* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-11247

ENVIRONMENTAL CONSERVATION ORGANIZATION

Plaintiff-Appellant

v.

CITY OF DALLAS

Defendant-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:03-cv-02951

Before BENAVIDES, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

The Environmental Conservation Organization (“ECO”) was denied

attorneys’ fees incurred during its Clean Water Act (“CWA”) citizen suit against

the City of Dallas (“City”). We AFFIRM.

I. Background

The background to this case is described in an earlier opinion. Envtl.

Cons’n Org. v. City of Dallas, 529 F.3d 519 (5th Cir. 2008), cert. denied, 129 S.

Ct. 418 (2008). Briefly, ECO is a non-profit environmental watch group based

United States Court of Appeals

Fifth Circuit

F I L E D

December 17, 2008

Charles R. Fulbruge III

Clerk
No. 07-11247

2

in Dallas. In mid-2003, it notified the City about certain CWA violations

involving the City’s storm sewer system. At the end of that year, ECO filed suit

against the City. Simultaneously, or nearly so, the U.S. Environmental

Protection Agency was conducting its own investigation. The EPA filed its own

enforcement action against the City in 2006. ECO declined to intervene in the

EPA’s suit despite being encouraged to do so by the district court. 

The action brought by the EPA was resolved with a consent decree.

Thereafter, the district court granted Dallas’s motion for summary judgment in

ECO’s suit, concluding that it was barred by res judicata. On appeal, we

affirmed on the alternative basis that ECO’s suit had become moot due to the

outcome of the EPA’s suit. ECO’s request for attorneys’ fees in the suit has been

traveling at a different pace but has now reached us. Fees are allowed under the

Clean Water Act “to any prevailing or substantially prevailing party” in a CWA

citizen suit. 33 U.S.C. § 1365(d). The district court denied attorneys’ fees,

finding that ECO’s failure to join the EPA suit meantthat it was not a party, did

not obtain any judicially enforceable rights, and therefore did not prevail wholly

or substantially. The court also denied fees under the theory that ECO had been

a catalyst to the result, a theory we will analyze below. 

II. Analysis

Many components of a district court’s decision on an award of attorneys’

fees are reviewed for an abuse of discretion. Riley v. City of Jackson, 99 F.3d

757, 759 (5th Cir. 1996). On the other hand, our review of “the characterization

of prevailing-party status for awards under fee-shifting statutes” is de novo.

Bailey v. Mississippi, 407 F.3d 684, 687 (5th Cir. 2005). As usual, fact-findings

are reviewed only for clear error. Riley, 99 F.3d at 759.

ECO challenges the district court’s determination that it was not a

prevailing party under a conventional understanding of what it means to be a

prevailing party. In the alternative, it argues that it qualified as a prevailing
No. 07-11247

3

party under the “catalyst” theory. As it acknowledges, ECO must overcome the

argumentthat such a theory under the CWA has not survived recent precedents.

See Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health & Human Res., 532

U.S. 598 (2001); Bailey, 407 F.3d 684. 

A three-part test is used to identify prevailing parties. A plaintiff must:

“(1) obtain actual relief, such as an enforceable judgment or a consent decree; (2)

that materially alters the legal relationship between the parties; and (3) modifies

the defendant's behavior in a way that directly benefits the plaintiff at the time

of the judgment or settlement.” Dearmore v. City of Garland, 519 F.3d 517, 521

(5th Cir. 2008). The test is written in the conjunctive, such that each of the

three elements must be satisfied. 

ECO is candid that no Fifth Circuit precedent has found these criteria to

be met under circumstances similar to those applicable here. It instead relies

on caselaw from other circuits. We conclude that two of the precedents are more

accurately described as having been decided under a catalyst theory, not

conventional prevailing party standards. See Armstrong v. ASARCO, Inc., 138

F.3d 382 (8th Cir. 1998); Atl. States Legal Found. v. Eastman Kodak Co., 933

F.2d 124 (2d Cir. 1991). We temporarily reserve our review of those. 

The third precedent was indeed decided under the conventional theory.

Sierra Club v. Hamilton County Bd. of Comm’rs, 504 F.3d 634 (6th Cir. 2007).

Whereas ECO refused to participate in the EPA suit, the Sierra Club plaintiff

intervened in the government’s CWA action; the court consolidated the citizen

plaintiff’s case with the government’s; and the plaintiff had substantial input

into the consent decree. Id. at 639-40. Those facts are consistent with our prior

holdings that “a plaintiff ‘prevails’ when actual relief on the merits of [its] claim

materially alters the legal relationship between the parties by modifying the

defendant’s behavior in a way that directly benefits the plaintiff.” Bailey, 407

F.3d at 688.
No. 07-11247

4

As previously mentioned, ECO’s suit againstthe City was found to be moot

once the EPA consent decree was entered. Consequently, ECO could not, by

virtue of a dismissed suit, have “obtain[ed] actual relief,” or a material alteration

of the “legal relationship between the parties.” The EPA, not ECO, obtained

relief. ECO has no more right to enforce the consent degree than any other nonparty. These facts compel the conclusion that ECO was not a prevailing party

under the conventional definition of that term. 

It is true that the CWA also permits fees to a “substantially prevailing

party,” a phrase which retains the need to “prevail” but reduces the degree to

which that must occur. 33 U.S.C. § 1365(d). Thus, the three elements of our

analysis may not need to be satisfied in full. However, we conclude that each of

those elements remains a factor in whether a party has prevailed at all. ECO

must show why it largely, i.e., substantially, satisfied those factors. ECO

obtained no court-ordered relief modifying the City’s behavior. Thus, ECO was

also not a substantially prevailing party.

We turn now to ECO’s catalyst-theory argument. In one appeal, we

described a district court’s decision awarding attorneys’ fees as “reminiscent of

pre-Buckhannon practice ‘to assess the provocative effect of the plaintiff’s

lawsuit.’” Bailey, 407 F.3d at 689 (quoting Hennigan v. Ouachita Parish Sch.

Bd., 749F.2d 1148, 1152 (5th Cir. 1985)). ECO’s argument similarly encourages

us to journey to a prior legal world and find that it is entitled to attorneys’ fees

because its suit provoked the EPA’s successful action. The bridge back would be

built on the CWA’s wording that fees may be awarded to “substantially

prevailing” parties – not just to “prevailing parties,” as was the case in the

statutes as issue in Buckhannon and Bailey. 

Only a few precedents post-Buckhannon use analysis similar to the

catalyst theory. One that did so applied the Endangered Species Act’s feeshifting provision. Assoc. of Cal. Water Agencies v. Evans, 386 F.3d 879 (9th Cir.
No. 07-11247

1 See Kasza v. Whitman, 325 F.3d 1178, 1180 (9th Cir. 2003) (holding that Buckhannon

rendered the catalyst theory inapplicable to the fee-shifting provision in the Resource

Conservation and Recovery Act, 42 U.S.C. § 6972(e), which authorizes awards “to the

prevailing or substantially prevailing party”); Union of Needletrades, Indus., & Textile

Employees v. INS, 336 F.3d 200, 204-05 (2d Cir. 2003) (rejecting application of the catalyst

theory to a Freedom of Information Act fee-shifting provision, 5 U.S.C. § 552(a)(4)(E), which

uses the phrase “substantially prevailed”); Oil, Chem., & Atomic Workers Int’l Union v. Dep’t

of Energy, 288 F.3d 452, 455 (D.C. Cir. 2002) (treating “‘substantially prevail’ language in

FOIA as the functional equivalent of the ‘prevailing party’ language found in other statutes”).

2 ECO’s extensive reliance on Sierra Club in its conventional-theory argument

undercuts its applicability to the catalyst-theory argument. The Sierra Club court disavowed

reliance on the catalyst theory, finding that it had been “called into question” by Buckhannon.

504 F.3d at 643. Thus, the case with the factual outcome most favorable to ECO recognized

the post-Buckhannon infirmities of the catalyst theory with respect to the CWA.

5

2004). The court explicitly categorized the plaintiff’s role as being that of a

catalyst, and on that basis justified fees. Id. at 886. The statute, though,

permits an award to “any party, whenever the court determines such award is

appropriate.” 16 U.S.C. § 1540(g)(4). A requirement that a party prevail, as in

Buckhannon, or prevail to a substantial degree, as here, is not present in the

statutory language analyzed in Evans. We find Evans inapplicable.

Other post-Buckhannon caselaw supports the proposition that slight

linguistic differences in an attorneys’ fee statute – including the “substantially

prevailing”language – do not reinstate the catalysttheory.1 ECO complains that

these decisions eliminate the “substantially prevailing” language from the

statute. We disagree. Though we have not defined precisely what it means to

prevail substantially, we discussed above that our three-factor test remains

relevant, with a party needing to demonstrate how it substantially satisfied

those factors. Moreover, ECO has not explained how the use of this extra word

in the statute restored the catalyst theory, whatever else it might have done.2

The district court, in addition to determining that the catalyst theory did

not survive under the CWA, adopted findings that ECO was not a catalyst

anyway. The catalyst theory required that a party show “(1) that the relief
No. 07-11247

6

sought by the plaintiff was in fact obtained, and (2)thatthe suititself caused the

defendant to alter its conduct.” Foreman v. Dallas County, 193 F.3d 314, 320

(5th Cir. 1999). Most relevant here, to show causation, “the lawsuit must have

been ‘a substantial factor or a significant catalyst’ in motivating the defendants

to alter their behavior. Id. at 321.

Some facts are in dispute, but the crux of the issue is the extent to which

ECO’s pre-suit notice letters were the impetus of the EPA’s investigation, as

opposed to the EPA’s investigation being the cause of ECO’s interest in the case.

ECO concedes that the EPA contacted the city first, but argues that the EPA’s

interest was vague and general until it converted 150 specific CWA violations

first discovered by ECO into its own lawsuit. The district court appeared to

accept the City’s theory that the 150 specific violations originated in a

spreadsheet prepared by the City in response to the EPA’s investigation. That

information was then leaked by whistleblowing City employees to ECO. Under

this explanation, ECO was not the first to identify the violations. 

There is no reason to question ECO’s good faith in the conduct of its

investigation and lawsuit. We also find no reason to set aside the district court’s

finding that ECO was not a catalyst. Thus, even if that theory has any relevance

under the CWA, and we do not hold that it does, it would not apply here. 

The judgment of the district court is AFFIRMED.