Patricia MORRIS and Keith Meyer, Plaintiffs-Appellants,

                                                      v.

                          CITY OF WEST PALM BEACH, Defendant-Appellee.

                                                No. 98-4343.

                                      United States Court of Appeals,

                                              Eleventh Circuit.

                                               Nov. 3, 1999.

Appeal from the United States District Court for the Southern District of Florida. (No. 95-8059-CV-DTKH),
Daniel T.K. Hurley, Judge.

Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge.

        BIRCH, Circuit Judge:

        This case raises the question of the viability and scope of the "catalyst" test, which is a means of

determining whether a party who did not receive a judgment or formal settlement in its favor is a "prevailing

party" under 42 U.S.C. § 1988 and other fee-shifting statutes. Because we hold that the catalyst test remains

available in this circuit and because the district court incorrectly applied the catalyst test, we VACATE and

REMAND.

                                             I. BACKGROUND

        Appellants Patricia Morris and Keith Meyer ("Appellants") filed the complaint in this case on January

27, 1995. The complaint challenged the constitutionality of certain sections of the City of West Palm Beach

("City") Code's chapter on parades or processions in public areas (hereinafter "Original Ordinance"), which

covers picketing and demonstrating. See R1-1. The complaint also challenged provisions of the City's Police

Department's "Permit Application for a Process/Demonstration" Policy (hereinafter "Original Policy"). See

same time, Appellants filed a motion for declaratory, preliminary, and permanent injunctive relief.

On November 6, 1995, after consolidating Appellants' case with a second case, the district court denied the



    *
     Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois, sitting by
designation.
motion for injunctive relief; we affirmed this denial without opinion on November 6, 1995.1 Subsequently,

the cases were severed and the parties agreed to have the case referred to a magistrate judge for trial and final

judgment. On January 6, 1997, the magistrate judge, acting as the district court, set the case for a non-jury

trial on the calendar commencing on April 28, 1997. On March 14, 1997, the district court, after consulting

with the parties, specially set the trial for April 8, 1997.

        On March 26, 1997, the City filed a motion to dismiss on the ground that the Original Ordinance had

been repealed and replaced by a new ordinance on March 10, 1997 ("Revised Ordinance"). In its motion to

dismiss, the City stated:

        Throughout the course of litigation, Defendant informed Plaintiffs, as was part of the basis for the
        denial of the Motion for Preliminary Injunction, that the code and application process would not be
        applied to the Plaintiffs, and that the Defendant was revising the code to address certain areas; the
        City maintained and still maintains the constitutionality of its ordinance and permit application
        process on its face and as applied.

        Defendant has presented over the course of the last several months, drafts of the new ordinance, as
        a matter of courtesy, but submits that Plaintiffs' agreement or acquiescence on the enactment of the
        new code is not necessary for the full adjudication of the claim for the Court, or for any other related
        matter.

R1-39 at 2 (emphasis added). On April 7, 1997, Appellants responded, arguing that the City's voluntary

cessation of certain unconstitutional behavior did not moot the cause of action and that the Revised Ordinance

contained some of the challenged regulations found in the Original Ordinance. See R2-43. On April 21, 1997,

the district court denied the City's motion to dismiss on the grounds that the Original Ordinance could be

re-enacted and that "there do appear to be areas of the new ordinance which were being challenged by the

Plaintiffs in respect to the old ordinance. In other words, the new ordinance carries forward some of the

allegedly objectionable requirements for issuance of a permit." R2-47 at 3, 9 (emphasis added). On May 5,

1997, Appellants filed an Amended Complaint challenging the Revised Ordinance. On June 24, 1997, the

district court held a non-jury trial on Appellants' Amended Complaint. On July 24, 1997, the district court

   1
    It is undisputed that the motion for preliminary injunction was denied because the City had informed
Appellants and the district court that the Original Ordinance and Policy would not be applied to Appellants
during the case's pendency. See R1-39 at 2.

                                                        2
issued its final judgment finding that the Revised Ordinance was constitutional. In finding that Appellants

had failed to show injury, the district court relied on an amendment made in the Revised Ordinance that

limited application of the Ordinance to groups of 25 or more. See R-55 (Final Judgment) at 19.

        On August 25, 1997, Appellants filed the motion for attorneys' fees and costs at issue in this appeal.2

Attached to their motion for fees and costs, Appellants included, among other things, an affidavit from

attorney James K. Green on the issue of whether Appellants' lawsuit was a catalyst for the revisions to the

Original Code, see R2-56-Ex. C to Mot., and five letters from Appellants' counsel to the City's counsel, see

R2-56-Ex. A-E to Mem. The five letters detailed discussions between the parties regarding redrafting the

Original Ordinance and detailed the escalation of the litigation after the redrafting discussed in 1995 was

delayed. On January 27, 1998, the district court denied Appellants' motion for attorney's fees and costs. The

court denied the motion solely on the ground that Appellants had failed to prove causation and made no

specific findings on the viability of the catalyst test or on the other elements of the catalyst test. On February

20, 1998, Appellants filed this appeal.

                                                II. DISCUSSION

         Appellants argue that the district court incorrectly found that they were not "prevailing parties"

pursuant to 42 U.S.C. § 1988. Only "prevailing parties" may recover attorney's fees under § 1988. Church

of Scientology Flag Service v. City of Clearwater, 

, 1512 (11th Cir.1993) (citing Hensley v.

Eckerhart, 

, 433, 

, 1939, 

(1983)) (hereinafter "Scientology II ").

While "[w]e review the factual findings underlying a district court's determination regarding 'prevailing party'

status for clear error," we review de novo the legal question of "whether the facts as found suffice to render

the plaintiff a 'prevailing party.' " 

         Because Appellants did not receive a favorable judgment on the merits or entry of a consent decree

or settlement, the only means through which they could be found to have prevailed is the "catalyst" test.

  2
   The City also filed a motion for attorney's fees and costs but have not appealed the denial of that motion.


                                                        3
Under the catalyst test, a plaintiff should be found as prevailing if its " 'ends are accomplished as the result

of the litigation even without formal judicial recognition,' " there is a " 'causal connection' " between the

plaintiff's lawsuit and the defendant's actions providing relief to the plaintiff, and the defendant's actions were

" 'required by law.' " Posada v. Lamb County, Texas, 

, 1071 (5th Cir.1983) (citations omitted).

See also Dunn v. Florida Bar, 

, 1013-15 (11th Cir.1989) (applying catalyst test). Before

applying this test, we must address a question that we have not yet explicitly resolved: whether the catalyst

test continues to be viable in this circuit after the Supreme Court issued its opinion in Farrar v. Hobby, 

, 

, 

(1992). See Cullens v. Georgia Dep't of Transp., 

,

1494-95 & n. 4 (11th Cir.1994) (discussing question of whether dicta in Farrar eliminated the catalyst test;

leaving question open because plaintiffs could not show that they met the catalyst test); Scientology 

(implicitly holding that the catalyst test survived Farrar by applying it after the opinion in Farrar

was issued).3 Because the catalyst test remains viable and because the district court did not address evidence

tending to show that Appellants were catalysts for the City's changes to the Original Ordinance, we vacate

and remand for a reevaluation of Appellants' request for attorney's fees.

A.       Viability of the catalyst test

          We have long held that a plaintiff who did not receive a formal judgment in its favor was a

"prevailing party" if it met the elements of the catalyst test. See, e.g., Ketterle v. B.P. Oil, Inc., 

,

429-30 (11th Cir.1990)4; 

; Royal Crown Cola Co. v. Coca-Cola Co., 

, 1486 (11th Cir.1989); 

. In the 1992 decision in Farrar, however, the

Supreme Court stated:


     3
   Neither the parties nor the district court address this question, though they do cite to the 1993 opinion in
Scientology II, which implicitly held that the catalyst test survived 

. We note that
our holding today is consistent with the application found in Scientology II.
     4
    It is permissible to interpret one fee-shifting statute by referring to cases that interpret other fee-shifting
statutes. See 

; see also 

n. 

n. 7 (noting
that " '[t]he standards set forth in this opinion are generally applicable in all cases in which Congress has
authorized an award of fees to a "prevailing party".' ").

                                                         4
        [T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits
        of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom
        fees are sought or comparable relief through a consent decree or settlement. Whatever relief the
        plaintiff secures must directly benefit him at the time of the judgment or settlement. Otherwise the
        judgment or settlement cannot be said to "affec[t] the behavior of the defendant toward the plaintiff."
        ... In short, a plaintiff "prevails" when actual relief on the merits of his claim materially alters the
        legal relationship between the parties by modifying the defendant's behavior in a way that directly
        benefits the 

, 113 S.Ct. at 573 (citations omitted).

        This language, taken on face value, casts doubt on the viability of the catalyst test, which is only

applied in the absence of a formal judgment, consent decree, or settlement. The majority of courts that have

addressed the question, however, have found that Farrar, which does not mention the catalyst test and which

did not present a question relating to the form of relief, does not bar the catalyst test.5

        Like the majority of our sister circuit courts which have addressed this issue, and in accordance with

our implicit holding in Scientology II, we hold that the catalyst test survived Farrar. While no Supreme

Court case has ever affirmatively upheld the application of the catalyst test, the catalyst test accords well with

long-held notions of prevailing parties. See Hewitt v. Helms, 

, 760-61, 

, 2676,

(1987) ("It is settled law, of course, that relief need not be judicially decreed in order to

justify a fee award under § 1988. A lawsuit sometimes produces voluntary action by the defendant that



   5
    The First, Second, Third, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits have all found, explicitly or, in
the case of the First Circuit, implicitly, that the catalyst test survived Farrar. See Payne v. Board of
Education, Cleveland City Schools, 

, 397 & n. 2 (6th Cir.1996); Stivers v. Pierce, 

,
751-52, 753 n. 10 (9th Cir.1995); Marbley v. Bane, 

, 234 (2d Cir.1995); Beard v. Teska, 

, 951 (10th Cir.1994); Baumgartner v. Harrisburg Housing Authority, 

, 548-50 (3d Cir.1994);
Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist., 

, 263 & n. 2 (8th Cir.1994); Craig
v. Gregg County, Tex., 

, 20-21 (5th Cir.1993); Paris v. U.S. Dept. of Housing and Urban Dev.,

, 238 (1st Cir.1993). The Fourth Circuit has held that Farrar bars application of the catalyst test,
see Alexander S. v. Boyd, 

, 1389 (4th Cir.1997), cert. denied, --- U.S. ----, 

, 

(1998), while the Seventh Circuit, having originally held that the catalyst test survived Farrar,
see Zinn v. Shalala, 

, 276 (7th Cir.1994), has recently used language (without citing or overruling
Zinn ) that at least questions the viability of the catalyst test, see Board of Educ. of Downers Grove Grade
Sch. Dist. No. 58 v. Steven L., 

, 469 ("The outcome of this suit resulted in no enforceable
obligations for the school district. Any relief that Andrew and his parents received was not in the form of a
judgment or settlement. Thus, ... Andrew and his parents cannot be considered to have substantially
prevailed, and no attorneys fees or costs will be awarded to them under the applicable federal statute.").

                                                        5
affords the plaintiff all or some of the relief he sought through a judgment—e.g., a monetary settlement or

a change in conduct that redresses the plaintiff's grievances. When that occurs, the plaintiff is deemed to have

prevailed despite the absence of a formal judgment in his favor."). Additionally, the question before the Court

in Farrar addressed the degree of relief, rather than the form of relief, for the plaintiffs in Farrar had attained

an enforceable judgment of nominal 

, 113 S.Ct. at 570. The fact that the majority

used broad language in discussing the question before it (i.e., whether an enforceable judgment of nominal

damages can justify a fee award under § 1988) does not indicate how it would rule on the question of whether

a showing that a plaintiff's lawsuit caused the defendant to act to remedy unconstitutional behavior can justify

a fee award. See 

; 

. The catalyst test creates

incentives for plaintiffs to initiate potentially meritorious civil rights cases and for plaintiffs to discontinue

litigation after receiving through the defendant's acquiescence the remedy initially sought. In light of its long

history and the important policies undergirding the catalyst test, we will not extend Farrar to eliminate the

catalyst test.6

B.       Scope of the catalyst test

          Having found that the catalyst test survived Farrar, we turn to its scope and application. To show

that they were prevailing parties pursuant to the catalyst test, Appellants must prove the following elements:

First, Appellants must show that action by the City created a " 'material alteration of the legal relationship of

the parties' " such that Appellants have " 'succeeded on "any significant issue in litigation which achieves

some of the benefit the parties sought in bringing suit",' " Scientology 

(quoting Texas State

Teachers Ass'n v. Garland Indep. Sch. Dist., 

, 792-93, 

, 1494, 

(1989) and 

, 103 S.Ct. at 1939), such that Appellants were "directly benefit[ted]."

     6
    Even if we did believe that Farrar weakened our prior rulings on the catalyst test, "we are not at liberty
to disregard binding [circuit] case law that is so closely on point and has only been weakened, rather than
directly overruled by the Supreme Court." Florida League of Prof'l Lobbyists v. Meggs, 

, 462
(11th Cir.1996); see also United States v. Smith, 

, 1359 (11th Cir.1997) ("Under the prior
precedent rule, we are bound by earlier panel holdings ... unless and until they are overruled en banc or by
the Supreme Court") (citing inter alia Florida League of Prof'l Lobbyists ).

                                                        6
Farrar, 506 U.S. at 

. Second, Appellants must show that their lawsuit caused (i.e.,

was the catalyst for) the City's action. See Royal Crown 

. Third, Appellants must

show that "they had a 'colorable claim' or 'reasonable likelihood of success on the merits.' " 

(quoting 

). These elements secure the interests behind § 1988 by shifting

attorney's fees if and only if a plaintiff vindicated the civil rights laws by filing a nonfrivolous lawsuit that

substantially succeeded.

1.      Material alteration of legal relationship

         The first element is the familiar requirement of substantial success explicated in Texas State Teachers

Ass'n v. Garland Ind. Sch. Dist., in which the court found that a party prevails, i.e., achieves "material

alteration of the legal relationship of the parties" by achieving success on " 'any significant issue in litigation'

" which constitutes more than a "purely technical or de minimis" victory by the 

,

109 S.Ct. at 1493-94 (1989) (quoting Nadeau v. Helgemoe, 

, 278-79 (1st Cir.1978)) (emphasis

added). Additionally, the plaintiff must directly benefit from the success attained in the lawsuit. See Farrar,

506 U.S. at 

(holding that a material alteration of the legal relationship between the

parties occurs when the remedy "modif[ies] the defendant's behavior in a way that directly benefits the

plaintiff."). The plaintiff need not receive complete relief in order to prevail. See Scientology 

(finding that plaintiff was a "prevailing party" where the plaintiff's lawsuit caused a city to amend an

ordinance that "abandoned several challenged provisions," such that the "successes, while partial only, are

neither technical nor de minimis"); see also Ensley Branch, N.A.A.C.P. v. Seibels, 

, 1583 (11th

Cir.1994) (finding that class had prevailed where it "obtained relief on the merits of the same general type

as it originally sought, even if to a lesser extent than it might have liked"); Crowder v. Housing Authority

of the City of Atlanta, 

, 848-49 (11th Cir.1990) (finding that plaintiffs had prevailed where

injunction provided "some, if not most, of the relief sought by plaintiffs").




                                                         7
        The district court made no specific finding as to the substantial element. While the district court

characterized the amendments to the ordinance as "not overwhelming," it did note that "[t]he most significant

change ... is the applicability of the new ordinance and the requirement to obtain a permit only if 25 or more

people intended to picket/demonstrate." R3-79 at 5. We view this change, which was relied on by the district

court in finding the Revised Ordinance to be constitutional, as in and of itself substantial. We note that other

changes to both the Original Ordinance and Original Policy—such as the repeal of requirements directing

protesters to remain in a single file line while picketing—are potentially significant. On remand, the district

court should specifically make findings of fact regarding all of the amendments to the Original Ordinance and

Original Policy, including the degree of significance and whether the changes directly benefitted Appellants.7

In making these findings, the district court should keep in mind that Appellants' continued, unsuccessful

challenge to the Revised Ordinance is not relevant to the question of whether the amendments to the Original

Ordinance materially altered the legal relationship between the parties. See Scientology 

("[I]t is inappropriate to deny 'prevailing-party' status merely because Scientology's pleadings in challenging

the amended ... Ordinance alleged the same or similar constitutional defects as its earlier action.... The fact

that Scientology may (or may not) ultimately prevail in those challenges has little [to] do with the question

of whether it prevailed in challenging the repealed provisions of the [old] Ordinance. Scientology did not

fail when Clearwater ceased some of its challenged discriminatory conduct merely because the city persisted

in other challenged conduct."). Rather, the district court should compare the relief sought in the complaint

with the relief received by Appellants through the amendments to the Original Ordinance and Policy. See

Institutionalized Juveniles v. Secretary of Public Welfare, 

, 911 (3d Cir.1985) ("To apply the

prevailing party standard, it is important first to identify the relief plaintiff sought and, in relevant cases, the




    7
     While it is true that Appellants need only show one significant change to the Original Ordinance or
Original Policy in order to justify an award of attorney's fees, it is necessary for the district court to evaluate
all of the changes for completeness and to determine degree of success for purposes of fee computation, if
necessary. See 

, 103 S.Ct. at 1941.

                                                         8
legal theories on which the relief was based. Usually a common-sense comparison between relief sought and

relief obtained will be sufficient to indicate whether a party has prevailed.").

2.       Causal relationship

         The second element, causation, ensures that a plaintiff does not receive a windfall by the defendant's

voluntary action. See Royal Crown 

("A plaintiff may not collect attorney's fees for

demanding of the defendant that which the defendant would have done in any case."). "Causal connection

is established by evidence that the plaintiffs' lawsuit was a 'substantial factor or a significant catalyst in

motivating the defendants to end their unconstitutional behavior.' " 

(quoting

Williams v. Leatherbury, 

, 551 (5th Cir.1982)). Appellants need not show that their lawsuit was

the sole cause for the amending of the Ordinance, "so long as the plaintiffs' actions made an important

contribution to the improvements achieved." 

on the whole, are usually rather

reluctant to concede that the litigation prompted them to mend their ways," courts often look to other

evidence, such as the chronology of events, to determine whether a given lawsuit caused the defendant to

provide the requested relief. 

is a significant clue, "chronology is not definitive because

the question of causation is intensely factual." Royal Crown 

. "Rather, a court must

include all of the surrounding circumstances in its causation determination." 

court erred in holding that Appellants had failed to establish causation. While the district

court did address the affidavit of James K. Green and the chronology of events in ruling on attorney's fees,

it failed to consider evidence indicating that the parties had communicated about redrafting the Ordinance.8

     8
    The district court treated this case as though the only factual evidence supporting Appellants' claim of
causation was the chronology of events and held that chronology was insufficient without more evidence,
such as "minutes of public meetings, witnesses called or other documentary evidence." R3-79 at 7. Because
Appellants proffered other relevant evidence not considered by the district court in analyzing causation, we
need not address the question of when, if ever, causation may be proved solely by reference to chronology.
Also, in vacating the district court's ruling, we do not find that the district court erred in holding that Green's
affidavit was incompetent. Cf. Freund v. Butterworth, 

, 863 n. 34 (11th Cir.1999) (en banc ),
(holding that expert testimony from an attorney could not be used to address a mixed question of law and fact
that was to be decided by the court; addressing affidavit in context of claim of conflict of interest), cert.
denied, --- U.S. ----, 

, --- L.Ed.2d ---- (1999); Provenzano v. Singletary, 

, 1332

                                                        9
This evidence includes the letters, attached to Appellants' Memorandum in Support of their Motion for

Attorney's Fees and Costs. The court also failed to consider the City's admission that it had advised

Appellants that it would revise the Original Code despite its own belief that such revisions were not required

by the Constitution and that it had provided Appellants with copies of the proposed revisions. R1-39 at 2.

Courts, including this one, have found causation where the parties had negotiated or discussed proposed

changes to rules or other behavior. See, e.g., 

(basing finding of causation on

favorable chronology of events and on showing that the defendant had considered comments of the plaintiffs'

counsel in altering the rule at issue in the case); Morrison v. Ayoob, 

, 672 (3d Cir.1980) (finding

that plaintiffs had shown causation where parties' counsel had informal contact prior to the filing of the

lawsuit and where change in behavior did not occur until after lawsuit was filed and parties' counsel

subsequently had more formal discussions). Additionally, the City provided no countervailing evidence of

other justifications for amending the Original Ordinance. Compare with Royal Crown 

-88 (finding that plaintiff could not prove causation where merger at issue in case was barred by

administrative action taken by FTC). The district court's failure to consider evidence indicating that the

parties had discussed the proposed changes prior to their implementation "leaves us with the definite and firm

conviction that the district court has made a mistake." 

(discussing factual findings

as to causation). On remand, the district court should consider the evidence addressed in this opinion and

may choose, as it deems appropriate, to open the record to consider other probative evidence on the issue of

causation.

3.      Colorable claim

        The third element of the catalyst test has been expressed as requiring a showing "that the defendant's

conduct was required by law," 

, that the defendant's conduct does not constitute a

"nuisance settlement," Tyler v. Corner Construction Corp., Inc., 

, 1206 (8th Cir.1999), or that


(11th Cir.) (same; addressing affidavit in context of claim of ineffective assistance of counsel), reh'g and
reh'g en banc denied, 

(11th Cir.1998).

                                                      10
"the plaintiff's suit was neither 'frivolous, unreasonable, [n]or groundless'," Little Rock Sch. 

(quoting United Handicapped Fed'n v. Andre, 

, 346-47 (8th Cir.1980); brackets in original).

These different formulations all address the same concern: that plaintiffs should not be deemed to be

prevailing parties if their claims are objectively unmeritorious. See 

("What a court

ought to do ... is to concentrate on the objective meritoriousness of a plaintiff's claim, and refuse to award fees

if the claim is frivolous or groundless."). See also 

(discussing "no colorable claim"

element as relating to the objective merits of the claim). This element of the claim was not addressed by the

district court or in the briefs of either of the parties, and, while the City did state at oral argument that

attorney's fees were inappropriate in this case because the relief achieved in this case was not constitutionally

required, the City cited to no case law in support of this claim. On remand, the district court should make

specific findings regarding the objective meritoriousness of Appellants' claims. Appellants are not required

" 'to show that they would have won on the merits' " but, instead, " 'need only show that the action taken by

appellees was "not a wholly gratuitous response to an action that in itself was frivolous." ... A claim is not

frivolous if it is arguably supported by case or statutory law.' " 

(quoting Garcia v.

Guerra, 

, 1162-63 (5th Cir.1984)). This inquiry is more limited than a full trial on the merits

and, indeed, is taken "to avoid conducting the very trial mooted by a defendant's voluntary compliance."

Little Rock Sch. 

n. 1. If Appellants' claims as to the relief received through the

amendments to the picketing ordinance were "colorable" or had a "reasonable likelihood of success on the

merits," see 

, and were not "significantly lacking in merit as an objective matter,"

, the district court should find that Appellants have met the third element of the

catalyst test.9

   9
    The Tyler court emphasized the "objective" nature of this element because the district court in that case
had incorrectly focused on the subjective mindset of the 

. We agree that the fact
that a defendant views a plaintiff's claims as lacking in merit or ultimately doomed to failure is not relevant
to the question of whether the plaintiff's claims were frivolous or meritless. See 

that it would
be unjust to deny a plaintiff his or her attorney's fees simply because a defendant thought that the plaintiff's
claim was completely lacking in merit. Defendants no doubt often think that this is the case when, in fact,

                                                        11
                                            III. CONCLUSION

          We VACATE the district court's order denying Appellants' motion for attorney's fees and costs and

REMAND for proceedings in accordance with this opinion.




it is not.").

                                                     12