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                        CONCLUSION
   For the reasons stated above, we vacate the district court’s
May 8, 2014, resentencing order and we remand the cause with
directions to reinstate the original sentences imposed by the
district court ordering that the sentences for counts I and II
be served consecutively and that the sentence for count III be
served concurrently.
	                                Judgment vacated, and cause
	                                remanded with directions.




         Melanie M., individually and as next friend of
         Gaige M. et al., her minor children, appellant,
          v. K erry T. Winterer and Ryan C. Gilbride,
              in their individual and official capacities
               as employees and agents of the State of
                 Nebraska, Department of Health and
                  Human Services, and the State of
                   Nebraska, Department of Health
                    and Human Services, appellees.
                                    ___ N.W.2d ___

                        Filed April 23, 2015.    No. S-14-538.

 1.	 Summary Judgment: Appeal and Error. An appellate court will affirm a lower
     court’s grant of summary judgment if the pleadings and admitted evidence show
     that there is no genuine issue as to any material facts or as to the ultimate infer-
     ences that may be drawn from the facts and that the moving party is entitled to
     judgment as a matter of law.
 2.	 ____: ____. In reviewing a summary judgment, an appellate court views the
     evidence in the light most favorable to the party against whom the judgment was
     granted, and gives that party the benefit of all reasonable inferences deducible
     from the evidence.
 3.	 Administrative Law: Statutes: Appeal and Error. To the extent that the mean-
     ing and interpretation of statutes and regulations are involved, questions of law
     are presented which an appellate court decides independently of the decision
     made by the court below.
 4.	 Constitutional Law: Due Process. The process required under the Due Process
     Clause of the 14th Amendment is that necessary to provide “fundamental fair-
     ness” under the particular facts of the case.
                          Nebraska Advance Sheets
	                            MELANIE M. v. WINTERER	765
	                               Cite as 290 Neb. 764

 5.	 Due Process. There are three factors a court considers in resolving a procedural
      due process claim: first, the private interest that the official action will affect;
      second, the risk of an erroneous deprivation of such interest through the proce-
      dures used and the probable value, if any, of additional or substitute procedural
      safeguards; and finally, the government’s interest, including the function involved
      and the fiscal and administrative burdens that the additional or substitute proce-
      dural requirement would entail.
 6.	 Evidence. The importance of demeanor evidence depends on the role that cred-
      ibility plays in a particular determination.
 7.	 Administrative Law. Agency regulations properly adopted and filed with the
      Secretary of State of Nebraska have the effect of statutory law.
  8.	 ____. Regulations bind the agency that promulgated them just as they bind indi-
      vidual citizens, even if the adoption of the regulations was discretionary.
 9.	 ____. An agency does not generally have the discretion to waive, suspend, or
      disregard a validly adopted rule.
10.	 ____. For purposes of construction, a rule or regulation of an administrative
      agency is generally treated like a statute.
11.	 ____. In the absence of anything to the contrary, language in a rule or regulation
      is to be given its plain and ordinary meaning.
12.	 Administrative Law: Appeal and Error. A court accords deference to an agen-
      cy’s interpretation of its own regulations unless plainly erroneous or inconsistent.
13.	 Attorney Fees. Generally, a party may recover attorney fees and expenses in a
      civil action only if provided for by statute or if a recognized and accepted uni-
      form course of procedure allows the recovery of attorney fees.
14.	 Federal Acts: Attorney Fees. A plaintiff is a prevailing party under 42 U.S.C.
      § 1988 (2012) if the plaintiff obtains actual relief on the merits of his or her claim
      that alters the legal relationship between the parties by modifying the defendant’s
      behavior in a way that directly benefits the plaintiff.
15.	 ____: ____. A plaintiff who obtains temporary injunctive relief is not a prevail-
      ing party under 42 U.S.C. § 1988 (2012) if the plaintiff eventually loses on
      the merits.
16.	 Injunction: Intent. The purpose of a temporary restraining order is only to
      maintain the status quo until a court can hear both parties on the propriety of a
      temporary injunction.
17.	 Federal Acts: Attorney Fees. The catalyst theory does not apply to claims for
      attorney fees under 42 U.S.C. § 1988 (2012).
18.	 Federal Acts: Attorney Fees: Civil Rights. A plaintiff who prevails under state
      law can obtain fees under 42 U.S.C. § 1988 (2012) if the claim on which the
      plaintiff prevailed is accompanied by a substantial, though undecided, claim aris-
      ing under 42 U.S.C. § 1983 (2012) from the same nucleus of facts.

  Appeal from the District Court for Lincoln County: Richard
A. Birch, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
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      William J. Erickson and Blaine T. Gillett for appellant.
  Jon Bruning, Attorney General, and Blake E. Johnson for
appellees.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
      Connolly, J.
                         SUMMARY
   Melanie M. requested an administrative hearing after the
Department of Health and Human Services (Department)
informed her that it was going to change her benefits under
the Supplemental Nutrition Assistance Program (SNAP).
The Department informed Melanie—a resident of North
Platte, Nebraska—that it would hold the hearing in Lincoln,
Nebraska. Melanie could participate telephonically at the
Department’s North Platte office or travel to Lincoln and par-
ticipate in person.
   Melanie filed a complaint in district court, asserting that the
Department’s regulations and the Due Process Clause required
a “face-to-face” hearing in North Platte. The court entered a
temporary restraining order, but overruled Melanie’s motion
for a temporary injunction and sustained the defendants’
motion for summary judgment. After applying the three-factor
test under Mathews v. Eldridge,1 we affirm the summary judg-
ment as to Melanie’s due process claim. But we reverse, and
remand for further proceedings on her prayer for relief under
the Department’s regulations.
                        BACKGROUND
   Melanie is the mother of four minor children who reside
with her in North Platte. She works 15 to 20 hours per week
in a retail position. Her husband is estranged, but sometimes
helps care for the children.
   According to Melanie, caring for one of her children, Ethan
M., presents “logistical problems” that are “more than simply
extraordinary.” Ethan was born without kidneys and suffered

 1	
      Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).
                       Nebraska Advance Sheets
	                        MELANIE M. v. WINTERER	767
	                           Cite as 290 Neb. 764

a brain embolism. He cannot care for himself. Ethan’s former
attending physician opined that Melanie’s absence from Ethan
“is far more than a mere inconvenience” because Melanie is
Ethan’s “primary caregiver.” Melanie said that it is very dif-
ficult to find someone else to care for Ethan.
   Melanie receives benefits under “SNAP,” formerly known
as the Food Stamp Program. In Nebraska, the Department
administers SNAP and issues electronic benefits transfer cards
to eligible households, which they can use to purchase food.2
   In early 2014, the Department notified Melanie that her
SNAP benefits were going to change because her net adjusted
income had changed. The Department also informed Melanie
that it planned to recover overpayments. Melanie requested
an administrative hearing regarding the proposed changes.
Her attorney sent a letter to the Department demanding
an “in-person, face-to-face hearing in the local office in
North Platte.”
   The Department sent Melanie notices informing her that it
would hold a hearing in Lincoln and that Melanie could par-
ticipate “in person” or telephonically. The notices informed
Melanie that she had certain rights, including the right to
testify, present testimony from other witnesses, submit docu-
mentary evidence, and confront adverse witnesses. Ryan C.
Gilbride signed the notices as the hearing officer.
   Before any administrative hearing occurred, Melanie filed
a complaint in district court individually and as next friend of
her four minor children. The complaint named as defendants
Kerry T. Winterer and Gilbride (identified as “Employees and
Agents of State of Nebraska- Department of Health and Human
Services”) in their individual and official capacities. Melanie
also sued “The State of Nebraska- Department of Health and
Human Services.”
   Citing 42 U.S.C. § 1983 (2012), Melanie alleged that the
defendants’ refusal to grant her a face-to-face hearing at the
Department’s North Platte office deprived her of procedural
due process. She stated that her “ability to confront and

 2	
      See 475 Neb. Admin. Code, ch. 5, § 001 (2005). See, also, U.S. v.
      Mohamed, 727 F.3d 832 (8th Cir. 2013).
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768	290 NEBRASKA REPORTS



cross-examine witnesses is certainly crippled by the Hobson’s
choice of either travelling approximately 450 miles round-
trip, or participating by telephone without the ability to even
see the fact-finder or the adverse witnesses.” Melanie also
alleged that regulations required the Department to offer
her a face-to-face hearing in North Platte and, pending the
administrative hearing, to maintain her SNAP benefits at their
original level.
   Melanie requested injunctive relief requiring the defendants
to hold a face-to-face hearing in North Platte, the restoration
of SNAP benefits pending an administrative hearing, damages,
and attorney fees under 42 U.S.C. § 1988 (2012).
   Along with the complaint, Melanie moved for a temporary
restraining order and injunction. “Because of the medical con-
ditions of [Melanie’s] children,” the court entered on the same
day a temporary order that restrained the defendants from hold-
ing an administrative hearing and ordered them to “continue
or resume SNAP benefits.” The temporary restraining order
remained in effect until the court overruled Melanie’s motion
for a temporary injunction. The court stated that Melanie had
not shown a clear right to her requested relief.
   In their answer, the defendants admitted that they offered
Melanie a face-to-face hearing only in Lincoln. Winterer and
Gilbride affirmatively alleged that they were entitled to quali-
fied immunity. Gilbride also affirmatively alleged that he was
entitled to “quasi-judicial immunity since his participation in
this matter was limited to his role as a hearing officer.”
   The court sustained the defendants’ motion for summary
judgment. First, the court considered whether the Department’s
regulations entitled Melanie to a face-to-face hearing at the
North Platte office. Giving deference to the Department’s
interpretation of its own rules, the court decided that the
Department’s reading was consistent with the regulation’s
plain language. As to Melanie’s due process claim, the court
acknowledged that she had a property interest in her SNAP
benefits and that the Due Process Clause entitled her to a hear-
ing. But it could “find no case that extends [Melanie’s] right
to participate in the hearing to the right to control the location
of the hearing.” Alternatively, the court held that Winterer
                       Nebraska Advance Sheets
	                         MELANIE M. v. WINTERER	769
	                            Cite as 290 Neb. 764

and Gilbride were entitled to qualified immunity in their indi-
vidual capacities and that Gilbride was entitled to absolute
immunity because he acted in a quasi-judicial capacity.
                 ASSIGNMENTS OF ERROR
   Melanie generally assigns that the court erred by sustaining
the defendants’ motion for summary judgment. She specifi-
cally assigns, renumbered and restated, that the court erred by
(1) finding that the defendants offered Melanie a hearing that
“met the regulatory and constitutional requirements of due
process,” (2) finding that the “individual defendants” were
entitled to qualified immunity, and (3) not awarding attor-
ney fees.
                    STANDARD OF REVIEW
   [1,2] We will affirm a lower court’s grant of summary judg-
ment if the pleadings and admitted evidence show that there is
no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from the facts and that the mov-
ing party is entitled to judgment as a matter of law.3 In review-
ing a summary judgment, we view the evidence in the light
most favorable to the party against whom the judgment was
granted, and give that party the benefit of all reasonable infer-
ences deducible from the evidence.4
   [3] To the extent that the meaning and interpretation of
statutes and regulations are involved, questions of law are pre-
sented which an appellate court decides independently of the
decision made by the court below.5
                         ANALYSIS
                  P rocedural Due P rocess
  Melanie argues that the Due Process Clause of the 14th
Amendment requires the defendants to offer her a face-to-face
hearing before reducing her SNAP benefits. Because of Ethan’s

 3	
      D-CO, Inc. v. City of La Vista, 285 Neb. 676, 829 N.W.2d 105 (2013).
 4	
      deNourie & Yost Homes v. Frost, 289 Neb. 136, 854 N.W.2d 298 (2014).
 5	
      See Liddell-Toney v. Department of Health & Human Servs., 281 Neb.
      532, 797 N.W.2d 28 (2011).
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770	290 NEBRASKA REPORTS



health problems and the distance between Lincoln and North
Platte, she contends that the defendants effectively restricted
her to a telephonic hearing.
   The first step in a due process analysis is to identify a prop-
erty or liberty interest entitled to due process protection.6 The
defendants do not dispute that a property interest is at stake
here. SNAP benefits are a statutory entitlement and, therefore,
“property” protected by the Due Process Clause.7
   [4] Once we decide that due process applies, the question
remains what process is due.8 Due process is a flexible concept
that defies precise definition.9 The process required is that nec-
essary to provide “fundamental fairness” under the particular
facts of the case.10
   [5] In Mathews,11 the U.S. Supreme Court set forth three
factors relevant to the specific requirements of due process:
first, the private interest that the official action will affect;
second, the risk of an erroneous deprivation of such interest
through the procedures used and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the
government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substi-
tute procedural requirement would entail.12
   But Melanie argues that we do not have to apply a Mathews
analysis because in Goldberg v. Kelly,13 the U.S. Supreme
Court has specifically held that face-to-face hearings are
required in welfare cases. In Goldberg, the Court decided that

 6	
      Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003).
 7	
      See, Atkins v. Parker, 472 U.S. 115, 105 S. Ct. 2520, 86 L. Ed. 2d 81
      (1985); Bliek v. Palmer, 102 F.3d 1472 (8th Cir. 1997).
 8	
      Hass v. Neth, supra note 6.
 9	
      Casey v. O’Bannon, 536 F. Supp. 350 (E.D. Pa. 1982); In re Interest of
      Brian B., 268 Neb. 870, 689 N.W.2d 184 (2004).
10	
      See, State v. Shambley, 281 Neb. 317, 795 N.W.2d 884 (2011); In re
      Interest of Brian B., supra note 9.
11	
      Mathews v. Eldridge, supra note 1.
12	
      See Hass v. Neth, supra note 6.
13	
      Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970).
                         Nebraska Advance Sheets
	                          MELANIE M. v. WINTERER	771
	                             Cite as 290 Neb. 764

the ­government must provide a “pre-termination evidentiary
hearing” before discontinuing welfare benefits.14 The Court
identified six elements of an evidentiary hearing: (1) notice
of the reasons for the proposed termination; (2) an opportu-
nity to confront adverse witnesses and present “arguments
and evidence orally”; (3) retained counsel, if desired; (4) an
“impartial” decisionmaker; (5) a decision that rests “solely on
the legal rules and evidence adduced at the hearing”; and (6) a
statement describing the reasons for the decision and the evi-
dence relied on.15
   The procedures challenged in Goldberg allowed a welfare
recipient to contest in writing a proposed termination. But a
recipient could not “appear personally” before the final deci-
sionmaker to “present evidence to that official orally” and
cross-examine adverse witnesses.16 The Court noted that “writ-
ten submissions do not afford the flexibility of oral presenta-
tions” and are a poor basis for a decision, “[p]articularly where
credibility and veracity are at issue . . . .”17 But Goldberg cau-
tioned that a predeprivation evidentiary hearing “need not take
the form of a judicial or quasi-judicial trial.”18
   We conclude that Goldberg does not specifically mandate
a predeprivation face-to-face hearing in every welfare case.
Goldberg plainly requires the opportunity to present evidence
orally. But the Court did not decide whether due process
requires the oral presentation of evidence in a face-to-face
hearing. We note that, so far as we can tell, no court has held
that telephonic hearings in welfare cases are categorically defi-
cient under Goldberg.19
   So, we must determine the adequacy of a telephonic hear-
ing under the Mathews factors. Melanie’s private interest is
substantial. SNAP recipients “are, by definition, low-income

14	
      Id., 397 U.S. at 264.
15	
      Id., 397 U.S. at 268, 271. See Mathews v. Eldridge, supra note 1.
16	
      Goldberg v. Kelly, supra note 13, 397 U.S. at 268.
17	
      Id., 397 U.S. at 269.
18	
      Id., 397 U.S. at 266.
19	
      See Annot., 88 A.L.R.4th 1094 (1991).
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persons who live ‘on the very margin of subsistence.’”20 But
the government’s interest in the efficient use of public resources
weighs in favor of telephonic hearings.21 Contrary to Melanie’s
argument, the state’s interest in efficiency is not irrelevant
when welfare benefits are at stake.22
   The last Mathews factor we must consider is the risk of
erroneous deprivation from a telephonic hearing compared to a
face-to-face hearing. The difference between the two is, obvi-
ously, that the hearing officer in a telephonic hearing is unable
to visually observe the witnesses in the flesh. Thus, the officer
is deprived of the full range of demeanor evidence.23
   The “‘wordless language’” of a witness’ demeanor is an
important tool for evaluating credibility.24 Even the “best and
most accurate record is like a dehydrated peach; it has neither
the substance nor the flavor of the fruit before it was dried.”25
Of course, a witness’ aural mannerisms are observable tele-
phonically. But a decisionmaker who can hear but not see a
witness does not get the whole picture: “Over the phone, the
fact finder cannot see the way a witness sits, shifts around,
or blushes. Over the phone, the fact finder cannot observe if
the witness shakes nervously, smiles maliciously, or grimaces
with pain.”26

20	
      Bliek v. Palmer, supra note 7, 102 F.3d at 1476, quoting Mathews v.
      Eldridge, supra note 1. See Casey v. O’Bannon, supra note 9.
21	
      See, Casey v. O’Bannon, supra note 9; Murphy v. Terrell, 938 N.E.2d 823
      (Ind. App. 2010). See, also, Mathews v. Eldridge, supra note 1; Penry v.
      Neth, 20 Neb. App. 276, 823 N.W.2d 243 (2012).
22	
      See, e.g., Casey v. O’Bannon, supra note 9.
23	
      See, id.; State, ex rel. Human Services Dept. v. Gomez, 99 N.M. 261,
      657 P.2d 117 (1982); Allan A. Toubman et al., Due Process Implications
      of Telephone Hearings: The Case for an Individualized Approach to
      Scheduling Telephone Hearings, 29 U. Mich. J.L. Reform 407 (1996).
24	
      Broadcast Music v. Havana Madrid Restaurant Corp., 175 F.2d 77, 80 (2d
      Cir. 1949).
25	
      Id. See, also, 3 William Blackstone, Commentaries *373.
26	
      Neil Fox, Note, Telephonic Hearings in Welfare Appeals: How Much
      Process is Due?, 1984 U. Ill. L. Rev. 445, 471 (1984).
                         Nebraska Advance Sheets
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	                              Cite as 290 Neb. 764

   [6] The question here, though, is not whether the in-person
observation of witnesses has value—it does—but whether its
value is so great that the Due Process Clause requires it in
Melanie’s welfare appeals. While “[p]hysical appearance can
be a clue to credibility, . . . of equal or greater importance
is what a witness says and how she says it.”27 Furthermore,
the importance of demeanor evidence depends on the role
that credibility plays in a particular determination.28 Here, the
actions which Melanie administratively appealed are reductions
in her benefits because her net income changed.
   We conclude that for this type of hearing, the risk of erro-
neous deprivation is not so great that a face-to-face hear-
ing in North Platte is constitutionally required.29 Credibility
does not play a large role in every welfare case.30 Melanie
argues that SNAP entitlement depends on “‘“an individual-
ized determination of income, expenses, and deductions for
each recipient,” thereby creating substantial risks of erroneous
deprivations.’”31 But, after reviewing the applicable regula-
tions, we believe that determining the amount by which a
recipient’s net income has changed will usually “involve


27	
      Babcock v. Employment Division, 72 Or. App. 486, 490, 696 P.2d 19, 21
      (1985).
28	
      See, Gray Panthers v. Schweiker, 716 F.2d 23 (D.C. Cir. 1983); Stiver v.
      Shalala, 879 F. Supp. 1021 (D. Neb. 1995); In re Suspension of Driver’s
      License, 143 Idaho 937, 155 P.3d 1176 (Idaho App. 2006); State, ex rel.
      Human Services Dept. v. Gomez, supra note 23; Fox, supra note 26;
      Toubman et al., supra note 23.
29	
      See, Casey v. O’Bannon, supra note 9; Murphy v. Terrell, supra note
      21; State, ex rel. Human Services Dept. v. Gomez, supra note 23. See,
      also, Penry v. Neth, supra note 21; Sterling v. District of Columbia, 513
      A.2d 253 (D.C. 1986); Babcock v. Employment Division, supra note 27;
      Greenberg v. Simms Merchant Police Service, 410 So. 2d 566 (Fla. App.
      1982).
30	
      See, Gray Panthers v. Schweiker, supra note 28; Fox, supra note 26.
31	
      Brief for appellant at 9, quoting Bliek v. Palmer, 916 F. Supp. 1475 (N.D.
      Iowa 1996).
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relatively straightforward matters of computation.”32 In fact,
Melanie stated at oral argument that her credibility would not
play a large role in the Department’s decision.
   In conclusion, after weighing the private interest, the gov-
ernment’s interest, and the risk of erroneous deprivation, we
determine that the Due Process Clause does not require a
face-to-face hearing at the local office in the particular SNAP
appeals in question. We do not consider whether a telephonic
hearing violates the Equal Protection Clause because Melanie
did not specifically assign this issue as error in her opening
brief. For an appellate court to consider an alleged error, a
party must specifically assign and argue it.33

                     Nebraska R egulations
   Apart from her rights under the federal Constitution, Melanie
argues that the Department’s regulations entitle her to a face-
to-face hearing at the local office. The defendants respond that
Melanie did not specifically assign this issue as error. But we
decide that the third assignment in her brief—which asks us to
consider whether a telephonic hearing “met the regulatory and
constitutional requirements of due process”—is sufficient to
put the question before this court.
   Section 1983 does not provide a remedy for the violation of
state law.34 But, while Melanie could have been more precise,
we read her complaint to include a prayer for a declaration
that a face-to-face hearing is independently required by the
Department’s regulations.35 Furthermore, an injunction—but
not damages—would be within the scope of such declaratory

32	
      Califano v. Yamasaki, 442 U.S. 682, 696, 99 S. Ct. 2545, 61 L. Ed. 2d 176
      (1979). See 475 Neb. Admin. Code, ch. 3, §§ 002.02A and 002.02B (2005)
      and 003 (2013).
33	
      deNourie & Yost Homes v. Frost, supra note 4.
34	
      See, e.g., Martin A. Schwartz & Kathryn R. Urbonya, Section 1983
      Litigation 26 (2d ed. 2008).
35	
      See Weeks v. State Board of Education, 204 Neb. 659, 284 N.W.2d 843
      (1979).
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	                             Cite as 290 Neb. 764

relief.36 The court’s order sustaining the defendants’ motion
for summary judgment treated Melanie’s regulatory and con-
stitutional arguments as separate theories. So, we consider
whether the court erred by entering a summary judgment
against Melanie’s requests for declaratory and injunctive relief
based on the Department’s regulations. We note that the
defendants have not raised sovereign immunity at trial or
on appeal.37
   [7-9] Agency regulations properly adopted and filed with
the Secretary of State of Nebraska have the effect of statutory
law.38 Regulations bind the agency that promulgated them just
as they bind individual citizens, even if the adoption of the
regulations was discretionary.39 An agency does not generally
have the discretion to waive, suspend, or disregard a validly
adopted rule.40
   [10-12] For purposes of construction, a rule or regulation of
an administrative agency is generally treated like a statute.41 In
the absence of anything to the contrary, language in a rule or
regulation is to be given its plain and ordinary meaning.42 We
accord deference to an agency’s interpretation of its own regu-
lations unless plainly erroneous or inconsistent.43
   The regulation in question is 475 Neb. Admin. Code, ch. 1,
§ 007 (2005). Section 007 provides:

36	
      See, Project Extra Mile v. Nebraska Liquor Control Comm., 283 Neb. 379,
      810 N.W.2d 149 (2012); Duggan v. Beerman, 249 Neb. 411, 544 N.W.2d
      68 (1996).
37	
      See, Hall v. County of Lancaster, 287 Neb. 969, 846 N.W.2d 107 (2014);
      Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010).
38	
      Robbins v. Neth, 273 Neb. 115, 728 N.W.2d 109 (2007).
39	
      Id.
40	
      See id.
41	
      See Utelcom, Inc. v. Egr, 264 Neb. 1004, 653 N.W.2d 846 (2002).
42	
      Carey v. City of Hastings, 287 Neb. 1, 840 N.W.2d 868 (2013).
43	
      See Marion’s v. Nebraska Dept. of Health & Human Servs., 289 Neb. 982,
      858 N.W.2d 178 (2015).
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      A fair hearing must be provided to any household
      wishing to appeal any action or inaction of the local
      office which affects the household’s participation. Fair
      hearings may be conducted at the local office either
      by telephone with a hearing officer or a hearing offi-
      cer coming to the local office. The household mem-
      ber requesting the fair hearing will be notified by the
      [Department’s] Legal Division of which type of hearing
      will be held. The household must be given the option of
      requesting a face-to-face hearing if a telephone hearing
      was scheduled.
   As the district court noted, the second sentence provides
that the Department may hold either a telephonic or a face-
to-face hearing at the local office. The last sentence pro-
vides the household can request a face-to-face hearing if
the Department initially schedules a telephonic hearing. The
court reasoned that “[t]o interpret the last sentence . . . as
allowing [Melanie] to require that the face-to-face hearing
be held in the county of her residence, would contradict the
prior provision of the regulation and essentially turn the word
‘may’ into ‘shall.’” So, the court appeared to conclude that
§ 007 gave Melanie the right to a face-to-face hearing, but
that the location of such hearing was left to the Department’s
discretion.
   But the court’s interpretation renders the last sentence mean-
ingless. The plain and ordinary meaning of § 007 requires that
the Department hold the face-to-face hearing at the local office.
Although the choice between a face-to-face or a telephonic
hearing at the local office is initially permissive, a face-to-face
hearing is mandatory if the household requests one. Read in the
context of the regulation as a whole, the household’s right to
request a face-to-face hearing in the last sentence is a right to
request such a hearing at the local office, not at a location of
the Department’s choosing. Thus, Melanie is entitled to a face-
to-face hearing at the North Platte office.

                      Attorney Fees
  Melanie argues that she is entitled to attorney fees under
42 U.S.C. § 1988. Apparently referring to the temporary
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restraining order, she asserts that the district court “issued
an enforceable order to restore benefits, which [the defend­
ants] indisputably did.”44 The defendants argue that Melanie’s
§ 1983 action did not materially alter her legal relationship
with the Department.
    [13,14] Generally, a party may recover attorney fees and
expenses in a civil action only if provided for by statute or if
a recognized and accepted uniform course of procedure allows
the recovery of attorney fees.45 The Civil Rights Attorney’s
Fees Awards Act of 1976, 42 U.S.C § 1988(b), provides that
the court may award a reasonable attorney fee to the “pre-
vailing party” in an action that enforces 42 U.S.C. § 1983. A
plaintiff is a “prevailing party” under § 1988 if the plaintiff
obtains actual relief on the merits of his or her claim that alters
the legal relationship between the parties by modifying the
defendant’s behavior in a way that directly benefits the plain-
tiff.46 An injunction or a declaratory judgment, like a damages
award, will usually satisfy the prevailing party test.47 In some
circumstances, a plaintiff can “prevail” by obtaining temporary
injunctive relief.48
    [15] But a plaintiff who obtains temporary injunctive relief
is not a prevailing party under § 1988 if the plaintiff even-
tually loses on the merits. In Sole v. Wyner,49 the plaintiff
informed Florida state officials, the defendants, of her intent
to protest war by assembling nude persons in the shape of a
“peace sign.” The defendants told the plaintiff that the par-
ticipants had to wear bathing suits. The plaintiff sued under

44	
      Reply brief for appellant at 5.
45	
      See Simon v. City of Omaha, 267 Neb. 718, 677 N.W.2d 129 (2004).
46	
      Lefemine v. Wideman, ___ U.S. ___, 133 S. Ct. 9, 184 L. Ed. 2d 313
      (2012).
47	
      Id.
48	
      See, McQueary v. Conway, 614 F.3d 591 (6th Cir. 2010); People Against
      Police Violence v. City of Pitts., 520 F.3d 226 (3d Cir. 2008); Annot., 81
      A.L.R. Fed. 2d 1 (2014); 2 Rodney A. Smolla, Federal Civil Rights Acts
      § 16:4 (3d ed. 2015).
49	
      Sole v. Wyner, 551 U.S. 74, 78, 127 S. Ct. 2188, 167 L. Ed. 2d 1069
      (2007).
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§ 1983, asserting her rights under the First Amendment. The
complaint requested a temporary injunction against inter-
ference with the peace sign demonstration and a perma-
nent injunction against interference with “‘future expressive
activities.’”50 The court issued a temporary injunction. But,
after rogue nudists at the peace sign demonstration refused
to stay behind a partition, the court sustained the defendants’
motion for summary judgment.
   The U.S. Supreme Court held that the plaintiff’s victory
at the temporary injunction stage did not entitle her to attor-
ney fees. The Court stated that “a plaintiff who gains a pre-
liminary injunction does not qualify for an award of counsel
fees under § 1988(b) if the merits of the case are ultimately
decided against her.”51 The Court expressed no opinion of
whether attorney fees might be awarded for a preliminary
injunction if the case was resolved without a final decision on
the merits.52 But a “plaintiff who achieves a transient victory
at the threshold of an action” does not deserve an attorney
fee if “her initial success is undone and she leaves the court-
house emptyhanded.”53
   [16] Here, the court issued a temporary restraining order
against the defendants, but overruled Melanie’s motion for a
temporary injunction and eventually entered a judgment on the
merits against Melanie’s due process claim. We note that the
purpose of a temporary restraining order is only to maintain
the status quo until a court can hear both parties on the propri-
ety of a temporary injunction.54 The order issued by the court
was not a decision on the merits.55 Furthermore, to the extent
that Melanie prevailed under federal law, her victory was

50	
      Id., 551 U.S. at 79.
51	
      Id., 551 U.S. at 86.
52	
      Id.
53	
      Id., 551 U.S. at 78.
54	
      See State ex rel. Beck v. Associates Discount Corp., 161 Neb. 410, 73
      N.W.2d 673 (1955).
55	
      See, e.g., Garcia v. Yonkers School Dist., 561 F.3d 97 (2d Cir. 2009).
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fleeting.56 The court terminated the temporary restraining order
by overruling Melanie’s motion for a temporary injunction,
and it finally denied her any judicial relief under federal law
by sustaining the defendants’ motion for summary judgment.
Melanie “may have won a battle, but [she] lost the war.”57 She
is not a prevailing party under § 1988(b).
   [17] Alternatively, Melanie suggests that she does not have
to prevail in the courtroom to be a prevailing party. She con-
tends that if “a lawsuit produces voluntary action by a defend­
ant that affords all or some of the relief sought through a
judgment, the plaintiff is deemed to have prevailed regardless
of the absence of a favorable formal judgment.”58 However,
we have held that the “‘catalyst theory’” does not apply to
claims for attorney fees under § 1988.59 A plaintiff cannot be a
prevailing party under federal fee-shifting statutes without “the
necessary judicial imprimatur on the change.”60
   [18] Finally, we note again that § 1983 does not remedy
violations of Nebraska law.61 A plaintiff who prevails under
state law can obtain fees under § 1988 if the claim on which
the plaintiff prevailed is accompanied by a “‘substantial,’”
though undecided, § 1983 claim arising from the same nucleus
of facts.62 But, here, the district court decided Melanie’s due
process claim against her and we have affirmed that part of the
judgment. Thus, in this case, a victory under Nebraska law will
not make Melanie a prevailing party under § 1988.

56	
      See Sole v. Wyner, supra note 49.
57	
      See National Amusements Inc. v. Borough of Palmyra, 716 F.3d 57, 65 (3d
      Cir. 2013).
58	
      Reply brief for appellant at 4.
59	
      Simon v. City of Omaha, supra note 45, 267 Neb. at 727, 677 N.W.2d at
      137.
60	
      Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health
      and Human Resources, 532 U.S. 598, 605, 121 S. Ct. 1835, 149 L. Ed. 2d
      855 (2001). See, also, Schwartz & Urbonya, supra note 34, at 200.
61	
      See, e.g., Schwartz & Urbonya, supra note 34.
62	
      Manning v. Dakota Cty. Sch. Dist., 279 Neb. 740, 746, 782 N.W.2d 1, 8
      (2010).
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                        CONCLUSION
   We conclude that Melanie is entitled to a face-to-face hear-
ing at the Department’s local office under 475 Neb. Admin.
Code, ch. 1, § 007, but not under the Due Process Clause. She
is not a prevailing party for purposes of attorney fees under
42 U.S.C. § 1988, because she lost on the merits of her claim
under federal law. We reverse, and remand for further pro-
ceedings on Melanie’s request for a declaration of rights under
475 Neb. Admin. Code, ch. 1, § 007, and injunctive relief
within the scope of such declaration.
	Affirmed in part, and in part reversed and
	                 remanded for further proceedings.




         Archer Daniels Midland Company, appellant, v.
              State of Nebraska et al., appellees.
                                    ___ N.W.2d ___

                         Filed April 23, 2015.    No. S-14-724.

 1.	 Taxation: Judgments: Appeal and Error. An appellate court reviews decisions
      rendered by the Tax Equalization and Review Commission for errors appearing
      on the record.
 2.	 Judgments: Appeal and Error. When reviewing a judgment for errors appear-
      ing on the record, an appellate court’s inquiry is whether the decision conforms
      to the law, is supported by competent evidence, and is not arbitrary, capricious,
      or unreasonable.
 3. 	 Taxation: Appeal and Error. An appellate court reviews questions of law aris-
      ing during appellate review of decisions by the Tax Equalization and Review
      Commission de novo on the record.
 4.	 Statutes: Appeal and Error. Statutory interpretation is a question of law, which
      an appellate court resolves independently of the lower tribunal.
 5.	 ____: ____. Statutory language is to be given its plain and ordinary meaning,
      and an appellate court will not resort to interpretation to ascertain the meaning of
      statutory words which are plain, direct, and unambiguous.
 6.	 Statutes: Legislature: Intent: Appeal and Error. In discerning the meaning of
      a statute, an appellate court must determine and give effect to the purpose and
      intent of the Legislature as ascertained from the entire language of the statute
      considered in its plain, ordinary, and popular sense.
 7.	 Statutes. If the language of a statute is clear, the words of such statute are the
      end of any judicial inquiry regarding its meaning.
