Filed: Nov. 03, 1999
Latest Update: Feb. 21, 2020
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT 11/03/99 No. 98-4343 THOMAS K. KAHN _ CLERK D. C. Docket No. 95-8059-CV-DTKH PATRICIA MORRIS and KEITH MEYER, Plaintiffs-Appellants, versus CITY OF WEST PALM BEACH, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Florida _ (November 3, 1999) Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge. _ *Honorable Ric
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT 11/03/99 No. 98-4343 THOMAS K. KAHN _ CLERK D. C. Docket No. 95-8059-CV-DTKH PATRICIA MORRIS and KEITH MEYER, Plaintiffs-Appellants, versus CITY OF WEST PALM BEACH, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Florida _ (November 3, 1999) Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge. _ *Honorable Rich..
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
_______________ ELEVENTH CIRCUIT
11/03/99
No. 98-4343 THOMAS K. KAHN
_______________ CLERK
D. C. Docket No. 95-8059-CV-DTKH
PATRICIA MORRIS and KEITH MEYER,
Plaintiffs-Appellants,
versus
CITY OF WEST PALM BEACH,
Defendant-Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Florida
______________________________
(November 3, 1999)
Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge.
_________________
*Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois, sitting
by designation.
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 id. At
the 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 motion for injunctive relief;
2
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.
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.
3
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 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.
4
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
2
The City also filed a motion for attorney's fees and costs but have not appealed the denial
of that motion.
5
recover attorney's fees under § 1988. Church of Scientology Flag Service v. City
of Clearwater, 2 F.3d 1509, 1512 (11th Cir. 1993) (citing Hensley v. Eckerhart,
461 U.S. 424, 433,
103 S. Ct. 1933, 1939 (1983)) (hereinafter “Scientology II”).
While “[w]e review the factual findings underlying a district court's determination
regarding Id. at 1513.
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. Under the catalyst test, a plaintiff
should be found as prevailing if its “716 F.2d 1066, 1071 (5th Cir. 1983) (citations omitted). See also
Dunn v. Florida Bar,
889 F.2d 1010, 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,
506 U.S. 103, 113 S.
6
Ct. 566 (1992). See Cullens v. Georgia Dep't of Transp., 29 F.3d 1489, 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
II, 2 F.3d at 1513-14 (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., 909 F.2d 425, 429-30 (11th Cir. 1990)4;
Dunn, 889
F.2d at 1013-15; Royal Crown Cola Co. v. Coca-Cola Co.,
887 F.2d 1480, 1486
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 Farrar. 2 F.3d
at 1513-14. 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 Ketterle, 909 F.2d at 429; see also
Hensley, 461 U.S. at 433 n.7, 103 S.
Ct. at 1939 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 Posada, 716 F.2d at 1071. In the 1992 decision in Farrar,
however, the Supreme Court stated:
[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 plaintiff.
506 U.S. at 111-12, 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
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, 88 F.3d 392, 397 & n.2 (6th Cir. 1996);
Stivers v. Pierce,
71 F.3d 732, 751-52, 753 n.10 (9th Cir. 1995); Marbley v. Bane,
57 F.3d 224, 234
(2d Cir. 1995); Beard v. Teska,
31 F.3d 942, 951 (10th Cir. 1994); Baumgartner v. Harrisburg
Housing Authority,
21 F.3d 541, 548-50 (3d Cir. 1994); Little Rock Sch. Dist. v. Pulaski County
Special Sch. Dist.,
17 F.3d 260, 263 & n.2 (8th Cir. 1994); Craig v. Gregg County, Tex.,
988 F.2d
18, 20-21 (5th Cir. 1993); Paris v. U.S. Dept. of Housing and Urban Dev.,
988 F.2d 236, 238 (1st
Cir. 1993). The Fourth Circuit has held that Farrar bars application of the catalyst test, see
Alexander S. v. Boyd,
113 F.3d 1373, 1389 (4th Cir. 1997), cert. denied, --- U.S. ---,
118 S. Ct. 880
(1998), while the Seventh Circuit, having originally held that the catalyst test survived Farrar, see
8
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, 482 U.S. 755, 760-61,
107
S. Ct. 2672, 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 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
damages. 506 U.S. at 107, 113 S. Ct.
at 570. The fact that the majority used broad language in discussing the question
Zinn v. Shalala,
35 F.3d 273, 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.,
89 F.3d 464, 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.”).
9
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 Marbley, 57 F.3d at 234;
Baumgartner, 21 F.3d at 547-48. 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 “87 F.3d 457, 462 (11th Cir. 1997); see also United States v. Smith,
122 F.3d 1355, 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).
10
litigation which achieves some of the benefit the parties sought in bringing suit,'”
Scientology II, 2 F.3d at 1513 (quoting Texas State Teachers Ass'n v. Garland
Indep. Sch. Dist.,
489 U.S. 782, 792-93,
109 S. Ct. 1486, 1494 (1989) and
Hensley, 461 U.S. at 433, 103 S. Ct. at 1939)), such that Appellants were “directly
benefit[ted].” Farrar, 506 U.S. at
111-12, 113 S. Ct. at 573. Second, Appellants
must show that their lawsuit caused (i.e., was the catalyst for) the City's action.
See Royal Crown
Cola, 887 F.2d at 1486. Third, Appellants must show that “they
had a Ketterle, 909 F.2d at 430 (quoting
Dunn, 889 F.2d at 1015). 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 “plaintiff. 489 U.S. at 791-93, 109 S. Ct. at 1493-94 (1989) (quoting Nadeau
11
v. Helgemoe, 581 F.2d 275, 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
111-12, 113 S. Ct. at 573 (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
II, 2 F.3d at 1513 (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,
31 F.3d
1548, 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,
908 F.2d 843, 848-49 (11th Cir. 1990) (finding that plaintiffs had
prevailed where injunction provided “some, if not most, of the relief sought by
plaintiffs”).
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
12
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 II, 2
F.3d at 1514 (“[I]t is inappropriate to deny Hensley, 461 U.S. at 436, 103 S. Ct. at 1541.
13
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, 758 F.2d 897, 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 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 Cola, 887 F.2d at
1489 (“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 Posada, 716 F.2d at 1072 (quoting Williams v. Leatherbury,
672 F.2d
14
549, 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.”
Id. Because “defendants,
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.
Id. While chronology is a significant clue,
“chronology is not definitive because the question of causation is intensely
factual.” Royal Crown
Cola, 887 F.2d at 1487. “Rather, a court must include all
of the surrounding circumstances in its causation determination.”
Id.
The district 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 This
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, 165 F.3d 839, 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), pet. cert. filed,
67 U.S.L.W. 3749 (June 1, 1999); Provenzano v. Singletary,
148 F.3d 1327,
15
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., Dunn, 889 F.2d at 1014 (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,
627 F.2d 669, 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
Cola, 887 F.2d at 1487-88
(finding that plaintiff could not prove causation where merger at issue in case was
1332 (11th Cir.) (same; addressing affidavit in context of claim of ineffective assistance of counsel),
reh'g and reh'g en banc denied,
162 F.3d 100 (11th Cir. 1998).
16
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.” Posada, 716 F.2d at 1072 (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,” Dunn, 889 F.2d at
1015, that the defendant's conduct does not constitute a “nuisance settlement,”
Tyler v. Corner Construction Corp., Inc.,
167 F.3d 1202, 1206 (8th Cir. 1999), or
that “the plaintiff's suit was neither Dist., 17 F.3d at 262 (quoting United Handicapped Fed'n v.
Andre,
622 F.2d 342, 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
Tyler, 167
F.3d at 1206 (“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
17
frivolous or groundless.”). See also Dunn, 889 F.2d at 1015 (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 “Dunn, 889 F.2d at 1015 (quoting Garcia v. Guerra,
744 F.2d 1159,
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.
Dist., 17 F.3d at 262 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
Ketterle, 909 F.2d at 430, and were not “significantly lacking in
18
merit as an objective matter,” Tyler, 167 F.3d at 1206, the district court should find
that Appellants have met the third element of the catalyst test.9
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.
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 defendant. 167 F.3d at
1206. 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
id. (“We think 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, it is not.”).
19
