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A plaintiff in a disability discrimination suit who settles her case is not entitled to seek attorney’s fees — even if a court-approved stipulation shows that she received all the accommodations she was suing for — because a settlement is not the same as a judgment or a consent decree, a federal judge has ruled. In Dorfsman v. Law School Admission Council, U.S. District Judge Herbert J. Hutton found that a settling plaintiff can no longer claim to be the “prevailing party” for purposes of seeking fees. Hutton, of the U.S. District Court for the Eastern District of Pennsylvania, found that the U.S. Supreme Court recently closed the door on such fee petitions with its decision in Buckhannon Board and Care Home Inc. v. West Virginia Department of Health and Human Services, which rejected the so-called “catalyst theory” of attorney’s fees. In Buckhannon, the justices refused to award attorney’s fees to a plaintiff’s lawyer who said her lawsuit had helped bring about legislation that effectively rendered the lawsuit moot. Instead, the high court instructed that a “material alteration of the legal relationship of the parties” is a prerequisite to seeking attorney’s fees. Hutton found that the Buckhannon decision has now strictly limited attorney’s fees in fee-shifting cases to two categories — those in which the plaintiff wins an enforceable judgment; and those in which a settlement is enforceable through a court-ordered consent decree. The plaintiffs in Dorfsman simply didn’t meet the strict test, Hutton found. The Dorfsman case began as a proposed class action against the Law School Admission Council on behalf of mentally disabled students who say they need accommodations when they take the LSAT. Attorney David Ferleger filed the suit on the heels of a Justice Department suit against the Newtown, Pa.-based testing service that alleged it discriminated against students with physical disabilities who wanted extra time to take the test. Brought under Title III of the Americans with Disabilities Act, the Justice Department’s suit alleged that several students with cerebral palsy or rheumatoid arthritis who presented medical documentation along with their requests for extra time were rejected by LSAC even though their requests were never reviewed by anyone with appropriate medical expertise. The Dorfsman suit echoed many of the allegations made in the Justice Department’s suit, but promised to expand the scope of the case by adding claims from those with mental disabilities such as manic depression, attention deficit disorder, learning disabilities and narcolepsy. The suit alleged that LSAC violated the ADA when it denied requests for accommodations — either for extra time, a separate testing room or expanded breaks — by flatly rejecting the student’s medical evidence. Judge Hutton denied Ferleger’s motion for class certification. The lead plaintiff, Lise Nicole Dorfsman, later voluntarily withdrew her claim. But her co-plaintiff, Cima Fatomeh Amiri, settled her claim with a court-approved stipulation that she had received all of the accommodations she sought. Now Hutton has ruled that Amiri’s settlement does not entitle her to any attorney’s fees. “It is clear that plaintiff Amiri, who voluntarily settled her lawsuit with LSAC, has not achieved a judgment on the merits, nor has she secured a court-ordered consent decree,” Hutton wrote. “Rather, the court here is confronted with the very situation that concerned the U.S. Supreme Court in Buckhannon — that is, a lawsuit that brought about a voluntary change in the defendant’s conduct.” Hutton said the justices specifically held that such a voluntary change “lacks the necessary judicial imprimatur” for the plaintiff to be considered a prevailing party. The 3rd Circuit has already followed and expanded on Buckhannon with its Nov. 16 decision in County of Morris v. Nationalist Movement, which held that the status of prevailing party requires a showing that the litigant “has been awarded some relief by the court.” Hutton found that Amiri’s settlement did not meet Buckhannon‘s strict new test despite the fact that the terms were incorporated into a court-approved stipulation. “There is a distinction between consent decrees, in which there is a court-ordered change in the legal relationship between the parties, and private settlement agreements, which require no such judicial involvement,” Hutton wrote. “Under Buckhannon, private settlement agreements do not confer prevailing party status.” LSAC was represented by attorneys Joanne D. Sommer and Jane E. Leopold-Leventhal of Eastburn & Gray in Doylestown, Pa.

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