# FR v. Pouncey

> District Court, N.D. Alabama · January 14, 2020

URL: https://www.frixlaw.com/law-library/cases/9989175

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** January 14, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
F.R. as parent and next friend of B.C., a )
minor., )
)
Plaintiff, )
) Case No.: 2:19-cv-1427-LCB
v. )
)
DR. WALTER B. GONSOULIN, JR., )
in his official capacity and as )
representative of Jefferson County
Board of Education, et al.,

Defendants.

MEMORANDUM OPINION

On August 29, 2019, the Plaintiff filed a complaint alleging that her son
B.C., a 17-year-old high school student, had been denied enrollment at McAdory
High School in Jefferson County, Alabama, in violation of the McKinney-Vento
Homeless Assistance Act (“the Act”), 42 U.S.C. § 11431-11435. Later that day,
this Court conducted a telephone conference in which defense counsel stated that
the Jefferson County Board of Education (“the Board”) had agreed to enroll B.C. at
McAdory High School pending the outcome of this case. The Court thereafter
entered an expedited scheduling order providing for an abbreviated discovery
period.1

1 On December 27, 2019, the Court entered an amended scheduling order extending the
discovery period. (Doc. 43).
On October 17, 2019, the Board filed a stipulation and motion to dismiss.2
(Doc. 16). While declining to admit that it had violated the Act or any other

provision of law, the Board, “in the interest of minimizing disruption to minor
Plaintiff B.C.’s educational program, terminating counterproductive litigation, and
conserving educational and judicial resources,” stipulated to the following course

of action:
1. Minor Plaintiff B.C. (whose enrollment is the subject of the
pending civil action) shall be permitted to complete the 2019-20
school year at McAdory High School and to graduate therefrom
subject to his continuing compliance with rules, regulations, and
requirements that apply to all McAdory High School students.

2. B.C. shall continue to be provided transportation from his current
residence to and from McAdory High School in accordance with
transportation arrangements already in effect.

3. If deemed appropriate, the Board consents to the Court retaining
jurisdiction over this matter through the end of the 2019-20 school
year in order to address any unforeseen circumstances or
developments that could affect implementation of the foregoing
commitment or, in the alternative, to a dismissal of the action
without prejudice.

(Doc. 16, p. 1-2). In a footnote that was omitted from the above quotation, the
Board stated that it “further agrees to provide reasonable advance notice to
Plaintiff should [any unforeseen circumstances or developments] arise.” Id. at p. 2.
Thus, it appears to the Court that the Plaintiff has obtained the relief she sought,

2 The Board amended its stipulation and motion to dismiss on October 18, 2019, to request that all pretrial deadlines
be suspended. (Doc. 17).
i.e., her son’s admission and continued enrollment at McAdory. Based on that
stipulation, the Board asserted that the controversy was moot and moved to dismiss

the case.
In her response, the Plaintiff argued that the stipulation did not render the
case moot because, she said, the stipulation did not provide all of the requested

relief and “was at best an offer to settle.” (Doc. 19, p. 2). The Plaintiff further
asserted that the Board’s decision to allow B.C. to enroll at McAdory and proceed
towards graduation was, at this point, “in bad faith” and represented “nothing more
than another attempt by the Defendant to ‘pull the wool over the Court’s eyes’ and

designed to avoid the issuance of a final judgment for the Plaintiff on the merits, a
determination that the Plaintiff is the prevailing party, and paying Plaintiff’s
attorneys’ fees.” Id. Thus, despite the Board’s decision to give the Plaintiff the

exact relief she sought in her complaint, Plaintiff’s counsel seeks to maintain this
litigation, up to and including a bench trial on the merits, in order to establish
“prevailing party” status that would entitle him to an award of attorneys’ fees
under 28 U.S.C. § 1988.

Discussion
The United States Supreme Court addressed a similar scenario in DeFunis v.
Odegaard, 416 U.S. 312 (1974). In DeFunis, the petitioner was denied admission

to the University of Washington Law School and subsequently filed a lawsuit
claiming that the school discriminated against him in violation of the Equal
Protection Clause of the United States Constitution. The petitioner prevailed at

trial, and the trial court ordered that he be admitted to the law school. By the time
the case reached the United States Supreme Court, the petitioner had completed
most of his studies and had just registered for his final quarter in law school. Id. at

315. The Court noted that “[c]ounsel for the respondents have made clear that the
Law School will not in any way seek to abrogate this registration.” The Court
clarified that “all parties agree that DeFunis is now entitled to complete his legal
studies at the University of Washington and to receive his degree from that

institution. A determination by this Court of the legal issues tendered by the
parties is no longer necessary to compel that result, and could not serve to prevent
it.” Id. at 317.

The Court then stated: “In light of DeFunis' recent registration for the last
quarter of his final law school year, and the Law School's assurance that his
registration is fully effective, the insistent question again arises whether this case is
not moot, and to that question we now turn.” In discussing the issue of mootness,

the Supreme Court held:
The starting point for analysis is the familiar proposition that
‘federal courts are without power to decide questions that
cannot affect the rights of litigants in the case before them.’
North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404,
30 L.Ed.2d 413 (1971). The inability of the federal judiciary ‘to
review moot cases derives from the requirement of Art. III of
the Constitution under which the exercise of judicial power
depends upon the existence of a case or controversy.’ Liner v.
Jafco, Inc., 375 U.S. 301, 306 n. 3, 84 S.Ct. 391, 394, 11
L.Ed.2d 347 (1964); see also Powell v. McCormack, 395 U.S.
486, 496 n. 7, 89 S.Ct. 1944, 1950, 23 L.Ed.2d 491 (1969);
Sibron v. New York, 392 U.S. 40, 50 n. 8, 88 S.Ct. 1889, 1896,
20 L.Ed.2d 917 (1968). Although as a matter of Washington
state law it appears that this case would be saved from
mootness by ‘the great public interest in the continuing issues
raised by this appeal,’ 82 Wash.2d 11, 23 n. 6, 507 P.2d 1169,
1177 n. 6 (1973), the fact remains that under Art. III ‘(e)ven in
cases arising in the state courts, the question of mootness is a
federal one which a federal court must resolve before it assumes
jurisdiction.’ North Carolina v. Rice, supra, 404 U.S., at 246,
92 S.Ct., at 404.

Id. at 316. The Supreme Court noted that DeFunis did not file his suit as a class
action, and the only remedy he sought was an injunction commanding his
admission to the Law School. Because DeFunis was irrevocably admitted to the
Law School, the Supreme Court held that “[t]he controversy between the parties
has thus clearly ceased to be ‘definite and concrete’ and no longer ‘touch(es) the
legal relations of parties having adverse legal interests.” Id. at 317 (internal
citations omitted). Accordingly, the Supreme Court held that the case was moot
and dismissed the appeal.
The Supreme Court went further in its analysis and determined that neither
of the exceptions to the mootness doctrine existed in the case, i.e., that the
defendants voluntarily ceased the allegedly illegal conduct but could resume it at
any point in the future, and that the alleged wrong was “capable of repetition, yet
evading review.” Id.
The Supreme Court held that the “voluntary cessation” exception was

inapplicable in that case because “mootness in the present case depends not at all
upon a ‘voluntary cessation’ of the admissions practices that were the subject of
this litigation. It depends, instead, upon the simple fact that DeFunis is now in the

final quarter of the final year of his course of study, and the settled and
unchallenged policy of the Law School to permit him to complete the term for
which he is now enrolled.” In the present case, the Board has similarly committed
to allowing B.C. to continue his enrollment at McAdory and graduate with his

cohort.
The Plaintiff is wary of the Board’s footnote in which it stated that it
“further agrees to provide reasonable advance notice to Plaintiff should [any

unforeseen circumstances or developments] arise.” According to the Plaintiff, this
provision would allow the Board to terminate B.C.’s enrollment based on
subjective factors in its sole discretion. However, that argument is not well taken.
On the contrary, the footnote in question simply strengthens the Board’s

commitment to keep B.C. enrolled at McAdory by providing that it will give the
Plaintiff – and, by extension, Plaintiff’s counsel – advance notice should
unforeseen circumstances arise thereby giving him an opportunity to preemptively

challenge any such conduct and bring it to the Court’s attention. The Court notes
that, should such circumstances arise, the Plaintiff could bring this to the Court’s
attention. Nevertheless, the Court is not convinced that this provision gives the

Plaintiff a reasonable expectation that he will be subjected to the same action
again.
The Supreme Court also found that the issue in DeFunis was not “capable of

repetition, yet evading review” because “DeFunis will never again be required to
run the gantlet of the Law School's admission process….” Id. at 319. The Court
concluded that “[b]ecause the petitioner will complete his law school studies at the
end of the term for which he has now registered regardless of any decision this

Court might reach on the merits of this litigation, we conclude that the Court
cannot, consistently with the limitations of Art. III of the Constitution, consider the
substantive constitutional issues tendered by the parties.” Similarly, B.C. is on

track to graduate from McAdory in the spring of 2020. Once he graduates, he will
never again be faced with the process of enrolling in a public high school.3 Thus,
it is highly improbable that the Board’s action, i.e., denying enrollment to B.C., is
capable of repetition. This Court finds the facts of the present case to be nearly

identical to those in DeFunis.

3 In a footnote, the majority addressed the dissent’s concern that unpredictable events such as
illness or even academic failure might prevent DeFunis from graduating at the end of the term.
However, the Court held that “such speculative contingencies afford no basis for our passing on
the substantive issues (the petitioner) would have us decide in the absence of evidence that this is
a prospect of immediacy and reality.” DeFunis, 416 U.S. at 320 n. 5 (internal quotations and
citations omitted). The parties have not identified any such contingencies in this case.
Of course, there was no discussion in DeFunis of the issue of attorneys’ fees.
However, the Supreme Court has addressed this situation as well. In Lewis v.

Cont'l Bank Corp., 494 U.S. 472, 480 (1990), the underlying controversy had been
rendered moot by a change in the law while the litigation was in progress. The
Supreme Court stated:

An order vacating the judgment on grounds of mootness would
deprive Continental of its claim for attorney's fees under 42 U.S.C. §
1988 (assuming, arguendo, it would have such a claim), because such
fees are available only to a party that “prevails” by winning the relief
it seeks, see Rhodes v. Stewart, 488 U.S. 1, 109 S.Ct. 202, 102
L.Ed.2d 1 (1988); Hewitt v. Helms, 482 U.S. 755, 107 S.Ct. 2672, 96
L.Ed.2d 654 (1987). This interest in attorney's fees is, of course,
insufficient to create an Article III case or controversy where none
exists on the merits of the underlying claim, see Diamond v. Charles,
476 U.S. 54, 70–71, 106 S.Ct. 1697, 1707–08, 90 L.Ed.2d 48 (1986).
Where on the face of the record it appears that the only concrete
interest in the controversy has terminated, reasonable caution is
needed to be sure that mooted litigation is not pressed forward, and
unnecessary judicial pronouncements on even constitutional issues
obtained, solely in order to obtain reimbursement of sunk costs.

494 U.S. at 480 (emphasis added). Similarly, in Diamond v. Charles, 476 U.S. at
70-71, the Supreme Court held:
It is true that, were the Court to resolve the case on the merits against
appellees, appellees would no longer be “prevailing parties” entitled
to an award of fees under 42 U.S.C. § 1988. But the mere fact that
continued adjudication would provide a remedy for an injury that is
only a byproduct of the suit itself does not mean that the injury is
cognizable under Art. III.
This Court recognizes that B.C. would likely not be enrolled at McAdory
today were it not for the actions of Plaintiff’s counsel in filing the present lawsuit.4

However, the Supreme Court has rejected an entitlement to attorney’s fees under
the “‘catalyst theory,’ which posits that a plaintiff is a ‘prevailing party’ if it
achieves the desired result because the lawsuit brought about a voluntary change in

the defendant's conduct.” Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't
of Health & Human Res., 532 U.S. 598, 601 (2001). The Supreme Court
thouroughly discussed the merits of such a theory and explained their reasoning for
rejecting it. Id. at 608-610. However, the Court held that “‘[a] request for

attorney's fees should not result in a second major litigation[.]’” Id. at 609 quoting
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
Conclusion

Even assuming, arguendo, that the Board violated the McKinney-Vento Act
when it initially denied enrollment to B.C., that violation is not ongoing and has
been remedied by the Board’s actions and its continuing commitment to allow B.C.
to continue his studies at McAdory. The Plaintiff obtained the relief she sought,

and there is no longer a controversy between the parties. The trial of this matter
would be a waste of judicial resources because, as noted, the outcome will not

4 As noted above, the Board denies that it violated the McKinney-Vento Act or any other
provision of law and has maintained that it chose to admit B.C. only to avoid disrupting his
education and preventing lengthy and expensive litigation.
change anything with respect to the relationship between B.C. and the Board.
Accordingly, this Court finds that the Board’s decision to allow B.C. to enroll and

complete his final year of school at McAdory renders this case moot. Therefore,
the Court no longer has jurisdiction over this matter, and the case must be
dismissed. Further, Plaintiff’s counsel is not entitled to an award of attorney’s fees

pursuant to 28 U.S.C. § 1988.
For the foregoing reasons, the Board’s motion to dismiss (Doc. 16) is due to
be GRANTED and this case DISMISSED. As noted, the Board agreed to a
dismissal of this action without prejudice subject to refiling should the Board fail

to uphold its commitment regarding B.C.’s enrollment as described above.
Accordingly, this action is due to be dismissed without prejudice.
Based on the foregoing, the Board’s amended stipulation and motion to

dismiss (Doc. 17), is MOOT. Similarly, the Board’s motion for a protective order
(Doc. 21) is MOOT. The Plaintiff also filed a motion for a declaratory judgment
(Doc. 25) in which she sought a declaration that the Board violated the Act, along
with other injunctive relief and an award of attorney’s fees. That motion is due to

be DENIED.
The Court notes that it is making no determination as to whether an award of
attorney’s fees would be appropriate in the present case. Similarly, the Court is not

making a determination that a private right of action exists given the facts alleged
in the present case, or that the Plaintiff adequately plead facts that would entitle her
to relief. Rather, as explained above, this Court has determined only that it lacks
jurisdiction over the matter given the Board’s decision and continuing commitment
to allow B.C. to enroll at the school and complete his studies. A separate order
will be entered.

DONE and ORDERED January 14, 2020.

xo SZ C Sha
LILES C. BURKE
UNITED STATES DISTRICT JUDGE

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9989175. Public record. Not legal advice.