Animal Legal Def. Fund v. Special Memories Zoo

• Decision Date: 01 August 2022
• Docket Number: 21-3057
• Citation: 42 F.4th 700
• Parties: ANIMAL LEGAL DEFENSE FUND, Plaintiff-Appellant, v. SPECIAL MEMORIES ZOO, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

42 F.4th 700

ANIMAL LEGAL DEFENSE FUND, Plaintiff-Appellant,

v.SPECIAL MEMORIES ZOO, et al., Defendants-Appellees.

No. 21-3057

United States Court of Appeals, Seventh Circuit.

Argued June 7, 2022

Decided August 1, 2022

Ariel Flint, Attorney, Animal Legal Defense Fund, New York, NY, Daniel Waltz, Attorney, Animal Legal Defense Fund, Washington, DC, Anthony T. Eliseuson, Attorney, Animal Legal Defense Fund, Chicago, IL, Michael T. Kirkpatrick, Adina Hyman Rosenbaum, Attorneys, Public Citizen Litigation Group, Washington, DC, for Plaintiff-Appellant.

Andrew C. Micheletti, Attorney, Sitzmann Law Firm Ltd., Appleton, WI, for Defendants-Appellees.

Jason T. Morgan, Attorney, Stoel Rives LLP, Seattle, WA, for Amicus Curiae Cavalry Group.

Before Hamilton, Kirsch, and Jackson-Akiwumi, Circuit Judges.

Jackson-Akiwumi, Circuit Judge.

The sole issue in this appeal is whether the district court erroneously denied fees and costs to the Animal Legal Defense Fund after it obtained a default judgment on its claim under the Endangered Species Act. ALDF sued Special Memories Zoo and its owners and manager under the Act's citizen-suit provision, see 16 U.S.C. § 1540(g)(1), for mistreatment of endangered and threatened animals at the private zoo in Greenville, Wisconsin. After about nine months defending the action, the defendants intentionally defaulted. The district court entered judgment for ALDF and permanently enjoined the defendants from possessing or exhibiting animals. The court, however, declined to award fees and costs to ALDF. Because the district court's stated reasons were insufficient to deny statutorily recoverable expenses, we remand for an award of reasonable fees and costs.

BACKGROUND

ALDF is a nonprofit organization that advocates for the protection of animals. According to its complaint, at least one member of ALDF visited Special Memories Zoo and reported concerns about the zoo's treatment of animals. The ALDF member (plus other visitors and a former zoo employee) reported, for instance, that endangered and threatened animals such as lemurs, tigers, and lions were kept in squalid and cramped cages, had obvious injuries, lacked clean water, and showed signs of distress. At least one ALDF member also reported concerns about non-endangered or non-threatened animals, asserting that their water was rancid, their food was infested with rodents and bugs, and their enclosures were flimsy and incapable of protecting them from inclement weather or escape.

ALDF sued the zoo, its owners, Dona and Gene Wheeler, and its manager, Gretchen Crowe. (Gene Wheeler died during the proceedings and was dismissed from the suit.) ALDF alleged that the conditions of the endangered and threatened species' confinement harassed and harmed the animals, constituting an unlawful "take" under the Act. See 16 U.S.C. § 1538(a)(1)(B) (prohibited acts); § 1532(19) (defining "take"). ALDF further asserted that the conditions for the non-protected animals created a public nuisance under Wisconsin law. See WISC. STAT. § 823.01.

The defendants filed an answer denying the allegations. Simultaneously, their lawyer submitted a letter informing the court that they were in the process of closing the zoo and rehoming the animals:

Last week, [Gene Wheeler] was diagnosed with leukemia

.... Due to his health complications and this lawsuit, and the recognition that the ALDF will only continue to pursue claims against the Zoo even if my clients prevail in this action, my clients have made the difficult decision to rehome its animals, in particular, the endangered and threatened animals.

A couple of months later, the defendants moved to dismiss the case. The case was moot, they argued, because they had transferred their animals to third parties and were in the process of closing the zoo. The district court denied the motion. The case was not moot, it explained, because the defendants submitted no evidence that the animals had been irrevocably transferred or that their ownership interests had terminated. The court directed the parties to engage in limited discovery on this issue.

Rather than engage in discovery, the defendants asked the court to enter default judgment against them under Federal Rule of Civil Procedure 55(b)(2). They had asked ALDF to dismiss the case voluntarily because the zoo had closed, but ALDF refused unless the defendants revealed where they sent the animals. The defendants shared the locations of the endangered and threatened animals but not the non-protected animals. They then announced that they "no longer intend[ed] to provide any discovery or continue to defend themselves in this litigation" because the cost of litigation was high, the zoo was permanently closed, and the animals had been rehomed. ALDF responded and filed its own motion for default judgment, seeking declaratory and injunctive relief.

The court entered default judgment for ALDF. It found that "the defendants did violate the [Act] and that the operation of the zoo constituted a nuisance." Based on that determination of liability, the court entered a permanent injunction barring the defendants from possessing or exhibiting animals other than their pet dogs. The court declined ALDF's request for declaratory relief as superfluous, and it denied ALDF's request for an injunction prohibiting the defendants from selling the zoo's other property, such as its cages.

ALDF then moved for attorney's fees and costs under 16 U.S.C. § 1540(g)(4), which permits the prevailing party's recovery of these expenses when "appropriate." The court denied the motion, explaining that an award was unwarranted for four reasons: (1) The court had granted ALDF some relief "despite serious questions that remained concerning ALDF's Article III standing and whether the case had become moot" so that it could "dispose of the case without requiring the expenditure of additional time and resources to resolve threshold issues ... that Defendants ultimately had no interest or desire to contest"; (2) ALDF did not contribute substantially to the outcome of the case; rather, the zoo closed because of Mr. Wheeler's illness; (3) The litigation arguably did not advance the goals of the Act, which does not exist to close private zoos; and (4) ALDF is "not dependent upon fee awards." The court did not address costs ($2,459.56) as distinct from the attorney's fees ($69,713).

ANALYSIS

On appeal, ALDF challenges the district court's decision to deny fees and costs under the Endangered Species Act's fee-shifting provision. The provision states, in relevant part, that when a court grants relief in a citizen suit, it "may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate." 16 U.S.C. § 1540(g)(4). To award fees and costs under a "when-appropriate" provision like this one, a district court must make two findings. First, it must find that the fee applicant achieved "some success" in the litigation. Ruckelshaus v. Sierra Club , 463 U.S. 680, 682 n.1, 691–93, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983) (explaining that "when-appropriate" fee arrangements, including the Act's, require that "some success on the merits be obtained before a party becomes eligible for a fee award"). Second, the court must find that an award is "appropriate." § 1540(g)(4).¹

There is no dispute on appeal that ALDF won "some success" in this litigation, making it eligible for fees under the "when-appropriate" fee arrangement. ALDF obtained a judgment on its federal and state claims and a permanent injunction. It thus achieved all the relief possible under the Act, which provides only for equitable relief, and the only kind of remedy it requested, having not sought damages on the nuisance claim. Indeed, ALDF even satisfied the more demanding standard of "prevailing party" fee statutes because the court actually entered judgment in its favor. The parties focus their arguments on whether the court erroneously concluded that fees and costs were not "appropriate."

I. Whether "special circumstances" were required to deny an award of attorney's fees

We have not yet articulated a clear standard for when attorney's fees are "appropriate" under fee-shifting provisions like the one in the Act, and the parties debate what standard should apply. On the one hand, ALDF urges this court to adopt the approach of the Ninth Circuit in St. John's Organic Farm v. Gem Cnty. Mosquito Abatement District , 574 F.3d 1054 (9th Cir. 2009), and hold that a litigant who achieves "some success" under the Act is entitled to fees absent special circumstances, which are rare. See also Kuehl v. Sellner , 887 F.3d 845, 855 (8th Cir. 2018) (holding same); Pound v. Airosol Co. , 498 F.3d 1089, 1103 (10th Cir. 2007) (same, in context of Clean Air Act). The defendants, on the other hand, maintain that there is no presumption of entitlement to fees and that courts have wide discretion to deny them when, as they contend here, the judgment was "pyrrhic" and the litigation did not cause the change in conduct.

For two reasons, we conclude that reasonable fees are presumptively appropriate when a citizen-litigant wins some success under the Act, unless circumstances make the award unjust.

First, adopting this standard aligns with the purpose of "when-appropriate" fee arrangements, which are intended to "expand the class of parties eligible for fee awards" and "to permit awards of fees to all partially prevailing parties." Ruckelshaus , 463 U.S. at 688, 691, 103 S.Ct. 3274. These provisions were designed to broadly allow fees because, with no damages available, they are the sole monetary incentive for citizens to bring claims. See 16 U.S.C. § 1540(g). Further, any injunction is not primarily for the plaintiffs' benefit; the plaintiffs are private attorneys general and are not otherwise "in a position to advance the public interest" in federal court. Newman v. Piggie Park Enter., Inc. , 390 U.S. 400, 402, 88 S.Ct. 964...