Petition for Writ of Certiorari — S-1 & S-2 ex rel. P-1 & P-2 v. State Board of Education

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WY —-——

94 227 AUG - 11994

No, SAFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1994

S1 AND 82, ET AL.,

Petitioners,

STATE BOARD OF EDUCATION OF

NORTH CAROLINA, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Amy L. Wax, Esa. *A. FRANK JOHNS, Esa.

580 Massie Road BootH, HARRINGTON, JOHNS

Charlottesville, Va. 22903 AND CAMPBELL

(804) 924-7815 239 Edgeworth Street

Greensboro, N.C. 27401

BRIAN WoLeMAN, Eso. (910) 275-9567

Public Citizen Litigation

Group *Counsel of Record

2000 P Street N.W. for the Petitioners

Suite 700

Washington, D.C. 20036

(202) 833-3000

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether, following the dismissal of their lawsuit

brought under 42 U.S.C. 1983, petitioners qualified as

“prevailing parties” entitled to an award of attorneys’

fees under 42 U.S.C. 1988, where the suit was the “cata-

lyst” for a change in state law that provided them with

the relief they sought.

PARTIES TO THE PROCEEDINGS

The parties to the proceedings in this Court and

before the court of appeals when it rendered the judg-

ment that is sought to be reviewed are: petitioners S1 and

$2, who were 10-year-old children with disabilities at the

time this action was filed in district court on August 2,

1985; petitioners Pl and P2, their parents; respondent

Barbara Tapscott, the appointed chairman of respondent

North Carolina State Board of Education, and the suc-

cessor to C.D. Spangler, Jr. who was the chairman at the

time of filing of the complaint; respondent State Board of

Education of North Carolina.

The parties to the proceedings before the district

court and the court of appeals in its previous decision in

this case included petitioners and respondent North Car-

olina State Board of Education as well as: the Asheboro

City Board of Education; C.D. Heidgerd, a hearing officer

employed by the city board; and C.D. Spangler, Jr. who

was the chairman of the State Board of Education at the

time of filing of the complaint.

ili

TABLE OF CONTENTS

Page

Question Presented for Review .................... i

I NII os ince cig ce dene cans ii

pe Pere eeereeee ree eee eeeeeees iv

20 e ks Sond 1 <b> vb ve kes S04 905 1

ee icab gens ese ve sesedecneeteuns 2

Statutory Provisions Involved.................-.4.. 2

NS oh edad ay ch vse edeseavesaes 3

Reasons For Granting The Petition................. 11

LE GT EERE TIE TES a ae ES ee 24

TABLE OF AUTHORITIES

Page

CASES:

American Council of the Blind v. Romer, 992 F.2d 249

(10th Cir.), cert. denied, 114 S. Ct. 184 (1993) ..18, 19

Baumgartner v. Harrisburg Housing Authority, 21

AO ek | rrr 18, 19, 20, 21, 22

Bonnes v. Long, 559 F.2d 1316 (4th Cir. 1979) ........ 18

Citizens Against Tax Waste v. Westerville City School,

965 P.20 25> (Sh Cie. TORS. 06s cieues 10, 18, 21, 22

Craig v. Gregg County, Texas, 988 F.2d 18 (5th Cir.

| aS Pam yeni Gemener Patan on eto YS are My ene 18

Dawson v. Pastrick, 600 F.2d 70 (7th Cir. 1979)....... 18

DeMier v. Gondles, 676 F.2d 92 (4th Cir. 1982) ....... 18

Dunn v. The Florida Bar, 889 F.2d 1010 (11th Cir.

1989), cert. denied, 498 U.S. 811 (1990)............ 23

Farrar v. Hobby, 113 S. Ct. 566 (1992)............ passim

Garcia v. Guerra, 744 F.2d 1159 (5th Cir. 1984), cert.

denied, 471 US. DOGS Gees osc ns sc ave nen vives 18, 23

Gerena-Valentine v. Koch, 739 F.2d 755 (2d Cir. 1984) .... 18

Guglietti v. Sec’y of HHS, 900 F.2d 397 (1st Cir.

i ETT eT CTE Serre rye Lore rer rrr eee 23

Hanrahan v. Hampton, 446 U.S. 754 (1979)............ 15

Hensley v. Eckerhart, 461, U.S. 424 (1983) ............ 15

Hewitt v. Helms, 482 U.S. 755 (1986).............. 13, 14

Lads Trucking Co. v. Bd. of Trustees, 777 F.2d 1371

£8 Sor erry er rere rrr ere 18

a |

TABLE OF AUTHORITIES - Continued

Page

Luethje v. Peavine Sch. Dist., 872 F.2d 352 (10th Cir.

I cack dna s ce cuavit ced eidoeas nits eine 18

Maher v. Gagne, 448 U.S. 122 (1980) .........-..---- 14

Maloney v. Marietta, 822 F.2d 1023 (11th Cir. 1987) ..9, 22

Martin v. Heckler, 773 F.2d 1145 (11th Cir. 1985)..... 18

Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978) ..... 18

Paris v. HUD, 988 F.2d 236 (1st Cir. 1993)

Ere eS ARN ele fie 10, 18, 20, 21, 22, 23

Perket v. Sec’y of HHS, 905 F.2d 129 (6th Cir. 1990) .... 18

Public Citizen Health Research Group v. Young, 909

pe BR a Som | re yer eee 18

Rhodes v. Stewart, 488 U.S. 1 (1988)................ 8, 14

S1 ex rel. P1 v. Spangler, 650 F. Supp. 1427

CRT WO eons ia have haccegs ta bvnchsausiaess ye

S1 ex rel. P1 v. Spangler, 832 F.2d 294 (4th Cir. 1987) ...2, 6

Taylor v. Ft. Lauderdale, 810 F.2d 1551 (11th Cir.

Si av ches 5s RAS eNO LORS CREAR EER EASA DD. 22

Texas State Teachers Ass’n v. Garland Indep. Sch.

Dist., MBP U.S. FER CEFOE) «ov ches ccvessatccceeses 9, 12

Truax v. Bowen, 842 F.2d 995 (8th Cir. 1988) ......... 18

United States v. Munsingwear, Inc., 340 U.S. 36

je wrete annem a hee rer ener ig Pee ere ee 7

Watkins v. Fordice, 7 F.3d 453 (5th Cir. 1993)

sae e ieee Ga kare aan aa hes 18, 20, 21, 22

Wheeler v. Towanda Area Sch. Dist., 950 F.2d 128 (3d

i SON ee ie epee (eee oes Se awd aig, 18, 20

Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980), cert.

denied. 460 US. 1018 (4981)... .. «6.60.5 9, 22

TABLE OF AUTHORITIES —- Continued

Page

STATUTES:

er : ON OO OU 6 os 0ccaseaedevusixes bavuuskeays 3

EE ED oo be bo ok 400000005560 chek See e Rees 3

I Es db 5 Coos 6500040 bS ORES es bee e Res 4,7

es EE ss) d's go 6 8 an von 664s caeened ne rereel 2

an ine eto 066s kia Abba ees Cana eee Orel 4

I Ss win 06-v 46.0040 5.039 G6s enn hee eeee 19

a ee en Si ee 4

Bs SEs 8K ven we vendhscenes cueuesseeaavua passim

N.C. Gen. Stat. 115C-116 (as amended, 1988 &

PN vcuvsene ee eas 0000400 0uusee eee eae y a

MISCELLANEOUS:

S. Kep. No. 94-1011, 94th Cong., 2d Sess. (1976)..... 15

H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. (1976) .... 16

OSERS Letter Ruling (OSERS 1987) .................. 5

No. 94-___

“

In The

Supreme Court of the United States

October Term, 1994

S1 AND S82, ET AL.,

Petitioners,

STATE BOARD OF EDUCATION OF

NORTH CAROLINA, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners S1 and S2, by and through their parents

and guardians ad litem, P1 and P2, and P1 and P2 individ-

ually, petition for a writ of certiorari to review the opin-

ion and judgment of the United States Court of Appeals

for the Fourth Circuit, sitting en banc, entered in the

above-entitled proceeding on April 4, 1994.

OPINIONS BELOW

The opinion and judgment of the court of appeals,

sitting en banc, is reported at 21 F.3d 49. App., infra, 1a-6a.

The opinion and judgment of the panel of the court of

appeals, which was reversed by the court sitting en banc,

is reported at 6 F.3d 160. App., infra, 7a-38a. The order

and memorandum opinion of the United States District

Court for the Middle District of North Carolina awarding

attorneys’ fees to petitioners, entered on March 30, 1992

(App., infra, 39a-48a), is unpublished. The earlier opinion

and judgment of the court of appeals is reported at 832

F.2d 294. The opinion and judgment of the district court,

which was vacated by the court of appeals, is reported at

650 F. Supp. 1427.

JURISDICTION

The judgment of the court of appeals was entered on

April 4, 1994. On June 7, 1994, Chief Justice Rehnquist

extended the time within which to file a petition for a

writ of certiorari to and including August 2, 1994. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1)

STATUTORY PROVISIONS INVOLVED

The following statutory sections are reprinted in the

Appendix to this petition at 55a-58a: 42 U.S.C. 1988; N.C.

Gen. Stat. Sections 115C-116 (d), (h), (i), and (j) (as

amended, 1988) and Sections 115C-116 (d), (h) and (j) (as

amended, 1990).

ee Let

STATEMENT OF THE CASE

1. Petitioners S1 and S2 are disabled children of P1

and P2, their parents and guardians. Petitioners seek

reversal of the court of appeals’ en banc decision that they

are not “prevailing parties” in their action under 42

U.S.C. 1983 against respondents North Carolina Board of

Education and its chairman, and thus are not entitled to

attorneys’ fees against respondents under 42 U.S.C. 1988.

When this action began, petitioners S1 and S2 were

enrolled in the Asheboro, North Carolina city schools. P1

and P2 enrolled their children in private schools with

special programs for the disabled for the 1983-1984 school

year. In subsequent years, however, the parents

demanded that the school district provide a free, appro-

priate, individualized educational program for their chil-

dren as required by the individuals with Disabilities

Education Act, 20 U.S.C. 1400, et seq., formerly known as

the Education of the Handicapped Act, and the Education

for All Handicapped Children Act. The parents also

requested tuition reimbursement from the city school

authorities for the 1983-1984 school year, claiming that

the school district violated the IDEA by failing to notify

them of their children’s right to a publicly funded educa-

tion for that period. App., infra, 9a.

Although the children were soon placed in an appropri-

ate public school program designed to meet their educational

needs, the parents’ claim for tuition reimbursement was

refused. Petitioners then demanded a “due process hearing”

from local school authorities, as provided under N.C. Gen.

Stat. Section 115C-116, which was enacted pursuant to 20

U.S.C. 1415(b) of the IDEA. The hearing officer refused to

hear the parents’ claim on the ground that he lacked author-

ity to award tuition reimbursement under the version of

Section 115C-116 in force at that time. The state education

agency denied the parents’ petition to amend state regula-

tions to confer authority upon the hearing officer to make a

binding award of reimbursement to remedy the local school

board’s violation of federal law. App., infra, 9a-10a.

2. Petitioners then filed suit under 42 U.S.C. 1983 in

federal district court against the city board of education,

the local hearing officer, the state board of education, and

the state chairman of the board. They alleged that the

local hearing officer, in refusing to hear their claim for

tuition reimbursement, and the state board, in refusing to

amend or reinterpret state procedures to allow an award

of tuition reimbursement by officers authorized to hear

parents’ claims, had violated petitioners’ procedural

rights under the IDEA and its implementing federal regu-

lations. App., infra, 10a-11a. Petitioners sought to recover

their 1983-1984 tuition expenses, or, in the alternative, “a

declaration that the state rules preventing hearing offi-

cers from deciding tuition reimbursement claims violated

the parents’ rights under federal law, an order enjoining

[the state chairman] and the state board from promulgat-

ing and enforcing those rules, and an order compelling

the city board and its hearing officer to conduct a hearing

on [their] reimbursement claim.” They also sought costs

and attorneys’ fees under 42 U.S.C. 1988, 20 U.S.C.

1415(e), and 29 U.S.C. 794a. App., infra, 11a.

Based on its interpretation of the IDEA as requiring

States to provide an administrative hearing at which par-

ents could obtain relief in the form of tuition reimburse-

ment, the district court granted petitioners’ motion for

summary judgment on the claims for injunctive and

declaratory relief. S1 ex rel. P1 v. Spangler, 650 F. Supp.

1427 (M.D.N.C. 1986). It ordered the city board and its

hearing officer to conduct a hearing on petitioners’ claims

for reimbursement and to award relief if appropriate. It

also enjoined the state board and its chairman from

applying North Carolina law to bar the award of

reimbursement in hearings on claims under the IDEA.

App., infra, 11a.

3. Respondents appealed to the Fourth Circuit. On

June 17, 1987, while the appeal was pending, the Office of

Special Education and Rehabilitative Services (OSERS) of

the United States Department of Education (DOE), which

supervises federal grants-in-aid under the IDEA, issued a

Letter Ruling in which it specifically endorsed the posi-

tion taken by the district court in this case. In the ruling,

OSERS agreed with the court that the IDEA requires

states to authorize hearing officers to order tuition reim-

bursement as a remedy for violations of the statute. App.,

infra, 12a; see also id. at 49a-54a.

4. Shortly thereafter, petitioners agreed to a settle-

ment with the city board of education under which the

board agreed to pay petitioners’ accrued tuition expenses

and its assessed portion of attorneys’ fees in exchange for

petitioners’ agreeing to dismiss all claims against the city

board and city officials with prejudice. The state board

and chairman were not parties to the agreement. See

App., infra, 11a-12a; id. at 46a n.5.

Following the settlement, the court of appeals dis-

missed petitioners’ remaining claims against the state

respondents. S1 ex rel. P1 v. Spangler, 832 F.2d 294 (4th Cir.

1987). Although the court declined to decide whether

petitioners’ settlement with the city board rendered the

case moot as against the state defendants “in strict consti-

tutional case or controversy terms,” it concluded that it

nonetheless “should treat [the] appeal as moot for pru-

dential reasons.” 832 F.2d at 297. The court explained that

because they had received full reirabursement on their

claims for tuition, petitioners no longer had a “present

need” for an injunction authorizing state hearing officers

to decide their tuition claims. Ibid.

The court acknowledged the possibility that peti-

tioners, who continued to use .1e city’s educational ser-

vices, might yet take advantage of a change in state

mandated procedures to obtain redress for claimed viola-

tions of the IDEA in the future. It believed, however, that

that prospect was not “sufficiently realistic” to warrant

the issuance of an injunction. The court also noted that its

refusal to rule on the request for injunctive relief against

the State would allow it to avoid deciding the difficult

constitutional question of whether the Eleventh Amend-

ment would permit the court to enjoin the processes of a

state administrative agency. Finally, the court expressed

the belief that a ruling on the matter would soon become

unnecessary because it was likely that the State of North

Carolina would alter its hearing procedures in response

to the opinion expressed in the OSERS’ June 17, 1987,

letter ruling. 832 F.2d at 297-298. Thus, the court vacated

the district court’s order and remanded with directions to

consider petitioners’ request for attorneys’ fees and to

dismiss the remainder of the action as moot. Id. at

298-299. See United States v. Munsingwear, Inc., 340 U.S. 36

(1950).

5. In 1988, following the court of appeals’ dismissal

of petitioners’ action, the North Carolina Genera] Assem-

bly enacted amendments to Section 115C-116 ihat

expressly authorized hearing officers to conduct hearings

regarding reimbursements for violations of federal law,

but retained to the state board of education, rather than

to hearing officers, the authority to make reimbursement

decisions final. See App., infra, 57a-58a; see also id. at 13a.

OSERS objected to the revised statute and threatened to

withdraw $5 million in federal education funds if the

State did not comply with the requirements of the IDEA

by June 30, 1990. Ibid. In July 1990, the North Carolina

State General Assembly finally revised Section 115C-116

to grant administrative hearing officers the authority to

make binding findings of fact and conclusions of law

regarding violations of the IDEA. Those decisions were

enforceable by the state board through the award of

appropriate monetary relief, including reimbursement for

tuition. App., infra, 13a. See also N.C. Gen. Stat.

115C-116(h), (j) (1990), App., infra, 55a-56a.

6. Following this legislative development, the dis-

trict court awarded attorneys’ fees under 42 U.S.C. 1988

and 20 U.S.C. 1415(e) against the state respondents in the

amount of $30,143.18. App., infra, 4a, 48a. The court based

the award on its finding that petitioners’ lawsuit led to

“federal pressure” being brought to bear on North Caro-

lina, which in turn resulted in the amendment of Section

115C-116 to comply with federal law. App., infra, 13a-14a;

see also id. at 44a-45a.

7. On appeal, a panel of the court of appeals, with

Judge Wilkinson dissenting, affirmed the attorneys’ fees

award. App., infra, 7a-38a. The panel majority rejected the

state’s contention that “post-mootness events never can

serve to establish § 1983 plaintiffs as prevailing parties

for § 1988 attorney fee award purposes.” The court rea-

soned that, in contrast with Rhodes v. Stewart, 488 U.S. 1

(1988), this case was not one in which “the mooting

events made it impossible for the plaintiffs to prevail in

the most basic sense of realizing any of the benefits

sought in the action.” App., infra, 14a. The court found

that petitioners qualified as prevailing parties because

their lawsuit, although not resulting in a formal judgment

in their favor on the merits, had “influenced the OSERS

Letter Ruling and thereby its policy ina significant way,”

which in turn had prompted the State to bring about the

change in its hearing procedures that petitioners desired.

App., infra, 16a-17a.

The court of appeals also rejected the state’s reliance

on a passage in the recently decided case of Farrar v.

Hobby, 113 S. Ct. 566 (1992). There, this Court stated in

dictum that, to qualify as a prevailing party, a civil rights

plaintiff “must obtain an enforceable judgment against

the defendant from whom fees are sought * * * or compa-

rable relief through a consent decree or settlement.” 113

S.Ct. at 573. The court of appeals concluded that the

Farrar dictum should not be read as “reject[ing] the cata-

lyst theory of prevailing party status,” explaining that the

validity of that theory was not at issue in the case, and

that Farrar had relied on several prior decisions that “had

either expressly or tacitly recognized the catalyst theory’s

viability.” App., infra, 23a; id. at 20a-24a.!

In his dissent, Judge Wilkinson asserted that the

panel majority’s decision embracing “a broad ‘catalyst

theory’ of attorneys’ fees recovery” could not be recon-

ciled with this Court’s statements in Farrar. App., infra,

27a-28a. Judge Wilkinson also stated that the catalyst

theory of fee recovery “conflicts with the plain language

of § 1988 itself,” because individuals “must prevail in

their status as parties, not in their role as agents of

reform.” Id. at 3la-32a. In Judge Wilkinson’s view, this

Court’s cases should be interpreted as requiring that, to

prevail for § 1988 purposes, parties must “succeed on the

merits of a claim.” That is because the lawsuit must

“materially alter the legal relationship between plaintiffs

and defendants,” ibid. (quoting Texas State Teachers Ass’n

v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-793 (1989)),

and such an alteration is not possible unless “the plaintiff

1 The panel majority put forward an alternative basis for

awarding attorneys’ fees to petitioners: that a vacatur of a favor-

able judgment following a dismissal on appeal for prudential

mootness should not affect a plaintiff's entitlement to attorneys’

fees as a prevailing party. The court relied on cases decided by

other courts in which plaintiffs were awarded fees after a pre-

liminary injunction was vacated as moot when the defendant’s

voluntary compliance afforded the plaintiff the sought-after

relief. App., infra, 25a n.3. See, e.g., Maloney v. Marietta, 822 F.2d

1023 (11th Cir. 1987); Williams v. Alioto, 625 F.2d 845 (9th Cir.

1980), cert. denied, 450 U.S. 1012 (1981). In those cases as in this

one, the panel majority noted, the court’s order was not

reversed on the merits; thus, the vacatur here should not be

regarded as barring an award of attorneys’ fees.

becomes entitled to enforce a judgment, consent decree,

or settlement against the defendant.” App., infra, 32a

(quoting Farrar, 113 S. Ct. at 574). Judge Wilkinson fur-

ther explained that, by permitting voluntary remedial

action to be the basis of attorneys’ fees awards, applica-

tion of the doctrine would have the effect of discouraging

such action on the part of public officials. App., infra,

35a-36a. Judge Wilkinson found unpersuasive decisions

of other courts of appeals that had reaffirmed the catalyst

theory following the Court’s decision in Farrar, conclud-

ing that those cases “do not come to terms with the

inconsistency between Farrar and the catalyst theory.” See

App., infra, 28a n.2 (citing Paris v. HUD, 988 F.2d 236 (1st

Cir. 1993) and Citizens Against Tax Waste v. Westerville City

School, 985 F.2d 255 (6th Cir. 1993)).

8. On October 21, 1993, the Fourth Circuit granted

the state respondents’ petition for rehearing en banc.

App., infra, 5a. In a per curiam opinion, a majority of

seven judges of the court, with six judges dissenting,

reversed the decision of the panel majority and vacated

the district court’s award of attorneys’ fees to petitioners.

The court adopted in full the dissenting panel opinion of

Judge Wilkinson. It briefly reiterated the conclusions of

that opinion that 1) a person cannot be a “prevailing

party” under 42 U.S.C. § 1988 without having obtained

“an enforceable judgment, consent, decree, or settlement

giving some of the legal relief sought,” and that 2) follow-

ing the decision in Farrar, a lawsuit’s role as a catalyst for

extra-judicial changes in a defendant’s conduct “cannot

suffice to establish [a] plaintiff as a prevailing party.”

App., infra, 5a.

Six judges dissented, endorsing the view expressed

in Judge Phillips’ majority opinion for the panel and

adopting that opinion as their own. App., infra, 6a.

REASONS FOR GRANTING THE PETITION

In overturning the district court’s award of attorneys’

fees in this case, the Fourth Circuit, sitting en banc,

adopted an interpretation of 42 U.S.C. 1988 that dramati-

cally narrows the grounds for fee awards to plaintiffs

seeking to vindicate federal civil rights. The Fourth Cir-

cuit’s categorical rejection of the well-established and

widely-accepted “catalyst” theory under Section 1988

represents a misreading of the language of the statute, is

contrary to legislative history that directly addresses the

question, and conflicts with the interpretation of that

provision by every other court of appeals to consider the

issue. Moreover, there is nothing in this Court’s cases,

including its recent decision in Farrar v. Hobby, 113 S. Ct.

566 (1992), that warrants the Fourth Circuit’s restrictive

view of the scope of the term “prevailing party” in Sec-

tion 1988.

Resolution of the conflict in the courts of appeals on

the question presented by this case is of great importance

to the application of Section 1988 as well as other federal

statutes that permit the award of attorneys’ fees to “pre-

vailing parties.” It is not uncommon for plaintiffs, as a

result of a lawsuit, to benefit from a defendant’s cessation

of challenged conduct or a legislative reaction mandating

such a change. The court of appeals ruled, however, that

a plaintiff can qualify as a “prevailing party” only if his

lawsuit results in a formal judgment or settlement in his

favor. Thus, attorneys’ fees are not available if, in

response to the plaintiff’s legal challenge, the defendant

voluntarily alters his conduct or takes other action to

remedy the claimed violations, where that action is not

mandated by judicial order or decree. Adoption of the

Fourth Circuit’s rule to bar an award of fees in such

circumstances would significantly circumscribe the avail-

ability of attorneys’ fees under federal fee shifting stat-

utes, and would contravene Congress’s intent by

depriving many deserving litigants of fees despite their

success in vindicating federal civil rights as a direct result

of legal action.

1. The court of appeals sitting en banc, in adopting

Judge Wilkinson’s dissenting panel opinion, decided that

the catalyst theory of fee recovery “conflicts with the

plain language of § 1988 itself.” According to Judge Wilk-

inson, a “prevailing party,” must achieve success by vir-

tue of “a court’s authority,” and not by any other means.

Judge Wilkinson’s restrictive view is not the best

reading of Section 1988. A party “prevails” in a lawsuit if

it obtains the requested remedy as a result of prosecuting

its claim. As other courts of appeals have recognized,

once the conditions of causation and substantial benefit

to the plaintiff are satisfied, there is no need for the

additional requirement that there be a favorable judg-

ment in the case, or that the change in conduct or law be

judicially mandated or formalized by judicial decree. In

Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489

U.S. 782, 792 (1989), the Court stated that, for attorneys’

fees to be available under Section 1988, a lawsuit must

materially alter the “legal relationship” between plaintiffs

and defendants. The Fourth Circuit’s unduly restrictive

construction of the language of Section 1988 ignores the

fact that a change in the “legal relationship” between the

parties to a lawsuit can be brought about by a number of

means that do not require a court judgment or order -

including a legislative enactment, a change in administra-

tive practice or rules, or the implementation of an

announced intent to cease or alter the objectionable con-

duct. The lawsuit in this case altered the “legal relation-

ship” between petitioners and respondents, despite the

absence of a formal judgment in petitioners’ favor,

because it resulted in a change in the procedures that the

state respondents must accord petitioners when challeng-

ing school authorities’ compliance with the IDEA.

This Court has in a number of cases implicitly or

explicitly endorsed the “catalyst theory” of attorneys’

fees awards by recognizing that a favorable final judg-

ment is not a necessary prerequisite to achieving the

status of a “prevailing party.”

In Hewitt v. Helms, 482 U.S. 755, 761 (1986), the Court

expressly acknowledged a “catalyst theory” of attorneys’

fee recovery (referred to in that case as the “equivalency”

doctrine) as a basis for prevailing party status. The court

explained that

in civil litigation, the judicial decree is not the

ends but the means. At the end of the rainbow

lies not a judgment, but some action (or cessa-

tion of action) by the defendant that the judg-

ment produces * * * [ - that is,] the settling of

some dispute which affects the behavior of the

defendant towards the plaintiff. * * * If the defen-

dant, under the pressure of the lawsuit, pays

over a money claim before the judicial judgment

is pronounced, the plaintiff has “prevailed” in

his suit, because he has obtained the substance

of what he sought. Likewise in a declaratory

judgment action: if the defendant, under pres-

sure of the lawsuit, alters his conduct (or threat-

ened conduct) towards the plaintiff that was the

basis for the suit, the plaintiff will have pre-

vailed.[2]

Similarly, in Maher v. Gagne, 448 U.S. 122, 129 (1980), the

Court stated that “[n]othing in the language of § 1988

2 Nevertheless, this case is unlike Hewitt v. Helms, 482 U.S.

755, 763 (1987), and Rhodes v. Stewart, 488 U.S. 1, 3-4 (1988) (per

curiam), in which the plaintiffs were denied attorneys’ fees in

actions seeking injunctions against prison policies because they

were no longer in custody and thus could not reap any benefit

from changes in those policies. Cf. App., infra, 14a (panel opin-

ion distinguishing Rhodes v. Stewart). In particular, petitioners’

situation differs from that of the petitioner in Hewitt v. Helms, in

which the Court held that a former prisoner who had been

released on parole could not take advantage of the “catalyst”

theory to achieve prevailing party status because the change in

prison rules that allegedly was prompted by his lawsuit did not

provide him with any redress. See 482 U.S. at 763-764. In con-

trast, there is no question that petitioners in this case received a

concrete benefit —- over and above the tuition reimbursement

from the city board - from the change in hearing procedures

brought about by the revision in state law. Since petitioners S1

and S2 continued to be entitled to receive a free appropriate

public education as mandated by the IDEA, the right to seek

relief in the form of tuition reimbursement for any future viola-

tions of federal law by the local school district was of continuing

value to them.

conditions the [court’s] power to award fees on full litiga-

tion of the issues or on a judicial determination that the

plaintiff’s rights have been violated.” The Court in that

case expressly rejected the view that a settlement — with-

out a judgment on the merits —- is insufficient to accord

“prevailing party” status under Section 1988. In so decid-

ing, the Court quoted from a passage in the Senate Report

accompanying the enactment of Section 1988, which

stated that “for purposes of the award of counsel fees,

parties may be considered to have prevailed when they

vindicate rights through a consent judgment or without

formally obtaining relief.” Id. at 129, quoting S. Rep. No.

94-1011, 94th Cong., 2d Sess. 5 (1976). See also Hanrahan

v. Hampton, 446 U.S. 754, 756-757 (1979) (per curiam)

(recognizing, in reliance on the legislative reports, that a

person may “in some circumstances be a ‘prevailing

party’” if his rights are vindicated “without formally

obtaining relief.”); Hensley v. Eckerhart, 461 U.S. 424, 433

(1983) (“Plaintiffs may be considered ‘prevailing parties’

for attorney’s fees purposes if they succeed on any signif-

icant issue in litigation which achieves some of the bene-

fit the parties sought in bringing suit.”).

The House Report on the federal attorneys’ fees stat-

ute is even more explicit on the issue central to this case,

stating that:

[t]he phrase “prevailing party” is not intended

to be limited to the victor only after entry of a

final judgment following a full trial on the

merits. * * * If the litigation terminates by con-

sent decree, for example, it would be proper to

award counsel fees [citations omitted]. A “pre-

vailing party” should not be penalized for seek-

ing an out-of-court settlement, thus helping to

lessen docket congestion. Similarly, after a com-

plaint is filed a defendant might voluntarily cease

the unlawful practice. A court should still award fees

even though it might conclude, as a matter of equity

that no formal relief, such as an injunction, is

needed.

H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. 7 (1976)

(emphasis added). The House Report thus explicitly

endorses treating cases in which a defendant’s “voluntary

compliance” affords plaintiffs the requested remedy no

differently than cases in which plaintiffs obtain relief

through judicial action in the form of a favorable judg-

ment on the merits, a settlement, or a consent decree.

According to the Fourth Circuit, however, these cases

should be treated differently: although fees are available

in the event of a formal settlement or consent decree, they

would be barred if a lawsuit terminates because of a

defendant’s voluntary compliance with the plaintiff’s

plea for relief. See App., infra, 35a-36a (Judge Wilkinson,

dissenting) (rejecting the “catalyst theory” because it

“expressly recognizes ‘voluntary actions taken by a

defendant’ as a proper basis for a fee award.”). As the

unequivocal statements in the House Report make clear,

however, the statute was never intended to be interpreted

in this manner.

The Court’s decision in Farrar v. Hobby, supra, is not

to the contrary. The Court in that case did not consider or

rule on the validity of the “catalyst” theory in the context

of an extrajudicial change in the defendant's conduct that

afforded the plaintiffs relief. Rather, the issue in Farrar

was whether a fee award of $280,000 to a plaintiff who

had won only a dollar in a suit seeking $17 million was

reasonable given the plaintiff's nominal success. In the

course of a general discussion of Section 1988’s require-

ments, the Court stated that, to be a prevailing party, a

plaintiff “must obtain at least some relief on the merits of

his claim.” 113 S. Ct. at 573. The Court explained that a

plaintiff must obtain an “enforceable judgment against

the defendant,” or “comparable relief through a consent

decree or settlement,” and went on to state that “a plain-

tiff prevails when actual relief on the merits of his claim

materially alters the legal relationship between the par-

ties by modifying the defendant’s behavior in a way that

directly benefits the plaintiff.” Ibid.

These comments should not be construed as ruling

out the award of attorneys’ fees when relief is obtained

by methods other than judicial decree. Although Farrar

states that prevailing party status may be achieved by a

judgment on the merits or through settlement or a con-

sent decree, the context indicates that the list need not be

exhaustive. The Court put forward a more general formu-

lation, gleaned from its prior attorneys’ fees cases, that

would allow an award in the absence of a formal judg-

ment: that fees can be appropriate where the relief

obtained “alters the legal relationship between the par-

ties * * * in a way that directly benefits the plaintiff.” 113

S. Ct. at 573. In any event, Farrar did not claim to decide

whether a party could “prevail” without a favorable

judgment on the merits (since the plaintiff in that case

had obtained such a judgment), and did not discuss the

legislative history or analyze other pertinent materials

bearing on the proper resolution of that particular issue.

Thus, the decision in Farrar cannot fairly be read as

definitively foreclosing the catalyst theory of fee recov-

ery.

2. a. Application of the “catalyst” theory to determine

whether a party seeking attorneys’ fees is a “prevailing

party” is a firmly entrenched doctrine that has been rec-

ognized by every court of appeais, including the Fourth

Circuit, prior to the decision in this case. In addition, the

court of appeals’ decision here is in direct conflict with

post-Farrar decisions in four other courts of appeals that

have continued to apply the catalyst theory to uphold

awards of attorneys’ fees to plaintiffs who, by dint of

filing a lawsuit under Section 1983, have obtained some

sought-after relief without a final judgment in their favor.

See Baumgartner v. Harrisburg Housing Authority, 21 F.3d

541 (3d Cir. 1994); Paris v. HUD, 988 F.2d 236 (ist Cir.

1993); Watkins v. Fordice, 7 F.3d 453 (5th Cir. 1993); Citizens

Against Tax Waste v. Westerville City School, 985 F.2d 255

(6th Cir. 1993). In addition, another court of appeals has

endorsed the “catalyst” theory following Farrar, but

denied attorneys’ fees for reasons unrelated to the val-

idity of the theory. See American Council of the Blind v.

3 See, e.g., Public Citizen Health Research Group v. Young, 909

F.2d 546 (D.C. Cir. 1990); Nadeau v. Helgemoe, 581 F.2d 275 (1st

Cir. 1978); Gerena-Valentine v. Koch, 739 F.2d 755 (2d Cir. 1984);

Wheeler v. Towanda Area Sch. Dist., 950 F.2d 128 (3d Cir. 1991);

Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979); DeMier v. Gondles,

676 F.2d 92 (1982); Garcia v. Guerra, 744 F.2d 1159 (5th Cir. 1984),

cert. denied, 471 U.S. 1065 (1985); Perket v. Sec’y of HHS, 905 F.2d

129 (6th Cir. 1990); Dawson v. Pastrick, 600 F.2d 70 (7th Cir. 1979);

Truax v. Bowen, 842 F.2d 995 (8th Cir. 1988); Lads Trucking Co. v.

Bd. of Trustees, 777 F.2d 1371 (9th Cir. 1985); Luethje v. Peavine

Sch. Dist., 872 F.2d 352 (10th Cir. 1989); Martin v. Heckler, 773

F.2d 1145 (11th Cir. 1985).

Romer, 992 F.2d 249 (10th Cir. 1993), cert. denied, 114 S.

Ct. 184 (1993); see also Craig v. Gregg County, Texas, 988

F.2d 18 (5th Cir. 1993).4

In Baumgartner v. Harrisburg Housing Authority, 21

F.3d at 546-548, a group of public housing tenants sued

the local housing authority claiming that a plan for reno-

vating certain public housing facilities violated federal

housing statutes. While the lawsuit was pending, the

local authority revised its renovation plan with the ten-

ants’ approval, after which the district court dismissed

the case on the plaintiffs’ motion. In reversing the district

court’s denial of attorneys’ fees, the court of appeals

applied a two-part test for prevailing party status:

“whether plaintiffs achieved some of the benefit sought

in the lawsuit, even though the plaintiff does not ulti-

mately succeed in securing a favorable judgment,” and

4 In American Council of the Blind, a charitable organization

challenged a Colorado statute regulating solicitation by chari-

ties in the State. Before the court could rule on the merits of the

suit, the Colorado legislature passed amendments changing

some of the requirements in the statute, and the lawsuit was

eventually dismissed by agreement of the parties.. The court of

appeals upheld a denial of attorneys’ fees based on the district

court’s finding that the lawsuit did not prompt the statutory

changes and that, in any event, those changes did not “mate-

rially alter” the specific statutory provisions to which the plain-

tiffs had objected in their lawsuit. 992 F.2d at 251.

Craig concerned a challenge under Section 5 of the Voting

Rights Act, 42 U.S.C. 1973c, to a county districting plan. The

districting plan was subsequently revised in response to objec-

tions by the Department of Justice. Although embracing the

“catalyst” analysis, the court of appeals denied attorneys’ fees

because there was no evidence that the county revised its redis-

tricting plan in response to the plaintiffs’ lawsuit. 988 F.2d at 21.

whether “there is a causal connection between the litigation

and the relief from the defendant.” 21 F.3d at 546 (quoting

Wheeler v. Towanda Area Sch. Dist., 950 F.2d 128, 131 (3d Cir.

1991)). The court expressly rejected the claim that this

Court’s decision in Farrar abrogated the “catalyst” theory as

a basis for awarding fees under Section 1988. 21 F.3d at

547-548. Similarly, in Watkins v. Fordice, 7 F.3d at 456-457, the

Fifth Circuit upheld an award of attorneys’ fees to plaintiffs

who had filed suit seeking to enjoin elections in Mississippi

under the federal Voting Rights Act. Before the court could

act on the claim, the state legislature passed a new redistrict-

ing plan that satisfied the plaintiffs’ demands for the maxi-

mum number of electable black majority districts, which

mooted the plaintiffs’ claims. Although there was no final

judgment favorable to plaintiffs, the court of appeals ruled

that they qualified as prevailing parties because “the goals of

the lawsuit were achieved” and plaintiffs’ lawsuit was found

by the district court to be a “motivating factor” in the

enactment of the new redistricting plans. 7 F.3d at 456-457.

rhe plaintiffs in Paris v. HUD, 988 F.2d at 237, filed

suit claiming that an income mixing scheme for allocating

units in a public housing project violated federal housing

statutes and the Constitution. While the lawsuit was

pending, Congress passed a statute prohibiting the type

of income mixing scheme used by HUD, and specifically

referred to the Paris litigation in explaining the need for

the statute. HUD then voluntarily abandoned the income

mixing scheme at issue in the case to conform to the

statutory mandate, and the district court dismissed the

suit. The First Circuit reversed the district court’s denial

of attorneys’ fees under Section 1988. It explained that,

despite the absence of a final judgment in their favor,

Dee

plaintiffs qualified as “prevailing parties” in that their

lawsuit could be “fairly characterized as a catalyst” of the

Congressional amendment that led to the abandonment

of the income mixing scheme challenged in their suit. 988

F.2d at 241.

Finally, in Citizens Against Tax Waste v. Westerville City

School, 985 F.2d at 257-258, an association of property

owners filed suit under 42 U.S.C. 1983, claiming that a

school board’s policy requiring prior approval for per-

sons to speak at board meetings violated the First

Amendment. While the case was pending the board

revised its policy, and the court subsequently dismissed

the case as moot. The court of appeals held that an award

of attorneys’ fees under Section 1988 was appropriate

because the plaintiffs’ suit had brought about a revision

in the school board’s policy, and the plaintiffs had mate-

rially benefitted from the change. 985 F.2d at 257-258.

b. In Paris, Baumgartner, Watkins, and Citizens

Against Tax Waste, legislative action or the defendants’

voluntary change in conduct brought plaintiffs the bene-

fits sought in their lawsuit, and led to the dismissal of

their court action before final judgment could be ren-

dered. In this case, petitioners’ suit against the state

respondents was dismissed on grounds of prudential

mootness prior to the legislative changes that brought

petitioners the requested relief. As Judge Wilkinson him-

self concedes, App., infra, 28a n.2, the factual differences

among these cases is without significance to the funda-

mental question they present, on which the Fourth Cir-

cuit is at odds with her sister circuits. Under the standard

articulated by Judge Wilkinson and the en banc majority

in adopting his opinion, the plaintiffs in Paris, Baum-

gartner, Watkins, and Citizens Against Tax Waste, would

not be entitled to attorneys’ fees because none of them

had obtained a formal settlement, consent decree, or final

judgment in their favor.> Likewise, there is no doubt that

the award of attorneys’ fees to petitioners would have

been upheld in the four circuits discussed above, since

petitioners fulfilled all the requirements for attorneys’

fees as set forth in those cases. See, e.g., Watkins, 7 F.3d at

456; Baumgartner, 21 F.3d at 547; Citizens Against Tax

5 Judge Wilkinson expressed a willingness to distinguish

three “voluntary compliance” cases cited by the panel majority,

see App., infra, 30a-31a n.3, in which the plaintiffs succeeded in

obtaining a preliminary injunction based on the probability of

success on the merits, which injunction was subsequently dis-

solved after the defendants complied by ceasing the unlawful

conduct. See App., infra, 25a n.3 (citing Maloney v. Marietta, 822

F.2d 1023 (11th Cir. 1987); Taylor v. Ft. Lauderdale, 810 F.2d 1551

(11th Cir. 1987); Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980),

cert. denied, 450 U.S. 1012 (1981)). Judge Wilkinson suggested

that an award of attorneys’ fees in those cases might be appro-

priate on the theory that the dissolution of an injunction — where

that injunction was based on a determination that the defendant

had engaged in unlawful conduct — would not deprive the

plaintiffs of prevailing party status. He refused to accept the

panel majority’s contention, however, (App., infra, 30a-3la n.3

and note 1, supra) that the instant case, in which a favorable

district court decision had been vacated as moot, should receive

analogous treatment. Based on Judge Wilkinson’s discussion,

there is no reason to believe that the en banc majority would

extend prevailing party status to the plaintiffs in Paris, Bau-

mgartner, Watkins, and Citizens Against Tax Waste, who had

never obtained a preliminary injunction or any other ruling in

their favor.

Se = Sih aks

‘AES Rin, ire Aa

Waste, 985 F.2d at 257-258; Paris, 988 F.2d at 241.6 First,

petitioners achieved the goals of their lawsuit against the

state respondents, and the legal action was a “significant

catalyst” in bringing about the requested change in state

law and in respondents’ conduct. The district court made

a factual finding of a “distinct causal connection between

the harm [petitioners] sought to rectify by bringing suit

and the ultimate revision of North Carolina General Stat-

utes 115C-116 to conform to federal law.” App., infra, 44a.

That factual finding was not found to be erroneous by the

court of appeals panel, App., infra, 16a-18a, and, although

briefly questioned by Judge Wilkinson, id. at 30a, ulti-

mately was not disturbed by the en banc court. Id. at

3a-5a.

In addition, the revision in state law prompted by

petitioners’ suit brought about a clear change in the

“legal relationship” between petitioners and the state

respondents. That change provided petitioners with a

concrete benefit by assuring them that they could seek a

binding award of tuition reimbursement through the

® As the panel opinion for the court of appeals noted, see

App., infra, 19a-20a, petitioners’ claims also satisfied the

requirement, imposed by some courts of appeals, that the

requested change in the defendants’ conduct be “required by

law,” in the sense that the legal basis for the action not be

“groundless or frivolous.” See, e.g., Dunn v. The Florida Bar, 889

F.2d 1010, 1015 (11th Cir. 1989), cert. denied, 498 U.S. 811 (1990):

Guglietti v. Sec’y of HHS, 900 F.2d 397, 401 (1st Cir. 1990); Garcia

v. Guerra, 744 F.2d 1159, 1162 (5th Cir. 1984), cert. denied, 471

U.S. 1065 (1985); see also Paris, 988 F.2d at 241. Here, petitioners’

claims were far from frivolous; the DOE itself agreed that the

state statutory change authorizing hearing officers to award

reimbursement was required by the terms of the IDEA itself.

state hearing process for any violation of their rights

under the IDEA. See note 2, supra.

Thus, were it not for the en banc court’s rejection of

the catalyst theory, petitioners would have secured the

attorneys’ fees that both the district court and the Fourth

Circuit panel awarded to compensate petitioners for their

sustained efforts to enforce federal law over almost ten

years. This Court should grant review to reconcile the

conflicting views of the courts of appeals and to resolve

the important question of whether a plaintiff can recover

attorneys’ fees when a lawsuit is the “catalyst” for the

relief the plaintiff seeks.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Amy L. Wax, Esa. *A. FRANK JOHNS, Esq.

580 Massie Road BooTtH, HARRINGTON, JOHNS

Charlottesville, Va. 22903 AND CAMPBELL

(804) 924-7815 239 Edgeworth Street

Greensboro, N.C. 27401

(910) 275-9567

*Counsel of Record

for the Petitioners

BRIAN Wo LeMaAn, Esq.

Public Citizen Litigation

Group

2000 P Street N.W.

Suite 700

Washington, D.C. 20036

(202) 833-3000

APPENDIX

S-1 AND S-2, By and Through their parents

and Guardians Ad Litem, P-1 AND P-2; P-1 and

P-2, Individually, Plaintiffs-Appellees,

The STATE BOARD OF EDUCATION OF

NORTH CAROLINA; Barbara Tapscott,

Chairman, State Board of Education of North

Carolina, Defendants-Appellants,

and

C.D. Heidgerd, Hearing Officer, Asheboro City

Board of Education; The Asheboro City Board

of Education; Mary Smitherman, Defendants.

No. 92-1525.

United States Court of Appeals,

Fourth Circuit.

Argued March 8, 1994.

Decided April 4, 1994.

Parents of handicapped students brought action

under § 1°83 seeking tuition reimbursement and injunc-

tive and declaratory relief with respect to state board of

education’s refusal to allow hearing officers to award

tuition reimbursement. The United States District Court

for the Middle District of North Carolina, Frank W. Bull-

ock, Jr., Chief Judge, 650 F.Supp. 1427, granted summary

judgment for parents, and appeal was taken. The Court of

Appeals, 832 F.2d 294, found that parents’ settlement with

city board of education mooted appeal and remanded. On

remand, the District Court, awarded parents attorney fees

against state board, and appeal was taken. The Court of

Appeals, 6 F.3d 160 affirmed. Upon granting petition for

rehearing en banc, the Court of Appeals held that: (1)

plaintiff cannot be considered prevailing party under

§ 1988 except by virtue of having obtained enforceable

judgment, consent decree, or settlement giving some legal

relief sought in § 1983 action; (2) “catalyst theory” is no

longer available to establish plaintiff’s status as prevail-

ing party; and (3) dismissal of appeal on mootness

grounds operated to vacate judgment below and pre-

vented parents from being found prevailing parties by

virtue of postdismissal events.

Reversed.

Ervin, Chief Judge, and K.K. Hall, Phillips, Mur-

naghan, Hamilton, and Michael, Circuit Judges, dissen-

ted.

ARGUED: Edwin Marion Speas, Jr., Sr. Deputy Atty.

Gen., North Carolina Dept. of Justice, Raleigh, NC, for

appellants. A. Frank Johns, Jr., Booth, Harrington, Johns

& Campbell, Greensboro, NC, for appellees. ON BRIEF:

Lacy H. Thornburg, Atty. Gen. of NC, North Carolina

Dept. of Justice, Raleigh, NC, for appellants.

Before ERVIN, Chief Judge, and RUSSELL, WID-

ENER, HALL, PHILLIPS, MURNAGHAN, WILKINSON,

WILKINS, NIEMEYER, HAMILTON, LUTTIG, WIL-

LIAMS, and MICHAEL, Circuit Judges, sitting en banc.

Reversed by published per curiam opinion. Judges

RUSSELL, WIDENER, WILKINSON, WILKINS,

NIEMEYER, LUTTIG, and WILLIAMS voted to reverse

the district court. Chief Judge ERVIN and Judges K.K.

HALL, PHILLIPS, MURNAGHAN, HAMILTON, and

MICHAEL voted to affirm the district court.

sae ADIL Nase! eaten Sabet MN a BE isch,

cbaaiagsineniniahetete ngs dap Ra re

OPINION

PER CURIAM:

Plaintiffs, parents of handicapped students enrolled

in the Asheboro, North Carolina schools, filed this 42

U.S.C. § 1983 action in 1986 against the Ashebore City

Board of Education, the State Board of Education of

North Carolina, and the chairman of the State Board, C.D.

Spangler, Jr. Plaintiffs alleged that defendants had vio-

lated the Education of the Handicapped Act (“EHA”), 20

U.S.C. § 1400 et seq., by refusing to authorize hearing

officers to decide tuition reimbursement claims and to

order reimbursement in appropriate cases. Plaintiffs

therefore sought tuition reimbursement and injunctive

and declaratory relief. In December 1986, the district

court granted plaintiffs’ motion for summary judgment

on their claims for declaratory and injunctive relief

against all the defendants, reasoning that the EHA

required that state hearing officers possess the authority

to decide tuition reimbursement claims. See S-1 v. Span-

gler, 650 F.Supp. 1427 (M.D.N.C.1986).

While the appeal of the district court’s ruling was

pending, plaintiffs and the City Board reached a settle-

ment agreement under which the City Board would pay

the parents’ tuition expenses for their children and also

pay plaintiffs’ attorneys’ fees. The State Board and Span-

gler were not parties to this settlement agreement:

accordingly, the parents did not dismiss any of their

claims against the state defendants. Nonetheless, on

appeal, a panel of this court held for prudential reasons

that the settlement mooted the appeal because it gave

plaintiffs the reimbursement they sought. See S-1 v. Span-

gler, 832 F.2d 294, 296 (4th Cir.1987). This court therefore

vacated the district court’s summary judgment order and

remanded for a determination of plaintiffs’ entitlement, if

any, to attorneys’ fees from the state defendants. Id. at 298

and note 3.

After this court directed the district court to “dismiss

the remainder of the action as moot,” id. at 298, the Office

of Special Education and Rehabilitative Services of the

United States Department of Education (“OSERS”)

informed the State that federal education funds would be

withdrawn if the State did not amend its law to authorize

hearing officers to decide parents’ reimbursement claims.

Although the State had amended its special education

law in 1988 to permit hearing officers to recommend

tuition reimbursement decisions to the State Board,

OSERS objected to the 1988 amendments on the ground

that hearing officers still lacked the authority to make

binding decisions regarding reimbursements. In July

1990, almost three years after plaintiffs’ claims had been

declared moot, the State responded to OSERS’ threat by

enacting legislation giving administrative law judges the

authority to make binding decisions, subject to appeal,

regarding a child’s special education needs. See 1990

N.C.Sess.Laws ch. 1058 (July 28, 1990).

Shortly after North Carolina’s amendment of its hear-

ing procedure, the district court considered the propriety

of awarding attorneys’ fees to plaintiffs. On March 30,

1992, the district court assessed $30,143.18 in attorneys’

fees against the state defendants under 20 U.S.C.

§ 1415(e) and 42 U.S.C. § 1988. On appeal, a panel of this

court affirmed the district court’s award of attorneys’

ee ee ee

fees. See S-1 & S-2 v. State Bd. of Educ., 6 F.3d 160 (4th

Cir.1993). Judge Wilkinson dissented. See S-1, 6 F.3d at

168-72.

On October 21, 1993, the court granted the state

defendants’ petition for rehearing en banc. Upon a review

of the record and the briefs, and following oral argument,

a majority of the court voted to reverse the district court’s

award of attorneys’ fees. The court holds the following:

1. A person may not be a “prevailing party” plain-

tiff under 42 U.S.C. § 1988 except by virtue of having

obtained an enforceable judgment, consent decree, or set-

tlement giving some of the legal relief sought in a § 1983

action. Farrar v. Hobby, __ U.S. __, 113 S.Ct. 566, 121

L.Ed.2d 494 (1992).

ees eee ee eT .

eee ea

2. The fact that a lawsuit may operate as a catalyst

for post-litigation changes in a defendant’s conduct can-

not suffice to establish plaintiff as a prevailing party.

“Catalyst theory,” allowing that result, is no longer avail-

able for that purpose, see Farrar, ___ U.S. at __, 113 S.Ct.

) at 573-74, and cases such as Bonnes v. Long, 599 F.2d 1316

(4th Cir.1979), which applied that theory, are overruled.

3. Here, the dismissal on appeal of an action under

42 U.S.C. § 1983 for prudential reasons as moot operates

to vacate the judgment below, see United States v. Mun-

singwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950),

and prevents the plaintiffs from being found prevailing

parties by virtue of post-dismissal events. The plaintiffs

therefore are not entitled to an award of attorney fees

under 42 U.S.C. § 1988.

;

The court adopts as its own the dissenting panel

opinion of Judge WILKINSON. S-1, 6 F3d at 168-72.

Judges RUSSELL, WIDENER, WILKINSON, WILKINS,

NIEMEYER, LUTTIG, and WILLIAMS agree to the fore-

going parts of this opinion and its holding to reverse the

district court.

Chief Judge ERVIN and Judges HALL, PHILLIPS,

MURNAGHAN, HAMILTON, and MICHAEL respect-

fully dissent. They would hold that the district court

properly awarded attorneys’ fees in this case for the

reasons expressed in the majority opinion of the panel.

They therefore adopt Judge PHILLIPS’ majority opinion

of the panel as their own and would adopt it as the

opinion of the en banc court. S-1, 6 F.3d at 160-68.

The judgment of the district court is accordingly

REVERSED.

Bek T, LRN MM BAE NL aa a AIM IS i A Mil wt er

i ate i Tome Cina

S-1 and S-2, By and Through their parents

and Guardians Ad Litem, P-1 and P-2; P-1

and P-2, Individually, Plaintiffs-Appellees,

The STATE BOARD OF EDUCATION OF

NORTH CAROLINA; Barbara Tapscott,

Chairman, State Board of Education of North

Carolina, Defendants-Appellants,

and

C.D. Heidgerd, Hearing Officer, Asheboro City

Board of Education; the Asheboro City Board

of Education; Mary Smitherman, Defendants.

No. 92-1525.

United States Court of Appeals,

Fourth Circuit.

Argued Oct. 29, 1992.

Decided Sept. 21, 1993.

Rehearing En Banc Granted,

Opinion Vacated Oct. 21, 1993.

Parents of handicapped students sought tuition reim-

bursement and injunctive and declaratory relief with

respect to state board of education’s refusal to allow

hearing officers to award tuition reimbursement. The

United States District Court for the Middle District of

North Carolina, Frank W. Bullock, Jr., Chief Judge, 650

F.Supp. 1427, granted claims, and appeal was taken. The

Court of Appeals, 832 F.2d 294, found that settlement

with city board of education mooted action. On remand,

the parents sought attorney fee award as prevailing par-

ties. The District Court, Bullock, Chief Judge, awarded

attorney fees to parents, and appeal was taken. The Court

of Appeals, Phillips, Circuit Judge, held that postmoot-

ness events could serve to establish § 1983 plaintiffs as

prevailing parties for purposes of attorney fee award.

Affirmed.

Wilkinson, Circuit Judge, filed dissenting opinion.

Edwin Marion Speas, Jr., Sr. Deputy Atty. Gen., North

Carolina Dept. of Justice, Raleigh, NC, argued, (Lacy H.

Thornburg, Atty. Gen. of North Carolina, on brief), for

defendants-appellants.

A. Frank Johns, Jr., Booth, Harrington, Johns &

Campbell, Greensboro, NC, argued, for plaintiffs-appel-

lees.

Before ERVIN, Chief Judge, and PHILLIPS and

WILKINSON, Circuit Judges.

OPINION

PHILLIPS, Circuit Judge:

The essential issue presented is whether following

dismissal of an action under 42 U.S.C. § 1983 for pruden-

tial reasons as moot, the § 1983 plaintiffs may yet be

found prevailing parties by virtue of post-dismissal

events and therefore entitled to an award of attorney fees

under 42 U.S.C. § 1988. In this appeal by the State of

North Carolina from such an award, we find no error and

affirm.

Mech marcas Yard tlre CLiBs bin tec ib etaPaie Seb Biola

When this action began, S1 and S2 were handicapped

children enrolled in the Asheboro, North Carolina city

schools. In the fall of 1983, after notifying the principal at

the children’s public school of their intentions, their par-

ents enrolled them at their own expense in a private

school for one-half of each school day to receive special

education services.

The following school year, the parents demanded

that the Asheboro City Board of Education (City Board)

provide the children with an individualized education

program comparable to that provided at the children’s

private school or, alternatively, provide transportation

and tuition for the children to continue at the private

school for the 1984-85 school year. The parents premised

their demand on the Education of Handicapped Act

(EHA), which the parents claimed the City Board was

violating by failing to provide their children with the

“free appropriate public education” guaranteed by the

Act, 20 U.S.C. § 1412(1). The parents also demanded

tuition reimbursement for the 1983-84 school year, claim-

ing that the city schools failed to notify them during that

school year of their federal right to receive free special

education services as required by the EHA.

The City Board eventually placed the children appro-

priately in the city school system, but the City Board

refused the parents’ tuition reimbursement claim for the

1985-84 school year and for the period during the fall of

1984 before the City Board and parents negotiated a

placement. When the City Board denied their tuition

10a

reimbursement claim, the parents demanded a “due pro-

cess hearing” pursuant to N.C.Gen.Stat. § 115c-116, a

statute enacted pursuant to the EHA, 20 U.S.C.

§ 1415(b)(2). The appointed hearing officer, however,

declared that he lacked authority to award tuition reim-

bursement, or make findings of fact attendant to a tuition

reimbursement claim, and so refused to hear the parents’

complaint. The parents then petitioned the North Caro-

lina State Board of Education (State Board) to rule either

that the hearing officer had authority to hear their claim

or, alternatively, to amend the State regulations enacted

pursuant to the EHA to confer such authority on him. The

State Board denied the parents’ petition.

The parents then filed suit under 42 U.S.C. § 1983

against the City Board, the State Board and the chairman

of the State Board, C.D. Spangler, Jr., alleging the depri-

vation of procedural rights secured by the EHA and

applicable federal regulations, 34 C.F.R. § 104.31 et seq.

Relying primarily on School Committee of Burlington v.

Department of Education, 471 U.S. 359, 105 S.Ct. 1996, 85

L.Ed.2d 385 (1985), the parents alleged that the City

Board, acting by and through its duly appointed hearing

officer, had deprived them of procedural rights secured

by federal law when it refused to decide their tuition

reimbursement claim. The parents further alleged that the

State Board and Chairman Spangler had deprived them

of federally guaranteed procedural rights when it refused

to interpret or amend State regulations to permit the

hearing officer to decide their tuition reimbursement

claim. The parents sought to recover tuition expenses

from the City Board or, in the alternative, the following: a

lla

declaration that the State rules preventing hearing offi-

cers from deciding tuition reimbursement claims violated

the parents’ rights under federal law, an order enjoining

Spangler and the State Board from promulgating and

enforcing these rules, and an order compelling the City

Board and its hearing officer to conduct a hearing on this

particular reimbursement claim. The parents also sought

costs and attorneys’ fees from all defendants, under 42

U.S.C. § 1988 and 29 U.S.C. § 794a.

On December 31, 1986, the district court granted the

parents’ motion for summary judgment on the claims for

injunctive and declaratory relief, concluding that the

EHA required a state administrative hearing at which

parents could receive tuition reimbursement as appropri-

ate relief for violations of the Act. S-1 v. Spangler, 650

F.Supp. 1427 (M.D.N.C.1986). On the same day, the dis-

trict court issued an order directing the City Board and its

administrative hearing officer to conduct a hearing on the

parents’ claim for reimbursement, enter findings of fact

and conclusions, and, if appropriate, award reimburse-

ment; and enjoining Spangler and the State Board from

further interpreting North Carolina law in a manner

inconsistent with the court’s interpretation of the EHA.

Spangler, the State Board, the City Board, and the admin-

istrative hearing officer appealed the district court’s deci-

sion.

On September 24, 1987, while that appeal was pend-

ing, the parents and the City Board agreed to a partial

settlement of the case. Under the terms of this settlement

agreement, which the district court approved by order

entered the same day, the parents agreed to a voluntary

dismissal with prejudice of all their claims against the

12a

City Board, in return for the City Board’s agreement to

pay their accrued tuition expenses. The State Board and

its Chairman were not parties to the settlement agree-

ment, and the parents did not dismiss any of their claims

against them.

In light of these developments, we held for pruden-

tial reasons that the appeal was moot. In so doing, we

explained that:

We do not believe that the issues raised in this

appeal require immediate resolution because they

are capable of repetition yet likely to evade review.

Our conclusion is based in large part on a June 17,

1987 Letter Ruling, issued after submission of this

appeal by the Office of Special Education and

Rehabilitative Services (OSERS) of the United

States Department of Education, which has super-

visory authority over federal grant-in-aid monies

issued to the states under the EHA. The Letter

Ruling expressly endorses the holding of the dis-

trict court in this action, that the EHA requires

states to authorize their hearing officers both to

decide parents’ tuition reimbursement claims and

to order reimbursement where the conditions of

Burlington are satisfied. Given OSERS’s specific dis-

approval of the State Board’s current procedures,

we doubt that the precise conduct allegedly viola-

tive of federal procedural rights will recur; instead,

we would suppose that any remaining doubt about

the propriety of the current North Carolina pro-

cedures will be resolved shortly without judicial

interference. We assume, for the purposes of this

analysis, that the State Board and its Chairman will

comply in good faith with the OSERS Letter Rul-

ing.

S-1 & S-2 v. Spangler, 832 F.2d 294, 298 (4th Cir.1987).

CO OTST ee ree

13a

We therefore vacated the order of the district court

from which the state defendants had appealed, and

remanded with directions to determine “whether and in

what amounts attorney’s fees should be recoverable

against the state defendants,” and “to dismiss the remain-

der of the action as moot.” Id. (emphasis supplied). Our

assumption about the state defendants’ likely compliance

with the OSERS Letter Ruling was, as it turned out, too

sanguine — at least for a time. In 1988 the North Carolina

General Assembly did amend Section 115c-116 to allow

an administrative law judge presiding over a due process

hearing to recommend a decision to the State Board. Yet

the final decision remained with the Board, or with two

of its members designated to make the decision. 1988 N.

C. Sess. Laws ch. 1079 (July 8, 1988).

For this reason, OSERS objected to the revised stat-

ute, and threatened to withdraw some $5 million in fed-

eral education funds if the State did not comply with

federal law by June 30, 1990. Through legislation speci-

fically enacted to preserve these federal funds, the Gen-

eral Assembly again amended Section 115c-116 so that an

administrative law judge’s findings of fact and conclu-

sions of law would become final unless appealed to the

State Superintendent of Public Instruction. If there was

such an appeal, the Superintendent could appoint a disin-

terested educator to enter final findings of fact and con-

clusions of law. 1990 N.C.Sess.Laws ch. 1058 (July 28,

1990).

On March 30, 1992, the district court filed a mem-

orandum opinion and order which awarded $30,143.18 in

attorneys’ fees to the parents, reasoning that “by virtue of

Plaintiff’s complaint sufficient federal pressure was

14a

brought to bear on the State of North Carolina that Sec-

tion 115c-116 was amended to comply with federal law.”

The State Board now appeals this decision, arguing that

actions taken after this court declared the parents’ claim

moot cannot serve as a basis for declaring them prevail-

ing parties, that the amendments in question do not sup-

port such a determination, and that the OSERS letter

opinion was not in response to the parents’ claims and

was unimportant if it was.

At the outset, we reject the State’s apparent conten-

tion that post-mootness events never can serve to estab-

lish § 1983 plaintiffs as prevailing parties for § 1988

attorney fee award purposes. Rhodes v. Stewart, 488 U.S. 1,

109 S.Ct. 202, 102 L.Ed.2d 1 (1988), upon which the State

relies for this position, does not support any such abso-

lute rule. In that case, it was belatedly realized that before

the district court had entered a declaratory judgment in

favor of two State prison inmates claiming unconstitu-

tional prison conditions, one had died and the other had

been paroled. Because this constitutionally mooted the

action, the Supreme Court, where the mooting circum-

stances were first realized in the course of reviewing an

attorney fee award made to the two plaintiffs, held that

neither could be found a prevailing party since neither

could realize any benefit from the judgment on the

merits. Id. at 3, 4, 109 S.Ct. at 202, 203

This obviously does not stand for the proposition

that once mooting of a § 1983 action occurs, the plaintiffs

in the action can never be prevailing parties on the basis

5s edie Pe

15a

of later out-of-court developments. Mooting may have

that effect, as it did in Rhodes where the mooting events

made it impossible for the plaintiffs to prevail in the most

basic sense of realizing any of the benefits sought in the

action. But it need not. Whether it does or not is deter-

mined by making the established causation-centered test

of prevailing party status applied in such cases as Bonnes

v. Long, 599 F.2d 1316 (4th Cir.1979) (Bonnes I). As formu-

lated in that decision, the test requires an

inquiry [that] is properly a pragmatic one of

both fact and law that will ordinarily range out-

side the merits of the basic controversy. Its ini-

tial focus might well be on establishing the

precise factual/legal condition that the fee

claimant has sought to change or affect so as to

gain a benefit or be relieved of a burden. With

this condition taken as a benchmark, inquiry

may then turn to whether as a quite practical

matter the outcome, in whatever form it is real-

ized, is one to which the plaintiff fee claimant’s

efforts contributed in a significant way, and

which does involve an actual conferral of bene-

fit or relief from burden when measured against

the benchmark condition.

Id. at 1319.

In applying this test we have held that “to get a truer

picture of a plaintiff’s success [courts] should look out-

side the final judgment to voluntary actions taken by a

defendant so long as those actions are causally connected

to the litigation.” Spencer v. General Elec. Co., 894 F.2d 651,

662 (4th Cir.1990). And if the inquiry so conducted

reveals that the § 1983 action acted as a catalyst for a

defendant’s actions ultimately favorable to the plaintiff,

16a

the requisite causal connection may be found on that

basis. DeMier v. Gondles, 676 F.2d 92, 93 (4th Cir.1982).

In making its determination that plaintiffs here were

prevailing parties, the district court carefully and speci-

fically applied the Bonnes I test as elaborated in Spencer

and DeMier. In reviewing that decision, we start with

deference to that court’s “ringside view of the relevant

conduct of the parties and of the underlying legal dis-

pute,” Alexander v. Cheverly, 953 F.2d 160, 162 (4th

Cir.1992), and proceed on the basis that “[i]n view of the

specter of satellite litigation over attorneys’ fees, appel-

late review of lower court decisions in this area, appro-

priately, is limited.” Id. at 161.

Our review reveals no error in the court’s decision.

The § 1983 action in behalf of S-1 and S-2 claimed that

North Carolina’s 1985 due process procedures violated

the EAHCA in ways that deprived them of benefits to

which that statutory program entitled them. The district

court’s December, 1986 judgment in the parents’ favor

provided the basis for the OSERS Letter Ruling issued in

response to an inquiry respecting a similar situation in

June 1987.! While the district court’s decision may not

have “prompted OSERS to issue an official policy state-

ment” as the district court explained, it certainly shaped

or at least influenced the OSERS Letter Ruling and

thereby its policy in a significant way. With OSERS thus

essentially adopting the parents’ position and promising

! The OSERS Letter Ruling was in response to the inquiry of

a Vermont attorney whose clients had been denied reimburse-

ment because the Vermont state reviewing officer had held she

had no authority to grant such relief.

is Sad

17a

to enforce it, that the State would eventually provide the

due process amendments the parents sought became

almost a foregone conclusion.

As the parents argue and the district court implicitly

recognized, the chain of causation between the § 1983

action’s commencement, the district court’s original deci-

sion in the parents’ favor, the OSERS Letter Ruling and

the State’s eventual compliance with it was in no way

affected by our mooting of the underlying § 1983 action

for prudential reasons. Indeed, our opinion finding the

action moot recognized and was in part based on the

recognition that this causal chain would remain intact,

and that OSERS would probably force the State to comply

if it refused to do so.

The State urges that its unwillingness to make those

changes the parents and OSERS sought, and the fact that

it eventually made them only to preserve federal educa-

tion funding, should be taken as indications that the

parents’ suit played no part in the State’s actions. “To be

pragmatic,” the State argues, “a dead lawsuit has no

motivational value compared to $50,000,000 (sic).” Of

course, what the State refuses to acknowledge here is that

the parents’ lawsuit was at least partly responsible for

OSERS threatening to withdraw the federal education

funding.

To begin with, the parents’ suit and its success in the

district court must have alerted OSERS to the State’s non-

complying position, perhaps focusing federal attention

on the State earlier than it otherwise would have

occurred. More crucially, though, the district court’s opin-

ion clearly played a major causative role in the OSERS

18a

Letter Ruling and thereby the Department of Education’s

policy position. Both the timing of the district court’s

opinion and the text of the Letter Ruling itself confirm

the opinion’s import.

In responding to the initial inquiry which prompted

the Letter Ruling, OSERS on November 3, 1986 indicated

that since “the matter you present will require a substan-

tial review of legislative history and case law, as well as a

thorough analysis of policy implications for each of the

other states,” OSERS would need sixty days to provide a

substantive response. On December 31, 1986, the district

court handed down its opinion on precisely the issue

OSERS was deciding. The Letter ruling, issued by OSERS

on June 17, 1987, relied heavily on the decision by the

district court. Over a third of the text of response was

devoted to a discussion of this decision, and OSERS con-

cluded that “[t]he court’s reasoning in the Spangler deci-

sion is sound. . . . OSERS concurs with the reasoning

adopted by Judge Bullock in his Spangler decision and

shares his opinion that EHA-B requires States to autho-

rize its hearing officers to decide reimbursement claims

in an impartial due process proceeding .. . ”

Given these causal links between the parents’ suit

and OSERS’ actions, the State’s insistence that it changed

position only to preserve federal funding amounts essen-

tially to an admission that the parents’ suit did signifi-

cantly impact State law, achieving through OSERS

pressure what it had originally and successfully sought in

the district court. The State’s position as now stated only

underscores the fact that it would not have changed

without the federal pressure, and thus would not have

ameliorated its position without the parents’ suit.

19a

Finally, the State contends that even if the parents’

suit was a significant causal factor in the 1988 and 1990

legislation, the legislation itself was not “required by

law,” and thus under Dunn v. The Florida Bar, 889 F.2d

1010, 1015 (11th Cir.1989), cert. denied, 498 U.S. 811, 111

S.Ct. 46, 112 L.Ed.2d 22 (1990), the parents were not

prevailing parties for purposes of attorneys’ fees. The

State’s argument that the legislation was not required by

law is essentially that 20 U.S.C. § 1415(b)(2) provides that

parents “shall have an opportunity for an impartial due

process hearing” and that “[n]o hearing conducted pur-

suant to the requirements of this paragraph shall be con-

ducted by an employee of such agency or unit involved

in the education or care of the child.” The State’s position

is that because the Board of Education is composed of

“constitutional officers” and not “employees,” the provi-

sions of § 1415(b)(2) were improperly applied and the

changes the State made were not “required by law” as

Dunn held necessary.

In Dunn, however, the Eleventh Circuit explained

what it meant in “required by law” by referring to a pair

of earlier Fifth Circuit cases. In these, the Fifth Circuit

held that “appellants need only show that the action

taken by the appellees was ‘not a wholly gratuitous

response to an action that in itself was frivolous or

groundless.’ (citation omitted). A claim is not frivolous if

it is arguably supported by case or statutory law.” Garcia

v. Guerra, 744 F.2d 1159, 1163 (5th Cir.1984), cert. denied,

471 U.S. 1065, 105 S.Ct. 2139, 85 L.Ed.2d 497 (1985). “[A]

plaintiff who brings an action that has no colorable, or

even reasonable, likelihood of success on the merits is not

entitled to recover attorney’s fees if the defendant simply

20a

complies with the plaintiff’s demands and moots the case

for reasons that have nothing to do with the potential

merit of the suit. Whether activated by economic, politi-

cal, or purely personal concerns, a defendant may choose

voluntarily to make the change sought in the suit rather

than undergo protracted and expensive litigation.” Hen-

nigan v. Ouachita Parish School Bd., 749 F.2d 1148, 1153 (5th

Cir.1985).

Clearly, the State did not voluntarily make any

changes to avoid litigation in this case; and just as clearly,

the changes the parents and OSERS sought and that the

State made were at least “arguably supported by case or

statutory law” so as not to be frivolous claims on the

parents’ part. Whether State Board members are “consti-

tutional officers” or “employees” hardly seems to

impinge upon their impartiality, which is the concern of

§ 1415(b)(2). For purposes of attorneys’ fees, the State’s

changes were “required by law,” or made in response to a

colorable claim.

Itt

Since we heard oral argument in this appeal, the

Supreme Court has decided Farrar v. Hobby, __ U.S. __,

113 S.Ct. 566, 121 L.Ed.2d 494 (1992), in which it was held

that plaintiffs who had won only a dollar from one of six

defendants in a suit seeking seventeen million dollars

were “prevailing parties” under § 1988, but that a fee

award of $280,000 was unreasonable given their only

nominal success. In its general discussion of prevailing

party status, the Court explained that

teh tn inst Mee ibe

De ee ee ew ee ernaninenshts sient

21a

to qualify as a prevailing party, a civil rights

plaintiff must obtain at least some relief on the

merits of his claim. The Plaintiff must obtain an

enforceable judgment against the defendant from

whom fees are sought. Hewitt, supra, 482 U.S., at

760, 107 S.Ct., at 2675, or comparable relief through

a consent decree or settlement, Maher v. Gagne, 448

U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d

653 (1980). Whatever relief the plaintiff secures

must directly benefit him at the time of the

judgment or settlement. See Hewitt, supra, 482

U.S., at 764, 107 S.Ct. at 2677. Otherwise the

judgment or settlement cannot be said to

“affec[t] the behavior of the defendant toward

the plaintiff.” Rhodes, 488 U.S., at 4, 109 S.Ct., at

203. Only under these circumstances can civil

rights litigation effect “the material alteration of

the legal relationship of the parties” and thereby

transform the plaintiff into a prevailing party.

[Texas State Teachers Ass’n v.] Garland [Indep. Sch.

Dist.], supra, 489 U.S. [782], at 792-793, 109 S.Ct.

[1486], at 1493 [103 L.Ed.2d 866 (1989)] [(1989)].

In short, a plaintiff “prevails” when actual relief

on the merits of his claim materially alters the

legal relationship between the parties by mod-

ifying the defendant’s behavior in a way that

directly benefits the plaintiff. (emphasis added).

Id. at, 133 S.Ct. at 573.

In a post-argument filing at our request, the State

contends that in this passage - particularly the empha-

sized portions — the Supreme Court has now rejected the

“catalyst theory” of “prevailing party” status, as recog-

nized and applied, for example, in our Bonnes I, DeMier,

and Spencer decisions, and now in Part II of this opinion.

Under Farrar’s plain dictate, says the State, a § 1983

22a

claimant can now be found a prevailing party only if his

action terminated in an “enforceable judgment against

the defendant . . . or [produced] comparable relief

through a consent decree or settlement.” Here, continues

the State, there has been neither a consent decree nor a

settlement, and the only judgment obtained against the

State-defendants was vacated on mootness grounds and

therefore is not enforceable.

We disagree. We do not believe that, properly read,

Farrar rejects the catalyst theory of prevailing party sta-

tus. If the one sentence in Farrar that specifies “enforce-

able judgment, consent decree, or settlement” is lifted out

of context and treated as being all the Court said on the

subject, it surely could be read as at least an oblique

death-knell for the catalyst theory. But the context as

defined by the actual issue before the Farrar Court and by

what else the Court said on the subject belies any such

drastic reading.

Given the importance that the catalyst theory long

has had in prevailing party doctrine under 42 U.S.C.

§ 1988, we would expect that if the Court intended to

hold it no longer a viable theory it would address the

issue head-on in a case in which it was dispositive.? That

2 And with a careful elaboration of reasons rather than the

cryptic passage of dicta which the dissent says we should read

as a “decision that controls this case,” Dissenting Op. at 172. The

implausibility of reading that much into it is best illustrated by

the very form and extent of the dissent’s effort to demonstate

why we should. Rather than simply resting on the plain text of

the passages, which we are told at the start suffices, see id. at 167,

the dissent is then largely and lengthily devoted (Part II, with

sub-Parts A, B. C and D), to explaining why catalyst theory is

;

{

23a

was not so in Farrar. The theory’s viability was not an

issue in Farrar, where plaintiffs had obtained a final judg-

ment, and therefore had no need to invoke “catalyst”

theory. The issues in Farrar were simply whether (1) a

claimant who recovers only nominal damages can ever be

considered a “prevailing party”, and (2) if so, whether the

hefty fee award there at issue could be upheld as a

“reasonable” one under § 42 U.S.C. § 1988. The Court

never mentioned the catalyst theory, and the passage

upon which the State relies occurs, as dicta, in a general

discussion of “prevailing party” status.

Furthermore, several earlier decisions of the Court

that were cited in Farrar as authoritative on the general

issue of prevailing party status, see id.__ U.S. at __, 113

S.Ct. at 572-73, had either expressly or tacitly recognized

the catalyst theory’s viability, or reserved decision on its

exact contours. See Hanrahan v. Hampton, 446 U.S. 754,

758, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980) (per

curiam) (noting legislative history which “indicates that a

person may in some circumstances be a ‘prevailing party’

bad theory that should be discarded. Id. at 168-71. The sugges-

tion must be that all this was implicit in the Farrar dicta, for

otherwise the position it advances is flatly foreclosed by long-

settled circuit (and general) precedent. But the Farrar Court, of

course, never intimated that it was engaged in any such thor-

oughgoing reexamination of catalyst theory. Were it to do so, it

is just such an explanation as the dissent gratuitously offers in

this case that we would expect - and, with all respect, are

entitled to expect - when the Court is about something as

important as the dissent claims for it here. We think we show

respect rather than disrespect for the Court and its processes,

and for the values of stare decisis, when we act on that expecta-

tion.

24a

, mf

without having obtained a favorable ‘final judgment

... or “without formally obtaining relief”); Hensley v.

Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76

L.Ed.2d 40 (1983) (case remanded specifically to consider

whether claimant's “lawsuit was not a catalyst” for

achieving favorable result on issue actually decided

against claimant); Kentucky v. Graham, 473 U.S. 159, 165 n.

9, 105 S.Ct. 3099, 3104 n. 9, 87 L.Ed.2d 114 (1985) (“we

express no view as to the nature or degree of success

necessary to make a plaintiff a prevailing party”); Hewitt

v. Helms, 482 U.S. 755, 763, 107 S.Ct. 2672, 2677, 96

L.Ed.2d 654 (1987) (“[w]le need not decide the circum-

stances, if any, under which this ‘catalyst’ theory could

justify a fee award”). We do not believe that had the

Court intended in Farrar to abrogate a theory this well-

established, it would have cited without comment these

earlier decisions which, as a matter of course, recognized

its existence and utilization.

Finally, we note that this view of Farrar’s non-impact

upon the catalyst theory is shared by three other circuits

which, since that decision, have had occasion to apply the

theory with explicit awareness of Farrar’s discussion of

prevailing party doctrine. See Paris v. U.S. Dept. of Hous-

ing & Urban Dev., 988 F.2d 236, 241 (1st Cir.1993) (fee

award upheld on basis that plaintiff’s suit, though unsuc-

cessful on only issue litigated, was “fairly characterized

as a catalyst”, citing Farrar’s discussion); Citizens Against

Tax Waste v. Westerville City School, 985 F.2d 255, 258 (6th

Cir.1993) (denial of fee award reversed because justified

on catalyst theory; district court error excused on basis

that Farrar “was not available . .. at the time [of] its

decision”); Craig v. Gregg County, 988 F.2d 18, 21 (5th

ne a

P did Wavikiend saben take» tei,

25a

Cir.1993) (difficulty created by Farrar language noted, but

found overcome by “[a] more precise reading” which

contemplated continued viability of catalyst theory).

We therefore reject the State’s contention that Farrar

has made it no longer proper to find prevailing party

status on a catalyst theory, and we therefore stand on our

application of that theory in Part II of this opinion.

3 The contention might also be rejected on the alternative

basis that the finding of prevailing party status here is not

dependent upon availability of the catalyst theory in the first

place. As indicated in Part II, the plaintiff here did actually

obtain an enforceable judgment against the state defendants on

the critical issue litigated. And as further indicated there, we do

not believe that the later vacatur of that judgment upon our

dismissal of the appeal as moot for prudential reasons should

have any effect on the plaintiffs’ entitlement to a fee award as

prevailing parties. The critical reference point for assessing pre-

vailing party status in a fully litigated case is upon entry of the

primary judgment on the merits of the case. A later appellate

reversal or vacatur of such a favorable judgment on the merits

obviously requires reversal or re-examination of a prevailing

party determination based upon it. But not one, such as that

here, which was not on the merits. Cf. Maloney v. Marietta, 822

F.2d 1023 (11th Cir.1987) (preliminary injunction in voting rights

case vacated as moot following voluntary compliance by defen-

dants; fees properly awarded to plaintiffs as prevailing parties);

Taylor v. Ft. Lauderdale, 810 F.2d 1551 (11th Cir.1987) (same,

where City passed mooting ordinance following entry of pre-

liminary injunction); Williams v. Alioto, 625 F.2d 845 (9th

Cir.1980), cert. denied, 450 U.S. 1012, 101 S.Ct. 1723, 68 L.Ed.2d

213 (1981) (same, where police voluntarily ceased enjoined con-

duct while preliminary injunction on appeal).

The dissent’s contention that the vacatur for mootness here

should be thought to wipe out the “enforceable judgment” for

fee award purposes, Dissenting Op. at 168, has an ironic and

illogical twist worthy of note. Our dissenting brother joined in

26a

Having found no error in the district court’s deter-

mination that the parents were prevailing parties entitled

under 42 U.S.C. § 1988 to attorneys’ fees, we affirm.

AFFIRMED.

WILKINSON, Circuit Judge, dissenting:

I cannot subscribe to the majority’s evisceration of

the Supreme Court’s decision in Farrar v. Hobby, __ U.S.

__, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). The language of

Farrar is plain: “[T]o qualify as a prevailing party .. . [t]he

plaintiff must obtain an enforceable judgment . . . or

comparable relief through a consent decree or settle-

ment.” Id. at _. , 113 S.Ct. at 573. “Whatever relief the

plaintiff secures must directly benefit him at the time of

the judgment or settlement.” Id. (emphasis added). “Only

under these circumstances can civil rights litigation effect

‘the material alteration of the legal relationship of the

the panel decision that directed vacatur of the judgment against

the state defendants on mootness grounds, but that remanded

with express directions for a determination whether fees should

be awarded. See 832 F.2d at 298. Unless we are prepared to

believe him capable of cruel hoax — which obviously we aren’t —

this must indicate that he didn’t at the time think the vacatur

would make fee award inappropriate. Even if Farrar in the

interval were read to require an “enforceable judgment” (or

settlement), nothing in that opinion touches the question of the

effect of a mootness vacatur on such a judgment once obtained.

The exact language in Farrar is “obtain an enforceable judg-

ment;” it doesn’t add “that is still in effect at the time of fee

award.” If the Farrar passage deserves the literal reading for

precedential purposes that the dissent claims for it, it deserves

that reading throughout.

an ee ee ae eee. ee ae

> ale lian.

27a

parties’ and thereby transform the plaintiff into a prevail-

ing party.” Id. (emphasis added). “No material alteration

of the legal relationship between the parties occurs until

the plaintiff becomes entitled to enforce a judgment, con-

sent decree, or settlement against the defendant.” Id. at

__, 113 S.Ct. at 574 (emphasis added).!

Each of the above statements is now rendered meaning-

less by the majority’s direction to district courts to “look

outside the final judgment” and beyond “the merits of the

basic controversy” in awarding attorneys’ fees under § 1988.

Majority Op. at 164. With respect, the resemblance between

the Supreme Court’s view of fee recovery and that of the

majority quite eludes me. Farrar states that without a demon-

strated legal entitlement, plaintiffs cannot be deemed to have

prevailed. The majority states that, notwithstanding Farrar,

vague “catalyst” theories of causation continue to control

who is a prevailing party under 42 U.S.C. § 1988. There is no

way, however, that Farrar and a broad “catalyst theory” of

1 The majority discards as “dicta” and dismisses as “cryp-

tic” this extended discussion on the part of the Supreme Court

whose meaning could not be more clear. See Majority Op. at

166-67 n. 2. We are entitled to disregard it, the majority says,

because the Supreme Court failed to utter the words “catalyst

theory” in the course of its discussion or to elucidate its reason-

ing in a manner sufficiently “careful” to satisfy the majority. See

id. The majority makes no attempt to reconcile the Supreme

Court’s opinion with the continued existence of “catalyst the-

ory.” With all respect, this is a nervy course - while a circuit

court is necessarily entrusted with the interpretation and appli-

cation of Supreme Court pronouncements, it is not empowered,

sua sponte, to set them aside.

28a

attorneys’ fees recovery can be reconciled.? I shall first

address the particulars of this case, and then turn to a

broader critique of the catalyst theory upon which the

majority rests its case.

Plaintiffs in this case fall short of meeting the rule

laid down in Farrar. They obtained a judgment on the

merits of their claim, but that judgment is no longer

enforceable. The judgment’s vacatur on appeal renders it

a legal nullity. See S-1 v. Spangler, 832 F.2d 294 (4th

Cir.1987). Farrar is explicit on this point: “[t]he plaintiff

2 The cases from other circuits cited by the majority are no

more persuasive in resuscitating catalyst theory. With all due

respect, those cases fail to come to grips with Farrar’s ruling that

“{nJo material alteration of the legal relationship between the

parties occurs until the plaintiff becomes entitled to enforce a

judgment, consent decree, or settlement against the defendant.”

___ U.S. at __, 113 S.Ct. at 574. Paris v. HUD, simply ignores

Farrar’s requirement of a legal victory, citing the case only in

passing. 988 F.2d 236, 238 (1st Cir.1993). Citizens Against Tax

Waste v. Westerville City School quotes Farrar’s standard in a

footnote, but nonetheless invokes Farrar in support of a pure

catalyst theory to reverse a district court denial of fees. 985 F.2d

255, 258 and n. 3 (6th Cir.1993). In sum, the cases cited by the

majority do not come to terms with the inconsistency between

Farrar and catalyst theory. I would not follow their example.

Finally, in Craig v. Gregg County, the court acknowledged

the conflict between Farrar and catalyst theory, but skirted the

issue by finding as a matter of fact that plaintiff had not been a

catalyst for the county’s reconfiguration of a voting precinct.

988 F.2d 18, 21 (5th Cir.1993) (“A more precise reading of Farrar

... might suggest that a party may prevail [via catalyst theory],”

(emphasis added) but plaintiff “has not shown that his suit

caused [the defendant’s change in conduct].”).

29a

must obtain an enforceable judgment against the defendant

from whom fees are sought.” ___ U.S. at __, 113 S.Ct. at 573

(emphasis added). Plaintiffs certainly have prevailed

against the City Board via their settlement, but the State

Board has not settled and there is no judgment remaining

against it.

In crediting plaintiffs’ vacated judgment against the

State Board, the majority effectively deprives the state

defendants in this case of their right to an appeal. And by

adopting a porous standard for prevailing party status -

that a plaintiff’s position be “arguably supported by case

or statutory law,” Majority Op. at 165 - the majority

subjects these defendants to liability for attorneys’ fees

without offering them the opportunity to refute the

claims asserted against them. There is a virtue in the

recognition that the vindication of legal rights is the

proper end of all litigation. Without an enforceable judg-

ment or settlement, however, it becomes difficult to dis-

cern what legal rights of plaintiffs have been violated or

vindicated. This court properly recognized in its earlier

decision that defendants had raised a constitutional issue

of real “difficulty and sensitivity” involving “the power

of the federal courts, acting within the constraints of the

eleventh amendment, to interfere by injunction with the

internal process of a state administrative agency.” Span-

gler, 832 F.2d at 298. The defendants in this case continue

to insist that their view of the Individuals with Disabil-

ities Education Act is the legally correct one. The majority

never says otherwise — in its view all that is required to

award attorneys’ fees against these defendants is for

plaintiffs to state a “colorable claim” Majority Op. at 166.

30a

The majority attempts to explain away plaintiffs’ fail-

ure to secure an enforceable judgment by writing off as

“dicta” the rule laid down in Farrar, Majority Op. at 167.

The majority instead clings to a broad catalyst standard

for recovery of attorneys’ fees under 42 U.S.C. § 1988. The

causal story recounted by the majority in this case dem-

onstrates the tenuous connection between a lawsuit and

changes in conduct that will suffice to subject defendants

to liability for attorneys’ fees under catalyst theory. Plain-

tiffs are found here to have been a “catalyst” for changes

made by the State because (1) OSERS agreed with plain-

tiffs’ legal position in a Letter Ruling in an unrelated case,

and (2) the State amended its laws three years after

plaintiffs’ case was mooted, in response to the threatened

loss of five million dollars in federal funding.

Even under the expansive standards of catalyst the-

ory, this evidence of causation is astonishingly thin.

Plaintiffs’ lawsuit lost whatever force it had as a catalyst

the day it was mooted by this court. I do not understand

how moot lawsuits, in which the possibility of relief

against a party is by definition foreclosed, continue none-

theless to function as catalysts for change and for the

recovery of attorneys’ fees. In this sense, the majority has

stood finality on its head — the “prevailing party” stan-

dard in 42 U.S.C. § 1988 requires that we consult the

confines of a case, not plumb the legal hereafter.*

3 The “voluntary compliance” cases cited by the majority,

see Majority Op. at 167 n. 3, are easily distinguishable from the

instant case. The cases relied on by the majority reflect only the

principle that when a plaintiff is successful in obtaining a pre-

liminary injunction based on its probability of success, the

defendant’s voluntary cessation of unlawful conduct need not

II.

Quite apart from the difficulties of applying catalyst

theory to this particular case, | cannot agree with the

majority’s vocal endorsement of catalyst theory as a

means of determining prevailing party status under

§ 1988. The problems with that theory are prodigious.

First, the catalyst theory of fee recovery conflicts with

the plain language of § 1988 itself. Section 1988 allows

awards of reasonable attorneys’ fees to a “prevailing

party,” not simply to anyone who influences a change in

behavior or policy. 42 U.S.C. § 1988 (emphasis added).

deprive plaintiffs of prevailing party status. That is quite differ-

ent from our case, where the change in conduct occurred in

response to a third-party’s view after we declared the lawsuit

moot, where we have never adjudged the state’s conduct to be

unlawful, and where we explicitly credited defendants with

raising a complex question of federal law which we then

declined to address. The inappropriateness of an attorney’s fee

award against defendants in this latter set of circumstances

should be apparent.

The majority purports to see some inconsistency between

my position here and my joining the earlier remand to the

district court to determine whether fees should be awarded. See

id. The very terms of the remand presupposed, however, that

the basis for any award would return here for review. Further,

the earlier decision itself emphasized that “[b]y remanding we

of course express no view on the parents’ entitlement to costs

and attorney’s fees against the state defendants.” 832 F.2d at 298

n. 3. I make no apologies for following a Supreme Court deci-

sion that has issued between the last appeal and the disposition

of this one. Indeed, if the majority believed Farrar to be persua-

sive authority, it presumably would follow it too.

32a

For individuals to recover fees, they must prevail in their

status as parties, not in their role as agents of reform.

And to prevail for § 1988 purposes, parties must succeed

on the merits of a claim. Farrar, _ U.S. at ___, 113 S.Ct.

at 573. In other words, success must be something but-

tressed by a court’s authority or required by a rule of law.

The lawsuit must materially alter the “legal relationship”

between plaintiffs and defendants. See Texas State Teachers

Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 109

S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989). Farrar makes

plain that “[n]Jo material alteration of the legal relation-

ship between the parties occurs until the plaintiff

becomes entitled to enforce a judgment, consent decree,

or settlement against the defendant.” ___ U.S. at __, 113

S.Ct. at 574.

Second, catalyst theory ignores the Supreme Court’s

recent decisions. The majority says it is inconceivable that

Farrar ever intended to disturb something so “well-estab-

lished” as the catalyst theory for the recovery of attor-

neys’ fees. Majority Op. at 167.4 Far from overturning a

4 In this context, the majority’s reference to Hensley v.

Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1923, 1939, 76 L.Ed.2d 40

(1983), as being a “case remanded s, ecifically to consider

whether claimant’s ‘lawsuit was not a catalyst’ for achieving a

favorable result,” Majority Op. at 167, is anything but an

endorsement of catalyst theory. That case involved an award to

a “partially prevailing plaintiff” who had actually obtained a

judgment on the merits. Hensley, 461 U.S. at 426-28, 103 S.Ct. at

1935-36. The issue of prevailing party status simply was not

raised.

OE AD MEAs 6 1 ind ag elma iis = AMI a

on.

“well-established” theory, however, Farrar’s specification

of judgments, consent decrees, and settlement agree-

ments as the exclusive avenues to prevailing party status

under § 1988 follows from prior Supreme Court caselaw.

Before Farrar, the Court had noted a supposed fourth

avenue. In Hewitt v. Helms, 482 U.S. 755, 760-61, 107 S Ct.

2672, 2675-76, 96 L.Ed.2d 654 (1987), the Court observed

that a § 1988 fee award could be justified if a lawsuit

produced a voluntary “change in conduct” by a defen-

dant that redressed a plaintiff's grievance. With this lan-

guage, however, the Court did not endorse catalyst

theory; it specifically reserved judgment on that question.

482 U.S. at 763, 107 S.Ct. at 2677. Nor did the Court's

language extend the ways to attain prevailing party sta-

tus beyond the three situations later listed in Farrar. Far-

rar’s inclusion of settlements between parties

encompasses both monetary settlements and agreements

to a change in conduct. See Farrar, ____ U.S. at __, 113

S.Ct. at 573; see also Hewitt, 482 U.S. at 760, 107 S.Ct. at

2675. A plaintiff securing such a settlement can certainly

be deemed to have prevailed in the absence of a formal

judgment. See Hewitt, 482 U.S. at 761, 107 S.Ct. at 2676.

Farrar merely clarified Hewitt by stressing that a volun-

tary change in conduct must be formalized in a legally

enforceable settlement agreement to transform a plaintiff

into a prevailing party for purposes of § 1988.

Other cases have similarly clarified Hewitt. For exam-

ple, Hewitt stated that the change in a defendant's con-

duct must redress a grievance. 482 U.S. at 761, 107 S.Ct. at

2676. Cases since Hewitt have narrowed this idea of griev-

ance to make it a legal grievance. See Garland, 489 U.S. at

792-93 (focusing on the change in “legal relationship”);

34a

Rhodes v. Stewart, 488 U.S. 1, 3-4, 109 S.Ct. 202, 203, 102

L.Ed.2d 1 (1988) (per curiam) (holding that plaintiffs did

not prevail when they were no longer in custody and

judgment provided them with no legal relief). In other

words, the change in conduct must be enforceable in

court, not merely gratuitous. Farrar’s specification of the

three avenues by which a party can prevail for § 1988

purposes does no more than continue the process of

refining Hewitt. In its embrace of catalyst theory, the

majority not only ignores Farrar, it bucks a clear decisio-

nal trend.

Third, the catalyst theory of fee recovery engenders

confusion and unnecessary litigation. By providing a

clear rule for achieving prevailing party status, Farrar

promises to reduce litigation over attorneys’ fees. The

majority’s concern over the “specter of satellite litiga-

tion,” is well-founded, Majority Op. at 164, but the cata-

lyst theory adopted by the majority then proceeds to

exacerbate that very problem. Too frequently, legal battles

over attorneys’ fees merely add another round of pro-

tracted litigation to what already has been protracted

litigation on the merits of a claim. Compare Hensley v.

Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76

L.Ed.2d 40 (1983) (“A request for attorney’s fees should

not result in a second major litigation.”). This collateral

litigation over attorneys’ fees is often more heated, more

arcane, and over far higher monetary stakes than the

underlying lawsuit. The relationship of all of this activity

to the larger public good is becoming increasingly diffi-

cult to discern. Farrar’s crucial insights are that the refuge

35a

from such litigation lies in a clearly established rule for

fee recovery and that the catalyst-based approach to fee

applications has left us utterly at sea.

The majority’s standards for fee recovery under cata-

lyst theory fail to chart a clear course through this liti-

gious fog. We are told that the catalyst inquiry is “a

pragmatic one of both fact and law that will ordinarily

range outside the merits of the basic controversy . . . to

whether as a quite practical matter the outcome, in what-

ever form it is realized, is one to which the plaintiff fee

claimant’s efforts contributed in a significant way.” and

that “[courts] should look outside the final judgment to

voluntary actions taken by a defendant so long as those

actions are causally connected to the litigation.” Majority

Op. at 164 (citations omitted). How far outside the merits

should courts look? What is a significant contribution?

When is a lawsuit causally connected and when is it not?

What is the meaning of “in whatever form” an outcome is

realized? The majority does not provide any guidance -

only criteria that invite further litigation. In contrast to

the majority’s approach, Farrar’s clear rule ensures that

parties deserving attorneys’ fees will obtain them without

forcing district courts to untangle a web of supposed

causal connections to determine whether a party pre-

vailed.

Finally, catalyst theory discourages public officials

from taking initiatives to revise out-moded ordinances or

to improve institutional conditions, because such theory

36a

expressly recognizes “voluntary actions taken by a defen-

dant” as a proper basis for a fee award. Majority Op. at

164. With its reliance on a simple chronology of events to

show causation, catalyst theory empowers courts to

award fees for any change in behavior that occurs after

the filing of a lawsuit, whether or not the court could

have ordered that change in conduct. In this way, catalyst

theory serves to disable public officials, who may come to

fear that worthwhile changes may be retroactively linked

to a lawsuit and result in a hefty bill for attorneys’ fees. It

is counterproductive to convert § 1988 into a penalty on

state and local officials for making salutary changes. At

the same time, catalyst theory provides incentives for

filing marginal, even frivolous, lawsuits. Any change in

conduct by the defendant, for whatever reason, may offer

a promising payout to attorneys who file a complaint,

whether or not that complaint has any ultimate legal

merit. Section 1988 should not be a license to shake down

government officials, nor was it ever intended to be sim-

ply “a relief Act for lawyers.” Farrar, ___ U.S. at __, 113

S.Ct. at 578 (O’Connor, J., concurring), quoting Riverside v.

Rivera, 477 U.S. 561, 588, 106 S.Ct. 2686, 2701, 91 L.Ed.2d

466 (1986) (Rehnquist, J., dissenting).

Catalyst theory is so open to fee awards because it

assumes that enlightened social change automatically

results from lawyers pursuing litigation. Unconstrained

catalyst theory betrays the disquieting presumption that

litigation must somehow lead the march of social pro-

gress. With § 1988, however, Congress did not grant

parties a license to collect fees for pursuing personal

visions of the public good. Rather, § 1988 compensates

37a

parties for attorneys’ fees incurred in bringing and suc-

cessfully concluding lawsuits. Congress recognizes litiga-

tion under 42 U.S.C. § 1983 as a desired vehicle to

vindicate the violation of legal rights, not as a means of

effecting social change of the generic sort. In our sysiem

of government, we have looked first to elected officials to

decide what change may or may not be considered

enlightened. Section 1988 does not alter the basic demo-

cratic premise. Congress has said that attorneys’ fees may

be awarded to prevailing parties who have established

legal claims. That requires a judgment, consent decree, or

settlement.

II].

Under Farrar, plaintiffs with valid civil rights claims

will continue to have their day in court, assisted by

counsel. Citizens may still “assert their civil rights,” and

those who would violate such basic rights shall not “pro-

ceed with impunity,” because parties retain the chance

“to recover what it costs them to vindicate these rights in

court.” S.Rep. No. 1011, 94th Cong., 2d Sess. 2 (1976),

reprinted in 1976 U.S.C.C.A.N. 5908, 5910 (emphasis

added). Farrar assures, however, that when a court

awards “fees to a prevailing plaintiff, it is awarding them

against a violator of federal law,” Christiansburg Garment

Co. v. EEOC, 434 U.S. 412, 418, 98 S.Ct. 694, 699, 54

L.Ed.2d 648 (1978), not against an entity that improves a

facility or changes a policy on its own initiative. By

contrast, a theory of fee-shifting based upon changes in

conduct that judges might consider constructive transfers

the evaluation of many public actions to the unaccount-

able preferences of federal courts.

38a

Plaintiffs in this case have not secured an enforceable

judgment, consent decree, or settlement agreement. |

would not award them attorneys’ fees on the basis that

their mooted lawsuit may have operated as a catalyst to

subsequent changes in defendants’ conduct. With all

respect to my colleagues, we have in Farrar v. Hobby a

Supreme Court decision that controls this case. We

should follow it.

39a

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

GREENSBORO DIVISION

S-1 and S-2, by and through their

parents and Guardians Ad Litem,

P-1 and P-2; and P-1 and P-2,

Individually,

Plaintiffs,

)

C. D. SPANGLER, JR., Chairman, _)

State Board of Education of North )

Carolina; THE STATE BOARD OF _)

EDUCATION OF NORTH )

CAROLINA; and C. D. )

HEIDGERD, Hearing Officer, )

Asheboro City Board of Education, )

)

Defendants.

MEMORANDUM OPINION

(Filed March 30, 1992)

BULLOCK, District Judge

This final phase of lengthy litigation involves the

question of whether plaintiffs are entitled to attorneys’

fees in this action under the Education for All Hand-

icapped Children Act, 20 U.S.C. § 1415(e) (1991)

(EAHCA),! and if they are so entitled, in what amount.

For the reasons explained herein, the court finds that

Plaintiffs are prevailing parties, and that they are entitled

to reasonable attorneys’ fees in the amount of $30,143.18.

1 The EAHCA provides federal funding to the states so that

each disabled child can receive a free appropriate public educa-

tion. 20 U.S.C. § 1400 (1991).

When this action began, S-1- and S-2 were hand-

icapped students in the Asheboro City Schools. The par-

ents of S-1 and S-2 decided to place them in a private

educational facility on a half-day basis for the 1983-84

school year, and sought reimbursement from the school

system for their tuition expenses. The Asheboro Board of

Education denied this request, so Plaintiffs sought a due

process hearing pursuant to North Carolina General Stat-

utes § 115C-116, which was enacted pursuant to the

EAHCA. At that time, Section 115C-116 allowed the State

Board to select a hearing officer from its own list of

approved hearing officers if a due process hearing was

requested, and provided for a final decision by the State

superintendent of Public Instruction. 1985 N.C. Sess.

Laws ch. 412 (June 17, 1985). The hearing officer appoin-

ted to hear the parents’ claim for reimbursement found

that he had no statutory authority to determine or award

reimbursement, so no hearing was held. The State Board

of Education denied Plaintiffs’ request to confer this

authority upon the hearing officer. Plaintiffs then brought

this action under 42 U.S.C. § 1983 and Section 1415(e) of

the EAHCA.

On December 31, 1986, this court entered a memoran-

dum opinion and order holding that Section 1415(b)(1)(E)

of the EAHCA required Defendants Asheboro City Board

of Education (“City Board”) and C. D. Heidgerd to con-

duct an administrative hearing and render a decision on

Plaintiffs’ claim for tuition reimbursement under the

EAHCA. The court also declared that the interpretation of

North Carolina law of Defendants C. D. Spangler and

State Board of Education (“State Board”) violated Section

4la

1415(b)(1)(E) in that it precluded a state hearing officer

from conducting an administrative hearing on the issue

of reimbursement under the EAHCA and from ordering

reimbursement if appropriate. The court enjoined all

Defendants from further interpreting North Carolina law

inconsistent with its interpretation of Section

1415(b)(1)(E). S-1 By and Through P-1 v. Spangler, 650 F.

Supp. 1427, 1434-35 (M.D.N.C. 1986), vacated, 832 F.2d 294

(4th Cir. 1987).

Defendants appealed this court’s decision. While the

appeal was pending, the parents and the City Board (but

not Defendants Spangler and State Board) agreed to a

partial settlement. The United States Court of Appeals for

the Fourth Circuit held that the settlement mooted the

appeal because it gave the parents the reimbursement

they sought; vacated this court’s order of December 31,

1986; and remanded for a determination of Plaintiffs’

entitlement, if any, to attorneys’ fees from Spangler and

the State Board. S-1 v. Spangler, 832 F.2d 294, 298 (4th Cir.

1987).

Also while the appeal was pending, the Office of

Special Education and Rehabilitative Services (OSERS),

the division of the United States Department of Educa-

tion charged with overseeing the EAHCA, issued a Letter

Ruling on June 17, 1987, endorsing this court’s 1986 hold-

ing and specifically disapproving of the State Board’s

EAHCA due process procedures. In view of this Letter

Ruling, the North Carolina General Assembly amended

Section 115C-116 to allow the administrative law judge

presiding over the due process hearing to recommend a

decision to the State Board. The final decision on the

parents’ claim would rest with the State Board or two of

42a

its members designated by the Board to make the final

decision. 1988 N.C. Sess. Laws ch. 1079 (July 8, 1988).

OSERS objected to the revised statute, claiming that it

did not meet the standards set out in Section 1415 and

requiring the State to comply with federal law by June 30,

1990. Threatened with the loss of some $5 million in

federal education funds for failure to comply, the General

Assembly again amended Section 115C-116. The amend-

ment provided that the administrative law judge’s find-

ings of fact and conclusions of law would become final

unless appealed to the State Superintendent of Public

Instruction. If appealed, the Superintendent could

appoint a disinterested educator to enter final findings of

fact and conclusions of law. 1990 N.C. Sess. Laws ch. 1058

(July 28, 1990).

In their petition for attorneys’ fees pursuant to 20

U.S.C. § 1415(e) and 42 U.S.C. § 1988, Plaintiffs assert that

they are entitled to fees because they prevailed in the

underlying dispute. Defendants contend that Plaintiffs

are not entitled to attorneys’ fees because they did not

prevail on the merits and the amendments to Section

115C-116 were attributable to the threatened loss of fed-

eral funding rather than to any action by the Plaintiffs.

If.

The first question to be decided is whether the Plain-

tiffs are prevailing parties in this matter. Section

1415(e)(4)(B) of the EAHCA permits the court, in its

discretion, to award reasonable attorneys’ fees to the

parents of a disabled youth who prevail in an action

under Section 1415(e). Similarly, 42 U.S.C. § 1988 entitles

43a

a prevailing party in an action under 42 U.S.C. § 1983 to

recover costs and attorneys’ fees. The difference between

this case and others that seek attorneys’ fees is that the

Plaintiffs did not prevail on the merits of the underlying

dispute because the Fourth Circuit vacated this court’s

judgment in their favor.

However, there is significant authority for the propo-

sition that parties do not have to win a judgment in order

to recover attorneys’ fees. “Plaintiffs may be considered

‘prevailing parties’ for attorney’s fees purposes if they

succeed on any significant issue in litigation which

achieves some of the benefit the parties sought in bring-

ing suit.” Hensley v. Echerhart, 461 U.S. 424, 433 (1983)

(quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 [1st Cir.

1983]).? In a decision affirming and clarifying Hensley, the

Supreme Court noted that “[t]he touchstone of the pre-

vailing party inquiry must be the material alteration of

the legal relationship of the parties in a manner which

Congress sought to promote in the fee statute.” Texas

Teachers Ass'n v. Garland School Dist., 489 U.S. 782, 792-93

(1989).

The Fourth Circuit has outlined an analytical frame-

work for determining prevailing party status. First, the

court should establish “the precise factual/legal condi-

tion that the fee claimant has sought to change or effect

so as to gain a benefit or be relieved of a burden.” Bonnes

2 This standard applies to “all cases in which Congress has

authorized an award of fees to a ‘prevailing party.’ ” Hensley,

461 U.S. at 433 n. 7 (42 U.S.C. § 1988 case); see Tice v. Botetourt

County School Bd., 908 F.2d 1200, 1205 n.4 (4th Cir. 1990) (apply-

ing Hensley standard to EAHCA case).

44a

v. Long, 599 F.2d 1316, 1319 (4th Cir. 1979). Then, the court

must evaluate “whether as a quite practical matter the

outcome, in whatever form it is realized, is one to which

the plaintiff fee claimant’s efforts contributed in a signifi-

cant way, and which does involve an actual conferral of

benefit or relief from burden when measured against the

benchmark condition.” Id.; see Disabled in Action v. Mayor

of Baltimore, 685 F.2d 881, 885 (4th Cir. 1982).

This analysis may look beyond the resolution of a

case on its merits. “[T]o get a truer picture of plaintiff’s

success we should look outside the final judgment to

voluntary actions taken by a defendant so long as those

actions are causally connected to the litigation.” Spencer v.

General Elec. Co., 894 F.2d 651, 662 (4th Cir. 1990); Child v.

Spillane, 866 F.2d 691, 692-93 (4th Cir. 1989); Denny v.

Hinton, 131 F.R.D. 659, 662 (M.D.N.C. 1990), aff'd, 937 F.2d

602 (4th Cir. 1991). If the plaintiff’s actions are a catalyst

for a remedial change in the defendant’s actions, the

plaintiff has prevailed. DeMier v. Gondles, 676 F.2d 92, 93

(4th Cir. 1982); Smith v. University of North Carolina, 632

F.2d 316, 347 (4th Cir. 1980).

In this case, there is a distinct causal connection

between the harm the Plaintiffs sought to rectify by

bringing suit and the ultimate revision of North Carolina

General Statutes § 115C-116 to conform to federal law.

The Plaintiffs complained that the North Carolina due

process procedures, as they existed in 1985, violated the

EAHCA. This court’s December 1986 judgment for the

Plaintiffs prompted OSERS to issue an official policy

statement in June 1987 agreeing that the North Carolina

procedure violated federal law. In July 1988, the North

Carolina legislature amended the offending statute in an

45a

attempt to comply with OSERS’ mandate. Having become

involved in the correction of North Carolina laws as a

result of this court’s 1986 judgment,3 OSERS determined

that the 1988 amendment was insufficient and on July 23,

1989, demanded a further amendment to comply with the

finality and impartiality requirements of the EAHCA.

North Carolina approved the complying amendment in

July 1990 in time to avoid the loss of federal funding for

its EAHCA programs.

Thus, regardless of the outcome of the underlying

litigation, by virtue of Plaintiffs’ complaint sufficient fed-

eral pressure was brought to bear on the State of North

Carolina that Section 115C-116 was amended to comply

with federal law. This is not a mere technical or de min-

imis victory that would bar Plaintiffs from being prevail-

ing parties. Texas Teachers Ass'n, 489 U.S. at 792; Spencer,

894 F.2d at 662. Therefore, the court finds that Plaintiffs

are prevailing parties and are entitled to attorneys’ fees

under 20 U.S.C. § 1415(e).4

> The OSERS Letter Ruling informs the inquirer that “this

office will review all future State plans to ensure that they meet

minimum due process requirements.” Letter Ruling at 2 (June

17, 1987).

* Because Plaintiffs prevailed on their claim by obtaining

an [sic] change in the North Carolina law enacted pursuant to

the EAHCA rather than any relief or remedy on their Section

1983 claim, attorneys’ fees will be awarded only under Section

1415(e). See Smith v. Robinson, 468 U.S. 992, 1012-13 (1984) (sole

remedy in EAHCA cases is to be found in the Act itself and not

in 42 U.S.C. § 1988); S. Rep. No. 112, 99th Cong., 2d Sess. 2,

reprinted in 1986 U.S.C.C.A.N. 1798, 1799 (purpose of amending

EAHCA to add attorneys’ fees provision was to remedy defi-

ciency identified in Smith v. Robinson).

46a

Il.

The next determination to be made is the appropriate

amount of attorneys’ fees to be awarded. Plaintiffs peti-

tioned this court for a net fee reimbursement of

$39,015.18.5 Defendants argue that over half the number

of hours billed is unreasonable and should be disallowed.

“The most useful starting point for determining the

amount of a reasonable fee is the number of hours rea-

sonably expended on the litigation multiplied by a rea-

sonable hourly rate.” Hensley, 461 U.S. at 433. Hours that

are unreasonable include those that are “excessive,

redundant, or otherwise unnecessary.” Id. at 434. There is

no evidence from the billing statements submitted by the

parties that the total of 463.05 hours billed over a four-

year period is unreasonable in any respect. Therefore, the

court finds that the 463.05 hours expended was reason-

able within the meaning of Section 1415(e)(4)(B).

The documentation provided to the court indicates

that 316.15 hours were billed at $90.00 per hour, and 146

hours were billed at $110.00 per hour. The EAHCA

requires an award of attorneys’ fees to be made based on

prevailing rates in the community for similar services,

and prohibits the use of a bonus or multiplier in calculat-

ing the award amount. 20 U.S.C. § 1415(e)(4)(C). This

court in its experience and discretion finds that these

> The total amount billed was $47,047.18, reduced by

$8,032.00 recovered as a result of the settlement with the Ash-

eboro City Schools.

47a

hourly rates are manifestly reasonable in light of custom-

ary hourly rates for legal services in the Middle District

of North Carolina.

The reasonable hours times reasonable rate calcula-

tion is only the beginning of the inquiry, for this court

must next determine whether the award is reasonabie in

relation to the results obtained. Hensley, 461 U.S. at 434.

Plaintiffs contend that since their initiation of this action

resulted in a complete revision of the North Carolina

EAHCA due process procedures they obtained excellent

results and are entitled to reimbursement of all expenses.

Defendants argue that since over half of the hours

expended involved either the Defendants who settled or

motions that were unsuccessful the results obtained were

less than excellent and the fee award should be reduced

accordingly.

There is little merit to Defendants’ contention that

fees incurred in reaching settlement indicate less than

excellent results. Plaintiffs sought and obtained reimbur-

sement for their tuition expenses via the settlement with

the City Defendants. Parties may prevail through settle-

ment or other measures short of formal relief. Maher v.

Gagne, 448 U.S. 122, 129 (1980). The amount of fees

requested already reflects a reduction to account for set-

tlement with the City Defendants, so no further reduction

need be made for fees incurred as to them. Failure to

prevail on a motion when the claim is successful as a

whole is not a basis to deny fees related to the unsuccess-

ful motion. Hensley, 461 U.S. at 435. Therefore, the fees

incurred as to the unsuccessful discovery motions and the

appeal should be included in the finai amount of the

attorneys’ fees award. The only fees this court believes to

48a

be questionable are those related to the unsuccessful

motions to intervene, because they were made on behalf

of persons not parties to this action. Hence, they are

unrelated claims that should “be treated as if they had

been raised in separate lawsuits, and therefore no fee

may be awarded for services on the unsuccessful claim.”

Id. The fees attributable to the motions to intervene total

$8,872.00.

After a careful review of Plaintiffs’ petition for attor-

neys’ fees, the court finds that they are reasonable in light

of the result obtained subject to the reservation expressed

above. To avoid a “second major litigation” over the

amount of attorneys’ fees due Plaintiffs, Hensley, 461 U.S.

at 437, the court will award Plaintiffs $30,143.18 in attor-

neys’ fees. This amount represents the $39,015.18

requested, less $8,872.00 attributable to the motions to

intervene.

An order in accordance with this memorandum opin-

ion shall be entered contemporaneously herewith.

/s/

United States District Judge

March 30, 1992

ng a a eo een ey

49a

EHA RULINGS/POLICY LETTERS

Inquiry by: Gregory R. Van Buiten, Esq.

Van Buiten & Helmuth

174 Battery Street

Burlington, Vermont 05401

Digest of Inquiry

(October 6, 1986)

e Are hearing officers and state review officers

authorized by EHA to order public agencies to

reimburse parents for an appropriate unilateral

placement?

Digest of Response

(June 17, 1987)

EHA-B requires states to authorize hearing

officers to decide reimbursement claims and to

order reimbursement where the conditions of

Burlington are satisfied, i.e., where the parents’

placement is deemed appropriate and the LEA’s

placement is inappropriate.

Text of Inquiry

This office represents handicapped children and their

families in Vermont and New Hampshire. The inquiry

presented below to which we solicit a formal EHA ruling

from the Department concerns the February 21, 1986 deci-

sion of Vermont state reviewing officer Judy Rosenstreich

reported at 1985-86 EHLR DEC. 507:367. A copy of the

decision is attached for your convenience. [Not repro-

duced]

50a

The case concerns an LEA’s decision which was not

appealed and which is likely to be seen as “controlling

precedent” by Vermont’s hearing officers. Ms. Rose-

nstreich determined that a state reviewing officer, pur-

suant to 20 U.S.C. 1415(c) can only “make an independent

decision upon completion of” her or his review of the

record. Ms. Rosenstreich also found that a court could

“grant such relief as . . . [it] determines is appropriate.”

20 U.S.C. 1415(e)(2). Taking these two statutory provi-

sions together, Ms. Rosenstreich found that “[t]here is no

legal four tation on which to base a conclusion that in an

administrative proceeding a reviewing officer can grant

such relief.” (i.e., reimbursement for tuition for unilateral

placement.) Ms. Rosenstreich concluded that while she

affirmed the parents’ unilateral placement as appropriate,

and affirmed the LEA’s offer of placement as inappropri-

ate, she was without legal authority to award reimburse-

ment for the parents’ appropriate unilateral placement;

that relief in the form of financial reimbursement was

only available in a court.

Our concern is that this decision forces any parent

who seeks reimbursement for an appropriate placement

to pursue the administrative procedures of due process

and state review, without the possibility of resolving the

reimbursement dispute at the administrative level. The

only means of obtaining reimbursement, according to this

decision, is an appeal to Federal or state court as a party

aggrieved by the lack of reimbursement. This would seem

to render the administrative proceedings futile.

We now have a case in which we are awaiting the

hearing officer’s decision. We anticipate a decision that

the LEA’s offered placement/ program was inappropriate;

5la

that the parents’ unilateral placement/program was

appropriate; but that, pursuant to the subject Rose-

nstreich decision, we must appeal to a state reviewing

officer and thereafter to a Federal or state court to obtain

financial reimbursement.

Squarely, the issue on which we solicit a formal rul-

ing is as follows: Do hearing officers and state reviewing

officers have the authority to award the same forms of

relief available to successful EHA litigants in the courts

per 20 U.S.C. 1415(e)(2), specifically reimbursement for

unilateral placement where the unilateral placement is

deemed appropriate and the LEA’s placement is inap-

propriate?

Text of Response

The Office of Special Education and Rehabilitative

Services (OSERS) has completed its review of the issue of

whether Part B of the Education of the Handicapped Act

(EHA-B), P.L. 94-142, authorizes hearing officers and

State reviewing officers to order public agencies to reim-

burse parents for unilateral placements that satisfy the

conditions established by the U.S. Supreme Court in Bur-

lington School Committee v. Department of Education.

Your earlier letter referenced a decision by a Vermont

State reviewing officer (reported at 1985-86 EHLR DEC.

507:367) concluding that EHA-B enjoins administrative

officers from granting parents reimbursement relief. We

disagree with that interpretation of EHA-B. Sections

1415(b)(1)(E) and (b)(2) of EHA-B give parents the right

to have any matter relating to the provision of a free

appropriate public education (FAPE) for their child

52a

resolved by an impartial hearing officer. The issue of

reimbursement cannot be separated from a child’s right

to an appropriate education “at public expense.” Thus,

hearing officers and State reviewing officers have the

authority to determine whether parents are entitled to be

reimbursed for the unilateral placement of their child

where the parents’ placement is deemed appropriate and

the LEA’s placement is inappropriate.

This interpretation is further supported by Federal

regulations requiring that, “disagreements between a par-

ent and a public agency regarding the availability of a

program appropriate for the child, and the question of

financial responsibility, are subject to the due process pro-

cedures under Regs. 300.500-300.514 of Subpart E.” 34

C.F.R. 300.403(b) (emphasis added). These regulations, in

turn, reflect Congressional intent that the administrative

hearing process resolve the issue of reimbursing parents

for the unilateral placement of their child, as cited by the

Supreme Court in its Burlington decision, 105 S. Ct. at

2003:

“If a parent contends that he or she has been

forced, at that parent’s own expense, to seek

private schooling for the child because an

appropriate program does not exist within the

local educational agency responsible for the

child’s education and the local educational

agency disagrees, the disagreement and the

question of who remains financially responsible

is a matter to which the due process procedures

established under [the predecessor to Sec. 1415]

appl[y].” S. Rep. No. 94-168, p. 32 (1975), U.S.

Code Cong. & Admin. News 1975, pp. 1425,

1456.

53a

In a recently released Federal District Court decision,

S-1 and S-2 v. Spangler and the State Board of Education of

North Carolina, Civil No. C-85-969-G (M.D.N.C. December

31, 1986) (appeal pending), the court examined the issue

of whether EHA-B requires a State hearing officer to

conduct a hearing on the issue of reimbursement and

order reimbursement if appropriate. (A copy is attached

for your information.) Judge Bullock held that North

Carolina’s refusal to allow its State hearing officers to

decide reimbursement claims in the administrative pro-

cess, and order reimbursement where appropriate, fell

below the minimum level of procedural protection estab-

lished by EHA-B and was thus invalid.

The court’s reasoning in the Spangler decision is

sound. It is premised upon the application of Congres-

sional concern for ensuring that each child who is hand-

icapped be provided a free appropriate public education

and upon the Supreme Court’s reasoning in Rowley and

Burlington that recognizes the importance of procedural

safeguards for ensuring this right. The Spangler decision

is not premised upon an analysis of State law; thus the

court’s analysis does not require a balancing of State and

Federal policies. OSERS concurs with the reasoning

adopted by Judge Bullock in his Spangler decision and

shares his opinion that EHA-B requires States to autho-

rize its hearing officers to decide reimbursement claims

in an impartial due process proceeding and to authorize

these officers to order reimbursement where the condi-

tions of Burlington are satisfied.

While it is not appropriate for OSERS to intervene in

litigation currently subject to judicial review, you can be

assured that this office will review all future State plans

54a

to ensure that they meet minimum due process require-

ments for authorizing the determination of reimburse-

ment issues and the issuance of reimbursement orders,

where appropriate.

If we can be of further assistance, please do not

hesitate to write.

Madeleine Will

Assistant Secretary

Office of Special Education and

Rehabilitative Services.

55a

The Civil Rights Attorney Fee Awards Act, 42 U.S.C. 1988

(Supp. III 1991) provides in pertinent part:

In any action or proceeding to enforce a provi-

sion of section 1981, 1981a, 1982, 1983, 1985, and

1986 of this title * * * , the court, in its discretion,

may allow the prevailing party, other than the

United States, a reasonable attorney’s fee as part

of the costs.

NORTH CAROLINA GENERAL STATUTES (1990)

§ 115C-116. Notice of decisions; mediation, adminis-

trative review, and judicial review of dis-

agreements.

* aa +

(d) Administrative Review. — Except as otherwise

provided in this section, the administrative review shall

be initiated and conducted in accordance with Article 3 of

Chapter 150B of the General Statutes, the Administrative

Procedure Act.

* * *

(h) Decision of the Administration Law Judge. -

Following the hearing, the administrative law judge shall

make a decision regarding the issues set forth in subsec-

tion (c). The decision shall contain findings of fact and

conclusions of law. Notwithstanding the provisions of

Chapter 150B of the General Statutes, the decision of the

administrative law judge becomes final and not subject to

further review unless appealed to the Review Officer as

provided in subsection (i). A copy of the administrative

56a

law judge’s decision shall be served upon each party and

a copy shall be furnished to the attorneys of record. The

written notice shall contain a statement informing the

parties of the availability of appeal and the 30-day limita-

tions period for appeal as set forth in subsection (i).

* + +

(j) Power to Enforce Final Decision. —- The State

Board shall have the power to enforce the final decision

of the administrative law judge, if not appealed pursuant

to subsection (i), or the final decision of the Review

Officer, by ordering a local educational agency:

(1) To provide a child with appropriate educa-

tion;

(2) To place a child in a private school that is

approved to provide special education and

that can provide the child an appropriate

education; or

(3) To reimburse parents for reasonable private

school placement costs in accordance with

the provisions of G.S. 115C-115 [sic] when

it is determined that the local educational

agency did not offer or provide the child

with appropriate education and the private

school in which the parent, guardian, or

surrogate parent placed the child was an

approved school and did provide the child

an appropriate education.

* * t

57a

NORTH CAROLINA SESSION LAWS

(July 8, 1988)

H.B. 364 CHAPTER 1079

AN ACT TO SIMPLIFY AND EXPEDITE THE PROCESS

FOR REVIEWING DECISIONS REGARDING EX CEP-

TIONAL CHILDREN AND TO PROVIDE FOR MEDIA-

TION OF DISAGREEMENTS.

The General Assembly of North Carolina enacts:

Section 1. G.S. 115C-116 is rewritten to read as fol-

lows:

* + +

(d) Administrative Review. — Except as otherwise

provided in this section, the administrative review shall

be initiated and conducted in accordance with Article 3 of

Chapter 150B of the General Statutes, the Administrative

Procedure Act.

* * *

(h) Recommended Decision. - Following the hear-

ing, the administrative law judge shall make a recom-

mended decision to the State Board of Education. The

recommended decision shall conform to and be prepared

in accordance with G.S. 150B-34.

(i) Final Decision by the State Board of Education. —

The final decision shall be made by the State Board of

Ecucation in accordance with G.S. 150B-36. In its discre-

tion, the State Board may appoint a panel of at least two

members of the Board to make the final decision for and

onits behalf in accordance with G.S. 150B-36, and if the

Board elects to exercise its discretion the decision of the

58a

panel shall be the final decision.

(j)

Power to Enforce Final Decision. — The State

Board shall have the power to enforce its final decision by

ordering a local educational agency:

(1)

To provide a child with an appropriate edu-

cation;

To place a child in a private school that is

approved to provide special education and

that can provide the child an appropriate

education; or

To reimburse parents for reasonable private

school placement costs in accordance with

the provisions of G.S. 115C-115 in the event

it determines that the local educational

agency did not offer or provide the child

with appropriate education and the private

school in which the parent, guardian, or

surrogate parent placed the child was an

approved school and did provide the child

an appropriate education.

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.