United States Court of Appeals

For the First Circuit

No. 01-2037

WILFRID RACE,

Plaintiff, Appellant,

v.

PEDRO A. TOLEDO-DAVILA, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

 Torruella, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.

Jane A. Becker-Whitaker for appellant.

Leticia Casalduc Rabell, Assistant Solicitor General, with whom

Roberto J. Sanchez Ramos, Solicitor General, and Vanessa Lugo Flores,

Deputy Solicitor General, were on brief, for appellees.

June 4, 2002

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Per curiam. Appellant Wilfrid Race claims that the district court

improperly refused to award him attorney's fees in an action under the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. We

find no error. The court correctly concluded that appellant was not a

prevailing party for purposes of the ADA's fees provision, see id. at

§ 12205, and thus was not entitled to recover legal expenses.

This action arose from appellant's encounter with Puerto Rico

police officers who stopped his car because it did not have a valid

registration sticker. Appellant had not yet renewed his registration

because he was in the process of contesting a ticket he had received

for parking in a handicapped space without a Puerto Rico permit. He

could not obtain the new registration until that dispute was resolved.

Appellant is, in fact, disabled, and his vehicle displayed a handicap

permit issued in Ontario, Canada.

Appellant filed suit in federal court claiming a violation of the

ADA and related commonwealth law, and asking that the police be

enjoined from stopping and arresting him for driving with an expired

registration sticker. The district court granted appellant's motion

for a preliminary injunction and temporary restraining order, and a

short time later the Puerto Rico administrative process ended in his

favor. Appellant then moved for a voluntary dismissal of his federal

complaint. Following the dismissal, appellant filed the request for

fees that is the subject of this appeal.
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Our review is for manifest abuse of discretion. Gay Officers

Action League v. Puerto Rico, 247 F.3d 288, 292 (lst Cir. 2001).

Although fee awards for prevailing parties are "virtually obligatory,"

see id. at 293, the invariable prerequisite is that one must, in fact,

"prevail." Contrary to appellant's suggestion, one does not qualify as

a "prevailing party" simply by obtaining a change in the status quo.

Rather, "a plaintiff 'prevails' when actual relief on the merits of his

claim materially alters the legal relationship between the parties . .

. ." Id. (emphasis added) (quoting Farrar v. Hobby, 506 U.S. 103, 111

(1992)).

This case never progressed to the merits of appellant's ADA claim,

even in a prefatory way. Cf., e.g., Coalition for Basic Human Needs v.

King, 691 F.2d 597, 601 (lst Cir. 1982) (awarding attorney's fees for

plaintiffs who obtained injunction pending appeal where the court "made

its decision only after careful consideration of the [plaintiff's]

legal claims"). Although issuance of a preliminary injunction

typically involves a review of the merits to determine whether the

requesting party is likely to succeed on his claim, see EF Cultural

Travel BV v. Explorica, Inc., 274 F.3d 577, 581 (lst Cir. 2001), the

district court confirmed that it intended merely "to safeguard

Plaintiff's rights under the ADA while he was exhausting his

administrative remedies under state law." The court went on to state

explicitly that it did not address the merits of plaintiff's claim. 
* Although the complaint does not specify, we presume that

appellant brought his claim under Title II of the ADA, which

prohibits discrimination against persons with disabilities by

"public entities," which includes "any department, agency,

special purpose district, or other instrumentality of a State or

States or local government." See Parker v. Universidad de

Puerto Rico, 225 F.3d 1, 4 & n.1 (lst Cir. 2000) (quoting 42

U.S.C. § 12131(1)(B)). To succeed with a Title II claim, a

plaintiff must establish:

(1) that he is a qualified individual with a

disability; (2) that he was either excluded from

participation in or denied the benefits of some public

entity's services, programs, or activities or was

otherwise discriminated against; and (3) that such

exclusion, denial of benefits, or discrimination was

by reason of the plaintiff's disability.

Id. at 5.

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The record underscores the absence of substantive review; the case

ended at appellant's request before any action was taken on defendants'

motion to dismiss, which asserted that the complaint failed to state a

viable claim of disability discrimination.*

In sum, an individual may be entitled to attorney's fees "without

having obtained a favorable 'final judgment following a full trial on

the merits,'" Hanrahan v. Hampton, 446 U.S. 754, 756-57 (1980) ( per

curiam) (quoting H.R. Rep. No. 94-1558, at 7 (1976)), but he must

obtain relief based "'on the merits of at least some of his claims,'"

id. at 758 (quoted in Buckhannon Bd. and Care Home, Inc. v. W. Va.

Dep't of Health and Human Res., 532 U.S. 598, 603 (2001)). Appellant

did not reach that threshold, and the district court consequently did

not err in refusing a fee award.
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Affirmed.