Act of 1975, and the Civil Rights Attorney’s Fees Awards Act of 1988. Jd. The Court also cited the
appendix in Marek v. Chesny, 473 U.S. 1, 43-51 (1985), which lists a host of fee-shifting statutes,
including the Equal Access to Justice Act. The Court observed that it has interpreted the fee-shifting
provisions of those statutes consistently. Buckhannon, 121 8. Ct. at 1839 n.4; see also INS v Jean,
496 U.S. 154 (1990) (analyzing EAJA consistent with other fee-shifting statutes). Finally, the Court
recognized that its decision overturned “long-prevailing Circuit precedent[,]” where most circuit
courts had regularly applied the catalyst theory to determine the prevailing party in a petition for
attorney’s fees and costs. Jd. at 1840-41.

The Seventh Circuit has not yet had occasion to apply Buckhannon. However, in Crabill v.
Trans Union, L.L.C., No. 00-2078, 2001 WL 856573, at *4 (7th Cir. July 30, 2001), the court
discussed Buckhannon in determining whether a consumer had standing under the Fair Credit
Reporting Act to recover attorney’s fees and costs when that consumer could only establish actual
damages. While the court recognized Crabill was not a “catalyst case,” it noted the Supreme Court
had “emphasized the similarity of most federal fee-shifting statutes[.]” Crabill, 2001 WL 856573,
at *4. The court also stated that in rejecting the catalyst theory, Buckhannon insisted that “a plaintiff
must obtain formal judicial relief, and not merely success, in order to be deemed a prevailing party
under any attorneys’ fee provision comparable to the civil rights attorneys’ fee statute.” Id.; see also
West Virginia University Hospitals vs. Casey, 499 U.S. 83, 89 (1991) (noting the EAJA was enacted
as a counterpart to 42 U.S.C. § 1988).

Recently, this court applied the rule in Buckhannon to Rule 54(d) of the Federal Rules of
Civil Procedure. Johnny’s Icehouse, Inc. v. Amateur Association of Illinois, No. 00 C 7363, 2001

WL 893840, at *2 (N.D. Ill. Aug. 7. 2001). There, the plaintiff was a prevailing party because the


(7th Cir.1988); Fenn v. Bowen, No. 85 10283, 1988 WL 124137, at *1 (N.D. Ill. Nov. 15, 1988).
Sileikis must satisfy two requirements of the catalyst rule to be considered a prevailing party: (1) his
lawsuit must be causally linked to the achievement of the relief obtained; and (2) he must not have
acted wholly gratuitously, i.e. his claim was not frivolous, unreasonable, or groundless. Johnson v.
LaFayette Fire Fighters Assoc., 51 F.3d 726, 730 (7th Cir.1995); Zinn, 35 F.3d at 274.

However, the Supreme Court recently changed the landscape of fee awards under the catalyst
theory. Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human
Resources, 121 S. Ct. 1835 (2001). In Buckannon, the catalyst theory was not a permissible basis
for the award of attorney’s fees under the Fair Housing Amendments Act (“FHAA”) of 1988, 42
U.S.C. § 3613(c), and the American with Disabilities Act (“ADA”) of 1990, 42 U.S.C. §12205. The
Court stated the term “prevailing party” required a “material alteration of the legal relationship of
the parties” to permit an award of attorney’s fees. Buckhannon, 121 S. Ct. at 1840. The catalyst
theory, according to the Supreme Court, “allows an award where there is no judicially sanctioned
legal relationship of the parties.” Jd. The Court instructed that:

A defendant’s voluntary change in conduct, although perhaps accomplishing what

the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur

on that change. ...

We cannot agree that the term “prevailing party” authorizes federal courts to award

attorney’s fees to a plaintiff, by simply filing a nonfrivolous lawsuit but nonetheless

potentially meritless lawsuit (it will never be determined), has reached the “sought-

after destination” without obtaining any judicial relief.

Buckhannon, 121 S. Ct. at 1840-41.
In reaching its conclusion on the fee-shifting provisions of the ADA and FHAA, the Supreme

Court noted that Congress has authorized attorney’s fees to the prevailing party in other statutes.

Buckhannon, 121 S. Ct. at 1839. The Court listed the Civil Rights Act of 1964, the Voting Rights

3


defendant’s voluntary dismissal of disciplinary proceedings was due to a finding of fact by the court
indicating wrongdoing. Dismissal stemmed solely from the plaintiff’s request for a temporary
restraining order; the plaintiff was not a prevailing party by reason of the catalyst rule. Johnny's
Icehouse, 2001 WL 893840, at *2; see also Johnson v. Rodriguez, 00-50443, 2001 WL 845180, at
*] (Sth Cir. Aug. 10, 2001) (Buckhannon applied to 42 U.S.C. §1988; attorney’s fees denied on
catalyst theory).

Inlight of the Supreme Court’s decision in Buckhannon, Sileikis cannot rely upon the catalyst
theory. Sileikis seeks to be classified as a prevailing party solely on the voluntary actions of the INS.
This court did not provide any judicial relief or materially alter the positions of the parties. The only
role the court played, as Sileikis admits in his petition, is the receipt of his complaint and the
scheduling of several status hearings. See Petitioner’s Motion for Attorney Fees and Cost (“Pet.
Mot.”) at 1. Sileikis’ requested relief — the adjudication of his applications to the INS — was done
without this court’s intervention.

Notably, the Supreme Court’s rationale in rejecting the catalystrule is particularly applicable
to this case. First, the Court was concerned that the “possibility of being assessed attorney’s fees
may well deter a defendant from altering its conduct.” Buckhannon, 121 8. Ct. at 1842. The INS
would have an incentive to refrain from issuing its decisions in fear of being assessed attorney’s fees
under the catalyst rule. Second, the Supreme Court was concerned that the catalyst rule required
“analysis of the defendant’s subjective motivations in changing its conduct.” Jd. at 1843. Here, the
catalyst rule would require the court to speculate on the impetus for the issuance of the INS

decisions.


’

Minute Order Form (06197)

United States District Court, Northern District of Illinois

Name ar ssigned Juise | Suzanne B. Conlon _| Sine Judge over
CASE NUMBER 01 C 944 DATE 8/20/2001
CASE VIKTORAS SILEKIS vs. BRIAN PERRYMAN, DISTRICT DIRECTOR OF THE
TITLE IMMIGRATION AND NATURALIZATION SERVICE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) o Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) a) Answer brief to motion due___. Reply to answer briefdue__-
(4) oO Ruling/Hearingon____ssetfor__—_at
(5) oO Status hearing[held/continued to] [set for/re-set for] on setfor_ at.
(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__setfor___at
(7) Oo Trial{set for/re-set for] on __at
(8) i) [Bench/Jury trial] [Hearing] held/continued to__at
(9) im) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OGeneral Rule21 OFRCP41(a)(1) OO FRCP41(a)(2).
(10) Ml [Other docket entry] Viktoras Sileikis’ petition for attorney’s fees and costs [11-1] is denied. ENTER
MEMORANDUM OPINION AND ORDER.
( \ uu orn) 3. Opler.
ql) [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.

Notices mailed by judge's staff.

Notified counsel by telephone,

Docketing to mail notices. ®
Mail AO 450 form,

Copy to judge/magistrate judge.

Doeiiment”
Number

"7

number of notices

AUG 21 2000

date docketed

PILEG Fok

1/20/2001

SB

01 AUG 20 Fit S13

ate mailed notice
courtroom

deputy’s

“Ph cB
initials

Date/time received in . .
central Clerk’s Office mailing deputy initiats



CONCLUSION

The motion for attorney’s fees and costs pursuant to 28 U.S.C. § 2412(d)(1)(B) is denied.

August 20, 2001 ENTER:

Putt B. Conlon

United States District Judge


NOCKETE
IN THE UNITED STATES DISTRICT COURT oe ul
FOR THE NORTHERN DISTRICT OF ILLINOIS AUG 21 200t

EASTERN DIVISION
VIKTORAS SILEIKIS )
)
Plaintiff, ) | No.01C944
)
v. ) Suzanne B. Conlon, Judge

)

BRIAN PERRYMAN, )
DISTRICT DIRECTOR OF THE )
IMMIGRATION AND NATURALIZATION )
SERVICE )
Defendant. )

MEMORANDUM OPINION AND ORDER

Viktoras Sileikis petitions for attorney’s fees and costs against Brian Perryman, District
Director of the Immigration and Naturalization Service (“INS”) pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412(d)(1)(B).

BACKGROUND

On February 12, 2001, Sileikis filed a complaint, pursuant to 28 U.S.C. § 136] and 5 U.S.C.
§ 704 and §706, demanding the adjudication of two applications before the INS: (1) application for
permission to reapply for admission into the United States after deportation and application for
waiver of grounds of admissibility; and (2) application for adjustment of status. The complaint was
filed because the INS allegedly had not issued a decision on those applications for over two years.
On May 22, 2001, the INS issued a decision denying Sileikis permission to reapply for admission
and for waivers of inadmissibility. See Pl. Ex. 1. The court entered judgment dismissing the case

as moot, and gave Sileikis an opportunity to file objections. Sileikis filed an objection to the


dismissal, arguing that the INS had only partially adjudicated his claim because it had not issued a
decision on his application for adjustment of status. On June 5, 2001, the INS issued its decision on
Silekis’ application for adjustment of status. See P]. Ex. 2. In both cases, the INS denied Sileikis’
applications. Sileikis now requests $2,688.75 in attorney fees and $458.37 in costs incurred in the
proceedings before this court.
DISCUSSION

The Equal Access to Justice Act ““EAJA”), 28 U.S.C. § 2412, provides in relevant part:

Except as otherwise specifically provided by statute, a court shall award to a

prevailing party other than the United States fees and other expenses ... incurred by

that party in any civil action ... brought by or against the United States ... unless the

court finds that the position of the United States was substantially justified or that

special circumstances make an award unjust.”
28 U.S.C. §2412(1)(A). To establish that he is entitled to attorney's fees, Sileikis must show that he
is a prevailing party under the EAJA. 28 U.S.C. § 2412(d)(1)(a). If Sileikis does so, the INS must
show that its position was "substantially justified," or that "special circumstances make an award [of
attorneys’ fees] unjust." Jd.

The award of attorney’s fees and costs turns on whether Sileikis is a prevailing party under
the EAJA. Sileikis contends his filing of a mandamus complaint in this court led to issuance of the
decisions by the INS on his applications. According to Sileikis, he has obtained the relief he sought
because the INS acted on his request in the complaint, albeit negatively, by issuing two decisions on
his applications. This circuit has recognized the catalyst theory for the award of attorney’s fees and
costs, where a plaintiff receives the desired result because the lawsuit brought about a voluntary

change in governmental conduct. See Zinn v. Shalala, 35 F.3d 273, 276 (7th Cir. 1994), The catalyst

theory has been applied to cases involving the EAJA. See Hendricks v. Bowen, 847 F.2d 1255, 1258