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A lopsided split has developed over whether to give the crown of “prevailing party” to a plaintiff who gets what he or she wants through an out-of-court settlement, even if no court gives its blessing to the agreement. The question is of more than academic interest since several federal statutes allow the prevailing party to recover attorney fees from the opponent. Last month, the 1st U.S. Circuit Court of Appeals joined just about every other circuit that has looked at the issue-including the 2d, 3d and 7th circuits-in ruling that some sort of judicial imprimatur is necessary before a party will be deemed to have prevailed. Doe v. Boston Public Schools, No. 03-1886. The 9th Circuit is the sole holdout, having ruled in 2002′s Barrios v. Calif. Interscholastic Fed’n, 277 F.3d 1128, that a plaintiff can be said to have prevailed if the out-of-court settlement alters the legal relationship between the parties by allowing the plaintiff to “force the defendant to do something he otherwise would not have to do.” Jane Doe The unnamed “Jane Doe” plaintiff in the 1st Circuit case is a severely mentally disabled teenager who claimed that her public vocational school was not providing an adequate education as guaranteed by the Individuals with Disabilities Education Act (IDEA). She asked the Boston public school system to place her in a private residential school. When informal negotiations and mediation failed, Doe took her case to the Massachusetts Bureau of Special Education Appeals, an administrative body created to rule on IDEA claims. In October 2002, just before the bureau was to begin a hearing on Doe’s claim, the Boston school system capitulated almost completely, agreeing to pay her tuition at a private residential school, although not the specific one she had initially requested. Doe agreed to the placement, and asked the bureau to recognize the settlement as a final judgment. The bureau refused. Doe then filed suit in federal court, arguing that the settlement made her the prevailing party under the IDEA and that the school system was required to pay her attorney fees. The point of reference for prevailing party claims is the Supreme Court’s 2001 opinion in Buckhannon Bd. & Care Home Inc. v. W.Va. Dep’t of Health and Human Res., 532 U.S. 598. The plaintiff in Buckhannon was an assisted-living facility that claimed that West Virginia’s fire code clashed with the Fair Housing Amendments and Americans With Disabilities acts. The lawsuit prompted the state legislature to amend the code. But the Supreme Court concluded that the facility was not entitled to attorney fees. Being a catalyst for a policy change was not enough to qualify as the prevailing party in litigation, it said. By the 9th Circuit’s reading, that’s pretty much all that the Supreme Court said authoritatively in Buckhannon. The Barrios court conceded that there was language in Buckhannon “suggest[ing] that a plaintiff ‘prevails’ only when he or she receives a favorable judgment on the merits or enters into a court-supervised consent decree.” But the court characterized that language as mere “dictum” that it could safely ignore in favor of pre- Buckhannon circuit precedent holding that settlements without judicial blessing are sufficient. In rejecting Doe’s claim for attorney fees, the 1st Circuit held (as have several other circuits) that what its sister circuit dismissed as dictum was instead essential to the Buckhannon holding. “[I]n order to prevail, a party must achieve a ‘court-ordered’ change in the legal relationship of the parties,” it said. Young’s e-mail address is gyoungnlj.com.

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