Federal appellate court reverses award of attorney’s fees to defendants because one of plaintiff’s claims had merit

Doe v. Silsbee Indep. Sch. Dist., No. 10-40319 (5th Cir. Sept. 12, 2011)

Abstract: In a unpublished, nonprecedential per curiam (unsigned) decision, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has ruled that a district court’s awarding of attorney’s fees to the defendants on the grounds that all of the plaintiff’s claims were frivolous was erroneous. The panel found that the plaintiff had made a colorable, although ultimately unsuccessful, First Amendment claim. The panel, therefore, remanded the case back to the lower court to recalculate the award of attorney’s fees.

Facts/Issues: H.S. accused two students from her high school of sexually assaulting her at a party. Those students were subsequently arrested and their cases brought before a grand jury for indictment, but the grand jury did not return an indictment.  H.S. and her parents claim that the district attorney improperly advised them ahead of time that the grand jury, because of racial divisions, would not return an indictment, and “defamed” H.S. in a press conference.

As  a member of the cheerleading squad, H.S. had a contractual duty to cheer for the boys basketball team, which included one of the students she had accused of sexual assault. During one game, H.S. refused to cheer for that student individually. She was told by Silsbee Independent School District’s (SISD) superintendent and the high school’s principal that she must cheer when the rest of the squad did or leave the game. H.S. then left. The cheerleading coach removed her from the squad. She was permitted to rejoin the squad the following year.

H.S. and her parents filed suit in federal district court against the district attorney, SISD and various school officials.  Their claims against the school officials were three-fold: (1) violation of  H.S.’s Fourteenth Amendment due process rights based on a protected property interest in her position on the cheerleading squad;  (2) violation of H.S.’s Fourteenth Amendment equal protection rights because the school officials had treated H.S. differently “because she is female;” and (3) violation of H.S.’s free speech rights by removing her from the squad for refusing to cheer because her decision not to cheer constituted protected speech — a symbolic expression of her disapproval of the student’s behavior. The court dismissed the claims against the district attorney and the school defendants.

While the suit was on appeal to the Fifth Circuit, the defendants filed a motion for attorney’s fees under 42 U.S.C. Sec. 1988, arguing that H.S.’s suit was frivolous.  The district court granted the motion and awarded $38, 903.64 in attorney’s fees.

A Fifth Circuit panel eventually affirmed the lower court on the merits of the H.S.’s claims, holding the school defendants  did not deprive her of any due process property interest; nor did they violate the student’s equal protection or free speech rights by removing her from the cheerleading squad.

The panel concluded that because students possess no constitutional right to participate in extracurricular activities, the student was not deprived of a protected property interest in violation of her due process rights under the Fourteenth Amendment. It also rejected her equal protection claim because there was no showing that the school officials were motivated by her gender. Lastly, the panel held that her removal from the cheerleading squad for refusing to cheer did not implicate her free speech rights because as a cheerleader her speech was school speech, not private student speech.

H.S. also appealed the attorney’s fee award.

Ruling/Rationale: This Fifth Circuit panel reversed the district court regarding the award of attorney’s fees and remanded the case to it to recalculate those fees based on the panel’s finding that H.S. had brought a valid, if unsuccessful,  First Amendment claim. It pointed out that in order to determine whether a claim is frivolous or groundless, a court looks at three facts: (1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the court dismissed the case or held a full trial. The panel cautioned that these factors are not hard and fast rules, but rather provide guidance. It also acknowledged that a finding of any one of the factors alone would not support a conclusion that the claim was frivolous.

The panel rejected H.S.’s argument that the district court had awarded the defendants attorney’s fees purely because she had failed to establish a prima facie claim. It concluded that the lower court’s orders demonstrated that it had considered all three of the factors and then made factual findings that the claims as a whole were unreasonaable.

However, the panel agreed with H.S. that the district court had erred in ruling that all the claims were frivolous. Specifically, it found that “[u]nlike H.S.’s equal protection and due process claims, she did not fail to allege facts underlying the essential elements of her First Amendment claim.”

While district court concluded that H.S.’s conduct was not protected speech because the likelihood that the audience would understand H.S.’s message “seem[ed] low,” the Fifth Circuit panel pointed out that in ruling on the merits of the claims, it had assumed, “arguendo, that the audience would have understood the message but held that H.S.’s speech was not protected because (1) she was participating in school-sponsored speech as a cheerleader or, alternatively, (2) her silent protest would result in ‘substantial interference with the work of the school.’”

Having concluded the First Amendment claim had “some arguable merit,” though it was ultimately unsuccessful, the panel declared: “Because the district court clearly erred in finding that H.S.’s First Amendment claim was frivolous, it abused its discretion in awarding the Defendants attorney’s fees related to that claim.” It then ordered the district court on remand to “recalculate the attorney’s fee award to reflect only reasonable attorney’s fees incurred because of, but only because of, [the remaining] frivolous claim[s].”

Doe v. Silsbee Indep. Sch. Dist., No. 10-40319 (5th Cir. Sept. 12, 2011)

[Editor’s Note: In January 2011, Legal Clips summarized an article in the San Francisco Chronicle reporting that H.S’s attorney planned to petition the U.S. Supreme Court to reinstate her free-speech suit against Silsbee school district. The editor’s note contains a link to the Legal Clips summary of the Fifth Circuit panel’s opinion on the merits.

The petition for certiorari, Docket No. 10-1056, was filed on February 22, 2011 and the U.S. Supreme Court denied review on May 2, 2011.]





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