1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CENTER FOR BIOLOGICAL 

DIVERSITY, et al., 

Plaintiffs, 

v. 

DAVID BERNHARDT, et al., 

Defendants, 

 No. 20-cv-0146 (EGS) 

 

MEMORANDUM OPINION 

I. Introduction 

Plaintiffs, Center for Biological Diversity and Healthy 

Gulf, brought this action against David Bernhardt, in his 

official capacity as Secretary of the United States Department 

of the Interior, and the United States Fish and Wildlife Service 

(the “Service”) pursuant to the citizen suit provisions of the 

Endangered Species Act (“ESA”), 16 U.S.C. § 1540(g). Compl., ECF 

No. 1 ¶ 1.1 Plaintiffs sought declaratory and injunctive relief 

for the Service’s failure to comply with ESA deadlines in 

determining whether the Pascagoula Map Turtle and Pearl River 

Map Turtle (together “the Map Turtles”) “warrant protection as 

endangered or threatened under the [ESA].” Id.

1 When citing electronic filings throughout this opinion, the 

Court cites to the ECF header page number, not the original page 

number of the filed document. 
2 

On July 2, 2020, the Court granted the Parties’ request to 

approve the Stipulated Settlement Agreement, maintain 

jurisdiction to enforce the Agreement, and dismiss the case. See 

Minute Order (July 2, 2020). Pending before the Court is the 

Plaintiffs’ Motion for Attorneys’ Fees and Costs. See Pls.’ Mot. 

for Atty’s’ Fees & Costs (“Pls.’ Mot.”), ECF No. 18. For the 

following reasons, the Court GRANTS Plaintiffs’ Motion for 

Attorneys’ Fees and Costs. 

II. Background 

Plaintiffs are two non-profit conservation organizations 

focused on the preservation of imperiled species and their 

habitats. See Compl., ECF No. 1 ¶¶ 15-19. The ESA’s petition 

process allows “any interested person [to] petition the Service 

to list a species as threatened or endangered.” Decl. of Gina 

Shultz (“Shultz Decl.”), ECF No. 19-1 ¶ 3. In April 2010, 

Plaintiffs petitioned the Service seeking to have the Map 

Turtles listed as endangered or threatened under the ESA. See 

Compl., ECF No. 1 ¶ 5. After receiving Plaintiffs’ petition, the 

Service issued a 90-day finding in accordance with 16 U.S.C. § 

1533(b)(3)(A), concluding that listing the Map Turtles under the 

ESA “may be warranted.” See Shultz Decl., ECF No. 19-1 ¶ 13. 

Under the ESA, this finding required the Service to determine 

whether the Map Turtles warranted listing as endangered or 
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threatened within twelve months of Plaintiffs’ petition. 16 

U.S.C. § 1533(b)(3)(B). 

Between 2007 and 2010, the Service received a substantial 

number of petitions, resulting in a backlog of evaluations for 

it to complete. See Shultz Decl., ECF No. 19-1 ¶ 5. The record 

is silent as to any updates on the Services’ evaluation of the 

Map Turtles between 2010, when it issued its 90-day finding, and 

2015, when the Service enlisted the help of a species expert to 

conduct Map Turtle surveys from 2015 to 2018. Id. ¶ 9, 13–14. In 

2016, the Service created a “comprehensive National Listing 

Workplan that priorities [its] listing workload based on the 

needs of candidate and petitioned species.” Id. at ¶¶ 5–6; see 

Methodology for Prioritizing Status Reviews and Accompanying 12-

Month Findings on Petitions for Listing under the Endangered 

Species Act, 81 Fed. Reg. 49248 (July 27, 2016) (“Prioritization 

Methodology”). The Service expected the surveys of the Map 

Turtles to be completed in December 2019, and consequently 

placed the Map Turtles on the Service’s Workplan for fiscal year 

2021. See Shultz Decl., ECF No. 19-1 ¶ 13. 

Pursuant to the ESA’s notice requirements, Plaintiffs sent 

Defendants notices of intent to file suit on November 13, 2018 

and October 4, 2019. See id. at ¶ 14; Ltr from E. Bennett to D. 

Bernhardt & M. Everson Re: 60-Day Notice of Intent to Sue (Oct. 

8, 2019), ECF No. 19-2; Ltr from J. Totoiu to R. Zinke, et al. 
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Re: 60-Day Notice of Intent to Sue (Nov. 13, 2018), ECF No. 19-

4. Following each notice, the Service responded to Plaintiffs 

indicating its intent to complete the listing finding for the 

Map Turtles by the end of the 2021 fiscal year. See Ltr from G. 

Shultz to J. Totoiu Re: Reply to Oct. 4, 2019 Ltr (Dec. 3, 

2019), ECF No. 19-3; Ltr from G. Shultz to J. Totoiu Re: Reply 

to Nov. 13, 2018 Ltr (Feb. 13, 2019), ECF No. 19-5. Plaintiffs 

filed suit on January 21, 2020 “to compel Defendants to complete 

a ’12-month finding’ for the Pascagoula map turtle and Pearl 

River map turtle by a date certain.” Pls.’ Mot., ECF No. 18 at 

8. 

On June 12, 2020, the Parties filed a Stipulated Settlement 

Agreement requiring the Service to complete the listing 

determination of the Map Turtles on or before October 29, 2021. 

See Stipulated Settlement Agreement (the “Agreement”), ECF No. 

15 at 2. On July 2, 2020, the Court entered an Order 

incorporating the terms of the Agreement and permitting the 

Court to maintain jurisdiction to enforce the Order and terms of 

the Agreement. See Minute Order (July 2, 2020) (the “July 2, 

2020 Order”). The Agreement allowed for Plaintiffs to seek 

attorneys’ fees and costs. Id. 

Plaintiffs filed their Motion for Attorneys’ Fees and Costs 

on October 2, 2020. See Pls.’ Mot., ECF No. 18. Defendants filed 

their opposition on October 15, 2020, and Plaintiffs’ reply 
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brief was filed on October 23, 2020. See Defs.’ Resp. in Opp. to 

Mot. for Fees (“Defs.’ Opp.”), ECF No. 19; Pls.’ Reply Mem. 

Supporting Their Entitlement to Att’ys Fees & Costs (“Pls.’ 

Reply”), ECF No. 20. The Court granted the Parties’ Joint Motion 

to Bifurcate the Issues of Entitlement to, and Amount of 

Attorneys’ Fees and Costs. Minute Order (Jan. 14, 2021). 

Therefore, the only issue before the Court is whether an award 

of attorneys’ fees and costs is appropriate here. 

III. Legal Standard 

The ESA provides that a court “may award costs of 

litigation (including reasonable attorney and expert witness 

fees) to any party, whenever the court determines such award is 

appropriate.” 16 U.S.C. § 1540(g)(4). An award of attorneys’ 

fees is “appropriate,” when the moving party has attained “some 

success on the merits.” Ruckelshaus v. Sierra Club, 463 U.S. 

678, 682 & n.1 (1983).2 The “whenever appropriate” standard 

utilized in the ESA also authorizes recovery “to so-called 

catalyst parties who obtain, through settlement or otherwise, 

substantial relief prior to adjudication on the merits.” Sierra 

Club v. EPA, 322 F.3d 718, 719 (D.C. Cir. 2003). To award 

attorneys’ fees and costs under the catalyst theory, the 

2 The ESA attorneys’ fees provision does not contain the 

“prevailing party” language like other fee-shifting provisions; 

however, a prevailing party would clearly meet the requirement 

for achieving some success on the merits. 
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plaintiff must show: (1) “the defendant provided some of the 

benefit sought by the lawsuit,” (2) the claim “was at least 

colorable, not frivolous, unreasonable, or groundless,” and (3) 

the suit “was a substantial or significant cause of defendant’s 

action providing relief. Id. at 726–27. 

IV. Analysis 

As an initial matter, the Parties disagree as to whether 

the catalyst theory’s three-thresholds must be met in this case. 

Plaintiffs assert that the catalyst theory need not be applied 

where the party seeking attorneys’ fees has obtained success on 

the merits through court-ordered, judicially enforceable relief. 

Pls.’ Reply, ECF No. 20 at 5. Defendants contend that even 

though the Parties entered into a settlement agreement in this 

case, Plaintiffs must still satisfy the catalyst theory’s three 

threshold test to be entitled to fees. Defs.’ Opp., ECF No. 19 

at 9. 

The Court agrees with Plaintiffs that the catalyst theory 

is a secondary way for a court to award attorneys fees, and a 

court does not have to reach it when a party has obtained 

success on the merits. The Supreme Court has specifically 

distinguished between the catalyst theory of recovery and relief 

on the merits, acknowledging that “the catalyst theory falls on 

the other side of the line” from relief on the merits. 

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & 
7 

Hum. Res., 532 U.S. 598, 605 (2001) (internal quotations 

omitted). Moreover, the Court of Appeals for the District of 

Columbia Circuit (“D.C. Circuit”) has explicitly stated that a 

“judicial determination on the merits” would “make the catalyst 

notion irrelevant.” Pub. Citizen Rsch. Grp. v. Young, 909 F.2d 

546, 549 (D.C. Cir. 1990). 

Further, the Defendants have not pointed to any cases where 

the catalyst theory was applied to a case where the party moving 

for fees obtained judicially enforceable relief on the merits. 

In each of the cases applying the catalyst theory cited by the 

Defendants, the substantive claims were dismissed before the 

courts ever made any decisions on the merits. See, e.g., 

Conservation Force v. Salazar, 753 F. Supp. 2d 29, 31 (D.D.C. 

2010) (applying catalyst theory where claims were dismissed for 

lack of subject matter jurisdiction and mootness); Friends of 

Animals v. Salazar, 670 F. Supp. 2d 7, 12–16 (D.D.C. 2009) 

(applying catalyst theory where court dismissed plaintiff’s 

substantive claims where the issues were moot because the 

government already acted on the relief sought). The Court 

concludes that success on the merits of a claim negates the 

necessity for the catalyst theory. 

Next, the Court must determine whether the July 2, 2020 

Order and Agreement here is equivalent to success on the merits 

to make an award of attorneys fees appropriate. Courts have 
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found that success on the merits includes both formal 

adjudication by the court and consent decrees. See Buckhannon, 

532 U.S. at 604. Plaintiffs contend the Agreement is 

“functionally identical to a consent decree since compliance 

with it is enforceable by the Court.” Pls.’ Reply, ECF No. 20 at 

5, n. 1. Defendants do not dispute that a consent decree would 

be the type of relief warranting attorneys’ fees, but they do 

not address whether the Agreement is equivalent to a consent 

decree or otherwise constitutes success on the merits. See 

Defs.’ Opp., ECF No. 19 at 9. 

The Court agrees with the Plaintiffs that the Court’s July 

2, 2020 Order incorporating the Agreement is sufficient for the 

Court to appropriately award attorneys’ fees because, much like 

a consent decree, the Agreement and Order alter the legal 

relationship between the parties. A consent decree is “an 

agreement that the parties desire and expect will be reflected 

in, and enforceable as, a judicial decree that is subject to the 

rules generally applicable to other judgments and decrees.” Cato 

Inst. v. SEC, 4 F.4th 91, 95 (D.C. Cir. 2021). In Buckhannon, 

the Supreme Court explained that a consent decree creates the 

“material alteration of the legal relationship of the parties’ 

necessary to permit an award of attorney’s fees.” 532 U.S. at 

604; see also Carbonell v. INS, 429 F.3d 894, 888-89 (9th Cir. 

2005) (awarding attorneys’ fees to plaintiff who obtained a 
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court order incorporating a voluntarily stipulated stay of 

deportation). The July 2, 2020 Order to enforce the terms of the 

Parties’ Agreement similarly altered the legal relationship of 

the Parties in this case. The Order and Agreement provided the 

Plaintiffs with legal recourse if the Defendants failed to abide 

by the terms of the Agreement. See Minute Order (July 2, 2020). 

Therefore, for the reasons above, the Court does not need to 

reach the question of whether Plaintiffs’ suit was a catalyst in 

bringing about the listing determination. 

The Court concludes that the Order and Agreement here 

constitute success on the merits. Therefore, the Court GRANTS

Plaintiffs’ Request for Attorneys’ Fees and Costs under 16 

U.S.C. § 1540(g)(4). 

V. Conclusion 

For the foregoing reasons, the Court GRANTS Plaintiffs’ 

Motion for Attorneys’ Fees and Costs. An appropriate order 

accompanies this Memorandum Opinion. 

Signed: Emmet G. Sullivan 

United States District Judge 

 July 15, 2024