                                                                                       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 <prevailing party' status for clear error,” we review de novo the legal

question of “whether the facts as found suffice to render the plaintiff a <prevailing

party.'” Id. at 1513.

      Because Appellants did not receive a favorable judgment on the merits or

entry of a consent decree or settlement, the only means through which they could

be found to have prevailed is the “catalyst” test. Under the catalyst test, a plaintiff

should be found as prevailing if its “<ends are accomplished as the result of the

litigation even without formal judicial recognition,'” there is a “<causal connection'”

between the plaintiff's lawsuit and the defendant's actions providing relief to the

plaintiff, and the defendant's actions were “<required by law.'” Posada v. Lamb

County, Texas, 716 F.2d 1066, 1071 (5th Cir. 1983) (citations omitted). See also

Dunn v. Florida Bar, 889 F.2d 1010, 1013-15 (11th Cir. 1989) (applying catalyst

test). Before applying this test, we must address a question that we have not yet

explicitly resolved: whether the catalyst test continues to be viable in this circuit

after the Supreme Court issued its opinion in Farrar v. Hobby, 506 U.S. 103, 113 S.


                                           6
Ct. 566 (1992). See Cullens v. Georgia Dep't of Transp., 29 F.3d 1489, 1494-95 &

n.4 (11th Cir. 1994) (discussing question of whether dicta in Farrar eliminated the

catalyst test; leaving question open because plaintiffs could not show that they met

the catalyst test); Scientology II, 2 F.3d at 1513-14 (implicitly holding that the

catalyst test survived Farrar by applying it after the opinion in Farrar was issued).3

Because the catalyst test remains viable and because the district court did not

address evidence tending to show that Appellants were catalysts for the City's

changes to the Original Ordinance, we vacate and remand for a reevaluation of

Appellants' request for attorney's fees.

A.      Viability of the catalyst test

        We have long held that a plaintiff who did not receive a formal judgment in

its favor was a “prevailing party” if it met the elements of the catalyst test. See,

e.g., Ketterle v. B.P. Oil, Inc., 909 F.2d 425, 429-30 (11th Cir. 1990)4; Dunn, 889

F.2d at 1013-15; Royal Crown Cola Co. v. Coca-Cola Co., 887 F.2d 1480, 1486



        3
         Neither the parties nor the district court address this question, though they do cite to the
1993 opinion in Scientology II, which implicitly held that the catalyst test survived Farrar. 2 F.3d
at 1513-14. We note that our holding today is consistent with the application found in Scientology
II.
        4
          It is permissible to interpret one fee-shifting statute by referring to cases that interpret other
fee-shifting statutes. See Ketterle, 909 F.2d at 429; see also Hensley, 461 U.S. at 433 n.7, 103 S.
Ct. at 1939 n.7 (noting that "'[t]he standards set forth in this opinion are generally applicable in all
cases in which Congress has authorized an award of fees to a <prevailing party.'").

                                                     7
(11th Cir. 1989); Posada, 716 F.2d at 1071. In the 1992 decision in Farrar,

however, the Supreme Court stated:

       [T]o qualify as a prevailing party, a civil rights plaintiff must obtain at
       least some relief on the merits of his claim. The plaintiff must obtain
       an enforceable judgment against the defendant from whom fees are
       sought or comparable relief through a consent decree or settlement.
       Whatever relief the plaintiff secures must directly benefit him at the
       time of the judgment or settlement. Otherwise the judgment or
       settlement cannot be said to “affec[t] the behavior of the defendant
       toward the plaintiff.” . . . In short, a plaintiff “prevails” when actual
       relief on the merits of his claim materially alters the legal relationship
       between the parties by modifying the defendant's behavior in a way
       that directly benefits the plaintiff.

506 U.S. at 111-12, 113 S. Ct. at 573 (citations omitted).

This language, taken on face value, casts doubt on the viability of the catalyst test,

which is only applied in the absence of a formal judgment, consent decree, or

settlement. The majority of courts that have addressed the question, however,

have found that Farrar, which does not mention the catalyst test and which did not

present a question relating to the form of relief, does not bar the catalyst test.5

       5
           The First, Second, Third, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits have all found,
explicitly or, in the case of the First Circuit, implicitly, that the catalyst test survived Farrar. See
Payne v. Board of Education, Cleveland City Schools, 88 F.3d 392, 397 & n.2 (6th Cir. 1996);
Stivers v. Pierce, 71 F.3d 732, 751-52, 753 n.10 (9th Cir. 1995); Marbley v. Bane, 57 F.3d 224, 234
(2d Cir. 1995); Beard v. Teska, 31 F.3d 942, 951 (10th Cir. 1994); Baumgartner v. Harrisburg
Housing Authority, 21 F.3d 541, 548-50 (3d Cir. 1994); Little Rock Sch. Dist. v. Pulaski County
Special Sch. Dist., 17 F.3d 260, 263 & n.2 (8th Cir. 1994); Craig v. Gregg County, Tex., 988 F.2d
18, 20-21 (5th Cir. 1993); Paris v. U.S. Dept. of Housing and Urban Dev., 988 F.2d 236, 238 (1st
Cir. 1993). The Fourth Circuit has held that Farrar bars application of the catalyst test, see
Alexander S. v. Boyd, 113 F.3d 1373, 1389 (4th Cir. 1997), cert. denied, --- U.S. ---, 118 S. Ct. 880
(1998), while the Seventh Circuit, having originally held that the catalyst test survived Farrar, see

                                                   8
       Like the majority of our sister circuit courts which have addressed this issue,

and in accordance with our implicit holding in Scientology II, we hold that the

catalyst test survived Farrar. While no Supreme Court case has ever affirmatively

upheld the application of the catalyst test, the catalyst test accords well with long-

held notions of prevailing parties. See Hewitt v. Helms, 482 U.S. 755, 760-61, 107

S. Ct. 2672, 2676 (1987) (“It is settled law, of course, that relief need not be

judicially decreed in order to justify a fee award under § 1988. A lawsuit

sometimes produces voluntary action by the defendant that affords the plaintiff all

or some of the relief he sought through a judgment – e.g., a monetary settlement or

a change in conduct that redresses the plaintiff's grievances. When that occurs, the

plaintiff is deemed to have prevailed despite the absence of a formal judgment in

his favor.”). Additionally, the question before the Court in Farrar addressed the

degree of relief, rather than the form of relief, for the plaintiffs in Farrar had

attained an enforceable judgment of nominal damages. 506 U.S. at 107, 113 S. Ct.

at 570. The fact that the majority used broad language in discussing the question



Zinn v. Shalala, 35 F.3d 273, 276 (7th Cir. 1994), has recently used language (without citing or
overruling Zinn) that at least questions the viability of the catalyst test, see Board of Educ. of
Downers Grove Grade Sch. Dist. No. 58 v. Steven L., 89 F.3d 464, 469 (“The outcome of this suit
resulted in no enforceable obligations for the school district. Any relief that Andrew and his parents
received was not in the form of a judgment or settlement. Thus, . . . Andrew and his parents cannot
be considered to have substantially prevailed, and no attorneys fees or costs will be awarded to them
under the applicable federal statute.”).

                                                  9
before it (i.e., whether an enforceable judgment of nominal damages can justify a

fee award under § 1988) does not indicate how it would rule on the question of

whether a showing that a plaintiff's lawsuit caused the defendant to act to remedy

unconstitutional behavior can justify a fee award. See Marbley, 57 F.3d at 234;

Baumgartner, 21 F.3d at 547-48. The catalyst test creates incentives for plaintiffs

to initiate potentially meritorious civil rights cases and for plaintiffs to discontinue

litigation after receiving through the defendant's acquiescence the remedy initially

sought. In light of its long history and the important policies undergirding the

catalyst test, we will not extend Farrar to eliminate the catalyst test.6

B.     Scope of the catalyst test

       Having found that the catalyst test survived Farrar, we turn to its scope and

application. To show that they were prevailing parties pursuant to the catalyst test,

Appellants must prove the following elements: First, Appellants must show that

action by the City created a “<material alteration of the legal relationship of the

parties'” such that Appellants have “<succeeded on <any significant issue in



       6
          Even if we did believe that Farrar weakened our prior rulings on the catalyst test, “we are
not at liberty to disregard binding [circuit] case law that is so closely on point and has only been
weakened, rather than directly overruled by the Supreme Court.” Florida League of Prof'l Lobbyists
v. Meggs, 87 F.3d 457, 462 (11th Cir. 1997); see also United States v. Smith, 122 F.3d 1355, 1359
(11th Cir. 1997) (“Under the prior precedent rule, we are bound by earlier panel holdings . . . unless
and until they are overruled en banc or by the Supreme Court”) (citing inter alia Florida League of
Prof'l Lobbyists).

                                                 10
litigation which achieves some of the benefit the parties sought in bringing suit,'”

Scientology II, 2 F.3d at 1513 (quoting Texas State Teachers Ass'n v. Garland

Indep. Sch. Dist., 489 U.S. 782, 792-93, 109 S. Ct. 1486, 1494 (1989) and

Hensley, 461 U.S. at 433, 103 S. Ct. at 1939)), such that Appellants were “directly

benefit[ted].” Farrar, 506 U.S. at 111-12, 113 S. Ct. at 573. Second, Appellants

must show that their lawsuit caused (i.e., was the catalyst for) the City's action.

See Royal Crown Cola, 887 F.2d at 1486. Third, Appellants must show that “they

had a <colorable claim' or <reasonable likelihood of success on the merits.'”

Ketterle, 909 F.2d at 430 (quoting Dunn, 889 F.2d at 1015). These elements

secure the interests behind § 1988 by shifting attorney's fees if and only if a

plaintiff vindicated the civil rights laws by filing a nonfrivolous lawsuit that

substantially succeeded.

      1.     Material alteration of legal relationship

      The first element is the familiar requirement of substantial success

explicated in Texas State Teachers Ass'n v. Garland Ind. Sch. Dist., in which the

court found that a party prevails, i.e., achieves “material alteration of the legal

relationship of the parties” by achieving success on “<any significant issue in

litigation'” which constitutes more than a “purely technical or de minimis” victory

by the plaintiff. 489 U.S. at 791-93, 109 S. Ct. at 1493-94 (1989) (quoting Nadeau


                                           11
v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)) (emphasis added).

Additionally, the plaintiff must directly benefit from the success attained in the

lawsuit. See Farrar, 506 U.S. at 111-12, 113 S. Ct. at 573 (holding that a material

alteration of the legal relationship between the parties occurs when the remedy

“modif[ies] the defendant's behavior in a way that directly benefits the plaintiff.”).

The plaintiff need not receive complete relief in order to prevail. See Scientology

II, 2 F.3d at 1513 (finding that plaintiff was a “prevailing party” where the

plaintiff's lawsuit caused a city to amend an ordinance that “abandoned several

challenged provisions,” such that the “successes, while partial only, are neither

technical nor de minimis”); see also Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d

1548, 1583 (11th Cir. 1994) (finding that class had prevailed where it “obtained

relief on the merits of the same general type as it originally sought, even if to a

lesser extent than it might have liked”); Crowder v. Housing Authority of the City

of Atlanta, 908 F.2d 843, 848-49 (11th Cir. 1990) (finding that plaintiffs had

prevailed where injunction provided “some, if not most, of the relief sought by

plaintiffs”).

       The district court made no specific finding as to the substantial element.

While the district court characterized the amendments to the ordinance as “not

overwhelming,” it did note that “[t]he most significant change . . . is the


                                          12
applicability of the new ordinance and the requirement to obtain a permit only if 25

or more people intended to picket/demonstrate.” R3-79 at 5. We view this change,

which was relied on by the district court in finding the Revised Ordinance to be

constitutional, as in and of itself substantial. We note that other changes to both

the Original Ordinance and Original Policy -- such as the repeal of requirements

directing protesters to remain in a single file line while picketing -- are potentially

significant. On remand, the district court should specifically make findings of fact

regarding all of the amendments to the Original Ordinance and Original Policy,

including the degree of significance and whether the changes directly benefitted

Appellants.7 In making these findings, the district court should keep in mind that

Appellants' continued, unsuccessful challenge to the Revised Ordinance is not

relevant to the question of whether the amendments to the Original Ordinance

materially altered the legal relationship between the parties. See Scientology II, 2

F.3d at 1514 (“[I]t is inappropriate to deny <prevailing-party' status merely because

Scientology's pleadings in challenging the amended . . . Ordinance alleged the

same or similar constitutional defects as its earlier action. . . . The fact that

Scientology may (or may not) ultimately prevail in those challenges has little [to]

       7
           While it is true that Appellants need only show one significant change to the Original
Ordinance or Original Policy in order to justify an award of attorney's fees, it is necessary for the
district court to evaluate all of the changes for completeness and to determine degree of success for
purposes of fee computation, if necessary. See Hensley, 461 U.S. at 436, 103 S. Ct. at 1541.

                                                 13
do with the question of whether it prevailed in challenging the repealed provisions

of the [old] Ordinance. Scientology did not fail when Clearwater ceased some of

its challenged discriminatory conduct merely because the city persisted in other

challenged conduct.”). Rather, the district court should compare the relief sought

in the complaint with the relief received by Appellants through the amendments to

the Original Ordinance and Policy. See Institutionalized Juveniles v. Secretary of

Public Welfare, 758 F.2d 897, 911 (3d Cir. 1985) (“To apply the prevailing party

standard, it is important first to identify the relief plaintiff sought and, in relevant

cases, the legal theories on which the relief was based. Usually a common-sense

comparison between relief sought and relief obtained will be sufficient to indicate

whether a party has prevailed.”).

      2.     Causal relationship

      The second element, causation, ensures that a plaintiff does not receive a

windfall by the defendant's voluntary action. See Royal Crown Cola, 887 F.2d at

1489 (“A plaintiff may not collect attorney's fees for demanding of the defendant

that which the defendant would have done in any case.”). “Causal connection is

established by evidence that the plaintiffs' lawsuit was a <substantial factor or a

significant catalyst in motivating the defendants to end their unconstitutional

behavior.'” Posada, 716 F.2d at 1072 (quoting Williams v. Leatherbury, 672 F.2d


                                            14
549, 551 (5th Cir. 1982)). Appellants need not show that their lawsuit was the sole

cause for the amending of the Ordinance, “so long as the plaintiffs' actions made an

important contribution to the improvements achieved.” Id. Because “defendants,

on the whole, are usually rather reluctant to concede that the litigation prompted

them to mend their ways,” courts often look to other evidence, such as the

chronology of events, to determine whether a given lawsuit caused the defendant to

provide the requested relief. Id. While chronology is a significant clue,

“chronology is not definitive because the question of causation is intensely

factual.” Royal Crown Cola, 887 F.2d at 1487. “Rather, a court must include all

of the surrounding circumstances in its causation determination.” Id.

       The district court erred in holding that Appellants had failed to establish

causation. While the district court did address the affidavit of James K. Green and

the chronology of events in ruling on attorney's fees, it failed to consider evidence

indicating that the parties had communicated about redrafting the Ordinance.8 This

       8
            The district court treated this case as though the only factual evidence supporting
Appellants' claim of causation was the chronology of events and held that chronology was
insufficient without more evidence, such as “minutes of public meetings, witnesses called or other
documentary evidence.” R3-79 at 7. Because Appellants proffered other relevant evidence not
considered by the district court in analyzing causation, we need not address the question of when,
if ever, causation may be proved solely by reference to chronology. Also, in vacating the district
court's ruling, we do not find that the district court erred in holding that Green's affidavit was
incompetent. Cf. Freund v. Butterworth, 165 F.3d 839, 863 n.34 (11th Cir. 1999) (en banc),
(holding that expert testimony from an attorney could not be used to address a mixed question of law
and fact that was to be decided by the court; addressing affidavit in context of claim of conflict of
interest), pet. cert. filed, 67 U.S.L.W. 3749 (June 1, 1999); Provenzano v. Singletary, 148 F.3d 1327,

                                                 15
evidence includes the letters, attached to Appellants' Memorandum in Support of

their Motion for Attorney's Fees and Costs. The court also failed to consider the

City's admission that it had advised Appellants that it would revise the Original

Code despite its own belief that such revisions were not required by the

Constitution and that it had provided Appellants with copies of the proposed

revisions. R1-39 at 2. Courts, including this one, have found causation where the

parties had negotiated or discussed proposed changes to rules or other behavior.

See, e.g., Dunn, 889 F.2d at 1014 (basing finding of causation on favorable

chronology of events and on showing that the defendant had considered comments

of the plaintiffs' counsel in altering the rule at issue in the case); Morrison v.

Ayoob, 627 F.2d 669, 672 (3d Cir. 1980) (finding that plaintiffs had shown

causation where parties' counsel had informal contact prior to the filing of the

lawsuit and where change in behavior did not occur until after lawsuit was filed

and parties' counsel subsequently had more formal discussions). Additionally, the

City provided no countervailing evidence of other justifications for amending the

Original Ordinance. Compare with Royal Crown Cola, 887 F.2d at 1487-88

(finding that plaintiff could not prove causation where merger at issue in case was




1332 (11th Cir.) (same; addressing affidavit in context of claim of ineffective assistance of counsel),
reh'g and reh'g en banc denied, 162 F.3d 100 (11th Cir. 1998).

                                                  16
barred by administrative action taken by FTC). The district court's failure to

consider evidence indicating that the parties had discussed the proposed changes

prior to their implementation “leaves us with the definite and firm conviction that

the district court has made a mistake.” Posada, 716 F.2d at 1072 (discussing

factual findings as to causation). On remand, the district court should consider the

evidence addressed in this opinion and may choose, as it deems appropriate, to

open the record to consider other probative evidence on the issue of causation.

      3.     Colorable claim

      The third element of the catalyst test has been expressed as requiring a

showing “that the defendant's conduct was required by law,” Dunn, 889 F.2d at

1015, that the defendant's conduct does not constitute a “nuisance settlement,”

Tyler v. Corner Construction Corp., Inc., 167 F.3d 1202, 1206 (8th Cir. 1999), or

that “the plaintiff's suit was neither <frivolous, unreasonable, [n]or groundless,”

Little Rock Sch. Dist., 17 F.3d at 262 (quoting United Handicapped Fed'n v.

Andre, 622 F.2d 342, 346-47 (8th Cir. 1980); brackets in original). These different

formulations all address the same concern: that plaintiffs should not be deemed to

be prevailing parties if their claims are objectively unmeritorious. See Tyler, 167

F.3d at 1206 (“What a court ought to do . . . is to concentrate on the objective

meritoriousness of a plaintiff's claim, and refuse to award fees if the claim is


                                          17
frivolous or groundless.”). See also Dunn, 889 F.2d at 1015 (discussing “no

colorable claim” element as relating to the objective merits of the claim). This

element of the claim was not addressed by the district court or in the briefs of

either of the parties, and, while the City did state at oral argument that attorney's

fees were inappropriate in this case because the relief achieved in this case was not

constitutionally required, the City cited to no case law in support of this claim. On

remand, the district court should make specific findings regarding the objective

meritoriousness of Appellants' claims. Appellants are not required “<to show that

they would have won on the merits'” but, instead, “<need only show that the action

taken by appellees was <not a wholly gratuitous response to an action that in itself

was frivolous.' . . . A claim is not frivolous if it is arguably supported by case or

statutory law.'” Dunn, 889 F.2d at 1015 (quoting Garcia v. Guerra, 744 F.2d 1159,

1162-63 (5th Cir. 1984)). This inquiry is more limited than a full trial on the

merits and, indeed, is taken “to avoid conducting the very trial mooted by a

defendant's voluntary compliance.” Little Rock Sch. Dist., 17 F.3d at 262 n.1. If

Appellants' claims as to the relief received through the amendments to the

picketing ordinance were “colorable” or had a “reasonable likelihood of success on

the merits,” see Ketterle, 909 F.2d at 430, and were not “significantly lacking in




                                           18
merit as an objective matter,” Tyler, 167 F.3d at 1206, the district court should find

that Appellants have met the third element of the catalyst test.9



                                     III. CONCLUSION

       We VACATE the district court's order denying Appellants' motion for

attorney's fees and costs and REMAND for proceedings in accordance with this

opinion.




       9
           The Tyler court emphasized the “objective” nature of this element because the district
court in that case had incorrectly focused on the subjective mindset of the defendant. 167 F.3d at
1206. We agree that the fact that a defendant views a plaintiff's claims as lacking in merit or
ultimately doomed to failure is not relevant to the question of whether the plaintiff's claims were
frivolous or meritless. See id. (“We think that it would be unjust to deny a plaintiff his or her
attorney's fees simply because a defendant thought that the plaintiff's claim was completely lacking
in merit. Defendants no doubt often think that this is the case when, in fact, it is not.”).

                                                19
