                                         UNPUBLISHED

                           UNITED STATES COURT OF APPEALS
                               FOR THE FOURTH CIRCUIT


                                          No. 18-2385


SANITARY BOARD OF THE CITY OF CHARLESTON, WEST VIRGINIA,

                Plaintiff – Appellant,

v.

ANDREW WHEELER, Acting Administrator of the United States Environmental
Protection Agency; UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY,

                Defendants – Appellees.


------------------------------

OHIO VALLEY ENVIRONMENTAL COALITION, INC.; SIERRA CLUB;
WEST VIRGINIA HIGHLANDS CONSERVANCY, INC.; WEST VIRGINIA
RIVERS COALITION, INC.,

               Amici Supporting Appellant.



Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. Joseph R. Goodwin, District Judge. (2:16-cv-03060)


Argued: January 29, 2020                                           Decided: April 9, 2020


Before AGEE, DIAZ, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.
ARGUED: Paul Thomas Nyffeler, AQUALAW PLC, Richmond, Virginia, for Appellant.
Tamara N. Rountree, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees. Derek Owen Teaney, APPALACHIAN MOUNTAIN ADVOCATES,
Lewisburg, West Virginia, for Amici Curiae. ON BRIEF: F. Paul Calamita III, Justin W.
Curtis, AQUALAW PLC, Richmond, Virginia, for Appellant. Jeffrey Bossert Clark,
Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, Mark Haag,
Sarah A. Buckley, Chloe Hamity Kolman, Environment and Natural Resources Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Thomas Glazer,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C.,
for Appellees.



Unpublished opinions are not binding precedent in this circuit.




                                            2
PER CURIAM:

       The Sanitary Board for the City of Charleston, West Virginia (the “Sanitary Board”)

appeals from the district court’s denial of its motion for statutory attorneys’ fees under the

Clean Water Act’s (“CWA”) fee-shifting provision, 33 U.S.C. § 1365(d). For the following

reasons, we affirm.



                                              I.

       The Sanitary Board operates a public wastewater treatment plant that provides

service to approximately 25,000 residents in and around Charleston, West Virginia. As part

of its efforts to renew the plant’s National Pollutant Discharge Eliminating System permit,

the Sanitary Board sought to relax its copper discharge limit in order to avoid costly

upgrades. After the West Virginia Department of Environmental Protection (“WVDEP”),

West Virginia Legislature, and West Virginia Governor signed off on a new copper water

quality standard (the “proposed standard”), the Sanitary Board submitted the proposal to

the EPA for its review on June 25, 2015.

       Under 33 U.S.C. § 1313(c)(3), the EPA had 60 days from that date to notify

WVDEP whether the proposed standard complied with the CWA. If during its assessment

the EPA determined the proposed standard did not comply, it had an additional 30 days to

inform WVDEP what changes would achieve compliance. See id.

       In reviewing the Sanitary Board’s proposed standard, the EPA did not meet either

of these statutory deadlines. On October 2, 2015 (beyond the combined 90-day deadline of

September 23, 2015), WVDEP received an unsolicited letter from the EPA stating that it

                                              3
was “still considering the potential impact of this site-specific criterion on federally listed

threatened and endangered species and [was] not taking a CWA [§ 1313(c)(3)] action at

this time.” J.A. 64.

       Two months later, on December 18, 2015, the Sanitary Board served the EPA with

a 60-day Notice of Intent to file suit. The Sanitary Board then waited an additional 104

days before commencing this litigation on March 31, 2016. Relevant to this appeal, the

Sanitary Board alleged in Count I of its Complaint that the EPA had violated its non-

discretionary duty to notify WVDEP of its decision within the CWA’s statutory deadline.

The Sanitary Board also sought a declaratory judgment that the EPA had violated its

nondiscretionary duty under the CWA to timely review the proposed standard and an

injunction directing the EPA to act. In its Answer, the EPA admitted that it had not taken

final agency action within the requisite time.

       The Sanitary Board then filed a motion for judgment on the pleadings. Instead of

filing a response, the EPA moved to hold the case in abeyance for 45 days so that it could

continue its review. Specifically, the EPA averred that “[t]his short abeyance would allow

[it] to expedite the action” so that it could “complete its review of the [proposed standard]

and take final action.” J.A. 113, 115; see also J.A. 118 (representing that the EPA could

“complete final action within 45 days of” its abeyance motion). The district court denied

the abeyance request, but gave the EPA 45 days to complete its review or file a response

to the Sanitary Board’s motion. The court noted that it was “hopeful that a short extension

of time [would] permit the EPA to take final action on the matter at the heart of this

dispute.” J.A. 123. Before the 45 days expired, the EPA sent a letter to WVDEP stating

                                              4
that it disapproved the proposed standard. Having obtained the final review it sought in

Count I, the Sanitary Board did not oppose the EPA’s motion to dismiss that count.

       Nearly two years later—after the district court dismissed the Sanitary Board’s

revised claims in its Amended Complaint—the Sanitary Board moved for statutory

attorneys’ fees and expenses arising from Count I in its original Complaint. The CWA’s

fee-shifting statute provides that

       The court, in issuing any final order in any action brought pursuant to this
       section, may award costs of litigation (including reasonable attorney and
       expert witness fees) to any prevailing or substantially prevailing party,
       whenever the court determines such award is appropriate.

33 U.S.C. § 1365(d) (emphasis added). The Sanitary Board argued that it was entitled to

fees as a “substantially prevailing party” because its Complaint “catalyzed” the EPA to

take the action requested in Count I.

       Denying the motion, the district court found that the Supreme Court’s decision in

Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human

Resources, 532 U.S. 598 (2001), “flatly rejected the catalyst theory for determining

whether an applicant for attorney’s fees is a ‘prevailing party[.]’” Sanitary Bd. of the City

of Charleston, W. Va. v. Pruitt, 336 F. Supp. 3d 615, 618 (S.D. W. Va. 2018). Concluding

that the CWA’s “fee-shifting provision requires that a party be a prevailing or substantially

prevailing party before a court can determine whether a fee award is appropriate,” id. at

619, the court determined that Buckhannon’s holding “applies with equal force to statutes

like the CWA,” id. “Given th[e] ‘clear meaning’ of ‘prevailing party,’” the court

determined that a plaintiff could not be a “substantially prevailing party” without procuring


                                             5
“at least some relief on the merits and obtaining a judicially sanctioned change in its

relationship with the defendant.” Id. (quoting Buckhannon, 532 U.S. at 603, 307). As a

result, the court found that the Sanitary Board was not a “substantially prevailing party”

because the EPA’s action disapproving the proposed standard “was entirely voluntary and

without judicial imprimatur.” Id.

       The Sanitary Board filed a timely notice of appeal. This Court has jurisdiction under

28 U.S.C. § 1291.



                                            II.

                                            A.

       Ordinarily, we review a district court’s denial of attorneys’ fees for abuse of

discretion. Nat’l Org. for Marriage, Inc. v. United States, 807 F.3d 592, 597 n.3 (4th Cir.

2015). However, we “review de novo [a district court’s] legal determination of whether a

party has achieved sufficient success to be eligible for a fee award” under a “prevailing or

substantially prevailing” provision. See Ohio River Valley Envtl. Coal., Inc. v. Green

Valley Coal Co., 511 F.3d 407, 413 (4th Cir. 2007); Smyth ex rel. Smyth v. Rivero, 282

F.3d 268, 274 (4th Cir. 2002).

                                            B.

       This appeal asks us to determine whether a fee award is available under the CWA

when a party’s claim has been mooted by government conduct in apparent response to the

lawsuit. In considering that question, both the Sanitary Board and the EPA ask us to clarify

what it means to be a “substantially prevailing party” under the CWA’s fee-shifting statute.

                                             6
Unsurprisingly, they present conflicting definitions of that term. The Sanitary Board argues

that “prevailing party” and “substantially prevailing party” were intended to have distinct

meanings. In its view, the “prevailing party” provision should allow courts to grant fees

only when a party obtains relief on the merits of a claim through a judicially sanctioned,

involuntary change in the legal relationship of the parties. Conversely, the Sanitary Board

proposes that the “substantially prevailing party” provision permits courts to grant fees

under the catalyst theory whenever a party has obtained some of the relief it sought—

judicially sanctioned or otherwise—as a result of bringing suit.

          In contrast, the EPA emphasizes that the “touchstone of the prevailing party inquiry

must be the material alteration of the legal relationship of the parties,” which “must be

marked by judicial imprimatur.” CRST Van Expedited, Inc. v. E.E.O.C., 136 S. Ct. 1642,

1646 (2016). 1 Therefore, it contends that under a plain reading of the CWA’s fee-shifting

statute, the only distinction that Congress intended was between a party who obtained the

requisite, judicially sanctioned relief on all its claims—a “prevailing party”—and a party

who obtained the requisite relief on only some of its claims—a “substantially prevailing

party.”

          We need not resolve this conflict now, however, because we conclude that even if

the Sanitary Board’s definition is correct and the catalyst theory has any continued

relevance under the CWA after Buckhannon—a holding we do not make in this case—the



          1
        We have omitted internal quotation marks, alterations, and citations here and
throughout this opinion, unless otherwise noted.

                                               7
Sanitary Board would not be entitled to attorneys’ fees because its lawsuit did not catalyze

the EPA’s actions. See Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d 62, 75 n.13 (4th

Cir. 2016) (“In our review, we may affirm on any grounds supported by the record,

notwithstanding the reasoning of the district court.”).

       Under the catalyst theory, “parties who obtain, through settlement or otherwise,

substantial relief prior to adjudication on the merits” may be eligible for attorneys’ fees.

Ohio River Valley Envtl. Coal., 511 F.3d at 414. To be considered a “catalyst,” a plaintiff

must satisfy three factors: (1) the defendant’s actions must provide it with “some of the

benefit sought” in the lawsuit; (2) its claims must not have been “frivolous”; and (3) the

lawsuit must have been “a substantial or significant cause of [the defendant’s actions]

providing relief.” Id. at 415 (quoting Sierra Club v. EPA, 322 F.3d 718, 726 (D.C. Cir.

2003)). On the record before us, we conclude that the Sanitary Board cannot satisfy the

third factor.

       At no point during the events giving rise to this litigation did the EPA suggest that

it was refusing to act on the Sanitary Board’s proposed standard. In fact, it did the opposite.

Long before the Sanitary Board indicated it was going to bring suit, the EPA sent WVDEP

an unsolicited and unprompted letter maintaining that it was “still considering the

[standard’s] potential impact” after the expiration of the statutory deadline and that it would

not be taking a final action “at th[at] time.” J.A. 64 (emphasis added). Similarly, when

faced with the Sanitary Board’s motion for judgment on the pleadings, the EPA represented

to the district court that it needed only 45 days to “complete its review” of the proposed

standard and that it could “complete final action” within that time period. J.A. 115, 118

                                              8
(emphasis added). These statements plainly indicate that the EPA’s review was ongoing

both before the Sanitary Board brought suit and throughout the duration of the litigation.

In other words, the Sanitary Board’s Complaint did not spur the EPA into action.

       This conclusion is consistent with how we have applied the catalyst theory in past

cases. For example, we have found that a party’s lawsuit was not the “substantial or

significant cause of [the defendant’s actions] providing relief,” Ohio River Valley Envtl.

Coal., 511 F.3d at 415, when the record showed that the agency simply took action after

the suit commenced on a matter already under its review. See, e.g., Reinbold v. Evers, 187

F.3d 348, 363 (4th Cir. 1999) (holding that “the mere filing of a claim . . . in federal district

court and subsequent compliance by an agency [with a non-discretionary requirement] does

not mean that the plaintiff” is entitled to fees under the catalyst theory); see also Ctr. for

Biological Diversity v. Norton, 262 F.3d 1077, 1081–82 (10th Cir. 2001) (holding that a

party failed to prove it had catalyzed the Department of the Interior’s non-discriminatory

action when the Agency submitted evidence that it was considering the plaintiff’s request

well before the lawsuit was filed). Such was the case here.

       Because the Sanitary Board cannot show on this record that its lawsuit was “a

substantial or significant cause of” the EPA’s determination, it does not matter which

party’s definition would be applied to the term “substantially prevailing party” because the

district court would not have erred in denying the motion for attorneys’ fees under either. 2


       2
         We also reject the Sanitary Board’s alternate argument that it was a “prevailing
party” under the CWA based on the district court’s order granting the EPA an extension of
time to respond to the motion for judgment on the pleadings. As a threshold matter, the
(Continued)
                                               9
                                             III.

       For these reasons, the judgment of the district court is



                                                                               AFFIRMED.




Sanitary Board failed to raise this issue before the district court, so it is waived. See
Williams v. Prof’l Transp. Inc., 294 F.3d 607, 614 (4th Cir. 2002) (“Issues raised for the
first time on appeal are generally not considered absent exceptional circumstances.”). But
even if we were to reach the argument, we would reject it because the Sanitary Board
misreads the district court’s underlying order, which neither constituted a ruling on the
merits nor directed the EPA to take any action whatsoever. The order’s only effect was to
extend the EPA’s deadline to respond to the Sanitary Board’s pending motion. Nowhere
did it direct or require the EPA to respond or take action on the Sanitary Board’s proposed
standard. That the EPA chose to do so before responding to the Sanitary Board’s motion
does not transform the scope of the court’s order. As this Court held in Smyth, “a voluntary,
unilateral act is not enough for the opposing party to be said to have prevailed.” 282 F.3d
at 278. Therefore, the Sanitary Board was not a “prevailing party” in this litigation.

                                             10
