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VIRGINIA DEPT. OF HEALTH AND HUMAN RESOURCES Ginsburg, J., dissenting
against persons with disabilities in violation of the Fair Housing Amendments Act of 1988 (FHAA), 42 U. S. C. § 3601 et seq., and the Americans with Disabilities Act of 1990 (ADA), 42 U. S. C. § 12101 et seq. Plaintiffs sought an immediate order stopping defendants from closing Buckhannon's facilities, injunctive relief permanently barring enforcement of the self-preservation requirement, damages, and attorney's fees.
On November 1, 1996, at a hearing on plaintiffs' request for a temporary restraining order, defendants agreed to the entry of an interim order allowing Buckhannon to remain open without changing the individual plaintiffs' housing and care. Discovery followed. On January 2, 1998, facing the state defendants' sovereign immunity pleas, plaintiffs stipulated to dismissal of their demands for damages. In February 1998, in response to defendants' motion to dispose of the remainder of the case summarily, the District Court determined that plaintiffs had presented triable claims under the FHAA and ADA.
Less than a month after the District Court found that plaintiffs were entitled to a trial, the West Virginia Legislature repealed the self-preservation rule. Plaintiffs still allege, and seek to prove, that their suit triggered the statutory repeal. After the rule's demise, defendants moved to dismiss the case as moot, and plaintiffs sought attorney's fees as "prevailing parties" under the FHAA, 42 U. S. C. § 3613(c)(2), and the ADA, 42 U. S. C. § 12205.1
1 The FHAA provides: "In a civil action . . . , the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee and costs." 42 U. S. C. § 3613(c)(2). Similarly, the ADA provides: "In any action . . . , the court . . . , in its discretion, may allow the prevailing party . . . a reasonable attorney's fee, including litigation expenses, and costs . . . ." 42 U. S. C. § 12205. These ADA and FHAA provisions are modeled on other "prevailing party" statutes, notably the Civil Rights Attorney's Fees Awards Act of 1976, 42 U. S. C. § 1988 (1994 ed. and Supp. V). See H. R. Rep. No. 101-485, pt. 2, p. 140 (1991) (ADA); H. R. Rep. No. 100-711, pp. 16-17, n. 20 (1988) (FHAA). Section 1988 was "patterned upon the
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