 L. Douglas Brinn v. TIDEWATER TRANSPORTATION DISTRICT COMMISSION -- 2 of 12 -- Thus, federal law…

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 L. DOUGLAS BRINN; KEN JESSUP;
STEVEN W. JACKSON; JOYCE A.
WILLIAMS, on behalf of themselves
and all those similarly situated,
Plaintiffs-Appellees,
No. 00-2116 v.
TIDEWATER TRANSPORTATION DISTRICT
COMMISSION, t/a Tidewater Regional
Transit,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CA-99-1637-2)
Argued: January 24, 2001
Decided: March 1, 2001
Before MOTZ and TRAXLER, Circuit Judges, and
Malcolm J. HOWARD, United States District Judge for the
Eastern District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Traxler and Judge Howard joined.
COUNSEL
ARGUED: Donald H. Clark, WILLIAMS, MULLEN, CLARK &
DOBBINS, Virginia Beach, Virginia, for Appellant. Jonathan Gerald

-- 1 of 12 --

Martinis, COMMONWEALTH OF VIRGINIA DEPARTMENT
FOR RIGHTS OF VIRGINIANS WITH DISABILITIES, Richmond,
Virginia, for Appellees. ON BRIEF: A. W. VanderMeer, Jr., WIL-
LIAMS, MULLEN, CLARK & DOBBINS, Virginia Beach, Virginia,
for Appellant.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
After L. Douglas Brinn, Ken Jessup, Steven Jackson, and Joyce
Williams, obtained an advantageous settlement of their claims against
Tidewater Transportation District Commission under the Americans
with Disabilities Act (ADA) and the Rehabilitation Act of 1973, they
sought attorney’s fees. The district court awarded them $29,506.24 in
attorney’s fees. Tidewater appeals, not disputing the reasonableness
of the amount of the fee award, but contending that the award of any
attorney’s fees in this case violates state and federal law. For the rea-
sons set forth below, we affirm.
I.
The ADA makes mandatory the provision of special transportation
services, known as paratransit services, to individuals with disabili-
ties. See 42 U.S.C. § 12143(a)(1994). Section 12143 of the ADA
expressly provides:
It shall be considered discrimination for purposes of section
12132 of this title and section 794 of [the Rehabilitation Act
of 1973, 29 U.S.C. § 701 (1994)] for a public entity which
operates a fixed route system . . . to fail to provide with
respect to the operations of its fixed route system . . . para-
transit and other special transportation services to individu-
als with disabilities . . . that are sufficient to provide to such
individuals a level of service . . . which is comparable to the
level of designated public transportation services provided
to individuals without disabilities using such system . . . .
2 BRINN v. TIDEWATER TRANSPORTATION DISTRICT COMMISSION

-- 2 of 12 --

Thus, federal law requires public entities operating fixed-route public
transportation systems to provide paratransit services "comparable to
the level of designated public transportation services provided to indi-
viduals without disabilities using such system." Id.
Under the regulations implementing § 12143, local transportation
entities must comply with specified service criteria in order to provide
sufficiently "comparable paratransit services." See 49 C.F.R. pt. 37,
App. D, § 37.121, p. 499 (1999). One of the specified service criteria
concerns the scheduling of paratransit trips. Although local entities
may accept reservations up to fourteen days in advance, they also
must "schedule and provide paratransit service to any ADA paratran-
sit eligible person at any requested time on a particular day in
response to a request for service made the previous day." 49 C.F.R.
§ 37.131(b). In other words, local transportation entities must provide
paratransit services for eligible individuals on a next-day basis.
Tidewater governs the transportation district that operates the pub-
lic transportation system in and around the cities of Chesapeake, Nor-
folk, Portsmouth, Suffolk, and Virginia Beach, Virginia. See Va.
Code § 15.2-4504. Since 1978, Tidewater has provided paratransit
services to the elderly and disabled within its service area. From 1996
through 1999, Tidewater experienced a significant increase in the
demand for paratransit services. As a result, meeting advance reserva-
tion requests often exhausted the available services, forcing Tidewater
to refuse requests for next-day paratransit service.
In April and May of 1999, L. Douglas Brinn, Ken Jessup, Steven
Jackson, and Joyce Williams, among others, complained to the
Department for Rights of Virginians with Disabilities (DRVD) that
Tidewater had failed to provide them next-day paratransit services.
DVRD, a state agency charged with rendering assistance to persons
seeking to protect their rights under the ADA, the Rehabilitation Act,
and the Virginians with Disabilities Act, see Va. Code § 51.5-37
(1998), is part of Virginia’s state system for protecting the rights of
the disabled. By choosing to create systems designed "to protect the
legal and human rights of individuals with disabilities," states become
eligible for federal funding under the Rehabilitation Act. See 29
U.S.C. § 794e(a)(1). To receive this federal funding, a state system
must "have the authority to pursue legal, administrative, and other
3 BRINN v. TIDEWATER TRANSPORTATION DISTRICT COMMISSION

-- 3 of 12 --

appropriate remedies or approaches to ensure the protection of, and
advocacy for, the rights of [disabled] individuals within the State." 29
U.S.C. § 794e(f)(3). In Virginia, this authority is vested in DRVD.
See Va. Code § 51.5-37.
In June 1999, DRVD sent Tidewater formal notice that it repre-
sented a group of individuals aggrieved by Tidewater’s failure to pro-
vide next-day paratransit services and that this denial constituted a
violation of the ADA. On July 16, 1999, Tidewater’s Executive
Director, Michael Townsend, met with lawyers from DRVD and exe-
cuted a written agreement under which Tidewater promised to bring
its provision of paratransit transportation services into "full compli-
ance with the ADA and the Rehabilitation Act" and "all regulations
promulgated thereto" not later than 45 days after October 1, 1999. In
the agreement, the parties also arranged to meet on July 22, 1999 to
decide on "specific levels of compliance, including levels of service
and a graduated time schedule (with the first target date to be 21
August 1999) for meeting those requirements, concluding with full
compliance with the requirements no later than 15 November 1999."
On July 22, 1999, counsel for the parties met as agreed. At that
meeting, DRVD submitted a ten-page proposed settlement agreement,
which contained detailed standards of compliance, reporting require-
ments, and penalties for noncompliance. A few weeks later, on
August 17, 1999, counsel met for a third time. At that meeting, coun-
sel for Tidewater presented a counter-proposal, in which, Tidewater
did not bind itself to bring its provision of next-day paratransit ser-
vices into compliance with the ADA or the Rehabilitation Act, but
rather only committed to "use its best efforts" not to "engage in any
operational practice or activity that would establish a pattern of trip
denials." DRVD refused to accept Tidewater’s counter-proposal, and,
after this meeting, settlement negotiations ceased.
Brinn, Jessup, Jackson, Williams, and others continued to experi-
ence difficulty obtaining next-day paratransit services. Believing that
further settlement negotiations would be fruitless, they filed suit under
the ADA and the Rehabilitation Act, on behalf of themselves and all
similarly situated individuals, alleging that Tidewater failed to pro-
vide next-day paratransit services as required by federal law. The suit
sought an injunction requiring Tidewater to bring its provision of
4 BRINN v. TIDEWATER TRANSPORTATION DISTRICT COMMISSION

-- 4 of 12 --

next-day paratransit services into full compliance with the ADA and
the Rehabilitation Act. During a pretrial conference on November 30,
1999, the plaintiffs, represented by DRVD, offered to engage in for-
mal mediation, but Tidewater refused. The parties then proceeded
with discovery.
After discovery was completed, the plaintiffs moved for summary
judgment. However, on January 18, 1999, before argument on the
summary judgment motion could be heard, the parties entered into a
settlement agreement, under which Tidewater agreed both to provide
the relief sought in the complaint and to produce monthly monitoring
reports on its compliance with these terms. The district court incorpo-
rated the settlement agreement into a court order, and ultimately
entered a permanent injunction based on the terms of the settlement
agreement.
The plaintiffs then moved for an award of attorney’s fees, as "pre-
vailing" plaintiffs under the ADA, 42 U.S.C. § 12205, and the Reha-
bilitation Act, 29 U.S.C. § 794a(b). The district court awarded them
$29,506.24 in attorney’s fees and costs. Tidewater now appeals; it
does not dispute the reasonableness of the award amount, but instead
contends that state and federal law prohibit the award of any fees in
this case.
II.
Section 505 of the ADA states that: "In any action or administra-
tive proceeding commenced pursuant to this chapter, the court or
agency, in its discretion, may allow the prevailing party, other than
the United States, a reasonable attorney’s fee . . . ." 42 U.S.C.
§ 12205. The Rehabilitation Act contains an almost identical provi-
sion. See 29 U.S.C. § 794a(b) ("In any action or proceeding to enforce
or charge a violation of a provision of this subchapter, 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.").
The district court noted that the Supreme Court has held that a
"plaintiff is considered a ‘prevailing party’" if "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
5 BRINN v. TIDEWATER TRANSPORTATION DISTRICT COMMISSION

-- 5 of 12 --

benefits the plaintiff." Brinn v. Tidewater Transp. Dist. Comm’n, 105
F. Supp. 2d 500, 503 (E.D. Va. 2000) (quoting Farrar v. Hobby, 506
U.S. 103, 111-12 (1992)). The court then held that "[t]here is no ques-
tion that the settlement meets the Farrar criteria," and therefore plain-
tiffs "prevailed" for attorney’s fees purposes. Brinn, 105 F. Supp. 2d
at 503; see also S-1 and S-2 v. State Bd. of Educ. of North Carolina,
21 F.3d 49, 51 (4th Cir. 1994) (relief on the merits need not be in the
form of a judgment, but may also include comparable relief through
a consent decree or settlement agreement). Tidewater apparently does
not challenge these holdings but it nonetheless asserts that state and
federal law prohibit any award of attorney’s fees in this case.1
A.
Tidewater principally contends that Virginia law bars any award of
attorney’s fees in this case. Tidewater relies on one subsection of the
Virginians with Disabilities Act (VDA), which states: "In any action
in which the petitioner is represented by the Department for the
Rights of Virginians With Disabilities, no attorneys’ fees shall be
awarded, nor shall the Department for Rights of Virginians With Dis-
abilities have the authority to institute any class action under this
chapter." Va. Code § 51.5-46(D). According to Tidewater, subsection
1In its reply brief, Tidewater seems to suggest (for the first time) that
the plaintiffs may not have prevailed on much because, "[c]onsidering
the fact that [Tidewater] had already agreed before the litigation to bring
its paratransit service within full compliance of the ADA and the Reha-
bilitation Act, the causal connection between the litigation and the volun-
tary injunction called for in the settlement agreement is weak, at best."
Reply Brief at 10-11. At oral argument, Tidewater appeared to back off
this contention; moreover, since it was not raised until the reply brief, we
need not linger over it. See Cavallo v. Star Enter., 100 F.3d 1150, 1152
& n.2 (4th Cir. 1996) ("[A]n issue first argued in a reply brief is not
properly before a court of appeals."). But we do note that the district
court expressly found that although Tidewater, through its Executive
Director, initially agreed to comply fully with federal law, it subse-
quently "repudiated" the "most important provisions" of the agreement it
had initially made, requiring the plaintiffs to resort to litigation. The
record amply supports this finding; indeed, a comparison of Tidewater’s
initial July 16 agreement and its August repudiation of that agreement
makes this conclusion inescapable.
6 BRINN v. TIDEWATER TRANSPORTATION DISTRICT COMMISSION

-- 6 of 12 --

(D) prohibits any court — state or federal — from awarding attor-
ney’s fees in any action in which the plaintiff is represented by
DRVD — even if that action is one, like the case at hand, brought
exclusively under federal law. We find this argument unpersuasive.
Tidewater’s argument ignores the remainder of § 51.5-46, the
authoritative construction of that statute by the Supreme Court of Vir-
ginia, and other provisions of state law, all of which indicate that sub-
section (D) applies only to actions brought under the VDA. Section
51.5-46 constitutes the remedies provision of the VDA; indeed, it is
entitled "Remedies." See Va. Code § 51.5-46. Subsection (A) of
§ 51.5-46 gives Virginia chancery courts jurisdiction over VDA
claims with the ability to provide equitable relief, compensatory dam-
ages, and attorney’s fees; subsection (B) sets the statute of limitations
for VDA claims; and subsection (C) provides that the only relief for
violations of the VDA is that set forth in this section. Viewed in this
context, as the last of four subsections in the section outlining
"[r]emedies" under the VDA, subsection (D)’s prohibition against
attorney’s fees "in any action" in which a petitioner is represented by
DRVD surely seems intended only to preclude attorney’s fees in
DVRD cases brought under the VDA.2
Furthermore, the Supreme Court of Virginia has interpreted the
VDA as containing no limitations on cases brought under federal law.
Not only has the court expressly held that § 51.5-46(C) contains no
such limitations, but it has generally opined that "[w]hile it is true that
the VDA and the federal Rehabilitative [sic] Act of 1973 have similar
purposes, nothing in the VDA expressly makes either the federal Act
part of the VDA’s statutory scheme or the provisions of the one appli-
2The fact that subsection (D) addresses fees sought by a "petitioner"
also suggests the limit of the subsection’s application. The VDA refers
to a claim brought pursuant to it as a petition, and to one bringing such
a claim as a petitioner. See § 51.5-46(A) ("Any circuit court having chan-
cery jurisdiction and venue . . ., on the petition of any person with a dis-
ability, shall have the right to enjoin the abridgement of rights set forth
in this chapter.") (emphasis added). Thus, the use of the word "peti-
tioner" indicates that subsection (D)(like the remainder of § 51.5-46)
applies only to a VDA "petitioner," not to an ADA or Rehabilitation Act
plaintiff.
7 BRINN v. TIDEWATER TRANSPORTATION DISTRICT COMMISSION

-- 7 of 12 --

cable to the other." Braddick v. Grumman Data Sys. Corp., 254 Va.
156, 160, 486 S.E.2d 545, 547 (1997). Moreover, if the Virginia Gen-
eral Assembly had truly intended to prohibit DRVD from receiving
attorney’s fees in an action brought under federal law, it likely would
have done so in § 51.5-37, the statute creating DRVD. See Va. Code
§ 51.5-37. But, in fact, rather than prohibiting such an award, that
statute specifically authorizes DRVD to pursue generally "legal reme-
dies," on behalf of disabled persons, under both federal and state law.
Va. Code § 51.5-37.
But there is yet another, even more compelling, reason why we
decline to hold that the VDA does not limit the award of attorney’s
fees in actions, like this one, brought exclusively under federal law —
to do so would violate the Constitution. Such an interpretation would
surely run afoul of the Supremacy Clause. See U.S. Const. art. VI, cl.
2. A simple statement of Tidewater’s claim reveals this difficulty.
Tidewater urges us to hold that, despite the ADA and the Rehabilita-
tion Act’s specific grant of discretion to federal courts to award attor-
ney’s fees to prevailing plaintiffs, a Virginia statute prohibits federal
courts from exercising that discretion in certain cases.
Although "federal courts are appropriately reluctant to displace
state law," the Supremacy Clause mandates that federal law super-
sedes state law that either directly or by implication conflicts with
federal law. See Metro. Life Ins. Co. v. Pettit, 164 F.3d 857, 861 (4th
Cir. 1998). Such a conflict arises when "the state law stands as an
obstacle to the accomplishment of the full purposes and objectives of
the relevant federal law." Nat’l Home Equity Mortgage Assoc. v.
Face, ___ F.3d ___, 2001 WL 101454, at *2 (4th Cir. Feb. 7, 2001)
(internal quotation marks omitted). That is precisely what would
result if we were to construe § 51.5-46(D) as Tidewater contends we
should. With the passage of § 505 of the ADA and § 794a of the
Rehabilitation Act, Congress plainly intended to give federal courts
discretion to award attorney’s fees in ADA and Rehabilitation Act
actions where appropriate; to adopt Tidewater’s argument, would be
to permit a state statute to limit that grant of discretion. Put another
way, the state statute would "stand as an obstacle" to Congress’s
intent to give federal courts discretion to award attorney’s fees to any
entity they deem appropriate, other than the United States.
8 BRINN v. TIDEWATER TRANSPORTATION DISTRICT COMMISSION

-- 8 of 12 --

We note that, in a related context, namely attorney’s fee awards
under 42 U.S.C. § 1988,3 courts have expressly held that government
officials may not refuse to pay attorney’s fees on the ground that a
state statute forbids them from doing so. See Spain v. Mountanos, 690
F.2d 742, 746 (9th Cir. 1982) ("[A] state cannot frustrate the intent
of section 1988 by setting up state law barriers to block enforcement
of an attorney’s fees award."); Gates v. Collier, 616 F.2d 1268, 1272
(5th Cir. 1980) (same). Cf. New York Gaslight Club, Inc. v. Carey,
447 U.S. 54, 67 (1980) (authorizing attorney’s fees for prevailing
Title VII claimant in state administrative and judicial proceedings
despite lack of state law authorization because "Congress’ power
under § 5 of the Fourteenth Amendment . . . overrides any interest the
State might have in not authorizing awards for fees").
To permit states to exempt local governmental entities from liabil-
ity for attorney’s fees awarded by a federal court, pursuant to a fed-
eral statute, would allow a state legislature to override a
Congressional enactment.4 A state statute that thwarts a federal court
3Because of the scarcity of case law interpreting § 12205 and
§ 794a(b), courts faced with the task have relied on the body of law inter-
preting federal civil rights attorney’s fees provisions. See Bercovitch v.
Baldwin Sch., Inc., 191 F.3d 8, 10-11 (1st Cir. 1999) (attorney’s fee pro-
vision in ADA intended to be interpreted consistently with other civil
rights laws); Homeward Bound, Inc. v. Hissom Mem’l Ctr., 963 F.2d
1352, 1354 n.1 (10th Cir. 1992) (standards for awarding attorney’s fees
to prevailing party in civil rights actions applicable to fee awards under
Rehabilitation Act); Robins v. Scholastic Book Fairs, 928 F. Supp. 1027,
1036 (D. Or. 1996), aff’d, 116 F.3d 485 (9th Cir. 1997) (noting the scar-
city of judicial interpretation of 42 U.S.C. § 12205, and relying on legis-
lative history, which suggests that Congress intended that § 12205 would
operate in the same manner as § 1988).
4Tidewater suggests in passing that it would enjoy Eleventh Amend-
ment immunity from liability for attorney’s fees if, in Garrett v. Univ. of
Ala., 193 F.3d 1214 (11th Cir. 1999), cert. granted, 120 S. Ct. 1669
(2000), the Supreme Court "should hold" that "Title I and Title II of the
ADA exceed Congress’s enforcement authority under Section 5 of the
14th Amendment." Reply Brief at 17-18. But, the Supreme Court’s hold-
ing in Garrett, ___ U.S. ___, 2000 WL 33179681 (Feb. 21, 2001), pro-
vides no assistance to Tidewater because Tidewater is not an arm of the
state. Eleventh Amendment immunity is only available to the state and
9 BRINN v. TIDEWATER TRANSPORTATION DISTRICT COMMISSION

-- 9 of 12 --

order enforcing federal rights "cannot survive the command of the
Supremacy Clause." Washington v. Wash. State Commercial Passen-
ger Fishing Vessel Ass’n, 443 U.S. 658, 695 (1979).
In short, adopting Tidewater’s argument would contravene "the
command of the Supremacy Clause," which we refuse to do. Further-
more, given that state law itself strongly indicates that § 51.5-46(D)
prohibits DRVD from collecting attorney’s fees awards only in cases
arising under the VDA, we have absolutely no reason to adopt Tide-
water’s constitutionally dubious interpretation of subsection (D). See
Jones v. United States, ___ U.S. ___, 120 S. Ct. 1904, 1908 (2000);
Ashwander v. TVA, 297 U.S. 288 (1936).
B.
Tidewater’s remaining contentions are less novel but no more per-
suasive.
First, Tidewater maintains that no fees can be awarded in this case
because the United States is prohibited from receiving attorney’s fees
when it prevails on ADA or Rehabilitation Act claims, and according
its "arms," not county or municipal entities or agencies, like Tidewater.
See Will v. Mich. Dept. of State Police, 491 U.S. 58, 70-71 (1989); Mt.
Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977). As Tide-
water conceded in its Answer, its memorandum below, and in its briefs
before us, it is a local transportation district commission, not a state
agency. The Virginia Code provides that "counties or cities, or combina-
tions thereof" may create corporate bodies known as "transportation dis-
tricts," § 15.2-4504, which shall be managed by such a commission
appointed by "the governing body of each participating county or city,"
§ 15.2-4507, and funded by appropriations from these counties and cit-
ies, § 15.2-4524, and by bonds issued by the individual district, § 15.2-
4519. "Except for claims cognizable under the Virginia Tort Claims Act,
no pecuniary liability of any kind shall be imposed on the Common-
wealth . . . because of any act, agreement, contract, tort, malfeasance,
misfeasance, or nonfeasance" of a local transportation district commis-
sion and the obligations of a commission "shall not be in any way a debt
or liability of the Commonwealth." Va. Code § 15.2-4526 (citation omit-
ted).
10 BRINN v. TIDEWATER TRANSPORTATION DISTRICT COMMISSION

-- 10 of 12 --

to Tidewater, DRVD is a direct agent of the United States and there-
fore barred from recovery of fees. See 29 U.S.C. § 794e(f)(1) (autho-
rizing appropriations to states that elect to participate in statutory
scheme by "hav[ing] in effect a system to protect and advocate the
rights of individuals with disabilities"). Tidewater is correct that the
United States is barred from obtaining fees, when it is the prevailing
party in ADA and Rehabilitation Act claims. See 42 U.S.C. § 12205;
29 U.S.C. § 794a(b). But that bar does not effect the award of fees
here because the prevailing parties in this case are Brinn, Jessup,
Jackson, Williams, and the other members of the class. DRVD, which
is simply their counsel, is not the prevailing party. Moreover, even if
DRVD were the "prevailing party" in this litigation, the ADA and the
Rehabilitation Act still would not preclude DRVD from receiving
attorney’s fees because DRVD is not an agent of the United States.
The mere fact that DRVD receives federal funding, or must comply
with federal standards, is not sufficient to transform DRVD, a state
agency, into an agent of the United States when the federal govern-
ment has no power to control its day-to-day operations. See, e.g.,
United States v. Orleans, 425 U.S. 807, 819 (1976); Williams v.
United States, 50 F.3d 299, 306 (4th Cir. 1995).
Tidewater also argues that no attorney’s fees may be awarded in
this case because the plaintiffs were provided legal representation by
a state agency free of charge. But courts have consistently held that
entities providing pro bono representation may receive attorney’s fees
where appropriate, even though they did not expect payment from the
client and, in some cases, received public funding. See, e.g., Blum v.
Stenson, 465 U.S. 886, 893-95 (1984) (upholding use of prevailing
market rates to calculate attorney’s fee award to Legal Aid Society in
civil rights action); Johnson v. Lafayette Fire Fighters Ass’n Local
472, 51 F.3d 726, 732 (7th Cir. 1995) (attorney’s fees to private foun-
dation); Alexander S. By and Through Bowers v. Boyd, 929 F. Supp.
925, 928-29 (D.S.C. 1995), aff’d sub nom. Burnside v. Boyd, 89 F.3d
827 (4th Cir. 1996) (attorney’s fees to state agency).
Finally, Tidewater maintains that DRVD’s failure to engage in for-
mal mediation with Tidewater prior to resorting to litigation, see Va.
Code § 51.5-37, is a "special circumstance" that renders an award of
attorney’s fees unjust. See Newman v. Piggie Park Enter., 390 U.S.
400, 402 (1968). That argument too fails. First, Tidewater waived any
11 BRINN v. TIDEWATER TRANSPORTATION DISTRICT COMMISSION

-- 11 of 12 --

objection to DRVD’s failure to invoke formal mediation before filing
the complaint by not raising this defense in its answer or any pretrial
motion. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 389
(1982) (requirement that claimant timely file administrative complaint
prior to bringing suit subject to waiver by defendant’s failure to raise
objection). Moreover, § 51.5-37 does not require that DRVD engage
in formal mediation procedures prior to filing suit; rather, it simply
states that DRVD has a duty to "employ mediation procedures to the
maximum extent possible to resolve complaints." Va. Code § 51.5-
37(3) (emphasis added). DRVD did that here; it contacted Tidewater,
and engaged in a series of negotiations with Tidewater in the hopes
of reaching a settlement prior to filing suit. Only when Tidewater
repudiated its earlier agreement to bring its provision of paratransit
services into compliance with federal law, effectively ending negotia-
tions, did the plaintiffs, represented by DRVD file suit.
III.
For the reasons set forth above, the judgment of the district court
is
AFFIRMED.
12 BRINN v. TIDEWATER TRANSPORTATION DISTRICT COMMISSION

-- 12 of 12 --