194
NPDES permit. These issues have not been aired in the lower courts; they remain open for consideration on remand.6
C
FOE argues that it is entitled to attorneys' fees on the theory that a plaintiff can be a "prevailing party" for purposes of 33 U. S. C. § 1365(d) if it was the "catalyst" that triggered a favorable outcome. In the decision under review, the Court of Appeals noted that its Circuit precedent construed our decision in Farrar v. Hobby, 506 U. S. 103 (1992), to require rejection of that theory. 149 F. 3d, at 307, n. 5 (citing S-1 & S-2 v. State Bd. of Ed. of N. C., 21 F. 3d 49, 51 (CA4 1994) (en banc)). Cf. Foreman v. Dallas County, 193 F. 3d 314, 320 (CA5 1999) (stating, in dicta, that "[a]fter Farrar . . . the continuing validity of the catalyst theory is in serious doubt").
Farrar acknowledged that a civil rights plaintiff awarded nominal damages may be a "prevailing party" under 42 U. S. C. § 1988. 506 U. S., at 112. The case involved no catalytic effect. Recognizing that the issue was not presented for this Court's decision in Farrar, several Courts of Appeals have expressly concluded that Farrar did not repudiate the catalyst theory. See Marbley v. Bane, 57 F. 3d 224, 234 (CA2 1995); Baumgartner v. Harrisburg Housing Authority, 21 F. 3d 541, 546-550 (CA3 1994); Zinn v. Shalala, 35 F. 3d 273, 276 (CA7 1994); Little Rock School Dist. v. Pulaski County Special Sch. Dist., #1, 17 F. 3d 260, 263, n. 2 (CA8 1994); Kilgour v. Pasadena, 53 F. 3d 1007, 1010 (CA9 1995);
6 We note that it is far from clear that vacatur of the District Court's judgment would be the appropriate response to a finding of mootness on appeal brought about by the voluntary conduct of the party that lost in the District Court. See U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18 (1994) (mootness attributable to a voluntary act of a nonprevailing party ordinarily does not justify vacatur of a judgment under review); see also Walling v. James V. Reuter, Inc., 321 U. S. 671 (1944).
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