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New York�The standard for when attorney fees should be awarded to a prevailing party in a civil rights suit has been clarified by a federal appeals court. Interpreting U.S. Supreme Court case law on the issue, the 2d U.S. Circuit Court of Appeals, in a Sept. 30 ruling, said the issuance of a consent decree or judgment on the merits is not the only situation that carries the necessary “judicial imprimatur” in determining whether a party has “prevailed,” which is the key to a fee award. Fees can be awarded when a court retains jurisdiction over a private settlement agreement, the court said. Judge Wilfred Feinberg’s decision in Roberson v. Giuliani, No. 02-7306, involved a lawsuit that challenged how city and state agencies handled applications for food stamps, Medicaid and public assistance benefits. U.S. District Judge Denise Cote of the Southern District of New York granted summary judgment to the plaintiffs on their claim that the city violated federal law through its method of investigating joint applications for food stamps and public assistance. Six remaining claims were then settled, with the city agreeing to make changes in the system, but denying any liability. The plaintiffs’ lawyers, the New York Legal Assistance Group, sought $140,060 in attorney fees and costs. Cote found that they were not “prevailing parties” under 42 U.S.C. 1988, which grants authority to award fees for a civil rights action brought under 42 U.S.C. 1983. Cote cited the standard announced for prevailing parties by the U.S. Supreme Court in Buckhannon Bd. & Care Home Inc. v. W.Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001). Catalyst theory rejected In Buckhannon, the court rejected what is called the “catalyst theory,” under which a plaintiff is a prevailing party where they achieve “the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct.” The Supreme Court said the theory was wrong because it “allows an award where there is no judicially sanctioned change in the legal relationship between the parties.” Examples of relief that carry “sufficient judicial imprimatur,” the court said, are judgments on the merits and consent decrees. Cote said her continuing jurisdiction over the Roberson agreement to enforce its terms did not “constitute a ‘judicial sanctioning’ of the alteration of their legal relationship such that the plaintiffs can be considered prevailing parties under the Buckhannon standard.” On the appeal, Feinberg said three cases within the circuit have viewed Buckhannon in a manner that might preclude attorney fees unless there is a judgment on the merits or a court-ordered consent decree. But those three cases, Feinberg noted, “were all catalyst theory cases,” none of which involved the enforcement of a settlement agreement. “We therefore did not fully consider the different types of relief that might satisfy the Buckhannon court’s general statement of its holding-that there must be a judicially sanctioned change in the legal relationship between the parties,” Feinberg said. Examples, not exclusives It seems clear, the judge said, that the high court’s statement about judgments on the merits and court-ordered consent decrees was not meant to be an exclusive list, but merely a reference to “examples of the type of judicial action that could convey prevailing party status. “We therefore join the majority of courts to have considered this issue since Buckhannon in concluding that judicial action other than a judgment on the merits or a consent decree can support an award of attorney fees, so long as such action carries with it sufficient judicial imprimatur,” he said. In Roberson, he said, while the district court “took the correct general approach, its analysis did not fully appreciate the implications of its retention of jurisdiction over enforcement” of the settlement agreement. The retention of that jurisdiction, he said, “is not significantly different from a consent decree and entails a level of judicial sanction sufficient to support an award of attorney fees.” The court remanded the case back to the district court to determine the amount of fees to be awarded to plaintiff’s counsel. Judges Richard J. Cardamone and Robert D. Sack joined in the 2d Circuit opinion.

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