford Eaglin, Eaglin Law Office, Howard D. Olinsky, Syracuse, NY, for Plaintiff-Appellant.
    Kerry Jean Simpson, Esq., Social Security Administration, Dallas, TX, Defendant-Appellee.
    Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges;
   STEPHEN A. HIGGINSON, Circuit Judge:

Paula Sue Graves appeals the district court’s affirmance of an agency decision that she is not disabled, and therefore is not entitled to disability insurance benefits. Graves argues that the administrative law judge (ALJ) who reviewed her ease erred by failing to ask a testifying vocational expert whether her testimony was consistent with the Dictionary of Occupational Titles (DOT), as required by an agency policy interpretation ruling, but nonetheless relying on that testimony. Finding no reversible error, we affirm.

I.

In August 2011, Graves filed applications for disability insurance benefits and supplemental security income payments, alleging that she became disabled the previous month because of her anxiety, depression, and intellectual disability. The Commissioner of Social Security denied those applications, finding'that Graves is not disabled, and adhered to that decision on Graves’s request for reconsideration. Graves then asked for and received a hearing before an ALJ, at which she was represented by counsel. During this hearing, the ALJ questioned a vocational expert, who described certain jobs appearing in the record and estimated their availability in the national and Texas economies.

The ALJ affirmed the Commissioner’s decision in May 2013, finding that Graves has the residual functional capacity to perform some jobs available in the national economy so long as she can alternate between sitting and standing. After the agency’s Appeals Council denied review of the ALJ’s decision, Graves sought judicial review, A magistrate judge recommended that the Commissioner’s decision be affirmed. The district court overruled Graves’s objections and adopted the magistrate judge’s report and recommendation. This appeal timely followed.

II.

Our review of the finding that Graves is not' disabled “is limited to determining whether the decision is supported by substantial evidence in the record and whether the proper legal standards were used in evaluating the evidence.” Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (quoting Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990)). We will, however, reverse an ALJ’s decision “if the claimant shows (1) that the ALJ failed to fulfill his duty to adequately develop the record, and (2) that the claimant was prejudiced thereby.” Brock v. Chafer, 84 F.3d 726, 728 (5th Cir. 1996).

.A claimant is not entitled to disability benefits unless she “is unable ‘to engage in any substantial gainful activity by reason of [a] medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months.’ ” Bowling, 36 F.3d at 435 (alteration and ellipsis in original) (quoting 42 U.S.C. §§ 416(1), 423(d)(1)(A)). The Social Security Administration follows a sequential five-step process to make this determination:

(1) a claimant who is working, engaging in a substantial gainful activity, will not be found to be disabled no matter what the medical findings are; (2) a claimant will not be found to be disabled unless he has a “severe impairment”; (3) a claimant whose impairment meets or is equivalent to an impairment listed in Appendix 1 of the regulations will be considered disabled without the need to consider vocational factors; (4) a claimant who is capable of performing work that he has done in the past must be found “not disabled”; and (5) if the claimant is unable to perform his previous work as a result of his impairment, then factors such as his age, education, past work experience, and residual functional capacity must be considered to determine whether he can do other work.

Id.; see also 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The burden of-proof is on the claimant for the first four steps but shifts to the agency at step five; a finding at any step that a claimant is or is not disabled ends the analysis. Bowling, 36 F.3d at 435.

In this case, the ALJ proceeded to step five before determining that Graves is not disabled. Graves’s sole argument on appeal is that the ALJ failed to follow Social Security Ruling 00-4p, which provides in relevant part:

Occupational evidence provided by a VE or VS [vocational expert or vocational specialist] generally should be consistent with the occupational information supplied by the DOT. When there is an apparent, unresolved conflict between VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled. At the hearings level, as part of the adjudicator’s duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency.

SSR 00-4p, 2000 WL .1898704, at *2 (Dec. 4, 2000) (emphasis added). As the italicized language suggests, an ALJ in a hearing such as Graves’s “has an affirmative responsibility to ask about ‘any possible conflict’ between VE evidence and the DOT ... before relying on VE evidence to support a determination of not disabled.” Kemp ex rel. Kemp v. Colvin, 743 F.3d 630, 633 (8th Cir. 2014) (footnote omitted); accord, e.g., Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 603 (6th Cir. 2009); Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009). Here, though the vocational expert cited the DOT in her testimony, the ALJ did not ask whether her testimony was consistent with the DOT. That was error.

Yet “[tjhis Court will not reverse the decision of an ALJ for failure to fully and fairly develop the record unless the claimant shows that he or she was prejudiced by the ALJ’s failure.” Carey v. Apfel, 230 F.3d 181, 142 (5th Cir. 2000); see also Jones v. Astrue, 691 F.3d 730, 734-35 (5th Cir. 2012) (“The party seeking to overturn the Commissioner’s decision has the burden to show that prejudice resulted from an error. A mere allegation that additional beneficial evidence might have been gathered had the error not occurred is insufficient to meet this burden.” (footnote omitted)); Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (“ ‘Procedural perfection in administrative proceedings is not required’ as long as ‘the substantial rights of a party have not been affected.’ ” (quoting Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988))). Graves does not even attempt to show that the vocational expert’s testimony was actually inconsistent with the DOT. Nor has she otherwise demonstrated prejudice. Hence, the ALJ’s procedural error was harmless and does not warrant reversal.

• Graves does not before this court raise any other ground for reversal, and it appears from our review of the record that the agency decision is supported by substantial evidence. Accordingly, the judgment is AFFIRMED.

      . Graves argues at length that Carey was wrongly decided. But "[i]t is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, ór our en banc court.” Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2,008). Further,, Grayes’s appeal fails because she is unable to show prejudice resulting from the ALJ’s error — a requirement found in other cases within and without this circuit. See infra.

        . Other circuits also apply harmless-error analysis to this type of procedural error. See, e.g., Poppa v. Astrue, 569 F,3d 1167, 1174 (10th Cir. 2009) (“Because there were no conflicts between the VE’s testimony and the DOT’s job descriptions, the ALJ’s error in- not inquiring about potential' conflicts was harmless.”); Terry, 580 F.3d at 478 ("Terry is correct that the ALJ did not ask, the VE if his testimony conflicted with the DOT. However, the error is harmless -unless' there actually was a conflict.”); Massachi v. Astrue, 486 F.3d 1149, 1154 n.19 (9th Cir. 2007) ("This procedural error could have been harmless, were there no conflict, or if the vocational expert had provided sufficient support for her conclusion so as to justify any potential conflicts.... ”); Jackson v. Barnhart, 120 Fed.Appx. 904, 906 (3d Cir. 2005) (unpublished) ("Where substantial evidence supports the ALJ’s opinion and where the failure to solicit the testimony contemplated in SSR 00-4P is harmless, this court will not reverse the ALJ’s decision.”); cf. Shinseki v. Sanders, 556 U.S. 396, 409, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009) (”[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.”).