Stephens

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

LARRY STEPHENS, an

individual,

Plaintiff,

v. Case No: 2:25-cv-709-KCD-KRH

THE SCHOOL BOARD OF LEE

COUNTY, FLORIDA, a political

subdivision of the State of

Florida,

Defendant.

ORDER

Plaintiff Larry Stephens claims that his former employer, Defendant

School Board of Lee County, fired him in retaliation for reporting misconduct.

Whether he can ultimately prove those allegations remains to be seen. But in

the meantime, Stephens sought reinstatement to his old job. Applying the

temporary relief provision of the Florida Public Sector Whistleblower Act, Fla.

Stat. § 112.3187(9)(f), this Court agreed and ordered the School Board to

restore Stephens to his former position pending the outcome of this dispute.

Stephens now wants the School Board to pay his attorney’s fees. (Doc.

37.) He argues that securing reappointment makes him a “substantially

prevailing employee” under the Whistleblower Act’s fee-shifting provision. See

Fla. Stat. § 112.3187(9)(d). The School Board responds that temporary

reinstatement is merely an interim measure. It does not resolve the merits of

the underlying retaliation claims. So because Stephens has not yet proven any

unlawful conduct, he is not a prevailing party that is entitled to fees.

Stephens seeks relief under a Florida statute. So the question of whether

he qualifies as a “substantially prevailing employee” is an issue of state law.

2002 Irrevocable Tr. for Richard C. Hvizdak v. Shenzhen Dev. Bank, Co., Ltd,

No. 2:08-CV-556-FTM-36, 2011 WL 4112776, at *4 (M.D. Fla. Sept. 15, 2011)

(“A federal court sitting in diversity must apply state law to determine

prevailing party status.”).

A Florida appellate court recently answered the precise question

presented here. See Dep't of Child. & Fams. v. Herstein, 399 So. 3d 384 (Fla.

Dist. Ct. App. 2025). And because this Court is applying state law, that decision

is generally controlling. See United States v. Hill, 799 F.3d 1318, 1322 (11th

Cir. 2015) (“[A]bsent a decision from the state supreme court on an issue of

state law, we are bound to follow decisions of the state's intermediate appellate

courts unless there is some persuasive indication that the highest court of the

state would decide the issue differently.”).

In Herstein, the plaintiff sued his former employer under the

Whistleblower Act and secured temporary reinstatement. 399 So. 3d at 388-

89. The trial court not only gave the plaintiff his job back, but also awarded

attorney’s fees. Id. at 389. The First District Court of Appeal then reversed the

fee award. As the court explained, temporary reinstatement is just that—

temporary relief designed to hold things steady “pending the final outcome on

the complaint.” Id. at 393. It is not a stand-alone action. Therefore, the court

held, a plaintiff cannot be a “substantially prevailing employee” entitled to fees

until he actually proves the employer broke the law. Id. at 394.

That same logic applies here. Stephens won a preliminary motion to

return to work while his lawsuit proceeds. But he has not yet proven a single

allegation of unlawful retaliation. The core question of this case—whether the

School Board fired him for blowing the whistle or for poor performance—

remains completely unresolved. Until a fact-finder weighs the evidence and

decides that the School Board violated the law, Stephens has not substantially

prevailed. Handing him an award for attorney’s fees at this stage would

compensate him for a victory he has not yet secured.

Stephens tries to wiggle around Herstein by characterizing its fee

analysis as unnecessary dicta. (Doc. 37 at 5.) His argument goes like this:

because Herstein first determined that the plaintiff had not made a protected

disclosure to trigger the Whistleblower Act at all, its subsequent conclusion

about attorney’s fees was unnecessary. (Id.) That logic doesn’t work. “[W]here

a decision rests on two or more grounds, none can be relegated to the category

of obiter dictum.” Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949); see

also Bravo v. United States, 532 F.3d 1154, 1162 (11th Cir. 2008) (“[I]n this

circuit additional or alternative holdings are not dicta, but instead are as

binding as solitary holdings.”).

Nor has Stephens offered a “persuasive indication” that the Florida

Supreme Court would interpret the Whistleblower Act differently. Hill, 799

F.3d at 1322. He argues that the word “must” in § 112.3187(9)(d) forecloses any

discretion. Because he asked for temporary reinstatement and got it, he

“substantially prevailed” and the fees must follow. But subsection (d) lives

inside § 112.3187(9). And it begins with a prefatory condition: “In any action

brought under this section, the relief must include the following[.]” Id. As

Herstein rightly recognized, “a petition for temporary reinstatement is not an

‘action.’” 399 So. 3d at 393. It is an interim measure designed to keep things

steady “pending the final outcome on the complaint.” Id. The action is the

underlying lawsuit itself. So to be a “substantially prevailing employee”

entitled to fees, you have to substantially prevail on the merits of the lawsuit,

not just win a preliminary motion.

Stephens also pushes back that if the Court requires him to wait until

the end of the case to seek fees, it would read the word “substantially” right

out of the statute. If an employee must win the underlying action before fees

attach, he concludes, then a “substantially prevailing employee” would only

mean someone who wins everything. (Doc. 37 at 3.) That concern is illusory.

The word “substantially” operates exactly how it does in countless other fee-

shifting statutes: it covers the scenario where a plaintiff wins on some claims

but loses on others. It ensures that a plaintiff who secures a meaningful,

merits-based victory is not deprived of his fees simply because he failed to run

the table.

An example helps illustrate the work substantially does here. Suppose a

whistleblower sued his employer alleging that he was unlawfully denied a

promotion and later unlawfully fired. The case goes to trial. The jury concludes

that the firing was indeed retaliatory, but the earlier promotion denial was

justified by poor performance. In that scenario, the employee did not win on

every issue—he lost an entire claim. But by proving the illegal firing and

winning permanent reinstatement, he has arguably “substantially prevailed”

in the action. That is the kind of mixed-result victory the word substantially is

designed to capture. It is not a backdoor for awarding fees to a plaintiff who

has yet to prove a single violation of the law.

Federal fee-shifting statutes operate the same way. An order for

temporary reinstatement is the functional equivalent of a preliminary

injunction. And as the Supreme Court recently reaffirmed, preliminary

injunctions “do not conclusively resolve legal disputes” and therefore “do not

confer prevailing party status.” Lackey v. Stinnie, 604 U.S. 192, 200-01 (2025).

A plaintiff who achieves a preliminary injunction is not a prevailing party if

the merits are ultimately decided against him down the road. Stephens offers

no good reason why Florida’s Whistleblower Act should work any differently.

Without a final determination that the School Board violated the law,

Stephens has not prevailed in this action, substantially or otherwise. His

motion for attorney’s fees (Doc. 37) is thus DENIED.

ORDERED in Fort Myers, Florida on August 24, 2026.

Kyle C. Dudek os ot

United States District Judge