Garcia v. Yonkers School Dist.

• Decision Date: 01 April 2009
• Docket Number: Docket No. 07-3167-cv.
• Citation: 561 F.3d 97
• Parties: Carlos GARCIA, on his own behalf and on behalf of all those similarly situated, Bruce Merlo, on his own behalf and on behalf of all those similarly situated, and Lycelin Polanco, on her own behalf and on behalf of all those similarly situated, Plaintiffs-Appellees, v. YONKERS SCHOOL DISTRICT, Angelo Petrone, and Rocco Grassi, Defendants-Appellants.<SMALL><SUP>*</SUP></SMALL>
• Court: U.S. Court of Appeals — Second Circuit

561 F.3d 97

Carlos GARCIA, on his own behalf and on behalf of all those similarly situated, Bruce Merlo, on his own behalf and on behalf of all those similarly situated, and Lycelin Polanco, on her own behalf and on behalf of all those similarly situated, Plaintiffs-Appellees, v. YONKERS SCHOOL DISTRICT, Angelo Petrone, and Rocco Grassi, Defendants-Appellants.^*

Docket No. 07-3167-cv.

United States Court of Appeals, Second Circuit.

Argued: November 14, 2008.

Decided: April 1, 2009.

Christopher D. Watkins (Michael H. Sussman, on the brief), Sussman & Watkins, Goshen, New York, for plaintiffs-appellees.

James P. Drohan (Lawrence W. Thomas, on the brief), Donoghue, Thomas, Auslander & Drohan, LLP, Hopewell Junction, New York, for defendants-appellants.

Before: MINER, SOTOMAYOR, and KATZMANN, Circuit Judges.

MINER, Circuit Judge:

Defendants-appellants Yonkers School District, Superintendent Angelo Petrone, and Principal Rocco Grassi (collectively, the "School District" or "Defendants") appeal from a judgment of the United States District Court for the Southern District of New York (Robinson, J.) granting a motion filed by counsel for the plaintiffs-appellees, Carlos Garcia, Bruce Merlo, and Lycelin Polanco (the "Individual Students"), on their behalf and on behalf of all similarly situated persons (collectively, the "Students" or "Plaintiffs"), seeking attorney's fees. The District Court found that (1) the School District received adequate notice prior to the court's oral grant of a temporary restraining order and preliminary injunction; (2) the Students were prevailing parties under 42 U.S.C. § 1988(b) for purposes of awarding attorney's fees; and (3) the amount of time spent on the case and the hourly rate proposed by the Students' counsel were appropriate and reasonable. For the reasons that follow, we reverse the judgment of the District Court granting attorney's fees.

I. BACKGROUND

On September 10, 2004, the Individual Students and a number of other students walked out of Gorton High School in Yonkers, New York, during school hours and headed for Yonkers City Hall. At City Hall, the Students protested recent cuts to the budget of the Yonkers School District, the budget having been reduced by $26 million for the 2004-2005 school year. Apparently, a similar demonstration had proved effective at staunching the previous year's cuts to the Yonkers School District budget. According to the plaintiffs, none of the students who walked out of Gorton High School at the previous year's demonstration were penalized for their act of protest, although they had violated the rules against leaving school grounds during school hours. The Students, however, were classified as Level IV offenders for their departure from the school grounds. Level IV is the most serious disciplinary status and is reserved for those who engage in "violent" or "dangerous" conduct. Based on this classification, the School District imposed upon the Students a five-day period of suspension.

On September 15, 2004, after having served two of the five days' suspension, the Students filed a complaint and an order to show cause in the District Court citing violations of their First Amendment rights and requesting, inter alia, that the court "temporarily, preliminarily and permanently enjoin [the School District]" from imposing the suspensions on them. A hearing was scheduled to be held on the noon of that same day to address the "order to show cause or temporary restraining order brought on by Garcia, et al." The School District was notified of the hearing by telephone that morning. As the School District's counsel was entering the court to attend the hearing, he was provided with the Students' memorandum of law in support of the temporary restraining order and preliminary injunction, excerpts from the Yonkers Public School Code of Conduct (the "Code of Conduct"), one of the disciplinary review forms utilized by the School District in connection with the suspensions, and ten affidavits. The hearing commenced at noon, and the School District's counsel noted at the beginning of his statement: "I haven't had a chance to review — completely review the papers yet, but I do have some comments here." The District Court acknowledged the lack of preparation time afforded to the School District's counsel in its colloquy with counsel: "And I know you haven't had a chance to read [the affidavits] fully." Both defendants Superintendent Angelo Petrone and Principal Rocco Grassi were present at the hearing.

The District Court focused mainly on the punishment imposed on the Students for their actions in derogation of the Code of Conduct. The District Court noted that the Students were punished for a Level IV disciplinary action despite the Code of Conduct providing for a Level II — and, at most, a Level III — disciplinary action for a student leaving school grounds during school hours. The District Court summarized its concern in a rhetorical question:

[Level IV punishes] [u]se of a weapon. Possession of a weapon.... Assault. Menacing. Selling, giving or delivering alcoholic beverage.... Defacing, vandalizing or destroying property. Possession or use of fireworks, poppers, smoke or stink bombs, et cetera..... Engaging in the offense of retaliation against any school employee. Any felony as defined by the criminal justice system. Bomb threats or terrorist threats. Sexual offenses. Theft, burglary. False alarm; that is, falsely activating a fire alarm. How is this [walk out by the Students] a Level IV?

In response, the School District's counsel seemed to concede that the Students' conduct did not amount to a Level IV violation. Later during the hearing, however, Principal Rocco Grassi explained that the Students' walk-out rose to the level of "violent and dangerous" conduct because of the confluence of several factors: (1) the Students walked out despite repeated warnings not to do so; (2) the Students "push[ed] past security" and "plac[ed] themselves in danger out on the street"; and (3) several of the students who walked out returned and "assembled alongside of the [school] and were chanting ... to their fellow students: `Break out.'"

Unpersuaded by the testimony of Principal Rocco Grassi, the District Court found that the Students had shown a likelihood of success on their First Amendment claim that they were improperly punished for exercising protected speech.¹ The District Court suggested, however, that the School District could prevail if it could present evidence that the imposition of a Level IV disciplinary action applied to all walk-outs and not only to the Students' walk-out in their exercise of protected speech. In an apparent conclusion, the District Court stated: "So I'm going to grant the temporary restraining order. Here is what I will do. And preliminary injunction. I will sign it in a few moments." But the District Court then immediately stated that it would provide an opportunity to the School District to put forth evidence at another hearing, if requested, "early next week" so that "we can ... get a definitive ruling on this quickly." At no time did the District Court make written findings or sign a preliminary injunction or temporary restraining order.

On September 22, 2004, the School District informed the District Court that it "does not request a hearing" but would "request the opportunity to submit responsive papers on the [Students'] application for an injunction." Thereafter, the School District filed a memorandum in opposition to the Students' request for a temporary restraining order and preliminary injunction, and the Students filed a reply memorandum in response to the School District's opposing memorandum. Subsequent to the hearing, the Students were not subject to continued or further suspensions relating to the September 10, 2004 protest beyond the two days served; however, the Level IV notation remained on the Students' disciplinary records.

By mid-year of 2006, the District Court still had not made a ruling on the arguments made in the parties' memoranda. In June and July of 2006, after the Students graduated from Gorton High School, counsel for the Students wrote the School District, asking it to "resolve this case." Counsel did not receive a response from the School District. On December 7, 2006, counsel filed with the District Court a notice of a motion for attorney's fees and costs, claiming that he was entitled to fees and costs because the Students were "prevailing parties" under 42 U.S.C. § 1988. Counsel based his argument on the theory that the District Court's grant of the temporary restraining order "ripen[ed] into a preliminary injunction." After submission of a written opposition by the School District and a reply by counsel, the District Court granted counsel's application for attorney's fees and costs in a published decision and order. See Garcia v. Yonkers Sch. Dist., 499 F.Supp.2d 421, 426 (S.D.N.Y.2007).

In its published decision and order, the District Court stated that it had granted the Students' request for a temporary restraining order and preliminary injunction at the September 15, 2004 hearing. Id. at 423-24. In so concluding, the District Court referred to its own statement at the hearing: "I'm going to grant the temporary restraining order. Here is what I will do. And preliminary injunction. I will sign it in a few moments." Id. at 424. The District Court then explained that it was not precluded by Fed.R.Civ.P. 65(a)(1) from entering a preliminary injunction against the School District because the School District had adequate notice and a "fair opportunity" to oppose the request for a preliminary injunction at the September 15, 2004 hearing. Id. The District Court referred to the School District's counsel's appearance at the hearing "accompanied by named Defendants Petrone and Grassi" and noted that the School District "presented an argument in support of [its] position." Id.

Having...