UNPUBLISHED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.

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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.

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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,

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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 subsequently 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

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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 counsel. 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

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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 general 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 "prevailing party" within the meaning of 42 U.S.C. § 1973l(e), for only a prevailing party is eligible for attorney's fees. The disposition of this

issue is controlled by two recent decisions, Statewide Reapportionment 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 S2 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 unincorporated 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 subsequently it adopted its own redistricting plan. The plaintiffs appealed

to the Supreme Court, which vacated the panel's judgment. The dis-

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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 interpreted 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 judgment against the defendants, and that the district court's later holding

regarding preclearance by the DOJ had not materially altered the relationship between the parties. SRAC, 99 F.3d at 136-37. Consequently,

the plaintiffs could not establish that they had satisfied the requirements 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 circumstances can civil rights litigation effect the material alteration 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.

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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 voting 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 "reward 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 prevailing 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).

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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

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