                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 27 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KRISTIN EVANS,                                   No.   16-35120

              Plaintiff-Appellee,                D.C. No. 4:14-cv-00237-BLW

 v.
                                                 MEMORANDUM*
LINDA J. ALEXANDER; et al.,

              Defendants-Appellants.


                    Appeal from the United States District Court
                              for the District of Idaho
                     B. Lynn Winmill, Chief Judge, Presiding

                            Submitted October 4, 2017**
                                Portland, Oregon

Before: PAEZ and BEA, Circuit Judges, and LAMBERTH,*** District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Royce C. Lamberth, United States District Judge for
the District of Columbia, sitting by designation.
      Linda Alexander, Robert Fisher, and David Rogers appeal the grant of

Kristin Evans’s Petition for Attorney’s Fees pursuant to 42 U.S.C. § 1988(b). We

have jurisdiction under 8 U.S.C. § 1291, and we affirm.

      First, Evans was the prevailing party as her success was not “only technical.”

See Farrar v. Hobby, 506 U.S. 103, 111!12 (1992) (“[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.”). By filing the lawsuit, Evans and her co-plaintiff sought

exoneration of the charges of academic dishonesty against them. Plaintiffs

achieved this. The district court issued a temporary restraining order, requiring the

defendants: (1) “to exonerate Plaintiffs of all charges of academic dishonesty and

restore the Plaintiffs’ academic records to reflect the grade they held in the class

Math 1153-02: Introduction to Statistics (21851) at the point immediately prior to

the administration of the final exam for said class;” (2) “to instruct the Office of

the Registrar at Defendant Idaho State University to immediately remove all

records about the alleged dishonest conduct from each of the Plaintiffs’ files;” and

(3) to “not take any punitive action against Plaintiffs with respect to the current

allegations of cheating.”




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      Moreover, the administrative process ultimately adopted by the court was

not the same administrative process available to Evans before the commencement

of the litigation. Significantly, the Associate Dean of the College of Science &

Engineering—who Evans alleged in the complaint had demonstrated that he

already had formed an opinion by writing in an email that Plaintiffs would be

required to prove their innocence—was removed from the process. The court

ordered that instead, the Dean of the College of Science & Engineering would

preside over a formal hearing and serve as the final decision-maker. The district

court also ordered that if Evans were not exonerated of the charges of academic

dishonesty, she would be able to appeal the written decision to the Academic

Dishonesty Board. The district court ordered that “the hearing officer or panel

should be composed of unbiased and disinterested decision makers as agreed upon

by the parties.” As a result of the hearing presided over by the Dean of the College

of Science & Engineering, Evans was allowed to retake the final exam and

ultimately received an “A” in the class.

      Second, Evans’s fees account for cost-sharing with her co-plaintiff. The

work done independently for her co-plaintiff was excluded from Evans’s Petition

for Attorney’s Fees and supporting Affidavit. Appellants do not point to any

specific hours that allegedly apply only to her co-plaintiff’s claims.


                                           3
      Third, Evans is entitled to attorney’s fees for defending this appeal. See In

re Nucorp Energy, Inc., 764 F.2d 655, 660 (9th Cir. 1985). This case is referred to

the Appellate Commissioner for a determination of the amount of attorney’s fees.

      AFFIRMED; REFERRED TO THE APPELLATE COMMISSIONER.




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