Child v. Spillane

• Decision Date: 20 March 1989
• Docket Number: No. 88-2072,88-2072
• Citation: 866 F.2d 691
• Parties: CHILD, an infant who sues by parent and next of friend parent, Plaintiff- Appellee, v. Robert R. SPILLANE, in his official capacity as Super. Fairfax County, Virginia, Public Schools; School Board of Fairfax County, Virginia, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 691

866 F.2d 691

CHILD, an infant who sues by parent and next of friend parent, Plaintiff- Appellee, v. Robert R. SPILLANE, in his official capacity as Super Fairfax County, Virginia, Public Schools; School Board of Fairfax County, Virginia Defendants-Appellants.

No. 88-2072.

United States Court of Appeals Fourth Circuit.

Argued Nov. 3, 1988.

Decided Jan. 26, 1989.

Rehearing and Rehearing In Banc Denied March 20, 1989.

Thomas J. Cawley (Grady K. Carlson, Stephen M. Sayers, Fairfax, Va., William H. Wright, Jr., Hunton & Williams, Richmond, Va., on brief), for defendants-appellants.

Kenneth Edward Labowitz (Fagelson, Schonberger, Payne and Arthur, Alexandria, Va., Frank M. Feibelman, Wright and Associates, on brief), for plaintiff-appellee.

Before WIDENER, MURNAGHAN, and WILKINS, Circuit Judges.

WILKINS, Circuit Judge:

Dr. Robert R. Spillane and the Fairfax County School Board (Defendants) appeal the district court award of attorney's fees and costs in favor of the Child, an infant who sues anonymously by her next friend and Parent. We vacate the district court award because the Child was not a prevailing party as required by section 505(b) of the Rehabilitation Act of 1973. 29 U.S.C.A. Sec. 794a(b) (West 1985).

I.

The Child, who suffers from Acquired Immune Deficiency Syndrome (AIDS), was removed from kindergarten class on November 4, 1987. The Parent was informed on that date that the Fairfax County Health Department had recommended the Child's temporary exclusion from school pending a review of her medical records.

The Parent and the Child's attending physician, Dr. Judy Vincent, met with the school principal on November 10, 1987. The Parent and Dr. Vincent were requested to provide all available medical records to the school so that the Health Department could determine whether the Child's attendance at kindergarten would pose any risks to other students and school employees.

The medical records were not received by school officials until Tuesday, December 15, 1987. Dr. Spillane, Division Superintendent of the Fairfax County Public Schools, immediately dispatched the records to the Health Department for its review. The Health Department recommended that a medical committee be formed to review the case and to evaluate the risks posed by the Child's continued attendance at school.

Dr. Spillane, by hand-delivered letter on December 22, 1987, informed the Child's attorneys of the Health Department's recommendation. In this letter, Dr. Spillane stated that the medical committee was prepared to meet on December 29, 1987, or on another day suitable to the Child's attorneys and physician.

Also on December 22, Defendants' attorneys consulted by telephone with counsel for the Child. During these conversations, Defendants' attorneys emphasized that the immediate filing of a lawsuit would be premature since an expedited process was already in motion to review the Child's medical records. Defendants' attorneys offered to convene the medical committee as early as the next day, December 23, 1987, and they also represented that should the School Board deny the Child's readmission to school, they would agree to an expedited trial if the Child should then institute a lawsuit. Despite these assurances from Defendants' counsel, the Child's attorneys filed suit that day under section 504 of the Rehabilitation Act, 29 U.S.C.A. Sec. 794 (West 1985), primarily seeking the Child's readmission to school. This action was commenced on December 22, 1987, one day prior to the beginning of the school's Christmas vacation.

The medical committee advanced its meeting to December 24, 1987. Following the hearing the Director of Health Services for the Health Department recommended that the Child be allowed to return to school since no significant risk to others was perceived. The School Board convened on January 2, 1988 and unanimously accepted a recommendation by Dr. Spillane that the Child be allowed to return to school after the Christmas holiday.

After returning to kindergarten, the Child moved for summary judgment, and alternatively for dismissal of the lawsuit without prejudice due to mootness. Accompanying this motion was an application for attorney's fees submitted by counsel for the Child. The total fee requested was $17,058.44, with approximately one-third of this amount attributed to time spent in interviews with news media and another one-third attributed to preparing the fee petition. The district court dismissed the action without prejudice and subsequently awarded attorney's fees and costs in the amount of $15,380.99 to counsel for the Child.

II.

The Rehabilitation Act provides, in pertinent part, that otherwise qualified handicapped individuals shall not be discriminatorily excluded from activities receiving federal financial assistance. "Prevailing parties" under the Act are permitted, in the discretion of the district court, an award of attorney's fees. 29 U.S.C.A. Sec. 794a(b). ¹

In order to qualify as a prevailing party, it is not necessary that a plaintiff obtain relief solely in the manner of a formal judgment. Hewitt v. Helms, 482 U.S. 755, ----, 107 S.Ct. 2672, 2675, 96 L.Ed.2d 654, 661 (1987). A party may prevail by virtue of a voluntary action by the opposing party through settlement or a consent decree. Id.; see also Disabled in Action v. Pierce, 789 F.2d 1016, 1019 (3d Cir.1986). The fact that a settlement has been reached as compared to a formal judgment does not mandate a stricter test for entitlement. Pierce, 789 F.2d at 1019. However, an applicant must demonstrate that a "causal connection [exists] between the relief obtained and the litigation." Id. In order to establish this nexus, the applicant must show that the lawsuit " 'contributed in a significant way' to the winning of benefits or relief from the 'factual/legal condition that the fee claimant has sought to change.' " Mayor of Baltimore, 685 F.2d at 885 (quoting Bonnes v. Long, 599 F.2d 1316, 1319 (4th Cir.1979)). "Fees may be awarded even where a party's efforts have merely 'served to a limited extent to expedite the planning and achievements gained.' " Id. at 886 (quoting United Handicapped Federation v. Andre, 622 F.2d 342, 348 (8th Cir.1980)).

Here, Defendants argue that the Child's filing of a lawsuit did not facilitate the readmission of the Child to kindergarten. Defendants assert that the medical committee was already scheduled to meet and that the filing of the lawsuit did not serve to expedite the hearing, as evidenced by the December 22 letter from Dr. Spillane to the Child's attorneys. In that letter, which the Child's attorneys admitted receiving prior to the commencement of the lawsuit, Dr. Spillane informed counsel that the medical committee was scheduled to convene on December 29, 1987. The letter also expressly provided that another date and time could be arranged for the convenience of the Child's attorneys and physician.

The district court found that "as a practical matter the efforts of counsel for the plaintiff and the law suit [sic] evidenced by this action, contributed to a significant degree to the relief obtained by the plaintiff and the timing thereof." This finding is not supported by the series of events which surrounded the filing of the lawsuit. The record establishes instead that the filing of the lawsuit did not contribute to or expedite the readmission of the Child to kindergarten. Once the Defendants received the medical information they had requested from the Parent and the Child's physician, the decision to readmit the Child was made in a most expedient manner. The only evidence of less than diligent action in the record involves the in excess of one month delay by the Child in transmitting the medical records to the Defendants.

As stated by the Third Circuit, "[a] totally frivolous lawsuit which results in the defendant doing no more than it was already committed to do will never satisfy [the causal connection]" necessary for an award of attorney's fees. Pierce, 789 F.2d at 1019. Although this lawsuit may not have been frivolous in substance, the institution of the suit on December 22 was unnecessary since the Defendants had already initiated the process for determining whether the Child was to be readmitted on an expedited basis. Moreover, the decision to readmit would have come even sooner had the Child made timely delivery of the requested medical records.

A key difference is evident here when compared with the Third Circuit case of Pierce. There, the plaintiff organization for disabled persons brought an action against the government pursuant to the Rehabilitation Act in order to require installation of access ramps for handicapped persons in an office building. The suit was settled and the organization subsequently moved for attorney's fees. The district court denied the fee petition, finding, among other grounds, that the organization was not a prevailing party since the "litigation was unnecessary." The Third Circuit reversed, holding that "the lawsuit caused the government to provide access for the handicapped ... and to make other services and facilities accessible to the handicapped." Pierce, 789 F.2d at 1020. The government had conceded that prior to the filing of the lawsuit it had decided not to provide some of the relief sought by the organization. That concession is in stark contrast to the situation here, where there is nothing in the record to dispute the Defendants' assertion that the relief sought would have been provided absent the filing of the lawsuit on the day the medical committee meeting was arranged. The hearing process to determine readmission was already in place during the vacation holidays. There was no necessary or compelling reason to file on December 22. The uncontradicted affidavits of the School Board's Vice-Chairman and the Superintendent of the Fairfax County Public Schools demonstrate that the decision of the School Board was to be governed...