plaintiff who challenged statute prohibiting nudity at the beach was not “prevailing” although she won an initial Preliminary Injunction, because she lost on summary judgment and the rule she challenged “remain[ed] intact”
How later courts described this case
- plaintiff who challenged statute prohibiting nudity at the beach was not “prevailing” although she won an initial Preliminary Injunction, because she lost on summary judgment and the rule she challenged “remain[ed] intact”
- no determination on the merits where case became moot
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN DOE 1 and JANE DOE 1, in their CIVIL ACTION
own capacity and as parents of CHILD
DOE 1, JOHN DOE 2 and JANE DOE 2, in
their own capacity as parents of CHILD
DOE 2, JANE DOE 3, in her own capacity
and as a parent of CHILD DOE 3 and on NO. 22-cv-287
behalf of those similarly situated,
Plaintiffs,
v.
PERKIOMEN VALLEY SCHOOL DIST.,
JASON SAYLOR, MATTHEW DORR,
ROWAN KEENAN, DON FOUNTAIN,
KIM MARES, REENA KOLAR, SARAH
EVANS-BROCKETT, LAURA WHITE,
and TAMMY CAMPLI,
Defendants.
MEMORANDUM OPINION
This litigation arose out of a decision by the Board of School Directors of the Perkiomen
Valley School District to promulgate an optional masking policy at its schools during the
COVID-19 pandemic, to the dismay of certain parents of children with disabilities. The children
and their parents filed suit on behalf of themselves and a putative class of similarly situated
children under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1201, et seq., and
Section 504 of the Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 701, et seq.
(collectively, the “Acts”), alleging that the imposition of optional masking during a period of
“high” or “substantial” transmission of COVID-19 violated the Acts because it “has the effect of
excluding these children from their public institution, or otherwise denying them the opportunity
to participate in the services of the school district.” The case having now been dismissed without
prejudice as moot, Plaintiffs have filed a Motion for Attorneys’ Fees and Costs pursuant to
42 U.S.C. § 12205 and 29 U.S.C. § 794a(b). For the reasons that follow, Plaintiffs’ Motion will
be denied.
FACTUAL BACKGROUND
The facts of this case having been set out in detail elsewhere, see Doe 1 v. Perkiomen
Valley Sch. Dist., --- F. Supp.3d ---, 2022 WL 356868 (E.D. Pa. Feb. 7, 2022) (“Perkiomen I”),
the Court writes only for the Parties and limits the recitation of facts to those essential to this
opinion.
The Board’s decision to instate optional masking came at the dawn of 2022, when the
District was managing a sudden surge in local cases caused by the COVID-19 omicron variant.
Specifically, the Board voted on January 2 to implement a two-part plan. The “Phase One
Transition Plan” would require masking indoors from January 3 to 21, 2022. Then, on the
following Monday, January 24, the Phase Two Transition Plan would begin, rendering masks
optional indoors.
On January 21, the last day of the Phase One Transition Plan, Plaintiffs filed suit alleging
that, given then-current COVID-19 transmission rates, the institution of optional masking in
schools would violate the ADA and Section 504. At the time, the Centers for Disease Prevention
and Control (“CDC”) recommended universal indoor masking in areas of “substantial” or “high”
transmission, as determined by the CDC based on COVID-19 transmission rates and test
positivity rates.
On Sunday, January 23, Plaintiffs filed a Motion for a Temporary Restraining Order to
prevent the optional masking policy from taking effect. This Motion was granted and a
temporary restraining order issued on January 25, 2022 (the “Temporary Restraining Order”). A
hearing was later held on Plaintiffs’ subsequent Motion for a Preliminary Injunction, and on
February 7, 2022, the Court entered a preliminary injunction enjoining Defendants from
implementing or enforcing the Phase Two Transition Plan (the “Preliminary Injunction”).
Nineteen days later, on February 26, 2022, Defendants moved to dissolve the Preliminary
Injunction, based on a change in circumstances: on February 25, the CDC had updated its mask
guidance to recommend universal masking only in areas with “high” COVID-19 Community
Levels, a new CDC metric based not on transmission and test positivity rates but on the hospital
beds used, hospital admissions, and the total of new COVID-19 cases in a given area. This
change immediately downgraded Montgomery County from an area of “high” transmission to an
area of “medium” COVID-19 Community Level, such that universal masking was no longer
CDC-recommended. Furthermore, there had been a decrease in reported COVID-19 cases in the
county.
On March 14, 2022, the Court granted Defendants’ motion and dissolved the Preliminary
Injunction, finding that “[t]he CDC’s updated mask guidance and the change in Montgomery
County’s COVID-19 Community Levels together constitute a change of circumstances that
justifies the dissolution of the preliminary injunction” because “Plaintiffs can no longer show a
likelihood of success on the merits of their disparate impact claims under the ADA and Section
504.” On May 20, Plaintiff moved again for a temporary restraining order, which motion was
denied after a hearing.
Meanwhile, on May 12, Plaintiffs filed an Amended Complaint. The Amended
Complaint alleged that each Child Doe’s medical team had opined that, “until February 25, 2022
universal masking was essential” for the child in question to “safely access school facilities.”
Defendants moved to dismiss the Amended Complaint, alleging, among other things, that the
case had become moot and the Court lacked jurisdiction. The Court agreed, holding that,
because the Amended Complaint’s “factual allegations about the Child Does’ medical needs
extend only through February 25, 2022, this case no longer presents a live case or controversy.”
The case was dismissed without prejudice.
Plaintiffs then filed a Motion for Attorneys’ Fees and Costs under the ADA and Section
504, each of which permit the award of reasonable attorneys’ fees to the “prevailing party.”
Plaintiffs argue that they are prevailing parties because “they received merits-based relief based
upon the injunctive relief provided by this court.”
LEGAL STANDARDS
“Under the ‘American Rule,’ parties to litigation are to pay their own attorneys’ fees,
absent statutory authority and a court order providing otherwise.” People Against Police
Violence v. City of Pittsburgh, 520 F.3d 226, 231 (3d Cir. 2008) (citing Buckhannon Bd. & Care
Home, Inc. v. W. Va. Dep’t. of Health & Human Res., 532 U.S. 598, 602 (2001)). The ADA and
Section 504 each set out the statutory authority for an exception to this general rule, providing
that the court may allow the “prevailing party” a “reasonable attorney’s fee.” See 29 U.S.C.
§ 794a(b); 42 U.S.C. § 12205.
“Generally, parties are considered prevailing parties if ‘they succeed on any significant
issue in litigation which achieves some of the benefits the parties sought in bringing suit.’” J.O.
ex rel. C.O. v. Orange Twp. Bd. of Educ., 287 F.3d 267, 271 (3d Cir. 2002) (quoting Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983)). “[T]he plaintiff must, ‘at a minimum, . . . be able to point
to a resolution of the dispute which changes the legal relationship between itself and the
defendant.’” Singer Mgmt. Consultants, Inc. v. Milgram, 650 F.3d 223, 228 (3d Cir. 2011)
(ellipsis in original) (quoting Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.
782, 792 (1989)).
“[R]elief obtained via a preliminary injunction can, under appropriate circumstances,
render a party ‘prevailing.’” People Against Police Violence, 520 F.3d at 233. However, a
plaintiff must “receive at least some relief on the merits of his [or her] claims before he [or she]
can be said to prevail.” Id. at 232 (quoting Buckhannon, 532 U.S. at 603-04).
“[T]he ‘merits’ requirement is difficult to meet in the context of TROs and preliminary
injunctions, as the plaintiff in those instances needs only to show a likelihood of success on the
merits (that is, a reasonable chance, or probability, of winning) to be granted relief.” Singer
Mgmt. Consultants, Inc., 650 F.3d at 229 (emphasis in original). “[A] court’s finding of
‘reasonable probability of success on the merits’ is not a resolution of ‘any merit-based issue.’”
Id. (quoting John T. ex rel. Paul T. v. Del. Cnty. Intermediate Unit, 318 F.3d 545, 559 (3d Cir.
2003)). “As this ‘probability’ ruling is usually the only merits-related legal determination made
when courts grant TROs and preliminary injunctions, it follows that parties will not often
‘prevail’ based solely on those events.” Id.
A preliminary injunction “designed to maintain the status quo during the course of
proceedings” is not based on the merits. John T. ex rel. Paul T., 318 F.3d at 558-59 (quoting
J.O. ex rel. C.O., 287 F.3d at 271) (injunction requiring school to continue providing special
education services to student during ongoing litigation not merits-based). Such an injunction
does not alter the legal relationship between the parties “in a manner that afford[s] plaintiffs
substantial relief on the merits of their claims.” See People Against Police Violence, 520 F.3d at
234.
DISCUSSION
Both the Temporary Restraining Order and the Preliminary Injunction rested on a finding
that Plaintiffs had demonstrated a “likelihood of success on the merits.” The Temporary
Restraining Order stated that “there is a substantial likelihood that Plaintiffs will succeed on the
merits.” And after briefing and a hearing on the Preliminary Injunction, the Court held:
If the Phase Two Transition Plan approved by the Board on January 2,
2022 were executed under current conditions, the Child-Plaintiffs would
face two possible outcomes: (1) they could attend school remotely, while
their peers attend in-person; or (2) they could attend school with their
peers under a real risk of serious illness or worse. Under the evidence
before the Court, the Plaintiffs have shown a likelihood of success on the
merits because, under either scenario, there is a reasonable probability that
Plaintiffs would suffer a disparate impact by reason of their disabilities,
and an inability to access services in the “most integrated setting
appropriate” to their needs.
[. . .]
The only question presented is whether Defendants’ adoption and
implementation of the Phase Two Transition Plan rescinding the universal
indoor masking policy during school hours in favor of recommended
masking is likely under the circumstances presented here to be a violation
of the Acts: the Court finds it that they likely would.
Perkiomen I, at *28. This finding of a likelihood of success does not alone constitute a merits-
based resolution that would trigger entitlement to attorneys’ fees. See Singer Mgmt. Consultants,
Inc., 650 F.3d at 229.
Nor did anything that followed secure merits-based relief to Plaintiffs. The Preliminary
Injunction was dissolved thirty-five days after it was entered because the changed circumstances
meant that Plaintiffs could no longer show a likelihood of success on the merits. Thus, “the
initial relief plaintiffs achieved under the Court’s injunction proved to be fleeting.” People
Against Police Violence, 520 F.3d at 234 (citing Sole v. Wyner, 551 U.S. 74, 82-86 (2007)). In
such cases, the interim relief obtained cannot be said to be merits-based. Compare Sole, 551
U.S. at 83-86 (plaintiff who challenged statute prohibiting nudity at the beach was not
“prevailing” although she won an initial Preliminary Injunction, because she lost on summary
judgment and the rule she challenged “remain[ed] intact”) with People Against Police Violence,
520 F.3d at 233 (preliminary injunction that lasted two years and granted virtually all the relief
plaintiffs sought was merits-based, where defendants avoided any final resolution on the merits
by enacting new legislation providing the same relief).
Unlike the plaintiffs in People Against Police Violence, Plaintiffs here did not obtain
“lasting relief on the merits of their claims.” Id. at 234. The injunction was dissolved when they
could no longer show a likelihood of success on the merits and their claims were later dismissed
as moot. See Singer Mgmt. Consultants, Inc., 650 F.3d at 231 (no determination on the merits
where case became moot).
Furthermore, the Preliminary Injunction was explicitly designed to preserve the status
quo. “Status quo” refers to “the last, peaceable, noncontested status of the parties.” Kos
Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (quoting Opticians Ass’n of Am.
v. Indep. Opticians of Am., 920 F.2d 187, 197 (3d Cir. 1990)). In granting the Preliminary
Injunction, the Court held that “the Phase One Transition Plan represents the last peaceful status
between the Parties,” Perkiomen I at *6, and that, “[t]o re-establish the status quo between the
Parties, the enforcement of Phase Two Transition Plan will be preliminarily enjoined, which will
bring the Phase One back into effect.” Id. at *29. As Plaintiffs never obtained merits-based
relief on their claims, they are not entitled to attorneys’ fees under 42 U.S.C. § 12205 or 29
U.S.C. § 794a(b) and their Motion will be denied.
An appropriate order follows.
BY THE COURT:
/s/ Wendy Beetlestone
__________________________
WENDY BEETLESTONE, J.