NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT
                     _______________

                     Nos. 18-3526 & 19-1396
                       _______________

                        ATIYA WAHAB,
         on behalf of herself and others similarly situated,
                                       Appellant

                                  v.

    STATE OF NEW JERSEY; NEW JERSEY DEPARTMENT OF
     ENVIRONMENTAL PROTECTION; GURBIR S. GREWAL,
    Attorney General of the State of New Jersey; PHILIP DUNTON
   MURPHY, Governor of the State of New Jersey; JOHN DOES 1-5,
          being persons whose identity is presently unknown



                        ATIYA WAHAB,
                                 Appellant

                                 v.

       NEW JERSEY DEPARTMENT OF ENVIRONMENTAL
    PROTECTION; STEVEN MAYBURY; GWEN ZERVAS; PAM
     LYONS; DEBORAH FIGUEROA; STATE OF NEW JERSEY

                        _______________

         On Appeal from the United States District Court
                   for the District of New Jersey
          (D.C. Nos. 3:18-cv-06067 & 3:12-cv-06613)
          District Judge: Honorable Brian R. Martinotti
                         _______________

          Submitted Under Third Circuit L.A.R. 34.1(a)
                     on August 19, 2020

Before: HARDIMAN, GREENAWAY, JR., and BIBAS, Circuit Judges
                  (Filed: August 28, 2020)
                                    _______________

                                       OPINION*
                                    _______________

BIBAS, Circuit Judge.

    Under the American rule, each party typically pays its own way. But some statutes

entitle the winner to attorney’s fees. In New Jersey, winners include plaintiffs who get the

relief they seek even without an enforceable judgment. So when a plaintiff sues under a

fee-shifting statute and the defendant responds by voluntarily changing its challenged be-

havior, the plaintiff may recover fees.

    Atiya Wahab sued her employer, the New Jersey Department of Environmental Protec-

tion, alleging workplace discrimination. As a state employee, she is covered by the State

Policy Prohibiting Discrimination in the Workplace. Part of that policy used to regulate

discrimination investigations by providing: “All persons interviewed, including witnesses,

shall be directed not to discuss any aspect of the investigation with others in light of the

important privacy interests of all concerned.” Att’y Fees App. 2. Employees who violated

this confidentiality provision could be punished.

    In Wahab’s two lawsuits consolidated before us, she sought to enjoin enforcement of

the confidentiality provision as an unconstitutional prior restraint on speech. The District

Court denied an injunction both times, and she timely appealed. After briefing but before

oral argument, the State moved for a stay, arguing that the challenged confidentiality



*
  This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.

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requirement was “about to undergo a significant change that may moot all or a portion of

this appeal.”

stay. The State then modified just the confidentiality pro-

vision to no longer forbid employees to discuss investigations. N.J.A.C. § 4A:7-3.1(j). It

also deleted the reference to discipline.

that this change mooted the

appeal. Wahab agreed and asked for attorney’s fees. We agree with the parties that the

State’s changes to the confidentiality provision moot the appeal. All that is left before us

is the issue of attorney’s fees.

    Under New Jersey’s Law Against Discrimination and its Civil Rights Act, courts may

award prevailing parties reasonable attorney’s fees. N.J.S.A. §§ 10:5-27.1, 10:6-2(f). To

prevail, a party need not win a favorable judgment or get a consent decree. Mason v. City

of Hoboken, 

, 1031–32 (N.J. 2008). It is enough for the plaintiff to show that

her “lawsuit acted as a catalyst that prompted [the] defendant to take action and correct an

unlawful practice.”

To do that, the plaintiff must show both “a factual causal

nexus between plaintiff’s litigation and the relief ultimately achieved” and “that the relief

ultimately secured by plaintiff[ ] had a basis in law.”

(quoting Singer v. New

Jersey, 

, 142 (N.J. 1984)). Wahab has shown both.

   First, Wahab has shown that her lawsuit helped cause the State to change its Policy. We

judge causation based on all the facts, including the reasonableness of the agency’s deci-

sions and its motivations.

At first, the plaintiff bears the burden of proof.

. But when the timing and substance of relief “strongly suggest[ ] a causal link,” the

burden shifts to the defendants to show lack of causation. Jones v. Hayman, 

,

425 (N.J. Super. Ct. App. Div. 2011).


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   The State’s very late change to its Policy, right before oral argument, is telling. And the

State predicted that the change might moot this case. The new Policy also fixed the exact

issues that Wahab had challenged: speech about investigations and the threat of punish-

ment. Wahab’s suit evidently caused those changes. All these facts strongly suggest cau-

sation. The State claims that this causal link is speculative but offers no other explanation

for the change.

   Second, Wahab’s ultimate relief had a basis in law. “A public employee has a constitu-

tional right to speak on matters of public concern without fear of retaliation.” Baldassare

v. New Jersey, 

, 194 (3d Cir. 2001). And workplace discrimination is a matter

of public concern. Connick v. Myers, 

, 148 n.8 (1983). The original Policy

forbade speech related to workplace discrimination on pain of discipline. So Wahab had a

constitutional basis for the relief she sought and got.

   The State denies that Wahab got any relief. But she did. Wahab is no longer subject to

the Policy that she challenged. And even though the State had said Wahab would not be

subject to the Policy, it had taken no binding steps to protect her from it for good. The

Policy was still on the books, restricting her speech.

                                         * * * * *

   Wahab has won this part of her suit. She has shown that her suit caused the State to

change its Policy and that her claim and relief were based in law. So she can collect attor-

ney’s fees under New Jersey law. We will vacate the District Court’s dismissal and remand

to let that court compute and award reasonable attorney’s fees.




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