F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 2 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
AMIGOS BRAVOS, a nonprofit
corporation, and NEW MEXICO
CITIZENS FOR CLEAN AIR AND
WATER, a nonprofit corporation,
Plaintiffs-Appellants,
v. No. 02-2030
ENVIRONMENTAL PROTECTION
AGENCY, United States; CAROL
BROWNER, Administrator of the
Environmental Protection Agency; and
GREG COOK, EPA Regional
Administrator for Region VI,
Defendants-Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. CIV-99-327 DJS/RLP)
Matthew K. Bishop, Taos, New Mexico, for Plaintiffs-Appellants.
Kathryn E. Kovacs, U.S. Department of Justice, Environment & Natural
Resources Division, Appellate Section, Washington, D.C. (Thomas L. Sansonetti,
Assistant Attorney General; David C. Shilton and Mary F. Edgar, U.S.
Department of Justice, Environment & Natural Resources Division, Appellate
Section, Washington, D.C., Richard T. Witt, U.S. Environmental Protection
Agency, Office of General Counsel, Washington, D.C., and Renea Ryland, U.S.
Environmental Protection Agency, Office of Regional Counsel, Dallas, Texas, of
counsel, with her on the brief), for Defendants-Appellees.
Before BRISCOE , BALDOCK , and HARTZ , Circuit Judges.
HARTZ , Circuit Judge.
This appeal concerns the availability of an award for litigation costs
(including attorney fees) under § 505(d) of the Clean Water Act (CWA), 33
U.S.C. § 1365(d), when a lawsuit has been mooted by government conduct in
apparent response to the lawsuit.
Plaintiffs Amigos Bravos and New Mexico Citizens for Clean Air and
Water brought suit to compel the Environmental Protection Agency (EPA) to take
action against pollution by Molycorp, Inc. The suit was dismissed as moot when
the EPA issued Molycorp a permit with respect to the pollution at issue.
Contending that their lawsuit was what caused the EPA to act, Plaintiffs moved to
recover their costs under the “catalyst theory.” The catalyst theory permits a
plaintiff to recover costs even when the defendant’s acts render the suit moot if
the plaintiff can “show: (1) that [the] lawsuit is causally linked to securing the
relief obtained and (2) that the defendant’s conduct in response to the lawsuit was
required by law.” Ctr. for Biological Diversity v. Norton, 262 F.3d 1077, 1081
(10th Cir. 2001) (internal quotation marks omitted). The magistrate judge,
presiding with the consent of the parties under 28 U.S.C. § 636(c)(1), denied
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Plaintiffs’ request for costs because they had failed to establish that the EPA’s
actions were “required by law.”
Exercising jurisdiction under 28 U.S.C. §§ 636(c)(3) and 1291, we affirm.
We hold that even if the catalyst theory applies to requests for costs under
§ 505(d), Plaintiffs are not entitled to recover their costs because EPA’s action—
issuing the permit to Molycorp—was not a legally required response to Plaintiffs’
lawsuit.
I. Background
This case arose out of the EPA’s initial refusal to recognize pollution of the
Red River arising from waste rock piles at Molycorp’s molybdenum mine as a
point source discharge subject to regulation under the CWA. The CWA provides
that “the discharge of any pollutant by any person” is generally unlawful. 33
U.S.C. § 1311(a). “‘[D]ischarge of a pollutant’” includes “any addition of any
pollutant to navigable waters from any point source.” Id. § 1362(12)(A). A
“point source” is “any discernible, confined and discrete conveyance . . . from
which pollutants are or may be discharged.” § 1362(14). A point source
discharge otherwise prohibited by the CWA is lawful if authorized by a National
Pollutant Discharge Elimination System (NPDES) permit issued by the EPA. See
§§ 1311(a), 1342.
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In 1977 Molycorp obtained an NPDES permit for its mine operations.
When it applied for renewal in 1992, some members of the public complained that
the mine’s waste rock piles were contaminating ground water that was then
seeping into the Red River. They contended that the discharges from the piles
should be considered point sources subject to regulation under the CWA. The
EPA disagreed and issued Molycorp an NPDES permit that did not address the
discharge of pollutants from the waste rock piles.
Three years later Plaintiffs sued Molycorp under 33 U.S.C. § 1365(a)(1),
alleging that Molycorp was in violation of the CWA because discharges from the
waste rock piles were point source discharges for which no NPDES permit had
been obtained. The district court characterized the suit as a challenge to the
Administrator’s decision to reissue Molycorp’s permit without regulating these
discharges, a decision that could be challenged only by appealing the issuance of
the permit to the court of appeals. See id. § 1369(b)(1)(F). Accordingly, it
dismissed the action. We affirmed. Amigos Bravos v. Molycorp, Inc., 166 F.3d
1220 (10th Cir. 1998) (unpublished).
In the meantime, the EPA Region 6 NPDES Permits Branch had requested
“assistance in determining if mining activities at the . . . Molycorp . . . Mine . . .
are a source of contamination to the Red River.” Aplt. App. at 36. The request
was “[s]pecifically . . . to determine if the[] mining activities [we]re resulting in
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the discharge of . . . [pollutants] via seeps along the Red River . . . .” Id. In
response, the Region 6 Ground Water Center of Excellence conducted a study of
the Molycorp site. EPA geologist David Abshire summarized the study’s results
in a February 1998 document entitled “Report on Hydrological Connection
Associated With Molycorp Mining Activity, Questa, New Mexico.” For purposes
of this appeal, we will assume that Plaintiffs have accurately characterized the
report as concluding that pollution from the waste rock piles was “traveling to
seeps along the Red River via a ground water hydrological connection.” Aplt. Br.
at 5.
Approximately a year after the report was issued, Plaintiffs brought this
action against Defendants under the CWA’s citizen-suit provision, 33 U.S.C.
§ 1365(a)(2). That provision states that “any citizen may commence a civil action
on his own behalf . . . against the Administrator where there is alleged a failure of
the Administrator to perform any act or duty . . . which is not discretionary with
the Administrator.” Id.
Plaintiffs’ complaint contained two counts. Count I alleged that the EPA
was aware that Molycorp was illegally discharging pollutants and therefore had a
nondiscretionary duty under § 309(a)(3) of the CWA, 33 U.S.C. § 1319(a)(3), to
take one of two enforcement actions: either issue a compliance order or file a
civil action against Molycorp. Plaintiffs asked the court to declare that the EPA
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had failed to fulfill this duty under § 309(a)(3), and to order the EPA to take one
of the two enumerated enforcement actions against Molycorp. Count II alleged
that under §§ 301 and 402 of the CWA, the EPA had a nondiscretionary duty to
either prohibit Molycorp’s illegal discharges or issue a permit for them. Plaintiffs
asked the court to declare that the EPA had violated this duty and to order the
EPA to issue a permit or prohibit Molycorp’s discharges. The district court
dismissed the case, ruling that in light of Plaintiffs’ earlier action against
Molycorp itself, Plaintiffs’ action against the EPA and its administrators was
barred by the doctrine of collateral estoppel.
We reversed and remanded because the elements of collateral estoppel had
not been established. See Amigos Bravos v. E.P.A., 236 F.3d 621 (10th Cir. 2001).
While rehearing before this court was pending, the EPA issued Molycorp a permit
for the discharges referred to in Plaintiffs’ complaint, on condition that within two
years Molycorp would install a specified “seepage interception and management
system” for the purpose of preventing all but trace amounts of pollutants from
being discharged into the Red River from the waste rock piles. Permit at Pt. I, 17
and Pt. II, 1. The permit also provided that Molycorp would be subject to
monitoring and reporting requirements. All parties agreed that issuance of the
permit mooted Plaintiffs’ case. We therefore vacated the order of reversal,
withdrew our opinion, and remanded to the district court with instructions to
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vacate its earlier judgment, opinion, and order. See Amigos Bravos v. E.P.A., 6
Fed. Appx. 719 (10th Cir. 2001).
In the remand order, however, we said that the district court had not been
divested of jurisdiction to decide whether Plaintiffs were entitled to recover
litigation costs under § 505(d) of the CWA, 33 U.S.C. § 1365(d). That section
allows the court to “award costs of litigation (including reasonable attorney and
expert witness fees) to any prevailing or substantially prevailing party, whenever
the court determines such award is appropriate.” 33 U.S.C. § 1365(d). On remand
Plaintiffs contended that they were entitled to an award of litigation costs under
the catalyst theory because Defendants had acted in response to their lawsuit. But
the magistrate judge denied Plaintiffs’ motion for costs because “Defendants’
action was not required by law.” Amigos Bravos v. E.P.A., No. 99-CV-00327, slip
op. at 8 (D.N.M. Jan.16, 2002).
On appeal Plaintiffs challenge the magistrate judge’s decision on two
grounds. First, they argue that Defendants’ actions were mandated by law, and not
discretionary. Second, they contend that the judge incorrectly applied the catalyst
test because to meet the “required by law” element, a plaintiff need not
demonstrate that the defendant had a nondiscretionary duty. In Plaintiffs’ view,
the “element is satisfied if defendants’ action is more than a ‘wholly gratuitous
response to an action that in itself was frivolous or groundless.’” Aplt. Br. at 26
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(quoting J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1475 (10th Cir.
1985)).
Defendants respond that the district court correctly denied Plaintiffs’ request
for costs because Plaintiffs failed to establish either the causation element or the
required-by-law element of the catalyst test. Alternatively, they claim that after
the Supreme Court’s decision in Buckhannon Board & Care Home, Inc. v. West
Virginia Department of Health and Human Resources, 532 U.S. 598 (2001), the
catalyst theory is no longer an appropriate basis for awarding attorney fees to
parties, like Plaintiffs, who do not obtain some form of court-ordered relief.
Because we conclude that Plaintiffs may not recover their costs even if the catalyst
theory applies, we need not decide whether Buckhannon forecloses application of
the catalyst theory in the context of § 505(d).
“This court reviews a district court’s refusal to grant attorney’s fees for
abuse of discretion.” Center for Biological Diversity, 262 F.3d at 1080.
Underlying factual findings are reviewed for clear error; legal conclusions are
reviewed de novo. Id. We first discuss whether Defendants’ actions were
discretionary or mandatory. We then address whether the catalyst test permits
recovery of costs even when the defendant’s actions were discretionary.
II. Were Defendants’ Actions Mandatory?
Count I of Plaintiffs’ complaint alleged that the EPA had a non-
discretionary duty under CWA § 309(a)(3) “to take enforcement action . . .
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regarding the illegal discharges of pollutants from Molycorp’s waste rock dumps,”
and thus should be ordered to issue a compliance order or file a civil action against
Molycorp. Aplt. App. at 80. Count II alleged that the EPA had a nondiscretionary
duty under a combination of §§ 301(a), 301(e), and 402(a)(1) to either issue a
permit for the known illegal discharges or prohibit them, and asked the court to
order the EPA to take one of these actions. We now address whether EPA’s
issuance of a permit to Molycorp was mandated under the theory of either claim.
A. Count I: The § 309(a)(3) Claim
Section 309(a)(3) reads: “Whenever on the basis of any information
available to him the Administrator finds that any person is in violation of [effluent
limitations] . . . , he shall issue an order requiring such person to comply with such
section or requirement, or he shall bring a civil action . . . .” 33 U.S.C.
§ 1319(a)(3).
Despite the “he shall” language, the weight of authority is that § 309(a)(3)
does not impose a mandatory duty on the Administrator. See Sierra Club v.
Whitman, 268 F.3d 898, 900, 902-03 (9th Cir. 2001) (EPA does not have a
mandatory duty to investigate and make findings, nor does it have a mandatory
duty to take enforcement action once a finding is made.); Dubois v. Thomas, 820
F.2d 943, 947, 951 (8th Cir. 1987) (same); Sierra Club v. Train, 557 F.2d 485,
488-91 (5th Cir. 1977); City of Olmstead Falls v. EPA, 233 F. Supp. 2d 890, 901-
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04 (N.D. Ohio 2002); 2 Envtl. Law Inst., Law of Environmental Protection § 9:4
(Sheldon M. Novick ed., 2002). But see South Carolina Wildlife Fed’n v.
Alexander, 457 F. Supp. 118, 134 (D.S.C. 1978) (“309(a)(3) imposes a
nondiscretionary duty on the Administrator to issue compliance orders once he
‘finds’ a violation of the [CWA]”); Illinois v. Hoffman, 425 F. Supp. 71, 77 (S.D.
Ill. 1977) (Administrator’s duty to act is triggered “[w]henever a violation is
directed to the attention of the Administrator.”); cf. Save the Valley, Inc. v.
U.S.E.P.A, 99 F. Supp. 2d 981 (S.D. Ind. 2000) (holding that under CWA
§ 309(a)(2) the Administrator has a duty to make a finding when she becomes
aware of violations, but specifically distinguishing that section from § 309(a)(3)).
The view that § 309(a)(3) does not restrict the Administrator’s discretion is
in keeping with the Supreme Court’s pronouncement of “the general unsuitability
for judicial review of agency decisions to refuse enforcement.” Heckler v.
Chaney, 470 U.S. 821, 831 (1985). The Heckler Court’s explanation included the
following passage pertinent to the present case:
[A]n agency decision not to enforce often involves a complicated
balancing of a number of factors which are peculiarly within its
expertise. Thus, the agency must not only assess whether a violation
has occurred, but whether agency resources are best spent on this
violation or another, whether the agency is likely to succeed if it acts,
whether the particular enforcement action requested best fits the
agency’s overall policies, and, indeed, whether the agency has enough
resources to undertake the action at all. An agency generally cannot
act against each technical violation of the statute it is charged with
enforcing. The agency is far better equipped than the courts to deal
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with the many variables involved in the proper ordering of its
priorities.
Id. at 831-32. (We should add that these reasons for taking no action at all may
also justify taking partial enforcement action rather than engaging in full
enforcement.) The Court concluded that “an agency’s decision not to take
enforcement action should be presumed immune from judicial review under [the
Administrative Procedure Act].” Id. at 832.
Plaintiffs acknowledge this authority to some extent. They explicitly
concede that “under section 309(a)(3), there is no duty to make a finding . . . .”
Aplt. Reply Br. at 19. They assert, however, that (1) the Administrator made the
requisite finding here; and (2) once such a finding is made, § 309(a)(3) mandates
enforcement action. We need not address Plaintiffs’ second assertion. Even were
we to create a circuit split by agreeing that a finding mandates enforcement action,
we would still reject Plaintiffs’ argument for two reasons.
First, the Administrator did not make the required finding that there had
been a violation of the CWA. The person identified by Plaintiffs as having made
the finding was an EPA geologist, Mr. Abshire. But EPA geologists have not been
delegated the authority to make § 309(a)(3) findings. The EPA Delegations
Manual delegates the Administrator’s authority to make § 309(a) findings to the
Regional Administrators and the Assistant Administrator for Enforcement and
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Compliance Assurance. 1 The delegations manual for Region VI in turn states that
(1) this authority has been redelegated to the Director of the Compliance
Assurance and Enforcement Division and the Director of the Water Quality
Protection Division, and (2) the authority “may not be redelegated further.” Aple.
Br. Addendum at vii. 2
1
The substance of the provision in the manual is as follows:
1. AUTHORITY. Pursuant to Section 309(a) of the Clean Water Act
(CWA), to make findings of violation; to issue and serve notices of violation; to
issue and obtain service of administrative compliance orders; to send copies of
any orders issued to appropriate States; and to confer with persons to whom an
order is issued.
2. TO WHOM DELEGATED. Regional Administrators and Assistant
Administrator for Enforcement and Compliance Assurance.
3. LIMITATIONS.
a. The Assistant Administrator for Enforcement and Compliance
Assurance may exercise these authorities in multi-regional cases and cases of
national significance. In such cases, the Assistant Administrator for Enforcement
and Compliance Assurance or his/her designee must notify any affected Regional
Administrators or their designees when exercising the above authorities to issue
orders and to confer with a person to whom an order is issued.
b. The Regional Administrators may exercise the above only for those
matters initiated by the Regions.
4. REDELEGATION AUTHORITY. These authorities may be redelegated
to the Division Director level, and the authority to confer with persons to whom
an order has been issued may be further redelegated to the staff level.
2
The substance of the provision is as follows:
1. AUTHORITY. Pursuant to Section 309(a) of the Clean Water Act
(CWA):
(continued...)
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Plaintiffs have neither alleged nor offered evidence that anyone with
authority to make findings made the necessary finding here. Perhaps Plaintiffs
could prove that someone with such authority knew that there was a statutory
violation at the Molycorp mine. But “knowing” is not “finding.” The statutory
word “finds” would be a most peculiar way of expressing “knows.” Indeed,
Plaintiffs’ proper acknowledgment that there is no duty to make a finding—i.e.,
that making a finding is discretionary—would make it impossible to equate
“making a finding” with “knowing,” which is not a matter of discretion.
The second flaw in Plaintiffs’ argument is that even if § 309(a)(3) mandates
certain action, it certainly did not mandate what the EPA ended up doing in this
2
(...continued)
a. to make findings of violation,
b. to issue and serve notices of violation,
c. to issue and obtain service of administrative compliance orders,
d. to send copies of any orders issued to appropriate States, and
e. to confer with persons to whom an order is issued.
2. TO WHOM DELEGATED. Paragraphs 1a, b, c, d, and e are
redelegated to the Director, Compliance Assurance and Enforcement Division,
and Director, Water Quality Protection Division.
3. LIMITATIONS. The authority of the Director, Compliance
Assurance and Enforcement Division is limited to the NPDES Program and the
authority of the Director, Water Quality Protection Division is limited to the
Wetlands Protection Program.
4. REDELEGATION AUTHORITY. The authority in subparagraph 1.e
may be redelegated to staff level. All other authorities may not be redelegated.
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case. Plaintiffs have failed to connect the relief obtained with the relief that
allegedly would have been mandated. What the EPA did to moot Plaintiffs’ suit
was issue a permit to Molycorp. But issuance of a permit is not an act mandated
by § 309(a)(3). What that section says the Administrator “shall” do if she finds a
violation is issue a compliance order or bring a civil action. It says nothing about
issuance of a permit.
In apparent recognition of this fact, Count I of Plaintiffs’ complaint did not
seek issuance of a permit, even as an alternative. The relief sought in that count
was a court order that the EPA either issue a compliance order to Molycorp or
bring a civil action against Molycorp. Even if that relief was mandatory, that
relief was never obtained. (The fact that issuance of a permit could moot a claim
that the Administrator failed to comply with § 309(a)(3) in itself strongly suggests
that § 309(a)(3) is not a mandatory provision; but we need not resolve that matter
on this appeal.)
For the above reasons, we hold that the EPA’s action—issuance of a
permit—was not mandated by § 309(a)(3).
B. Count II: The §§ 301(a)/301(e)/402(a)(1) Claim
Plaintiffs assert that a nondiscretionary duty to enforce can also be derived
from a combination of §§ 301(a), 301(e), and 402(a)(1) of the CWA. Section
301(a) states the general rule that “the discharge of any pollutant by any person
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shall be unlawful,” 33 U.S.C. § 1311(a). Section 301(e) provides, “Effluent
limitations . . . shall be applied to all point sources of discharge of
pollutants . . . .” 33 U.S.C. § 1311(e). And § 402(a)(1) reads, “[T]he
Administrator may, after opportunity for public hearing, issue a permit for the
discharge of any pollutant, or combination of pollutants, notwithstanding section
[301(a)].” 33 U.S.C. § 1342(a)(1).
Plaintiffs’ argument is that because all point sources “shall be” subject to
effluent limitations, and all discharges “shall be unlawful” (in the absence of a
§ 402 permit), the EPA must “either permit [meaning ‘issue a permit for’] or
prohibit an illegal discharge.” Aplt. Br. at 37. Relying on Natural Resources
Defense Council v. Costle, 568 F.2d 1369, 1375 (D.C. Cir. 1977), Plaintiffs
contend that despite the appearance of the word “may” in § 402(a)(1), the “EPA
does not have the discretion to exempt a known discharge from the mandates of
the CWA.” Aplt. Br. at 38. That proposition, however, does not take Plaintiffs as
far as they need to go. Costle merely stated that the EPA must either issue a
permit for the offending discharge or leave the discharger subject to the total
prohibition expressed in § 301. Costle, 568 F.2d at 1375. The court did not
address whether the EPA must take action against a violator. And nothing in
§§ 301(a), 301(e), or 402(a)(1) compels such action.
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We conclude that the statutory language, particularly when read in light of
Heckler, indicates that the EPA is not “required by” §§ 301(a), 301(e), and
402(a)(1) of the CWA to take enforcement action against all illegal discharges.
Accordingly, EPA’s issuance of the permit to Molycorp was not mandated by the
statutory provisions relied upon in Plaintiffs’ Count II.
III. Can a Discretionary Act Be “Required By Law”?
Alternatively, Plaintiffs contend that the required-by-law element of the
catalyst test can be established even in the absence of a mandatory duty. They
argue that under this court’s decision in J & J Anderson Inc., 767 F.2d at 1475, a
defendant’s conduct was “required by law” for purposes of the catalyst test when it
was not a “‘wholly gratuitous response to an action that in itself was frivolous or
groundless.’” Aplt. Br. at 26.
Plaintiffs’ argument points to an apparent inconsistency in this circuit’s
formulation of the second element of the catalyst test. The great majority of our
opinions simply recite the rule that the defendant’s conduct in response to the
plaintiff’s suit must be “required by law.” See Ctr. for Biological Diversity, 262
F.3d at 1081; Powder River Basin Res. Council v. Babbitt, 54 F.3d 1477, 1486
(10th Cir. 1995); City of Chanute v. Williams Natural Gas Co., 31 F.3d 1041, 1048
(10th Cir. 1994); Am. Council of the Blind of Colo., Inc. v. Romer, 962 F.2d 1501,
1504 (10th Cir. 1992); O’Connor v. City and County of Denver, 894 F.2d 1210,
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1226 (10th Cir. 1990); Lopez v. Sullivan, 882 F.2d 1533, 1536 (10th Cir. 1989);
Luethje v. Peavine Sch. Dist. of Adair County, 872 F.2d 352, 354 (10th Cir. 1989);
Supre v. Ricketts, 792 F.2d 958, 962 (10th Cir. 1986); Operating Eng’rs Local
Union No. 3 of the Int’l Union of Operating Eng’rs, AFL-CIO v. Bohn, 737 F.2d
860, 863 (10th Cir. 1984); cf. Foremaster v. City of St. George, 882 F.2d 1485,
1488 (10th Cir. 1989) (plaintiff must show that “he would have prevailed on the
merits”).
In J & J Anderson, 767 F.2d at 1475, however, we followed our recitation of
the two-part test with the following quotation from Williams v. Leatherbury, 672
F.2d 549, 551 (5th Cir. 1982): “Indeed, a defendant may unilaterally undertake
action that moots the suit. In such a case, a plaintiff may still recover attorney’s
fees if he can show both a causal connection between the filing of the suit and the
defendant’s action[,] and that the defendant’s conduct was required by law, i.e.,
not a wholly gratuitous response to an action that in itself was frivolous or
groundless.” Some subsequent opinions have repeated the emphasized language.
See Ellis v. Univ. of Kan. Med. Ctr., 163 F.3d 1186, 1199 (10th Cir. 1998); Beard
v. Teska, 31 F.3d 942, 953 (10th Cir. 1994); Collins v. Romer, 962 F.2d 1508,
1514 (10th Cir. 1992).
On several occasions we have sought to reconcile what appear to be two
separate tests. In our most recent attempt we explained: “The essential part of
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that language is ‘that the defendants’ conduct was required by law.’ The court’s
reference to ‘a wholly gratuitous response to an action that in itself was frivolous
or groundless’ is obviously intended as only one example of the type of conduct
referred to by the court.” Kan. Health Care Ass’n, Inc. v. Kan. Dep’t of Soc. &
Rehab. Servs., 31 F.3d 1052, 1055 (10th Cir. 1994). See Supre v. Ricketts, 792
F.2d at 964 (Seth, J., concurring) (“the term ‘gratuitous conduct’ [has] acquired a
definition by our cases . . . as an action not required by law”); accord Goichman v.
City of Aspen, 859 F.2d 1466, 1471 (10th Cir. 1988).
Regardless of the formulation adopted in the opinion, however, our
decisions are generally consistent. All but one case that recites the required-by-
law element either (1) found the second prong of the catalyst test was met because
the plaintiff demonstrated (or the defendant did not contest) that it would have
prevailed on the merits, see Ctr. for Biological Diversity, 262 F.3d at 1081; Beard,
31 F.3d at 953; Collins, 962 F.2d at 1514, 1517; Luethje, 872 F.2d at 354-56;
Foremaster, 882 F.2d at 1489; (2) found an award of attorney fees inappropriate
because the plaintiff would not have prevailed, see Kan. Health Care Ass’n, 31
F.3d at 1055; City of Chanute, 31 F.3d at 1049-50; O’Connor, 894 F.2d at 1226-
27; Goichman, 859 F.2d at 1471; Supre, 792 F.2d at 963; J & J Anderson, 767
F.2d at 1477-78; (3) did not need to address the second prong because no causal
connection was established, see Am. Council of the Blind, 962 F.2d at 1505-08;
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Operating Eng’rs, 737 F.2d at 863-64; or (4) remanded on other grounds, see
Powder River Basin Res. Council, 54 F.3d at 1486-87; Lopez, 882 F.2d at 1536-37.
The sole exception is Ellis, 163 F.3d 1186. In Ellis the plaintiff brought
race discrimination and retaliation claims against the hospital where she worked
and several of its employees. Our opinion recited in some detail the evidence
supporting the plaintiff’s claims. To determine whether she would actually have
prevailed, however, would have required an assessment of the credibility of the
pertinent witnesses. We ruled that the plaintiff was entitled to an award of
attorney fees under the catalyst test, observing “that [the plaintiff’s] action against
the individual defendants was not frivolous or groundless . . . .” Id. at 1199.
Ellis can be reconciled with our other precedents on the ground that in Ellis
we could not determine whether the defendants’ actions were “required by law”
without “‘conducting the very trial mooted by a defendant’s voluntary
compliance.’” Morris v. City of W. Palm Beach , 194 F.3d 1203, 1210 (11th Cir.
1999) (quoting Little Rock Sch. Dist. v. Pulaski County Special Sch. Dist. , 17 F.3d
260, 263 n.1 (8th Cir. 1994)). When a full-scale evidentiary hearing would be
required to determine whether the plaintiff would have prevailed, it is worth
keeping in mind the Supreme Court’s admonition that a “request for attorney’s
fees should not result in a second major litigation.” Hensley v. Eckerhart , 461
U.S. 424, 437 (1983).
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That is not, however, the situation presented by this case. We can readily
determine on the record before us that the action taken by the EPA was not a
legally mandated response to Plaintiffs’ lawsuit. Accordingly, even if the catalyst
theory still applies to attorney fee requests under § 505(d) of the CWA, Plaintiffs
are not entitled to recover their fees here.
It certainly appears that Plaintiffs performed a significant public service in
bringing this pollution problem to the attention of the EPA and holding its feet to
the fire. For that, they “can derive satisfaction from the fruit of [their] labors.”
Goichman , 859 F.2d at 1471. But there is no legal authority for us to order further
compensation.
We AFFIRM the judgment of the district court.
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