Southern Atlantic Companies,, et al v. School Board of Orange County,

Filing

Opinion issued by court as to Appellants Edward Hutchins, Raymond McIntosh and Southern Atlantic Companies, LLC. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]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.

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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 noneconomic 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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