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N.Y. STATE ASS'N OF CAREER SCHOOLS v. EDUC. DEPT.

May 6, 1991

NEW YORK STATE ASSOCIATION OF CAREER SCHOOLS, CITY TECHNICAL INSTITUTE, ISLAND DRAFTING AND TECHNICAL INSTITUTE, NASSAU SCHOOL FOR MEDICAL AND DENTAL ASSISTANTS AND PARALEGAL INSTITUTE, PLAINTIFFS,
v.
STATE EDUCATION DEPARTMENT OF THE STATE OF NEW YORK, BUREAU OF PROPRIETARY SCHOOL SUPERVISION, JOSEPH P. FREY, JAMES A. KADAMUS, DONALD J. NOLAN, ROBERT J. MAURER, AND THOMAS SOBOL, EACH OF THE INDIVIDUAL DEFENDANTS BEING SUED IN HIS INDIVIDUAL AS WELL AS OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Leisure, District Judge:

ORDER AND OPINION

This action was brought pursuant to 42 U.S.C. § 1983, seeking injunctive and declaratory relief with respect to certain New York State regulations regarding the review of proprietary trade school advertising, and the bonding and licensing of proprietary trade school personnel.*fn1 By stipulation and order signed by this Court on December 21, 1990, this action was dismissed with prejudice. Plaintiffs' counsel has now moved for an order, pursuant to 42 U.S.C. § 1988, granting an award of $47,534.38 in attorney's fees, asserting that plaintiffs were "prevailing parties" within the meaning of the statute. For the reasons set forth below, the motion for attorney's fees is denied.

Background

Plaintiffs in this action are several proprietary trade schools, as well as an association that represents such schools. Plaintiffs brought this action on June 26, 1989, seeking a judgment declaring unconstitutional and enjoining the enforcement of certain provisions of the New York Education Law. In particular, plaintiffs objected to: 1) the requirement that defendant State Education Department of the State of New York ("SED") give prior approval to proprietary trade school advertising and promotional materials; 2) licensing requirements for individuals who are involved in soliciting, recruiting or enrolling students in proprietary trade schools; and 3) bonding requirements for individuals who are involved in soliciting, recruiting or enrolling students in proprietary trade schools.

The parties disagree in their affidavits and declarations as to much of the subsequent history of this case. Accepting plaintiffs' version of the facts as true solely for purposes of deciding the instant motion, it appears that defendant SED was amenable to the elimination of the existing requirement for preapproval of proprietary trade school advertising. As of a conference before the Court on June 22, 1990, the parties had agreed to settle the action if a change in the law — at least as to the preapproval requirement — could be obtained. Plaintiffs' counsel states in his declaration that at that conference "I told the Court . . . that plaintiffs had already arranged its [sic] end of the agreement by having obtained a provision in the LaValle bill was had [sic] already been reported out of the Senate in which prior review of advertising was specifically eliminated. . . ." Declaration of Carl E. Person, Esq., executed on February 15, 1991 ("Person Decl."), ¶ 14.

By mid-July 1990, both houses of the New York State Legislature had passed a bill that included, inter alia, the elimination of the preapproval requirement. Person Decl., Exhibit G (Memorandum for the Governor from Lieutenant Governor Stan Lundine, dated July 17, 1990). The same bill includes

  many important measures for preventing the kind of
  abuses that have arisen in the vocational school
  industry. . . . Among the bill's most important
  accomplishments is the heightened ability it would
  give to the Commissioner of Education to police the
  industry by enhancing his oversight and enforcement
  powers. It would make licensing requirements more
  stringent and would authorize the Commissioner to
  impose substantial fines and take other disciplinary
  action against individuals who violate the law. It
  also would establish a tuition reimbursement fund to
  protect students in schools that cease to operate or
  fail to refund tuition or loan money.

Person Decl., Exhibit J (Memorandum for the Governor from Attorney General Robert Abrams dated July 23, 1990). Approval of the bill was recommended by the Office of the Lieutenant Governor, defendant SED, the New York State Consumer Protection Board, the Department of Law, the Higher Education Services Corporation, the Division of the Budget, the Office of the Mayor of New York, the New York State Conference of the N.A.A.C.P., the Citizen's Committee for Children of New York, Inc., the United Way of New York City, the Advocates for Children of New York, Inc., the Victim Services Agency, Legal Services for New York City, the Statewide Youth Advocacy, Inc., the Grand Street Settlement, the New York State United Teachers, the Council of the City of New York, the Alliance of Quality Business Education, East Coast Training Services, Inc., the Registered Business Schools Association of New York State, Inc., and plaintiff New York State Association of Career Schools. Person Decl., Exhibit L. The bill was signed into law by Governor Mario Cuomo on July 30, 1990, effective September 1, 1990. Person Decl., Exhibit L.

In early October 1990, plaintiffs' counsel prepared a proposed "Stipulation of Settlement and Order for Entry of Judgment," which was forwarded to defendants' counsel. Person Decl., ¶ 21 and Exhibit O. The stipulation stated that "the parties were able to obtain the desired legislation" eliminating the preapproval requirement, and provided that the matter was settled and a final judgment in favor of plaintiffs should be entered. Person Decl., Exhibit O. Counsel for defendants rejected the proposed stipulation and order. Person Decl., ¶ 21. Thereafter, on December 21, 1990, a "Stipulation and Order of Dismissal" was filed, stating merely that "the action is dismissed with prejudice." Person Decl., Exhibit C.

Plaintiffs' counsel has now moved, pursuant to 42 U.S.C. § 1988, for an award of attorney's fees, on the theory that the instant lawsuit was the "catalyst" for the legislation that passed, that plaintiffs thereby obtained the benefits sought in their action, and that plaintiffs are thus "prevailing parties" within the meaning of § 1988.

Discussion

Section 1988 provides, in pertinent part, that "[i]n any action or proceeding to enforce a provision of [42 U.S.C. § 1983], the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988. "In order to be eligible for attorney's fees under § 1988, a litigant must be a `prevailing party.'" Hewitt v. Helms, 482 U.S. 755, 759, 107 S.Ct. 2672, 2675, 96 L.Ed.2d 654 (1987). "The fact that [the plaintiff] prevailed through a settlement rather than through litigation does not weaken [his or] her claim to fees. Nothing in the language of § 1988 conditions the District Court's power to award fees on full litigation of the issues or on a judicial determination that the plaintiff's rights have been violated." Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2575, 65 L.Ed.2d 653 (1980).

Nevertheless, in making an application for an award of fees under § 1988, "the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). "To justify an award of such fees, the prevailing party must show a causal connection between the relief obtained and the litigation in which the fees are sought. A causal connection exists if the plaintiff's lawsuit was `a catalytic, necessary, or substantial factor in attaining the relief.'" Gerena-Valentin v. Koch, 739 F.2d 755, 758-59 (2d Cir. 1984) (citations omitted) (quoting Commissioners Court of Medina County, Texas v. United States, 683 F.2d 435, 440 (D.C.Cir. 1982)); see also Rose v. Heintz, 806 F.2d 389, 391 (2d Cir. 1986) (quoting Gerena-Valentin, supra, 739 F.2d at 758-59); Gingras v. Lloyd, 740 F.2d 210, 213 (2d Cir. 1984) ("We see no indication that Congress intended that fees be awarded to a plaintiff . . . who obtained only benefits that the defendant plainly would have conferred even in the absence of a lawsuit."); Kutas v. Regan, 712 F. Supp. 445, 447 (S.D.N.Y. 1989); cf. American Constitutional Party v. Munro, 650 F.2d 184, 188 (9th Cir. 1981) ("the courts have consistently required that plaintiffs seeking to qualify as `prevailing parties' [under § 1988] establish some sort of clear, causal relationship between the litigation brought and the practical outcome realized."); Correa v. Heckler, 587 F. Supp. 1216, 1221 (S.D.N.Y. 1984) (plaintiff must establish that her litigation efforts were a "necessary and important factor" in obtaining results).

In the case at bar, the parties dispute the precise extent of the "relief obtained." Both sides agree that the preapproval requirement was eliminated by the 1990 proprietary trade school reform legislation, but differ as to whether the changes as to bond and licensing requirements constituted relief for plaintiffs. The Court need not decide this question, however, because even if the legislation contained all three elements sought by plaintiffs in this action, there remains simply no evidence that plaintiffs' lawsuit was "`a catalytic, necessary, or substantial factor in attaining the relief.'" Gerena-Valentin, supra, 739 F.2d at 758-59 ...


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