                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-3268
                                   ___________

Joan Peter; Sarah Peter, a minor, by and
                                       *
through her parent and natural guardian*
Joan Peter; Krista Westendorp; Douglas *
Westendorp; Aaron Westendorp, a        *
minor, by and through his parents and  *
natural guardians Krista Westendorp    *
and Douglas Westendorp,                *
                                       *
             Appellants,               *
                                       *
       v.                              * Appeal from the United States District
                                       * Court for the District of Minnesota.
Christine Jax, Commissioner of         *
Minnesota Department of Children,      *
Families and Learning; Jesse Ventura, *
Governor, State of Minnesota;          *
Independent School District, No. 877, *
Buffalo, Minnesota; Independent        *
School District, No. 273, Edina,       *
Minnesota.                             *
                                       *
             Appellees.                *
                                  ___________

                             Submitted: April 22, 1999

                                 Filed: August 13, 1999
                                  ___________

Before BOWMAN, Chief Judge, ROSS and MAGILL, Circuit Judges.
                             ___________

ROSS, Circuit Judge.
      Disabled students, Sarah Peter and Aaron Westendorp, and their parents
(appellants) appeal from an order of the district court1 denying them attorney's fees
under 42 U.S.C. § 1988 against the Governor of Minnesota and the Commissioner of
the Department of Children, Families and Learning (the State). Peter v. Wedl, 18 F.
Supp.2d 1002 (D. Minn. 1998). We affirm.

BACKGROUND
       Some of the background of this litigation is set forth in Peter v. Wedl, 155 F.3d
992 (8th Cir. 1998). Relevant to this fee dispute is the following. In July 1996,
appellants brought an action under 42 U.S.C. § 1983 against their school districts and
the State, alleging that Minn. R. 3525.1150 (the rule) barred provision of on-site
paraprofessional services at religious schools in violation of their rights to free speech,
free exercise of religion, and equal protection under the First and Fourteenth
Amendments, as well as under the Individuals with Disabilities Education Act (IDEA),
20 U.S.C. § 1400-1491o (1994) and state law. The rule required that school districts
provide special education services "at a neutral site," which included nonreligious
private schools, but not religious schools. See Minn. Stat. §123.932, subd. 9.

       Appellants filed a motion for a preliminary injunction enjoining enforcement of
the rule, relying on, among other cases, Zobrest v. Catalina Foothills Sch. Dist., 509
U.S. 1 (1993). In Zobrest, the Supreme Court held that the Establishment Clause did
not bar a school district from providing a student with a sign-language interpreter at
a religious school. The State opposed the motion and moved to dismiss, relying on,
among other cases, Aguilar v. Felton, 473 U.S. 402 (1985), in which the Supreme

      1
        The Honorable John M. Mason, United States Magistrate Judge for the District
of Minnesota, to whom this matter was referred for submission by consent of the
parties under 28 U.S.C. § 636(c). Because another matter is pending in the district
court, the court entered its order pursuant to Fed. R. Civ. P. 54(b), thus making it
appealable.
                                            -2-
Court held that the Establishment Clause barred public school teachers from providing
remedial education services in a religious school. The school districts also filed various
motions.

      In March 1997, the district court denied injunctive relief, granted in part and
denied in part appellees' motions to dismiss, and granted a motion for summary
judgment against appellants on their IDEA claims. Peter v. Johnson, 958 F. Supp.
1383, 1400 (D. Minn. 1997), rev'd in part, Peter v. Wedl, 155 F.3d at 1002.

       On June 23, 1997, the Supreme Court decided Agostini v. Felton, 521 U.S. 203
(1997). In Agostini, the Court expressly overruled Aguilar and held that the
Establishment Clause did not bar provision of publicly-funded remedial services at
religious schools.

        On June 24, 1997, the State wrote appellants' counsel, proposing putting the
litigation "on hold" until June 27 while it reviewed Agostini. However, on June 26,
appellants brought a new motion for preliminary injunction based on Agostini. Later
that day, the State faxed a letter to appellants expressing surprise on receiving the
motion in light of its June 24 letter. The State also advised appellants that after review
of Agostini the Commissioner no longer intended to "enforce Minn. R. 3525.1150 to
prevent school districts from providing special education services on-site at sectarian
schools." The State indicated it would work with the state board of education to repeal
the rule to the extent it was inconsistent with Agostini, but noted that school districts
retained the discretion to determine whether to provide special education services at
private schools. In letters of July 11 and 22, the State reiterated its position that
"because of Agostini, the State will no longer enforce the rule as limited to neutral
sites" and that the school districts had the responsibility for provision of special
education services. In its July 11 letter, the State also advised appellants that only the
state board of education had the authority to change the rule and the Commissioner


                                           -3-
could not "dictate the outcome of the rulemaking process," which could take several
months.

       On July 31, 1997, appellants and the State stipulated to entry of a preliminary
injunction. On August 5, the court entered a preliminary injunction enjoining
enforcement of the rule "insofar as it prohibits provision of special education services
to Plaintiffs Sarah Peter and Aaron Westendorp on the premises of a private religious
school." In October 1997, the state school board changed the rule so that it no longer
prohibited provision of special education services at religious schools, explaining the
change was necessary to comply with Agostini. The district court then dismissed the
claims against the State as moot.

       In September 1997, the Peters entered into a settlement agreement with their
school district in which the district agreed to rescind policies that prohibited provision
of paraprofessional services at religious schools and to pay $31,000, which included
attorney's fees. However, the Westendorps' school district refused to provide such
services, maintaining it did not provide the services at any private school. The
Westendorps then moved for a preliminary injunction requiring the school district to
provide paraprofessional services at a religious school. The district court thereafter
denied injunctive relief and granted summary judgment against the Westendorps'
remaining constitutional and state law claims against the district, and they appealed.

       While the Westendorps' appeal was pending, appellants filed an application in
the district court for attorney's fees against the State under 42 U.S.C. § 1988,2 seeking
$272,494.80 in fees and expenses, including over $62,000 for fee litigation. Appellants
contended they were prevailing parties under Farrar v. Hobby, 506 U.S. 103 (1992),


      2
         A "district court retains jurisdiction over collateral matters, such as attorney's
fees . . ., while an appeal is pending." Missouri v. Coeur D'Alene Tribe, 164 F.3d
1102, 1107 n.3 (8th Cir.), cert. denied, 119 S. Ct. 2400 (1999).
                                            -4-
because they obtained relief on the merits of their claim against the State. In the
alternative, appellants contended they were prevailing parties because their lawsuit was
the catalyst for the change in the State's position.

       The district court denied the fee application. The court held that appellants were
not prevailing parties under Farrar because the relief obtained by the consent injunction
and stipulation did not materially benefit them, as Farrar required, noting it was the
school district's responsibility to provide the requested paraprofessional services. See
Id. at 111. The court also held that appellants were not prevailing parties under a
catalyst theory of recovery, finding that the State changed its position because of
Agostini, not because of the lawsuit. In any event, the court concluded even if
appellants were prevailing parties, it would deny attorney's fees because of special
circumstances, including that until the Supreme Court's decision in Agostini, the State
was obligated to follow Aguilar.

DISCUSSION
       Under 42 U.S.C § 1988(b), a district "court, in its discretion, may allow the
prevailing party . . . a reasonable attorney's fee as part of the costs." We review the
denial of fees for an abuse of discretion. Jenkins v. Missouri, 127 F.3d 709, 713 (8th
Cir. 1997) (en banc). However, "the question of prevailing party status, a statutory
term, presents a legal issue for decision, which we review de novo." Id. at 713-14.

       In the district court, the parties disputed whether Farrar or the catalyst theory
should apply to determine prevailing party status. Under Farrar, a plaintiff must obtain
"some relief on the merits of his claim . . . against the defendant from whom fees are
sought," either through an enforceable judgment or comparable relief. Farrar, 506 U.S.
at 111. The catalyst theory is an "alternative to the Farrar approach in cases where the
defendant voluntarily granted the requested relief, rendering the lawsuit moot[,]" if the
lawsuit was the cause of the remedial action and defendant's compliance was not
gratuitous. Tyler v. Corner Constr. Corp., 167 F.3d 1202, 1205 (8th Cir. 1999). In

                                           -5-
Tyler, this court, noting some confusion in our cases, held that courts should apply "the
principles outlined in Farrar to determine prevailing-party status in cases that result in
settlement." Id. In light of Tyler, the parties concede, and we agree, that the Farrar
principles are applicable.

       We turn now to those principles. Appellants argue the consent injunction and
stipulation automatically make them prevailing parties under Farrar. We disagree.
Although under Farrar, a plaintiff must obtain relief on the merits through an
enforceable judgment, a consent decree, or a settlement, that is not enough. In
addition, the relief must "materially alter[] the legal relationship between the parties by
modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar,
506 U.S. at 111-12. The Court also emphasized "[w]hatever relief the plaintiff secures
must directly benefit him at the time of the judgment or settlement." Id. at 111. The
Court explained that it is "[o]nly under these circumstances can civil rights litigation
effect 'the material alteration of the legal relationship of the parties' and thereby
transform the plaintiff into a prevailing party." Id. (quoting Texas State Teachers Ass'n.
v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989)). "Otherwise the judgment
or settlement cannot be said to 'affec[t] the behavior of the defendant toward the
plaintiff.' " Id. (quoting Rhodes v. Stewart, 488 U.S.1, 4 (1988) (per curiam)).

       Thus, as we read Farrar, the civil rights litigation, not some other reason, must
be the cause for the change in a defendant's behavior. In other words, under Farrar, not
only must the plaintiff "have obtained relief through a judgment or settlement[,]" but
also the "lawsuit [must] be a catalyst of legal change favorable to the plaintiff." Board
of Educ. v. Steven L., 89 F.3d 464, 469 (7th Cir. 1996), cert. denied, 520 U.S. 1198
(1997); see also New Hampshire v. Adams, 159 F.3d 680, 684 (1st Cir. 1998) ("fee-
seeker [must] show both materiality and causation as prerequisites to achieving
prevailing party status"); Statewide Reapportionment Advisory Comm. v. Beasley, 99
F.3d 134, 137 (4th Cir. 1996) (en banc) ("To be a prevailing party in a legal action, a
party must obtain relief in the action on the merits of his claim, and not from some other

                                            -6-
process.") (Niemeyer, J., concurring), cert. denied, 520 U.S. 1166 (1997) (internal
citation omitted).

        In determining whether a party prevails because of a lawsuit or because of some
other reason, this court has rejected a "but for" test of causation. Traux v. Bowen, 842
F.2d 995, 997 (8th Cir. 1988) ("although it is true that had [claimant] not filed his
lawsuit he would not have obtained relief, we fail to see how this 'but for' argument
establishes a causal connection between the litigation and . . . remedial action"); see
also Steven L., 89 F.3d at 469 (to determine prevailing-party status " '[b]ut for' is not
an adequate conception of cause"); Brown v. Griggsville Community Unit Sch. Dist.
No. 4,12 F.3d 681, 685 (7th Cir. 1993) (plaintiffs were not prevailing parties where
school "board changed its mind for reasons unrelated to the legal proceeding (except
in the 'but for' sense")). Rather, "a proper concept of causation requires more, requires
that the putative cause also have made the consequence more likely to occur." Id.
"Whether such a causal link existed is a question of fact[,]" which we review under the
clearly erroneous standard. Shipman v. Missouri Dept. of Family Serv., 877 F.2d 678,
682 (8th Cir. 1989), cert. denied, 493 U.S. 1045 (1990).

       We agree with appellants that as a general rule when a party "settles with
government authorities following the commencement of a citizen suit, it is permissible
to infer that the citizen suit motivated the settlement." Armstrong v. ASARCO, Inc.,
138 F.3d 382, 387 (8th Cir. 1998).3 However, in this case, because of the intervening
and dispositive Agostini decision, we do not believe the general rule is applicable. In
this case, the district court's finding that the State changed its position on enforcement
of the rule because of Agostini, and not because of appellants' lawsuit, is supported by
the record and thus not clearly erroneous. Before the Supreme Court's decision in


      3
        "A fee-seeker who aspires to prevailing party status may make the requisite
showing of causation by . . . win[ning] the litigation." Adams, 159 F.3d at 684
(internal quotation omitted).
                                           -7-
Agostini, the State did not waiver in its position that the case was controlled by
Aguilar. On June 24, the day after Agostini was decided, the State asked appellants
to put the litigation on hold for three days while it considered the implications of the
decision. On June 26, the State wrote appellants that in light of Agostini the
commissioner would "no longer enforce Minn. R. 3525.1150 to prevent school districts
from providing special education services on-site at sectarian schools and would take
action to repeal the rule to the extent it was inconsistent with Agostini." The State
reiterated its position in letters of July 11 and 22. On July 31 appellants and the State
stipulated to entry of the injunction enjoining enforcement of the rule to the extent it
was inconsistent with Agostini. On August 5, the court enjoined the State from
"enforcing Rule 3525.1150 insofar as it prohibits provision of special education
services to Plaintiffs Sarah Peter and Aaron Westendorp on the premises of a private
religious school."

       The chronology amply supports the district court's finding that it was Agostini,
not the litigation, that caused the State to change its position on enforcement of the rule.
Indeed, this court recognized that the State "abandoned [its Establishment Clause]
argument following the Supreme Court's decision in Agostini," and "[f]ollowing this
decision," stipulated to entry of an injunction. Peter, 155 F.3d at 995, 997. Put another
way, because at the time the stipulation and injunction were entered, the State was no
longer enforcing the rule the documents did not "materially alter[] the legal relationship
between the parties." Farrar, 506 U.S. at 111. See Martinez v. Wilson, 32 F.3d 1415,
1423 (9th Cir. 1994) (party did not prevail because "the behavior enjoined was not
occurring at the time the injunction issued, nor was there any imminent threat of its
occurrence"). In addition, the Supreme Court has explained that "[w]here the plaintiff's
success on a legal claim can be characterized as purely technical," the plaintiff would
not be a prevailing party. Garland, 489 U.S. at 792. After Agostini was decided, it
seems to us the entry of the stipulated injunction was at most a technical success, which
would not entitle appellants to attorney's fees.


                                            -8-
      We have considered appellants' argument that Agostini was the state defendants'
"ultimate cover to concede a lost cause in a way that both avoided certain judicial
defeat . . . and . . . attorney fee liability."4 Appellants assert that their discovery
materials "influenced [the State's] decision to swiftly settle, agree to the injunction, and
conclude this litigation as it did." We disagree. Appellants claim their "most important
discovery" was the deposition of Penny Kodrich, director of special services for the
Westendorps' school district, in which she stated the rule prevented the district from
providing special services to Aaron at a religious school -- which is what the rule did.
In any event, the deposition was taken on July 17, after the State announced that the
rule would no longer be enforced to the extent it was inconsistent with Agostini, and
thus could not have influenced the State's decision.

        Appellants also claim the May 12, 1997 deposition of Wayne Erickson, the
manager of the state department of special education services, was a "turning point."
They note that this court quoted Erickson's deposition testimony that it was "the state's
policy" to provide special education services in the classroom of a nonreligious private
school. Peter, 155 F.3d at 995. However, as the State maintained throughout the
litigation, in his testimony Erickson made clear that the "school district makes the


       4
         Appellants also argue they are prevailing parties under an "inevitable victory"
theory of recovery, asserting even if not for Agostini, they would have won. We have
never expressly recognized such a theory and refuse to do so now. "The [Supreme]
Court has repeatedly warned against permitting fee disputes to 'spawn a second
litigation of significant dimension.' " Guglietti v. Secretary of Health and Human Serv.,
900 F.2d 397, 403 (1st Cir. 1990) (quoting Garland, 489 U.S. at 791). Appellants'
proposed theory would "require[] nothing less than the hypothetical relitigation of
cases which, because of [an intervening event], need not be litigated at all." Id.

       In addition, we note that although this court recognized that in light of Zobrest,
the State's Establishment Clause defense "was highly questionable," Peter, 155 F.3d at
997, in Agostini, the Supreme Court warned lower courts not to conclude that "more
recent cases have, by implication, overruled an earlier precedent." 521 U.S. at 237.
                                            -9-
determination as to whether an individual student is entitled to services," and if so, "to
determine where those services are provided." As the district court found, there is
nothing in the record to suggest that the State changed its position on enforcement of
the rule in response to Erickson's testimony. To the contrary, the record shows that
until the Supreme Court decided Agostini, the State was actively litigating the case.
Indeed, in a July 11 letter the State informed appellants because of "the likely
resolution of this matter under Agostini, the State Defendants will not be responding
to your Motion in Support of a Preliminary Injunction or attending depositions, and we
do not expect you to respond to our pending discovery requests."

       Also, and importantly, as the district court noted, resolution of whether the rule
was defensible under the Establishment Clause was not dependent upon factual issues,
as was the equal protection claim against the Westendorps' school district, see Peter,
155 F.3d at 997 (remand for factual determination of basis for denial of special
services),5 but was a legal question. Indeed, in a July 2 letter appellants wrote the State
that as they read Agostini it was "a complete acceptance of our position that Rule
3525.1150 . . . is not justified by the Establishment Clause." As this court recognized,
after Agostini, the rule could no longer "be justified as a narrowly tailored means of
avoiding a violation of the Establishment Clause." Peter, 155 F.3d at 997.

        Moreover, consideration of the relief-obtained prong of Farrar shows that any
relief obtained was the result of Agostini, not the litigation. In their June 26 motion for
injunctive relief, appellants asked that the court require "defendants to provide special
education services to plaintiff Aaron Westendorp" at a religious school. However, the
injunction only enjoined enforcement of the rule "insofar as it prohibits provision of
special education services . . . on the premises of a private religious school." It did not
mandate a change in the rule or require provision of the requested paraprofessional


         5
             On remand the Westendorps abandoned their equal protection claim. See infra
at 17.
                                             -10-
services at religious schools. It merely memorialized the Commissioner's previously
announced decision that the rule would not be enforced in light of Agostini. Thus,
appellants "did not receive any relief which was not mandated by" Agostini. Goehring
v. Brophy, 94 F.3d 1294, 1304 (9th Cir. 1996), cert denied, 520 U.S. 1156, overruled
on other grounds, City of Boerne v. Flores, 521 U.S. 507 (1997).

       In fact, this case is very similar to Goehring. In that case, plaintiffs filed a
§ 1983 action in federal district court alleging that a state university's policy of using
student fees to fund political and religious organizations violated their First Amendment
rights. After, in another case, the state supreme court held that the policy was
unconstitutional and the United States Supreme Court denied certiorari, the university
revised its policy to conform to the state supreme court's decision. Plaintiffs then filed
a motion for attorney's fees under § 1988, which the district court denied. The Ninth
Circuit upheld the denial, holding that plaintiffs were not prevailing parties because the
university revised its policy in response to the denial of certiorari and not the lawsuit.

       The State also argues because the injunction did not require a rule change or
provision of services, it did not "directly benefit" appellants, as Farrar requires. See
Farrar, 506 U.S. at 111 ("Whatever relief the plaintiff secures must directly benefit him
at the time of the judgment or settlement."). The State notes only the state school
board, a nonparty, could change the rule and only the school districts could provide the
requested paraprofessional services. Appellants argue they benefited because the
stipulation and injunction caused the State to "immediately ceas[e] the invidious
discrimination of the rule." They rely on Jacobson v. City of Coates, 171 F.3d 1162,
1163 (8th Cir. 1999) (per curiam), in which this court held that appellants were
prevailing parties because a judicial determination that an ordinance "was
unconstitutional changed the legal relationship between appellants and the City."
However, this court has also stated that "'a judicial pronouncement that the defendant
has violated the Constitution,'" without more, does not make a plaintiff a prevailing
party. Pedigo v. P.A.M. Transport, Inc., 98 F.3d 396, 398 (8th Cir. 1996) (quoting

                                           -11-
Farrar, 506 U.S. at 112). See also Cady v. City of Chicago, 43 F.3d 326, 330 (7th Cir.
1994) ("unless [plaintiff] can point to a direct benefit . . . other than the 'psychic
satisfaction' of ending 'invidious discrimination,' he does not emerge as a prevailing
party"). But see Dambrot v. Central Michigan Univ., 55 F.3d 1177, 1192 (6th Cir.
1995) ("vindication of [constitutional rights] . . . constitutes relief such that Plaintiffs
should be deemed prevailing parties"). Because we hold that the lawsuit did not cause
the State to change its position on enforcement of the rule, we do not decide whether
nonenforcement of the rule is a "direct benefit" under Farrar.

       In any event, even if appellants were prevailing parties, we agree with the district
court that they would not be entitled to fees because of special circumstances.
Although prevailing parties "'should ordinarily recover an attorney's fee,'" a district
court has discretion to deny an award where "'special circumstances would render such
an award unjust.'" Hatfield v. Hayes, 877 F.2d 717, 719 (8th Cir. 1989) (quoting
Newman v. Piggie Park Enter., Inc. 390 U.S. 400, 402 (1968)). "Because the language
of § 1988 does not include the 'special circumstances' exception, this judicially created
exception should be narrowly construed." Id. at 720. In addition, as the district court
noted, a defendant's good faith alone is not a special circumstance sufficient to justify
a denial of fees. See Yankton Sch. Dist. v. Schramm, 93 F.3d 1369, 1377 (8th Cir.
1996).

       However, in this case, we believe "the following reasons, all of which, taken
together, amount to special circumstances that would make [a fee] award unjust." Little
Rock Sch. Dist. v. Arkansas State Bd. Of Educ., 928 F.2d 248, 249 (8th Cir. 1991)
(order); see also Thorsted v. Munro, 75 F.3d 454, 456 (9th Cir. 1996) (order) (although
"several of the circumstances identified by the district court [including defendant's good
faith] would be insufficient, standing alone, to warrant a denial of fees . . . court did not
abuse its discretion by denying fees based on the totality of the circumstances"). First,
as the district court noted, until the Supreme Court's decision in Agostini, the State had
no choice but to follow Aguilar, even though it might have been undermined by

                                            -12-
Zobrest. See Agostini, 521 U.S. at 237 (lower courts should not "conclude [Supreme
Court's] more recent cases have, by implication, overruled an earlier precedent").
Within two days of the Agostini ruling, the Commissioner concluded the rule would no
longer be enforced to the extent it conflicted with Agostini. See Chastang v. Flynn &
Emrich Co., 541 F.2d 1040, 1045 (4th Cir. 1976) (special circumstances justified denial
of fees because company acted "with reasonable dispatch" to bring retirement plan in
compliance with law "as soon as a murky area of the law was clarified . . . and from
the chronology of events we cannot infer that plaintiffs' law suits were a contributing
factor").

     Moreover, as the district court noted, appellants' counsel was aware that the
Supreme Court would likely decide Agostini by June 1997 and believed it would be
dispositive, but continued to litigate the matter and incur fees. In fact, one of
appellants' counsel, who seeks reimbursement for over 773 hours at $300 an hour, filed
an amicus brief in Agostini and was "confident" the outcome would support his
position. As the First Circuit has stated, "[t]he prevailing party requirement is an
incentive mechanism designed to encourage prompt resolution of meritorious claims
and to discourage unnecessary litigation." Adams, 159 F.3d at 687. "This policy
rationale . . . is served by declining to award fees when litigation yields only relief that
in all probability was attainable without the time and expense of adversarial
proceedings." Id. Cf. Oxford House-A v. City of University City, 87 F.3d 1022, 1024
(8th Cir. 1996) (plaintiff was not prevailing party where timing of lawsuit was
"unreasonable" because plaintiff obtained same relief in administrative proceedings).

      In similar circumstances, the Seventh Circuit has held that the district court did
not abuse its discretion in denying a fee request. In Brown v. Stackler, 612 F.2d 1057,
1058 (7th Cir. 1980), the "complaint raised an issue which everyone knew would be
controlled" by a pending Supreme Court case. After the Supreme Court's ruling, which
was favorable for plaintiffs, the district court entered judgment for plaintiffs, who then
submitted a fee request claiming 800 hours. The Seventh Circuit found no abuse of

                                            -13-
discretion in the denial of fees, noting "it was utterly unreasonable to expend that
amount of time on a . . . case, which would almost automatically be disposed of by the
decision [of the Supreme Court] whose determination was being awaited." Id. at 1059.

       Indeed, this court has stated that a party in a civil rights action "is not entitled
needlessly to accumulate exorbitant legal fees with the expectation that the losing party
will be called upon to pick up the entire tab." Planned Parenthood of Minnesota v.
Citizens For Community Action, 558 F.2d 861, 871 (8th Cir. 1977). We note that after
Agostini, appellants had offered to "stop the meter" on fees if the State agreed to their
demands. We remind appellants that "[a]n award of attorney's fees is compensatory,
not punitive, and we will not allow a threat of paying the opposing party's unreasonable
legal fees to chill" the assertion of a defense of a claim. Id. See also Jaquette v. Black
Hawk County, 710 F.2d 455, 463 (8th Cir. 1983) (fee awards "should not serve as a
vehicle to charge exorbitant fees and such excessive fees should not act to chill good
faith defenses to claims brought under the Civil Rights Act").

       We also note that appellants, who have hired a so-called "fee-litigation
specialist," in their application claimed over $62,000 for district court fee litigation, but
now inform this court that the amount has grown to $75,000, and if successful in this
court would, of course, seek fees for the appeal. Although appellants claim that
$75,000 for fee litigation against the State in the district court is reasonable, we believe
the amount is excessive. We remind appellants of the Supreme Court's admonition that
"[a] request for attorney's fees should not result in a second major litigation." Hensley
v. Eckerhart, 461 U.S. 424, 437 (1983).

       In addition, appellants are "'[a]pparently unmindful of the Supreme Court's
admonition that fee awards are not intended to 'produce windfalls to attorneys.'" St.
Louis Firefighters Ass'n. v. City of St. Louis, 96 F.3d 323, 332 n.9 (8th Cir. 1996)
(quoting Riverside v. Rivera, 477 U.S. 561, 580 (1986)). This court has held that
"special circumstances ma[d]e a fee award unjust" against a defendant who "did only

                                            -14-
what it reasonably believed was compelled by state law," because awards against other
defendants, who had a "much more direct connection" to constitutional violations,
"fully compensate[d] the plaintiff to the extent required by law." Rose v. State of
Nebraska, 748 F.2d 1258, 1264 (8th Cir. 1984), cert. denied, 474 U.S. 817 (1985); see
also Little Rock Sch. Dist., 928 F.2d at 249 (court denied fees because plaintiffs had
been "well compensated" by fee awards against other parties). In this case, the State
points out the Peters have received $31,000 from their school district, which includes
attorney's fees, and the Westendorps' fee petition requesting apparently over $60,000
against their school district is pending in the district court.6 Relying on Rose, the State
argues an award of fees against it would be unjust because it was the responsibility of
the school districts to provide the requested paraprofessional services and that
provision of such services was the actual relief appellants sought and was independent
of the State's position on enforcement of the rule.

        We agree and believe the Westendorps' litigation proves the point. After the
State decided not to enforce the rule, their school district still refused to provide
paraprofessional services in a religious school, maintaining it did not provide such
services in any private school. In our previous appeal, we reversed the district court's
grant of summary judgment on the Westendorps' equal protection claim and remanded
"for a factual determination of whether [the school district] based its denial of services
. . . on its purported religion-neutral policy, or if its denial was based on the religious
animus contained in Minnesota Rule 3525.1150." Peter, 155 F.3d at 998. In addition,
we reversed the district court's grant of summary judgment on their IDEA claim, but
only as to violations before the 1997 Amendments to the IDEA, which made clear a
school district was not required to provide special education services in a private school




      6
       The district court stayed ruling on attorney's fee issues pending the decision in
this appeal. We note we had remanded for the district court's consideration the
Westendorps' request for over $67,000 in fees in connection with their previous appeal.
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if a student received the services in a public school. Id. We left the proper relief for
the past violations to the discretion of the district court. Id. at 1001.

       On remand, the district court, as equitable relief for the past IDEA violations,
ordered the school district "to provide a classroom paraprofessional aide to Aaron
Westendorp at the school chosen by his parents, whether public or private (including
religious), for the equivalent of six academic years" and also ordered the school district
to pay $1 in stipulated damages. Westendorp v. Indep. Sch. Dist. No 273, 35 F.
Supp.2d 1134, 1138 (D. Minn. 1998). The Westendorps then requested that the district
court enter final judgment, representing that the relief obtained on their IDEA claim
provided "all the relief they have sought in this case" and it was thus unnecessary for
the court to address their constitutional claim, which implicated the State's enforcement
of the rule. The State did not object, and the court entered final judgment on the IDEA
claim without resolving the constitutional claim. Because resolution of a constitutional
claim involving the State's enforcement of the rule was unnecessary to Aaron's
obtaining the requested paraprofessional services in a religious school, an award
against the State is "unnecessary to vindicate [appellants'] federal rights." Rose, 748
F.2d at 1264.7

CONCLUSION
       In sum, we hold that appellants are not prevailing parties and thus the district
court did not abuse its discretion in denying an award of attorney's fees. In the
alternative, even if appellants were prevailing parties, we would hold that special
circumstances justified a denial of fees.




      7
        Although we did not decide whether nonenforcement of the rule was the kind
of "direct relief" Farrar requires, see supra at 12, we believe the resolution of the
Westendorps' claims supports the State's arguments that it was not.
                                           -16-
Accordingly, we affirm the district court's order denying attorney's fees.

A true copy.

     Attest:

        CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT




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