UNPUBLISHEDUNITED STATES COURT OF APPEALSFOR THE FOURTH CIRCUITBUCKHANNON BOARD AND CAREHOME, INCORPORATED; THE WESTVIRGINIA RESIDENTIAL BOARD ANDCARE HOME ASSOCIATION; DORSEYPIERCE, by her next friend, Lockie J.Marple, and on behalf of all otherssimilarly situated,Plaintiffs-Appellants,andALMOST HOME, INCORPORATED; DAISYLAYMAN, by her next friend, FayeByers,Plaintiffs,v. No. 99-1424WEST VIRGINIA DEPARTMENT OFHEALTH AND HUMAN RESOURCES;GRETCHEN O. LEWIS, Secretary, WestVirginia Department of Health andHuman Resources; OFFICE OFHEALTH FACILITY LICENSURE ANDCERTIFICATION; NANCY TYLER,Director, Office of Health FacilityLicensure and Certification; SANDRAL. DAUBMAN, Program Manager,Office of Health Facility Licensureand Certification; WEST VIRGINIAOFFICE OF THE STATE FIRE MARSHAL;WALTER SMITTLE, Fire Marshal;GASTON CAPERTON, in his officialcapacity as Governor of theState of West Virginia; STATE OFWEST VIRGINIA; WEST VIRGINIASTATE FIRE COMMISSION; JOHNBEATY, II, Commissioner; JOSEPH J.BOSTAR, III, Commissioner; RANDYBREEDEN, Commissioner; JAMES W.FIFE, Commissioner; FRANCIS A.GUFFEY, II, Commissioner; DANIELHESS, Commissioner; GREGORYALAN LAY, Commissioner; DAVID L.TOLLIVER, Commissioner; STEPHENC. MCBEE, Commissioner; BILL L.SPENCER, Commissioner; VICTORSTALLARD, JR., Commissioner; J. D.WAGGONER, Commissioner; KENNETHMORGAN, Commissioner; JOAN E.OHL, Secretary, Department ofHealth and Human Resources; JOHNWILKENSON, Director, Office ofHealth Facility Licensure andCertification; CECIL H. UNDERWOOD,Governor, State of West Virginia,Defendants-Appellees,andWEST VIRGINIA STATE BOARD OFEXAMINERS FOR REGISTEREDPROFESSIONAL NURSES; LAURA S.RHODES, Executive Director, WestVirginia State Board of Examinersfor Registered Professional Nurses,Defendants. 2Appeal from the United States District Courtfor the Northern District of West Virginia, at Elkins.Frederick P. Stamp, Jr., Chief District Judge.(CA-96-106-2)Argued: December 2, 1999Decided: January 20, 2000Before NIEMEYER and MOTZ, Circuit Judges,and BUTZNER, Senior Circuit Judge._________________________________________________________________Affirmed by unpublished per curiam opinion._________________________________________________________________COUNSELARGUED: Webster J. Arceneaux, III, LEWIS, FRIEDBERG,GLASSER, CASEY & ROLLINS, L.L.P., Charleston, West Virginia,for Appellants. David Paul Cleek, OFFICE OF THE ATTORNEYGENERAL, Charleston, West Virginia; Charlene Ann Vaughan, Dep-uty Attorney General, WEST VIRGINIA DEPARTMENT OFHEALTH AND HUMAN SERVICES, Charleston, West Virginia, forAppellees. ON BRIEF: Sandra K. Henson, LEWIS, FRIEDBERG,GLASSER, CASEY & ROLLINS, L.L.P., Charleston, West Virginia,for Appellants. Darrell V. McGraw, Jr., Attorney General, Chad M.Cardinal, Assistant Attorney General, Charleston, West Virginia, forAppellees._________________________________________________________________Unpublished opinions are not binding precedent in this circuit. SeeLocal Rule 36(c)._________________________________________________________________ 3OPINIONPER CURIAM:The appellants in this case ask us to reexamine our holding in S-1and S-2 v. State Board of Education of North Carolina, 21 F.3d 49(4th Cir. 1994) (en banc), which rejected the catalyst theory whendetermining whether to award attorneys fees under federal statutesmaking fees awardable to prevailing parties. As a three-judge panelof the court, however, we are bound by our precedent. See Joseph v.Angelone, 184 F.3d 320, 324-25 (4th Cir. 1999). Accordingly, weaffirm the judgment of the district court that relied on S-1 and S-2 indenying appellants' motion for attorneys fees.Buckhannon Board and Care Home, Inc. ("Buckhannon"), whichoperates residential care homes for elderly people who require someassistance in the activities of daily living, failed an inspection by theWest Virginia Office of the State Fire Marshal because it housed resi-dents incapable of self-preservation, in violation of West Virginialaw. See W. Va. Code S 16-5H-2 (1998) (requiring that all residentsof residential board and care homes be capable of self-preservation).Buckhannon and other plaintiffs commenced this action for a declara-tory judgment that the state law violated the Fair Housing Amend-ments Act ("FHAA"), 42 U.S.C. S 3601 et seq., and the Americanswith Disabilities Act ("ADA"), 42 U.S.C. S 12101 et seq.While the action was pending, West Virginia amended state law todelete the self-preservation requirement. None of the defendants,however, informed the plaintiffs or the court of the pending amend-ments. Indeed, the district court noted that the defendants did not eveninform their own attorney, who was representing them in this action.As a result of the amendments, this action became moot, and the dis-trict court dismissed it.Although Buckhannon did not obtain the change in state lawthrough an enforceable judgment, consent decree, or settlement, itclaimed nevertheless that it was the prevailing party entitled to attor-neys fees under the FHAA and the ADA. See 42 U.S.C. S 3613(c)(2);42 U.S.C. S 12205. Buckhannon argued that under a catalyst theory,it obtained the relief it sought through the defendants' voluntary con- 4duct because it filed this action and brought to the state's attention theflaws in its law. The district court observed that if the catalyst theorywere available in this circuit, the plaintiffs "might prevail." However,because this circuit had rejected the catalyst theory in S-1 and S-2, thedistrict court denied the plaintiffs' motion for attorneys fees.On this appeal, the appellants challenge "only the district court'sruling on the disallowance of attorneys fees and costs under the `cata-lyst theory.'" They urge us to reexamine our decision in S-1 and S-2,which, they acknowledge, would, if applied, require rejection of theirappeal.The Fourth Circuit has determined that panels of the court arebound by the prior decisions of the court, en banc or in panel, and thatbinding precedent can be reversed only by the court en banc. SeeJoseph, 184 F.3d at 325 ("As a panel, we are not authorized to recon-sider an en banc holding even if we happen to be so inclined, whichwe are not"); Busby v. Crown Supply, Inc., 896 F.2d 833, 840-41 (4thCir. 1990) ("[A] panel considers itself bound by the prior decision ofanother panel, absent an in banc overruling or a superseding contrarydecision of the Supreme Court").In S-1 and S-2, we held that in order to qualify as a "prevailingparty" in litigation, the plaintiff must, through the litigation, "`obtainan enforceable judgment . . . or comparable relief through a consentdecree or settlement.'" S-1 and S-2 v. State Board of Education ofNorth Carolina, 6 F.3d 160, 168 (4th Cir. 1993) (Wilkinson, J., dis-senting) (quoting Farrar v. Hobby, 506 U.S. 103, 111 (1992)),vacated, 21 F.3d 49 (1994) (en banc) (adopting Judge Wilkinson'sdissent as the majority opinion). Because the plaintiffs did not bringabout the change in West Virginia law through any judgment, decree,or settlement, we conclude that the district court properly applied S-1and S-2 to this case. Accordingly, the judgment of the district courtisAFFIRMED.
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