UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES FRANKLIN, Dr., Superintendent;
JERRY DICKS, Boardmember; NORMAN
GABLE, Boardmember; JULIA
MCFADDEN, Boardmember; JAMES E.
SHAW, Boardmember; ALVIN O. WHITE,
Boardmember; ROBIN COOPER, by and
through her parent and next friend
Patty Cooper; VERTANZA O.
CUNNINGHAM, by and through her
parent and next friend Valtricia L.
Cunningham; PEMBV GRAHAM, by and
through her parent and next friend
Martha Graham; SHIRRISHA WHITE, by
and through her parent and next friend
Alvin White,
Plaintiffs-Appellants,
                                         No. 95-1301
v.

JEFFREY LAWRIMORE, Mayor of
Hemingway, South Carolina; GEORGE
SUTTON; WESLEY KENNEDY; JAMES GUY;
SARAH GALLAWAY; M. B. LEE, JR.;
TERRY WELCH, Council Members
respectively of Hemingway, South
Carolina; MAYOR AND TOWN COUNCIL
OF HEMINGWAY; ELECTION COMMISSION
OF HEMINGWAY; MANNING PATTERSON;
BETTY PATTERSON, Election
Commissioners of Hemingway,
Defendants-Appellees,

and
EDWIN HUGGINS; WILLARD LAWRIMORE,
as members of the Hemingway
Annexation Steering Committee;
HEMINGWAY ANNEXATION STEERING
COMMITTEE; DAVID L. BEASLEY,
Governor of South Carolina; J.
WESLEY KENNEDY, as member of the
Hemingway Annexation Steering
Committee,
Defendants.

JAMES FRANKLIN, Dr., Superintendent;
JERRY DICKS, Boardmember; NORMAN
GABLE, Boardmember; JULIA
MCFADDEN, Boardmember; JAMES E.
SHAW, Boardmember; ALVIN O. WHITE,
Boardmember; ROBIN COOPER, by and
through her parent and next friend
Patty Cooper; VERTANZA O.
CUNNINGHAM, by and through her
                                         No. 95-1821
parent and next friend Valtricia L.
Cunningham; PEMBV GRAHAM, by and
through her parent and next friend
Martha Graham; SHIRRISHA WHITE, by
and through her parent and next friend
Alvin White,
Plaintiffs-Appellants,

v.

                  2
JEFFREY LAWRIMORE, Mayor of
Hemingway, South Carolina; GEORGE
SUTTON; WESLEY KENNEDY; JAMES GUY;
SARAH GALLAWAY; M. B. LEE, JR.;
TERRY WELCH, Council Members
respectively of Hemingway, South
Carolina; MAYOR AND TOWN COUNCIL
OF HEMINGWAY; ELECTION COMMISSION
OF HEMINGWAY; MANNING PATTERSON;
BETTY PATTERSON, Election
Commissioners of Hemingway,
Defendants-Appellees,

and

EDWIN HUGGINS; WILLARD LAWRIMORE,
as members of the Hemingway
Annexation Steering Committee;
HEMINGWAY ANNEXATION STEERING
COMMITTEE; DAVID L. BEASLEY; J.
WESLEY KENNEDY, as member of the
Hemingway Annexation Steering
Committee,
Defendants.

             3
JAMES FRANKLIN, Dr., Superintendent;
JERRY DICKS, Boardmember; NORMAN
GABLE, Boardmember; JULIA
MCFADDEN, Boardmember; JAMES E.
SHAW, Boardmember; ALVIN O. WHITE,
Boardmember; ROBIN COOPER, by and
through her parent and next friend
Patty Cooper; VERTANZA O.
CUNNINGHAM, by and through her
parent and next friend Valtricia L.
Cunningham; PEMBV GRAHAM, by and
through her parent and next friend
Martha Graham; SHIRRISHA WHITE, by
and through her parent and next friend
Alvin White,
Plaintiffs-Appellants,
                                         No. 96-1178

v.

JEFFREY LAWRIMORE, Mayor of
Hemingway, South Carolina; GEORGE
SUTTON; WESLEY KENNEDY; JAMES GUY;
SARAH GALLAWAY; M. B. LEE, JR.;
TERRY WELCH, Council Members
respectively of Hemingway, South
Carolina; MAYOR AND TOWN COUNCIL
OF HEMINGWAY; ELECTION COMMISSION
OF HEMINGWAY; MANNING PATTERSON;
BETTY PATTERSON, Election
Commissioners of Hemingway,
Defendants-Appellees,

and

                 4
EDWIN HUGGINS; WILLARD LAWRIMORE,
as members of the Hemingway
Annexation Steering Committee;
HEMINGWAY ANNEXATION STEERING
COMMITTEE; DAVID L. BEASLEY,
Governor of South Carolina; J.
WESLEY KENNEDY, as member of the
Hemingway Annexation Steering
Committee,
Defendants.

Appeals from the United States District Court
for the District of South Carolina, at Florence.
William B. Traxler, Jr., District Judge.
(CA-93-2760-4-21)

Argued: July 14, 1997

Decided: September 8, 1997

Before MURNAGHAN, Circuit Judge, PHILLIPS,
Senior Circuit Judge, and BRITT,
United States District Judge for the
Eastern District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Britt wrote the opinion, in
which Judge Murnaghan and Senior Judge Phillips joined.

_________________________________________________________________

COUNSEL

ARGUED: Brenda Reddix-Smalls, REDDIX-SMALLS & CARTER,
Columbia, South Carolina, for Appellants. Lawrence Bradley Orr,
BRIDGES, ORR, DERRICK & ERVIN, Florence, South Carolina,

                    5
for Appellees. ON BRIEF: Eleazer R. Carter, REDDIX-SMALLS &
CARTER, Columbia, South Carolina, for Appellants.

_________________________________________________________________

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

_________________________________________________________________

OPINION

BRITT, District Judge:

Plaintiffs-Appellants James Franklin et al. appeal from an order
denying them attorney's fees following the dismissal of their Voting
Rights Act's claims on the grounds of mootness. Plaintiffs had sought
declaratory and injunctive relief under the Voting Rights Act of 1965,
42 U.S.C. §§ 1973 et seq., for certain actions undertaken by
Defendants-Appellees Jeffrey Lawrimore et al. in annexing several
parcels of land and in attempting to secede from their current county.
A companion case advancing identical claims resulted in a consent
order enjoining the defendants from certain actions. Thereafter, the
district court dismissed the claims in this case as moot and subse-
quently refused to award attorney's fees. We affirm.

I.

Plaintiffs-Appellants James Franklin et al. (hereinafter Franklin)
are various residents of Williamsburg County, South Carolina, of
African-American descent. Defendants-Appellees Jeffrey Lawrimore
et al. are the mayor, town council members, and election commission
members of the Town of Hemingway, South Carolina (Town), as well
as the Election Commission itself (hereinafter collectively referred to
as Lawrimore). The Town is located in Williamsburg County.

Between 1986 and 1991, the Town annexed seven parcels of land.
In 1992, the Town sought to secede from Williamsburg County,
which is predominantly black, and to annex into adjoining Florence
County, which is predominantly white. The Town itself is more than

                    6
96% white. Following a petition drive and a study commission, the
Governor of South Carolina decided that the secession effort should
be submitted to a referendum, and he submitted certain materials to
the United States Department of Justice (DOJ) for preclearance in
accordance with 42 U.S.C. § 1973c. Ultimately, the DOJ refused to
clear five of the Town's previous annexations and the proposed
county boundary change. The Governor subsequently decided not to
proceed with the referendum.

During the course of those events, Franklin filed the instant lawsuit
on October 19, 1993. Franklin alleged that Lawrimore had violated
sections 2 and 5 of the Voting Rights Act of 1965, 42 U.S.C. §§ 1973,
1973c, by illegally annexing at least five areas into the Town's limits
without obtaining the requisite preclearance from the DOJ, by
attempting to secede from Williamsburg County without affording the
black citizenry the opportunity to participate in the voting process, by
refusing to annex predominantly black areas into the Town's limits,
and by failing to obtain the requisite preclearance on the secession
effort. A three-judge panel was appointed pursuant to 42 U.S.C.
§ 1973c and 28 U.S.C. § 2284.

A companion case, South Carolina Conference of Branches of the
NAACP v. Mayor and Council of Hemingway, S.C., No. 4:93-2733-
21, (D.S.C. filed Oct. 18, 1993) (NAACP), was filed the previous day.
That case involved the exact same section 5 violations as the instant
case. The plaintiffs in both cases were represented by the same coun-
sel. A three-judge panel, comprised of the same three judges assigned
to the instant case, was appointed. In NAACP, the parties entered into
a consent order on February 24, 1994, that recognized that the Town
had failed to obtain preclearance for five annexation areas and that
enjoined the Town from allowing persons in those annexed areas to
vote in town elections unless the annexations are precleared.

On September 29, 1994, the district court dismissed all the section
5 claims in the instant case as moot. That dismissal order was never
appealed. Subsequently, on January 10, 1995, the district court denied
all parties' requests for attorneys' fees. Franklin appealed the denial
of fees directly to the United States Supreme Court which vacated the
appeal and remanded to the district court for entry of a fresh judgment
from which timely appeal to this court could be taken. See Franklin

                    7
v. Lawrimore, 116 S. Ct. 42 (1995) (mem.). That judgment was
entered on January 4, 1996, and this appeal followed.

II.

Although we have yet to rule squarely on the standard of review
for the denial of attorney's fees under 42 U.S.C.§ 1973l(e), as a gen-
eral rule we review a district court's decision respecting attorney's
fees for abuse of discretion. See Rum Creek Coal Sales, Inc. v.
Caperton, 31 F.3d 169, 174 (4th Cir. 1994). However, under 42
U.S.C. § 1988, which contains identical statutory language, courts
engage in a de novo review of whether a party is the "prevailing
party" where the question is whether a defendant's actions are legally
required in response to a lawsuit. See, e.g., Supre v. Ricketts, 792 F.2d
958, 962 (10th Cir. 1986). Because we generally review legal issues
de novo, we have previously noted that where an issue concerning
attorney's fees turns on a legal precept, review is plenary. See
Diamond Star Bldg. Corp. v. Freed, 30 F.3d 503, 506 (4th Cir. 1994)
(copyright case). Consequently, we will review the district court's
determination that Franklin was not the "prevailing party" de novo.

III.

The question for review, as noted, is whether Franklin is a "prevail-
ing party" within the meaning of 42 U.S.C. § 1973l(e), for only a pre-
vailing party is eligible for attorney's fees. The disposition of this
issue is controlled by two recent decisions, Statewide Reapportion-
ment Advisory Comm. v. Beasley, 99 F.3d 134 (4th Cir. 1996) (per
curiam) [SRAC], cert. denied, 117 S. Ct. 1427 (1997), and S-1 and S-
2 By and Through P-1 and P-2 v. State Bd. of Educ. , 21 F.3d 49 (4th
Cir.) (en banc), cert. denied, 513 U.S. 876 (1994).

In SRAC, the South Carolina Republican Party and an unincorpo-
rated association denominating itself the Statewide Reapportionment
Advisory Committee filed separate suits challenging redistricting
plans under the Voting Rights Act of 1965, 42 U.S.C.§ 1973 et seq.,
which were consolidated. The three-judge panel that was constituted
determined that legislative action had reached an impasse, and subse-
quently it adopted its own redistricting plan. The plaintiffs appealed
to the Supreme Court, which vacated the panel's judgment. The dis-

                    8
trict court thereafter permitted the state General Assembly to adopt its
own redistricting plans and to preclear them with the DOJ. Two
months after the General Assembly had, in fact, done these things, the
district court dismissed the case. The plaintiffs moved for attorney's
fees pursuant to 42 U.S.C. §§ 1973l(e) and 1988, and the motion was
denied. SRAC, 99 F.3d at 135-136.

On appeal, we implicitly treated the attorney's fees provisions of
sections 1973l(e) and 1988 as equivalent and applied the "prevailing
party" analysis of Farrar v. Hobby, 506 U.S. 103 (1992), as inter-
preted by the en banc court in S-1 and S-2. We determined that,
because the district court's original decision was vacated by the
Supreme Court, the plaintiffs were not entitled to enforce any judg-
ment against the defendants, and that the district court's later holding
regarding preclearance by the DOJ had not materially altered the rela-
tionship between the parties. SRAC, 99 F.3d at 136-37. Consequently,
the plaintiffs could not establish that they had satisfied the require-
ments to be a prevailing party under S-1 and S-2 , which had rejected
the catalyst theory of causation and instead requires an enforceable
judgment, consent decree, or settlement. Id.; see also S-1 and S-2, 21
F.3d at 51.

The Supreme Court's standard for prevailing party status is clear:

           [T]o qualify as a prevailing party, a civil rights plaintiff
          must obtain at least some relief on the merits of his claim.
          The plaintiff must obtain an enforceable judgment against
          the defendant from whom fees are sought, or comparable
          relief through a consent decree or settlement. Whatever
          relief the plaintiff secures must directly benefit him at the
          time of the judgment or settlement. Otherwise the judgment
          or settlement cannot be said to affect the behavior of the
          defendant toward the plaintiff. Only under these circum-
          stances can civil rights litigation effect the material alter-
          ation of the legal relationship of the parties and thereby
          transform the plaintiff into a prevailing party. In short, 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.

                    9
Farrar, 506 U.S. at 111-12 (internal quotation marks and citations
omitted). Application of the Farrar standard, as interpreted by us in
SRAC and S-1 and S-2, mandates an affirmance of the denial of fees
in this case. When the district court dismissed the claims as moot, it
necessarily mooted the possibility of the award of attorney's fees as
well since a dismissal on mootness grounds obviously does not create
an enforceable judgment, consent decree, or settlement. Whether that
dismissal was, in fact, proper, is not before us.*

Franklin cannot bootstrap his claim for fees onto the consent order
in the NAACP case. That consent order does not and cannot materially
alter the legal relationship between these parties in the instant case.

Although Franklin would have us allow a catalyst analysis in vot-
ing rights cases, certainly SRAC, if not S-1 and S-2 itself, forbids that
course. As Judge Niemeyer noted in SRAC,§§ 1973l(e) and 1988 "re-
ward successful litigants, not success in the political process even if
the political success was a response to the litigation." SRAC, 99 F.3d
at 137 (Niemeyer, J., concurring) (emphasis in original). And as
Judge Motz recognized, S-1 and S-2 forecloses the catalyst analysis,
even in voting rights cases, even though Farrar would not necessarily
require this outcome. SRAC, 99 F.3d at 137 (Motz, J., concurring).

IV.

Our circuit precedent requires that a prevailing party be one who
has obtained an enforceable judgment, consent decree, or settlement.
Franklin's case was dismissed as moot. Franklin did not obtain a
result that materially altered the legal relationship between the parties.
_________________________________________________________________
*At oral argument, Franklin's counsel conceded that the dismissal
order was not appealed. Counsel asserted that she believed the parties
had come to an understanding that Franklin was the"prevailing party"
for purposes of attorney's fees and that that understanding was the basis
for Franklin accepting the dismissal on mootness grounds. The terms of
the dismissal order, however, contain no such "understanding" as to pre-
vailing party status. Instead, that order specifically requires any party
seeking attorney's fees to do so in accordance with S-1 and S-2. See
Franklin v. Campbell, No. CA 4:93-2760-21, slip op. at 1-2 (D.S.C. Sept.
29, 1994) (three-judge panel).

                     10
Franklin cannot be considered a prevailing party under our precedent
and therefore is not entitled to attorney's fees. For these reasons, we
affirm the judgment below.

AFFIRMED

                    11
