UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KEITH A. SMALL; ROBERT SMALL,
Plaintiffs-Appellees,

v.

MICHAEL S. DELLIS; MARCELLA
                                                                No. 99-1068
DELLIS; DINING OUT ENTERPRISES,
INCORPORATED, d/b/a Michael's
Restaurant, a Maryland Corporation,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Paul W. Grimm, Magistrate Judge.
(CA-96-3190-AMD)

Argued: February 29, 2000

Decided: April 25, 2000

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge,
and Robert E. PAYNE, United States District Judge
for the Eastern District of Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Ralph Louis Arnsdorf, SEMMES, BOWEN & SEMMES,
P.C., Towson, Maryland, for Appellants. Andrew David Levy,
BROWN, GOLDSTEIN & LEVY, L.L.P., Baltimore, Maryland, for
Appellees. ON BRIEF: Lauren E. Willis, BROWN, GOLDSTEIN &
LEVY, L.L.P., Baltimore, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Keith and Robert Small, two wheelchair users, brought suit against
Michael's Restaurant and its owners for violations of the Americans
with Disabilities Act (ADA). The district court granted summary
judgment to the Smalls on their ADA claims. The parties agreed to
resolve the remaining issues concerning attorney's fees and costs
before a magistrate judge using simplified procedures and limiting the
grounds for appeal. The magistrate judge awarded plaintiffs $54,414
in attorney's fees and costs. Defendants appeal the award, and we
affirm the judgment.

I.

The Smalls initiated this action against Michael's Restaurant and
its owners Michael and Marcella Dellis. The Smalls alleged that the
defendants discriminated against them on the basis of their disability
by denying them full and equal enjoyment of the restaurant, in viola-
tion of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
The Smalls also raised state tort claims of assault, battery, and inten-
tional infliction of emotional distress arising from a confrontation
between Keith Small and Michael Dellis over the accessibility of rest-
rooms in the restaurant.

Defendants made several attempts to settle the ADA claims. The
settlement offers, however, did not include attorney's fees and
required the Smalls to dismiss their state law claims. Defendants also
served the Smalls with a Fed. R. Civ. P. 68 offer of judgment that

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made no reference to an award of attorney's fees and offered plain-
tiffs only $4,008 for their state law claims. The Smalls rejected the
offer. The district court then granted summary judgment to the Smalls
on their ADA claims, finding that defendants had violated the ADA
by not including a handicapped restroom in the new section of the res-
taurant and by failing to remove certain architectural barriers. The
district court granted summary judgment to the restaurant on the
intentional infliction of emotional distress claim.

Following the district court's judgment, the state claims for assault
and battery settled for $12,500. The parties also agreed to submit the
issue of attorney's fees and costs to Magistrate Judge Paul Grimm.
Although the parties initially agreed to arbitrate the dispute before
Judge Grimm, magistrate judges may not in their judicial capacity
serve as arbitrators. See DDI Seamless Cylinder Int'l, Inc. v. General
Fire Extinguisher Corp., 14 F.3d 1163, 1165 (7th Cir. 1994). In light
of this fact, the parties agreed instead to simplified procedures. They
decided that the magistrate judge would review summary materials
and briefings provided by the parties. The parties also agreed that
"any appeal will be limited to the grounds which would apply to an
appeal from the decision of an arbitrator."

The magistrate judge reviewed the materials and issued a judgment
awarding plaintiffs $50,642 in attorney's fees and $3,772 in costs. In
a comprehensive opinion, he found that the Smalls were a prevailing
party under the ADA and that the award of attorney's fees was appro-
priate in light of the virtually complete relief granted to the Smalls on
their claims. The district court entered judgment for the Smalls.
Michael's Restaurant and its owners now appeal.

II.

A.

We review a district court's award of attorney's fees for abuse of
discretion. See Trimper v. City of Norfolk, 58 F.3d 68, 73 (4th Cir.
1995). In accordance with their agreement, however, the parties main-
tain that we should limit our review to the narrow grounds available
for review of an arbitration award. A magistrate judge may not serve
as an arbitrator, yet there is some authority that parties may proceed

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before a magistrate judge using simplified procedures. See DDI Seam-
less Cylinder, 14 F.3d at 1166. We need not decide the validity of the
parties' agreement to proceed in this unorthodox manner because the
award of attorney's fees would pass muster under the conventional
abuse of discretion standard.

B.

The ADA provides that a court "in its discretion, may allow the
prevailing party . . . a reasonable attorney's fee." 42 U.S.C. § 12205
(1994). This provision is important to enforcement because private
individuals cannot recover damages for violations of the ADA unless
such relief is requested by the Attorney General. See id.
§ 12188(b)(2)(B). The attorney's fee provision in the ADA borrows
its fee-shifting language from other civil rights statutes, and therefore
carries the same underlying policies. See Bercovitch v. Baldwin Sch.,
Inc., 191 F.3d 8, 10-11 (1st Cir. 1999) (attorney's fee provision in
ADA intended to be interpreted consistently with other civil rights
laws); accord Roe v. Cheyenne Mountain Conference Resort, Inc.,
124 F.3d 1221, 1232 (10th Cir. 1997). Attorney's fees are ordinarily
awarded to prevailing civil rights plaintiffs. See Hensley v. Eckerhart,
461 U.S. 424, 429 (1983).

The district court must make two determinations when considering
a claim for attorney's fees under the ADA. First, in order to qualify
for attorney's fees, a plaintiff must be a "prevailing party." Plaintiffs
are "`prevailing parties' for attorney's fees purposes if they succeed
on any significant issue in litigation which achieves some of the bene-
fit the parties sought in bringing suit." Id. at 433 (internal quotation
marks omitted). Further, "a plaintiff `prevails' when actual relief on
the merits of his claim materially alters the legal relationship between
the parties by modifying the defendant's behavior in a way that
directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 111-12
(1992); see also S-1 & S-2 v. State Bd. of Educ. , 21 F.3d 49, 51 (4th
Cir. 1994) (en banc). The Smalls are clearly prevailing parties. The
district court found appellants in violation of the ADA. Appellants
were thus required to make significant changes to the restaurant in
order to accommodate handicapped patrons. The Smalls also recov-
ered $12,500 in settlement for their state law claims, a sum signifi-
cantly greater than originally offered by appellants.

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Second, the court must determine whether an award of attorney's
fees should be granted to a prevailing party and what amount would
be reasonable under the circumstances. The district court has signifi-
cant discretion in determining the amount of a fee award. "This is
appropriate in view of the district court's superior understanding of
the litigation and the desirability of avoiding frequent appellate
review of what essentially are factual matters." Hensley, 461 U.S. at
437. The reasonableness of a fee award relates primarily to the plain-
tiff's degree of success. See Farrar, 506 U.S. at 114; accord Shep-
pard v. Riverview Nursing Center, Inc., 88 F.3d 1332, 1336 (4th Cir.
1996). Here the court carefully applied case law to explain why attor-
ney's fees were appropriate. The court also "considered the relation-
ship between the amount of the fee awarded and the results obtained."
Hensley, 461 U.S. at 437. It found that the suit directed appellants to
maintain their restaurant in strict compliance with the ADA -- clearly
a success for the Smalls.

Further, the court considered the Smalls' rejection of settlement
offers. See Sheppard, 88 F.3d at 1337 ("[A] court may consider a
plaintiff's rejection of a settlement offer as one of several factors gen-
erally informing its discretionary inquiry . . . ."). The settlement offers
did not include attorney's fees and required the Smalls to dismiss
their state law claims. Under the ADA there is a presumption in favor
of granting attorney's fees to a prevailing party, and the Smalls were
certainly not required to accept an offer without such fees. Similarly,
the Rule 68 offer of judgment made no mention of attorney's fees,
and offered the Smalls only $4,008, when they eventually recovered
$12,500. See Fed. R. Civ. P. 68 (plaintiff is denied post-offer costs
only if offer was greater than or equal to the eventual recovery);
Marek v. Chesny, 473 U.S. 1, 6 (1985) (costs are a necessary compo-
nent of a judgment entered under Rule 68). In light of these facts, the
magistrate judge correctly found that the rejection of settlement offers
did not preclude an award of attorney's fees.

After determining that the Smalls were entitled to attorney's fees,
the magistrate judge calculated a reasonable fee by meticulously con-
sidering the factors set forth in Johnson v. Georgia Highway Express,
Inc., 488 F.2d 714 (5th Cir. 1974). These factors are: (1) the time and
labor required; (2) the novelty and difficulty of the questions; (3) the
skill requisite to perform the legal service properly; (4) the preclusion

                     5
of other employment by the attorney due to acceptance of the case;
(5) the customary fee; (6) whether the fee is fixed or contingent; (7)
time limitations imposed by the client or the circumstances; (8) the
amount involved and the results obtained; (9) the experience, reputa-
tion, and ability of the attorneys; (10) the "undesirability" of the case;
(11) the nature and length of the professional relationship with the cli-
ent; and (12) awards in similar cases. See id. at 717-19; Trimper v.
City of Norfolk, 58 F.3d 68, 73 (4th Cir. 1995). The magistrate judge
considered the factors and discussed them in a manner that we find
unexceptionable. In view of the careful analysis undertaken by the
magistrate judge, we can find no ground for vacating the award of
attorney's fees.

III.

Because the award of attorney's fees to the Smalls was appropriate,
we affirm the judgment.

AFFIRMED

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