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NOT FOR PUBLICATION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.”
2
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.
4