                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0378n.06

                                        Case No. 13-2231                      FILED
                                                                           May 20, 2014
                          UNITED STATES COURT OF APPEALS               DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


SANDRA GLOWACKI, Parent and Next                   )
Friend of DKG, a minor, and DCG, a minor;          )
DCG, a minor child by Sandra Glowacki,             )
Parent and Next Friend,                            )
                                                   )
       Plaintiffs,                                 )
                                                   )
and                                                )
                                                   )
DANIEL GLOWACKI,                                   )
                                                   )
       Plaintiff-Appellant,                        )       ON APPEAL FROM THE UNITED
                                                   )       STATES DISTRICT COURT FOR
v.                                                 )       THE EASTERN DISTRICT OF
                                                   )       MICHIGAN
HOWELL PUBLIC SCHOOL DISTRICT,                     )
                                                   )
       Defendant,                                  )
                                                   )
and                                                )
                                                   )
JOHNSON MCDOWELL, individually and in              )
his official capacity as a teacher in the Howell   )
Public School District,                            )
                                                   )
       Defendant-Appellee.                         )
Case No. 13-2231, Glowacki, et al. v. Howell Pub. Sch. Dist., et al.


       BEFORE: MERRITT, COOK, and STRANCH, Circuit Judges.

       COOK, Circuit Judge. Daniel Glowacki appeals the district court’s denial of his request

for attorney’s fees in this civil-rights suit against his former school district and one of its

teachers. Because the court exercised sound discretion in concluding that the judgment in

Glowacki’s favor represents technical relief warranting no award of attorney’s fees, we affirm.

                                                 I.


       Daniel contributed to a classroom discussion about bullying at Howell High School by

proclaiming that his religion forbids him to “accept gays.” The teacher leading the discussion,

Johnson McDowell, “became emotional” and “threw Daniel out of class and wrote up a referral

for unacceptable behavior.” The school district disagreed with McDowell’s actions and removed

any record of the incident from Daniel’s disciplinary file.            School authorities formally

reprimanded McDowell, writing that he “displayed a serious lack of professionalism when [he]

slammed [the] door, raised [his] voice and attempted to discipline students for their beliefs.” The

reprimand stated that his “actions were in violation of District policies and guidelines.”


       This incident prompted Daniel’s mother to file suit under 42 U.S.C. § 1983 on behalf of

him and her other minor son, D.C.G., against the school district and McDowell. The Glowackis

alleged that the school district violated the children’s rights to free expression (First

Amendment) and equal protection (Fourteenth Amendment) by (1) propounding unconstitutional

anti-bullying and religious-expression policies and (2) inadequately training and supervising

teachers regarding school policies. According to the complaint, McDowell violated Daniel’s

rights by removing him from class for his remark. The suit sought, among other things, to enjoin

the school district from enforcing certain parts of its policies, a declaratory judgment that

McDowell violated Daniel’s rights, and nominal damages.
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Case No. 13-2231, Glowacki, et al. v. Howell Pub. Sch. Dist., et al.


       The district court, classifying the case against the school district as “legally and factually

frivolous,” granted summary judgment to the school on all claims against it. As determined by

the court, D.C.G. lacked standing to sue because he suffered no injury in fact. Moreover, the

school’s policies treated students equally and permitted teachers to stifle student expression only

in the interest of preventing substantial disruptions, and nothing showed that the school

inadequately trained teachers.


       As for McDowell, however, the court granted summary judgment in favor of Daniel,

denying McDowell qualified immunity and concluding that removing Daniel from class violated

his First Amendment right to free expression. The court entered a declaratory judgment and

ordered McDowell to pay $1.00 in nominal damages.


       Declaratory judgment and $1.00 in hand, Daniel sought $116,465.88 in attorney’s fees

and $7,661.73 in costs under 42 U.S.C. § 1988, which grants a district court discretion to award

the “prevailing party” in a § 1983 action “reasonable” attorney’s fees as part of the costs.

42 U.S.C. § 1988(b). The court, applying Farrar v. Hobby, 506 U.S. 103, 113 (1992), concluded

that Daniel’s nominal-damages award made him a “prevailing party” but deemed the reasonable

fee to be zero. Daniel appeals.


                                                II.


       We review a district court’s denial of attorney’s fees to a prevailing plaintiff for an abuse

of discretion. Wikol ex rel. Wikol v. Birmingham Pub. Sch. Bd. of Educ., 360 F.3d 604, 611 (6th

Cir. 2004). “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. “An abuse of

discretion may also be found when the reviewing court is firmly convinced that a mistake has

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Case No. 13-2231, Glowacki, et al. v. Howell Pub. Sch. Dist., et al.


been made.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (internal

quotation marks omitted).


       Farrar held that, though an award of nominal damages grants a plaintiff prevailing-party

status because it “materially alters the legal relationship between the parties,” the “technical”

nature of the award “does bear on the propriety of fees awarded under § 1988.” 506 U.S. at 114.

“In some circumstances, even a plaintiff who formally ‘prevails’ . . . should receive no attorney’s

fees at all.” Id. at 115. “[T]he most critical factor in determining the reasonableness of a fee

award is the degree of success obtained.” Id. at 114 (internal quotation marks omitted); see

Waldo v. Consumers Energy Co., 726 F.3d 802, 822 (6th Cir. 2013). The majority opinion in

Farrar provides little guidance on what makes a judgment “technical” other than to suggest that

courts should compare the amount of damages sought to the amount awarded. Farrar, 506 U.S.

at 114. Justice O’Connor’s concurrence, however, articulates two additional factors.1 The first

considers “the significance of the legal issue on which the plaintiff claims to have prevailed.”

Farrar, 506 U.S. at 121 (O’Connor, J., concurring). The second asks whether the litigation

“accomplished some public goal other than occupying the time and energy of counsel, court, and

client.” Id. at 121−22 (O’Connor, J., concurring). Reviewing these factors, we conclude that the

district court exercised sound discretion in labeling Daniel’s judgment technical.




       1
         Justice O’Connor joined the majority opinion without reservation but wrote separately
“only to explain more fully why, in [her] view, it [was] appropriate to deny fees in [that] case.”
Farrar, 506 U.S. at 116 (O’Connor, J., concurring). Though some circuits have held that a
district court should consider Justice O’Connor’s two additional factors, see Jama v. Esmor
Corr. Servs., Inc., 577 F.3d 169, 176 (3d Cir. 2009) (joining the Seventh, Eighth, Ninth, and
Tenth Circuits in “adopt[ing] Justice O’Connor’s factors for resolving the degree of success
inquiry”), we have never so held. We have no occasion to do so here given that all
considerations point to awarding no attorney’s fees.
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Case No. 13-2231, Glowacki, et al. v. Howell Pub. Sch. Dist., et al.


       Regarding the Farrar majority’s inquiry—the degree of success obtained—the district

court concluded that the judgment in Daniel’s favor “accomplished little” because it “did not

order McDowell to alter his future conduct nor would any such order have benefitted [Daniel],

who graduated by the time the court rendered its decision.” And, the court continued, the

judgment “did nothing” to achieve “the primary goal of the underlying litigation”—“to alter,

amend, or otherwise change the school district’s policies.”


       Daniel attacks this assessment, arguing that McDowell “would not have appreciated the

wrongfulness of his conduct, or modified his behavior as a result of that realization, without the

court’s declaratory judgment.” But a declaratory judgment typically must “affect[] the behavior

of the defendant toward the plaintiff” to even render the plaintiff a prevailing party. Rhodes v.

Stewart, 488 U.S. 1, 4 (1988) (per curiam) (emphasis added); see Binta B. ex rel. S.A. v. Gordon,

710 F.3d 608, 620 (6th Cir. 2013). The declaratory judgment in Rhodes—recognizing that

prison officials violated prisoners’ rights—could not sustain an award of attorney’s fees because

“one of the plaintiffs had died and the other was no longer in custody,” 488 U.S. at 2; in other

words, a “modification of prison policies . . . could not in any way have benefited either

plaintiff,” id. at 4. See also Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.

782, 792 (1989) (“[T]he plaintiff must be able to point to a resolution of the dispute which

changes the legal relationship between itself and the defendant.”). Here, likewise, Daniel could

not benefit from any change to McDowell’s teaching style; he therefore gained nothing from the

declaratory judgment other than “the moral satisfaction that results from a[] favorable statement

of law.” Farrar, 506 U.S. at 112 (alteration omitted).


       Moreover, Daniel leaves undisputed the district court’s determination that he and his

brother focused primarily on enjoining enforcement of the school’s policies, not on obtaining
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Case No. 13-2231, Glowacki, et al. v. Howell Pub. Sch. Dist., et al.


relief with respect to McDowell. The Glowackis’ emphasis on the school district—a losing

proposition—further supports the notion that Daniel obtained minimal success. See Aponte v.

City of Chicago, 728 F.3d 724, 728, 731 (7th Cir. 2013) (finding an award of fees inappropriate

when “the plaintiff was aiming high and fell short, and in the process inflicted heavy costs on his

opponent and wasted the time of the court”) (internal citations and alterations omitted); Jama v.

Esmor Corr. Servs., Inc., 577 F.3d 169, 176 (3d Cir. 2009) (noting that courts “should consider

. . . the difference between the relief sought and achieved”).


       Still, Daniel argues that the nominal damages suffice for attorney’s fees because he never

sought compensatory damages.        See, e.g., Farrar, 506 U.S. at 115 (rejecting an award of

attorney’s fees to a plaintiff who requested $17 million in compensatory damages but won only

nominal damages)); Pouillon v. Little, 326 F.3d 713, 719 (6th Cir. 2003) (Boggs, J., concurring)

(noting that the court’s denial of attorney’s fees to a plaintiff who won only nominal damages

was “explained by the fact that [the plaintiff] only sought money damages”). But nothing in

Farrar confines its technical-judgment analysis to unsuccessful claims for monetary damages.

See 506 U.S. at 117 (O’Connor, J., concurring) (“When the plaintiff’s success is purely technical

or de minimis, no fees can be awarded.”); Pouillon, 326 F.3d at 717 (noting that “technical

vindication of one’s constitutional rights alone is not enough to justify an award of attorney’s

fees pursuant to § 1988”); Bridges v. Mallett-Godwin, 110 F.3d 63, 1997 WL 137383, at *2 (6th

Cir. Mar. 25, 1997) (per curiam) (rejecting plaintiff’s attempt to distinguish Farrar by the fact

that his “primary objective[] . . . [was not] compensation and damages awards”).           As the

Supreme Court reminds, “Congress intended that statutory fee awards be adequate to attract

competent counsel, but not produce windfalls to attorneys.” City of Riverside v. Rivera, 477 U.S.

561, 580 (1986) (citation and internal quotation marks and alterations omitted); see also Binta B.

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Case No. 13-2231, Glowacki, et al. v. Howell Pub. Sch. Dist., et al.


ex rel. S.A., 710 F.3d at 612 (“Congress and the Supreme Court have made it abundantly clear

that the aim of . . . § 1988 is not for the purpose of aiding lawyers.” (internal quotation marks

omitted)).


        Justice O’Connor’s two additional factors support the district court’s denial of attorney’s

fees here. Regarding “the significance of the legal issue on which the plaintiff claims to have

prevailed,” Farrar, 506 U.S. at 121 (O’Connor, J., concurring), the district court reasonably

concluded that this factor weighed against Daniel because, though he succeeded on the First

Amendment liability issue against McDowell, his primary claims against the school district

failed. See Aponte, 728 F.3d at 731 (noting that “a victory on just one of eight legal claims is not

significant”); Phelps v. Hamilton, 120 F.3d 1126, 1132 (10th Cir. 1997) (“The second factor in

the Farrar calculus goes beyond the actual relief rewarded to examine the extent to which the

plaintiffs succeeded on their theory of liability.”).


        The public-interest factor similarly weighs against rewarding fees. Like the district court,

we are “hard-pressed to uncover the public purpose vindicated by the instant action, particularly

since the only claim on which [Daniel] prevailed dealt with an isolated classroom incident”

already addressed by the school district’s reprimand of McDowell. Daniel emphasizes the

vindication of his First Amendment rights with respect to McDowell, yet “since all [§] 1983

claims seek to redress the deprivation of . . . rights, . . . this factor is not satisfied merely because

the plaintiff establishes . . . that his constitutional rights have been infringed.” Maul v. Constan,

23 F.3d 143, 146 (7th Cir. 1994) (internal quotation marks omitted).


        Daniel gleans a public purpose in “caus[ing] educators” to “consider and acknowledge”

that students maintain their First Amendment rights in school settings. But, because the Supreme


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Case No. 13-2231, Glowacki, et al. v. Howell Pub. Sch. Dist., et al.


Court long ago established this principle, see Tinker v. Des Moines Ind. Comm. Sch. Dist.,

393 U.S. 503, 506 (1969) (describing the rule that “[n]either students [n]or teachers shed their

constitutional rights to freedom of speech or expression at the schoolhouse gate” as “the

unmistakable holding of [the] Court for almost 50 years”), Daniel’s case simply applied the well-

established principle in a context where it was already being enforced. After all, the school

recognized the inappropriateness of McDowell’s conduct from the very beginning. And though

Daniel claims that his case gained “national attention,”2 he cites no authority suggesting that

public attention alone constitutes a public purpose.


       We decline to disturb the district court’s determination that Daniel obtained only

technical relief warranting no attorney’s fees.         See Imwalle v. Reliance Med. Prods., Inc.,

515F.3d 531, 551 (6th Cir. 2008) (noting that the “trial court’s exercise of discretion is entitled to

substantial deference” because of the “‘court’s superior understanding of the litigation and the

desirability of avoiding frequent appellate review of what essentially are factual matters’”

(quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).


                                                 III.


       We AFFIRM.




       2
         Daniel cites only one blog post for this proposition. See Mark Walsh, Judge Backs
Student Who Said he Couldn’t “Accept Gays,” Education Week (June 20, 2013, 6:19 PM),
http://blogs.edweek.org/edweek/school_law/2013/ 06/judge_backs_student_who_said_h.html.
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