                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 19-2995
                                   ________________

                                TAMRA N. ROBINSON,
                                      Appellant

                                             v.

                   FIRST STATE COMMUNITY ACTION AGENCY
                               ________________

                     On Appeal from the United States District Court
                               for the District of Delaware
                              (D. Del. No. 1:14-cv-01205)
                       District Judge: Hon. Richard G. Andrews
                                   ________________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  on June 29, 2020

             Before: KRAUSE, PHIPPS, and GREENBERG, Circuit Judges.

                              (Opinion filed: July 10, 2020)

                                   ________________

                                       OPINION*
                                   ________________




       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
KRAUSE, Circuit Judge.

          Plaintiff Tamra Robinson appeals the District Court’s denial of her request for

appellate attorneys’ fees after she successfully defended a jury verdict in her favor.

Because Robinson’s claim was legally meritless and we affirmed only due to Defendant

First State Community Action Agency’s waiver of any argument on this ground, “special

circumstances” justified the District Court’s denial of appellate attorneys’ fees, and we will

affirm.

                                        DISCUSSION1

          While the Americans with Disabilities Act’s fee-shifting provision gives a court

discretion to “allow the prevailing party . . . a reasonable attorney’s fee,” 42 U.S.C.

§ 12205, such fees are not guaranteed: A prevailing party that may “ordinarily recover an

attorney’s fee” should not do so where “special circumstances would render such an award

unjust,” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (citation omitted).             Such

circumstances were present here.

          Robinson won a jury verdict based on a legal theory that First State discriminated

against her because she was regarded as disabled, a theory that was no longer viable after

the 2008 amendments to the ADA. See Robinson v. First State Cmty. Action Agency, 920

F.3d 182, 186 (3d Cir. 2019). For this victory, Robinson was awarded $135,452.26 in


          1
          The District Court had jurisdiction under 28 U.S.C. § 1331, and we have
jurisdiction under 28 U.S.C. § 1291. “We review the District Court’s attorneys’ fees award
for abuse of discretion,” which occurs when “the judge fails to apply the proper legal
standard or to follow proper procedures in making the determination, or bases an award
upon findings of fact that are clearly erroneous.” United States ex rel. Palmer v. C&D
Techs., Inc., 897 F.3d 128, 138 (3d Cir. 2018) (citation omitted).
                                              2
attorneys’ fees. Robinson then successfully defended this judgment on appeal, but only

thanks to an error by First State: First State waived any objection to the “regarded as”

theory of the case by failing to raise it before the District Court, so we declined to consider

the issue for the first time on appeal and thus affirmed the District Court’s judgment. Id.

at 186–89. Under these circumstances, awarding appellate attorneys’ fees in addition to

the fees already awarded would be a “windfall[]” for Robinson’s counsel. See Farrar v.

Hobby, 506 U.S. 103, 115 (1992) (citation omitted). Additionally, because the “regarded

as” theory of ADA liability is no longer viable and Robinson succeeded only due to First

State’s missteps, the “legal issue” on which Robinson prevailed has no “significance”; the

judgment will not “deter future lawless conduct”; and an award of appellate attorneys’ fees

thus serves no “public purpose.” See id. at 121–22 (O’Connor, J., concurring).

       In light of these unusual “special circumstances,” Hensley, 461 U.S. at 429 (citation

omitted), it was within the District Court’s discretion to determine that Robinson “should

receive no [appellate] attorney’s fees at all,” Farrar, 506 U.S. at 115.

                                        CONCLUSION

       For the foregoing reasons, we will affirm the order of the District Court.




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