The Texas Cheerleader Case, and the $45,000 Attorney Fees Award

I blogged a few days ago about the Doe v. Silsbee Indep. School Dist., in which a cheerleader was removed from the cheerleading squad because she had refused to cheer for a player who (she alleged) had raped her. The cheerleader and her parents sued, claiming (among other things) that the school district’s action violated her First Amendment right not to speak. The District Court and the Fifth Circuit Court of Appeals held for the school district, and the Supreme Court refused to hear the case. I concluded that the Fifth Circuit decision was correct.

Various readers have asked what I think about the District Court’s order that the plaintiffs pay the defendants’ attorney fees, on the grounds that the lawsuit was frivolous. (That’s the standard for requiring plaintiffs to pay the defendants’ attorney fees in such cases against the government.)

I think the District Court was mistaken; though the plaintiffs’ claim was rightly rejected, it wasn’t frivolous: There was a plausible argument that the First Amendment should protect the student’s rights in such a situation, though I think it was rightly labeled a losing argument. And the District Court’s analysis struck me as inadequate:

When determining whether a claim is frivolous, unreasonable, or without foundation, a district court should consider (1) whether the plaintiff established a prima facie case, (2) whether the defendant offered to settle, and (3) whether the court held a full trial. Myers v. City of West Monroe, 211 F. 3d 289, 292 (5th Cir. 2000). The court must ask whether “the case is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful.” Stover, 549 F. 3d at 997-98 (quoting Jones v. Tex. Tech Univ., 656 F. 2d 1137, 1145 (5th Cir. 1981)). As to the first factor, the Court concludes that the Plaintiff failed to establish a prima facie federal claim. In its order dismissing Plaintiff’s suit with prejudice, the Court found that Plaintiffs had failed to allege any facts to support a finding their daughter was denied her rights under the Constitution. As to the second factor, Defendants made no offers to settle. Finally, there was not a full trial as the Court granted Defendants’ motion to dismiss for failure to state a claim. Having considered these factors, the Court finds that Plaintiffs’ Section 1983 action was without foundation. Therefore, as prevailing defendants in an unreasonable Section 1983 action, Defendants Lokey and McInnis are entitled to recover reasonable attorney’s fees.

The three numbered factors are just factors to be considered in the ultimate inquiry, which is whether “the case is so lacking in arguable merit as to be groundless or without foundation rather than whether the claim was ultimately successful.” And I don’t see why the court concluded that this standard was satisfied. (For similar language related to the other part of the attorney fees award, see here.)

But for some reason, the plaintiffs’ lawyer seems not to have opposed the motion for attorney fees before the District Court. (“Plaintiffs have not filed a response to the motion.“) The plaintiffs’ lawyer did argue, after the motion for attorney fees was granted, that “Defendants are premature in their motion for fees and costs since they are only entitled to fees and costs as prevailing parties,” and that they wouldn’t be prevailing parties until the appeal was decided; but I don’t see how that justifies the failure to oppose the motion for attorney fees in the first instance, before it was decided.

Moreover, while the Notice of Appeal noted that the plaintiffs were appealing from a grant of attorney fees, as well as from the dismissal of the case, the plaintiffs’ briefs on appeal never said anything about the fees. The District Court was thus handicapped in its decisionmaking by the lack of argument from one side; and the plaintiffs’ claims about the fees were waived before the Court of Appeals because they weren’t discussed in the briefs. So while I think the District Court erred on the attorney fees question, the error may have been partly caused by plaintiffs’ lawyer; and the error might have been corrected on appeal.

Thanks to commenter Tom for pointing all this out, though I’ve checked the documents for myself.

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