Citizens for Better Forestry v. U.S. Department of Agriculture , 567 F.3d 1128 ( 2009 )

CLIFTON, Circuit Judge:

The United States Department of Agriculture (“USDA”), which includes the Forest Service, appeals - the district court’s award of attorneys’ fees to Citizens for Better Forestry and eleven other environmental groups (collectively, “Citizens”) under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). In the underlying action, Citizens sought declaratory and injunctive relief against the USDA for its promulgation of a new national forest management rule. We reversed the district court’s dismissal of Citizens’ suit on standing and ripeness grounds and remanded for a ruling on Citizens’ motion for injunctive relief. Before the district court could reconsider the motion, the USDA withdrew the contested rule. Citizens then stipulated to dismiss its case and moved for attorneys’ fees. Because Citizens received no relief from any court, it does not qualify as a “prevailing party” under the EAJA and, therefore, is not entitled to fees.

I. Background

On February 16, 2001, Citizens brought suit in the Northern District of California, alleging that the USDA had committed procedural violations of the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”) and substantive violations of the National Forest Management Act in promulgating a new rule (the “2000 Final Rule”) governing the Forest Service’s administration and management of National Forest System lands. Citizens sought declaratory and injunctive relief. After Citizens filed suit, the USDA reviewed the 2000 Final Rule and announced in December 2001 that a new rule would replace it. Citizens agreed, in turn, to stay its substantive claims, but moved for partial summary judgment on its procedural claims. The USDA filed a cross-motion for partial summary judgment, alleging that Citizens lacked standing to challenge the 2000 Final Rule and that its claims were not ripe for adjudication. The district court granted the USDA’s motion on both grounds and denied Citizens’ motions for partial summary judgment and injunctive relief. Citizens brought an immediate appeal of the district court’s denial of its motion for injunctive relief.

This court reversed, holding that Citizens had standing to assert the NEPA and ESA claims and that the case was ripe for review. Citizens for Better Forestry v. U.S. Dep’t of Agriculture, 341 F.3d 961, 965 (9th Cir.2003). In our standing analysis, we held that the USDA had violated NEPA by depriving Citizens of its right to comment on the relevant environmental documents. Id. at 970. The opinion concluded: “We do not reach the merits of Citizens’ appeal on their motion for injunctive relief, however, because the district court did not reach the merits of the motion.” Id. at 978. Ultimately, we reversed and remanded the case to the district court “to determine whether injunctive relief is appropriate.” Id. at 965.

After we issued our decision, the USDA withdrew the 2000 Final Rule and issued a new final rule. Citizens then dismissed its case and moved for attorneys’ fees and costs pursuant to the ESA and the EAJA. A magistrate judge issued a Report and Recommendation concluding that Citizens’ motion should be granted under the EAJA, but denied under the ESA. After the USDA objected, the district court reviewed the record de novo and issued an order adopting the Report and Recommendation without change. Citizens for Better v. U.S. Dep’t of Agriculture, 497 F.Supp.2d 1062, 1065 (N.D.Cal.2007). The district court awarded attorneys’ fees to Citizens under the EAJA because it held that Citizens was a “prevailing party” on its NEPA claim, as required for an award of fees. Id. at 1072. The court reasoned: “Given the dispositive and binding nature of the Ninth Circuit’s finding, leaving no discretion to the District Court, the panel’s ruling was functionally equivalent to' a declaratory judgment,” a form of relief sufficient to confer prevailing party status under the EAJA. Id. at 1073. The USDA timely filed a notice of appeal.

II. Discussion

The USDA argues that the district court incorrectly held that Citizens was a prevailing party in its lawsuit against the USDA and, as a result, erred in awarding Citizens attorneys’ fees under the EAJA. The USDA contends that Citizens cannot be a prevailing party because the latter “did not secure any relief’ from either the district court or this court. Citizens responds by disputing the USDA’s assertion that we did not afford declaratory relief to Citizens; it argues that this court went beyond a mere jurisdictional ruling to reach the merits of Citizens’ NEPA claim. Our favorable ruling on the merits in conjunction with a remand with instructions to the district court indicate, Citizens contends, that it was a prevailing party under the EAJA.

We review for abuse of discretion the district court’s decision to award fees under the EAJA. United States v. 2659 Roundhill Dr., 283 F.3d 1146, 1151 n. 6 (9th Cir.2002). The decision as to whether a party has prevailed is a finding of fact “that will be set aside if clearly erroneous or if based on an incorrect legal standard.” Oregon Environmental Council v. Kunzman, 817 F.2d 484, 496 (9th Cir.1987). We review de novo the legal analysis underlying the district court’s finding that Citizens was a prevailing party. See V.S. ex rel. A.O. v. Los Gatos-Saratoga Joint Union High Sch. Dist., 484 F.3d 1230, 1232 (9th Cir.2007).

The EAJA directs courts to award attorneys’ fees to “a prevailing party” in qualifying civil actions against the United States. 28 U.S.C. § 2412(d)(1)(A).¹ In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, the Supreme Court looked to Black’s Law Dictionary to define “prevailing party” as “[a] party in whose favor a judgment is rendered, regardless of the amount of damages awarded.” 532 U.S. 598, 603, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (alteration in original) (quoting Black’s Law Dictionary 1145 (7th ed.1999)).² Of particular relevance to the present case is the definition of “render,” given the dispute between the USDA and Citizens over whether this court entered a declaratory judgment for Citizens. When referring to an action taken by a judge, “render” is defined by the authority relied upon by the Court in Buckhannon as “to deliver formally.” Black’s Law Dictionary 1322 (8th ed.2004). Taken together, the definitions of “prevailing party” and “render” suggest that a party must have a judgment or something similar formally delivered in its favor to be considered “prevailing.”

While the Buckhannon Court did not have reason to address how formal a judgment must be, it made clear that, in any event, a party must receive “some relief’ from a court to be considered “prevailing.” 532 U.S. at 603, 121 S.Ct. 1835. “Our ‘[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail.’ ” Id. (alteration in original) (quoting Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct. 2672, 96 L.Ed.2d 654 (1987)). An award of attorneys’ fees must be preceded by a “ ‘material alteration of the legal relationship of the parties.’ ” Id. at 604, 121 S.Ct. 1835 (quoting Texas State Teachers Ass’n v. Garland Independent Sch. Dist., 489 U.S. 782, 792-93,109 S.Ct. 1486, 103 L.Ed.2d 866 (1989)). Only such alterations that obtain “the necessary judicial imprimatur on the change” will suffice to confer “prevailing party” status upon the plaintiff. Id. at 605, 121 S.Ct. 1835.

In a previous decision, the Supreme Court held that a plaintiff was not a prevailing party when he “obtained no relief,” only a “favorable judicial statement of law in the course of litigation that result[ed] in judgment against the plaintiff.” Hewitt, 482 U.S. at 760, 763, 107 S.Ct. 2672. In Hewitt v. Helms, the Third Circuit had instructed the district court to enter summary judgment for the plaintiff, a state prisoner, on the grounds that the defendant prison officials had violated the Constitution, “unless the defendants could establish an immunity defense.” Id. at 758, 107 S.Ct. 2672 (emphasis added). In subsequent proceedings, the defendants succeeded in establishing qualified immunity and were granted summary judgment themselves. Id. The Court found that the Third Circuit’s favorable instruction did not constitute “a form of judicial relief,” such as a declaratory judgment, and therefore was insufficient to confer prevailing party status on the plaintiff. Id. at 760, 107 S.Ct. 2672. Consequently, though the plaintiff had obtained a favorable determination on the issue of whether there had been a constitutional violation, he ultimately received no relief from the district court and therefore was not entitled to attorneys’ fees. Id.

The Supreme Court provided two “examples” of forms of relief that justify a fee award: enforceable judgments on the merits and settlement agreements enforced through a consent decree. Buckhannon, 532 U.S. at 604-5, 121 S.Ct. 1835. While we have identified additional situations in which a plaintiff can qualify as a prevailing party, see, e.g., Richard S. v. Dep’t of Developmental Services of Cal., 317 F.3d 1080, 1086 (9th Cir.2003) (legally enforceable settlement agreement between the plaintiff and defendant); Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir.2002) (preliminary injunction as sole form of relief), we never have undermined the Court’s basic requirement that “some relief’ be granted. In Benton v. Oregon Student Assistance Commission, for instance, we reversed a district court’s award of attorneys’ fees, finding that the court’s prior award of nominal damages and its conclusion that the “plaintiff had proven that her constitutional rights had been violated” were not alone sufficient to justify a fee award. 421 F.3d 901, 908 (9th Cir.2005). We held that the plaintiff had not obtained a declaratory judgment, notwithstanding this favorable judicial language. Id.; see also, e.g., Poland v. Chertoff, 494 F.3d 1174, 1187 (9th Cir.2007) (denying prevailing party status to a plaintiff who had not yet obtained “any relief on the merits of his claims,” despite holding that the plaintiff had established one of his claims (emphasis added)).

In the present case, Citizens asserts that it should be considered a prevailing party because it received a ruling from this court that the USDA had violated Citizens’ rights under NEPA. Citizens, however, never received a formal declaratory judgment or other relief from this or any other court. The district court entered no such judgment, and we merely remanded to the district court to consider injunctive relief without discussing declaratory relief. See Citizens, 341 F.3d at 965.

No Supreme Court or Ninth Circuit precedent supports Citizens’ claim. To the contrary, the cases reviewed here uniformly require that a plaintiff receive some form of judicially-sanctioned relief, as a “judicial imprimatur ” is necessary to achieve the “corresponding alteration in the legal relationship of the parties” that the Supreme Court has identified as a prerequisite for prevailing party status. See Buckhannon, 532 U.S. at 605, 121 S.Ct. 1835.

The dissent attempts to read Supreme Court precedent in light of the Buckhannon Court’s approval of Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir.1970). See Buckhannon, 532 U.S. at 607 n. 9, 121 S.Ct. 1885. In Par-ham, the Eighth Circuit granted attorneys’ fees to a plaintiff after holding that the company to which he had applied for employment had engaged in racial discrimination in violation of Title VII. 433 F.2d at 429. While agreeing with the district court that an injunction was neither “necessary or appropriate ... at the present time,” due to the company’s subsequent progress in minority hiring, the Eighth Circuit nevertheless directed the district court to “retain jurisdiction over the matter for a reasonable period of time to insure the continued implementation of the appellee’s policy of equal employment opportunities.” Id. In Buckhannon, the Supreme Court quoted the latter passage and analogized that directive to a consent decree before concluding that “[cjlearly Parham does not support a theory of fee shifting untethered to a material alteration in the legal relationship of the parties.” 532 U.S. at 607 n. 9, 121 S.Ct. 1835. In the present case, our court issued no comparable order to the district court and instead remanded to allow the district court “to determine whether injunctive relief is appropriate.” Citizens, 341 F.3d at 965. Buckhannon’s citation to Parham does not support a fee award here.

For its part, Citizens points to a single decision of our court, Animal Lovers Volunteer Ass’n, Inc. v. Carlucci, 867 F.2d 1224 (9th Cir.1989), that, Citizens argues, “should control the resolution of this appeal.” In Animal Lovers, we awarded attorneys’ fees to the plaintiffs after a previous Ninth Circuit decision had granted the plaintiffs declaratory relief and had remanded to the district court to determine whether an injunction should be granted. Id. at 1225. While Citizens relies heavily on Animal Lovers — and the district court cites it, Citizens, 497 F.Supp.2d at 1072, 1073 — its procedural background differs significantly from the facts here: Our court granted declaratory relief to the plaintiffs in Animal Lovers, but did not do likewise with Citizens. Compare Animal Lovers, 867 F.2d at 1225, with Citizens, 341 F.3d at 965, 978. Thus, even Citizens’ preferred precedent offers no support for its proposition that it was transformed into a prevailing party once we stated that the USDA had violated Citizens’ rights.

Citizens asserts that we went beyond a jurisdictional ruling to reach the merits of its claim when we held that the USDA had violated NEPA by depriving Citizens of its right to comment on environmental documents. But a favorable determination on a legal issue, even if it might have put the handwriting on the wall, is not enough by itself. A “favorable judicial statement of law,” as Citizens obtained here, cannot substitute for “a form of judicial relief,” such as declaratory judgment. Hewitt, 482 U.S. at 760, 763, 107 S.Ct. 2672.

One reason the Supreme Court drew that distinction is that a court is not bound to enter a declaratory judgment when it finds unlawful action. See, e.g., Wilton v. Seven Falls Co., 515 U.S. 277, 282, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) (“[District courts possess discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites.”). In reaching its decision, the Hewitt Court cited a “practical objection to equating statements of law ... with declaratory judgments: The equation deprives the defendant of valid defenses to a declaratory judgment to which he is entitled[,]” such as mootness or equitable grounds. 482 U.S. at 762, 107 S.Ct. 2672. The Court added: “The fact that a court can enter a declaratory judgment does not mean that it should.” Id.

We recognize that our previous ruling in this case may have put Citizens well down the road to victory. It is possible that Citizens’ lawsuit even contributed to the decision by the USDA to withdraw the disputed rule. But the Supreme Court has made clear that being a catalyst for such change is not enough to support a claim for attorneys’ fees under the EAJA. Buckhannon, 532 U.S. at 600, 121 S.Ct. 1835. Relief from the court in some formal fashion is required. This case, however, was dismissed before it reached that stage. Accordingly, because neither the district court nor our court entered relief for Citizens, the district court did not have the power to award Citizens attorneys’ fees.

III. Conclusion

There was not a material alteration in the parties’ legal relationship sufficient to make Citizens a “prevailing party” under the EAJA. Accordingly, we reverse the award of attorneys’ fees.

REVERSED.

1 . The statute reads in relevant part:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees ... incurred by that party in any civil action ..., including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action ....

28 U.S.C. § 2412(d)(1)(A).

2 . The Court has recognized that numerous attorneys' fees statutes award fees to a "prevailing party” and has elected to “interpret[] these fee-shifting provisions consistently.” Buckhannon, 532 U.S. at 602, 603 n. 4, 121 S.Ct. 1835; see also Perez-Arellano v. Smith, 279 F.3d 791, 794 (9th Cir.2002) ("[W]e discern no reason to interpret the EAJA inconsistently with the Supreme Court’s interpretation of ‘prevailing party’ [in other federal statutes] as explained in Buckhannon.”).