Owner-Operator Independent Drivers Association , Inc.; Mark P. Nye ; Kenneth D. McFadden v. Keith Bissell

1
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.; M ARK P.
NYE ; KENNETH D.
M CFADDEN ,
Plaintiffs-Appellees,
v.
KEITH BISSELL,
Defendant-Appellant.
;>

1
No. 98-6037
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.

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

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34 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
dismissed by the district court, or vacated by this circuit’s
decision of August 21, 1997.
E. The declaratory judgment relied upon by the panel
majority in the instant appeal to support its reasoning and
judgment is non-existent.
F. The Plaintiffs’ have failed to prevail on a single cause of
action charged in their complaint.
G. The district court’s sua sponte application of the “catalyst
test” constituted an abuse of discretion and was unwarranted.
H. Plaintiffs have failed to carry their burden to prove that
they were a “prevailing party” against Bissell.
Accordingly, for the reasons stated herein, I would reverse
the district court’s decision to award Plaintiffs’ attorney fees
as prevailing parties against Bissell in the amount of
$584,200.00, and remand the case with instructions to the
district court to vacate its judgment.
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
3
BACKGROUND
OOIDA brought an action against defendants PSC, Bissell,
and two officers of PSC alleging that the defendants violated
the Fourth Amendment by conducting unreasonable searches
of trucks traveling on public state and interstate highways in
Tennessee. OOIDA also brought a claim under 42 U.S.C.
§ 1983 for violations of the Due Process and Equal Protection
Clauses of the Fourteenth Amendment and the Commerce
Clause of Article I, Section 8, Clause 5 of the Constitution.
Thereafter, summary judgment was granted by the district
court in favor of all the defendants on the Fourth Amendment
issue, as well as for the two PSC officers on the remaining
issues. All claims against PSC were dismissed pursuant to
the Eleventh Amendment which grants states immunity from
suits in federal court. After a bench trial, the district court
found that Bissell had violated OOIDA’s constitutional rights
and enjoined Bissell from continuing to violate the plaintiffs’
rights. The district court also awarded OOIDA reasonable
costs and attorneys’ fees under 42 U.S.C. § 1988.
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

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4 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
defendants to take the desired action” and awarded OOIDA
$515,700 for fees and $68,500 for costs.
STANDARD OF REVIEW
This court reviews awards of attorneys’ fees under an abuse
of discretion standard. Loudermill. v. Cleveland Bd. of Educ.,
844 F.2d 304, 308-09(6th Cir. 1988). “A district court abuses
its discretion when it relies on clearly erroneous findings of
fact ... or when it improperly applies the law or uses an
erroneous legal standard.” Christian Schmidt Brewing Co. v.
G. Heileman Brewing Co., Inc., 753 F.2d 1354, 1356 (6th Cir.
1985)(citations omitted). Under this standard, this court must
review the district court’s legal conclusions de novo and its
factual findings for clear error. Perket, 905 F.2d at 132.
DISCUSSION
Under 42 U.S.C. § 1988, district courts have the discretion
to award attorneys’ fees to a “prevailing party” in a civil
rights lawsuit. A “prevailing party” need not actually prevail
on the merits of its claim so long as it “suceed[s] on any
significant issue in litigation which achieves some of the
benefit the parties sought in bringing suit.” Hensley v
Eckerhart, 461 U.S. 424, 433 (1983), quoting Nadeau v.
Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978). Any
enforceable judgment, or comparable type of relief, or
settlement, therefore, will generally make a plaintiff a
“prevailing party” as long as “his claim materially alters the
legal relationship between the parties by modifying the
defendant’s behavior in a way that directly benefits the
plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111 (1992). A
plaintiff is benefitted by “monetary damages, injunctive relief,
or a voluntary change in a defendant’s conduct.” Woolridge
v. Marlene Indus., 898 F.2d 1169, 1173 (6th Cir. 1990).
If the plaintiff’s relief stems from a voluntary change in the
defendant’s conduct, the plaintiff must show that his or her
lawsuit was the “catalyst” behind that change. Payne v.
Board of Educ., Cleveland City Schools, 88 F.3d 392, 397
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
33
original appellate panel that decided this case, to impress and
attach greater weight and veracity to the result-oriented
commentaries that follow it and which are currently beyond
corroboration. Moreover, the concurring opinion seeks
additional weight and veracity by implying the concurrence
and endorsement of the other judges who participated in the
initial discussion by convoluted rhetorical innuendoes, such
as: “[o]n appeal, we vacated the injunction…”; “[w]e did so
not because…”; “because we thought…”; “[w]e did not
question…”; “unless the district court knew something that
we did not…”; etc. (Emphases added).
Because the concurring opinion conveys questionable
implications, it should be disregarded as a contributing factor
in the instant appeal.
To briefly recapitulate, I dissent because:
A. This circuit’s decision of August 21, 1997 was a final
deposition of this case; hence,
1. the principles of res judicata apply to its findings of
fact and conclusions of law; and
2. its findings of fact and conclusions of law constitute
the law of the case.
B. The district court’s failure to respond to this circuit’s
mandate “to describe in reasonable detail” the extent of
Bissell’s unconstitutional behavior leaves the record of
evidence against Bissell unchanged. It was, and is, currently
insufficient to support the district court’s decision which was
vacated.
C. The Plaintiffs failed to prove any constitutional
infractions to support their 42 U.S.C. § 1983 claims against
Bissell.
D. All of the Plaintiffs’ requests seeking declaratory
judgment and injunctive relief were either denied or

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32 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
without accepting its reasoning. He is free to concur in part
and dissent in part with a proposed opinion. He may concur
with a proposed opinion and submit his personal views and
reasons in a separate concurring opinion. He may enter a
dissent to a proposed opinion or he may concur without
reservation in the reasoning and disposition articulated in a
proposed decision. However, thus having exercised his
option, including a voluntary preference to remain silent, to
express his position and participation in a given case, his
election, is irreversible, a fait accompli, as it relates to that
case.
The author of the concurring opinion in this appeal agreed
without comment, condition, or reservation in this circuit’s
reasoning and disposition in Owner-Operator Independent
Drivers Association v. Bissell, No. 94-6178/6179, 1997 WL
525411 (6th Cir. Aug. 21, 1997). By remaining silent he
waived any option subsequently to explain or express the
reason for his vote to concur in the decision. The opinion
issued by the original panel of this circuit is simple, clear,
concise, unambiguous, and understandable. It needs no
interpretation.
It would be highly irregular and inappropriate under any
circumstances for a single member of a three-judge appellate
panel to revisit a decision of that panel and unilaterally seek
to rewrite and revise the text and substance of the decision
ostensibly with the inferred approval of his associate judges
who participated in the disposition of the appellate
controversy.
The concurring opinion in this appellate review has the
same objective. It seeks by revision unilaterally to infuse an
element of intent and purpose into the August 21, 1997
decision of this circuit that cannot be inferred or implied from
the written text of that decision.
The opening paragraph of the concurring opinion of the
instant appeal announces that its author was a member of the
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
5
(6th Cir. 1996). The district courts use a two-part test to
determine whether a plaintiff’s lawsuit is the “catalyst” to a
defendant’s changed behavior:
First, in order to qualify as a “prevailing party,” a
plaintiff must demonstrate that his or her lawsuit was
causally related to securing the relief obtained. This
determination is factual.
Secondly, plaintiff must establish some minimum basis
in law for the relief secured .... “If it has been judicially
determined that defendants’ conduct, however beneficial
it may be to plaintiffs’ interests, is not required by law,
then defendants must be held to have acted gratuitously
and plaintiffs have not prevailed in a legal sense.”
Johnston v. Jago, 691 F.2d 283, 286 (6th Cir. 1982), quoting
Nadeau v. Helgemoe, 581 F.2d 275, 281 (1st Cir. 1978).
See Hewitt v. Helms, 482 U.S. 755, 761 (1987)(“[I]f the
defendant, under pressure of the lawsuit, alters his conduct ...
towards the plaintiff that was the basis for the suit, the
plaintiff will have prevailed.”). Although not conclusive,
chronological evidence is a factor in determining whether a
plaintiff’s lawsuit is the catalyst for the defendant’s changed
conduct. Payne, 88 F.3d at 399.
Bissell submits that the district court erred by applying the
catalyst test because his resignation and the abolition of the
PSC were not voluntary actions in response to the OOIDA’s
lawsuit. According to Bissell, the district court failed to make
any findings of facts when determining whether OOIDA was
a “prevailing party.” When deciding to award OOIDA
attorneys’ fees and costs, the district court stated:
In the present case, the Court initially awarded injunctive
relief to Plaintiff after concluding that Defendant
Bissell’s conduct violated Plaintiff’s constitutional
rights. The Court’s opinion contained specific findings
of discriminatory and unconstitutional policies and
practices of the Defendants, as well as numerous illegal

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6 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
acts by employees of the PSC. In vacating the injunction,
the Sixth Circuit did not disturb any of the Court’s
substantive findings and conclusions regarding these
matters, including Defendant Bissell’s unconstitutional
behavior. Rather, the appellant court merely vacated the
injunction because of its uncertain demands and directed
the Court to clarify the injunction’s language, and to
consider whether Defendant’s conduct warrants such
injunctive relief now that the PSC has been abolished and
Defendant is no longer a commissioner. The sole reason
this Court did not reissue the injunction on remand was
the state’s interim decision to eliminate the PSC entirely,
along with Defendant Bissell’s resignation from his
position as commissioner. These actions were largely in
response to the Court’s determination that widespread
unconstitutional practices were taking place. The Court
finds that, as in Village of Crestwood, Defendants’
remedial actions were causally linked to Plaintiffs’
institution of suit and initial victory in this Court.
(Emphasis added.)
The evidence is undisputed. OOIDA received declaratory
and injunctive relief from the district court on the merits of its
case. Consequently, the district court found that OOIDA was
the “prevailing party” entitled to attorneys’ fees. This court
upheld the district court’s declaratory judgment and only
vacated the award of injunctive relief so that the district court
could clarify its ruling. It is also undisputed that Bissell’s
resignation and the abolition of the PSC occurred after
OOIDA filed its lawsuit. Although the record does lack
specific findings of fact by the district court to support its
conclusion that Bissell’s actions and the abolition of the PSC
were in response to the district court’s early holding that
widespread unconstitutional practices were taking place, the
declaratory judgment issued by the district court is sufficient
reason alone to deem OOIDA a “prevailing party” in this
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
31
Black’s Law Dictionary, Fifth Edition, provides the
following definition,
Vacate. To annul; to set aside; to cancel or rescind. To
render an act void; as to vacate an entry of record, or a
judgment.
BLACK’S LAW DICTIONARY 1388 (5th ed. 1979). The circuit
court decision voided the district court’s memorandum
opinion in its entirety and admonished the trial judge upon
remand to consider the propriety of enjoining Bissell under
any circumstances since he was only one of three elected
commissioners that administered the PSC.
Moreover, the trial judge’s repetitious argument is highly
implausible in the absence of any remaining viable
declaratory judgment that could anchor the district court’s and
the instant panel majority’s reasoning and conclusions.
The circuit court’s decision of August 21, 1997 vacating the
district court’s memorandum opinion of August 10, 1994,
endorsed the conclusion that the declaratory judgment,
repeatedly alluded to by the trial judge, and a reason that
prompted the panel majority to conclude that “the declaratory
judgment issued by the district court is sufficient reason alone
to deem OOIDA a prevailing party in this case,” was a fiction,
a fact which is the coup de grace to the panel majority’s
reasoning.
Lastly, I take issue with the concurring opinion’s
commentaries and the inferences implicit therein. It is
recognized that judges have wide discretion to question and
distinguish, by interpretation, the precedential value of cited
legal authority and its application to a fact specific scenario.
It is also equally recognized that individual members of a
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

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30 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
6See, 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
that “[u]nder the doctrine of law of the case, findings made at one point
in the litigation become the law of the case for subsequent stages of that
same litigation.”) (citation omitted). In the case sub judice, a prior panel
of the Sixth Circuit determined that the district court had not made
sufficient findings to support its injunction against Bissell, and
accordingly vacated the injunction and remanded the action for
reconsideration. Following remand, the district court made no findings
supportive of its prior injunction. Accordingly, the prior circuit court
panel ruling that the district court’s injunction against Bissell was
unsupported by adequate factual findings remains the law of the case,
which the current panel may not disturb.
OOIDA’s constitutional rights. When the district court failed
to comply, this court’s August 21, 1997 disposition became
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
(6th Cir. 1994). The earlier decision cannot be overruled, set
aside, modified, or amended except by en banc disposition or
by a ruling of the Supreme Court.6 The trial judge has
repeatedly argued that, “[i]n vacating the injunction, the Sixth
Circuit did not disturb any of the Court’s [unidentified]
substantive findings and conclusions regarding these
[unidentified] matters, including Defendant Bissell’s
[unidentified] unconstitutional behavior,” a repetitious
argument which has apparently received favorable panel
majority consideration.
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.
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
7
1The dissent finds fault in this statement. Although Rhodes v.
Stewart, 488 U.S. 1, 3 (1988), states that nothing in Hewitt v. Helms, 482
U.S. 755 (1987), “suggested that the entry of [a declaratory] judgment in
a party’s favor automatically renders that party prevailing under § 1988,”
it clarifies that by holding that the judgment must affect the behavior of
the defendant toward the plaintiff. Rhodes, 488 U.S. at 3. That has
occurred here. The declaratory judgment operated as a catalyst to force
Bissell’s resignation and a restructure of the PSC. That was the
conclusion of the district court which had no direct evidence on that issue
but had ample circumstantial evidence upon which it could have drawn
that inference.
case.1 Therefore, the district court did not abuse its discretion
in awarding OOIDA attorneys’ fees and reasonable costs.
The eloquent dissent suggests that this opinion is contrary
to our prior decision in Owner-Operator Independent Drivers
Ass’n v. Bissell, No. 94-6178/6179, 1997 WL 525411 (6th
Cir. August 21, 1997), but it is not intended to contradict our
prior decision and does not in fact contradict it. Our prior
decision did not set aside a declaratory judgment obtained by
OOIDA, and the record shows that OOIDA likely would have
obtained injunctive or other relief against Bissell had Bissell
remained in office and had the PSC existed in its previous
structure.
AFFIRMED.

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8 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
___________________
CONCURRENCE
___________________
DAVID A. NELSON, Circuit Judge, concurring. I concur
in the judgment and in the opinion Judge Siler has written for
the court. As a member of the panel that vacated the district
court’s injunction, however, I should like to add a few words
explaining why I do not believe that the district court
misunderstood what it was being asked to do on remand.
By way of background, it is worth noting that the district
court had already delivered itself of a 43-page memorandum
opinion, entered on August 10, 1994, following an 11-day
bench trial. The opinion contained extensive findings on how
out-of-state truckers were discriminated against in favor of in-
state truckers in the enforcement of Tennessee’s motor carrier
safety regulations.
The district court found, for example, that enforcement
officers in East Tennessee were told by Public Service
Commissioner Bissell to stop checking for safety defects in
trucks that were leaving Tennessee. Bissell, the court
determined, told the officers to limit their safety inspection
efforts to trucks coming from outside the state. The court
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
should have been inspected for safety violations; and that
there were inspection points in Middle and West Tennessee
where trucks going in both directions were inspected.
Discrimination against out-of-state truckers was linked to
extensive fund-raising efforts conducted among Tennessee
trucking companies by and on behalf of individual
commissioners, including Commissioner Bissell. A Public
Service Commission enforcement officer testified, for
example, that he drove Bissell’s administrative assistant –
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
29
5Factually, contrary to the panel majority’s conclusion, the previous
decision of this court disclaimed the existence of a declaratory judgment
that had adjudicated the rights and status as between OOIDA and Bissell
as demonstrated by its decision vacating the trial court’s injunction which
purportedly embraced what now clearly surfaces as a discredited illusion
in light of the previous panel’s inquiry seeking inculpatory
unconstitutional activities committed by Bissell which were detrimental
to OOIDA.
Black’s Law Dictionary describes “declaratory judgment” as a
“remedy for determination of a justiciable controversy where the plaintiff
is in doubt as to his legal rights.” BLACK’ S LAW D ICTIONARY 368 (5th ed.
1979).
Consequently, it is impossible to comprehend the bounds
of the district court’s order and we must vacate the
injunction.
Bissell, 1997 WL 525411, at *2 (emphases added). The
concise language of the opinion repudiates the district court’s
exculpatory statement. Moreover, the court’s record of this
case belies the district court’s representation that “these
actions [the abolition of the PSC and Bissell’s resignation as
one of its three elected commissioners] were largely in
response to the Court’s determination that widespread
unconstitutional practices were taking place.” That statement
also contradicts this court’s previous admonition that “upon
remand the district court should consider whether [Bissell’s]
specific conduct warrants injunctive relief against him, and
indeed the propriety of any such relief since Bissell was just
one of three Commissioners….” Bissell, 1997 WL 525411,
at *2.
The legal effect of this court’s previous order vacating the
trial court’s first judgment against Bissell in Owner-Operator
Independent Drivers Ass’n v. Bissell, No. 94-6178/6179,
1997 WL 525411 (6th Cir. Aug. 21, 1997) was a mandate to
the district court soliciting a declaratory judgment5 defining
the “extent of Bissell’s objectionable activities,” Bissell,
1997 WL 525411, at *2, if any existed, that infringed

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28 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
Bissell was just one of three commissioners, is no longer
a commissioner, and the Commission itself was
abolished to be replaced by an agency whose directors
are no longer elected.
Bissell, 1997 WL 525411, at *2 (emphasis added).
The thrust of this court’s first unedited disposition was an
order directing the district court to identify “the extent of
Bissell’s objectionable activities,” Id., so that it could
evaluate the validity of any future district court ordered
injunction or other sanction issued against Bissell.
Unfortunately, the district court elected to ignore this
court’s initial directive to declare the “extent of Bissell’s
objectionable activities,” Id., that it had relied upon to support
its vacated injunction. Instead, it determined “that in light of
the abolishment of the PSC, and the fact that Defendant
Bissell no longer held office, there is no compelling reason
for the issuance of an injunction against Defendant Bissell at
this point.”
The panel majority’s reliance upon the district court’s self-
serving and totally inaccurate interpretation of this court’s
first decree is troubling. When juxtaposed, it is facially
apparent that the district court’s observation that, “[i]n
vacating the injunction, the Sixth Circuit did not disturb any
of the court’s substantive findings and conclusions regarding
these matters, including Defendant Bissell’s unconstitutional
behavior,” (emphasis added), is a misstatement of this court’s
previous opinion, for the obvious reason that such inculpating
findings implicating Bissell were non-existent in the court’s
record of proceedings. The very reason that the injunction
against Bissell was vacated was:
because the district court’s findings of fact and
conclusions of law [the declaratory judgment aspect of its
decision] consistently attribute conduct to ‘defendants,’
rather than Bissell individually, making it impossible to
discern the extent of Bissell’s objectionable activities. …
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
9
Jackie Pope, whom Bissell described as his “alter ego” – from
one Tennessee trucking company to another to solicit
campaign funds for Bissell. Another enforcement officer
testified that his superior told him to “go over to Jefferson
County and lean on a certain trucking company because they
had not contributed to Commissioner Bissell’s campaign.”
And, as the district court further found,
“Fund-raising tickets were sold by enforcement officers
while in uniform and on duty. Jackie Pope reminded
officers that the commissioner’s election was coming and
they needed to help ‘keep our man in office.’ He sent a
list of past contributors to officers in the field to assist in
their fund-raising efforts. On occasion, the request to sell
fund-raising tickets came directly from Commissioner
Bissell, Jackie Pope, or other PSC staff members. Other
such requests came from supervisors in the field. One
sergeant told an enforcement officer that ‘it was better to
sell tickets than work midnight at the scales.’ One
officer was asked to go to the office of an owner of a
regulated company to replace a corporate check written
to Commissioner Bissell’s campaign, which is illegal,
with cash or a personal check.”
Commissioner Bissell’s fund-raising efforts were hardly
isolated, and I do not believe that we intended to suggest
otherwise when this case was last before us.
The generosity of the Tennessee trucking companies did not
go unrewarded, the district court found: “The proof at trial
presented a significant connection between the perceived, and
sometimes actual, political clout of some in-state motor
carriers and the decisions of enforcement officers in
administering the truck safety regulations.” A graphic
illustration of the connection may be found in the following
passage from the district court’s opinion:
“One officer testified that after writing a citation on a
Tennessee truck company, he received a call from his

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10 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
supervising sergeant who told him that the trucking
company had just contributed to the commissioner’s
campaign and the owners had asked Jackie Pope,
Commissioner Bissell’s administrative assistant, if they
could get some help on the ticket. Pope conveyed the
request for help directly to the issuing officer’s
supervisor and the sergeant went to court and had the
citation dismissed.” (Footnote omitted.)
After noting that it was the plaintiffs’ burden to establish
that “each” defendant had deliberately deprived the plaintiffs
of a constitutional or statutory right, the district court found
that
“the Defendants engaged in a continuous pattern and
practice of intentional discrimination against out-of-state
trucking companies and in favor of in-state trucking
companies, and those trucking companies which had
supported or contributed to the political campaigns of
PSC Commissioners.”
This intentional discrimination, the court concluded,
constituted a violation of the plaintiff’s rights under the Equal
Protection and Commerce Clauses of the United States
Constitution. The district court issued an express declaration
to that effect in the concluding portion of its opinion, and
went on to enjoin defendant Bissell “from continuing to
violate the plaintiff’s rights.”
On appeal, we vacated the injunction. We did so not
because we thought the district court had erred in any of its
factual findings, but because we thought it unclear to what
extent the district court intended to find involvement by
Bissell in various categories of discriminatory conduct
attributed to “the defendants” generally, just as we thought it
unclear how broad the injunction against Bissell was intended
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
27
Accordingly, without constitutional foundations, both 42
U.S.C. § 1983 charges against Bissell entertained and decided
by the district court must fail, and the district court’s decision
must be reversed.
Subsequent to a trial of both issues, the district court
released its ambiguous opinion of August 10, 1994 which
enjoined Bissell “from continuing to violate the Plaintiffs’
rights.” The declaratory judgment and related injunction
against Bissell were, by a previous panel of this court, vacated
and “remanded to allow the district court to conduct further
proceedings consistent with this opinion.” Owner-Operator
Independent Drivers Ass’n v. Bissell, No. 94-6178/6179,
1997 WL 525411, at *3 (6th Cir. Aug. 21, 1997). The earlier
panel of this court had decided that:
The district court's one sentence injunction in this case,
enjoining Bissell ‘from continuing to violate the
Plaintiff's rights,’ falls considerably short of satisfying
the requirements of Rule 65(d). The court failed to use
specific terms or to describe in reasonable detail the acts
sought to be restrained. Precision is especially
important in this case because the district court's
findings of fact and conclusions of law consistently
attribute conduct to ‘defendants,’ rather than to Bissell
individually, making it impossible to discern the extent of
Bissell's objectionable activities.
Bissell, 1997 WL 525411, at *2 (emphasis added). It went on
to observe that the only findings of fact which may have
implicated Bissell were his suggestions that officers sell fund-
raising tickets and concentrate their enforcement inspections
on inbound traffic.
After vacating the injunction against Bissell, the previous
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

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26 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
called upon them and solicited their support for his boss, a PSC
commissioner, is misconceived.
unlawful activity or other identifiable impropriety attributable
to Bissell or his staff was disclosed by the reviewable record
of these proceedings. This is confirmed by the unedited
version of this court’s decision of August 21, 1997, which
vacated the district court decision and remanded the case with
instructions to identify Bissell’s unconstitutional behavior, if
any existed. The district court ignored the instructions
without elaborating on its original factually unsupported
conclusory statements.
The district court’s decision declaring the Commission’s
alleged practice of selectively enforcing safety regulations in
favor of in-state trucking companies by concentrating border
enforcement on incoming traffic to be unconstitutional was
equally erroneous.
The district court’s opinion noted that “Tennessee’s truck
safety inspection program is designed to be part of a uniform
national plan whereby all states check for safety violations in
their respective states.” (Emphasis added). Logic and
common sense dictate that out-of-state truckers enter
Tennessee and after completing their business leave its
borders by crossing into the enforcement jurisdiction of an
adjacent sister state that implements its own inspection
program. Logic and common sense also dictate that
concentrated enforcement inspection of incoming truck traffic
more effectively serves Tennessee’s enforcement purpose of
protecting its citizens from safety hazards inherent to
vehicular mechanical failures while operated within its
borders. Implementation of the policy is also less costly for
Tennessee and out-of-state truckers by relieving both from a
second, time-consuming, unnecessarily replicating inspection.
The policy, on its face, is without constitutionally
discriminatory implications.
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
11
1The 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
earlier panel did and did not do, however, and those views, as reflected in
this concurring opinion, remain unchanged.
to be and what specific acts he was to be enjoined from
performing.1
We did not question the proposition that the orders given by
Bissell to stop checking out-bound trucks for safety defects
and to limit safety inspections to in-bound vehicles could
support the claims – found meritorious by the district court –
of Equal Protection and Commerce Clause violations. With
respect to the injunction, however, we directed the district
court to consider, on remand, “whether that specific conduct
warrants injunctive relief against [Bissell], and indeed the
propriety of any such relief since Bissell was just one of three
commissioners, is no longer a commissioner, and the
Commission itself was abolished to be replaced by an agency
whose directors are no longer elected.”
Unlike our dissenting colleague, I do not read this language
as an unconditional mandate to determine what
unconstitutional activities Bissell had engaged in beyond
directing that safety inspections be limited to in-bound traffic.
Such a determination would have been necessary, to be sure,
if the district court had decided to issue an injunction going
beyond the in-bound out-bound matter – but unless the district
court knew something that we did not, it seemed obvious to
us that the need for any injunction at all had become moot.
The district court agreed; soon after the remand, the court
entered a brief order saying that no further injunction would
issue. This order was in no way inconsistent with our
mandate.
The plaintiffs then filed a supplemental application for
attorney fees under 42 U.S.C. § 1988. The district court

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12 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
granted the application as to defendant Bissell, finding that as
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
Cir. 1990), “in prompting [defendant Bissell] to take the
desired action.”
What was the “desired action?” For one thing, as the
amended complaint makes clear, it was that the defendants
stop “undertaking, enforcing, maintaining or adopting any
policies, procedures or acts which result in any discrimination
against out-of-state trucks or their operators or owners.”
The fact that Bissell personally had been guilty of such
discrimination is evident from the district court’s findings.
The fact that Bissell ultimately stopped discriminating is
evident from his resignation. The plaintiffs may not have
expected to achieve their desired goal – an end to the
unconstitutional discrimination – through the resignation of
Commissioner Bissell and the abolition of the Commission
itself, but the goal seems to have been achieved.
I am not prepared to say that the district court – more
familiar with this situation than I – was out of bounds in
concluding that the lawsuit, with its rather dramatic judicial
findings, had a catalytic effect in ending the discrimination
complained of. I therefore concur in the affirmance of the
challenged order.
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
25
4The solicitation of political contributions through the sale of fund-
raising tickets to fund-raising political events sponsored by candidates
seeking election or reelection to public office, and/or their appointed
bureaucratic employees, by private individuals, special interest groups,
corporations and other business enterprises, all or most of whom seek the
prestige of individual recognition through access to authority and/or
future favorable recognition and consideration by the candidate if elected,
is an American way of political life. The reality of this political practice
is measured in the daily testimony of printed, audio, and visual media
coverage of evolving current political events. The practice is neither
sinister nor unconstitutional. The statement of Jackie Pope, an
administrative assistant to Bissell, reminding and urging appointed
bureaucratic employees to “keep our man in office” is the battle cry
echoed by similarly situated appointed bureaucrats throughout the country
interested in employment longevity. In the instant case the record fails to
disclose any discrimination in the sale of fund-raising tickets. They were
available to both in-state and out-of-state truckers on an equal basis.
Before concluding these observations it should be noted that the
district court reference to the Commission’s policy restricting political
activity within the agency and its explanatory footnote is of questionable
significance to the facts of this case. It does, however, reflect the
confusion of the trial judge. In its opinion the trial court stated, “On
January 1, 1988, the PSC adopted a new written policy prohibiting
enforcement officers from soliciting campaign contributions from any of
the trucking companies which were regulated by the PSC. The policy was
adopted in order to eliminate prior widespread political and fund-raising
activities by PSC employees among regulated companies.” (Emphases
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
be unconstitutional absent related unlawful activity.4 No

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24 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
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
inspections. The district court dismissed that requested
declaration and concluded that the PSC policy was valid. The
complaint also requested a permanent injunction enjoining
Defendants and their officers, employees, or agents from
undertaking, enforcing, maintaining, or adopting any policies,
procedures, or acts which would result in any discrimination
against out-of-state trucks, their owners, or operators -- a
meaningless vague request of no legal significance.
Ultimately, the district court dismissed all claims for
declaratory and related injunctive relief against the
Defendants, except Plaintiffs’ charges concerning the
Commission’s alleged practice which permitted its officers
and employees to solicit regulated trucking companies for
political campaign contributions by selling tickets to Bissell-
sponsored fund-raising affairs designed to promote his
reelection campaign in return for alleged purported related
favorable considerations. The district court also retained
§ 1983 jurisdiction to decide if the Commission’s policy of
concentrating its border inspections to incoming truck traffic
discriminated against out-of-state truckers in favor of in-state
truckers, thus violating § 1983 by infringing their Due Process
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
invoking § 1983 jurisdiction, comprehensive research has
disclosed no Supreme Court, Sixth Circuit, or other circuit
precedent that has declared the solicitation of political
contributions via the sale of tickets to fund-raising events to
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
13
1The district court denied the Plaintiffs’ motion to join the remaining
two elected Public Service Commissioners, Steve Hewlett and Frank
Cochran, as parties defendant to this action, persons who exercised
essentially the same responsibility and authority in the administration of
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.
_______________
DISSENT
_______________
KRUPANSKY, Circuit Judge, dissenting. I respectfully
dissent from the majority’s decision to affirm the trial court’s
award of attorney fees in the amount of $515,700, plus
$68,500 in costs, to the Plaintiffs as “prevailing parties”
pursuant to 42 U.S.C. § 1988 against Keith Bissell as the
single remaining defendant in this case that originated as a
multiple-defendant action.1 The district court’s decision has
conveniently framed the issue here on appeal in the following
statement:
[A]lthough Plaintiffs did not ultimately receive
judicially-awarded relief, they have demonstrated that
the present lawsuit “acted as a catalyst” in prompting
Defendants to take the desired action.
In sum, the Court finds that Plaintiffs are not the
“prevailing party” as against Defendant PSC, but are the
“prevailing party” as against Defendant Bissell. Thus,
Plaintiffs are entitled to recover from Defendant Bissell
an award of attorney’s fees and costs under Section 1988.

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14 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
2An insight into the intra-organizational structure of the PSC will
offer some understanding of the difficulty in assigning individual
responsibility within the table of organization of that vast
compartmentalized state authority.
The Tennessee Public Service Commission was composed of nine
Unfortunately, neither the district court, nor the panel
majority, nor the Joint Appendix, has defined the “desired
action” that resulted from the “catalytic effect” of Plaintiffs’
lawsuit which changed the legal relationship between
Plaintiffs and any of the Defendants, including Bissell, that
would warrant an award of attorney fees to Plaintiffs as
prevailing parties pursuant to 42 U.S.C. § 1988. Farrar v.
Hobby, 506 U.S. 102 (1992).
Accordingly, for purposes of this dissent, it is assumed that
the “desired catalytic action” alluded to by the trial court, and
promoted by Plaintiff OOIDA, was the fortuitous abolition of
the elected three-member Tennessee Public Service
Commission (“PSC”) by the Tennessee General Assembly
and the reassignment of its authority and responsibility to an
appointed Board of Directors and other existing state
agencies; and the resignation of Keith Bissell, one of the three
elected commissioners. Both actions were voluntarily
undertaken and not required by law or judicial decree.
In light of this court’s earlier decision reversing and
remanding this case to the trial court with instructions to
reconsider its disposition (Owner-Operator Independent
Drivers Ass’n v. Bissell, No. 94-6178/6179, 1997 WL
525411 (6th Cir. Aug. 21, 1997)), the district court’s sua
sponte application of the “catalyst test” to support its decision
that OOIDA’s lawsuit caused the Tennessee state legislature
to eliminate its elected PSC and reassign its duties and
responsibilities to an appointed Board of Directors and, in
some instances, other existing agencies, and caused Bissell to
resign as one of its three elected commissioners, taxes
reasonable logic and comprehension.2
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
23
A declaratory judgment, in this respect, is no different
from any other judgment. It will constitute relief, for
purposes of § 1988, if, and only if, it affects the behavior
of the defendant toward the plaintiff.
Rhodes, 488 U.S. at, 3-4.
The much heralded but unidentified, elusive declaratory
judgment which is the common thread that is central to the
district court’s decision and the panel majority’s reasoning
and ultimate decision has prompted an examination into its
origin and viability. The Plaintiffs’ Complaint and Prayer for
Relief affords a reasonable point to commence such an
inquiry.
At the outset it is worthy to note that this is an action
invoking 42 U.S.C. § 1983 seeking declaratory judgment and
injunctive relief that would permanently enjoin the defendants
from impinging the Plaintiffs’ constitutional rights
guaranteed by the Fourteenth Amendment to the United States
Constitution. Accordingly, a constitutional violation is a
condition precedent for invoking § 1983 jurisdiction. See 42
U.S.C. § 1983.
The Plaintiffs’ complaint requested the court to enter seven
declarations of unconstitutional behavior attributable to
“Defendants,” of which two charged Bissell individually with
unconstitutional behavior. Five of the seven declarations
sought to condemn searches of truck cab interiors, cab
sleeping compartments, and truck interiors without probable
cause or a search warrant as violations of Plaintiffs’ Fourth
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.
Another requested declaration and interrelated injunction
sought to enjoin the PSC from maintaining a quota system of
enforcement which was abandoned by Plaintiffs without
consideration by the district court. Another requested
declaration sought to condemn the PSC and Bissell from

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22 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
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
unpublished opinion, the majority characterized the
relief plaintiffs had received as declaratory relief. The
panel majority noted our recent holding in Hewitt v.
Helms, supra, that a plaintiff must receive some relief on
the merits of his claim before he can be said to have
prevailed within the meaning of § 1988. It observed,
however, that the plaintiff in Hewitt, unlike Stewart, had
not won a declaratory judgment, and concluded that the
declaratory judgment issued in this case justified the
granting of attorney's fees.
Rhodes v. Stewart, 488 U.S. 1, 3 (1988). The Supreme Court
went on to declare:
The Court of Appeals misapprehended our holding in
Hewitt. Although the plaintiff in Hewitt had not won a
declaratory judgment, nothing in our opinion suggested
that the entry of such a judgment in a party's favor
automatically renders that party prevailing under § 1988.
Indeed, we confirmed the contrary proposition:
"In all civil litigation, the judicial decree is not the
end but the means. At the end of the rainbow lies
not a judgment, but some action (or cessation of
action) by the defendant that the judgment
produces--the payment of damages, or some specific
performance, or the termination of some conduct.
Redress is sought through the court, but from the
defendant. This is no less true of a declaratory
judgment suit than of any other action. The real
value of the judicial pronouncement--what makes it
a proper judicial resolution of a 'case or controversy'
rather than an advisory opinion--is in the settling of
some dispute which affects the behavior of the
defendant towards the plaintiff." 482 U.S., at 761,
107 S. Ct., at 2676 (emphasis in original).
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
15
divisions. It regulated electric companies, water companies, telephone
companies, gas companies, long distance telephone companies, sewer
companies, telecommunication companies, and transportation companies.
An Executive Director of the Commission implemented all necessary
action required to accomplish the duties, responsibilities, and assignments
of each division in an effective and efficient manner. Each division of the
PSC had its own individual director with similar responsibilities within
his division.
The Motor Carrier Safety Section regulated OOIDA’s members. It
was but a sub-section of the Transportation Division that commanded a
low profile within the Commission’s primary functions.
Although elected statewide, each public service commissioner had
been required to maintain a legal residence in one of the state’s three
grand divisions and was considered to represent that grand division on the
PSC. The enforcement structure of the Motor Carrier Safety Section was
virtually autonomous. A captain was in charge of each grand division
wherein a commissioner maintained a residence. An additional fourth
captain was in charge of seven counties designated as the Upper East
Tennessee Section. Below each captain were lieutenants, sergeants, and
enforcement officers who were assigned to various counties within each
of the four state divisions. The court record is silent and does not identify
the geographical grand division which Bissell or the other two
commissioners maintained residences. The court record fails to identify
the geographical grand division where the alleged constitutional
infringements occurred or who was responsible for the implementation of
any unconstitutional acts.
The autonomy exercised by the Motor Carrier Safety Section is
demonstrated by the example described by the district court wherein it
alludes to one of two identified individuals in the melee of faceless and
nameless bureaucrats referred to as “the defendants.” “Capt. LeFevers
conducted his own roving court by using his unbridled discretion
dismissing citations and carrying out his own wishes and the wishes of his
[unidentified] superiors.” The district court’s opinion attached no identity
to the testimony it relied upon to support its conclusion that
unconstitutional practices were being implemented.
The four captains of the autonomously operating geographical
divisions usually met monthly in Nashville with certain [unidentified]
staff to discuss PSC matters and review enforcement procedures and
assignments later conveyed to their respective staff members. The
subordinate enforcement officers were expected to follow their captain’s

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16 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
orders. Beyond speculation, no nexus has been developed between this
compartmentalized operation, the captains, Bissell, or the other
commissioners.
The record developed during the course of this legal action
discloses no reason for the legislative action that eliminated
the PSC or caused Keith Bissell to resign his position as one
of its three elected commissioners but rather confirms that
both acts were voluntary and not mandated by law or judicial
decision.
Although tried in Nashville, where the 132-member
Tennessee General Assembly convened annually to transact
its official agenda, not one of its 33 state senators or 99 state
representatives appeared at trial or attested support for
Plaintiffs’ claim that their lawsuit caused or influenced the
legislation that eliminated the PSC. Nor have the Plaintiffs
referenced the General Assembly Record to reflect support, or
even knowledge by the state legislature of Plaintiffs’ lawsuit
as an influencing factor for abolishing the PSC. Similarly, the
court record available for this appellate review is bare of any
reason for Bissell’s resignation from the PSC. Having
concluded that Plaintiffs received no judicially-awarded relief
to support an award of “prevailing party” attorney fees to
Plaintiffs against Bissell, the district court, nevertheless,
accomplished that result by sua sponte, without notice to
Bissell, applying the “catalyst test.”
This circuit, having endorsed the “catalyst test” in cases
where a voluntary change in a defendant’s conduct has
benefited the plaintiff, has also imposed the following two-
part test to determine the propriety of applying the test:
First, in order to qualify as a “prevailing party,” a
plaintiff must demonstrate that his or her lawsuit was
causally related to securing the relief obtained. This
determination is factual.
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
21
The cascading errors inherent to this controversy originated
on August 10, 1994, when the district court issued its curt
one-sentence judgment and order that stated “the Court
hereby enjoins Defendant Keith Bissell from continuing to
violate the Plaintiffs’ rights.” The district court in that order
also stated, “The Memorandum and Opinion
contemporaneously filed herewith constitutes this Court’s
findings of fact and conclusions of law….”
The district court’s memorandum of August 10, 1994,
which anchors this appellate panel majority’s disposition is,
unfortunately, nothing more than a showcase of factually
unsupported ambiguities addressing the activities, with the
exception of a Capt. LeFevers and Jackie Pope, of a sprawling
compartmentalized political bureaucracy of great magnitude
administered by countless nameless and faceless political
appointees. The amorphous character of the district court’s
disposition was recognized in the unedited version of a
decision issued by an earlier panel of this court on August 21,
1997, which reversed and vacated the district court’s decision
as it related to Bissell and remanded the case to the district
court with instructions for further consideration.
Although I concur with the panel majority’s statement that
“the record does lack specific findings of fact by the district
court to support its conclusion that Bissell’s actions [resigning
as commissioner of PSC] and the abolition of the PSC were
in response to the district court’s early holding that
widespread unconstitutional practices were taking place,” I
take issue with its factual and legal conclusions that “the
[unidentified] declaratory judgment issued by the district
court [as related to Bissell] is sufficient reason alone to deem
OOIDA a ‘prevailing party’ in this case.” The statement
contradicts the direction of the Supreme Court in Rhodes v.
Stewart, 488 U.S. 1 (1988) and Farrar v. Hobby, 506 U.S.
100 (1992). In Rhodes,
[a] divided Court of Appeals [had] upheld [an] award of
fees, concluding that the mootness of the claim when the

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20 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
received a preliminary injunction from a district court after which, by a
consent decree approved by the court, the plaintiffs dismissed their
lawsuit seeking a permanent injunction after the defendant agreed to
desist from pursuing the action the plaintiffs sought to enjoin. The
Village of Crestwood case is fully in accord with the pronouncements of
Rhodes v. Stewart, 488 U.S. 1 (1988), and Farrar v. Hobby, 506 U.S. 100
(1992).
dated August 21, 1997 to identify Bissell’s unconstitutional
behavior by observing that “[a]lthough the record does lack
specific findings of fact by the district court to support its
conclusion that Bissell’s resignation and the abolition of the
PSC were in response to the district court’s early holding that
unconstitutional practices were taking place,” (all of which
“holdings” had been vacated by an earlier panel of this circuit
in Owner-Operator Independent Drivers Association v.
Bissell, No. 94-6178/6179, 1997 WL 525411 (6th Cir. Aug.
21, 1997)), and appeared to have endorsed a finding that the
application of the “catalyst test” to the instant case was not
warranted to dispose of the Plaintiffs’ petition for an award of
attorney fees.
Thereafter, the panel majority contradicted the above
finding in its first footnote by reasoning that “[t]he
[unidentified] declaratory judgment operated as a catalyst to
force Bissell’s resignation and a restructure of the PSC. That
was the conclusion of the district court which had no direct
evidence on this issue but had ample [unidentified]
circumstantial evidence [which evidence was not presented to
this chambers for review, and not disclosed in the joint
appendix, trial court decisions, or other court records] upon
which it could have drawn that inference.” (Emphasis added).
The panel majority’s concurring decision is also less than
helpful in identifying the district court’s “rather dramatic
judicial findings [that] had a catalytic effect in ending the
discrimination complained of.” (Emphasis added).
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
17
Secondly, plaintiff must establish some minimum basis
in law for the relief secured. … “If it has been judicially
determined that defendants’ conduct, however beneficial
it may be to plaintiffs’ interests, is not required by law,
then defendants must be held to have acted gratuitously
and plaintiffs have not prevailed in a legal sense.”
Johnston v. Jago, 691 F.2d 283, 286 (6th Cir. 1982)
(emphasis added) (quoting Nadeau v. Helgemoe, 581 F.2d
275, 281 (1st Cir. 1978)). See Hewitt v. Helms, 482 U.S. 755,
761 (1987) (“[I]f the defendant, under pressure of the lawsuit,
alters his conduct … towards the plaintiff that was the basis
for the suit, the plaintiff will have prevailed.”).
In the instant case, the Plaintiffs have failed on both
accounts. Without some material evidence that its lawsuit
was the “catalyst” that induced the Tennessee General
Assembly to dissolve the elected PSC and reassign its
responsibilities to an appointed Board of Directors and other
existing agencies, and caused Bissell to resign, the Plaintiffs
should not be permitted to assume “prevailing party” status
and an award of attorney fees by exploiting and capitalizing
on a series of events over which they exercised no control,
which fortuitously occurred while their lawsuit pended before
a court.
The absence of evidence to support the district court’s
conclusion, apart from its own speculation that Plaintiffs’
lawsuit was the “catalyst” that caused the Tennessee General
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
propriety or impropriety of applying the test. It afforded
Bissell no opportunity to brief and/or argue the negative legal
consequences of interposing the test into the case, which
ultimately became the legal premise relied upon by the district
court finally to dispose of Plaintiffs’ petition seeking an

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18 Owner-Operator Independent
Drivers v. Bissell
No. 98-6037
award of attorney fees from Bissell to the exclusion of all
other real parties defendant to this lawsuit, including Steve
Hewlett and Frank Cochran, the other two PSC elected
commissioners without whom Bissell could not have acted.
Recognizing that the panel majority will argue that the
mandates of this circuit as expressed in Employers Insurance
of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98 (6th Cir.
1995), apply only to summary judgment considerations, the
reasoning and precedent of that decision is, nevertheless,
equally applicable to comparable controversies, as in the
instant case, wherein a district court issued a sua sponte final
disposition adversely affecting a real party in interest to the
litigation:
[T]he Supreme Court has held that “district courts are
widely acknowledged to possess the power to enter
summary judgments sua sponte, so long as the losing
party was on notice that she had to come forward with
all of her evidence.” Celotex Corp. v. Catrett, 477 U.S.
317, 326 (1986) (emphasis added). Therefore, there is no
per se prohibition on entering summary judgment, sua
sponte.
Nevertheless, as Fed. R. Civ. P. 12 and Catrett
demonstrate, a district court does not have sweeping
authority to enter summary judgment [or any other final
disposition] at any time, without notice, against any
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
discretion by entering judgment on its own motion.
Employers Ins. of Wausau v. Petroleum Specialties, Inc. 69
F.3d 98, 105 (6th Cir. 1995) (some emphases added) (some
citations omitted). The Court observed:
The latter principle reflects a common sense
application of the law. Courts of Appeal are courts of
review. It would normally be impossible to determine
No. 98-6037 Owner-Operator Independent
Drivers v. Bissell
19
3The district court’s precedent justifying its actions is a district court
decision from the Seventh Circuit, Doe v. Village of Crestwood, 764 F.
Supp. 1258 (N.D. Ill. 1991), which presents an unresolved conflict with
its circuit court’s disposition of Libby by Libby v. Illinois High School
Association, 921 F.2d 96 (7th Cir. 1990). Moreover, Village of
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
undertaken without legal or judicial mandate which fortuitously
happened to occur while its lawsuit pended before a court, the plaintiffs
in Village of Crestwood sought prevailing party attorney fees after having
whether there is a disputed issue of material fact when a
party has not had the chance to develop the record below.
This would force an appeals court to serve as a sounding
board for facts not properly in the record, simply because
a party never had a chance to develop them. Similarly, as
in this case, the court might be left to review the entire
record for any disputed questions of fact or to weigh and
examine facts never properly advanced below with
regard to Wausau because PSI never thought Wausau
was moving for anything, let alone complete relief.
Generally, before summary judgment [or any other
final disposition] can be granted against a party, Fed. R.
Civ. P. 56(c) mandates that the party opposing summary
judgment be afforded notice and reasonable opportunity
to respond to all the issues to be considered by the court.
Routman [v. Automatic Data Processing, Inc., 873 F.2d
970, 971 (6th Cir.1989)]. See also Portland Retail
Druggists Ass’n v. Kaiser Foundation Health Plan, 662
F.2d 641, 645 (9th Cir. 1981).
Employers Ins. of Wausau, 69 F.3d at 105.
Initially, the panel majority appeared to have rejected the
district court’s sua sponte final disposition charging Bissell
with the payment of approximately $600,000 in prevailing
party attorney fees to the Plaintiffs by applying the “catalyst
test”3 and its failure to respond to this court’s earlier mandate

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