concurring and dissenting:
I concur in the result reached in Part II of the majority opinion, which holds that the district court correctly refused to award attorneys’ fees to plaintiffs1 for establishing a private cause of action under Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973. The majority holds that “the district court did not abuse its discretion in refusing to award fees for the plaintiffs’ success in securing a private right of action.” Majority op. at 1166. I, however, base my concurrence on the ground that the district court properly found that the plaintiffs were not “prevailing parties” under the operative statutes.
I respectively dissent from Parts III, IV, and V of the majority opinion. In Part III the majority holds that “the district court abused its discretion in refusing to find that the plaintiffs prevailed,” majority op. at 1169, in bringing about the Supplemental Agreement. In my view the majority misstates the role of the district court’s statutory discretion to award attorneys’ fees. Because I find that plaintiffs are not “prevailing partiés” in this litigation, I conclude that they are not entitled to attorneys’ fees. I would affirm the district court in all respects.
The Civil Rights Attorney’s Fee Awards Act provides in pertinent part:
In any civil action or proceeding to enforce .. . title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.
42 U.S.C. § 1988 (Supp. IV 1980) (emphasis added).
Given the wording of the statute,2 I conclude that the district judge must reach his decision concerning attorney’s fees in two stages. First, he must determine whether plaintiff is a “prevailing party” within the meaning of the statute. If the district judge concludes that plaintiff is not a “prevailing party,” he has no discretion to award attorney’s fees. Second, once the district judge concludes that plaintiff is a “prevailing party,” then and only then can he exercise his discretion in deciding whether to award fees and in determining the amount of any such fees.
The majority correctly articulates .the legal standard in this circuit for determining who is a “prevailing party” under section 1988. To be a “prevailing party,” plaintiff first must show that he “essentially succeeded,” Bagby v. Beal, 606 F.2d 411, 415 (3d Cir. 1979), Hughes v. Repko, 578 F.2d 483, 486-87 (3d Cir. 1979), in obtaining some of the benefits that he sought. Second, plaintiff must show a causal connection between his action and the relief obtained. Sullivan v. Pennsylvania Department of Labor and Industries, 663 F.2d 443, 447-51 (3d Cir. 1981), cert. denied, 455 U.S. -, 102 S.Ct. 1716, 72 L.Ed.2d 138 (1982). Plaintiff can establish this causal link if he can show that his action was a “material contributing factor in bringing about the events that resulted in the obtaining of the desired relief.” Sullivan, 663 F.2d at 452.
Under this standard I fully agree with the the district court that plaintiffs are not “prevailing parties.” That conclusion, therefore, renders the district judge’s denial of fees in this case nondiscretionary.
This litigation centers around plaintiffs’ attempts to prevent the removal and relocation of certain services of the Wilmington Medical Center (“WMC”). Plaintiffs alleged that that relocation (“Plan Omega”) would discriminate against them because of *1174their race, national origin, or physical handicap in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq. and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. In their original complaint, plaintiffs sought a declaratory judgment that the relocation of WMC’s facilities would violate Title VI and Section 504 and a permanent injunction prohibiting WMC’s relocation. Defendants in the case were WMC and all parties who had approved Plan Omega without regard to its compliance with Title VI and Section 504. Included as defendants were the Secretary of the United States Department of Health, Education and Welfare (“HEW”), the Director of the Bureau of Comprehensive Health Planning (“BCHP”), and the Chairman of the Health Planning Council, Inc.
After HEW and BCHP filed various motions to dismiss, the district judge temporarily stayed judicial proceedings and, over plaintiffs’ objections, sua sponte ordered HEW to conduct an investigation of plaintiffs’ allegations. HEW found that the implementation of Plan Omega would be a prima facie violation of Title VI and Section 504. After that finding, HEW and WMC voluntarily entered into a binding Contract of Assurances (“Supplemental Agreement”) which modified Plan Omega to comply with the statutes.
Plaintiffs immediately attacked the legality of the Supplemental Agreement. They amended their complaint to state that WMC and HEW had “further violated Title VI and Section 504 by entering into the Supplemental Agreement.... ” Second Amended Complaint ¶ 40, App. at 63. Plaintiffs amended their claim for relief to request a declaratory judgment that the Supplemental Agreement “fails to correct Plan Omega’s violation^],” Second Amended Complaint ¶ 46(h), App. at 66, and a permanent injunction that “orders the Secretary to rescind his approval of the Supplemental Agreement .. .,” Second Amended Complaint ¶ 47(i), App. at 68.
The litigation proceeded as described in the majority opinion and eventually the district court heard the case on the merits. The district court rejected all of plaintiffs’ claims that the Supplemental Agreement was discriminatory and entered judgment on the merits against plaintiffs with costs. NAACP v. WMC, Inc., 491 F.Supp. 290 (D. Del. 1980). This Court sitting en banc affirmed the holding of the district court in its entirety. NAACP v. WMC, Inc., 657 F.2d 1322 (3d Cir. 1981).
Plaintiffs now claim that they are entitled to attorneys’ fees from WMC for their efforts leading to the Supplemental Agreement. They claim that they are “prevailing parties” pursuant to section 1988 because the Supplemental Agreement affords them some of the “benefits” that they sought and because they were the “catalysts” prompting the HEW investigation and the Agreement.
I would hold that plaintiffs can not satisfy either prong of the “prevailing party” test. Plaintiffs never recognized the Supplemental Agreement as affording them “essential success” on their claims. They vehemently opposed the court-ordered investigation which resulted in the Supplemental Agreement. They contested the Agreement in its entirety, with no effort to insulate from their attack the “benefits” which they now claim to have achieved from the Agreement. Indeed, the district court concluded
Plaintiffs never wavered through the remainder of this litigation in their contention that Plan Omega as modified by the Supplemental Agreement violated the discrimination statutes involved. . . . None of the relief sought originally or later was ever granted to plaintiffs.
App. at 287-88. I would hold that plaintiffs cannot now, solely for the purpose of obtaining attorneys’ fees, claim benefit from an agreement which they have opposed from its inception.3
*1175Even assuming arguendo that plaintiffs can claim benefit from the Supplemental Agreement, they nonetheless fail to satisfy the second prong of the test. There is simply no causal connection between the plaintiffs’ actions and the alleged “benefits.” The majority argues for an “expansive” definition of causation, but even the most liberal definition cannot in my view encompass the actions of the plaintiffs in this case.
Whatever “benefits” plaintiffs may have derived resulted from the Supplemental Agreement entered into by co-defendants HEW and WMC after an extensive investigation by HEW. That Supplemental Agreement came about despite plaintiffs’ opposition to HEW’s investigation and despite plaintiffs’ efforts to rescind the Agreement in its entirety. Although plaintiffs did have some input in the negotiations between HEW and WMC, the district court concluded “based on its exposure to the facts” that any benefit conferred by the Supplemental Agreement was not causally related to the efforts of plaintiffs. App. at 288.
Like the district judge, I cannot hold that plaintiffs “caused” benefits to come into being when their only role was vigorously and consistently to seek the rescission of the Agreement from which those benefits came. Further, I cannot hold, as the majority does, that plaintiffs’ mere initiation of the lawsuit constitutes sufficient causation, when plaintiffs opposed every step in the litigation that led to the achievement of the alleged “benefits.”4
Because I conclude that plaintiffs are not “prevailing parties,” I would affirm the judgment of the district court in all respects.
. Party designations will follow those used in the majority opinion.
. Similar language in the attorney’s fee provision of the Rehabilitation Act of 1973, 29 U.S.C. § 794a(b) (Supp. II 1978) governs the award of attorney’s fees in cases involving the Rehabilitation Act.
. Unlike the present case, the cases cited in the majority opinion in which this Court previously has awarded attorneys’ fees have involved clear, uncontested benefits for plaintiffs. For example, in Sullivan v. Pennsylvania Department of Labor and Industries, 663 F.2d 443 (3d *1175Cir. 1981), cert. denied, 455 U.S. 1020, 102 S.Ct. 1716, 72 L.Ed.2d 138 (1982), plaintiffs Title VII suit prompted her union to arbitrate her grievance. Through the arbitration, plaintiff clearly benefitted in receiving “all the relief she had sought in her Title VII suit except attorneys’ fees.” Id. at 446. In Morrison v. Ayoob, 627 F.2d 669 (3d Cir. 1980) (per curiam), cert. denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981), plaintiffs sued to compel district justices to cease violating indigents’ rights to counsel. Plaintiffs clearly benefitted when defendants voluntarily ceased their objectionable practices. In Bagby v. Beal, 606 F.2d 411 (3d Cir. 1979), plaintiff alleged that her employer violated her constitutional rights in suspending her without sufficient notice in advance of her hearing. She clearly benefitted from the district court’s order that she be given a new hearing.
. Again, in previous cases where this Court has awarded fees, the causal link has been clear. For example, in Sullivan, 663 F.2d at 451, “the determination that [plaintiff’s] lawsuit was a material factor in bringing about her success in the arbitration [was] not contested.” Uncertain about the strength of plaintiff’s claim, her union had declined to take her case to arbitration until spurred on by her success with the EEOC. But see Ross v. Horn, 598 F.2d 1312 (3d Cir. 1979), cert. denied, 448 U.S. 906, 100 S.Ct. 3048, 65 L.Ed.2d 1136 (1980) (where the Court remanded for a determination of the causation issue because it was unclear from the record whether plaintiff’s lawsuit caused the New Jersey Department of Labor to modify its procedures for handling unemployment fraud cases).