       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206             2    Wikol v. Birmingham                   Nos. 02-1798/2047
   ELECTRONIC CITATION: 2004 FED App. 0074P (6th Cir.)          Public Schools
               File Name: 04a0074p.06
                                                                               _________________
UNITED STATES COURT OF APPEALS                                                      COUNSEL
              FOR THE SIXTH CIRCUIT                        ARGUED: Richard J. Landau, DYKEMA GOSSETT, Ann
                _________________                          Arbor, Michigan, for Appellant. Richard E. Kroopnick,
                                                           POLLARD, ALBERTSON, NYOVICH & HIGDON,
ANIKA WIKOL, by and               X                        Bloomfield Hills, Michigan, for Appellee. ON BRIEF:
through her next friends,          -                       Richard J. Landau, DYKEMA GOSSETT, Ann Arbor,
Murray and Nanette Wikol,          -                       Michigan, for Appellant. Richard E. Kroopnick, POLLARD,
                                   -   Nos. 02-1798/2047   ALBERTSON, NYOVICH & HIGDON, Bloomfield Hills,
            Plaintiff-Appellant/ -                         Michigan, for Appellee.
                Cross-Appellee, >
                                   ,                                           _________________
                                   -
            v.                     -                                               OPINION
                                   -                                           _________________
BIRMINGHAM PUBLIC                  -
SCHOOLS BOARD OF                   -                         RONALD LEE GILMAN, Circuit Judge. Anika Wikol is
                                   -                       a child with autism who is eligible for special education and
EDUCATION ,
                                   -                       related services under the Individuals with Disabilities Act
           Defendant-Appellee/ -
                                                           (IDEA), 20 U.S.C. §§ 1400-1487. She resides within the
               Cross-Appellant. -                          Birmingham Public School District in Birmingham,
                                   -                       Michigan. At issue in this case are her parents’ attempts to
                                  N                        secure reimbursement from Birmingham for Anika’s
       Appeal from the United States District Court        educational program for the 1998-99 and 1999-2000
    for the Eastern District of Michigan at Ann Arbor.     academic years.
   No. 00-60265—Marianne O. Battani, District Judge.
                                                              The Wikols have appealed what they regard as an
               Argued: February 5, 2004                    inadequate award by the jury. They also seek to recover
                                                           attorney fees, costs, and prejudgment interest, all of which the
         Decided and Filed: March 10, 2004                 district court denied. In its cross-appeal, Birmingham
                                                           challenges the timeliness of the Wikols’ appeal with respect
  Before: NELSON, GILMAN, and ROGERS, Circuit              to all but their claim for attorney fees and costs. For the
                    Judges.                                reasons set forth below, we agree that the Wikols’ appeal was
                                                           untimely except for these latter items. We accordingly
                                                           dismiss the bulk of the Wikols’ claims for lack of appellate
                                                           jurisdiction. With regard to their claim for attorney fees and

                           1
Nos. 02-1798/2047                  Wikol v. Birmingham        3    4    Wikol v. Birmingham                 Nos. 02-1798/2047
                                         Public Schools                 Public Schools

costs, we vacate the decision of the district court denying such   Birmingham would pay “one-half of the costs of any such
relief and remand for reconsideration.                             program.” Despite the settlement for these prior years,
                                                                   disputes continued between the Wikols and Birmingham
                     I. BACKGROUND                                 regarding reimbursement for the Lovaas program in the 1998-
                                                                   99 and 1999-2000 school years.
   When Anika was approximately two-and-a-half years old,
her parents enrolled her in the preprimary impaired program           In December of 1999, the Wikols again requested a due
in the Birmingham public schools. The Wikols soon became           process hearing to resolve the outstanding reimbursement
dissatisfied with the program. They consequently removed           issues. A local hearing officer was appointed in early 2000,
Anika from the public school system and established a              but Birmingham objected to the hearing officer’s jurisdiction
full-time home-based alternative program recommended by            and requested that the matter be dismissed. Birmingham and
the Lovaas Institute, a non-profit organization that specializes   the Wikols ultimately stipulated to the dismissal of the
in educating children with autism. After approximately three       Wikols’ request for a due process hearing regarding the two
years in the Lovaas home-based program, the Wikols decided         school years in question, opting instead to “seek judicial
to partially transition Anika back into the Birmingham public      resolution of the issues.”
schools.
                                                                      The Wikols brought suit in May of 2000 against
  An “individualized education program team” comprised of          Birmingham in the United States District Court for the
the Wikols and members of Anika’s school thus convened,            Eastern District of Michigan. Eight months later, the Wikols
pursuant to the IDEA, to develop an individualized education       moved for summary judgment, arguing that they were entitled
program (IEP) for Anika. At the meeting, Birmingham and            to reimbursement from Birmingham for Anika’s home-based
the Wikols could not agree upon Anika’s educational program        Lovaas program. The district court granted the Wikols’
because, according to the Wikols, Birmingham refused to            motion in part with regard to the 1998-99 school year. It
(1) provide Anika with an IEP that would support her home-         concluded that, pursuant to the settlement agreement,
based education, and (2) reimburse the Wikols for their past       Birmingham owed the Wikols fifty percent of the “costs” of
expenses in providing Anika with the Lovaas program.               the Lovaas program, but that a genuine issue of material fact
                                                                   existed as to what constituted those costs. With regard to the
   This impasse led the Wikols to request a due process            1999-2000 school year, the district court denied the Wikols’
hearing pursuant to 20 U.S.C. § 1415(f). The due process           motion for summary judgment in its entirety.
hearing did not occur, however, because the parties reached
a settlement. Under the settlement agreement, dated April 8,         The case then proceeded to trial, at the end of which the
1998, Birmingham agreed to pay the Wikols $115,000 “as             jury awarded the Wikols approximately $5,000 for costs
reimbursement for necessary educational services actually          incurred in providing Anika’s home-based program for the
incurred or reasonably anticipated to be incurred during the       1998-99 school year. As for the 1999-2000 academic year,
1994-95 through 1997-98 school years.” The agreement               the jury determined that Birmingham’s school-based
further provided that Birmingham and the Wikols would meet         educational program had provided Anika with a “free
to determine Anika’s IEP for the following school years, and       appropriate public education,” and therefore declined to
that if a Lovaas or Lovaas-style program were implemented,         award the Wikols any reimbursement for that year.
Nos. 02-1798/2047                   Wikol v. Birmingham         5    6      Wikol v. Birmingham                  Nos. 02-1798/2047
                                          Public Schools                    Public Schools

   Following the district court’s entry of judgment on               Appellate Procedure, other than the one for attorney fees, the
March 27, 2002, the Wikols timely moved for the recovery of          time to file an appeal automatically runs for all parties from
attorney fees and costs pursuant to 20 U.S.C. § 1415, which          the entry of the order disposing of the last such remaining
the district court denied. The Wikols appeal from the district       motion. The post-decisional motion relevant to this case is of
court’s partial denial of their motion for summary judgment,         course the one for attorney fees, which was filed pursuant to
the jury’s verdict concerning the 1999-2000 school year, the         Rule 54 of the Federal Rules of Civil Procedure. When a
district court’s denial of their motion for attorney fees and        litigant files a Rule 54 motion for attorney fees, the time to
costs, and the district court’s denial of prejudgment interest.      file a notice of appeal will run from the disposition of that
Birmingham cross-appeals, challenging the timeliness of the          motion “if the district court extends the time to appeal under
Wikols’ appeal as to all issues other than their claim for           Rule 58.” Fed. R. App. P. 4(a)(4)(A)(iii) (emphasis added).
attorney fees and costs.                                             The plain language of Rule 4 thus stipulates that in order for
                                                                     the time to file an appeal to be tolled when a party moves for
                        II. ANALYSIS                                 attorney fees under Rule 54, the district court must
                                                                     affirmatively act pursuant to Rule 58 of the Federal Rules of
A. Timeliness of the Wikols’ appeal                                  Civil Procedure. Rule 58, in turn, provides that
  We must determine, as a threshold issue, whether we have               [w]hen a timely motion for attorney fees is made under
jurisdiction to hear the bulk of the issues raised in this appeal.       Rule 54(d)(2), the court may act before a notice of appeal
On cross-appeal, Birmingham argues that we do not have                   has been filed and has become effective to order that the
such jurisdiction because the Wikols filed their notice of               motion have the same effect under Federal Rule of
appeal late, outside of the time limits imposed by Rule                  Appellate Procedure 4(a)(4) as a timely motion under
4(a)(1)(A) of the Federal Rules of Appellate Procedure.                  Rule 59.
  Determining the timeliness of the Wikol’s notice of appeal         Fed. R. Civ. P. 58(c)(2) (emphasis added).
requires an analysis of the interplay between Rule 4 of the
Federal Rules of Appellate Procedure and Rules 54, 58, and              Rule 58’s reference to “a timely motion under Rule 59” is
59 of the Federal Rules of Civil Procedure. Rule 4(a)(1)(A)          initially puzzling, given that Rule 59 neither mentions the
of the Federal Rules of Appellate Procedure provides the             filing of a notice of appeal nor refers back to Rule 58. A
generally applicable limitation that a notice of appeal in a         number of cross-references are necessary to divine Rule 59’s
civil case must be filed “within 30 days after the judgment or       place in the Rule 4, 54, 58, 59 quagmire. The only part of
order appealed from is entered.” A litigant’s compliance with        Rule 59 that appears relevant to the timeliness of a notice of
this “mandatory and jurisdictional” requirement is of critical       appeal is 59(e), which provides that “[a]ny motion to alter or
importance. 16A Wright et al., Federal Practice and                  amend a judgment shall be filed no later than 10 days after the
Procedure § 3950.1 (3d ed. 1999).                                    entry of the judgment.” If we then look back to Rule
                                                                     4(a)(4)(A) of the Federal Rules of Appellate Procedure, we
  Exceptions to the 30-day rule exist, however. If a party           see that a Rule 59 motion to alter or amend the judgment is
timely files any one of the six post-judgment motions                one of the five enumerated motions that automatically resets
enumerated in Rule 4(a)(4)(A) of the Federal Rules of
Nos. 02-1798/2047                  Wikol v. Birmingham         7   8      Wikol v. Birmingham                  Nos. 02-1798/2047
                                         Public Schools                   Public Schools

the time to file a notice of appeal “from the entry of the order       5. In the alternative, Plaintiffs request that pursuant to
disposing of the . . . motion.”                                        Fed. R. Civ. P. 58 and 59(e), the Court amend its
                                                                       May 15, 2002 Order to include a provision stating that
   We therefore conclude that when a timely motion for                 the parties’ March 22, 2002 motions to assess fees and
attorney fees is filed under Rule 54, and the district court           costs shall be given the same effect under Rule 4(a)(4) of
exercises its discretion under Rule 4(a)(4)(A) to extend the           the Federal Rules of [Appellate] Procedure as a timely
time for filing a notice of appeal, the motion for attorney fees       motion under Rule 59.
is given the same effect as a Rule 59 motion to amend or alter
the judgment, which, pursuant to Rule 4(a)(4)(A),                  While this motion was pending in the district court, the
automatically resets the time to file a notice of appeal until     Wikols filed their notice of appeal on June 14, 2002. On
the newly characterized Rule 59 motion, formerly a Rule 54         July 11, 2002, the district court granted the Wikols’ motion
motion for attorney fees, is disposed of. See Mendes Junior        for an extension of time in which to file a notice of appeal,
Int’l Co. v. Banco do Brasil, 215 F.3d 306, 312 (2d Cir. 2000)     ruling in pertinent part that
(“Rule 58 expressly describes some of the temporal
limitations on the district court’s authority to order that a          the court grants the plaintiff’s request and pursuant to
timely Rule 54 fee motion have the same effect as a timely             Fed. R. Civ. P.[] 58, the March 22nd motion for costs
motion under, for example, Rule 59 (which we will                      and attorney fees shall have the same effect under Rule
sometimes refer to as a ‘Rule 58/54/59 order’).”). Rule 58             4(a)(4) of the Federal Rules of Appellate Procedure as a
imposes no time limit on when the district court must rule on          timely motion under Rule 59. Therefore, the time for
the Rule 54 motion, except that it must act before “a notice of        filing a notice of appeal shall run from the date of the
appeal has been filed and has become effective . . . .” This is        entry of the Court’s order on the motion for attorney fees,
the nub of the problem, because here the district court acted          May 15, 2002.
on the Wikols’ Rule 54 motion after they had filed their
notice of appeal.                                                     Birmingham argues that the district court’s July 11, 2002
                                                                   grant of an extension of time to file the notice of appeal was
  On March 22, 2002, the Wikols moved for attorney fees            ineffective because it was entered after the Wikols filed their
and costs, which the district court denied on May 15, 2002.        June 14, 2002 notice, contrary to the language contained in
The Wikols then attempted to take advantage of the tolling         Rule 58 of the Federal Rules of Civil Procedure that limits the
provision of Rule 4(a)(4) in a May 24, 2002 motion to extend       district court’s power to act to the time “before a notice of
the time for filing a notice of appeal. Their motion provided      appeal has been filed and has become effective . . . .”
in pertinent part as follows:                                      (Emphasis added.) It contends that when the Wikols filed
                                                                   their notice of appeal on June 14, 2002, the notice became
  4. Plaintiffs hereby request that pursuant to Fed. R. Civ.       effective immediately; therefore, “[b]y the express terms of
  P. 58, the Court order that the parties’ motions for costs       Rule 58, the District Court had no authority, on July 11, 2002,
  and attorneys’ fees have the same effect under Rule              to enter its Order Extending the Time for Filing the Notice of
  4(a)(4) of the Federal Rules of Appellate Procedure as a         Appeal.”
  timely motion under Rule 59.
Nos. 02-1798/2047                  Wikol v. Birmingham         9    10   Wikol v. Birmingham                   Nos. 02-1798/2047
                                         Public Schools                  Public Schools

   In response, the Wikols argue that although they had filed         [a] notice filed before the filing of one of the specified
their notice of appeal before the district court entered its Rule     motions or after the filing of a motion but before
58/54/59 order, “it is indisputable that the notice of appeal as      disposition of the motion is, in effect, suspended until the
to the underlying judgment had not yet become effective.”             motion is disposed of, whereupon, the previously filed
They reason that because the notice of appeal was filed               notice effectively places jurisdiction in the court of
outside of Rule 4(a)(1)’s prescribed time period, it could only       appeals. . . . [A] notice of appeal will ripen into an
become effective upon some action of the district court               effective appeal upon disposition of a posttrial motion
triggering one of the exceptions to the 30-day limit. The             ....
Wikols conclude that their notice of appeal “became effective
upon the district court’s entry of its July 11, 2002                Fed. R. App. P. 4(a)(4) advisory committee’s notes.
Memorandum and Order.” For the reasons that follow, we
respectfully disagree.                                                Based upon this understanding of the word “effective,” we
                                                                    hold that the Wikols’ notice of appeal was effective on the
  The key issue is whether the notice of appeal became              day that it was filed, given that the judgment had been entered
effective prior to the time the district court issued its           and that no motions that automatically toll the time to file a
July 11, 2002 order. We look to Rule 4(a)(4)(B)(i) of the           notice of appeal were pending. We therefore agree with
Federal Rules of Appellate Procedure for guidance as to the         Birmingham that the district court’s July 11, 2002 order did
meaning of the word “effective.” This portion of Rule 4             not comply with the time requirements of Rule 58.
provides as follows:
                                                                       As a final comment on this issue, we cannot help but
  If a party files a notice of appeal after the court               express dismay over the complexity of the rules regarding the
  announces or enters a judgment—but before it disposes             timeliness of an appeal under the present circumstances.
  of any motion listed in Rule 4(a)(4)(A)—the notice                There should be no need to have to parse the language of four
  becomes effective to appeal a judgment or order, in               different rules of procedure in order to find an answer to
  whole or in part, when the order disposing of the last            whether an appeal is timely filed. See generally, Kenneth J.
  such remaining motion is entered.                                 Servay, The 1993 Amendments to Rules 3 and 4 of the
                                                                    Federal Rules of Appellate Procedure—A Bridge Over
Rule 4(a)(4)(B)(i) does not apply here because the Wikols’          Troubled Water—Or Just Another Trap?, 157 F.R.D. 587,
notice of appeal was filed after the entry of the order             605 (1994) (noting that the amended Rule 4 “concerning the
disposing of their Rule 54 motion, not before. The rule             effect of post-judgment motions for attorney’s fees” on the
suggests, however, that the concept of “effectiveness” is           timeliness of a notice of appeal creates a “jurisdictional
limited to delaying the transfer of jurisdiction to the appellate   trap.”). The basic problem is that five of the six post-
court from an otherwise timely filed notice of appeal until the     judgment motions enumerated in Rule 4(a)(4)(A)
relevant post-judgment motion is decided. Supporting this           automatically extend the time to file an appeal, but the
interpretation are the advisory notes to Rule 4, which explain      remaining one (a motion for attorney fees pursuant to Rule
that                                                                54) does not. Perhaps this is a topic that should be considered
                                                                    by the Advisory Committee to the Federal Rules of Appellate
                                                                    Procedure.
Nos. 02-1798/2047                  Wikol v. Birmingham       11    12    Wikol v. Birmingham                   Nos. 02-1798/2047
                                         Public Schools                  Public Schools

   In any event, we have no choice but to dismiss the Wikols’      during the 1998-99 academic year. Birmingham does not
appeal as untimely with respect to all but their claim for         contest the Wikols’ prevailing-party status.
attorney fees and costs. “[E]ven where the attorney’s fee
motion is filed before the notice of appeal, under the wording        We review a district court’s decision of whether to award
of [Rule 58], that motion would not extend the appeal time         attorney fees under the “abuse of discretion” standard.
unless the district court also extended the appeal time before     Phelan v. Bell, 8 F.3d 369, 373 (6th Cir. 1993). A district
the notice of appeal was filed.” Servay at 606. This leaves us     court abuses its discretion when it relies upon clearly
with the remaining issue regarding the Wikols’ request for         erroneous factual findings, applies the law improperly, or uses
attorney fees and costs, as to which the appeal was                an erroneous legal standard. Id.
indisputably timely. We now turn our attention to this issue.
                                                                      The IDEA’s fee-shifting provision is to be interpreted
B. The district court’s denial of attorney fees and costs          consistent with 42 U.S.C. § 1988, the attorney-fees provision
   to the Wikols                                                   for civil rights actions. Id. Sixth Circuit case law requires
                                                                   that a district court award attorney fees to a prevailing party
   Following the district court’s entry of judgment, the Wikols    where no special circumstances militate against such an
filed a motion for the recovery of attorney fees and costs         award. Berger v. City of Mayfield Heights, 265 F.3d 399, 406
pursuant to 20 U.S.C. § 1415. The district court denied the        (6th Cir. 2001) (“[W]e have previously observed that
Wikols’ motion, reasoning that although they were                  although the Supreme Court has held [that] . . . it is within the
technically the prevailing parties, they did not prevail on the    district court’s discretion to award attorney’s fees under
bulk of their case and they were therefore not entitled to         section 1988, in the absence of special circumstances a
attorney fees or costs. On appeal, the Wikols argue that the       district court not merely may but must award fees to the
district court erred because they were undeniably the              prevailing plaintiff.”) (quotation marks and citation omitted).
prevailing party and because there were no “special
circumstances” justifying a denial of fees.                          The Ninth Circuit has adopted a two-prong test to
                                                                   determine whether special circumstances exist, presumably in
  The IDEA provides that “[i]n any action or proceeding            an effort to define “special circumstances” more precisely.
brought under this section, the court, in its discretion, may      Under this test, a court must consider “(1) whether awarding
award reasonable attorneys’ fees as part of the costs to the       fees would further the congressional purpose in enacting [the
parents of a child with a disability who is the prevailing         IDEA], and (2) the balance of the equities.” Barlow-Gresham
party.” 20 U.S.C. 1415(i)(3)(B). To be considered a                Union High School v. Mitchell, 940 F.2d 1280, 1285 (9th Cir.
“prevailing party” for the purpose of attorney fees, a plaintiff   1991). Although the use of such a test gives the appearance
must “succeed on any significant issue in litigation which         of a systematic approach to defining “special circumstances,”
achieves some of the benefit the part[y] sought in bringing        we question whether the Ninth Circuit’s factors, due to their
suit.” Berger v. Medina City Sch. Dist., 348 F.3d 513, 526         vagueness, render the test any more useful than the customary
(6th Cir. 2003) (quoting Hensley v. Eckerhart, 461 U.S. 424,       case-by-case analysis.
433 (1983)). The district court found that the Wikols were a
prevailing party because they had obtained a favorable               The Fourth Circuit has rejected the Mitchell test, reasoning
judgment regarding reimbursement for Anika’s schooling             that it “contains no real standards and provides no legitimate
Nos. 02-1798/2047                  Wikol v. Birmingham        13    14   Wikol v. Birmingham                   Nos. 02-1798/2047
                                         Public Schools                  Public Schools

reason for departing from the usual rule of awarding                fees under the Eckerhart standard but, under this court’s
reasonable fees to prevailing plaintiffs under fee-shifting         precedents, their “limited success” should not have acted as
statutes.” Doe v. Bd. of Educ. of Baltimore County, 165 F.3d        a total bar to recovery.
260, 264 n.2 (4th Cir. 1998) (holding that an attorney-parent’s
representation of his own daughter in an IDEA proceeding               Birmingham also argues that the Wikols are barred from
constituted special circumstances that justified the denial of      attorney fees under 20 U.S.C. § 1415(i)(3)(D), which
an award of attorney fees). But see Borengasser v. Arkansas         provides that a plaintiff will not be awarded attorney fees
State Bd. of Educ., 996 F.2d 196, 199 (8th Cir. 1993) (holding      where he or she rejects a written settlement offer and the court
that the district court abused its discretion in not awarding       finds that the relief obtained by the plaintiff is not more
attorney fees to the parents of a disabled child in an IDEA         favorable than the offer of settlement. The settlement-offer
action where the school district had argued a lack of effort to     exception to an award of attorney fees might indeed bar the
resolve the dispute on the part of the parents’ attorney). We       Wikols from recovery, but the district court did not make the
agree with the Fourth Circuit’s approach that attorney-fees         requisite finding that the relief obtained by the Wikols was
awards should be analyzed on a case-by-case basis, without          less favorable than whatever offer Birmingham may have
attempting to apply any predetermined formula.                      made. On remand, the district court should therefore consider
                                                                    20 U.S.C. § 1415(i)(3)(D)’s potential applicability to this
   Birmingham argues that the Wikols’ allegedly “false and          case.
misleading” billings to Birmingham constitute special
circumstances that justify denying their request for attorney                           III. CONCLUSION
fees. But this court has rejected the argument that a plaintiff’s
bad acts are special circumstances warranting the denial of           For all of the reasons set forth above, we conclude that the
attorney fees. Price v. Pelka, 690 F.2d 98, 101 (6th Cir.           Wikols’ notice of appeal was untimely as to the bulk of their
1982) (holding that the plaintiff’s perjury was not a special       claims. We therefore have jurisdiction only over the district
circumstance that warranted a denial of attorney fees in a          court’s denial of attorney fees and costs, which decision we
housing discrimination case). Given this precedent, the             vacate and remand with instructions to reconsider.
record does not support a finding of special circumstances
warranting the denial of attorney fees to the Wikols, even if
we assume that some billings were false or misleading. We
therefore remand the issue of attorney fees and costs to the
district court.
  On remand, the district court should take into consideration
the extent to which the Wikols succeeded on their claims. See
Hensley v. Eckerhart, 461 U.S. 424, 440 (1983) (“[W]here the
plaintiff achieved only limited success, the district court
should award only that amount of fees that is reasonable in
relation to the results obtained.”) The Wikols may well
receive reimbursement for only a fraction of their total legal
