          Case: 16-15446   Date Filed: 06/14/2017   Page: 1 of 21


                                                          [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 16-15446
                      ________________________

               D.C. Docket No. 6:15-cv-00254-GAP-TBS



SOUTHERN ATLANTIC COMPANIES, LLC,
a Florida limited liability company,
EDWARD HUTCHINS,
an individual,
RAYMOND MCINTOSH,
an individual,

                                             Plaintiffs - Appellants,

SOUTHERN ATLANTIC ELECTRIC COMPANY, INC.,
a Florida corporation,

                                             Plaintiff,

versus

SCHOOL BOARD OF ORANGE COUNTY, FLORIDA,

                                             Defendant - Appellee.
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                              ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________

                                      (June 14, 2017)

Before JORDAN and JULIE CARNES, Circuit Judges, and VINSON, * District
Judge.

PER CURIAM:

       Southern Atlantic Companies, LLC, appeals the summary judgment entered

by the district court on its First Amendment retaliation claim. Southern Atlantic

argues that the district court erroneously concluded that it failed to establish

municipal liability under 42 U.S.C. § 1983.             Edward Hutchins and Raymond

McIntosh, officers of Southern Atlantic, appeal the award of attorneys’ fees

entered against them under 42 U.S.C. § 1988 on their First Amendment retaliation

claims. After a careful review of the record, and with the benefit of oral argument,

we affirm.

                                              I

       Because we write for the parties, we set out only what is necessary to

explain our decision.

                                             A


       *
          Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.


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      Southern Atlantic is an electrical subcontractor, and Mr. Hutchins and Mr.

McIntosh are its vice president and president, respectively. The School Board of

Orange County contracted with Wharton-Smith, Inc., to serve as the construction

manager on a renovation project. Wharton-Smith solicited bids for the project.

After Wharton-Smith selected Southern Atlantic’s bid for the first phase of the

project, but not the second, Southern Atlantic submitted a bid protest petition to the

School Board. As part of the bid protest process, Southern Atlantic posted a bond

in the amount of $127,920, which was issued by International Fidelity Insurance

Company (“IFIC”) in favor of the School Board.

      The School Board invoked an indemnification provision in its contract with

Wharton-Smith and tendered it the defense of the bid protest. Wharton-Smith

defended the bid selection in an administrative hearing. On November 10, 2010,

the   administrative   judge   entered    a   recommended      order      finding   that

Wharton-Smith, and not the School Board, had selected the winning bid. As a

result, Southern Atlantic lacked standing to maintain its bid protest against the

School Board. Although the School Board had sought an award of attorneys’ fees

and costs, the recommended order did not mention the request. The School Board

adopted the recommended order on February 8, 2011.

      Meanwhile, in December of 2010, Southern Atlantic sued Wharton-Smith in

Florida state court for refusing to award it the electrical subcontract. The state



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court granted Wharton-Smith summary judgment a few years later, and the state

appellate court affirmed.

      On February 24, 2011, the School Board demanded that IFIC reimburse it

approximately $40,000 for fees and costs incurred in connection with Southern

Atlantic’s bid protest. IFIC rejected the claim. The School Board responded that,

to the extent IFIC’s rejection was based on the fact that the School Board had not

yet reimbursed Wharton-Smith for the bid protest defense, it would assign its claim

for reimbursement to Wharton-Smith.

      The School Board assigned Wharton-Smith its bond claim on August 2,

2011, and Wharton-Smith sued IFIC in state court the next day. Southern Atlantic

intervened as a defendant. The state court ultimately entered summary judgment

against Wharton-Smith in November of 2012. Following the entry of summary

judgment, IFIC and Southern Atlantic moved for attorneys’ fees against

Wharton-Smith. The state court denied their motions. The state appellate court

denied a similar motion by Southern Atlantic on appeal, and later affirmed the

summary judgment on the merits.

                                         B

      Years of spinoff adversary proceedings at the administrative and state levels

did not prevent this municipal bid protest from ending up in federal district court.

A round of motions to dismiss pared down the complaint to First Amendment



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retaliation claims asserted by Southern Atlantic, Mr. Hutchins, and Mr. McIntosh

against the School Board. At its core, the plaintiffs’ theory was that the School

Board retaliated against them for speaking out about alleged irregularities in the

bidding process (which had been handled by Wharton-Smith) by asserting a claim

against the bid protest bond for legal fees and costs, and then assigning the claim to

Wharton-Smith following IFIC’s denial. See, e.g., D.E. 30 at 14 ¶ 76; D.E. 70 at

15–16 (arguing, in response to the School Board’s motion for summary judgment,

that, “because of the School Board’s attack and assignment of the [b]ond,” “[Mr.]

Hutchins and [Mr.] McIntosh had their company’s [b]ond attacked, which resulted

in a tarnished business reputation, sureties not consistently issuing bonds to

[Southern Atlantic], a decreased bonding capacity . . . , and ultimately lost

profits”).

       The School Board moved for summary judgment, and the district court

granted its motions. With respect to Mr. Hutchins and Mr. McIntosh, the district

court concluded that they had not suffered a retaliatory act because the School

Board’s alleged actions were directed at Southern Atlantic, and not at them

individually.      The district court also determined that they had not produced

evidence of any alleged harm, such as reputational loss, inability to obtain a bond,

or lost profits.




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      As for Southern Atlantic, the district court explained that its First

Amendment retaliation claim, on the merits, survived summary judgment because

there was evidence that the School Board had asserted an “unjustified bond claim”

against it (by way of its surety, IFIC), “which had the effect of tying up the [b]ond”

and causing damage. See D.E. 163 at 8. But the district court nonetheless granted

the School Board summary judgment after concluding that Southern Atlantic had

failed to establish municipal liability under § 1983. Specifically, the district court

determined that Southern Atlantic had not demonstrated that the School Board’s

general counsel, Woody Rodriguez (who Southern Atlantic believed was the

person responsible for making the claim against the bond and assigning the claim

to Wharton-Smith), had been the School Board’s final policymaker, as required by

Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

      Later, the district court awarded the School Board $18,983.60 in attorneys’

fees under § 1988 against Mr. Hutchins and Mr. McIntosh, reasoning that their

First Amendment retaliation claims had been meritless because they could not

point to a retaliatory act directed at them. This appeal followed.

                                         II

      We exercise plenary review over a district court’s grant of summary

judgment. See Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). In doing

so, we draw all inferences and review all of the evidence in the light most



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favorable to the non-moving party. Id. The party moving for summary judgment

bears the burden of demonstrating that there is no genuine dispute of any material

fact and that it is entitled to judgment as a matter of law. Id. If the evidence

supporting the nonmoving party is merely colorable or not significantly probative,

summary judgment may be granted. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249–50 (1986).

      We review an award of attorneys’ fees under 42 U.S.C. § 1988 for abuse of

discretion. See Thompson v. Pharmacy Corp. of Am., 334 F.3d 1242, 1244 (11th

Cir. 2003). We review a district court’s determination that a claim is frivolous for

abuse of discretion. See, e.g., Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1179

(11th Cir. 2005) (reviewing for abuse of discretion whether a plaintiff’s Americans

with Disabilities Act claims were frivolous). Generally speaking, a district court

abuses its discretion when it applies the wrong legal standard or commits a clear

error of judgment. See, e.g., Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d

1328, 1330 (11th Cir. 2005).

                                        III

      Southern Atlantic contends that the district court erred in concluding that the

School Board could not be held liable under § 1983 for Mr. Rodriguez’s decision

to seek fees and costs against the protest bond on the School Board’s behalf, and

thereafter assign the claim to Wharton-Smith following IFIC’s denial.              A



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municipality is not vicariously liable under § 1983 for the actions or omissions of

an employee unless those actions “may fairly be said to represent [the

municipality’s] official policy.”    Monell, 436 U.S. at 694.            Accordingly,

“[m]unicipal liability attaches only where [a municipal] decisionmaker possesses

final authority to establish municipal policy with respect to the action ordered.”

Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). See also Hill v. Clifton,

74 F.3d 1150, 1152 (11th Cir. 1996) (“Only those officials who have final

policymaking authority may render the municipality liable under § 1983.”).

      No one disputes that neither state positive law, such as a statute, see Jett v.

Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989), nor official municipal policy,

see Monell, 436 U.S. at 690 (“policy statement, ordinance, regulation, or decision

officially adopted and promulgated by [the municipality’s] officers”), vested the

general counsel with final policymaking authority to assert and assign bond claims

on behalf of the School Board.        Southern Atlantic instead argues that Mr.

Rodriguez held final policymaking authority because (a) the School Board had a

custom of delegating final authority to its general counsel to settle legal disputes

under $50,000, which allegedly would have included the bond claim since the fees

and costs sought were under that amount; (b) the School Board’s chairman, on

behalf of the Board, had expressly delegated Mr. Rodriguez final policymaking

authority over Southern Atlantic’s request to have its bond returned; and (c) Mr.



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Rodriguez was the School Board’s de facto final policymaker because Southern

Atlantic did not have a meaningful opportunity to seek the Board’s review of his

decision to assign the bond claim to Wharton-Smith.

                                          A

      Southern Atlantic maintains that, pursuant to a longstanding Board practice,

the general counsel possessed final authority to settle litigation under $50,000, “as

well as other ‘ministerial functions’ like assigning [a] [b]ond.” Br. of Appellants at

38 (quoting D.E. 59 at 149–150). Southern Atlantic asserts that, because the fees

and costs sought against the bond totaled less than $50,000, Mr. Rodriguez had

final policymaking authority over the alleged unconstitutional actions.

      Assuming that the general counsel’s alleged decision-making authority over

settlements and assignments was so “permanent and well settled as to constitute a

‘custom or usage’ with the force of law,” Brown v. City of Fort Lauderdale, 923

F.2d 1474, 1481 (11th Cir. 1991) (internal quotation marks omitted), Southern

Atlantic’s argument fails because his authority is not plenipotentiary. And that is a

problem for Southern Atlantic because, as the district court explained, our

precedent makes it clear that a government employee is a final policymaker “only

if his decisions have legal effect without further action by the governing body”—in

this case, the Board—“and if the governing body lacks the power to reverse the




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member or employee’s decision.” Holloman ex rel. Holloman v. Harland, 370

F.3d 1252, 1292 (11th Cir. 2004) (internal quotation marks and citations omitted).

      None of the record evidence cited by Southern Atlantic indicates that the

School Board lacked the authority to override the general counsel’s litigation

decisions. To the contrary, the testimony cited by Southern Atlantic, see Br. of

Appellants at 38 (citing D.E. 59 at 148–151), shows that the Board was responsible

for setting policy, see D.E. 59 at 151 (“The [B]oard makes overall guiding policies

. . . .”), and at all times retained the authority to micromanage litigation and

overrule the general counsel’s decisions, see id. at 151–152 (explaining that the

Board retains decision-making authority over important legal matters). It therefore

does not matter that the Board generally did not review the general counsel’s

litigation decisions.

      What matters is that the Board could have intervened in the decision-making

process and, as the entity vested with final policymaking authority, decided the

matter. See Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 638 (11th Cir.

1991) (holding that mayor was not the final policymaker for the city when he

vetoed the city council’s zoning decision because the city council could have

overridden his veto, even though it never held a vote on the override). The alleged

custom, even as characterized by Southern Atlantic, did not prevent the Board




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from intervening and overriding the general counsel’s decisions, so it remained the

final policymaker.

                                         B

      Southern Atlantic also contends that, at a so-called pre-agenda Board

meeting, the chairman of the School Board, on behalf of the whole Board,

expressly delegated final policymaking authority to the general counsel over all

issues related to the protest bond. The district court rejected Southern Atlantic’s

characterization of what occurred, and we agree.

      From the meeting’s transcript, it is clear that the Board did not delegate final

policymaking authority to the general counsel. Mr. Hutchins told the Board that

Southern Atlantic had “put up a protest bond,” and that it was wondering “what

[was] going on with it.” D.E. 58-8 at 7. In response, the chairman referred the

question to the general counsel, apparently in an attempt to avoid potential ex parte

communication issues (because the Board was ultimately responsible for approving

the administrative judge’s recommended order on the bid protest). See id. at 4–8.

Nothing in that exchange reveals that the Board delegated decision-making

authority to the general counsel over Southern Atlantic’s bond.

      More importantly, even if that exchange could be characterized as some

form of delegation, “the mere delegation of authority to a subordinate to exercise

discretion is not sufficient to give the subordinate policymaking authority. Rather,



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the delegation must be such that the subordinate’s discretionary decisions are not

constrained by official policies and are not subject to review.” Mandel v. Doe, 888

F.2d 783, 792 (11th Cir. 1989) (emphasis added). No reasonable juror could find

that the chairman’s comments expressly delegated final, unreviewable authority

over any and all matters related to the bond.

                                         C

      Finally, Southern Atlantic maintains that, even if the School Board

theoretically retained the power to review and reverse the assignment of the bond,

such review was unavailable in this case because Wharton-Smith sued as assignee

the day after the assignment was executed. Citing Holloman, 370 F.3d at 1292,

Southern Atlantic contends that the lack of a meaningful opportunity for review

rendered Mr. Rodriguez the School Board’s de facto final policymaker. This

argument, however, runs into several critical problems.

      First, the assignment was not executed by Mr. Rodriguez, but by John

Morris as “Chief Facilities Officer.” Southern Atlantic has not argued that Mr.

Morris is a final policymaker for the School Board, so his actions cannot be

imputed to the Board for § 1983 purposes.

      Second, assuming Mr. Rodriguez was behind the assignment decision like

Bertrand the monkey, see Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332

(11th Cir. 1999) (discussing “cat’s paw” theory), and that the assignment was



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actually an unlawful retaliatory act, his unlawful decision does not expose the

Board to municipal liability because at no point was he authorized to set the overall

policy for the Board’s legal affairs. See D.E. 59 at 151 (explaining that the Board

sets overall policy).   Rather, the Board set policy and gave Mr. Rodriguez

discretion to pursue legal recourses in conformity with that policy. The general

counsel’s decision to “exercise[ ] [his] discretion in an unconstitutional manner” is

not the Board’s “decision to act unlawfully.” Pembaur, 475 U.S. at 483 n.12.

And, as we have explained, the Board’s failure to affirmatively intervene and

reverse Mr. Rodriguez’s decisions does not matter:

      Simply going along with discretionary decisions made by one’s
      subordinates . . . is not a delegation to them of the authority to make
      policy. [This is] consistent with a presumption that the subordinates
      are faithfully attempting to comply with the policies that are supposed
      to guide them. . . . [T]he mere failure to investigate the basis of a
      subordinate’s discretionary decisions does not amount to a delegation
      of policymaking authority, especially where (as here) the
      wrongfulness of the subordinate’s decision arises from a retaliatory
      motive or other unstated rationale.

Scala v. City of Winter Park, 116 F.3d 1396, 1400–01 (11th Cir. 1997) (internal

quotation marks omitted) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112,

129–30 (1988)).

      Southern Atlantic’s Holloman-based argument relies heavily on Willingham

v. City of Valparaiso Florida, 638 F. App’x 903, 904 (11th Cir. 2016), but that

case is distinguishable. In Willingham, a jury returned a verdict finding that the



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mayor of the City of Valparaiso unlawfully fired a city police officer in retaliation

for First Amendment conduct. See id. at 905. Although the mayor was responsible

for personnel decisions on behalf of the city, the city charter empowered the city

commission to review and overturn his decisions. See id. at 907–08. Despite

review being “theoretically available on paper,” the district court, relying on

Holloman, ruled that the mayor’s termination decision could be imputed to the city

because he had “sabotaged the entire process of review over his own decision.” Id.

(quoting Willingham v. City of Valparaiso, 97 F. Supp. 3d 1345, 1354 (N.D. Fla.

2015)).

      In affirming that decision, we explained that the mayor had “effectively

prevented meaningful review” in a way that only he could because of his unique

position:

      Since [the mayor] was [c]hairman of the [c]ity [c]ommission and
      controlled its agenda, the other [c]ommission members—and
      therefore the [c]ommission as a whole—were unable to force [him] to
      even entertain their motions [concerning the police officer’s
      termination]. . . . As [c]hairman . . . , [the mayor’s] conduct
      effectively nullified the [city charter’s] very procedures designed to
      review [his] termination decision.

Id. at 907–08 (emphasis added).

      In this case, by contrast, there is no evidence that the Board or the

superintendent were powerless to review the general counsel’s decisions. As the

district court noted, even though the Board apparently ignored Southern Atlantic’s



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requests for the return of its bond, “nothing [in the record] support[s] the notion

that the School Board could not have taken action had it wished to do so.” D.E.

163 at 10. Similarly, nothing indicates that, had he wanted to, the superintendent

could not have unilaterally intervened in the assignment of the bond after the

general counsel made the initial call. Southern Atlantic seems to confuse the

inability to exercise review with the choice not to. Willingham was about the

former, and this case is about the latter.

                                             D

      In sum, none of the theories advanced by Southern Atlantic establish

municipal liability. There is no evidence that the Board had a custom of delegating

final, unreviewable policymaking authority to the general counsel over litigation;

that the Board expressly delegated final policymaking authority to Mr. Rodriguez

over any issue related to Southern Atlantic’s bond; and that there was no

opportunity for either the Board or the superintendent to meaningfully review Mr.

Rodriguez’s decisions.

                                             IV

      Mr. Hutchins and Mr. McIntosh also argue that the district court abused its

discretion in awarding the School Board attorneys’ fees under § 1988 because it

erroneously concluded that their First Amendment retaliation claims were

frivolous. The district court ruled that Mr. Hutchins’ and Mr. McIntosh’s claims



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were frivolous because they had failed to present evidence that any alleged

retaliatory act by the School Board was aimed at them specifically, as opposed to

their company, Southern Atlantic.1

       “[A] district court may in its discretion award attorneys’ fees to a prevailing

defendant in a . . . [§] 1983 action upon a finding that the plaintiff’s lawsuit was

‘frivolous, unreasonable, or without foundation.’ ” Sullivan v. Sch. Bd. of Pinellas

Cty., 773 F.2d 1182, 1188 (11th Cir. 1985) (quoting Hughes v. Rowe, 449 U.S. 5,

14 (1980)). “In determining whether a suit is frivolous, a district court must focus

on the question whether the case is so lacking in arguable merit as to be groundless

or without foundation rather than whether the claim was ultimately successful.”

Id. at 1189 (internal quotation mark omitted) (quoting Jones v. Texas Tech Univ.,

656 F.2d 1137, 1145 (5th Cir. 1981)).

       On this record, we do not find that the district court abused its discretion. As

we have noted before, frivolity at the summary judgment stage comes down to

whether the plaintiffs produced evidence to support their claims. See id. at 1189.

Here, assuming Mr. Hutchins and Mr. McIntosh even exercised any speech in their

individual capacity, there is no evidence that the claim on the protest bond or the

assignment to Wharton-Smith were in retaliation for their personal and individual

1
  Mr. Hutchins and Mr. McIntosh do not seem to appeal the summary judgment entered against
their First Amendment retaliation claims. Either way, in deciding that the general counsel was
not the School Board’s final policymaker, we also foreclose their individual First Amendment
retaliation claims against the School Board.


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(as opposed to Southern Atlantic’s) protected speech. Both of those actions, it

seems to us, were in response to Southern Atlantic’s bid protest petition, which

was not a petition that either of them joined in their individual capacity. And both

actions concerned a bond for which neither of them were principals (at least they

do not contest this determination by the district court). The School Board also

never sued—whether through Wharton-Smith or otherwise—any of them, or

sought fees against them in an administrative hearing. In their own words, “[they]

had their company’s [b]ond attacked.” D.E. 70 at 15. In light of this evidence, the

district court’s conclusion that they had no basis to sue was within its discretion.

                                          V

      For these reasons, we affirm the district court’s grant of summary judgment

and award of attorneys’ fees.

      AFFIRMED.




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JORDAN, Circuit Judge, concurring in part and dissenting in part:

      I concur with the majority’s conclusion that the general counsel was not the

School Board’s final policymaker, so there can be no municipal liability for the

alleged retaliation. I believe, however, that the district court abused its discretion

in awarding fees under 42 U.S.C. § 1988 because Mr. Hutchins’ and Mr.

McIntosh’s First Amendment retaliation claims were not “groundless or without

foundation.”     Christiansburg Garment Co. v. Equal Employment Opportunity

Comm’n, 434 U.S. 412, 421 (1978).

      The district court awarded fees because Mr. Hutchins and Mr. McIntosh

could not identify a retaliatory act against them specifically. That presupposes that

the alleged retaliatory acts against Southern Atlantic, which the district court

agreed were actually retaliatory, see D.E. 163 at 8, could not have also served as

the retaliatory acts for Mr. Hutchins’ and Mr. McIntosh’s claims. Yet as far as I

can tell, neither the School Board nor the district court pointed to any binding

precedent that squarely forecloses a single retaliatory act from supporting two

distinct claims arising from the same set of facts.

      The only binding authority cited by the School Board is a Former Fifth

Circuit case in which the court concluded that the shareholders of a bank lacked

standing to assert civil rights claims in their individual capacities when “only the

bank ha[d] allegedly suffered any injury.” Gregory v. Mitchell, 634 F.2d 199, 202



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(5th Cir. 1981) (emphasis added). That case does not stand for the proposition that

a retaliatory act against a company can never support a First Amendment

retaliation claim brought by the company’s principals based on speech allegedly

exercised in an individual capacity. And, in any event, that case is distinguishable.

Both Mr. Hutchins and Mr. McIntosh presented evidence that they suffered non-

economic damages.

      To be sure, there are, as the School Board says, cases that have found that

non-economic damages are insufficient to confer standing on shareholders on the

basis that those damages are not “distinct” from the company’s. See, e.g., Audio

Odyssey, Ltd. v. Brenton First Nat. Bank, 245 F.3d 721, 729 (8th Cir. 2001),

opinion reinstated, 286 F.3d 498 (8th Cir. 2002). But the cases cited are not

binding. And in Audio Odyssey, it was clear that the unlawful conduct was aimed

solely at the company. Here, the allegations are that the School Board specifically

retaliated against Mr. Hutchins and Mr. McIntosh for their individual-capacity

speech by going after their company.

      There are also cases from other jurisdictions which gave Mr. Hutchins and

Mr. McIntosh at least an arguable basis for asserting their own retaliation claims.

For example, in Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310 (9th Cir. 1989),

an individual plaintiff alleged that municipal officers, in retaliation for his public

criticism, suspended bulk use permits belonging to his company. See id. at 1314.



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The district court had entered summary judgment against him on the ground that,

like the bond in this case, the permits were the company’s. See id. at 1314. The

Ninth Circuit reversed and explained that, because the individual plaintiff “has a

protected interest in commenting on the actions of government officials,” if he

“establish[es] that the decision to suspend the permits was made because of [his]

exercise of constitutionally protected rights, [he has] established a first amendment

violation, and [is] entitled to relief under [§] 1983.” Id. The Seventh Circuit

arrived at a similar conclusion in Rasche v. Village of Beecher, 336 F.3d 588 (7th

Cir. 2003), when it declined to “disturb the district court’s determination that [a

business owner’s] interest in [the] litigation [was] sufficient to give her standing to

[assert, in her individual capacity, a First Amendment retaliation claim stemming

from enforcement actions taken against her business].” Id. at 591 n.1. See also

White v. Sch. Bd. of Hillsborough Cty., 636 F. Supp. 2d 1272, 1279 (M.D. Fla.

2007) (refusing to dismiss a First Amendment retaliation claim asserted by the

director of a school in her individual capacity for the alleged retaliatory actions of

the school board against the school, and rejecting the school board’s argument that

the director lacked standing).

      In light of these cases suggesting that Mr. Hutchins and Mr. McIntosh

alleged a prima facie case of retaliation, and without a clear directive from our

Circuit that their legal theory was utterly meritless, I do not think that their claims



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were frivolous. See, e.g., Bonner v. Mobile Energy Servs. Co., 246 F.3d 1303,

1305 (11th Cir. 2001) (reversing award of attorneys’ fees in part because the

plaintiffs had established a prima facie case of discrimination, even though they

lost at summary judgment). That is purposely a “stringent standard,” Head v.

Medford, 62 F.3d 351, 355 (11th Cir. 1995), because fees against civil rights

litigants is a punishment we should seldom apply. See Christiansburg, 434 U.S. at

421–22.




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