PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
_______________ ELEVENTH CIRCUIT
11/03/99
No. 98-4343 THOMAS K. KAHN
_______________ CLERK
D. C. Docket No. 95-8059-CV-DTKH
PATRICIA MORRIS and KEITH MEYER,
Plaintiffs-Appellants,
versus
CITY OF WEST PALM BEACH,
Defendant-Appellee.
______________________________
Appeal from the United States District Court
for the Southern District of Florida
______________________________
(November 3, 1999)
Before BIRCH and CARNES, Circuit Judges, and MILLS*, Senior District Judge.
_________________
*Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois, sitting
by designation.
BIRCH, Circuit Judge:
This case raises the question of the viability and scope of the “catalyst” test,
which is a means of determining whether a party who did not receive a judgment or
formal settlement in its favor is a “prevailing party” under 42 U.S.C. § 1988 and
other fee-shifting statutes. Because we hold that the catalyst test remains available
in this circuit and because the district court incorrectly applied the catalyst test, we
VACATE and REMAND.
I. BACKGROUND
Appellants Patricia Morris and Keith Meyer (“Appellants”) filed the
complaint in this case on January 27, 1995. The complaint challenged the
constitutionality of certain sections of the City of West Palm Beach (“City”) Code's
chapter on parades or processions in public areas (hereinafter “Original
Ordinance”), which covers picketing and demonstrating. See R1-1. The complaint
also challenged provisions of the City's Police Department's “Permit Application
for a Process/Demonstration” Policy (hereinafter “Original Policy”). See id. At
the same time, Appellants filed a motion for declaratory, preliminary, and
permanent injunctive relief. On November 6, 1995, after consolidating Appellants'
case with a second case, the district court denied the motion for injunctive relief;
2
we affirmed this denial without opinion on November 6, 1995.1 Subsequently, the
cases were severed and the parties agreed to have the case referred to a magistrate
judge for trial and final judgment. On January 6, 1997, the magistrate judge, acting
as the district court, set the case for a non-jury trial on the calendar commencing on
April 28, 1997. On March 14, 1997, the district court, after consulting with the
parties, specially set the trial for April 8, 1997.
On March 26, 1997, the City filed a motion to dismiss on the ground that the
Original Ordinance had been repealed and replaced by a new ordinance on March
10, 1997 (“Revised Ordinance”). In its motion to dismiss, the City stated:
Throughout the course of litigation, Defendant informed Plaintiffs, as
was part of the basis for the denial of the Motion for Preliminary
Injunction, that the code and application process would not be applied
to the Plaintiffs, and that the Defendant was revising the code to
address certain areas; the City maintained and still maintains the
constitutionality of its ordinance and permit application process on its
face and as applied.
Defendant has presented over the course of the last several months,
drafts of the new ordinance, as a matter of courtesy, but submits that
Plaintiffs' agreement or acquiescence on the enactment of the new
code is not necessary for the full adjudication of the claim for the
Court, or for any other related matter.
1
It is undisputed that the motion for preliminary injunction was denied because the City had
informed Appellants and the district court that the Original Ordinance and Policy would not be
applied to Appellants during the case's pendency. See R1-39 at 2.
3
R1-39 at 2 (emphasis added). On April 7, 1997, Appellants responded, arguing that
the City's voluntary cessation of certain unconstitutional behavior did not moot the
cause of action and that the Revised Ordinance contained some of the challenged
regulations found in the Original Ordinance. See R2-43. On April 21, 1997, the
district court denied the City's motion to dismiss on the grounds that the Original
Ordinance could be re-enacted and that “there do appear to be areas of the new
ordinance which were being challenged by the Plaintiffs in respect to the old
ordinance. In other words, the new ordinance carries forward some of the
allegedly objectionable requirements for issuance of a permit.” R2-47 at 3, 9
(emphasis added). On May 5, 1997, Appellants filed an Amended Complaint
challenging the Revised Ordinance. On June 24, 1997, the district court held a
non-jury trial on Appellants' Amended Complaint. On July 24, 1997, the district
court issued its final judgment finding that the Revised Ordinance was
constitutional. In finding that Appellants had failed to show injury, the district
court relied on an amendment made in the Revised Ordinance that limited
application of the Ordinance to groups of 25 or more. See R-55 (Final Judgment)
at 19.
4
On August 25, 1997, Appellants filed the motion for attorneys' fees and
costs at issue in this appeal.2 Attached to their motion for fees and costs,
Appellants included, among other things, an affidavit from attorney James K.
Green on the issue of whether Appellants' lawsuit was a catalyst for the revisions to
the Original Code, see R2-56-Ex. C to Mot., and five letters from Appellants'
counsel to the City's counsel, see R2-56-Ex. A-E to Mem. The five letters detailed
discussions between the parties regarding redrafting the Original Ordinance and
detailed the escalation of the litigation after the redrafting discussed in 1995 was
delayed. On January 27, 1998, the district court denied Appellants' motion for
attorney's fees and costs. The court denied the motion solely on the ground that
Appellants had failed to prove causation and made no specific findings on the
viability of the catalyst test or on the other elements of the catalyst test. On
February 20, 1998, Appellants filed this appeal.
II. DISCUSSION
Appellants argue that the district court incorrectly found that they were not
“prevailing parties” pursuant to 42 U.S.C. § 1988. Only “prevailing parties” may
2
The City also filed a motion for attorney's fees and costs but have not appealed the denial
of that motion.
5
recover attorney's fees under § 1988. Church of Scientology Flag Service v. City
of Clearwater, 2 F.3d 1509, 1512 (11th Cir. 1993) (citing Hensley v. Eckerhart,
461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983)) (hereinafter “Scientology II”).
While “[w]e review the factual findings underlying a district court's determination
regarding