S-1 & S-2 v. State Bd. of Educ. of North Carolina, 21 F.3d 49 (4th Cir. 1994). · Go Syfert
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S-1 & S-2 v. State Bd. of Educ. of North Carolina, 21 F.3d 49 (4th Cir. 1994). Cases Citing This Book View Copy Cite
“the fact that a lawsuit may operate as a catalyst for postlitigation changes in a defendant's conduct cannot suffice to establish plaintiff as a prevailing party.”
203 citation events (69 in the last 25 years) across 39 distinct courts.
Negative lean: 2nd  ·  Positive lean: 7th, 4th
Strongest positive: Clark v. Sims (mdd, 1995-06-23) · Strongest negative: E.S. Ex Rel. Mr. & Mrs. S. v. Ashford Bd. of Educ. (ctd, 2001-03-15)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited "but see" E.S. Ex Rel. Mr. & Mrs. S. v. Ashford Bd. of Educ.
D. Conn. · 2001 · signal: but see · confidence high
See Marbley v. Bane, 57 F.3d 224 , 233-34 (2d Cir.1995); Heldman v. Sobol, 846 F.Supp. 285, 288 (S.D.N.Y. 1994); but see S-1 and S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir.1994) (rejecting catalytic theory).
discussed Cited "but see" Sumbry v. Russell County, Ala.
M.D. Ala. · 1998 · signal: but cf. · confidence high
Dist., # 1, 17 F.3d 260 (8th Cir.1994); Craig v. Gregg County, 988 F.2d 18 (5th Cir.1993); Paris v. U.S. Dept. of Housing and Urban Development, 988 F.2d 236 (1st Cir.1993); American Council of the Blind, Inc. v. Romer, 992 F.2d 249 (10th Cir.), cert. denied, 510 U.S. 864, 114 S.Ct. 184 , 126 L.Ed.2d 143 (1993); but cf. S-1 and S-2 v. State Bd. of Education, 21 F.3d 49 (4th Cir.) (en banc) (deeply divided (7 to 6) court held that, after Farrar , a person may not be a prevailing party under a catalyst theory for changes in the opposing party’s conduct instigated after judgment or dismissal), …
discussed Cited "but see" Marbley v. Bane
2d Cir. · 1995 · signal: but see · confidence high
Bd. of Educ., 985 F.2d 255, 257-58 (6th Cir.1993); but see S-1 and S-2 v. State Bd. of Educ. of N.C., 21 F.3d 49, 51 (4th Cir.) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 205 , 130 L.Ed.2d 135 (1994). 53 We now expressly state what was implicit in our opinion in Rodonich: Farrar does not eviscerate the long-standing doctrine that a plaintiff who has obtained at least some part of what he sought in bringing the suit may be considered a prevailing party and may therefore seek an award of attorney's fees.
discussed Cited "but see" Marbley v. Bane
2d Cir. · 1995 · signal: but see · confidence high
Bd. of Educ., 985 F.2d 255, 257-58 (6th Cir.1993); but see S-1 and S-2 v. State Bd. of Educ. of N.C., 21 F.3d 49, 51 (4th Cir.) (en banc), cert. denied, — U.S. -, 115 S.Ct. 205 , 130 L.Ed.2d 135 (1994).
discussed Cited as authority (verbatim quote) Clark v. Sims
D. Maryland · 1995 · signal: see · quote attribution · 1 verbatim quote · confidence high
the fact that a lawsuit may operate as a catalyst for postlitigation changes in a defendant's conduct cannot suffice to establish plaintiff as a prevailing party.
discussed Cited as authority (rule) V. v. CHERRY HILL BOARD OF EDUCATION
D.N.J. · 2025 · confidence medium
This additional judicial element, often described as “judicial imprimatur,” entails “obtain[ing] an enforceable judgment, consent decree, or settlement giving some of the legal relief sought.” Id. at 602 (quoting S–1 and S–2 v. State Bd. of Ed. of N.C., 21 F.3d 49, 51 (4th Cir. 1994)) (internal quotation marks omitted).
discussed Cited as authority (rule) BONE v. UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM (2×) also: Cited "see"
M.D.N.C. · 2024 · confidence medium
In S-1 By and Through P-1 and P-2 v. State Board of Education of N.C., the full court, in rejecting the catalyst theory, held that a person may not become a prevailing party under 42 U.S.C. § 1988 “except by virtue of having obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought.” 21 F.3d at 51 (emphasis added).
discussed Cited as authority (rule) Reyazuddin v. Montgomery County, Maryland
D. Maryland · 2022 · confidence medium
Before that holding, a plaintiff could only be a prevailing party if she had “obtained an enforceable judgment, consent decree, or settlement.” S–1 and S–2 v. State Bd. of Ed. of N.C., 21 F.3d 49, 51 (4th Cir. 1994) (en banc).
discussed Cited as authority (rule) Overbey v. Mayor and City Council Baltimore
D. Maryland · 2021 · confidence medium
The City correctly argues that because the “Brew was dismissed from the action without any judicial rulings in their favor . . . [it] is not a prevailing party” and “[a]ny request for fees on behalf of this Plaintiff must be dismissed out of hand.” (ECF No. 72, at 12) (citing S-1 and S-2 v. Bd. of Ed. of N.C., 21 F.3d 49, 51 (4th Cir. 1994)).
discussed Cited as authority (rule) Feldman's Medical Center Pharmacy, Inc. v. CareFirst, Inc.
D. Maryland · 2012 · confidence medium
Bonnes was overruled by the Fourth Circuit in S-1 by & Through P-1 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir.1994), which held, as Buckhannon did seven years later, that the catalyst theory was not available under prevailing party statutes.
discussed Cited as authority (rule) Project Vote/Voting for America, Inc. v. Dickerson
4th Cir. · 2011 · confidence medium
A plaintiff can be considered a prevailing party “by virtue of having obtained an enforceable ... settlement giving some of the legal relief sought in a § 1983 action.” S-1 and S-2 By and Through P-1 and P-2 v. State Board of Education of North Carolina, 21 F.3d 49, 51 (4th Cir.1994) (en banc) (emphasis added); see also Buckhannon, 532 U.S. at 604 , 121 S.Ct. 1835 (“[W]e have held that settlement agreements enforced through a consent decree may serve as the basis for an award of attorney’s fees.
discussed Cited as authority (rule) In Re Volkswagen & Audi Warranty Extension Litigation (2×) also: Cited "see"
D. Mass. · 2011 · confidence medium
In Buckhannon, the Supreme Court affirmed the Fourth Circuit’s holding that "[a] person may not be a ‘prevailing party' ... except by virtue of having obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought.” 532 U.S. at 602 , 121 S.Ct. 1835 (quoting S-1 & S-2 v. State Bd. of Ed. of N.C., 21 F.3d 49, 51 (1994)).
discussed Cited as authority (rule) Doe v. Kidd
4th Cir. · 2011 · confidence medium
“A person may not be a ‘prevailing party’ plaintiff under 42 U.S.C. § 1988 except by virtue of having obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought in a § 1983 action.” S-l and S-2 By and Through P-1 and P-2 v. State Bd. of Educ. of N. Carolina, 21 F.3d 49, 51 (4th Cir.1994) (en banc) (citing Farrar v. *420 Hobby, 506 U.S. 103 , 113 S.Ct. 566 , 121 L.Ed.2d 494 (1992)).
discussed Cited as authority (rule) Armstrong v. Mayor of Baltimore
Md. · 2009 · confidence medium
See Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 , 103 S.Ct. 3274 , 77 L.Ed.2d 938 (1983) (holding that, with respect to the plaintiff's claim for attorney’s fees in the plaintiff's action under the Clean Air Act, "absent some degree of success on the merits by the claimant, it is not ‘appropriate’ for a federal court to award attorney's fees under § 307(1) [of the Clean Air Act]”); Hanrahan v. Hampton, 446 U.S. 754, 757-58 , 100 S.Ct. 1987 , 64 L.Ed.2d 670 (1980) (per curiam) (holding that, with respect to the plaintiff's claim for attorney’s fees in the plaintiff's action under t…
discussed Cited as authority (rule) Dillard v. Colbert County Commission
M.D. Ala. · 2007 · confidence medium
See Buckhannon, 532 U.S. at 605-06 , 121 S.Ct. 1835 (“We have only awarded attorney’s fees where the plaintiff has received a judgment on the' merits or obtained a court-ordered consent decree — we have not awarded attorney’s fees where the plaintiff has secured the reversal of a directed verdict or acquired a judicial pronouncement that the defendant has violated the Constitution unaccompanied by judicial relief.” (first emphasis added; citations and internal quotation marks omitted)); S-1 and S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir.1994) (en banc) (“A person may not be…
discussed Cited as authority (rule) Graham v. DaimlerChrysler Corp. (2×)
Cal. · 2005 · confidence medium
(S-l and S-2 v. State Bd. of Educ. of N.C. (4th Cir. 1994) 21 F.3d 49, 51 (in bank).) The high court later cited the in bank decision with approval. ( Buckhannon, supra, 532 U.S. at pp. 602, 608.) The majority suggests that Santisas v. Goodin, supra, 17 Cal.4th 599 , supports adoption of the catalyst theory.
discussed Cited as authority (rule) Lazarus v. County of Sullivan
S.D.N.Y. · 2003 · confidence medium
Although the majority of the Circuits accepted the catalyst theory, as noted above, the Fourth Circuit rejected the theory in S-l and S-2 v. State Bd. of Ed. of N. C„ 21 F.3d 49, 51 (4th Cir.1994) (en banc).
discussed Cited as authority (rule) Pitchford v. Oakwood Mobile Homes, Inc.
W.D. Va. · 2002 · confidence medium
The 4th Circuit refused to adopt the "catalyst theory.” See S-l and S-2 v. State Bd. of Ed. Of N.C., 21 F.3d 49, 51 (4th Cir.1994) ("A person may not be a 'prevailing party' ... except by virtue of having obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought.”). 2 .
discussed Cited as authority (rule) Smyth ex rel. Smyth v. Rivero
4th Cir. · 2002 · confidence medium
Parents P-1 & P-2 v. State Bd. of Ed. of North Carolina, 21 F.3d 49, 51 (4th Cir.1994) (stating that “an enforceable judgment, consent decree, or settlement giving some of the relief sought” is necessary for prevailing party status) (emphasis added), the Buckhannon Court has since clarified the law on this point.
discussed Cited as authority (rule) Smyth, Smyth v. Rivero
4th Cir. · 2002 · confidence medium
Parents P-1 & P-2 v. State Bd. of Ed. of North Carolina, 21 F.3d 49, 51 (4th Cir.1994) (stating that "an enforceable judgment, consent decree, or settlement giving some of the relief sought" is necessary for prevailing party status) (emphasis added), the Buckhannon Court has since clarified the law on this point.
discussed Cited as authority (rule) Thayer v. Principi (2×) also: Cited "see, e.g."
Vet. App. · 2001 · confidence medium
Id. at 1839 (emphasis added) (quoting S-l and S-2 v. State Bd. of Ed. of N. C., 21 F.3d 49, 51 (1994) (en banc)).
examined Cited as authority (rule) Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources (4×)
SCOTUS · 2001 · confidence medium
Al though most Courts of Appeals recognize the "catalyst theory,” 3 the Court of Appeals for the Fourth Circuit rejected it in S-1 and S-2 v. State Bd. of Ed. of N. C., 21 F. 3d 49, 51 (1994) (en bane) (“A person may not be a ‘‘prevailing party* . . . except by virtue of having obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought”).
cited Cited as authority (rule) Richardson v. City of Boston
D. Mass. · 2001 · confidence medium
S-1 & S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir.1994) (en banc).
discussed Cited as authority (rule) Belk v. Charlotte-Mecklenburg Board of Education
4th Cir. · 2001 · confidence medium
In order to be considered a “prevailing party” under § 1988, the party seeking fees must have obtained “an enforceable judgment, consent decree, or settlement.” S-1 & S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir.1994) (en banc).
discussed Cited as authority (rule) Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2×)
SCOTUS · 2000 · confidence medium
In the decision under review, the Court of Appeals noted that its Circuit precedent construed our decision in Farrar v. Hobby, 506 U. S. 103 (1992), to require rejection of that theory. 149 F. 3d, at 307, n. 5 (citing S-1 & S-2 v. State Bd. of Ed. of N. C., 21 F. 3d 49, 51 (CA4 1994) (en banc)).
examined Cited as authority (rule) Cavanagh v. Grasmick (3×) also: Cited "see"
D. Maryland · 1999 · confidence medium
See id.; S — 1, 21 F.3d at 51.
examined Cited as authority (rule) Virginia Society v. Caldwell (10×) also: Cited "see"
4th Cir. · 1999 · confidence medium
Sitting en banc, a majority of this court in S-1 and S-2 examined Farrar and concluded that in order for a plaintiff to obtain prevailing party status under 42 U.S.C. § 1988 , there would have to be a "mate- rial alteration of the legal relationship between the parties" as mani- fested by whether the plaintiff was entitled to enforce "a judgment, consent degree, or settlement against the defendant." S-1 and S-2, 6 F.3d at 168-69 (Wilkinson, J., dissenting) (adopted by the majority in S-1 and S-2, 21 F.3d at 51).
discussed Cited as authority (rule) Erickson v. Board of Education
4th Cir. · 1998 · confidence medium
Courts have universally recognized that this “special circumstances” exception is very “narrowly limited.” See, e.g., Bonnes v. Long, 599 F.2d 1316 , 1318 (4th Cir.1979), overruled on other grounds by S-1 & S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir. 1994).
discussed Cited as authority (rule) Doe v. Board of Education of Baltimore County
4th Cir. · 1998 · confidence medium
Courts have universally recognized that this “special circumstances” exception is very “narrowly limited.” See, e.g., Bonnes v. Long, 599 F.2d 1316 , 1318 (4th Cir.1979), overruled on other grounds by S-1 & S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir. 1994).
discussed Cited as authority (rule) Virginia Society for Human Life, Inc. v. Caldwell
D. W.Va. · 1998 · signal: cf. · confidence medium
See Smith, 632 F.2d at 346-52 (finding that plaintiff was not a prevailing party where she obtained a preliminary injunction but did not ultimately prevail on the merits); cf. S-1 and S-2, 21 F.3d at 50-52 (finding that summary judgment was not sufficient to turn a plaintiff into a prevailing party when the court ultimately dismissed the complaint as moot).
discussed Cited as authority (rule) Pope v. Hunt
4th Cir. · 1998 · confidence medium
The Supreme Court has held that, in order to qualify as a “prevailing party” within § 1988, a plaintiff must have “obtained] an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement.” Farrar v. Hobby, 506 U.S. 103, 111 , 113 S.Ct. 566 , 121 L.Ed.2d 494 (1992) (citations omitted);, see also S-1 & S-2 v. State Bd. of Educ. of N.C., 21 F.3d 49, 51 (4th Cir.1994).
discussed Cited as authority (rule) Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc.
4th Cir. · 1998 · confidence medium
Plaintiffs’ failure to obtain relief on the merits of their claims precludes any recovery of attorneys’ fees or other litigation costs because such an award is available only to a "prevailing or substantially prevailing party.” 33 U.S.C.A. § 1365 (d) (West Supp.1998); cf. Farrar v. Hobby, 506 U.S. 103, 111 , 113 S.Ct. 566 , 121 L.Ed.2d 494 (1992) (explaining that "to qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim”); S-1 & S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir.1994) (en banc) (per curiam) (adopting the di…
discussed Cited as authority (rule) Moncrieffe-Taylor v. Vance
D. Maryland · 1996 · confidence medium
In S-1 and S-2 By and Through P-1 and P-2 v. State Board of Educ. of North Carolina, 21 F.3d 49, 51 (4th Cir.), the Fourth Circuit sitting en bane rejected the “catalyst” theory of causation in determining prevailing party status.
discussed Cited as authority (rule) Statewide Reapportionment Advisory Committee William Gibson, Doctor Frederick Calhoun James, Bishop Herbert Williams, Reverend Willie B. Owens South Carolina Conference of the Naacp Branches v. David M. Beasley, in His Official Capacity as Governor of South Carolina David H. Wilkins, in His Official Capacity as Speaker of the South Carolina House of Representatives, the South Carolina Senate, Intervenor. Michael G. Burton, as Executive Director on Behalf of the Republican Party William P. Collins, III Earl Copeland William Patrick Flack Frank E. Gibson, III Nancy D. Hawk Gus Roberts v. David M. Beasley, in His Official Capacity as Governor of South Carolina David H. Wilkins, in His Official Capacity as Speaker of the South Carolina House of Representatives, the South Carolina Senate, Intervenor
4th Cir. · 1996 · confidence medium
The court held that "[t]here is no way ... that Farrar and a broad 'catalyst theory' of attorneys' fees recovery can be reconciled." 6 F.3d at 168-69 (Wilkinson, J., dissent) (adopted by majority opinion in S-1 and S-2, 21 F.3d at 51).
examined Cited as authority (rule) Statewide Reapportionment Advisory Committee v. Beasley (3×)
4th Cir. · 1996 · confidence medium
The court held that "[t]here is no way . . . that Farrar and a broad `catalyst theory' of attorneys' fees recovery can be reconciled." 6 F.3d at 168-69 (Wilkin- son, J., dissent) (adopted by majority opinion in S-1 and S-2, 21 F.3d at 51).
discussed Cited as authority (rule) Kilgour v. City of Pasadena
9th Cir. · 1995 · confidence medium
S-1 and S-2 v. State Bd. of Educ. of N.C., 21 F.3d 49, 51 (4th Cir.1994) (en banc) (adopting dissenting opinion of Judge Wilkinson in S-1 and S-2 v. State Bd. of Educ. of N.C., 6 F.3d 160, 168-72 (4th Cir.1993), cert. denied, -U.S. -, 115 S.Ct. 205 , 130 L.Ed.2d 135 (1994)). .
discussed Cited as authority (rule) Kirk Kilgour v. City Of Pasadena
9th Cir. · 1995 · confidence medium
Accordingly, the court sanctioned the City under Fed.R.Civ.P. 11, and awarded Kilgour $12,970 for having to oppose the City's motion 2 S-1 and S-2 v. State Bd. of Educ. of N.C., 21 F.3d 49, 51 (4th Cir.1994) (en banc) (adopting dissenting opinion of Judge Wilkinson in S-1 and S-2 v. State Bd. of Educ. of N.C., 6 F.3d 160, 168-72 (4th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 205 , 130 L.Ed.2d 135 (1994)) 3 See Baumgartner v. Harrisburg Housing Authority, 21 F.3d 541, 550 (3d Cir.1994); Craig v. Gregg County, Texas, 988 F.2d 18, 20-21 (5th Cir.1993); Zinn by Blankenship v. Shalala, 35 F…
discussed Cited as authority (rule) Billy Hooper v. Demco, Incorporated (2×)
7th Cir. · 1994 · confidence medium
I agree with the court that Hooper is not a prevailing party, but write separately to emphasize that Farrar v. Hobby, --- U.S. ----, ----, 113 S.Ct. 566, 573 , 121 L.Ed.2d 494 (1992) appears to have limited "prevailing party" status to parties who have obtained " 'an enforceable judgment, consent decree, or settlement giving some of the legal relief sought....' " See Zinn v. Shalala, 35 F.3d 273 , 276 (7th Cir.1994) (Manion, J., dissenting) (quoting S-1 and S-2 v. State Bd. of Educ. of N.C., 21 F.3d 49, 51 (4th Cir.1994)).
discussed Cited as authority (rule) Zinn v. Shalala (2×) also: Cited "see"
7th Cir. · 1994 · confidence medium
Dist., No. 1, 17 F.3d 260 , 263 n. 2 (8th Cir.1994); American Council of the Blind of Colo., Inc. v. Romer, 992 F.2d 249 , 250-51 (10th Cir.1993). 1 The Fourth Circuit, in a divided en banc decision, S-1 and S-2 v. State Bd. of Educ. of N.C., 21 F.3d 49, 51 (4th Cir.1994), has followed a different course. 2 In following Farrar that court held: "A person may not be a 'prevailing party' plaintiff under 42 U.S.C.
discussed Cited as authority (rule) Zinn ex rel. Blankenship v. Shalala (2×) also: Cited "see"
7th Cir. · 1994 · confidence medium
Dist., No. 1, 17 F.3d 260 , 263 n. 2 (8th Cir.1994); American Council of the Blind of Colo., Inc. v. Romer, 992 F.2d 249 , 250-51 (10th Cir.1993). 1 The Fourth Circuit, in a divided en banc decision, S-1 and S-2 v. State Bd. of Educ. of N.C., 21 F.3d 49, 51 (4th Cir.1994), has followed a different course. 2 In following Farrar that court held: “A person may not be a ‘prevailing party’ plaintiff under 42 U.S.C. § 1988 except by virtue of having obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought....” I find the Fourth Circuit’s analy…
cited Cited as authority (rule) Arvinger v. Mayor and City Council of Baltimore
4th Cir. · 1994 · confidence medium
If this were an open question, I would take the position of the dissent in the en banc decision in S-1, for the reasons stated therein. 21 F.3d at 51; see also Baumgartner v. Harrisburg Hous.
cited Cited "see" Kenneth Grabarczyk v. Joshua Stein
4th Cir. · 2022 · signal: see · confidence high
See S-1 and S-2, 21 F.3d at 51.
discussed Cited "see" Prison Legal News v. Stolle
E.D. Va. · 2015 · signal: see · confidence high
Standard for Attorney’s Fee Award A. Right to Fees The instant civil case was filed pursuant to 42 U.S.C. § 1983 seeking to remedy the-alleged depravation of constitutional rights, and it is undisputed that: (1) pursuant to 42 U.S.C. § 1988 , this Court has discretion to award reasonable attorney’s fees and litigation expenses to a “prevailing party” in a § 1983 action; and (2) that PLN qualifies as a “prevailing party” in this case and is thus entitled to at least a partial award of fees, as well as litigation expenses. 42 U.S.C. § 1988 ; see S-1 & S-2 By & Through P-1 & P-2 v…
discussed Cited "see" Union of Needletrades, Industrial and Textile Employees, Afl-Cio, Clc v. United States Immigration and Naturalization Service (2×)
2d Cir. · 2003 · signal: see · confidence high
See id. at 602 , 121 S.Ct. 1835 (citing S-l & S-2 v. State Bd. of Educ. of N.C., 21 F.3d 49, 51 (4th Cir.1994)).
cited Cited "see" Yates v. Charles County Board of Education
D. Maryland · 2002 · signal: see · confidence high
See S-l & S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir. 1994). 2 .
discussed Cited "see" Union of Needletrades, Industrial & Textile Employees v. United States Immigration & Naturalization Service (2×) also: Cited "see, e.g."
S.D.N.Y. · 2002 · signal: see · confidence high
See S-1 and S-2, 21 F.3d at 51 ; Foreman v. Dallas County, 193 F.3d 314 , 320 (5th Cir.1999) (noting that “[a]fter Farrar ... the continuing validity of the catalyst theory is in serious doubt.”). 6 In fact, the Buckhannon Court, citing Farrar , noted that “[w]e have only awarded attorney’s fees where the plaintiff has received a judgment on the merits” or a court-ordered consent decree.
cited Cited "see" Former Employees of Motorola Ceramic Products v. United States
Ct. Intl. Trade · 2001 · signal: see · confidence high
See S —1 and S-2 v. State Bd. of Ed. of N.C., 21 F.3d 49, 51 (4th Cir.1994) (en banc) (per curiam). 2 .
cited Cited "see" Brickwood Contractors, Inc. v. United States
Fed. Cl. · 2001 · signal: see · confidence high
See S-l & S-2 v. State Bd. of Educ. of N.C., 21 F.3d 49, 51 (4th Cir.1994) (en banc).
cited Cited "see" Luke C. Miley, Claimant-Appellant v. Anthony J. Principi, Secretary of Veterans Affairs
Fed. Cir. · 2001 · signal: see · confidence high
See S-1 & S-2 v. State Bd. of Educ., 21 F.3d 49 (4th Cir.1994) (en banc).
cited Cited "see" American Council of the Blind v. Washington Metropolitan Area Transit Authority
D.D.C. · 2001 · signal: see · confidence high
See S-1 & S-2 v. State Bd. of Ed., 21 F.3d 49, 51 (4th Cir.1994) (en banc).
Retrieving the full opinion text from the archive…
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
v.
The State Board of Education of North Carolina Barbara Tapscott, Chairman, State Board of Education of North Carolina, and C.D. Heidgerd, Hearing Officer, Asheboro City Board of Education the Asheboro City Board of Education Mary Smitherman
92-1525.
Court of Appeals for the Fourth Circuit.
Apr 4, 1994.
21 F.3d 49
Cited by 90 opinions  |  Published

21 F.3d 49

90 Ed. Law Rep. 1006

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,
v.
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.

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, WIDENER, HALL, PHILLIPS, MURNAGHAN, WILKINSON, WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, 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.

OPINION

PER CURIAM:

[*~49]1

Plaintiffs, parents of handicapped students enrolled in the Asheboro, North Carolina schools, filed this 42 U.S.C. Sec. 1983 action in 1986 against the Asheboro 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 violated the Education of the Handicapped Act ("EHA"), 20 U.S.C. Sec. 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. Spangler, 650 F.Supp. 1427 (M.D.N.C.1986).

2

While the appeal of the district court's ruling was pending, plaintiffs and the City Board reached a settlement 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 Spangler 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. Spangler, 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.

[*~50]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).

4

Shortly after North Carolina's amendment of its hearing 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. Sec. 1415(e) and 42 U.S.C. Sec. 1988. On appeal, a panel of this court affirmed the district court's award of attorneys' 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.

5

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:

6

1. A person may not be a "prevailing party" plaintiff under 42 U.S.C. Sec. 1988 except by virtue of having obtained an enforceable judgment, consent decree, or settlement giving some of the legal relief sought in a Sec. 1983 action. Farrar v. Hobby, --- U.S. ----, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992).

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2. The fact that a lawsuit may operate as a catalyst for post-litigation changes in a defendant's conduct cannot suffice to establish plaintiff as a prevailing party. "Catalyst theory," allowing that result, is no longer available 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.

8

3. Here, the dismissal on appeal of an action under 42 U.S.C. Sec. 1983 for prudential reasons as moot operates to vacate the judgment below, see United States v. Munsingwear, 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. Sec. 1988.

9

The court adopts as its own the dissenting panel opinion of Judge WILKINSON. S-1, 6 F.3d at 168-72. Judges RUSSELL, WIDENER, WILKINSON, WILKINS, NIEMEYER, LUTTIG, and WILLIAMS agree to the foregoing parts of this opinion and its holding to reverse the district court.

10

Chief Judge ERVIN and Judges HALL, PHILLIPS, MURNAGHAN, HAMILTON, and MICHAEL respectfully 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.

11

The judgment of the district court is accordingly

12

REVERSED.