      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206
   ELECTRONIC CITATION: 2000 FED App. 0131P (6th Cir.)
               File Name: 00a0131p.06


UNITED STATES COURT OF APPEALS
             FOR THE SIXTH CIRCUIT
               _________________


                             ;
                              
OWNER-OPERATOR
                              
INDEPENDENT DRIVERS
                              
ASSOCIATION, INC.; MARK P.
                              
                                      No. 98-6037
NYE; KENNETH D.
                              
MCFADDEN,                      >
        Plaintiffs-Appellees, 
                              
                              
                              
          v.
                              
                              
KEITH BISSELL,
        Defendant-Appellant. 
                             1


      Appeal from the United States District Court
   for the Middle District of Tennessee at Nashville.
 No. 90-00251—Robert L. Echols, Chief District Judge.
             Argued: September 24, 1999
          Decided and Filed: April 12, 2000
Before: KRUPANSKY, NELSON, and SILER, Circuit
                 Judges.




                           1
2    Owner-Operator Independent                  No. 98-6037
     Drivers v. Bissell

                    _________________
                         COUNSEL
ARGUED:       Mark A. Hudson, OFFICE OF THE
ATTORNEY GENERAL, Nashville, Tennessee, for
Appellant. W. Gary Blackburn, BLACKBURN, SLOBEY,
FREEMAN & HAPPELL, Nashville, Tennessee, for
Appellee. ON BRIEF: Mark A. Hudson, OFFICE OF THE
ATTORNEY GENERAL, Nashville, Tennessee, for
Appellant. W. Gary Blackburn, BLACKBURN, SLOBEY,
FREEMAN & HAPPELL, Nashville, Tennessee, Paul D.
Cullen, CULLEN LAW FIRM, Washington, D.C., for
Appellee.
  SILER, J., delivered the opinion of the court. NELSON, J.
(pp. 8-12), delivered a separate opinion concurring in both the
opinion of the court and the judgment. KRUPANSKY, J.
(pp. 13-34), delivered a separate dissenting opinion.
                    _________________
                        OPINION
                    _________________
   SILER, Circuit Judge. Defendant, Keith Bissell, a former
commissioner for the Tennessee Public Service Commission
(“PSC”), was found to have violated the plaintiffs’, Mark P.
Nye, Kenneth D. McFadden, and Owner-Operator
Independent Drivers Association, Inc. (“OOIDA”),
constitutional rights. Bissell appealed and this court upheld
the district court’s decision, but vacated its award of
injunctive relief and remanded for clarification. In light of
changing circumstances, the award of injunctive relief was
found to be unnecessary, but the district court still held
OOIDA to be a “prevailing party” and awarded OOIDA
attorneys’ fees and costs. Bissell now challenges the district
court’s award of attorneys’ fees and costs to OOIDA. For the
following reasons, we AFFIRM.
34   Owner-Operator Independent                   No. 98-6037      No. 98-6037               Owner-Operator Independent            3
     Drivers v. Bissell                                                                                Drivers v. Bissell

dismissed by the district court, or vacated by this circuit’s                             BACKGROUND
decision of August 21, 1997.
                                                                      OOIDA brought an action against defendants PSC, Bissell,
E. The declaratory judgment relied upon by the panel               and two officers of PSC alleging that the defendants violated
majority in the instant appeal to support its reasoning and        the Fourth Amendment by conducting unreasonable searches
judgment is non-existent.                                          of trucks traveling on public state and interstate highways in
                                                                   Tennessee. OOIDA also brought a claim under 42 U.S.C.
F. The Plaintiffs’ have failed to prevail on a single cause of     § 1983 for violations of the Due Process and Equal Protection
action charged in their complaint.                                 Clauses of the Fourteenth Amendment and the Commerce
                                                                   Clause of Article I, Section 8, Clause 5 of the Constitution.
G. The district court’s sua sponte application of the “catalyst    Thereafter, summary judgment was granted by the district
test” constituted an abuse of discretion and was unwarranted.      court in favor of all the defendants on the Fourth Amendment
                                                                   issue, as well as for the two PSC officers on the remaining
H. Plaintiffs have failed to carry their burden to prove that      issues. All claims against PSC were dismissed pursuant to
they were a “prevailing party” against Bissell.                    the Eleventh Amendment which grants states immunity from
                                                                   suits in federal court. After a bench trial, the district court
  Accordingly, for the reasons stated herein, I would reverse      found that Bissell had violated OOIDA’s constitutional rights
the district court’s decision to award Plaintiffs’ attorney fees   and enjoined Bissell from continuing to violate the plaintiffs’
as prevailing parties against Bissell in the amount of             rights. The district court also awarded OOIDA reasonable
$584,200.00, and remand the case with instructions to the          costs and attorneys’ fees under 42 U.S.C. § 1988.
district court to vacate its judgment.
                                                                     This court upheld the district court’s grants of summary
                                                                   judgment, but vacated the district court’s award of injunctive
                                                                   relief finding that it was too vague. We remanded the case
                                                                   with instructions to the district court to determine if injunctive
                                                                   relief was still necessary since Bissell had resigned as a
                                                                   commissioner, and the PSC had been abolished by the
                                                                   Tennessee legislature.
                                                                     On remand, the district court found that, in light of the
                                                                   changed circumstances, no irreparable damage could be done,
                                                                   and, therefore, injunctive relief was not necessary. The
                                                                   district court also found that OOIDA was still a “prevailing
                                                                   party” entitled to attorneys’ fees and reasonable costs under
                                                                   42 U.S.C. § 1988. Citing Perket v. Secretary of Health and
                                                                   Human Services, 905 F.2d 129, 132 (6th Cir. 1990), the
                                                                   district court stated that, although OOIDA had not ultimately
                                                                   received any judicially awarded relief, it had demonstrated
                                                                   that the present “lawsuit acted as a ‘catalyst’ in prompting
4    Owner-Operator Independent                   No. 98-6037      No. 98-6037              Owner-Operator Independent         33
     Drivers v. Bissell                                                                               Drivers v. Bissell

defendants to take the desired action” and awarded OOIDA           original appellate panel that decided this case, to impress and
$515,700 for fees and $68,500 for costs.                           attach greater weight and veracity to the result-oriented
                                                                   commentaries that follow it and which are currently beyond
                STANDARD OF REVIEW                                 corroboration. Moreover, the concurring opinion seeks
                                                                   additional weight and veracity by implying the concurrence
   This court reviews awards of attorneys’ fees under an abuse     and endorsement of the other judges who participated in the
of discretion standard. Loudermill. v. Cleveland Bd. of Educ.,     initial discussion by convoluted rhetorical innuendoes, such
844 F.2d 304, 308-09(6th Cir. 1988). “A district court abuses      as: “[o]n appeal, we vacated the injunction…”; “[w]e did so
its discretion when it relies on clearly erroneous findings of     not because…”; “because we thought…”; “[w]e did not
fact ... or when it improperly applies the law or uses an          question…”; “unless the district court knew something that
erroneous legal standard.” Christian Schmidt Brewing Co. v.        we did not…”; etc. (Emphases added).
G. Heileman Brewing Co., Inc., 753 F.2d 1354, 1356 (6th Cir.
1985)(citations omitted). Under this standard, this court must       Because the concurring opinion conveys questionable
review the district court’s legal conclusions de novo and its      implications, it should be disregarded as a contributing factor
factual findings for clear error. Perket, 905 F.2d at 132.         in the instant appeal.
                       DISCUSSION                                    To briefly recapitulate, I dissent because:
   Under 42 U.S.C. § 1988, district courts have the discretion     A. This circuit’s decision of August 21, 1997 was a final
to award attorneys’ fees to a “prevailing party” in a civil        deposition of this case; hence,
rights lawsuit. A “prevailing party” need not actually prevail
on the merits of its claim so long as it “suceed[s] on any           1.   the principles of res judicata apply to its findings of
significant issue in litigation which achieves some of the                fact and conclusions of law; and
benefit the parties sought in bringing suit.” Hensley v
Eckerhart, 461 U.S. 424, 433 (1983), quoting Nadeau v.               2.   its findings of fact and conclusions of law constitute
Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978). Any                       the law of the case.
enforceable judgment, or comparable type of relief, or
settlement, therefore, will generally make a plaintiff a           B. The district court’s failure to respond to this circuit’s
“prevailing party” as long as “his claim materially alters the     mandate “to describe in reasonable detail” the extent of
legal relationship between the parties by modifying the            Bissell’s unconstitutional behavior leaves the record of
defendant’s behavior in a way that directly benefits the           evidence against Bissell unchanged. It was, and is, currently
plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111 (1992). A           insufficient to support the district court’s decision which was
plaintiff is benefitted by “monetary damages, injunctive relief,   vacated.
or a voluntary change in a defendant’s conduct.” Woolridge
v. Marlene Indus., 898 F.2d 1169, 1173 (6th Cir. 1990).            C. The Plaintiffs failed to prove any constitutional
                                                                   infractions to support their 42 U.S.C. § 1983 claims against
  If the plaintiff’s relief stems from a voluntary change in the   Bissell.
defendant’s conduct, the plaintiff must show that his or her
lawsuit was the “catalyst” behind that change. Payne v.            D. All of the Plaintiffs’ requests seeking declaratory
Board of Educ., Cleveland City Schools, 88 F.3d 392, 397           judgment and injunctive relief were either denied or
32    Owner-Operator Independent                   No. 98-6037      No. 98-6037               Owner-Operator Independent              5
      Drivers v. Bissell                                                                                Drivers v. Bissell

without accepting its reasoning. He is free to concur in part       (6th Cir. 1996). The district courts use a two-part test to
and dissent in part with a proposed opinion. He may concur          determine whether a plaintiff’s lawsuit is the “catalyst” to a
with a proposed opinion and submit his personal views and           defendant’s changed behavior:
reasons in a separate concurring opinion. He may enter a
dissent to a proposed opinion or he may concur without                First, in order to qualify as a “prevailing party,” a
reservation in the reasoning and disposition articulated in a         plaintiff must demonstrate that his or her lawsuit was
proposed decision. However, thus having exercised his                 causally related to securing the relief obtained. This
option, including a voluntary preference to remain silent, to         determination is factual.
express his position and participation in a given case, his
election, is irreversible, a fait accompli, as it relates to that     Secondly, plaintiff must establish some minimum basis
case.                                                                 in law for the relief secured .... “If it has been judicially
                                                                      determined that defendants’ conduct, however beneficial
   The author of the concurring opinion in this appeal agreed         it may be to plaintiffs’ interests, is not required by law,
without comment, condition, or reservation in this circuit’s          then defendants must be held to have acted gratuitously
reasoning and disposition in Owner-Operator Independent               and plaintiffs have not prevailed in a legal sense.”
Drivers Association v. Bissell, No. 94-6178/6179, 1997 WL
525411 (6th Cir. Aug. 21, 1997). By remaining silent he             Johnston v. Jago, 691 F.2d 283, 286 (6th Cir. 1982), quoting
waived any option subsequently to explain or express the            Nadeau v. Helgemoe, 581 F.2d 275, 281 (1st Cir. 1978).
reason for his vote to concur in the decision. The opinion          See Hewitt v. Helms, 482 U.S. 755, 761 (1987)(“[I]f the
issued by the original panel of this circuit is simple, clear,      defendant, under pressure of the lawsuit, alters his conduct ...
concise, unambiguous, and understandable. It needs no               towards the plaintiff that was the basis for the suit, the
interpretation.                                                     plaintiff will have prevailed.”). Although not conclusive,
                                                                    chronological evidence is a factor in determining whether a
   It would be highly irregular and inappropriate under any         plaintiff’s lawsuit is the catalyst for the defendant’s changed
circumstances for a single member of a three-judge appellate        conduct. Payne, 88 F.3d at 399.
panel to revisit a decision of that panel and unilaterally seek
to rewrite and revise the text and substance of the decision           Bissell submits that the district court erred by applying the
ostensibly with the inferred approval of his associate judges       catalyst test because his resignation and the abolition of the
who participated in the disposition of the appellate                PSC were not voluntary actions in response to the OOIDA’s
controversy.                                                        lawsuit. According to Bissell, the district court failed to make
                                                                    any findings of facts when determining whether OOIDA was
  The concurring opinion in this appellate review has the           a “prevailing party.” When deciding to award OOIDA
same objective. It seeks by revision unilaterally to infuse an      attorneys’ fees and costs, the district court stated:
element of intent and purpose into the August 21, 1997
decision of this circuit that cannot be inferred or implied from      In the present case, the Court initially awarded injunctive
the written text of that decision.                                    relief to Plaintiff after concluding that Defendant
                                                                      Bissell’s conduct violated Plaintiff’s constitutional
  The opening paragraph of the concurring opinion of the              rights. The Court’s opinion contained specific findings
instant appeal announces that its author was a member of the          of discriminatory and unconstitutional policies and
                                                                      practices of the Defendants, as well as numerous illegal
6      Owner-Operator Independent                   No. 98-6037      No. 98-6037               Owner-Operator Independent         31
       Drivers v. Bissell                                                                                Drivers v. Bissell

    acts by employees of the PSC. In vacating the injunction,          Black’s Law Dictionary, Fifth Edition, provides the
    the Sixth Circuit did not disturb any of the Court’s             following definition,
    substantive findings and conclusions regarding these
    matters, including Defendant Bissell’s unconstitutional            Vacate. To annul; to set aside; to cancel or rescind. To
    behavior. Rather, the appellant court merely vacated the           render an act void; as to vacate an entry of record, or a
    injunction because of its uncertain demands and directed           judgment.
    the Court to clarify the injunction’s language, and to
    consider whether Defendant’s conduct warrants such               BLACK’S LAW DICTIONARY 1388 (5th ed. 1979). The circuit
    injunctive relief now that the PSC has been abolished and        court decision voided the district court’s memorandum
    Defendant is no longer a commissioner. The sole reason           opinion in its entirety and admonished the trial judge upon
    this Court did not reissue the injunction on remand was          remand to consider the propriety of enjoining Bissell under
    the state’s interim decision to eliminate the PSC entirely,      any circumstances since he was only one of three elected
    along with Defendant Bissell’s resignation from his              commissioners that administered the PSC.
    position as commissioner. These actions were largely in
    response to the Court’s determination that widespread              Moreover, the trial judge’s repetitious argument is highly
    unconstitutional practices were taking place. The Court          implausible in the absence of any remaining viable
    finds that, as in Village of Crestwood, Defendants’              declaratory judgment that could anchor the district court’s and
    remedial actions were causally linked to Plaintiffs’             the instant panel majority’s reasoning and conclusions.
    institution of suit and initial victory in this Court.
    (Emphasis added.)                                                   The circuit court’s decision of August 21, 1997 vacating the
                                                                     district court’s memorandum opinion of August 10, 1994,
  The evidence is undisputed. OOIDA received declaratory             endorsed the conclusion that the declaratory judgment,
and injunctive relief from the district court on the merits of its   repeatedly alluded to by the trial judge, and a reason that
case. Consequently, the district court found that OOIDA was          prompted the panel majority to conclude that “the declaratory
the “prevailing party” entitled to attorneys’ fees. This court       judgment issued by the district court is sufficient reason alone
upheld the district court’s declaratory judgment and only            to deem OOIDA a prevailing party in this case,” was a fiction,
vacated the award of injunctive relief so that the district court    a fact which is the coup de grace to the panel majority’s
could clarify its ruling. It is also undisputed that Bissell’s       reasoning.
resignation and the abolition of the PSC occurred after
OOIDA filed its lawsuit. Although the record does lack                 Lastly, I take issue with the concurring opinion’s
specific findings of fact by the district court to support its       commentaries and the inferences implicit therein. It is
conclusion that Bissell’s actions and the abolition of the PSC       recognized that judges have wide discretion to question and
were in response to the district court’s early holding that          distinguish, by interpretation, the precedential value of cited
widespread unconstitutional practices were taking place, the         legal authority and its application to a fact specific scenario.
declaratory judgment issued by the district court is sufficient        It is also equally recognized that individual members of a
reason alone to deem OOIDA a “prevailing party” in this              three-judge appellate reviewing panel are entrusted with a
                                                                     wide array of discretionary options to express their individual
                                                                     unrestrained opinions as those opinions apply to a given
                                                                     disposition. A judge may concur in the result of an opinion
30       Owner-Operator Independent                        No. 98-6037         No. 98-6037                   Owner-Operator Independent                 7
         Drivers v. Bissell                                                                                            Drivers v. Bissell

OOIDA’s constitutional rights. When the district court failed                  case.1 Therefore, the district court did not abuse its discretion
to comply, this court’s August 21, 1997 disposition became                     in awarding OOIDA attorneys’ fees and reasonable costs.
the law of the case and subject to the principle of res judicata.
See Black v. Ryder/P.I.E. Nationwide, Inc., 15 F.3d 573, 582                      The eloquent dissent suggests that this opinion is contrary
(6th Cir. 1994). The earlier decision cannot be overruled, set                 to our prior decision in Owner-Operator Independent Drivers
aside, modified, or amended except by en banc disposition or                   Ass’n v. Bissell, No. 94-6178/6179, 1997 WL 525411 (6th
by a ruling of the Supreme Court.6 The trial judge has                         Cir. August 21, 1997), but it is not intended to contradict our
repeatedly argued that, “[i]n vacating the injunction, the Sixth               prior decision and does not in fact contradict it. Our prior
Circuit did not disturb any of the Court’s [unidentified]                      decision did not set aside a declaratory judgment obtained by
substantive findings and conclusions regarding these                           OOIDA, and the record shows that OOIDA likely would have
[unidentified] matters, including Defendant Bissell’s                          obtained injunctive or other relief against Bissell had Bissell
[unidentified] unconstitutional behavior,” a repetitious                       remained in office and had the PSC existed in its previous
argument which has apparently received favorable panel                         structure.
majority consideration.
                                                                                 AFFIRMED.
   Contrary to the district court’s argument, however, the
circuit court order of August 21, 1997 was clear, concise, and
understandable. It was unconditional. It reserved no
substantive findings of fact or conclusions of law purportedly
incorporated into the trial court’s decision, because the circuit
court concluded that such findings of fact and conclusions of
law, particularly those implicating Bissell, were non-existent.


     6
      See, e.g., United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996)
(propounding that “[c]ustom and tradition in the various circuits of the
United States Court of Appeals dictate that one panel of a circuit court
will not overrule the decision of another panel; only the court sitting en
banc may overrule a prior decision of a panel.”) (citation omitted);
United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994) (explaining            1
that “[u]nder the doctrine of law of the case, findings made at one point             The dissent finds fault in this statement. Although Rhodes v.
in the litigation become the law of the case for subsequent stages of that     Stewart, 488 U.S. 1, 3 (1988), states that nothing in Hewitt v. Helms, 482
same litigation.”) (citation omitted). In the case sub judice, a prior panel   U.S. 755 (1987), “suggested that the entry of [a declaratory] judgment in
of the Sixth Circuit determined that the district court had not made           a party’s favor automatically renders that party prevailing under § 1988,”
sufficient findings to support its injunction against Bissell, and             it clarifies that by holding that the judgment must affect the behavior of
accordingly vacated the injunction and remanded the action for                 the defendant toward the plaintiff. Rhodes, 488 U.S. at 3. That has
reconsideration. Following remand, the district court made no findings         occurred here. The declaratory judgment operated as a catalyst to force
supportive of its prior injunction. Accordingly, the prior circuit court       Bissell’s resignation and a restructure of the PSC. That was the
panel ruling that the district court’s injunction against Bissell was          conclusion of the district court which had no direct evidence on that issue
unsupported by adequate factual findings remains the law of the case,          but had ample circumstantial evidence upon which it could have drawn
which the current panel may not disturb.                                       that inference.
8    Owner-Operator Independent                   No. 98-6037      No. 98-6037                   Owner-Operator Independent               29
     Drivers v. Bissell                                                                                    Drivers v. Bissell

                   ___________________                               Consequently, it is impossible to comprehend the bounds
                                                                     of the district court’s order and we must vacate the
                     CONCURRENCE                                     injunction.
                   ___________________
                                                                   Bissell, 1997 WL 525411, at *2 (emphases added). The
   DAVID A. NELSON, Circuit Judge, concurring. I concur            concise language of the opinion repudiates the district court’s
in the judgment and in the opinion Judge Siler has written for     exculpatory statement. Moreover, the court’s record of this
the court. As a member of the panel that vacated the district      case belies the district court’s representation that “these
court’s injunction, however, I should like to add a few words      actions [the abolition of the PSC and Bissell’s resignation as
explaining why I do not believe that the district court            one of its three elected commissioners] were largely in
misunderstood what it was being asked to do on remand.             response to the Court’s determination that widespread
                                                                   unconstitutional practices were taking place.” That statement
   By way of background, it is worth noting that the district      also contradicts this court’s previous admonition that “upon
court had already delivered itself of a 43-page memorandum         remand the district court should consider whether [Bissell’s]
opinion, entered on August 10, 1994, following an 11-day           specific conduct warrants injunctive relief against him, and
bench trial. The opinion contained extensive findings on how       indeed the propriety of any such relief since Bissell was just
out-of-state truckers were discriminated against in favor of in-   one of three Commissioners….” Bissell, 1997 WL 525411,
state truckers in the enforcement of Tennessee’s motor carrier     at *2.
safety regulations.
                                                                      The legal effect of this court’s previous order vacating the
   The district court found, for example, that enforcement         trial court’s first judgment against Bissell in Owner-Operator
officers in East Tennessee were told by Public Service             Independent Drivers Ass’n v. Bissell, No. 94-6178/6179,
Commissioner Bissell to stop checking for safety defects in        1997 WL 525411 (6th Cir. Aug. 21, 1997) was a mandate        to
trucks that were leaving Tennessee. Bissell, the court             the district court soliciting a declaratory judgment5 defining
determined, told the officers to limit their safety inspection     the “extent of Bissell’s objectionable activities,” Bissell,
efforts to trucks coming from outside the state. The court         1997 WL 525411, at *2, if any existed, that infringed
further found that “[t]he policy followed in East Tennessee
tended to favor in-state trucking companies over out-of-state
trucking companies;” that trucks traveling in both directions          5
should have been inspected for safety violations; and that               Factually, contrary to the panel majority’s conclusion, the previous
                                                                   decision of this court disclaimed the existence of a declaratory judgment
there were inspection points in Middle and West Tennessee          that had adjudicated the rights and status as between OOIDA and Bissell
where trucks going in both directions were inspected.              as demonstrated by its decision vacating the trial court’s injunction which
                                                                   purportedly embraced what now clearly surfaces as a discredited illusion
   Discrimination against out-of-state truckers was linked to      in light of the previous panel’s inquiry seeking inculpatory
extensive fund-raising efforts conducted among Tennessee           unconstitutional activities committed by Bissell which were detrimental
trucking companies by and on behalf of individual                  to OOIDA.
commissioners, including Commissioner Bissell. A Public                  Black’s Law Dictionary describes “declaratory judgment” as a
Service Commission enforcement officer testified, for              “remedy for determination of a justiciable controversy where the plaintiff
example, that he drove Bissell’s administrative assistant –        is in doubt as to his legal rights.” BLACK’S LAW DICTIONARY 368 (5th ed.
                                                                   1979).
28    Owner-Operator Independent                    No. 98-6037      No. 98-6037                Owner-Operator Independent               9
      Drivers v. Bissell                                                                                  Drivers v. Bissell

  Bissell was just one of three commissioners, is no longer          Jackie Pope, whom Bissell described as his “alter ego” – from
  a commissioner, and the Commission itself was                      one Tennessee trucking company to another to solicit
  abolished to be replaced by an agency whose directors              campaign funds for Bissell. Another enforcement officer
  are no longer elected.                                             testified that his superior told him to “go over to Jefferson
                                                                     County and lean on a certain trucking company because they
Bissell, 1997 WL 525411, at *2 (emphasis added).                     had not contributed to Commissioner Bissell’s campaign.”
                                                                     And, as the district court further found,
  The thrust of this court’s first unedited disposition was an
order directing the district court to identify “the extent of          “Fund-raising tickets were sold by enforcement officers
Bissell’s objectionable activities,” Id., so that it could             while in uniform and on duty. Jackie Pope reminded
evaluate the validity of any future district court ordered             officers that the commissioner’s election was coming and
injunction or other sanction issued against Bissell.                   they needed to help ‘keep our man in office.’ He sent a
                                                                       list of past contributors to officers in the field to assist in
   Unfortunately, the district court elected to ignore this            their fund-raising efforts. On occasion, the request to sell
court’s initial directive to declare the “extent of Bissell’s          fund-raising tickets came directly from Commissioner
objectionable activities,” Id., that it had relied upon to support     Bissell, Jackie Pope, or other PSC staff members. Other
its vacated injunction. Instead, it determined “that in light of       such requests came from supervisors in the field. One
the abolishment of the PSC, and the fact that Defendant                sergeant told an enforcement officer that ‘it was better to
Bissell no longer held office, there is no compelling reason           sell tickets than work midnight at the scales.’ One
for the issuance of an injunction against Defendant Bissell at         officer was asked to go to the office of an owner of a
this point.”                                                           regulated company to replace a corporate check written
                                                                       to Commissioner Bissell’s campaign, which is illegal,
   The panel majority’s reliance upon the district court’s self-       with cash or a personal check.”
serving and totally inaccurate interpretation of this court’s
first decree is troubling. When juxtaposed, it is facially           Commissioner Bissell’s fund-raising efforts were hardly
apparent that the district court’s observation that, “[i]n           isolated, and I do not believe that we intended to suggest
vacating the injunction, the Sixth Circuit did not disturb any       otherwise when this case was last before us.
of the court’s substantive findings and conclusions regarding
these matters, including Defendant Bissell’s unconstitutional           The generosity of the Tennessee trucking companies did not
behavior,” (emphasis added), is a misstatement of this court’s       go unrewarded, the district court found: “The proof at trial
previous opinion, for the obvious reason that such inculpating       presented a significant connection between the perceived, and
findings implicating Bissell were non-existent in the court’s        sometimes actual, political clout of some in-state motor
record of proceedings. The very reason that the injunction           carriers and the decisions of enforcement officers in
against Bissell was vacated was:                                     administering the truck safety regulations.” A graphic
                                                                     illustration of the connection may be found in the following
  because the district court’s findings of fact and                  passage from the district court’s opinion:
  conclusions of law [the declaratory judgment aspect of its
  decision] consistently attribute conduct to ‘defendants,’            “One officer testified that after writing a citation on a
  rather than Bissell individually, making it impossible to            Tennessee truck company, he received a call from his
  discern the extent of Bissell’s objectionable activities. …
10    Owner-Operator Independent                   No. 98-6037      No. 98-6037               Owner-Operator Independent           27
      Drivers v. Bissell                                                                                Drivers v. Bissell

  supervising sergeant who told him that the trucking                 Accordingly, without constitutional foundations, both 42
  company had just contributed to the commissioner’s                U.S.C. § 1983 charges against Bissell entertained and decided
  campaign and the owners had asked Jackie Pope,                    by the district court must fail, and the district court’s decision
  Commissioner Bissell’s administrative assistant, if they          must be reversed.
  could get some help on the ticket. Pope conveyed the
  request for help directly to the issuing officer’s                   Subsequent to a trial of both issues, the district court
  supervisor and the sergeant went to court and had the             released its ambiguous opinion of August 10, 1994 which
  citation dismissed.” (Footnote omitted.)                          enjoined Bissell “from continuing to violate the Plaintiffs’
                                                                    rights.” The declaratory judgment and related injunction
  After noting that it was the plaintiffs’ burden to establish      against Bissell were, by a previous panel of this court, vacated
that “each” defendant had deliberately deprived the plaintiffs      and “remanded to allow the district court to conduct further
of a constitutional or statutory right, the district court found    proceedings consistent with this opinion.” Owner-Operator
that                                                                Independent Drivers Ass’n v. Bissell, No. 94-6178/6179,
                                                                    1997 WL 525411, at *3 (6th Cir. Aug. 21, 1997). The earlier
  “the Defendants engaged in a continuous pattern and               panel of this court had decided that:
  practice of intentional discrimination against out-of-state
  trucking companies and in favor of in-state trucking                   The district court's one sentence injunction in this case,
  companies, and those trucking companies which had                   enjoining Bissell ‘from continuing to violate the
  supported or contributed to the political campaigns of              Plaintiff's rights,’ falls considerably short of satisfying
  PSC Commissioners.”                                                 the requirements of Rule 65(d). The court failed to use
                                                                      specific terms or to describe in reasonable detail the acts
This intentional discrimination, the court concluded,                 sought to be restrained. Precision is especially
constituted a violation of the plaintiff’s rights under the Equal     important in this case because the district court's
Protection and Commerce Clauses of the United States                  findings of fact and conclusions of law consistently
Constitution. The district court issued an express declaration        attribute conduct to ‘defendants,’ rather than to Bissell
to that effect in the concluding portion of its opinion, and          individually, making it impossible to discern the extent of
went on to enjoin defendant Bissell “from continuing to               Bissell's objectionable activities.
violate the plaintiff’s rights.”
                                                                    Bissell, 1997 WL 525411, at *2 (emphasis added). It went on
   On appeal, we vacated the injunction. We did so not              to observe that the only findings of fact which may have
because we thought the district court had erred in any of its       implicated Bissell were his suggestions that officers sell fund-
factual findings, but because we thought it unclear to what         raising tickets and concentrate their enforcement inspections
extent the district court intended to find involvement by           on inbound traffic.
Bissell in various categories of discriminatory conduct
attributed to “the defendants” generally, just as we thought it       After vacating the injunction against Bissell, the previous
unclear how broad the injunction against Bissell was intended       panel of this court admonished that:
                                                                      upon remand the district court should consider whether
                                                                      that specific conduct warrants injunctive relief against
                                                                      him, and indeed the propriety of any such relief since
26     Owner-Operator Independent                         No. 98-6037   No. 98-6037                   Owner-Operator Independent               11
       Drivers v. Bissell                                                                                       Drivers v. Bissell

unlawful activity or other identifiable impropriety attributable        to be and what specific acts he was to be enjoined from
to Bissell or his staff was disclosed by the reviewable record          performing.1
of these proceedings. This is confirmed by the unedited
version of this court’s decision of August 21, 1997, which                We did not question the proposition that the orders given by
vacated the district court decision and remanded the case with          Bissell to stop checking out-bound trucks for safety defects
instructions to identify Bissell’s unconstitutional behavior, if        and to limit safety inspections to in-bound vehicles could
any existed. The district court ignored the instructions                support the claims – found meritorious by the district court –
without elaborating on its original factually unsupported               of Equal Protection and Commerce Clause violations. With
conclusory statements.                                                  respect to the injunction, however, we directed the district
                                                                        court to consider, on remand, “whether that specific conduct
   The district court’s decision declaring the Commission’s             warrants injunctive relief against [Bissell], and indeed the
alleged practice of selectively enforcing safety regulations in         propriety of any such relief since Bissell was just one of three
favor of in-state trucking companies by concentrating border            commissioners, is no longer a commissioner, and the
enforcement on incoming traffic to be unconstitutional was              Commission itself was abolished to be replaced by an agency
equally erroneous.                                                      whose directors are no longer elected.”
  The district court’s opinion noted that “Tennessee’s truck               Unlike our dissenting colleague, I do not read this language
safety inspection program is designed to be part of a uniform           as an unconditional mandate to determine what
national plan whereby all states check for safety violations in         unconstitutional activities Bissell had engaged in beyond
their respective states.” (Emphasis added). Logic and                   directing that safety inspections be limited to in-bound traffic.
common sense dictate that out-of-state truckers enter                   Such a determination would have been necessary, to be sure,
Tennessee and after completing their business leave its                 if the district court had decided to issue an injunction going
borders by crossing into the enforcement jurisdiction of an             beyond the in-bound out-bound matter – but unless the district
adjacent sister state that implements its own inspection                court knew something that we did not, it seemed obvious to
program. Logic and common sense also dictate that                       us that the need for any injunction at all had become moot.
concentrated enforcement inspection of incoming truck traffic           The district court agreed; soon after the remand, the court
more effectively serves Tennessee’s enforcement purpose of              entered a brief order saying that no further injunction would
protecting its citizens from safety hazards inherent to                 issue. This order was in no way inconsistent with our
vehicular mechanical failures while operated within its                 mandate.
borders. Implementation of the policy is also less costly for
Tennessee and out-of-state truckers by relieving both from a               The plaintiffs then filed a supplemental application for
second, time-consuming, unnecessarily replicating inspection.           attorney fees under 42 U.S.C. § 1988. The district court
The policy, on its face, is without constitutionally
discriminatory implications.
                                                                            1
                                                                              The dissenting opinion questions my use of the plural pronoun in
                                                                        this and the following two paragraphs. The point, I believe, is well taken
                                                                        – I cannot, and should not purport to, speak for the other members of the
                                                                        earlier panel. I am entitled to express my individual views as to what the
     called upon them and solicited their support for his boss, a PSC   earlier panel did and did not do, however, and those views, as reflected in
     commissioner, is misconceived.                                     this concurring opinion, remain unchanged.
12   Owner-Operator Independent                   No. 98-6037      No. 98-6037                    Owner-Operator Independent                25
     Drivers v. Bissell                                                                                     Drivers v. Bissell

granted the application as to defendant Bissell, finding that as   be unconstitutional absent related unlawful activity.4 No
far as he was concerned the plaintiffs were the prevailing
parties because the lawsuit “acted as a ‘catalyst,’” within the
meaning of Perket v. Sec’y of HHS, 905 F.2d 129, 132 (6th              4
                                                                         The solicitation of political contributions through the sale of fund-
Cir. 1990), “in prompting [defendant Bissell] to take the          raising tickets to fund-raising political events sponsored by candidates
desired action.”                                                   seeking election or reelection to public office, and/or their appointed
                                                                   bureaucratic employees, by private individuals, special interest groups,
  What was the “desired action?” For one thing, as the             corporations and other business enterprises, all or most of whom seek the
                                                                   prestige of individual recognition through access to authority and/or
amended complaint makes clear, it was that the defendants          future favorable recognition and consideration by the candidate if elected,
stop “undertaking, enforcing, maintaining or adopting any          is an American way of political life. The reality of this political practice
policies, procedures or acts which result in any discrimination    is measured in the daily testimony of printed, audio, and visual media
against out-of-state trucks or their operators or owners.”         coverage of evolving current political events. The practice is neither
                                                                   sinister nor unconstitutional. The statement of Jackie Pope, an
   The fact that Bissell personally had been guilty of such        administrative assistant to Bissell, reminding and urging appointed
                                                                   bureaucratic employees to “keep our man in office” is the battle cry
discrimination is evident from the district court’s findings.      echoed by similarly situated appointed bureaucrats throughout the country
The fact that Bissell ultimately stopped discriminating is         interested in employment longevity. In the instant case the record fails to
evident from his resignation. The plaintiffs may not have          disclose any discrimination in the sale of fund-raising tickets. They were
expected to achieve their desired goal – an end to the             available to both in-state and out-of-state truckers on an equal basis.
unconstitutional discrimination – through the resignation of
Commissioner Bissell and the abolition of the Commission                Before concluding these observations it should be noted that the
                                                                   district court reference to the Commission’s policy restricting political
itself, but the goal seems to have been achieved.                  activity within the agency and its explanatory footnote is of questionable
                                                                   significance to the facts of this case. It does, however, reflect the
   I am not prepared to say that the district court – more         confusion of the trial judge. In its opinion the trial court stated, “On
familiar with this situation than I – was out of bounds in         January 1, 1988, the PSC adopted a new written policy prohibiting
concluding that the lawsuit, with its rather dramatic judicial     enforcement officers from soliciting campaign contributions from any of
findings, had a catalytic effect in ending the discrimination      the trucking companies which were regulated by the PSC. The policy was
                                                                   adopted in order to eliminate prior widespread political and fund-raising
complained of. I therefore concur in the affirmance of the         activities by PSC employees among regulated companies.” (Emphases
challenged order.                                                  added). Paragraph three of the Commission’s policy, which is the
                                                                   pertinent section of the policy to this case, provides: “No division
                                                                   employee of the Tennessee Public Service Commission shall directly or
                                                                   indirectly solicit or take part in soliciting any assessment, subscription or
                                                                   contribution for [not from] any regulated company, an agency of a
                                                                   regulated company, or an employee of a regulated company. No person
                                                                   shall knowingly solicit any such assessment, subscription or contribution
                                                                   of any employee of the Tennessee Public Service Commission.”
                                                                   (Emphasis added). Obviously, the district court observation that:
                                                                            The policy recognizes the inherent conflict of interest which
                                                                       exists when a PSC enforcement officer is faced with the decision
                                                                       to issue a citation to a regulated trucking company for a safety
                                                                       violation when he has previously solicited campaign funds from
                                                                       the owners and employees of the company or has otherwise
24   Owner-Operator Independent                   No. 98-6037      No. 98-6037                   Owner-Operator Independent               13
     Drivers v. Bissell                                                                                    Drivers v. Bissell

enforcing a policy of collecting roadside cash bonds to insure                              _______________
a purported out-of-state violator’s court appearance to answer
charges of alleged infractions stemming from vehicle                                           DISSENT
inspections. The district court dismissed that requested                                    _______________
declaration and concluded that the PSC policy was valid. The
complaint also requested a permanent injunction enjoining             KRUPANSKY, Circuit Judge, dissenting. I respectfully
Defendants and their officers, employees, or agents from           dissent from the majority’s decision to affirm the trial court’s
undertaking, enforcing, maintaining, or adopting any policies,     award of attorney fees in the amount of $515,700, plus
procedures, or acts which would result in any discrimination       $68,500 in costs, to the Plaintiffs as “prevailing parties”
against out-of-state trucks, their owners, or operators -- a       pursuant to 42 U.S.C. § 1988 against Keith Bissell as the
meaningless vague request of no legal significance.                single remaining defendant1 in this case that originated as a
                                                                   multiple-defendant action. The district court’s decision has
   Ultimately, the district court dismissed all claims for         conveniently framed the issue here on appeal in the following
declaratory and related injunctive relief against the              statement:
Defendants, except Plaintiffs’ charges concerning the
Commission’s alleged practice which permitted its officers           [A]lthough Plaintiffs did not ultimately receive
and employees to solicit regulated trucking companies for            judicially-awarded relief, they have demonstrated that
political campaign contributions by selling tickets to Bissell-      the present lawsuit “acted as a catalyst” in prompting
sponsored fund-raising affairs designed to promote his               Defendants to take the desired action.
reelection campaign in return for alleged purported related
favorable considerations. The district court also retained             In sum, the Court finds that Plaintiffs are not the
§ 1983 jurisdiction to decide if the Commission’s policy of          “prevailing party” as against Defendant PSC, but are the
concentrating its border inspections to incoming truck traffic       “prevailing party” as against Defendant Bissell. Thus,
discriminated against out-of-state truckers in favor of in-state     Plaintiffs are entitled to recover from Defendant Bissell
truckers, thus violating § 1983 by infringing their Due Process      an award of attorney’s fees and costs under Section 1988.
and Equal Protection guarantees as well as the Commerce
Clause of Article I, § 8(3) of the United States Constitution.

  In considering the implication of Bissell’s alleged
unconstitutional behavior, or lack thereof, as a condition for         1
                                                                        The district court denied the Plaintiffs’ motion to join the remaining
invoking § 1983 jurisdiction, comprehensive research has           two elected Public Service Commissioners, Steve Hewlett and Frank
disclosed no Supreme Court, Sixth Circuit, or other circuit        Cochran, as parties defendant to this action, persons who exercised
precedent that has declared the solicitation of political          essentially the same responsibility and authority in the administration of
contributions via the sale of tickets to fund-raising events to    the PSC as did Bissell.
                                                                        Having denied the Plaintiffs’ motion to join Cochran and Hewlett as
                                                                   parties defendant, the district court committed reversible error by
                                                                   subsequently ordering Bissell to pay attorney fees arising from purported
                                                                   unconstitutional acts that he could not have committed without a vote of
                                                                   approval from at least one other elected member of the PSC.
14       Owner-Operator Independent                     No. 98-6037        No. 98-6037               Owner-Operator Independent         23
         Drivers v. Bissell                                                                                    Drivers v. Bissell

  Unfortunately, neither the district court, nor the panel                   A declaratory judgment, in this respect, is no different
majority, nor the Joint Appendix, has defined the “desired                   from any other judgment. It will constitute relief, for
action” that resulted from the “catalytic effect” of Plaintiffs’             purposes of § 1988, if, and only if, it affects the behavior
lawsuit which changed the legal relationship between                         of the defendant toward the plaintiff.
Plaintiffs and any of the Defendants, including Bissell, that
would warrant an award of attorney fees to Plaintiffs as                   Rhodes, 488 U.S. at, 3-4.
prevailing parties pursuant to 42 U.S.C. § 1988. Farrar v.
Hobby, 506 U.S. 102 (1992).                                                  The much heralded but unidentified, elusive declaratory
                                                                           judgment which is the common thread that is central to the
  Accordingly, for purposes of this dissent, it is assumed that            district court’s decision and the panel majority’s reasoning
the “desired catalytic action” alluded to by the trial court, and          and ultimate decision has prompted an examination into its
promoted by Plaintiff OOIDA, was the fortuitous abolition of               origin and viability. The Plaintiffs’ Complaint and Prayer for
the elected three-member Tennessee Public Service                          Relief affords a reasonable point to commence such an
Commission (“PSC”) by the Tennessee General Assembly                       inquiry.
and the reassignment of its authority and responsibility to an
appointed Board of Directors and other existing state                         At the outset it is worthy to note that this is an action
agencies; and the resignation of Keith Bissell, one of the three           invoking 42 U.S.C. § 1983 seeking declaratory judgment and
elected commissioners. Both actions were voluntarily                       injunctive relief that would permanently enjoin the defendants
undertaken and not required by law or judicial decree.                     from impinging the Plaintiffs’ constitutional rights
                                                                           guaranteed by the Fourteenth Amendment to the United States
  In light of this court’s earlier decision reversing and                  Constitution. Accordingly, a constitutional violation is a
remanding this case to the trial court with instructions to                condition precedent for invoking § 1983 jurisdiction. See 42
reconsider its disposition (Owner-Operator Independent                     U.S.C. § 1983.
Drivers Ass’n v. Bissell, No. 94-6178/6179, 1997 WL
525411 (6th Cir. Aug. 21, 1997)), the district court’s sua                    The Plaintiffs’ complaint requested the court to enter seven
sponte application of the “catalyst test” to support its decision          declarations of unconstitutional behavior attributable to
that OOIDA’s lawsuit caused the Tennessee state legislature                “Defendants,” of which two charged Bissell individually with
to eliminate its elected PSC and reassign its duties and                   unconstitutional behavior. Five of the seven declarations
responsibilities to an appointed Board of Directors and, in                sought to condemn searches of truck cab interiors, cab
some instances, other existing agencies, and caused Bissell to             sleeping compartments, and truck interiors without probable
resign as one of its three elected 2commissioners, taxes                   cause or a search warrant as violations of Plaintiffs’ Fourth
reasonable logic and comprehension.                                        Amendment constitutional rights. All five were dismissed by
                                                                           the district court. Those dismissals were affirmed by the
                                                                           earlier appellate review of this court on August 21, 1997.
     2                                                                     Another requested declaration and interrelated injunction
      An insight into the intra-organizational structure of the PSC will   sought to enjoin the PSC from maintaining a quota system of
offer some understanding of the difficulty in assigning individual         enforcement which was abandoned by Plaintiffs without
responsibility within the table of organization of that vast
compartmentalized state authority.                                         consideration by the district court. Another requested
                                                                           declaration sought to condemn the PSC and Bissell from
     The Tennessee Public Service Commission was composed of nine
22    Owner-Operator Independent                   No. 98-6037   No. 98-6037                    Owner-Operator Independent                15
      Drivers v. Bissell                                                                                  Drivers v. Bissell

  judgment was issued did not undermine respondent's
  status as a prevailing party eligible for attorney's fees.
  Affirmance order, 845 F.2d 327 (1988). In an                   divisions. It regulated electric companies, water companies, telephone
  unpublished opinion, the majority characterized the            companies, gas companies, long distance telephone companies, sewer
  relief plaintiffs had received as declaratory relief. The      companies, telecommunication companies, and transportation companies.
  panel majority noted our recent holding in Hewitt v.           An Executive Director of the Commission implemented all necessary
  Helms, supra, that a plaintiff must receive some relief on     action required to accomplish the duties, responsibilities, and assignments
  the merits of his claim before he can be said to have          of each division in an effective and efficient manner. Each division of the
                                                                 PSC had its own individual director with similar responsibilities within
  prevailed within the meaning of § 1988. It observed,           his division.
  however, that the plaintiff in Hewitt, unlike Stewart, had
  not won a declaratory judgment, and concluded that the             The Motor Carrier Safety Section regulated OOIDA’s members. It
  declaratory judgment issued in this case justified the         was but a sub-section of the Transportation Division that commanded a
  granting of attorney's fees.                                   low profile within the Commission’s primary functions.
                                                                      Although elected statewide, each public service commissioner had
Rhodes v. Stewart, 488 U.S. 1, 3 (1988). The Supreme Court       been required to maintain a legal residence in one of the state’s three
went on to declare:                                              grand divisions and was considered to represent that grand division on the
                                                                 PSC. The enforcement structure of the Motor Carrier Safety Section was
    The Court of Appeals misapprehended our holding in           virtually autonomous. A captain was in charge of each grand division
  Hewitt. Although the plaintiff in Hewitt had not won a         wherein a commissioner maintained a residence. An additional fourth
  declaratory judgment, nothing in our opinion suggested         captain was in charge of seven counties designated as the Upper East
                                                                 Tennessee Section. Below each captain were lieutenants, sergeants, and
  that the entry of such a judgment in a party's favor           enforcement officers who were assigned to various counties within each
  automatically renders that party prevailing under § 1988.      of the four state divisions. The court record is silent and does not identify
  Indeed, we confirmed the contrary proposition:                 the geographical grand division which Bissell or the other two
                                                                 commissioners maintained residences. The court record fails to identify
     "In all civil litigation, the judicial decree is not the    the geographical grand division where the alleged constitutional
     end but the means. At the end of the rainbow lies           infringements occurred or who was responsible for the implementation of
                                                                 any unconstitutional acts.
     not a judgment, but some action (or cessation of
     action) by the defendant that the judgment                       The autonomy exercised by the Motor Carrier Safety Section is
     produces--the payment of damages, or some specific          demonstrated by the example described by the district court wherein it
     performance, or the termination of some conduct.            alludes to one of two identified individuals in the melee of faceless and
     Redress is sought through the court, but from the           nameless bureaucrats referred to as “the defendants.” “Capt. LeFevers
                                                                 conducted his own roving court by using his unbridled discretion
     defendant. This is no less true of a declaratory            dismissing citations and carrying out his own wishes and the wishes of his
     judgment suit than of any other action. The real            [unidentified] superiors.” The district court’s opinion attached no identity
     value of the judicial pronouncement--what makes it          to the testimony it relied upon to support its conclusion that
     a proper judicial resolution of a 'case or controversy'     unconstitutional practices were being implemented.
     rather than an advisory opinion--is in the settling of
                                                                      The four captains of the autonomously operating geographical
     some dispute which affects the behavior of the              divisions usually met monthly in Nashville with certain [unidentified]
     defendant towards the plaintiff." 482 U.S., at 761,         staff to discuss PSC matters and review enforcement procedures and
     107 S. Ct., at 2676 (emphasis in original).                 assignments later conveyed to their respective staff members. The
                                                                 subordinate enforcement officers were expected to follow their captain’s
16    Owner-Operator Independent                     No. 98-6037       No. 98-6037               Owner-Operator Independent          21
      Drivers v. Bissell                                                                                   Drivers v. Bissell

                                                                          The cascading errors inherent to this controversy originated
                                                                       on August 10, 1994, when the district court issued its curt
  The record developed during the course of this legal action          one-sentence judgment and order that stated “the Court
discloses no reason for the legislative action that eliminated         hereby enjoins Defendant Keith Bissell from continuing to
the PSC or caused Keith Bissell to resign his position as one          violate the Plaintiffs’ rights.” The district court in that order
of its three elected commissioners but rather confirms that            also stated, “The Memorandum and Opinion
both acts were voluntary and not mandated by law or judicial           contemporaneously filed herewith constitutes this Court’s
decision.                                                              findings of fact and conclusions of law….”
   Although tried in Nashville, where the 132-member                     The district court’s memorandum of August 10, 1994,
Tennessee General Assembly convened annually to transact               which anchors this appellate panel majority’s disposition is,
its official agenda, not one of its 33 state senators or 99 state      unfortunately, nothing more than a showcase of factually
representatives appeared at trial or attested support for              unsupported ambiguities addressing the activities, with the
Plaintiffs’ claim that their lawsuit caused or influenced the          exception of a Capt. LeFevers and Jackie Pope, of a sprawling
legislation that eliminated the PSC. Nor have the Plaintiffs           compartmentalized political bureaucracy of great magnitude
referenced the General Assembly Record to reflect support, or          administered by countless nameless and faceless political
even knowledge by the state legislature of Plaintiffs’ lawsuit         appointees. The amorphous character of the district court’s
as an influencing factor for abolishing the PSC. Similarly, the        disposition was recognized in the unedited version of a
court record available for this appellate review is bare of any        decision issued by an earlier panel of this court on August 21,
reason for Bissell’s resignation from the PSC. Having                  1997, which reversed and vacated the district court’s decision
concluded that Plaintiffs received no judicially-awarded relief        as it related to Bissell and remanded the case to the district
to support an award of “prevailing party” attorney fees to             court with instructions for further consideration.
Plaintiffs against Bissell, the district court, nevertheless,
accomplished that result by sua sponte, without notice to                Although I concur with the panel majority’s statement that
Bissell, applying the “catalyst test.”                                 “the record does lack specific findings of fact by the district
                                                                       court to support its conclusion that Bissell’s actions [resigning
  This circuit, having endorsed the “catalyst test” in cases           as commissioner of PSC] and the abolition of the PSC were
where a voluntary change in a defendant’s conduct has                  in response to the district court’s early holding that
benefited the plaintiff, has also imposed the following two-           widespread unconstitutional practices were taking place,” I
part test to determine the propriety of applying the test:             take issue with its factual and legal conclusions that “the
                                                                       [unidentified] declaratory judgment issued by the district
  First, in order to qualify as a “prevailing party,” a                court [as related to Bissell] is sufficient reason alone to deem
  plaintiff must demonstrate that his or her lawsuit was               OOIDA a ‘prevailing party’ in this case.” The statement
  causally related to securing the relief obtained. This               contradicts the direction of the Supreme Court in Rhodes v.
  determination is factual.                                            Stewart, 488 U.S. 1 (1988) and Farrar v. Hobby, 506 U.S.
                                                                       100 (1992). In Rhodes,

orders. Beyond speculation, no nexus has been developed between this     [a] divided Court of Appeals [had] upheld [an] award of
compartmentalized operation, the captains, Bissell, or the other         fees, concluding that the mootness of the claim when the
commissioners.
20    Owner-Operator Independent                         No. 98-6037        No. 98-6037               Owner-Operator Independent          17
      Drivers v. Bissell                                                                                        Drivers v. Bissell

dated August 21, 1997 to identify Bissell’s unconstitutional                     Secondly, plaintiff must establish some minimum basis
behavior by observing that “[a]lthough the record does lack                   in law for the relief secured. … “If it has been judicially
specific findings of fact by the district court to support its                determined that defendants’ conduct, however beneficial
conclusion that Bissell’s resignation and the abolition of the                it may be to plaintiffs’ interests, is not required by law,
PSC were in response to the district court’s early holding that               then defendants must be held to have acted gratuitously
unconstitutional practices were taking place,” (all of which                  and plaintiffs have not prevailed in a legal sense.”
“holdings” had been vacated by an earlier panel of this circuit
in Owner-Operator Independent Drivers Association v.                        Johnston v. Jago, 691 F.2d 283, 286 (6th Cir. 1982)
Bissell, No. 94-6178/6179, 1997 WL 525411 (6th Cir. Aug.                    (emphasis added) (quoting Nadeau v. Helgemoe, 581 F.2d
21, 1997)), and appeared to have endorsed a finding that the                275, 281 (1st Cir. 1978)). See Hewitt v. Helms, 482 U.S. 755,
application of the “catalyst test” to the instant case was not              761 (1987) (“[I]f the defendant, under pressure of the lawsuit,
warranted to dispose of the Plaintiffs’ petition for an award of            alters his conduct … towards the plaintiff that was the basis
attorney fees.                                                              for the suit, the plaintiff will have prevailed.”).
   Thereafter, the panel majority contradicted the above                      In the instant case, the Plaintiffs have failed on both
finding in its first footnote by reasoning that “[t]he                      accounts. Without some material evidence that its lawsuit
[unidentified] declaratory judgment operated as a catalyst to               was the “catalyst” that induced the Tennessee General
force Bissell’s resignation and a restructure of the PSC. That              Assembly to dissolve the elected PSC and reassign its
was the conclusion of the district court which had no direct                responsibilities to an appointed Board of Directors and other
evidence on this issue but had ample [unidentified]                         existing agencies, and caused Bissell to resign, the Plaintiffs
circumstantial evidence [which evidence was not presented to                should not be permitted to assume “prevailing party” status
this chambers for review, and not disclosed in the joint                    and an award of attorney fees by exploiting and capitalizing
appendix, trial court decisions, or other court records] upon               on a series of events over which they exercised no control,
which it could have drawn that inference.” (Emphasis added).                which fortuitously occurred while their lawsuit pended before
                                                                            a court.
  The panel majority’s concurring decision is also less than                  The absence of evidence to support the district court’s
helpful in identifying the district court’s “rather dramatic                conclusion, apart from its own speculation that Plaintiffs’
judicial findings [that] had a catalytic effect in ending the               lawsuit was the “catalyst” that caused the Tennessee General
discrimination complained of.” (Emphasis added).                            Assembly to abolish and restructure the PSC and Bissell to
                                                                            resign, is understandable and obvious from the record of
                                                                            proceedings. The court acted sua sponte. It afforded the
                                                                            parties no notice of its intended action. It afforded the parties
                                                                            no hearing to develop a record of evidence bearing upon the
received a preliminary injunction from a district court after which, by a   propriety or impropriety of applying the test. It afforded
consent decree approved by the court, the plaintiffs dismissed their        Bissell no opportunity to brief and/or argue the negative legal
lawsuit seeking a permanent injunction after the defendant agreed to
desist from pursuing the action the plaintiffs sought to enjoin. The        consequences of interposing the test into the case, which
Village of Crestwood case is fully in accord with the pronouncements of     ultimately became the legal premise relied upon by the district
Rhodes v. Stewart, 488 U.S. 1 (1988), and Farrar v. Hobby, 506 U.S. 100     court finally to dispose of Plaintiffs’ petition seeking an
(1992).
18   Owner-Operator Independent                   No. 98-6037      No. 98-6037                     Owner-Operator Independent                  19
     Drivers v. Bissell                                                                                      Drivers v. Bissell

award of attorney fees from Bissell to the exclusion of all          whether there is a disputed issue of material fact when a
other real parties defendant to this lawsuit, including Steve        party has not had the chance to develop the record below.
Hewlett and Frank Cochran, the other two PSC elected                 This would force an appeals court to serve as a sounding
commissioners without whom Bissell could not have acted.             board for facts not properly in the record, simply because
                                                                     a party never had a chance to develop them. Similarly, as
   Recognizing that the panel majority will argue that the           in this case, the court might be left to review the entire
mandates of this circuit as expressed in Employers Insurance         record for any disputed questions of fact or to weigh and
of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98 (6th Cir.       examine facts never properly advanced below with
1995), apply only to summary judgment considerations, the            regard to Wausau because PSI never thought Wausau
reasoning and precedent of that decision is, nevertheless,           was moving for anything, let alone complete relief.
equally applicable to comparable controversies, as in the
instant case, wherein a district court issued a sua sponte final        Generally, before summary judgment [or any other
disposition adversely affecting a real party in interest to the      final disposition] can be granted against a party, Fed. R.
litigation:                                                          Civ. P. 56(c) mandates that the party opposing summary
                                                                     judgment be afforded notice and reasonable opportunity
  [T]he Supreme Court has held that “district courts are             to respond to all the issues to be considered by the court.
  widely acknowledged to possess the power to enter                  Routman [v. Automatic Data Processing, Inc., 873 F.2d
  summary judgments sua sponte, so long as the losing                970, 971 (6th Cir.1989)]. See also Portland Retail
  party was on notice that she had to come forward with              Druggists Ass’n v. Kaiser Foundation Health Plan, 662
  all of her evidence.” Celotex Corp. v. Catrett, 477 U.S.           F.2d 641, 645 (9th Cir. 1981).
  317, 326 (1986) (emphasis added). Therefore, there is no
  per se prohibition on entering summary judgment, sua             Employers Ins. of Wausau, 69 F.3d at 105.
  sponte.
                                                                     Initially, the panel majority appeared to have rejected the
    Nevertheless, as Fed. R. Civ. P. 12 and Catrett                district court’s sua sponte final disposition charging Bissell
  demonstrate, a district court does not have sweeping             with the payment of approximately $600,000 in prevailing
  authority to enter summary judgment [or any other final          party3 attorney fees to the Plaintiffs by applying the “catalyst
  disposition] at any time, without notice, against any            test” and its failure to respond to this court’s earlier mandate
  party…. [T]he procedural decision to enter summary
  judgment [or any other final disposition] sua sponte must
  also be reviewed to determine if the court abused its                3
                                                                          The district court’s precedent justifying its actions is a district court
  discretion by entering judgment on its own motion.               decision from the Seventh Circuit, Doe v. Village of Crestwood, 764 F.
                                                                   Supp. 1258 (N.D. Ill. 1991), which presents an unresolved conflict with
Employers Ins. of Wausau v. Petroleum Specialties, Inc. 69         its circuit court’s disposition of Libby by Libby v. Illinois High School
F.3d 98, 105 (6th Cir. 1995) (some emphases added) (some           Association, 921 F.2d 96 (7th Cir. 1990). Moreover, Village of
citations omitted). The Court observed:                            Crestwood is facially distinguishable from this case. Unlike the instant
                                                                   case wherein Plaintiffs seek the benefit of recovering attorney fees as the
                                                                   result of voluntary legislative action and personal action by Bissell
    The latter principle reflects a common sense                   undertaken without legal or judicial mandate which fortuitously
  application of the law. Courts of Appeal are courts of           happened to occur while its lawsuit pended before a court, the plaintiffs
  review. It would normally be impossible to determine             in Village of Crestwood sought prevailing party attorney fees after having
