Exeter-West Greenwich Regional School Dist. v. Pontarelli

• Decision Date: 09 January 1986
• Docket Number: No. 85-1459,EXETER-WEST,85-1459
• Citation: 788 F.2d 47
• Parties: 31 Ed. Law Rep. 747 GREENWICH REGIONAL SCHOOL DISTRICT, et al., Plaintiffs, Appellees, v. Arthur R. PONTARELLI, Commissioner of Education For Rhode Island, et al., Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 47

788 F.2d 47

31 Ed. Law Rep. 747

EXETER-WEST GREENWICH REGIONAL SCHOOL DISTRICT, et al Plaintiffs, Appellees, v. Arthur R. PONTARELLI, Commissioner of Education For Rhode Island, et al., Defendants, Appellants.

No. 85-1459.

United States Court of Appeals First Circuit.

Heard Jan. 9, 1986.

Decided April 4, 1986.

Forrest L. Avila, Warren, R.I., for defendants, appellants.

Edmund L. Alves, Jr., with whom Bradford Gorham and Gorham & Gorham, Inc., Providence, R.I., were on brief, for plaintiff, appellee Exeter-West Greenwich Regional School Dist.

Amy R. Tabor, Pawtucket, R.I., for plaintiff, appellee William Haas.

Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

Defendants, Commissioner and Associate Commissioner of Education of the State of Rhode Island (Commissioner) ¹, appeal from an order of the district court requiring them to pay attorney's fees to plaintiffs, the Exeter-West Greenwich Regional School District (School District) of Rhode Island and a taxpayer resident of that district. The district court found plaintiffs to be "prevailing parties" under the terms of 42 U.S.C. Sec. 1988 in their Sec. 1983 action against the Commissioner. ² The complaint alleged that the Commissioner violated the first and fourteenth amendments of the United States Constitution when he issued a decision interpreting R.I.Gen.Laws Sec. 16-7-30 (1981) to require the School District to pay tuition for a student to attend a religiously affiliated high school and ordering it to take certain steps to comply with that decision. The Sec. 1983 action was later dismissed as moot when the Rhode Island Supreme Court, on certification from the district court, ruled that the Commissioner had misconstrued Rhode Island law. The amount of attorney's fees has been stipulated to by the parties, and the only issue on appeal is whether the Commissioner is liable for those fees under Sec. 1988.

I.

The plaintiff School District does not operate a high school. Its policy under R.I.Gen.Laws Sec. 16-7-30 (1981) ³ is to pay the tuition for the District's students to attend either of two neighboring public high schools, or to pay up to that amount for students to attend any public high school in Rhode Island. This case arose when a parent sought to have the School District pay tuition for his son to attend a religiously affiliated private academy, and both the Superintendent of Schools and the School Committee denied his request. The parent appealed the denials to the Commissioner, who issued a decision construing the Rhode Island statute to require the School District to provide tuition for students to attend any public, private, or religiously affiliated high school in Rhode Island, absent a rational motive for limiting the choice of high schools. Finding no rational motive for the School District's choice of the two neighboring public high schools, the Commissioner ordered the School District to pay the tuition for attendance at the religious academy. On a request for stay, the Commissioner amended his order to require the School District to create a separate bank account and to pay into it the amount of the tuition pending final appeal of the decision. The School District appealed the Commissioner's decision to the Board of Regents for Education pursuant to R.I.Gen.Laws Sec. 16-39-3 (1981). A decision by the Board of Regents is final unless certiorari is granted to hear the appeal by the Rhode Island Supreme Court.

After filing their administrative appeal, plaintiffs instituted an action in federal district court for declaratory and injunctive relief, asking that the Commissioner's order be rescinded as an unconstitutional establishment of religion under the first and fourteenth amendments. Plaintiffs also moved for a temporary restraining order, which was granted. The state Board of Regents announced that it would defer action on the appeal until the district court ruled on the merits of plaintiffs' complaint.

After stipulations of fact and memoranda of law were submitted, the district court moved sua sponte to certify to the Rhode Island Supreme Court the following question:

Does R.I.Gen.Laws Sec. 16-7-30 require a community not maintaining a high school to fund the education of those resident students who choose to attend religiously-affiliated high schools where the community already provides for free education at certain public high schools outside the community?

Plaintiffs and defendants briefed and argued the question before the Rhode Island Supreme Court. The court answered the question in the negative, ruling that the School District had acted in accord with the law in choosing certain public schools to which it would pay tuition for its students. Exeter-West Greenwich Regional School District v. Pontarelli, 460 A.2d 934 (R.I. 1983). ⁴ The district court then dismissed the plaintiffs' complaint as moot. After the plaintiffs filed motions for attorney's fees pursuant to 42 U.S.C. Sec. 1988, the district court issued an order ruling they were "prevailing parties" and were entitled to fees. A stipulation as to the amount of the fees was entered into and judgment for plaintiffs was entered. Defendant then took this appeal.

As we understand defendant's brief, he challenges the fee order on the following grounds: (1) that the plaintiffs are not the prevailing parties; (2) that, if the plaintiffs are considered to be the prevailing parties, they did not prevail in an action to enforce Sec. 1983; (3) that the district court had no jurisdiction over the state-law question on which the plaintiffs did prevail; (4) that the eleventh amendment bars attorney's fees; and (5) that there is either no case or controversy or the case is not ripe for adjudication.

II.

42 U.S.C. Sec. 1988 states in pertinent part:

In any action or proceeding to enforce a provision of section[ ] ... 1983 ..., 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.

Our cases have set out two standard tests for determining when a party shall be deemed "prevailing" under Sec. 1988. In Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir.1978), we held that Sec. 1988 permitted an award of attorney's fees to plaintiffs who gained relief from the constitutional violations alleged in their complaint against state prison officials for both that part of their case that resulted in a judgment on the merits and that part of their case that was settled by a favorable consent decree. We stated that there were two alternative tests for determining when a plaintiff shall be deemed "prevailing." The first we now call the "merits" test. The second is already known as the "catalyst" test.

Under the first Nadeau test, the merits test,

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 bringing suit.

Id. at 278-79. The Supreme Court endorsed this test in Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). In Lund v. Affleck, 587 F.2d 75 (1st Cir.1978), we held that the merits test is met, and attorney's fees may be awarded, when a party prevails not on any part of the Sec. 1983 claim but on a pendent, nonconstitutional statutory claim, if the Sec. 1983 claim was "substantial and ... the successful pendent claim arose from the same nucleus of facts." Lund v. Affleck, 587 F.2d at 77. We relied on the express language of the House Report accompanying the enactment of Sec. 1988:

In some instances ... the [Sec. 1983] claim ... may involve a constitutional question which the courts are reluctant to resolve if [a pendent] non-constitutional claim is dispositive. Hagans v. Lavine, 415 U.S. 528 [94 S.Ct. 1372, 39 L.Ed.2d 577] (1974). In such cases, if the claim for which fees may be awarded meets the "substantiality" test, see Hagans v. Lavine, supra; United Mine Workers v. Gibbs, 383 U.S. 715 [86 S.Ct. 1130, 16 L.Ed.2d 218] (1966), attorney's fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a "common nucleus of operative fact." United Mine Workers v. Gibbs, supra at 725 .

H.R.Rep. No. 94-1558, 94th Cong., 2d Sess., reprinted in Subcommittee on Constitutional Rights of the Senate Comm. on the Judiciary, Civil Rights Attorney's Fees Awards Act of 1976, Source Book: Legislative History, Texts, and Other Documents at 212 n.7 (Comm.Print 1976). Although in the present case the dispositive issue was not a pendent claim but a state-law question certified to the state supreme court, we think that the same analysis is appropriate. As we recently said in Aubin v. Fudala, 782 F.2d 287 (1st Cir.1986): " '[V]ictory' in a civil rights suit is typically a practical, rather than a strictly legal matter." Id. at 291.

Applying the merits test we find that plaintiffs have achieved not some but all the benefit they sought from their Sec. 1983 claim. They challenged the validity of the Commissioner's decision and succeeded in having it overturned. The state-law issue on which they prevailed also arose from the same nucleus of common fact as the Sec. 1983 issue--the Commissioner's decision. It was significant and substantial since its resolution disposed of the entire matter. Finally, the state-law issue was an issue "in litigation" even though it was not raised in the pleadings and, under Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 121, 104 S.Ct. 900, 919, 79 L.Ed.2d 67 (1984), could not have been pendent to the Sec. 1983 claim unless the state waived its immunity. It was part of the case, and therefore "in litigation," because the district court determined that under the abstention doctrine of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 501, 61 S.Ct. 643, 645, 85...