ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 85-1035)
Before GIBBONS, BECKER, and ROSENN, Circuit Judges
The plaintiff, Disabled in Action of Pennsylvania, Inc. (DIAP), appeals from an order of the district court denying its motion for an award of attorney's fees against the United States Department of Housing and Urban Development (HUD) and the General Services Administration (GSA). DIAP sought fees pursuant to section 505(b) of the Rehabilitation Act of 1973, which provides that "in any action or proceeding to enforce or charge a violation of a provision of this subchapter, the court, in its discretion, may allow the prevailing party. .. a reasonable attorney's fee. .. " 29 U.S.C. § 794a(b) (1982). Without taking testimony and without an opinion, the district court denied the fee motion. The government defends that ruling (1) on the ground that DIAP was not the prevailing party; (2) on the ground that its position was substantially justified; and (3) on the ground that special circumstances made the award of a fee unjust. We reverse and remand for the determination of an appropriate fee award.
Early in 1985 HUD planned to move certain of its operations to newly-renovated office space in the Liberty Square Building at 105 South 7th Street, Philadelphia, Pennsylvania. On February 27, 1985 DIAP filed a class action complaint against HUD for declaratory and injunctive relief, contending that HUD was denying the handicapped equal access to this office space in violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1982). DIAP averred that the handicapped were being discriminated against because: (1) the primary entrance to the Liberty Square Building on 7th Street was inaccessible to and unusable by persons confined to wheelchairs and by persons with mobility disabilities since a flight of steep stairs from the sidewalk to the door blocked their access; (2) the front door and numerous internal doors could not be opened by the disabled because the handles were too difficult to operate; and (3) the elevators in the building were equipped with buttons which were too high, and lacked Braille markings and direction indicator bells for the blind. As amended complaint joined GSA, the actual lessee of the building, which was responsible for providing the office space for HUD. DIAP moved for a preliminary injunction compelling the government to develop a plan to eliminate barriers to access by the handicapped.
On the eve of the hearing date on DIAP's motion for a preliminary injunction, the government moved pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the complaint for failure to state a claim on which relief could be granted. The government's legal theory was that accessibility to HUD's offices was governed not by the Rehabilitation Act, but by the Architectural Barriers Act, 42 U.S.C. §§ 4151-4157 (1982). Under that Act, the government contended, DIAP was required to exhaust administrative remedies. Moreover, the government contended, the building satisfied the Uniform Federal Accessibility Standards promulgated under the Architectural Barriers Act.
The district court heard argument on the government's motion to dismiss on March 13, 1985, and denied the motion on March 26. The court held that the Rehabilitation Act provided a remedy in addition to and independent of the Architectural Barriers Act, but that the government was correct in its contention that the Uniform Federal Accessibility Standards applied. Since there existed issues of material fact concerning the government's compliance with those standards the court continued the hearing on DIAP's preliminary injunction motion until March 29.
In the succeeding two weeks the parties negotiated a Stipulation for Compromise and Settlement, which was approved by the district court on April 10, 1985. The Stipulation reserved for future determination DIAP's entitlement to attorney's fees. A fee petition was filed on May 10, 1985. The government filed opposing papers. On July 10, 1985, the district court denied the petition, and entered and order reciting that "(1) litigation was unnecessary" and (2) [the] government's position was substantially justified -- a factor which, even under 29 U.S.C. § 749a(b), bears an exercise of court's discretion." Joint Appendix 169.
Section 505(b) provides for an award of attorney's fees to "the prevailing party." Courts that have considered the question have concluded that the language "prevailing party" in section 505(b) means the same thing as the identical language in the Civil Rights Attorney's Fee Awards Act, 42 U.S.C. § 1988 (1982). See Hall v. Bolger, 768 F.2d 1148, 1151 (9th Cir. 1985); Jones v. Illinois Department of Rehabilitation Services, 689 F.2d 724, 730 n.8 (7th Cir. 1982); Disabled in Action v. Mayor of Baltimore, 685 F.2d 881, 885 n.4 (4th Cir. 1982); United Handicapped Federation v. Andre, 622 F.2d 342, 345-48 (8th Cir. 1980).
This court has not yet had occasion to define "prevailing party" under section 505(b). The decisions referred to above, equating "prevailing party" in that section with "prevailing party" in section 1988, however, are consistent with the statement in Hensley v. Eckerhart, 461 U.S. 424, 433 n.7, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983) that the standards used in section 1988 cases are "generally applicable in all cases in which Congress has authorized an award of fees to a 'prevailing party'. " Thus we conclude that the case law in this circuit defining "prevailing party" for purposes of section 1988 should be regarded as controlling. That standard, announced in Bagby v. Beal, 606 F.2d 411, 415 (3d Cir. 1979), and restated in NAACP v. Wilmington Medical Center, Inc., 689 F.2d 1161, 1166 (3d Cir. 1982) cert. denied, 460 U.S. 1052, 75 L. Ed. 2d 930, 103 S. Ct. 1499 (1983), is whether the fee petitioner achieved some of the benefit sought by the party bringing the suit. In Institutional Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 910-11 (3d Cir. 1985) we held that the Wilmington Medical Center standard was consistent with Hensley v. Eckerhart.
In applying that test our first step is to compare the relief sought with that actually obtained. Institutional Juveniles, 758 F.2d at 911. Our second step is to determine the causal connection between the relief obtained and the litigation. Id. at 910 (citing Wilmington Medical Center, 689 F.2d at 1166-70). The plaintiff's lawsuit need not be the sole cause, so long as it is a material factor in prompting the defendant to afford relief. Wilmington Medical Center, 689 F.2d at 1169; Sullivan v. Pennsylvania Department of Labor and Industry, 663 F.2d 443, 449 (3d Cir. 1981), cert. denied, 455 U.S. 1020, 72 L. Ed. 2d 138, 102 S. Ct. 1716 (1982); Morrison v. Ayoob, 627 F.2d 669, 671 (3d Cir. 1980) (per curiam), cert. denied, 449 U.S. 1102, 101 S. Ct. 898, 66 L. Ed. 2d 828 (1981).
The fact that the relief obtained was the result of a settlement rather than a litigated decree does not prevent a finding that the plaintiff is a prevailing party. E.g., Maher v. Gagne, 448 U.S. 122, 129, 65 L. Ed. 2d 653, 100 S. Ct. 2570 (1980); Larsen v. Sielaff, 702 F.2d 116, 117 (7th Cir.), cert. denied, 464 U.S. 956, 78 L. Ed. 2d 330, 104 S. Ct. 372 (1983); Mayor of Baltimore ; 685 F.2d at 885-86; Doe v. Busbee, 684 F.2d 1375, 1379 (11th Cir. 1982); Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980) (per ...