Owner-Operator v. Bissell

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0131P (6th Cir.)
File Name: 00a0131p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

;

OWNER-OPERATOR

INDEPENDENT DRIVERS

ASSOCIATION, INC.; MARK P.

No. 98-6037
NYE; KENNETH D.

MCFADDEN, >
Plaintiffs-Appellees, 



v.


KEITH BISSELL,
Defendant-Appellant. 
1

Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 90-00251—Robert L. Echols, Chief District Judge.
Argued: September 24, 1999
Decided and Filed: April 12, 2000
Before: KRUPANSKY, NELSON, and SILER, Circuit
Judges.

1
2 Owner-Operator Independent No. 98-6037
Drivers v. Bissell

_________________
COUNSEL
ARGUED: Mark A. Hudson, OFFICE OF THE
ATTORNEY GENERAL, Nashville, Tennessee, for
Appellant. W. Gary Blackburn, BLACKBURN, SLOBEY,
FREEMAN & HAPPELL, Nashville, Tennessee, for
Appellee. ON BRIEF: Mark A. Hudson, OFFICE OF THE
ATTORNEY GENERAL, Nashville, Tennessee, for
Appellant. W. Gary Blackburn, BLACKBURN, SLOBEY,
FREEMAN & HAPPELL, Nashville, Tennessee, Paul D.
Cullen, CULLEN LAW FIRM, Washington, D.C., for
Appellee.
SILER, J., delivered the opinion of the court. NELSON, J.
(pp. 8-12), delivered a separate opinion concurring in both the
opinion of the court and the judgment. KRUPANSKY, J.
(pp. 13-34), delivered a separate dissenting opinion.
_________________
OPINION
_________________
SILER, Circuit Judge. Defendant, Keith Bissell, a former
commissioner for the Tennessee Public Service Commission
(“PSC”), was found to have violated the plaintiffs’, Mark P.
Nye, Kenneth D. McFadden, and Owner-Operator
Independent Drivers Association, Inc. (“OOIDA”),
constitutional rights. Bissell appealed and this court upheld
the district court’s decision, but vacated its award of
injunctive relief and remanded for clarification. In light of
changing circumstances, the award of injunctive relief was
found to be unnecessary, but the district court still held
OOIDA to be a “prevailing party” and awarded OOIDA
attorneys’ fees and costs. Bissell now challenges the district
court’s award of attorneys’ fees and costs to OOIDA. For the
following reasons, we AFFIRM.
34 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 3
Drivers v. Bissell Drivers v. Bissell

dismissed by the district court, or vacated by this circuit’s BACKGROUND
decision of August 21, 1997.
OOIDA brought an action against defendants PSC, Bissell,
E. The declaratory judgment relied upon by the panel and two officers of PSC alleging that the defendants violated
majority in the instant appeal to support its reasoning and the Fourth Amendment by conducting unreasonable searches
judgment is non-existent. of trucks traveling on public state and interstate highways in
Tennessee. OOIDA also brought a claim under 42 U.S.C.
F. The Plaintiffs’ have failed to prevail on a single cause of § 1983 for violations of the Due Process and Equal Protection
action charged in their complaint. Clauses of the Fourteenth Amendment and the Commerce
Clause of Article I, Section 8, Clause 5 of the Constitution.
G. The district court’s sua sponte application of the “catalyst Thereafter, summary judgment was granted by the district
test” constituted an abuse of discretion and was unwarranted. court in favor of all the defendants on the Fourth Amendment
issue, as well as for the two PSC officers on the remaining
H. Plaintiffs have failed to carry their burden to prove that issues. All claims against PSC were dismissed pursuant to
they were a “prevailing party” against Bissell. the Eleventh Amendment which grants states immunity from
suits in federal court. After a bench trial, the district court
Accordingly, for the reasons stated herein, I would reverse found that Bissell had violated OOIDA’s constitutional rights
the district court’s decision to award Plaintiffs’ attorney fees and enjoined Bissell from continuing to violate the plaintiffs’
as prevailing parties against Bissell in the amount of rights. The district court also awarded OOIDA reasonable
$584,200.00, and remand the case with instructions to the costs and attorneys’ fees under 42 U.S.C. § 1988.
district court to vacate its judgment.
This court upheld the district court’s grants of summary
judgment, but vacated the district court’s award of injunctive
relief finding that it was too vague. We remanded the case
with instructions to the district court to determine if injunctive
relief was still necessary since Bissell had resigned as a
commissioner, and the PSC had been abolished by the
Tennessee legislature.
On remand, the district court found that, in light of the
changed circumstances, no irreparable damage could be done,
and, therefore, injunctive relief was not necessary. The
district court also found that OOIDA was still a “prevailing
party” entitled to attorneys’ fees and reasonable costs under
42 U.S.C. § 1988. Citing Perket v. Secretary of Health and
Human Services, 905 F.2d 129, 132 (6th Cir. 1990), the
district court stated that, although OOIDA had not ultimately
received any judicially awarded relief, it had demonstrated
that the present “lawsuit acted as a ‘catalyst’ in prompting
4 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 33
Drivers v. Bissell Drivers v. Bissell

defendants to take the desired action” and awarded OOIDA original appellate panel that decided this case, to impress and
$515,700 for fees and $68,500 for costs. attach greater weight and veracity to the result-oriented
commentaries that follow it and which are currently beyond
STANDARD OF REVIEW corroboration. Moreover, the concurring opinion seeks
additional weight and veracity by implying the concurrence
This court reviews awards of attorneys’ fees under an abuse and endorsement of the other judges who participated in the
of discretion standard. Loudermill. v. Cleveland Bd. of Educ., initial discussion by convoluted rhetorical innuendoes, such
844 F.2d 304, 308-09(6th Cir. 1988). “A district court abuses as: “[o]n appeal, we vacated the injunction…”; “[w]e did so
its discretion when it relies on clearly erroneous findings of not because…”; “because we thought…”; “[w]e did not
fact ... or when it improperly applies the law or uses an question…”; “unless the district court knew something that
erroneous legal standard.” Christian Schmidt Brewing Co. v. we did not…”; etc. (Emphases added).
G. Heileman Brewing Co., Inc., 753 F.2d 1354, 1356 (6th Cir.
1985)(citations omitted). Under this standard, this court must Because the concurring opinion conveys questionable
review the district court’s legal conclusions de novo and its implications, it should be disregarded as a contributing factor
factual findings for clear error. Perket, 905 F.2d at 132. in the instant appeal.
DISCUSSION To briefly recapitulate, I dissent because:
Under 42 U.S.C. § 1988, district courts have the discretion A. This circuit’s decision of August 21, 1997 was a final
to award attorneys’ fees to a “prevailing party” in a civil deposition of this case; hence,
rights lawsuit. A “prevailing party” need not actually prevail
on the merits of its claim so long as it “suceed[s] on any 1. the principles of res judicata apply to its findings of
significant issue in litigation which achieves some of the fact and conclusions of law; and
benefit the parties sought in bringing suit.” Hensley v
Eckerhart, 461 U.S. 424, 433 (1983), quoting Nadeau v. 2. its findings of fact and conclusions of law constitute
Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978). Any the law of the case.
enforceable judgment, or comparable type of relief, or
settlement, therefore, will generally make a plaintiff a B. The district court’s failure to respond to this circuit’s
“prevailing party” as long as “his claim materially alters the mandate “to describe in reasonable detail” the extent of
legal relationship between the parties by modifying the Bissell’s unconstitutional behavior leaves the record of
defendant’s behavior in a way that directly benefits the evidence against Bissell unchanged. It was, and is, currently
plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111 (1992). A insufficient to support the district court’s decision which was
plaintiff is benefitted by “monetary damages, injunctive relief, vacated.
or a voluntary change in a defendant’s conduct.” Woolridge
v. Marlene Indus., 898 F.2d 1169, 1173 (6th Cir. 1990). C. The Plaintiffs failed to prove any constitutional
infractions to support their 42 U.S.C. § 1983 claims against
If the plaintiff’s relief stems from a voluntary change in the Bissell.
defendant’s conduct, the plaintiff must show that his or her
lawsuit was the “catalyst” behind that change. Payne v. D. All of the Plaintiffs’ requests seeking declaratory
Board of Educ., Cleveland City Schools, 88 F.3d 392, 397 judgment and injunctive relief were either denied or
32 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 5
Drivers v. Bissell Drivers v. Bissell

without accepting its reasoning. He is free to concur in part (6th Cir. 1996). The district courts use a two-part test to
and dissent in part with a proposed opinion. He may concur determine whether a plaintiff’s lawsuit is the “catalyst” to a
with a proposed opinion and submit his personal views and defendant’s changed behavior:
reasons in a separate concurring opinion. He may enter a
dissent to a proposed opinion or he may concur without First, in order to qualify as a “prevailing party,” a
reservation in the reasoning and disposition articulated in a plaintiff must demonstrate that his or her lawsuit was
proposed decision. However, thus having exercised his causally related to securing the relief obtained. This
option, including a voluntary preference to remain silent, to determination is factual.
express his position and participation in a given case, his
election, is irreversible, a fait accompli, as it relates to that Secondly, plaintiff must establish some minimum basis
case. in law for the relief secured .... “If it has been judicially
determined that defendants’ conduct, however beneficial
The author of the concurring opinion in this appeal agreed it may be to plaintiffs’ interests, is not required by law,
without comment, condition, or reservation in this circuit’s then defendants must be held to have acted gratuitously
reasoning and disposition in Owner-Operator Independent and plaintiffs have not prevailed in a legal sense.”
Drivers Association v. Bissell, No. 94-6178/6179, 1997 WL
525411 (6th Cir. Aug. 21, 1997). By remaining silent he Johnston v. Jago, 691 F.2d 283, 286 (6th Cir. 1982), quoting
waived any option subsequently to explain or express the Nadeau v. Helgemoe, 581 F.2d 275, 281 (1st Cir. 1978).
reason for his vote to concur in the decision. The opinion See Hewitt v. Helms, 482 U.S. 755, 761 (1987)(“[I]f the
issued by the original panel of this circuit is simple, clear, defendant, under pressure of the lawsuit, alters his conduct ...
concise, unambiguous, and understandable. It needs no towards the plaintiff that was the basis for the suit, the
interpretation. plaintiff will have prevailed.”). Although not conclusive,
chronological evidence is a factor in determining whether a
It would be highly irregular and inappropriate under any plaintiff’s lawsuit is the catalyst for the defendant’s changed
circumstances for a single member of a three-judge appellate conduct. Payne, 88 F.3d at 399.
panel to revisit a decision of that panel and unilaterally seek
to rewrite and revise the text and substance of the decision Bissell submits that the district court erred by applying the
ostensibly with the inferred approval of his associate judges catalyst test because his resignation and the abolition of the
who participated in the disposition of the appellate PSC were not voluntary actions in response to the OOIDA’s
controversy. lawsuit. According to Bissell, the district court failed to make
any findings of facts when determining whether OOIDA was
The concurring opinion in this appellate review has the a “prevailing party.” When deciding to award OOIDA
same objective. It seeks by revision unilaterally to infuse an attorneys’ fees and costs, the district court stated:
element of intent and purpose into the August 21, 1997
decision of this circuit that cannot be inferred or implied from In the present case, the Court initially awarded injunctive
the written text of that decision. relief to Plaintiff after concluding that Defendant
Bissell’s conduct violated Plaintiff’s constitutional
The opening paragraph of the concurring opinion of the rights. The Court’s opinion contained specific findings
instant appeal announces that its author was a member of the of discriminatory and unconstitutional policies and
practices of the Defendants, as well as numerous illegal
6 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 31
Drivers v. Bissell Drivers v. Bissell

acts by employees of the PSC. In vacating the injunction, Black’s Law Dictionary, Fifth Edition, provides the
the Sixth Circuit did not disturb any of the Court’s following definition,
substantive findings and conclusions regarding these
matters, including Defendant Bissell’s unconstitutional Vacate. To annul; to set aside; to cancel or rescind. To
behavior. Rather, the appellant court merely vacated the render an act void; as to vacate an entry of record, or a
injunction because of its uncertain demands and directed judgment.
the Court to clarify the injunction’s language, and to
consider whether Defendant’s conduct warrants such BLACK’S LAW DICTIONARY 1388 (5th ed. 1979). The circuit
injunctive relief now that the PSC has been abolished and court decision voided the district court’s memorandum
Defendant is no longer a commissioner. The sole reason opinion in its entirety and admonished the trial judge upon
this Court did not reissue the injunction on remand was remand to consider the propriety of enjoining Bissell under
the state’s interim decision to eliminate the PSC entirely, any circumstances since he was only one of three elected
along with Defendant Bissell’s resignation from his commissioners that administered the PSC.
position as commissioner. These actions were largely in
response to the Court’s determination that widespread Moreover, the trial judge’s repetitious argument is highly
unconstitutional practices were taking place. The Court implausible in the absence of any remaining viable
finds that, as in Village of Crestwood, Defendants’ declaratory judgment that could anchor the district court’s and
remedial actions were causally linked to Plaintiffs’ the instant panel majority’s reasoning and conclusions.
institution of suit and initial victory in this Court.
(Emphasis added.) The circuit court’s decision of August 21, 1997 vacating the
district court’s memorandum opinion of August 10, 1994,
The evidence is undisputed. OOIDA received declaratory endorsed the conclusion that the declaratory judgment,
and injunctive relief from the district court on the merits of its repeatedly alluded to by the trial judge, and a reason that
case. Consequently, the district court found that OOIDA was prompted the panel majority to conclude that “the declaratory
the “prevailing party” entitled to attorneys’ fees. This court judgment issued by the district court is sufficient reason alone
upheld the district court’s declaratory judgment and only to deem OOIDA a prevailing party in this case,” was a fiction,
vacated the award of injunctive relief so that the district court a fact which is the coup de grace to the panel majority’s
could clarify its ruling. It is also undisputed that Bissell’s reasoning.
resignation and the abolition of the PSC occurred after
OOIDA filed its lawsuit. Although the record does lack Lastly, I take issue with the concurring opinion’s
specific findings of fact by the district court to support its commentaries and the inferences implicit therein. It is
conclusion that Bissell’s actions and the abolition of the PSC recognized that judges have wide discretion to question and
were in response to the district court’s early holding that distinguish, by interpretation, the precedential value of cited
widespread unconstitutional practices were taking place, the legal authority and its application to a fact specific scenario.
declaratory judgment issued by the district court is sufficient It is also equally recognized that individual members of a
reason alone to deem OOIDA a “prevailing party” in this three-judge appellate reviewing panel are entrusted with a
wide array of discretionary options to express their individual
unrestrained opinions as those opinions apply to a given
disposition. A judge may concur in the result of an opinion
30 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 7
Drivers v. Bissell Drivers v. Bissell

OOIDA’s constitutional rights. When the district court failed case.1 Therefore, the district court did not abuse its discretion
to comply, this court’s August 21, 1997 disposition became in awarding OOIDA attorneys’ fees and reasonable costs.
the law of the case and subject to the principle of res judicata.
See Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 582 The eloquent dissent suggests that this opinion is contrary
(6th Cir. 1994). The earlier decision cannot be overruled, set to our prior decision in Owner-Operator Independent Drivers
aside, modified, or amended except by en banc disposition or Ass’n v. Bissell, No. 94-6178/6179, 1997 WL 525411 (6th
by a ruling of the Supreme Court.6 The trial judge has Cir. August 21, 1997), but it is not intended to contradict our
repeatedly argued that, “[i]n vacating the injunction, the Sixth prior decision and does not in fact contradict it. Our prior
Circuit did not disturb any of the Court’s [unidentified] decision did not set aside a declaratory judgment obtained by
substantive findings and conclusions regarding these OOIDA, and the record shows that OOIDA likely would have
[unidentified] matters, including Defendant Bissell’s obtained injunctive or other relief against Bissell had Bissell
[unidentified] unconstitutional behavior,” a repetitious remained in office and had the PSC existed in its previous
argument which has apparently received favorable panel structure.
majority consideration.
AFFIRMED.
Contrary to the district court’s argument, however, the
circuit court order of August 21, 1997 was clear, concise, and
understandable. It was unconditional. It reserved no
substantive findings of fact or conclusions of law purportedly
incorporated into the trial court’s decision, because the circuit
court concluded that such findings of fact and conclusions of
law, particularly those implicating Bissell, were non-existent.

6
See, e.g., United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996)
(propounding that “[c]ustom and tradition in the various circuits of the
United States Court of Appeals dictate that one panel of a circuit court
will not overrule the decision of another panel; only the court sitting en
banc may overrule a prior decision of a panel.”) (citation omitted);
United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994) (explaining 1
that “[u]nder the doctrine of law of the case, findings made at one point The dissent finds fault in this statement. Although Rhodes v.
in the litigation become the law of the case for subsequent stages of that Stewart, 488 U.S. 1, 3 (1988), states that nothing in Hewitt v. Helms, 482
same litigation.”) (citation omitted). In the case sub judice, a prior panel U.S. 755 (1987), “suggested that the entry of [a declaratory] judgment in
of the Sixth Circuit determined that the district court had not made a party’s favor automatically renders that party prevailing under § 1988,”
sufficient findings to support its injunction against Bissell, and it clarifies that by holding that the judgment must affect the behavior of
accordingly vacated the injunction and remanded the action for the defendant toward the plaintiff. Rhodes, 488 U.S. at 3. That has
reconsideration. Following remand, the district court made no findings occurred here. The declaratory judgment operated as a catalyst to force
supportive of its prior injunction. Accordingly, the prior circuit court Bissell’s resignation and a restructure of the PSC. That was the
panel ruling that the district court’s injunction against Bissell was conclusion of the district court which had no direct evidence on that issue
unsupported by adequate factual findings remains the law of the case, but had ample circumstantial evidence upon which it could have drawn
which the current panel may not disturb. that inference.
8 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 29
Drivers v. Bissell Drivers v. Bissell

___________________ Consequently, it is impossible to comprehend the bounds
of the district court’s order and we must vacate the
CONCURRENCE injunction.
___________________
Bissell, 1997 WL 525411, at *2 (emphases added). The
DAVID A. NELSON, Circuit Judge, concurring. I concur concise language of the opinion repudiates the district court’s
in the judgment and in the opinion Judge Siler has written for exculpatory statement. Moreover, the court’s record of this
the court. As a member of the panel that vacated the district case belies the district court’s representation that “these
court’s injunction, however, I should like to add a few words actions [the abolition of the PSC and Bissell’s resignation as
explaining why I do not believe that the district court one of its three elected commissioners] were largely in
misunderstood what it was being asked to do on remand. response to the Court’s determination that widespread
unconstitutional practices were taking place.” That statement
By way of background, it is worth noting that the district also contradicts this court’s previous admonition that “upon
court had already delivered itself of a 43-page memorandum remand the district court should consider whether [Bissell’s]
opinion, entered on August 10, 1994, following an 11-day specific conduct warrants injunctive relief against him, and
bench trial. The opinion contained extensive findings on how indeed the propriety of any such relief since Bissell was just
out-of-state truckers were discriminated against in favor of in- one of three Commissioners….” Bissell, 1997 WL 525411,
state truckers in the enforcement of Tennessee’s motor carrier at *2.
safety regulations.
The legal effect of this court’s previous order vacating the
The district court found, for example, that enforcement trial court’s first judgment against Bissell in Owner-Operator
officers in East Tennessee were told by Public Service Independent Drivers Ass’n v. Bissell, No. 94-6178/6179,
Commissioner Bissell to stop checking for safety defects in 1997 WL 525411 (6th Cir. Aug. 21, 1997) was a mandate to
trucks that were leaving Tennessee. Bissell, the court the district court soliciting a declaratory judgment5 defining
determined, told the officers to limit their safety inspection the “extent of Bissell’s objectionable activities,” Bissell,
efforts to trucks coming from outside the state. The court 1997 WL 525411, at *2, if any existed, that infringed
further found that “[t]he policy followed in East Tennessee
tended to favor in-state trucking companies over out-of-state
trucking companies;” that trucks traveling in both directions 5
should have been inspected for safety violations; and that Factually, contrary to the panel majority’s conclusion, the previous
decision of this court disclaimed the existence of a declaratory judgment
there were inspection points in Middle and West Tennessee that had adjudicated the rights and status as between OOIDA and Bissell
where trucks going in both directions were inspected. as demonstrated by its decision vacating the trial court’s injunction which
purportedly embraced what now clearly surfaces as a discredited illusion
Discrimination against out-of-state truckers was linked to in light of the previous panel’s inquiry seeking inculpatory
extensive fund-raising efforts conducted among Tennessee unconstitutional activities committed by Bissell which were detrimental
trucking companies by and on behalf of individual to OOIDA.
commissioners, including Commissioner Bissell. A Public Black’s Law Dictionary describes “declaratory judgment” as a
Service Commission enforcement officer testified, for “remedy for determination of a justiciable controversy where the plaintiff
example, that he drove Bissell’s administrative assistant – is in doubt as to his legal rights.” BLACK’S LAW DICTIONARY 368 (5th ed.
1979).
28 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 9
Drivers v. Bissell Drivers v. Bissell

Bissell was just one of three commissioners, is no longer Jackie Pope, whom Bissell described as his “alter ego” – from
a commissioner, and the Commission itself was one Tennessee trucking company to another to solicit
abolished to be replaced by an agency whose directors campaign funds for Bissell. Another enforcement officer
are no longer elected. testified that his superior told him to “go over to Jefferson
County and lean on a certain trucking company because they
Bissell, 1997 WL 525411, at *2 (emphasis added). had not contributed to Commissioner Bissell’s campaign.”
And, as the district court further found,
The thrust of this court’s first unedited disposition was an
order directing the district court to identify “the extent of “Fund-raising tickets were sold by enforcement officers
Bissell’s objectionable activities,” Id., so that it could while in uniform and on duty. Jackie Pope reminded
evaluate the validity of any future district court ordered officers that the commissioner’s election was coming and
injunction or other sanction issued against Bissell. they needed to help ‘keep our man in office.’ He sent a
list of past contributors to officers in the field to assist in
Unfortunately, the district court elected to ignore this their fund-raising efforts. On occasion, the request to sell
court’s initial directive to declare the “extent of Bissell’s fund-raising tickets came directly from Commissioner
objectionable activities,” Id., that it had relied upon to support Bissell, Jackie Pope, or other PSC staff members. Other
its vacated injunction. Instead, it determined “that in light of such requests came from supervisors in the field. One
the abolishment of the PSC, and the fact that Defendant sergeant told an enforcement officer that ‘it was better to
Bissell no longer held office, there is no compelling reason sell tickets than work midnight at the scales.’ One
for the issuance of an injunction against Defendant Bissell at officer was asked to go to the office of an owner of a
this point.” regulated company to replace a corporate check written
to Commissioner Bissell’s campaign, which is illegal,
The panel majority’s reliance upon the district court’s self- with cash or a personal check.”
serving and totally inaccurate interpretation of this court’s
first decree is troubling. When juxtaposed, it is facially Commissioner Bissell’s fund-raising efforts were hardly
apparent that the district court’s observation that, “[i]n isolated, and I do not believe that we intended to suggest
vacating the injunction, the Sixth Circuit did not disturb any otherwise when this case was last before us.
of the court’s substantive findings and conclusions regarding
these matters, including Defendant Bissell’s unconstitutional The generosity of the Tennessee trucking companies did not
behavior,” (emphasis added), is a misstatement of this court’s go unrewarded, the district court found: “The proof at trial
previous opinion, for the obvious reason that such inculpating presented a significant connection between the perceived, and
findings implicating Bissell were non-existent in the court’s sometimes actual, political clout of some in-state motor
record of proceedings. The very reason that the injunction carriers and the decisions of enforcement officers in
against Bissell was vacated was: administering the truck safety regulations.” A graphic
illustration of the connection may be found in the following
because the district court’s findings of fact and passage from the district court’s opinion:
conclusions of law [the declaratory judgment aspect of its
decision] consistently attribute conduct to ‘defendants,’ “One officer testified that after writing a citation on a
rather than Bissell individually, making it impossible to Tennessee truck company, he received a call from his
discern the extent of Bissell’s objectionable activities. …
10 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 27
Drivers v. Bissell Drivers v. Bissell

supervising sergeant who told him that the trucking Accordingly, without constitutional foundations, both 42
company had just contributed to the commissioner’s U.S.C. § 1983 charges against Bissell entertained and decided
campaign and the owners had asked Jackie Pope, by the district court must fail, and the district court’s decision
Commissioner Bissell’s administrative assistant, if they must be reversed.
could get some help on the ticket. Pope conveyed the
request for help directly to the issuing officer’s Subsequent to a trial of both issues, the district court
supervisor and the sergeant went to court and had the released its ambiguous opinion of August 10, 1994 which
citation dismissed.” (Footnote omitted.) enjoined Bissell “from continuing to violate the Plaintiffs’
rights.” The declaratory judgment and related injunction
After noting that it was the plaintiffs’ burden to establish against Bissell were, by a previous panel of this court, vacated
that “each” defendant had deliberately deprived the plaintiffs and “remanded to allow the district court to conduct further
of a constitutional or statutory right, the district court found proceedings consistent with this opinion.” Owner-Operator
that Independent Drivers Ass’n v. Bissell, No. 94-6178/6179,
1997 WL 525411, at *3 (6th Cir. Aug. 21, 1997). The earlier
“the Defendants engaged in a continuous pattern and panel of this court had decided that:
practice of intentional discrimination against out-of-state
trucking companies and in favor of in-state trucking The district court's one sentence injunction in this case,
companies, and those trucking companies which had enjoining Bissell ‘from continuing to violate the
supported or contributed to the political campaigns of Plaintiff's rights,’ falls considerably short of satisfying
PSC Commissioners.” the requirements of Rule 65(d). The court failed to use
specific terms or to describe in reasonable detail the acts
This intentional discrimination, the court concluded, sought to be restrained. Precision is especially
constituted a violation of the plaintiff’s rights under the Equal important in this case because the district court's
Protection and Commerce Clauses of the United States findings of fact and conclusions of law consistently
Constitution. The district court issued an express declaration attribute conduct to ‘defendants,’ rather than to Bissell
to that effect in the concluding portion of its opinion, and individually, making it impossible to discern the extent of
went on to enjoin defendant Bissell “from continuing to Bissell's objectionable activities.
violate the plaintiff’s rights.”
Bissell, 1997 WL 525411, at *2 (emphasis added). It went on
On appeal, we vacated the injunction. We did so not to observe that the only findings of fact which may have
because we thought the district court had erred in any of its implicated Bissell were his suggestions that officers sell fund-
factual findings, but because we thought it unclear to what raising tickets and concentrate their enforcement inspections
extent the district court intended to find involvement by on inbound traffic.
Bissell in various categories of discriminatory conduct
attributed to “the defendants” generally, just as we thought it After vacating the injunction against Bissell, the previous
unclear how broad the injunction against Bissell was intended panel of this court admonished that:
upon remand the district court should consider whether
that specific conduct warrants injunctive relief against
him, and indeed the propriety of any such relief since
26 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 11
Drivers v. Bissell Drivers v. Bissell

unlawful activity or other identifiable impropriety attributable to be and what specific acts he was to be enjoined from
to Bissell or his staff was disclosed by the reviewable record performing.1
of these proceedings. This is confirmed by the unedited
version of this court’s decision of August 21, 1997, which We did not question the proposition that the orders given by
vacated the district court decision and remanded the case with Bissell to stop checking out-bound trucks for safety defects
instructions to identify Bissell’s unconstitutional behavior, if and to limit safety inspections to in-bound vehicles could
any existed. The district court ignored the instructions support the claims – found meritorious by the district court –
without elaborating on its original factually unsupported of Equal Protection and Commerce Clause violations. With
conclusory statements. respect to the injunction, however, we directed the district
court to consider, on remand, “whether that specific conduct
The district court’s decision declaring the Commission’s warrants injunctive relief against [Bissell], and indeed the
alleged practice of selectively enforcing safety regulations in propriety of any such relief since Bissell was just one of three
favor of in-state trucking companies by concentrating border commissioners, is no longer a commissioner, and the
enforcement on incoming traffic to be unconstitutional was Commission itself was abolished to be replaced by an agency
equally erroneous. whose directors are no longer elected.”
The district court’s opinion noted that “Tennessee’s truck Unlike our dissenting colleague, I do not read this language
safety inspection program is designed to be part of a uniform as an unconditional mandate to determine what
national plan whereby all states check for safety violations in unconstitutional activities Bissell had engaged in beyond
their respective states.” (Emphasis added). Logic and directing that safety inspections be limited to in-bound traffic.
common sense dictate that out-of-state truckers enter Such a determination would have been necessary, to be sure,
Tennessee and after completing their business leave its if the district court had decided to issue an injunction going
borders by crossing into the enforcement jurisdiction of an beyond the in-bound out-bound matter – but unless the district
adjacent sister state that implements its own inspection court knew something that we did not, it seemed obvious to
program. Logic and common sense also dictate that us that the need for any injunction at all had become moot.
concentrated enforcement inspection of incoming truck traffic The district court agreed; soon after the remand, the court
more effectively serves Tennessee’s enforcement purpose of entered a brief order saying that no further injunction would
protecting its citizens from safety hazards inherent to issue. This order was in no way inconsistent with our
vehicular mechanical failures while operated within its mandate.
borders. Implementation of the policy is also less costly for
Tennessee and out-of-state truckers by relieving both from a The plaintiffs then filed a supplemental application for
second, time-consuming, unnecessarily replicating inspection. attorney fees under 42 U.S.C. § 1988. The district court
The policy, on its face, is without constitutionally
discriminatory implications.
1
The dissenting opinion questions my use of the plural pronoun in
this and the following two paragraphs. The point, I believe, is well taken
– I cannot, and should not purport to, speak for the other members of the
earlier panel. I am entitled to express my individual views as to what the
called upon them and solicited their support for his boss, a PSC earlier panel did and did not do, however, and those views, as reflected in
commissioner, is misconceived. this concurring opinion, remain unchanged.
12 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 25
Drivers v. Bissell Drivers v. Bissell

granted the application as to defendant Bissell, finding that as be unconstitutional absent related unlawful activity.4 No
far as he was concerned the plaintiffs were the prevailing
parties because the lawsuit “acted as a ‘catalyst,’” within the
meaning of Perket v. Sec’y of HHS, 905 F.2d 129, 132 (6th 4
The solicitation of political contributions through the sale of fund-
Cir. 1990), “in prompting [defendant Bissell] to take the raising tickets to fund-raising political events sponsored by candidates
desired action.” seeking election or reelection to public office, and/or their appointed
bureaucratic employees, by private individuals, special interest groups,
What was the “desired action?” For one thing, as the corporations and other business enterprises, all or most of whom seek the
prestige of individual recognition through access to authority and/or
amended complaint makes clear, it was that the defendants future favorable recognition and consideration by the candidate if elected,
stop “undertaking, enforcing, maintaining or adopting any is an American way of political life. The reality of this political practice
policies, procedures or acts which result in any discrimination is measured in the daily testimony of printed, audio, and visual media
against out-of-state trucks or their operators or owners.” coverage of evolving current political events. The practice is neither
sinister nor unconstitutional. The statement of Jackie Pope, an
The fact that Bissell personally had been guilty of such administrative assistant to Bissell, reminding and urging appointed
bureaucratic employees to “keep our man in office” is the battle cry
discrimination is evident from the district court’s findings. echoed by similarly situated appointed bureaucrats throughout the country
The fact that Bissell ultimately stopped discriminating is interested in employment longevity. In the instant case the record fails to
evident from his resignation. The plaintiffs may not have disclose any discrimination in the sale of fund-raising tickets. They were
expected to achieve their desired goal – an end to the available to both in-state and out-of-state truckers on an equal basis.
unconstitutional discrimination – through the resignation of
Commissioner Bissell and the abolition of the Commission Before concluding these observations it should be noted that the
district court reference to the Commission’s policy restricting political
itself, but the goal seems to have been achieved. activity within the agency and its explanatory footnote is of questionable
significance to the facts of this case. It does, however, reflect the
I am not prepared to say that the district court – more confusion of the trial judge. In its opinion the trial court stated, “On
familiar with this situation than I – was out of bounds in January 1, 1988, the PSC adopted a new written policy prohibiting
concluding that the lawsuit, with its rather dramatic judicial enforcement officers from soliciting campaign contributions from any of
findings, had a catalytic effect in ending the discrimination the trucking companies which were regulated by the PSC. The policy was
adopted in order to eliminate prior widespread political and fund-raising
complained of. I therefore concur in the affirmance of the activities by PSC employees among regulated companies.” (Emphases
challenged order. added). Paragraph three of the Commission’s policy, which is the
pertinent section of the policy to this case, provides: “No division
employee of the Tennessee Public Service Commission shall directly or
indirectly solicit or take part in soliciting any assessment, subscription or
contribution for [not from] any regulated company, an agency of a
regulated company, or an employee of a regulated company. No person
shall knowingly solicit any such assessment, subscription or contribution
of any employee of the Tennessee Public Service Commission.”
(Emphasis added). Obviously, the district court observation that:
The policy recognizes the inherent conflict of interest which
exists when a PSC enforcement officer is faced with the decision
to issue a citation to a regulated trucking company for a safety
violation when he has previously solicited campaign funds from
the owners and employees of the company or has otherwise
24 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 13
Drivers v. Bissell Drivers v. Bissell

enforcing a policy of collecting roadside cash bonds to insure _______________
a purported out-of-state violator’s court appearance to answer
charges of alleged infractions stemming from vehicle DISSENT
inspections. The district court dismissed that requested _______________
declaration and concluded that the PSC policy was valid. The
complaint also requested a permanent injunction enjoining KRUPANSKY, Circuit Judge, dissenting. I respectfully
Defendants and their officers, employees, or agents from dissent from the majority’s decision to affirm the trial court’s
undertaking, enforcing, maintaining, or adopting any policies, award of attorney fees in the amount of $515,700, plus
procedures, or acts which would result in any discrimination $68,500 in costs, to the Plaintiffs as “prevailing parties”
against out-of-state trucks, their owners, or operators -- a pursuant to 42 U.S.C. § 1988 against Keith Bissell as the
meaningless vague request of no legal significance. single remaining defendant1 in this case that originated as a
multiple-defendant action. The district court’s decision has
Ultimately, the district court dismissed all claims for conveniently framed the issue here on appeal in the following
declaratory and related injunctive relief against the statement:
Defendants, except Plaintiffs’ charges concerning the
Commission’s alleged practice which permitted its officers [A]lthough Plaintiffs did not ultimately receive
and employees to solicit regulated trucking companies for judicially-awarded relief, they have demonstrated that
political campaign contributions by selling tickets to Bissell- the present lawsuit “acted as a catalyst” in prompting
sponsored fund-raising affairs designed to promote his Defendants to take the desired action.
reelection campaign in return for alleged purported related
favorable considerations. The district court also retained In sum, the Court finds that Plaintiffs are not the
§ 1983 jurisdiction to decide if the Commission’s policy of “prevailing party” as against Defendant PSC, but are the
concentrating its border inspections to incoming truck traffic “prevailing party” as against Defendant Bissell. Thus,
discriminated against out-of-state truckers in favor of in-state Plaintiffs are entitled to recover from Defendant Bissell
truckers, thus violating § 1983 by infringing their Due Process an award of attorney’s fees and costs under Section 1988.
and Equal Protection guarantees as well as the Commerce
Clause of Article I, § 8(3) of the United States Constitution.

In considering the implication of Bissell’s alleged
unconstitutional behavior, or lack thereof, as a condition for 1
The district court denied the Plaintiffs’ motion to join the remaining
invoking § 1983 jurisdiction, comprehensive research has two elected Public Service Commissioners, Steve Hewlett and Frank
disclosed no Supreme Court, Sixth Circuit, or other circuit Cochran, as parties defendant to this action, persons who exercised
precedent that has declared the solicitation of political essentially the same responsibility and authority in the administration of
contributions via the sale of tickets to fund-raising events to the PSC as did Bissell.
Having denied the Plaintiffs’ motion to join Cochran and Hewlett as
parties defendant, the district court committed reversible error by
subsequently ordering Bissell to pay attorney fees arising from purported
unconstitutional acts that he could not have committed without a vote of
approval from at least one other elected member of the PSC.
14 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 23
Drivers v. Bissell Drivers v. Bissell

Unfortunately, neither the district court, nor the panel A declaratory judgment, in this respect, is no different
majority, nor the Joint Appendix, has defined the “desired from any other judgment. It will constitute relief, for
action” that resulted from the “catalytic effect” of Plaintiffs’ purposes of § 1988, if, and only if, it affects the behavior
lawsuit which changed the legal relationship between of the defendant toward the plaintiff.
Plaintiffs and any of the Defendants, including Bissell, that
would warrant an award of attorney fees to Plaintiffs as Rhodes, 488 U.S. at, 3-4.
prevailing parties pursuant to 42 U.S.C. § 1988. Farrar v.
Hobby, 506 U.S. 102 (1992). The much heralded but unidentified, elusive declaratory
judgment which is the common thread that is central to the
Accordingly, for purposes of this dissent, it is assumed that district court’s decision and the panel majority’s reasoning
the “desired catalytic action” alluded to by the trial court, and and ultimate decision has prompted an examination into its
promoted by Plaintiff OOIDA, was the fortuitous abolition of origin and viability. The Plaintiffs’ Complaint and Prayer for
the elected three-member Tennessee Public Service Relief affords a reasonable point to commence such an
Commission (“PSC”) by the Tennessee General Assembly inquiry.
and the reassignment of its authority and responsibility to an
appointed Board of Directors and other existing state At the outset it is worthy to note that this is an action
agencies; and the resignation of Keith Bissell, one of the three invoking 42 U.S.C. § 1983 seeking declaratory judgment and
elected commissioners. Both actions were voluntarily injunctive relief that would permanently enjoin the defendants
undertaken and not required by law or judicial decree. from impinging the Plaintiffs’ constitutional rights
guaranteed by the Fourteenth Amendment to the United States
In light of this court’s earlier decision reversing and Constitution. Accordingly, a constitutional violation is a
remanding this case to the trial court with instructions to condition precedent for invoking § 1983 jurisdiction. See 42
reconsider its disposition (Owner-Operator Independent U.S.C. § 1983.
Drivers Ass’n v. Bissell, No. 94-6178/6179, 1997 WL
525411 (6th Cir. Aug. 21, 1997)), the district court’s sua The Plaintiffs’ complaint requested the court to enter seven
sponte application of the “catalyst test” to support its decision declarations of unconstitutional behavior attributable to
that OOIDA’s lawsuit caused the Tennessee state legislature “Defendants,” of which two charged Bissell individually with
to eliminate its elected PSC and reassign its duties and unconstitutional behavior. Five of the seven declarations
responsibilities to an appointed Board of Directors and, in sought to condemn searches of truck cab interiors, cab
some instances, other existing agencies, and caused Bissell to sleeping compartments, and truck interiors without probable
resign as one of its three elected 2commissioners, taxes cause or a search warrant as violations of Plaintiffs’ Fourth
reasonable logic and comprehension. Amendment constitutional rights. All five were dismissed by
the district court. Those dismissals were affirmed by the
earlier appellate review of this court on August 21, 1997.
2 Another requested declaration and interrelated injunction
An insight into the intra-organizational structure of the PSC will sought to enjoin the PSC from maintaining a quota system of
offer some understanding of the difficulty in assigning individual enforcement which was abandoned by Plaintiffs without
responsibility within the table of organization of that vast
compartmentalized state authority. consideration by the district court. Another requested
declaration sought to condemn the PSC and Bissell from
The Tennessee Public Service Commission was composed of nine
22 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 15
Drivers v. Bissell Drivers v. Bissell

judgment was issued did not undermine respondent's
status as a prevailing party eligible for attorney's fees.
Affirmance order, 845 F.2d 327 (1988). In an divisions. It regulated electric companies, water companies, telephone
unpublished opinion, the majority characterized the companies, gas companies, long distance telephone companies, sewer
relief plaintiffs had received as declaratory relief. The companies, telecommunication companies, and transportation companies.
panel majority noted our recent holding in Hewitt v. An Executive Director of the Commission implemented all necessary
Helms, supra, that a plaintiff must receive some relief on action required to accomplish the duties, responsibilities, and assignments
the merits of his claim before he can be said to have of each division in an effective and efficient manner. Each division of the
PSC had its own individual director with similar responsibilities within
prevailed within the meaning of § 1988. It observed, his division.
however, that the plaintiff in Hewitt, unlike Stewart, had
not won a declaratory judgment, and concluded that the The Motor Carrier Safety Section regulated OOIDA’s members. It
declaratory judgment issued in this case justified the was but a sub-section of the Transportation Division that commanded a
granting of attorney's fees. low profile within the Commission’s primary functions.
Although elected statewide, each public service commissioner had
Rhodes v. Stewart, 488 U.S. 1, 3 (1988). The Supreme Court been required to maintain a legal residence in one of the state’s three
went on to declare: grand divisions and was considered to represent that grand division on the
PSC. The enforcement structure of the Motor Carrier Safety Section was
The Court of Appeals misapprehended our holding in virtually autonomous. A captain was in charge of each grand division
Hewitt. Although the plaintiff in Hewitt had not won a wherein a commissioner maintained a residence. An additional fourth
declaratory judgment, nothing in our opinion suggested captain was in charge of seven counties designated as the Upper East
Tennessee Section. Below each captain were lieutenants, sergeants, and
that the entry of such a judgment in a party's favor enforcement officers who were assigned to various counties within each
automatically renders that party prevailing under § 1988. of the four state divisions. The court record is silent and does not identify
Indeed, we confirmed the contrary proposition: the geographical grand division which Bissell or the other two
commissioners maintained residences. The court record fails to identify
"In all civil litigation, the judicial decree is not the the geographical grand division where the alleged constitutional
end but the means. At the end of the rainbow lies infringements occurred or who was responsible for the implementation of
any unconstitutional acts.
not a judgment, but some action (or cessation of
action) by the defendant that the judgment The autonomy exercised by the Motor Carrier Safety Section is
produces--the payment of damages, or some specific demonstrated by the example described by the district court wherein it
performance, or the termination of some conduct. alludes to one of two identified individuals in the melee of faceless and
Redress is sought through the court, but from the nameless bureaucrats referred to as “the defendants.” “Capt. LeFevers
conducted his own roving court by using his unbridled discretion
defendant. This is no less true of a declaratory dismissing citations and carrying out his own wishes and the wishes of his
judgment suit than of any other action. The real [unidentified] superiors.” The district court’s opinion attached no identity
value of the judicial pronouncement--what makes it to the testimony it relied upon to support its conclusion that
a proper judicial resolution of a 'case or controversy' unconstitutional practices were being implemented.
rather than an advisory opinion--is in the settling of
The four captains of the autonomously operating geographical
some dispute which affects the behavior of the divisions usually met monthly in Nashville with certain [unidentified]
defendant towards the plaintiff." 482 U.S., at 761, staff to discuss PSC matters and review enforcement procedures and
107 S. Ct., at 2676 (emphasis in original). assignments later conveyed to their respective staff members. The
subordinate enforcement officers were expected to follow their captain’s
16 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 21
Drivers v. Bissell Drivers v. Bissell

The cascading errors inherent to this controversy originated
on August 10, 1994, when the district court issued its curt
The record developed during the course of this legal action one-sentence judgment and order that stated “the Court
discloses no reason for the legislative action that eliminated hereby enjoins Defendant Keith Bissell from continuing to
the PSC or caused Keith Bissell to resign his position as one violate the Plaintiffs’ rights.” The district court in that order
of its three elected commissioners but rather confirms that also stated, “The Memorandum and Opinion
both acts were voluntary and not mandated by law or judicial contemporaneously filed herewith constitutes this Court’s
decision. findings of fact and conclusions of law….”
Although tried in Nashville, where the 132-member The district court’s memorandum of August 10, 1994,
Tennessee General Assembly convened annually to transact which anchors this appellate panel majority’s disposition is,
its official agenda, not one of its 33 state senators or 99 state unfortunately, nothing more than a showcase of factually
representatives appeared at trial or attested support for unsupported ambiguities addressing the activities, with the
Plaintiffs’ claim that their lawsuit caused or influenced the exception of a Capt. LeFevers and Jackie Pope, of a sprawling
legislation that eliminated the PSC. Nor have the Plaintiffs compartmentalized political bureaucracy of great magnitude
referenced the General Assembly Record to reflect support, or administered by countless nameless and faceless political
even knowledge by the state legislature of Plaintiffs’ lawsuit appointees. The amorphous character of the district court’s
as an influencing factor for abolishing the PSC. Similarly, the disposition was recognized in the unedited version of a
court record available for this appellate review is bare of any decision issued by an earlier panel of this court on August 21,
reason for Bissell’s resignation from the PSC. Having 1997, which reversed and vacated the district court’s decision
concluded that Plaintiffs received no judicially-awarded relief as it related to Bissell and remanded the case to the district
to support an award of “prevailing party” attorney fees to court with instructions for further consideration.
Plaintiffs against Bissell, the district court, nevertheless,
accomplished that result by sua sponte, without notice to Although I concur with the panel majority’s statement that
Bissell, applying the “catalyst test.” “the record does lack specific findings of fact by the district
court to support its conclusion that Bissell’s actions [resigning
This circuit, having endorsed the “catalyst test” in cases as commissioner of PSC] and the abolition of the PSC were
where a voluntary change in a defendant’s conduct has in response to the district court’s early holding that
benefited the plaintiff, has also imposed the following two- widespread unconstitutional practices were taking place,” I
part test to determine the propriety of applying the test: take issue with its factual and legal conclusions that “the
[unidentified] declaratory judgment issued by the district
First, in order to qualify as a “prevailing party,” a court [as related to Bissell] is sufficient reason alone to deem
plaintiff must demonstrate that his or her lawsuit was OOIDA a ‘prevailing party’ in this case.” The statement
causally related to securing the relief obtained. This contradicts the direction of the Supreme Court in Rhodes v.
determination is factual. Stewart, 488 U.S. 1 (1988) and Farrar v. Hobby, 506 U.S.
100 (1992). In Rhodes,

orders. Beyond speculation, no nexus has been developed between this [a] divided Court of Appeals [had] upheld [an] award of
compartmentalized operation, the captains, Bissell, or the other fees, concluding that the mootness of the claim when the
commissioners.
20 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 17
Drivers v. Bissell Drivers v. Bissell

dated August 21, 1997 to identify Bissell’s unconstitutional Secondly, plaintiff must establish some minimum basis
behavior by observing that “[a]lthough the record does lack in law for the relief secured. … “If it has been judicially
specific findings of fact by the district court to support its determined that defendants’ conduct, however beneficial
conclusion that Bissell’s resignation and the abolition of the it may be to plaintiffs’ interests, is not required by law,
PSC were in response to the district court’s early holding that then defendants must be held to have acted gratuitously
unconstitutional practices were taking place,” (all of which and plaintiffs have not prevailed in a legal sense.”
“holdings” had been vacated by an earlier panel of this circuit
in Owner-Operator Independent Drivers Association v. Johnston v. Jago, 691 F.2d 283, 286 (6th Cir. 1982)
Bissell, No. 94-6178/6179, 1997 WL 525411 (6th Cir. Aug. (emphasis added) (quoting Nadeau v. Helgemoe, 581 F.2d
21, 1997)), and appeared to have endorsed a finding that the 275, 281 (1st Cir. 1978)). See Hewitt v. Helms, 482 U.S. 755,
application of the “catalyst test” to the instant case was not 761 (1987) (“[I]f the defendant, under pressure of the lawsuit,
warranted to dispose of the Plaintiffs’ petition for an award of alters his conduct … towards the plaintiff that was the basis
attorney fees. for the suit, the plaintiff will have prevailed.”).
Thereafter, the panel majority contradicted the above In the instant case, the Plaintiffs have failed on both
finding in its first footnote by reasoning that “[t]he accounts. Without some material evidence that its lawsuit
[unidentified] declaratory judgment operated as a catalyst to was the “catalyst” that induced the Tennessee General
force Bissell’s resignation and a restructure of the PSC. That Assembly to dissolve the elected PSC and reassign its
was the conclusion of the district court which had no direct responsibilities to an appointed Board of Directors and other
evidence on this issue but had ample [unidentified] existing agencies, and caused Bissell to resign, the Plaintiffs
circumstantial evidence [which evidence was not presented to should not be permitted to assume “prevailing party” status
this chambers for review, and not disclosed in the joint and an award of attorney fees by exploiting and capitalizing
appendix, trial court decisions, or other court records] upon on a series of events over which they exercised no control,
which it could have drawn that inference.” (Emphasis added). which fortuitously occurred while their lawsuit pended before
a court.
The panel majority’s concurring decision is also less than The absence of evidence to support the district court’s
helpful in identifying the district court’s “rather dramatic conclusion, apart from its own speculation that Plaintiffs’
judicial findings [that] had a catalytic effect in ending the lawsuit was the “catalyst” that caused the Tennessee General
discrimination complained of.” (Emphasis added). Assembly to abolish and restructure the PSC and Bissell to
resign, is understandable and obvious from the record of
proceedings. The court acted sua sponte. It afforded the
parties no notice of its intended action. It afforded the parties
no hearing to develop a record of evidence bearing upon the
received a preliminary injunction from a district court after which, by a propriety or impropriety of applying the test. It afforded
consent decree approved by the court, the plaintiffs dismissed their Bissell no opportunity to brief and/or argue the negative legal
lawsuit seeking a permanent injunction after the defendant agreed to
desist from pursuing the action the plaintiffs sought to enjoin. The consequences of interposing the test into the case, which
Village of Crestwood case is fully in accord with the pronouncements of ultimately became the legal premise relied upon by the district
Rhodes v. Stewart, 488 U.S. 1 (1988), and Farrar v. Hobby, 506 U.S. 100 court finally to dispose of Plaintiffs’ petition seeking an
(1992).
18 Owner-Operator Independent No. 98-6037 No. 98-6037 Owner-Operator Independent 19
Drivers v. Bissell Drivers v. Bissell

award of attorney fees from Bissell to the exclusion of all whether there is a disputed issue of material fact when a
other real parties defendant to this lawsuit, including Steve party has not had the chance to develop the record below.
Hewlett and Frank Cochran, the other two PSC elected This would force an appeals court to serve as a sounding
commissioners without whom Bissell could not have acted. board for facts not properly in the record, simply because
a party never had a chance to develop them. Similarly, as
Recognizing that the panel majority will argue that the in this case, the court might be left to review the entire
mandates of this circuit as expressed in Employers Insurance record for any disputed questions of fact or to weigh and
of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98 (6th Cir. examine facts never properly advanced below with
1995), apply only to summary judgment considerations, the regard to Wausau because PSI never thought Wausau
reasoning and precedent of that decision is, nevertheless, was moving for anything, let alone complete relief.
equally applicable to comparable controversies, as in the
instant case, wherein a district court issued a sua sponte final Generally, before summary judgment [or any other
disposition adversely affecting a real party in interest to the final disposition] can be granted against a party, Fed. R.
litigation: Civ. P. 56(c) mandates that the party opposing summary
judgment be afforded notice and reasonable opportunity
[T]he Supreme Court has held that “district courts are to respond to all the issues to be considered by the court.
widely acknowledged to possess the power to enter Routman [v. Automatic Data Processing, Inc., 873 F.2d
summary judgments sua sponte, so long as the losing 970, 971 (6th Cir.1989)]. See also Portland Retail
party was on notice that she had to come forward with Druggists Ass’n v. Kaiser Foundation Health Plan, 662
all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. F.2d 641, 645 (9th Cir. 1981).
317, 326 (1986) (emphasis added). Therefore, there is no
per se prohibition on entering summary judgment, sua Employers Ins. of Wausau, 69 F.3d at 105.
sponte.
Initially, the panel majority appeared to have rejected the
Nevertheless, as Fed. R. Civ. P. 12 and Catrett district court’s sua sponte final disposition charging Bissell
demonstrate, a district court does not have sweeping with the payment of approximately $600,000 in prevailing
authority to enter summary judgment [or any other final party3 attorney fees to the Plaintiffs by applying the “catalyst
disposition] at any time, without notice, against any test” and its failure to respond to this court’s earlier mandate
party…. [T]he procedural decision to enter summary
judgment [or any other final disposition] sua sponte must
also be reviewed to determine if the court abused its 3
The district court’s precedent justifying its actions is a district court
discretion by entering judgment on its own motion. decision from the Seventh Circuit, Doe v. Village of Crestwood, 764 F.
Supp. 1258 (N.D. Ill. 1991), which presents an unresolved conflict with
Employers Ins. of Wausau v. Petroleum Specialties, Inc. 69 its circuit court’s disposition of Libby by Libby v. Illinois High School
F.3d 98, 105 (6th Cir. 1995) (some emphases added) (some Association, 921 F.2d 96 (7th Cir. 1990). Moreover, Village of
citations omitted). The Court observed: Crestwood is facially distinguishable from this case. Unlike the instant
case wherein Plaintiffs seek the benefit of recovering attorney fees as the
result of voluntary legislative action and personal action by Bissell
The latter principle reflects a common sense undertaken without legal or judicial mandate which fortuitously
application of the law. Courts of Appeal are courts of happened to occur while its lawsuit pended before a court, the plaintiffs
review. It would normally be impossible to determine in Village of Crestwood sought prevailing party attorney fees after having