Animal Legal Defense Fund v. Special Memories Zoo

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-3057
A NIMAL LEGAL DEFENSE F UND,
Plaintiff-Appellant,
v.
S PECIAL M EMORIES Z OO, ET AL.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 20-C-216 — William C. Griesbach, Judge.
____________________
A RGUED J UNE 7, 2022 — DECIDED A UGUST 1, 2022
____________________
Before HAMILTON , K IRSCH , and JACKSON -A KIWUMI , Circuit
Judges.
JACKSON -A KIWUMI , Circuit Judge. The sole issue in this ap-
peal is whether the district court erroneously denied fees and
costs to the Animal Legal Defense Fund after it obtained a de-
fault 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

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2 No. 21-3057
animals at the private zoo in Greenville, Wisconsin. After
about nine months defending the action, the defendants in-
tentionally defaulted. The district court entered judgment for
ALDF and permanently enjoined the defendants from pos-
sessing 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 recovera-
ble 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) re-
ported, 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 re-
ported concerns about non-endangered or non-threatened an-
imals, 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 dur-
ing 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, con-
stituting an unlawful “take” under the Act. See 16 U.S.C.

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No. 21-3057 3
§ 1538(a)(1)(B) (prohibited acts); § 1532(19) (defining “take”).
ALDF further asserted that the conditions for the non-pro-
tected animals created a public nuisance under Wisconsin
law. See W ISC. S TAT. § 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 re-
homing 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 deci-
sion to rehome its animals, in particular, the en-
dangered and threatened animals.
A couple of months later, the defendants moved to dis-
miss 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 mo-
tion. The case was not moot, it explained, because the defend-
ants submitted no evidence that the animals had been irrevo-
cably transferred or that their ownership interests had termi-
nated. The court directed the parties to engage in limited dis-
covery 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 dis-
miss the case voluntarily because the zoo had closed, but
ALDF refused unless the defendants revealed where they sent

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4 No. 21-3057
the animals. The defendants shared the locations of the en-
dangered and threatened animals but not the non-protected
animals. They then announced that they “no longer in-
tend[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 opera-
tion of the zoo constituted a nuisance.” Based on that deter-
mination 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 re-
quest for an injunction prohibiting the defendants from sell-
ing 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 de-
nied 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 ex-
penditure of additional time and resources to resolve thresh-
old issues … that Defendants ultimately had no interest or de-
sire 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 ad-
vance the goals of the Act, which does not exist to close

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No. 21-3057 5
private zoos; and (4) ALDF is “not dependent upon fee
awards.” The court did not address costs ($2,459.56) as dis-
tinct from the attorney’s fees ($69,713).
A NALYSIS
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 lit-
igation. Ruckelshaus v. Sierra Club, 463 U.S. 680, 682 n.1, 691–
93 (1983) (explaining that “when-appropriate” fee arrange-
ments, 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 “appro-
priate.” § 1540(g)(4).1
There is no dispute on appeal that ALDF won “some suc-
cess” in this litigation, making it eligible for fees under the
“when-appropriate” fee arrangement. ALDF obtained a judg-
ment on its federal and state claims and a permanent
1 “When-appropriate” fee arrangements authorize a fee award in
some circumstances where a “prevailing party” statute would not, as
when a lawsuit serves as a “catalyst” for a defendant’s altered course of
action without a court award of relief. See Ruckelshaus, 463 U.S. at 686–88;
Loggerhead Turtle v. County Council of Volusia County, 307 F.3d 1318, 1325–
27 (11th Cir. 2002).

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6 No. 21-3057
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 de-
manding 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 con-
cluded 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 at-
torney’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 cir-
cumstances, 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 pre-
sumptively appropriate when a citizen-litigant wins some
success under the Act, unless circumstances make the award
unjust.

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No. 21-3057 7
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. These provisions were de-
signed to broadly allow fees because, with no damages avail-
able, 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 ad-
vance the public interest” in federal court. Newman v. Piggie
Park Enter., Inc., 390 U.S. 400, 402 (1968) (discussing similar
citizen-suit provision in Title II of the Civil Rights Act of
1964). Congress also recognized that “in bringing legitimate
actions under this section citizens would be performing a
public service” and so “courts should award costs of litigation
to such party.” Pennsylvania v. Del. Valley Citizens’ Council For
Clean Air, 478 U.S. 546, 560 (1986) (discussing intent of fee-
shifting provision in Clean Air Act) (internal citation omit-
ted).
Second, the Supreme Court has stated that the fee provi-
sions of environmental statutes that promote private enforce-
ment should be applied “in the same manner” as those in
civil-rights statutes such as 42 U.S.C. § 1988 (which permits
courts to award reasonable attorney’s fees for actions pursued
under civil-rights statutes like 42 U.S.C. § 1983 and Title IX).
Del. Valley, 478 U.S. at 560; Citizens for a Better Env’t v. Steel Co.,
230 F.3d 923, 931 (7th Cir. 2000) (recognizing that “the propo-
sition that environmental fee-shifting laws should be gov-
erned by the same principles as fee-shifting under § 1988
formed the basis of the Court’s disposition [in Del. Valley]”).
This makes sense, given that § 1988, like the Act, “is a tool that

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8 No. 21-3057
ensures the vindication of important rights, even when large
sums of money are not at stake, by making attorney’s fees
available under a private attorney general theory.” Capps v.
Drake, 894 F.3d 802, 806 (7th Cir. 2018) (internal citation omit-
ted).
We have held that, under such civil-rights provisions,
awarding fees is the norm: The prevailing party “should or-
dinarily recover an attorney’s fee unless special circumstances
would render such an award unjust.” King v. Ill. State Bd. of Elec-
tions, 410 F.3d 404, 413 (7th Cir. 2005) (emphasis added and
citation omitted); see also Piggy Park, 390 U.S. at 402 (“[O]ne
who succeeds in obtaining an injunction under [Title II]
should ordinarily recover an attorney’s fee unless special cir-
cumstances would render such an award unjust.”). Despite
the permissive language of the statute (that is, that a court
“may” award fees when appropriate), the district court’s dis-
cretion is cabined: “Although the language of the fee-shifting
statutes vests a district court with discretion to award attor-
neys’ fees [in the civil-rights context], this court generally has
held that prevailing civil rights plaintiffs are entitled to their
attorneys’ fees as a matter of course.” King, 410 F.3d at 415
(internal quotations and citation omitted); see also Capps,
894 F.3d at 804 (under § 1988, denial of fees is reasonable only
“if the party received only a technical, nominal, or de minimis
damage award”). In keeping with the command to treat per-
missive fee-shifting provisions in public-interest statutes
alike, costs and fees will ordinarily be appropriate when a
plaintiff wins some success under the citizen-suit provision of
the Act—unless special circumstances make the award unjust.

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No. 21-3057 9
II. Whether circumstances existed to deny fees
In light of this standard, we conclude that the district court
here acted outside its “narrow” discretion by denying all fees
and costs to ALDF. See King, 410 F.3d at 424 (citing N.Y. Gas-
light Club, Inc. v. Carey, 447 U.S. 54, 68 (1980)). We note, how-
ever, that ALDF would prevail in this appeal even under a
more deferential standard because all four reasons for deny-
ing fees were rooted in errors of law or errors of fact. See Mays
v. Dart, 974 F.3d 810, 818 (7th Cir. 2020) (noting that “factual
or legal error may alone be sufficient to establish that the court
‘abused its discretion’ in making its final determination”);
see also Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639
(7th Cir. 2011) (reversing district court’s fee-award decision
and noting that, even when courts have wide latitude to make
decisions about fee awards, it is “not unlimited latitude, and
the district court still bears the responsibility of justifying its
conclusions”). Here, the court’s reasons were insufficient to
justify denying fees, when weighed against the purpose and
incentive structure of the Act.
The district court’s first reason for denying an award was
that, although the court granted ALDF some relief, it did so
despite standing and mootness concerns. We see at least three
problems with this first reason.
One, the defendants made a strategic litigation choice to
default rather than pursue dismissal for mootness—and they
never moved to dismiss for lack of standing. That was their
right, but it was not without consquences. It would be odd if
the defendants, after refusing to engage in the discovery
needed to determine mootness, could rely on potential moot-
ness to avoid fees. Nor is it fair for the court to sidestep an
issue of subject matter jurisdiction yet cite jurisdictional

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10 No. 21-3057
“concerns” as a basis for denying fees. If the court had juris-
diction to enter a judgment on the merits, then it had jurisdic-
tion to award fees.
Two, denying fees because the losing party could have
prevailed if it made different litigation choices runs counter
to the principle that determining fees “should not result in a
second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437
(1983). That is precisely what occurred here: The parties de-
bated on appeal why ALDF prevailed and what might have
happened if the defendants had participated in the litigation.
Three, the defendants’ cessation of their (admitted) viola-
tions does not necessarily prevent ALDF from collecting rea-
sonable fees: As the Supreme Court has noted, Congress in-
tended fee awards under “when-appropriate” statutes to “ex-
tend to plaintiffs in actions which result in successful abate-
ment” even when they “do not reach a verdict.” Ruckelshaus,
463 U.S. at 686 n.8. A contrary rule would disincentivize citi-
zen suits and defy Congress’s intent to “afford[] endangered
species the highest of priorities.” Tenn. Valley Auth. v. Hill,
437 U.S. 153, 194 (1978).
The district court’s second reason for denying fees was
that Mr. Wheeler’s illness, not ALDF’s litigation, caused the
zoo’s closure. ALDF protests that a fee applicant need not
demonstrate causation when he is the prevailing party and
his success is reduced to an enforceable judgment; in ALDF’s
view, an applicant needs to establish causation only when the
lawsuit ends without a liability determination. In any case,
ALDF argues, the district court factually erred in concluding
that ALDF played “only a small role” in the defendants’ deci-
sion to transfer the animals and sell the zoo.

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No. 21-3057 11
We agree with the latter point, regardless of whether, as a
general matter, a lack of causation could be a special circum-
stance that negates the presumption of recovering fees. The
district court clearly erred in finding that ALDF did not sub-
stantially impact the decision to close the zoo. The defendants
twice admitted that the lawsuit contributed to the decision.
The defendants wrote in a letter to the court that
Mr. Wheeler’s illness “and this lawsuit” caused them to close
the zoo rather than defend against the action. Later, zoo man-
ager Crowe admitted that “due to this lawsuit, all of the [en-
dangered and threatened] animals were gone.” Despite these
statements, the district court assumed that the defendants
would have sold the animals regardless of the lawsuit because
Mr. Wheeler, who was gravely ill, held the license to possess
the animals. But there is simply no evidence that Crowe or
Mrs. Wheeler could not have applied for a new license after
Mr. Wheeler’s death; indeed, at oral argument, the defend-
ants’ attorney admitted that they could have applied for a
new license. True, at the end of the lawsuit the defendants at-
tested that they would not apply for a new license, but they
made that attestation as part of their efforts to end the lawsuit;
no where do they swear that, had the lawsuit not been brought,
they would not have applied for a license or continued oper-
ating the zoo.
Ultimately, the record shows only that, when faced with
the dual hardships of Mr. Wheeler’s illness and this lawsuit,
the defendants decided to close the zoo. Nothing supports a
finding that the illness was the primary cause and that the
lawsuit played, as the district court concluded, “only a small
role.” In any case, the extent to which the lawsuit contributed
to this outcome should have gone to the amount of fees, not
whether to award them. See King, 410 F.3d at 425 n.20 (courts

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12 No. 21-3057
may adjust “award based upon the extent to which a party’s
participation contributed to the ultimate remedy”). Though,
as we discuss below, a significant reduction would not be ap-
propriate in this case where the relief was complete and the
causation was clear.
The district court’s third reason for denying fees likewise
does not withstand scrutiny. The court relied on Kuehl v. Sell-
ner, 887 F.3d 845, 855–56 (8th Cir. 2018), in expressing doubt
that this lawsuit advanced the goals of the Act, which it said
was not designed to close private zoos. The amicus brief filed
by The Calvary Group largely echoes this contention. But the
Act promotes conservation of protected species, in part
through a ban on “tak[ing]” animals of these species by har-
assing or harming them. 16 U.S.C. § 1532(19); see also Tenn.
Valley, 437 U.S at 184 (the Act is designed to “reverse the trend
toward species extinction, whatever the cost,” including by
instructing “[a]ll persons … not to ‘take’ endangered spe-
cies”). Nothing in the statute allows people to harass or harm
endangered animals so long as they do so on private property.
In any case, ALDF had no control over the defendants’ deci-
sion to close the zoo rather than comply with the Act, so that
outcome should not prevent its recovery.
The district court’s fourth reason for denying ALDF fees
was not a permissible reason. The court speculated that ALDF
did not need funding and the defendants lacked resource to
pay. But a fee applicant’s wealth is not a special circumstance.
Sierra Club v. Khanjee Holding (US), Inc., 655 F.3d 699, 708–09
(7th Cir. 2011). Nor is a losing party’s. Lenard v. Argento, 699
F.2d 874, 899–900 (7th Cir. 1983) (citing Entertainment Con-
cepts, Inc. v. Maciejewski, 631 F.2d 497 (7th Cir. 1980). We rec-
ognize that our sister circuit held the opposite in Kuehl, 887

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No. 21-3057 13
F.3d at 855 n.6, concluding that a lack of resources can be a
special circumstance when the lack caused the violations of
the Act. That reasoning, however, is inconsistent with this cir-
cuit’s long-standing precedents. And in any case, nothing in
the record shows that the defendants here lacked resources to
cover a fee award; the court’s assumption that they could not
do so was based on mere speculation.
III. The Amount of Fees and Costs
For these reasons, we remand for the district court to de-
cide in the first instance what a reasonable amount would be.
Under the familiar “lodestar” method, the district court
should calculate the number of hours worked on the case
multiplied by a reasonable hourly rate. See Hensley, 461 U.S.
at 433; Farrar v. Hobby, 506 U.S. 103 (1992). This lodestar
amount is presumptively reasonable, Perdue v. Kenny A.,
559 U.S. 542, 553–54 (2010), but the district court will have dis-
cretion to adjust the total amount awarded. See Estate of Enoch
v. Tienor, 570 F.3d 821, 823–24 (7th Cir. 2009) (citing Hensley,
461 U.S. at 433). Any adjustment, however, should recognize
ALDF’s complete success and its clear role in contributing to
the defendants’ change of conduct.
Finally, we note that the parties and district court do not
distinguish between fees and costs. But the denial of costs was
also erroneous. Costs are presumptively awarded to the pre-
vailing party under Federal Rule of Civil Procedure 54(d).
Though the Act contains a more specific fee-shifting provi-
sion, nothing suggests that it erases the presumption of recov-
ering the litigation costs enumerated in 28 U.S.C. § 1920.
See Lange v. City of Oconto, 28 F.4th 825, 848–49 (7th Cir. 2022)
(explaining in context of ADA that fee-shifting statutes do not
necessarily impact presumption of costs).

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14 No. 21-3057
We VACATE the decision and REMAND for the district
court to award costs and reasonable fees.

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No. 21-3057 15
K IRSCH , Circuit Judge, dissenting. Because the district court
did not abuse its discretion in denying attorney’s fees to
ALDF after finding that ALDF’s lawsuit played only a small
role in closing Special Memories Zoo, I respectfully dissent.
The majority wrongly concludes that the district court com-
mitted a clear error of fact by finding that ALDF’s lawsuit did
not substantially impact the outcome of the litigation. In King,
we said that if a party’s participation in a lawsuit was “so un-
important” to the outcome of the litigation, then fees may not
be warranted. King v. Illinois State Bd. of Elections, 410 F.3d 404,
425 (7th Cir. 2005) (stating that in such cases, the party would
not “deserve” fees). That’s exactly what the district court
found here—that ALDF “played at most only a small role” in
closing the zoo, so in turn, fees were not warranted, and such
a finding was well within its discretion based on the evidence
in this record. See Pickett v. Sheridan Health Care Ctr., 664 F.3d
632, 639 (7th Cir. 2011) (describing the “highly deferential
standard” we apply to the district court’s determination of at-
torney’s fees in suits under Title VII of the Civil Rights Act
because fees disputes are “essentially … factual”) (citation
omitted); New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 68–
70 (1980) (it is within the district court’s discretion to deter-
mine whether special circumstances discourage an award, in-
cluding consideration of whether the attorney “ha[d] an im-
portant role to play” in the ultimate outcome of the litigation);
see also New Jersey v. EPA, 663 F.3d 1279, 1282 (D.C. Cir. 2011)
(district courts can exercise their “broad authority to deny
fees” under “when appropriate” statutes “in a way that en-
sures that intervenors get fees only where, aside from its im-
pact on the litigation’s outcome, intervention assists the judi-
cial process.”).

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16 No. 21-3057
The district court concluded that ALDF did not contribute
very much to the outcome (an injunction that required: (1) the
defendants obey existing laws and (2) not possess animals
that they repeatedly said under oath that they weren’t going
to possess regardless of the litigation) because the same out-
come would have been achieved without the litigation. The
district court’s finding was supported by a mountain of facts.
On March 12, 2020, exactly one month after ALDF filed suit,
Gene Wheeler, 81, was diagnosed with terminal leukemia. Six
days later, on March 18, the defendants sent a letter to the
court regarding this substantial change in the Wheelers’ cir-
cumstances. The letter described the date of Wheeler’s diag-
nosis and his dire condition. It also said that the defendants
had decided to rehome all their animals, with the hope of
helping the litigation come to rapid resolution so Wheeler
could focus on his health. Indeed, only one endangered ani-
mal even remained in the zoo’s possession at that point,
merely a month after the litigation had started, as the defend-
ants had already made good on their commitment to rehome
the others. Wheeler died later that summer, on July 29, 2020.
The default judgment and injunction in January 2021 appear
to have been entirely unimpactful to the zoo’s function or fu-
ture plans. It was not an abuse of the district court’s discretion
to find that the circumstances under which the zoo closed
during this litigation, after Mr. Wheeler’s diagnosis of leuke-
mia and death, rendered ALDF’s participation so unim-
portant to the ultimate outcome that awarding it fees would
be unjust under the circumstances.
In finding the district court committed clear error, the ma-
jority ignores all these facts, and instead focuses on the only
evidence to the contrary: two passing statements, one made
by the defendants’ attorney and the other taken from a longer

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No. 21-3057 17
comment from Gretchen Crowe, that the lawsuit caused them
to close the zoo. True enough, the defendants conceded in
these comments that the lawsuit, along with Mr. Wheeler’s
illness, contributed to their decision to close the zoo (and the
district court never found otherwise). But the district court
justified its conclusion, see Pickett, 664 F.3d at 639, based on
the overwhelming evidence that the defendants would have
sold the animals regardless of the lawsuit. First, Mr. Wheeler
held the only license to possess the animals. The majority
claims that there was no evidence in the record that Crowe
and Donna Wheeler could not have applied for a new license
after Mr. Wheeler’s death. But, as the majority then acknowl-
edges, the defendants attested under oath that they would not
apply for a new license and, under federal regulations, Mr.
Wheeler’s license was not transferrable. See 9 C.F.R. § 2.1(b)(1)
(stating that licenses are held only by the specific person to
which the license was issued and requiring a new license be
obtained upon change of ownership, location, activities, or
animals). Regardless, that was not the only evidence on which
the district court relied in finding that, even had the lawsuit
not been brought, the defendants would have closed the zoo.
Second, Crowe and Mrs. Wheeler both stated under oath that
they had no intention of maintaining animals, besides their
own pet dogs, or operating a zoo again. Mrs. Wheeler stated
that Mr. Wheeler was the “driving force behind opening the
[z]oo” and that she had neither the desire nor the physical
ability to re-open without him. Likewise, Crowe’s affidavit
said that she never intended to work at another zoo and
would not work for Mrs. Wheeler now that Mr. Wheeler had
passed. Third, the barn which was integral to the zoo’s busi-
ness had burned to the ground and would not be recon-
structed, providing more evidence that the defendants would

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18 No. 21-3057
not re-open a zoo. Indeed, from the onset of Mr. Wheeler’s
diagnosis a month into this lawsuit, the defendants main-
tained that their decision to close the zoo was permanent, so
that Mr. Wheeler could focus on his health, and no actions
taken by the defendants ever deviated from that decision.
There’s more than enough evidence on which the district
court could rely in deciding that the defendants would have
ceased possession of the animals and closed the zoo because
of Mr. Wheeler’s illness, regardless of the lawsuit. Whether
we would have come to the same conclusion on this record is
outside the scope of our review; the district court did not
abuse its discretion in relying on this evidence to find that
ALDF played an unimportant role in the outcome of this case,
and thus fees were not warranted.
Not only does the majority substitute its discretion for that
of the district court on the issue of causation, it seems to go
much farther and well beyond what is an appropriate appel-
late role with this sentence: “a significant reduction [in fees]
would not be appropriate in this case where the relief was
complete and the causation was clear.” The majority fails to
mention that ALDF requested a staggering amount of fees—
$72,172.56—in a case in which the defendants folded without
a fight a month after ALDF filed suit. This record clearly sup-
ports the district court’s denial of fees and would certainly
support a merely de minimis amount. In any event, the law
leaves that determination to the district court.

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