Anika Wikol, by and through her next friends, Murray and Nanette Wikol v. Birmingham Public Schools Board of Education

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0074P (6th Cir.)
File Name: 04a0074p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ANIKA WIKOL, by and
through her next friends,
Murray and Nanette Wikol,
Plaintiff-Appellant/
Cross-Appellee,
v.
BIRMINGHAM PUBLIC
SCHOOLS BOARD OF
EDUCATION,
Defendant-Appellee/
Cross-Appellant.
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Nos. 02-1798/2047
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 00-60265—Marianne O. Battani, District Judge.
Argued: February 5, 2004
Decided and Filed: March 10, 2004
Before: NELSON, GILMAN, and ROGERS, Circuit
Judges.
2 Wikol v. Birmingham
Public Schools
Nos. 02-1798/2047
_________________
COUNSEL
ARGUED: Richard J. Landau, DYKEMA GOSSETT, Ann
Arbor, Michigan, for Appellant. Richard E. Kroopnick,
POLLARD, ALBERTSON, NYOVICH & HIGDON,
Bloomfield Hills, Michigan, for Appellee. ON BRIEF:
Richard J. Landau, DYKEMA GOSSETT, Ann Arbor,
Michigan, for Appellant. Richard E. Kroopnick, POLLARD,
ALBERTSON, NYOVICH & HIGDON, Bloomfield Hills,
Michigan, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Anika Wikol is
a child with autism who is eligible for special education and
related services under the Individuals with Disabilities Act
(IDEA), 20 U.S.C. §§ 1400-1487. She resides within the
Birmingham Public School District in Birmingham,
Michigan. At issue in this case are her parents’ attempts to
secure reimbursement from Birmingham for Anika’s
educational program for the 1998-99 and 1999-2000
academic years.
The Wikols have appealed what they regard as an
inadequate award by the jury. They also seek to recover
attorney fees, costs, and prejudgment interest, all of which the
district court denied. In its cross-appeal, Birmingham
challenges the timeliness of the Wikols’ appeal with respect
to all but their claim for attorney fees and costs. For the
reasons set forth below, we agree that the Wikols’ appeal was
untimely except for these latter items. We accordingly
dismiss the bulk of the Wikols’ claims for lack of appellate
jurisdiction. With regard to their claim for attorney fees and

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costs, we vacate the decision of the district court denying such
relief and remand for reconsideration.
I. BACKGROUND
When Anika was approximately two-and-a-half years old,
her parents enrolled her in the preprimary impaired program
in the Birmingham public schools. The Wikols soon became
dissatisfied with the program. They consequently removed
Anika from the public school system and established a
full-time home-based alternative program recommended by
the Lovaas Institute, a non-profit organization that specializes
in educating children with autism. After approximately three
years in the Lovaas home-based program, the Wikols decided
to partially transition Anika back into the Birmingham public
schools.
An “individualized education program team” comprised of
the Wikols and members of Anika’s school thus convened,
pursuant to the IDEA, to develop an individualized education
program (IEP) for Anika. At the meeting, Birmingham and
the Wikols could not agree upon Anika’s educational program
because, according to the Wikols, Birmingham refused to
(1) provide Anika with an IEP that would support her home-
based education, and (2) reimburse the Wikols for their past
expenses in providing Anika with the Lovaas program.
This impasse led the Wikols to request a due process
hearing pursuant to 20 U.S.C. § 1415(f). The due process
hearing did not occur, however, because the parties reached
a settlement. Under the settlement agreement, dated April 8,
1998, Birmingham agreed to pay the Wikols $115,000 “as
reimbursement for necessary educational services actually
incurred or reasonably anticipated to be incurred during the
1994-95 through 1997-98 school years.” The agreement
further provided that Birmingham and the Wikols would meet
to determine Anika’s IEP for the following school years, and
that if a Lovaas or Lovaas-style program were implemented,
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Nos. 02-1798/2047
Birmingham would pay “one-half of the costs of any such
program.” Despite the settlement for these prior years,
disputes continued between the Wikols and Birmingham
regarding reimbursement for the Lovaas program in the 1998-
99 and 1999-2000 school years.
In December of 1999, the Wikols again requested a due
process hearing to resolve the outstanding reimbursement
issues. A local hearing officer was appointed in early 2000,
but Birmingham objected to the hearing officer’s jurisdiction
and requested that the matter be dismissed. Birmingham and
the Wikols ultimately stipulated to the dismissal of the
Wikols’ request for a due process hearing regarding the two
school years in question, opting instead to “seek judicial
resolution of the issues.”
The Wikols brought suit in May of 2000 against
Birmingham in the United States District Court for the
Eastern District of Michigan. Eight months later, the Wikols
moved for summary judgment, arguing that they were entitled
to reimbursement from Birmingham for Anika’s home-based
Lovaas program. The district court granted the Wikols’
motion in part with regard to the 1998-99 school year. It
concluded that, pursuant to the settlement agreement,
Birmingham owed the Wikols fifty percent of the “costs” of
the Lovaas program, but that a genuine issue of material fact
existed as to what constituted those costs. With regard to the
1999-2000 school year, the district court denied the Wikols’
motion for summary judgment in its entirety.
The case then proceeded to trial, at the end of which the
jury awarded the Wikols approximately $5,000 for costs
incurred in providing Anika’s home-based program for the
1998-99 school year. As for the 1999-2000 academic year,
the jury determined that Birmingham’s school-based
educational program had provided Anika with a “free
appropriate public education,” and therefore declined to
award the Wikols any reimbursement for that year.

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Following the district court’s entry of judgment on
March 27, 2002, the Wikols timely moved for the recovery of
attorney fees and costs pursuant to 20 U.S.C. § 1415, which
the district court denied. The Wikols appeal from the district
court’s partial denial of their motion for summary judgment,
the jury’s verdict concerning the 1999-2000 school year, the
district court’s denial of their motion for attorney fees and
costs, and the district court’s denial of prejudgment interest.
Birmingham cross-appeals, challenging the timeliness of the
Wikols’ appeal as to all issues other than their claim for
attorney fees and costs.
II. ANALYSIS
A. Timeliness of the Wikols’ appeal
We must determine, as a threshold issue, whether we have
jurisdiction to hear the bulk of the issues raised in this appeal.
On cross-appeal, Birmingham argues that we do not have
such jurisdiction because the Wikols filed their notice of
appeal late, outside of the time limits imposed by Rule
4(a)(1)(A) of the Federal Rules of Appellate Procedure.
Determining the timeliness of the Wikol’s notice of appeal
requires an analysis of the interplay between Rule 4 of the
Federal Rules of Appellate Procedure and Rules 54, 58, and
59 of the Federal Rules of Civil Procedure. Rule 4(a)(1)(A)
of the Federal Rules of Appellate Procedure provides the
generally applicable limitation that a notice of appeal in a
civil case must be filed “within 30 days after the judgment or
order appealed from is entered.” A litigant’s compliance with
this “mandatory and jurisdictional” requirement is of critical
importance. 16A Wright et al., Federal Practice and
Procedure § 3950.1 (3d ed. 1999).
Exceptions to the 30-day rule exist, however. If a party
timely files any one of the six post-judgment motions
enumerated in Rule 4(a)(4)(A) of the Federal Rules of
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Nos. 02-1798/2047
Appellate Procedure, other than the one for attorney fees, the
time to file an appeal automatically runs for all parties from
the entry of the order disposing of the last such remaining
motion. The post-decisional motion relevant to this case is of
course the one for attorney fees, which was filed pursuant to
Rule 54 of the Federal Rules of Civil Procedure. When a
litigant files a Rule 54 motion for attorney fees, the time to
file a notice of appeal will run from the disposition of that
motion “if the district court extends the time to appeal under
Rule 58.” Fed. R. App. P. 4(a)(4)(A)(iii) (emphasis added).
The plain language of Rule 4 thus stipulates that in order for
the time to file an appeal to be tolled when a party moves for
attorney fees under Rule 54, the district court must
affirmatively act pursuant to Rule 58 of the Federal Rules of
Civil Procedure. Rule 58, in turn, provides that
[w]hen a timely motion for attorney fees is made under
Rule 54(d)(2), the court may act before a notice of appeal
has been filed and has become effective to order that the
motion have the same effect under Federal Rule of
Appellate Procedure 4(a)(4) as a timely motion under
Rule 59.
Fed. R. Civ. P. 58(c)(2) (emphasis added).
Rule 58’s reference to “a timely motion under Rule 59” is
initially puzzling, given that Rule 59 neither mentions the
filing of a notice of appeal nor refers back to Rule 58. A
number of cross-references are necessary to divine Rule 59’s
place in the Rule 4, 54, 58, 59 quagmire. The only part of
Rule 59 that appears relevant to the timeliness of a notice of
appeal is 59(e), which provides that “[a]ny motion to alter or
amend a judgment shall be filed no later than 10 days after the
entry of the judgment.” If we then look back to Rule
4(a)(4)(A) of the Federal Rules of Appellate Procedure, we
see that a Rule 59 motion to alter or amend the judgment is
one of the five enumerated motions that automatically resets

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the time to file a notice of appeal “from the entry of the order
disposing of the . . . motion.”
We therefore conclude that when a timely motion for
attorney fees is filed under Rule 54, and the district court
exercises its discretion under Rule 4(a)(4)(A) to extend the
time for filing a notice of appeal, the motion for attorney fees
is given the same effect as a Rule 59 motion to amend or alter
the judgment, which, pursuant to Rule 4(a)(4)(A),
automatically resets the time to file a notice of appeal until
the newly characterized Rule 59 motion, formerly a Rule 54
motion for attorney fees, is disposed of. See Mendes Junior
Int’l Co. v. Banco do Brasil, 215 F.3d 306, 312 (2d Cir. 2000)
(“Rule 58 expressly describes some of the temporal
limitations on the district court’s authority to order that a
timely Rule 54 fee motion have the same effect as a timely
motion under, for example, Rule 59 (which we will
sometimes refer to as a ‘Rule 58/54/59 order’).”). Rule 58
imposes no time limit on when the district court must rule on
the Rule 54 motion, except that it must act before “a notice of
appeal has been filed and has become effective . . . .” This is
the nub of the problem, because here the district court acted
on the Wikols’ Rule 54 motion after they had filed their
notice of appeal.
On March 22, 2002, the Wikols moved for attorney fees
and costs, which the district court denied on May 15, 2002.
The Wikols then attempted to take advantage of the tolling
provision of Rule 4(a)(4) in a May 24, 2002 motion to extend
the time for filing a notice of appeal. Their motion provided
in pertinent part as follows:
4. Plaintiffs hereby request that pursuant to Fed. R. Civ.
P. 58, the Court order that the parties’ motions for costs
and attorneys’ fees have the same effect under Rule
4(a)(4) of the Federal Rules of Appellate Procedure as a
timely motion under Rule 59.
8 Wikol v. Birmingham
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Nos. 02-1798/2047
5. In the alternative, Plaintiffs request that pursuant to
Fed. R. Civ. P. 58 and 59(e), the Court amend its
May 15, 2002 Order to include a provision stating that
the parties’ March 22, 2002 motions to assess fees and
costs shall be given the same effect under Rule 4(a)(4) of
the Federal Rules of [Appellate] Procedure as a timely
motion under Rule 59.
While this motion was pending in the district court, the
Wikols filed their notice of appeal on June 14, 2002. On
July 11, 2002, the district court granted the Wikols’ motion
for an extension of time in which to file a notice of appeal,
ruling in pertinent part that
the court grants the plaintiff’s request and pursuant to
Fed. R. Civ. P.[] 58, the March 22nd motion for costs
and attorney fees shall have the same effect under Rule
4(a)(4) of the Federal Rules of Appellate Procedure as a
timely motion under Rule 59. Therefore, the time for
filing a notice of appeal shall run from the date of the
entry of the Court’s order on the motion for attorney fees,
May 15, 2002.
Birmingham argues that the district court’s July 11, 2002
grant of an extension of time to file the notice of appeal was
ineffective because it was entered after the Wikols filed their
June 14, 2002 notice, contrary to the language contained in
Rule 58 of the Federal Rules of Civil Procedure that limits the
district court’s power to act to the time “before a notice of
appeal has been filed and has become effective . . . .”
(Emphasis added.) It contends that when the Wikols filed
their notice of appeal on June 14, 2002, the notice became
effective immediately; therefore, “[b]y the express terms of
Rule 58, the District Court had no authority, on July 11, 2002,
to enter its Order Extending the Time for Filing the Notice of
Appeal.”

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In response, the Wikols argue that although they had filed
their notice of appeal before the district court entered its Rule
58/54/59 order, “it is indisputable that the notice of appeal as
to the underlying judgment had not yet become effective.”
They reason that because the notice of appeal was filed
outside of Rule 4(a)(1)’s prescribed time period, it could only
become effective upon some action of the district court
triggering one of the exceptions to the 30-day limit. The
Wikols conclude that their notice of appeal “became effective
upon the district court’s entry of its July 11, 2002
Memorandum and Order.” For the reasons that follow, we
respectfully disagree.
The key issue is whether the notice of appeal became
effective prior to the time the district court issued its
July 11, 2002 order. We look to Rule 4(a)(4)(B)(i) of the
Federal Rules of Appellate Procedure for guidance as to the
meaning of the word “effective.” This portion of Rule 4
provides as follows:
If a party files a notice of appeal after the court
announces or enters a judgment—but before it disposes
of any motion listed in Rule 4(a)(4)(A)—the notice
becomes effective to appeal a judgment or order, in
whole or in part, when the order disposing of the last
such remaining motion is entered.
Rule 4(a)(4)(B)(i) does not apply here because the Wikols’
notice of appeal was filed after the entry of the order
disposing of their Rule 54 motion, not before. The rule
suggests, however, that the concept of “effectiveness” is
limited to delaying the transfer of jurisdiction to the appellate
court from an otherwise timely filed notice of appeal until the
relevant post-judgment motion is decided. Supporting this
interpretation are the advisory notes to Rule 4, which explain
that
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Nos. 02-1798/2047
[a] notice filed before the filing of one of the specified
motions or after the filing of a motion but before
disposition of the motion is, in effect, suspended until the
motion is disposed of, whereupon, the previously filed
notice effectively places jurisdiction in the court of
appeals. . . . [A] notice of appeal will ripen into an
effective appeal upon disposition of a posttrial motion
. . . .
Fed. R. App. P. 4(a)(4) advisory committee’s notes.
Based upon this understanding of the word “effective,” we
hold that the Wikols’ notice of appeal was effective on the
day that it was filed, given that the judgment had been entered
and that no motions that automatically toll the time to file a
notice of appeal were pending. We therefore agree with
Birmingham that the district court’s July 11, 2002 order did
not comply with the time requirements of Rule 58.
As a final comment on this issue, we cannot help but
express dismay over the complexity of the rules regarding the
timeliness of an appeal under the present circumstances.
There should be no need to have to parse the language of four
different rules of procedure in order to find an answer to
whether an appeal is timely filed. See generally, Kenneth J.
Servay, The 1993 Amendments to Rules 3 and 4 of the
Federal Rules of Appellate Procedure—A Bridge Over
Troubled Water—Or Just Another Trap?, 157 F.R.D. 587,
605 (1994) (noting that the amended Rule 4 “concerning the
effect of post-judgment motions for attorney’s fees” on the
timeliness of a notice of appeal creates a “jurisdictional
trap.”). The basic problem is that five of the six post-
judgment motions enumerated in Rule 4(a)(4)(A)
automatically extend the time to file an appeal, but the
remaining one (a motion for attorney fees pursuant to Rule
54) does not. Perhaps this is a topic that should be considered
by the Advisory Committee to the Federal Rules of Appellate
Procedure.

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In any event, we have no choice but to dismiss the Wikols’
appeal as untimely with respect to all but their claim for
attorney fees and costs. “[E]ven where the attorney’s fee
motion is filed before the notice of appeal, under the wording
of [Rule 58], that motion would not extend the appeal time
unless the district court also extended the appeal time before
the notice of appeal was filed.” Servay at 606. This leaves us
with the remaining issue regarding the Wikols’ request for
attorney fees and costs, as to which the appeal was
indisputably timely. We now turn our attention to this issue.
B. The district court’s denial of attorney fees and costs
to the Wikols
Following the district court’s entry of judgment, the Wikols
filed a motion for the recovery of attorney fees and costs
pursuant to 20 U.S.C. § 1415. The district court denied the
Wikols’ motion, reasoning that although they were
technically the prevailing parties, they did not prevail on the
bulk of their case and they were therefore not entitled to
attorney fees or costs. On appeal, the Wikols argue that the
district court erred because they were undeniably the
prevailing party and because there were no “special
circumstances” justifying a denial of fees.
The IDEA provides that “[i]n any action or proceeding
brought under this section, the court, in its discretion, may
award reasonable attorneys’ fees as part of the costs to the
parents of a child with a disability who is the prevailing
party.” 20 U.S.C. 1415(i)(3)(B). To be considered a
“prevailing party” for the purpose of attorney fees, a plaintiff
must “succeed on any significant issue in litigation which
achieves some of the benefit the part[y] sought in bringing
suit.” Berger v. Medina City Sch. Dist., 348 F.3d 513, 526
(6th Cir. 2003) (quoting Hensley v. Eckerhart, 461 U.S. 424,
433 (1983)). The district court found that the Wikols were a
prevailing party because they had obtained a favorable
judgment regarding reimbursement for Anika’s schooling
12 Wikol v. Birmingham
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Nos. 02-1798/2047
during the 1998-99 academic year. Birmingham does not
contest the Wikols’ prevailing-party status.
We review a district court’s decision of whether to award
attorney fees under the “abuse of discretion” standard.
Phelan v. Bell, 8 F.3d 369, 373 (6th Cir. 1993). A district
court abuses its discretion when it relies upon clearly
erroneous factual findings, applies the law improperly, or uses
an erroneous legal standard. Id.
The IDEA’s fee-shifting provision is to be interpreted
consistent with 42 U.S.C. § 1988, the attorney-fees provision
for civil rights actions. Id. Sixth Circuit case law requires
that a district court award attorney fees to a prevailing party
where no special circumstances militate against such an
award. Berger v. City of Mayfield Heights, 265 F.3d 399, 406
(6th Cir. 2001) (“[W]e have previously observed that
although the Supreme Court has held [that] . . . it is within the
district court’s discretion to award attorney’s fees under
section 1988, in the absence of special circumstances a
district court not merely may but must award fees to the
prevailing plaintiff.”) (quotation marks and citation omitted).
The Ninth Circuit has adopted a two-prong test to
determine whether special circumstances exist, presumably in
an effort to define “special circumstances” more precisely.
Under this test, a court must consider “(1) whether awarding
fees would further the congressional purpose in enacting [the
IDEA], and (2) the balance of the equities.” Barlow-Gresham
Union High School v. Mitchell, 940 F.2d 1280, 1285 (9th Cir.
1991). Although the use of such a test gives the appearance
of a systematic approach to defining “special circumstances,”
we question whether the Ninth Circuit’s factors, due to their
vagueness, render the test any more useful than the customary
case-by-case analysis.
The Fourth Circuit has rejected the Mitchell test, reasoning
that it “contains no real standards and provides no legitimate

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Nos. 02-1798/2047 Wikol v. Birmingham
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reason for departing from the usual rule of awarding
reasonable fees to prevailing plaintiffs under fee-shifting
statutes.” Doe v. Bd. of Educ. of Baltimore County, 165 F.3d
260, 264 n.2 (4th Cir. 1998) (holding that an attorney-parent’s
representation of his own daughter in an IDEA proceeding
constituted special circumstances that justified the denial of
an award of attorney fees). But see Borengasser v. Arkansas
State Bd. of Educ., 996 F.2d 196, 199 (8th Cir. 1993) (holding
that the district court abused its discretion in not awarding
attorney fees to the parents of a disabled child in an IDEA
action where the school district had argued a lack of effort to
resolve the dispute on the part of the parents’ attorney). We
agree with the Fourth Circuit’s approach that attorney-fees
awards should be analyzed on a case-by-case basis, without
attempting to apply any predetermined formula.
Birmingham argues that the Wikols’ allegedly “false and
misleading” billings to Birmingham constitute special
circumstances that justify denying their request for attorney
fees. But this court has rejected the argument that a plaintiff’s
bad acts are special circumstances warranting the denial of
attorney fees. Price v. Pelka, 690 F.2d 98, 101 (6th Cir.
1982) (holding that the plaintiff’s perjury was not a special
circumstance that warranted a denial of attorney fees in a
housing discrimination case). Given this precedent, the
record does not support a finding of special circumstances
warranting the denial of attorney fees to the Wikols, even if
we assume that some billings were false or misleading. We
therefore remand the issue of attorney fees and costs to the
district court.
On remand, the district court should take into consideration
the extent to which the Wikols succeeded on their claims. See
Hensley v. Eckerhart, 461 U.S. 424, 440 (1983) (“[W]here the
plaintiff achieved only limited success, the district court
should award only that amount of fees that is reasonable in
relation to the results obtained.”) The Wikols may well
receive reimbursement for only a fraction of their total legal
14 Wikol v. Birmingham
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Nos. 02-1798/2047
fees under the Eckerhart standard but, under this court’s
precedents, their “limited success” should not have acted as
a total bar to recovery.
Birmingham also argues that the Wikols are barred from
attorney fees under 20 U.S.C. § 1415(i)(3)(D), which
provides that a plaintiff will not be awarded attorney fees
where he or she rejects a written settlement offer and the court
finds that the relief obtained by the plaintiff is not more
favorable than the offer of settlement. The settlement-offer
exception to an award of attorney fees might indeed bar the
Wikols from recovery, but the district court did not make the
requisite finding that the relief obtained by the Wikols was
less favorable than whatever offer Birmingham may have
made. On remand, the district court should therefore consider
20 U.S.C. § 1415(i)(3)(D)’s potential applicability to this
case.
III. CONCLUSION
For all of the reasons set forth above, we conclude that the
Wikols’ notice of appeal was untimely as to the bulk of their
claims. We therefore have jurisdiction only over the district
court’s denial of attorney fees and costs, which decision we
vacate and remand with instructions to reconsider.

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