Smyth ex rel. Smyth v. Rivero, 00-2453.

Citation282 F.3d 268
Decision Date21 February 2002
Docket NumberNo. 00-2453.,00-2453.
PartiesVictoria SMYTH, for herself and as next friend for her minor child, Angela SMYTH; Patricia Montgomery, for herself and as next friend for her minor child, Casey Montgomery, Plaintiffs-Appellees, v. Sonia RIVERO, in her official capacity as Commissioner, Virginia Department of Social Services, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Maureen Riley Matsen, Office of the Attorney General, Richmond, Virginia, for Appellant. Edward M. Wayland, Charlottesville, Virginia, for Appellees.

ON BRIEF: Randolph A. Beales, Attorney General of Virginia, William H. Hurd, Solicitor General, Siran S. Faulders, Senior Assistant Attorney General, E. Paige Selden, Assistant Attorney General, Office of the Attorney General, Richmond, Virginia, for Appellant.

Steven L. Myers, Virginia Poverty Law Center, Inc., Richmond, Virginia, for Appellees.

Before WILKINSON, Chief Judge, and WILLIAMS and MOTZ, Circuit Judges.

Reversed by published opinion. Judge WILLIAMS wrote the opinion, in which Chief Judge WILKINSON and Judge DIANA GRIBBON MOTZ joined.


WILLIAMS, Circuit Judge.

Appellant Sonia Rivero, Commissioner of the Virginia Department of Social Services, appeals from a district court's order awarding attorney's fees to Appellees Victoria Smyth, Patricia Montgomery, and their children, Angela Smyth and Casey Montgomery (collectively, Smyth and Montgomery) under 42 U.S.C.A. § 1988(b) (West Supp.2001), which authorizes an award of such fees to the prevailing party in an action to enforce the provisions of certain federal statutes. Because we conclude that the district court erroneously characterized Smyth and Montgomery as prevailing parties, we reverse.


Seven recipients of aid1 under the Aid to Families with Dependent Children (AFDC) program, a welfare program funded by the federal government and administered by the states, brought the underlying action under 42 U.S.C.A. § 1983 (West Supp.2001) in the United States District Court for the Western District of Virginia, claiming that a new paternity identification policy for welfare applicants instituted by the Commissioner2 violated the Social Security Act, 42 U.S.C.A. §§ 601 et seq. (West 1991 & Supp.2001), and related federal regulations, as well as the Supremacy and Equal Protection Clauses of the U.S. Constitution. The policy, appearing at section 201.10 of Virginia's AFDC3 Manual, required that an applicant for welfare in Virginia either identify the father of any child for whom aid was requested or, if uncertain of the child's paternity, provide the first and last names of all individuals who might be the father. The plaintiffs asserted that they were unable to identify the fathers of their children4 as required by the policy, that they had communicated that fact to Virginia welfare officials, and that their welfare benefits had been reduced or eliminated altogether as a result. They sought, inter alia: (1) certification of a class of all children and their mothers who had been or would be subjected to the loss of cash assistance or other benefits for failure to comply with this regulation; (2) temporary restraining orders prohibiting the Commissioner from refusing to provide benefits to Smyth and Montgomery; (3) a declaratory judgment that the application of the policy to them violated the Social Security Act, related federal regulations, and the Supremacy and Equal Protection Clauses; (4) preliminary and permanent injunctions prohibiting the application of the policy to them or members of the proposed class and requiring instead that the Commissioner give an applicant the opportunity to attest under penalty of perjury to her lack of any requested information concerning her child's father, and further prohibiting the reduction or denial of benefits to an applicant so attesting unless the Commissioner had substantial evidence the attestation was false; and (5) attorney's fees and costs under § 1988.

In June 1996, the district court denied the plaintiffs' motion for class certification but entered a preliminary injunction barring enforcement of the paternity identification policy against the plaintiffs. In granting the preliminary injunction, the district court found that the balancing of likely harms in considering the plaintiffs' motion for a preliminary injunction clearly favored the plaintiffs, that the denial of benefits for noncooperation because of a claimant's inability to identify the father of her children contradicted the plain language of then-applicable federal regulations, and that the plaintiffs were thus likely to succeed on the merits.5 The preliminary injunction entered by the court prohibited the Commissioner from denying welfare benefits to the plaintiffs "based solely on their inability to provide [the Commissioner] with paternity information after they have attested to a lack of information." (J.A. at 62.) Three of the seven plaintiffs (Lynn Winchester and her two children) were granted leave to dismiss their claims and did so at that point.

On August 1, 1996, Smyth and Montgomery moved for summary judgment, asserting that the language of 45 C.F.R. § 232.12(b) (1995) could not be reconciled with the Commissioner's paternity identification policy, that the policy was therefore invalid under federal law, and that they were entitled to a declaration to that effect and an injunction permanently enjoining the Commissioner from denying welfare benefits to otherwise eligible applicants in the same situation.

Thereafter, the Commissioner obtained a waiver from the Department of Health and Human Services (HHS) authorizing the definition of noncooperation in paternity identification implemented by the policy.6 The waiver was conditioned on Virginia's establishing criteria for finding cooperation in those instances where it determines that the applicant cannot reasonably be expected to know the identifying information related to the child's father. Smyth and Montgomery then filed, on April 1, 1997, a supplemental memorandum in support of their motion for summary judgment in which they reiterated the claim that the Commissioner's policy violated the Equal Protection Clause of the Fourteenth Amendment and also claimed that the policy had conflicted with federal regulations until the waiver was implemented by the Commissioner in February 1997.

In her response to Smyth and Montgomery's motion for summary judgment and supplemental memorandum, the Commissioner stated that she would not seek repayment of benefits paid to Smyth and Montgomery prior to February 1, 1997, the date prior to which Smyth and Montgomery assert the Commissioner's policy conflicted with federal regulations. On September 11, 1997, the day before the scheduled hearing on Smyth and Montgomery's summary judgment motion, the parties' counsel agreed during a telephone conversation that Smyth and Montgomery would consent to continue the date of the hearing pursuant to a motion by the Commissioner and that the Commissioner would not seek repayment of benefits paid to Smyth and Montgomery between February 1, 1997 and the new date of the hearing. An understanding of this agreement (the September 11 agreement or the agreement) is contained in letters exchanged by counsel shortly after their conversation. The district court granted the unopposed motion to continue the hearing.

As of August 1, 1998, the Commissioner modified the paternity identification policy so that it no longer applies with respect to children born before May 1996 (the date of the original policy modification), provided that the welfare recipient declares under oath that she does not know the identity of the father of her child. The August 1998 modification, in other words, made the 1996 identification policy modification prospectively applicable only. As to children born after May 1996, the policy challenged by Smyth and Montgomery remains unaltered. Because both children still involved in the litigation at the time of the 1998 modification (Angela Smyth and Casey Montgomery) were born before May 1996, the district court dismissed Smyth and Montgomery's claims as moot under the modified policy. The district court also found in its order of February 4, 2000 that the communications between the parties regarding continuance of the scheduled hearing on the Commissioner's summary judgment motion constituted an "agreement" that the Commissioner would not seek repayment of benefits paid to the plaintiffs between February 1, 1997 and the new date of that hearing. The district court based this finding in large part on counsel for the Commissioner's statements during a status conference held before the district court on April 15, 1999. During that conference, the court found, counsel for the Commissioner "was not troubled by the admission that the parties previously reached an agreement, but was concerned with the court ordering the parties not to seek such benefits." (J.A. at 327.) "Accordingly," the court wrote, "the dismissal order will declare that the defendant is unable to seek repayment of TANF benefits because of the binding agreement between the parties." (J.A. at 328.)

On March 6, 2000, the plaintiffs filed a motion for attorney's fees and costs, seeking a total of $195,074.54, which was granted in full by the district court on October 17, 2000. In its order granting the motion, the district court reiterated its finding that the parties had come to an "agreement" wherein the Commissioner waived her right to seek repayment of certain benefits from the plaintiffs in return for the plaintiffs' agreement not to contest continuance of the hearing on the Commissioner's motion for summary judgment. The district court then found that because the plaintiffs had received a "judgment against the defendant (the preliminary injunction)" and a "partial settlement, which materially...

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