Today’s Burning Question: Should The Loser Pay?

Today’s Burning Question: If someone files suit against a fire department and loses, shouldn’t they have to pay the city’s legal bills? I mean after all, its only fair. Someone who chooses to sue takes their chances, and should have to face the consequences.

Answer: That is not how our legal system works, and when you think it through with a sober mind, I am not sure you would think it was such a good idea. Let’s use a recent case out of Florida to better understand the issues.

Bradley Batz was the fire chief in Sebring, Florida. On May 10, 2016, a small fire broke out in a historic one-hundred-year-old, four-story wood frame hotel, the Kenilworth Lodge. A follow-up inspection revealed a number of code issues including a non-functioning sprinkler system, a non-functioning alarm systems, and numerous fire hazards.

Chief Batz, who also served as fire marshal, did his best to compel the hotel to bring itself into compliance with Florida’s Fire Prevention Code, but he quickly found himself at odds with city officials. As the fire code problems moved toward condemnation proceedings, pressure on Chief Batz worsened prompting him to complain “about the city’s lack of support and indeed its obstructive counter-actions.”

As explained in a decision in his case:

  • On November 7, 2016 the city placed the Plaintiff [Chief Batz] on administrative leave.
  • The mayor recommended the Plaintiff’s termination because of complaints from business owners and firefighter employees about his demeanor and attitude.
  • There is no written record of these complaints.
  • The mayor referenced a recent incident between the Plaintiff and Council Member Carlisle as an additional example of the Plaintiff’s negative behavior.
  • The mayor also referenced the Plaintiff’s own complaints about the city and its lack of support.
  • The city denies any relationship between the Plaintiff’s termination and the hotel matter.
  • The Plaintiff sued the city alleging that his termination was in substance retaliation for seeking the hotel’s code compliance and for complaining about the interference in that effort.
  • The specific complaints subject of this lawsuit are his August 15, 2016 email and those he raised orally at the August 23rd and September 22nd inquiry meetings.
  • Those complaints constitute speech that is protected both constitutionally and by Florida statute, he argues.

The suit was filed in US District Court for the Southern District of Florida. Unfortunately for Chief Batz, and despite the fact that the essence of what he alleged had actually occurred, the trial judge granted summary judgment in favor of the city. The city then moved for an award of attorneys’ fees totaling $100,328.50. In deciding the city’s motion, Magistrate Judge Shaniek M. Maynard explained the grounds upon which attorneys’ fees can be awarded in a case such as this. While the following excerpts are admittedly lengthy, they are instructive in explaining the court’s reasoning:

  • [T]he court may award the defendant attorney fees only if the plaintiff’s § 1983 lawsuit was “frivolous, unreasonable, or without foundation”. See Sullivan v. Sch. Bd. of Pinellas County, 773 F.2d 1182, 1188 (11th Cir. 1985) (citing the seminal case of Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412 (1978)).
  • The purpose of the Christiansburg standard is to prevent the fee-shifting statute of § 1988 from discouraging plaintiffs from bringing only “air-tight” § 1983 claims.
  • The Christiansburg standard requires a court to consider a case objectively.
  • A plaintiff’s subjective intent—that is, whether a plaintiff subjectively perceived his lawsuit as frivolous or not—is irrelevant.
  • As for the degree of frivolousness, the Christiansburg standard sets a high bar.
  • It requires frivolousness that falls just short of subjective bad faith.
  • It is not enough that the plaintiff lost on the merits.
  • Indeed the case law cautions courts not to measure frivolousness with the benefit of hindsight on a post-hoc basis nor to assume that a case is frivolous merely because the plaintiff lost.
  • Accommodation must be made for the unpredictable course of litigation.
  • The way in which the litigation played out can be informative, however.
  • One point of inquiry is (1) whether the plaintiff’s claims for relief were fact-specific and whether the plaintiff presented substantial evidence and legal arguments in support.
  • Two additional points of inquiry are (2) the amount of effort that the defendant expended to successfully defend itself against the litigation and (3) how carefully and attentively the court considered the plaintiff’s claims in the dispositive ruling.
  • The Christiansburg standard is met when a plaintiff wholly fails to substantiate his claims or persists in a legal argument despite learning of on-point and binding precedent that is clearly to the contrary.
  • To determine whether the instant litigation meets the Christiansburg standard of frivolousness, this Court reviews the evidence in the light most favorable to the plaintiff.
  • The subject of this lawsuit is the decision by the City of Sebring to fire the Plaintiff who at the time had served as the chief of its fire department for the prior ten years.
  • He had worked for the fire department since 1990, all told.
  • The city’s mayor conceded at deposition that the Plaintiff’s technical knowledge of the fire and life safety codes is probably best in the state.
  • His annual performance reviews consistently were laudatory.
  • What precipitated the Plaintiff’s termination was a dispute that arose between him and the city over what to do about the historic hotel, Kenilworth Lodge.
  • In its summary judgment order, the District Court engaged in an in-depth legal analysis to determine whether the evidence shows any violation of that [whistleblower] statute under its specific definitions.
  • There is no need to repeat that lengthy analysis here. Instead it suffices for present purposes to show how the Plaintiff at least did present reasonable … claims and did proffer evidence in support of them, even if ultimately he did not prevail on them.
  • The foregoing shows how the Plaintiff’s free speech retaliation claims were not frivolous, unreasonable, or without foundation.
  • To the contrary, the Plaintiff’s claims for relief involved a matter of at least some public concern, that rested on a substantial body of evidence, and were governed by complex legal standards.
  • Underlying this litigation is the Plaintiff’s attempt as the city’s Fire Chief to compel a specific hotel to improve fire hazard mitigation.
  • There is no dispute that the hotel fell short of the fire safety codes.
  • This case also involves alleged interference by certain city officials in that process where that interference might have benefitted a council member.
  • Despite that interference, the hotel still was condemned. Soon afterwards, however, the city fired the Plaintiff for reasons that appear inconsistent, at least superficially, to what his generally satisfactory and well-established employment record with the city’s fire department including the ten years as its Fire Chief.
  • Ultimately the Plaintiff did not prevail on any of his free speech retaliation claims.
  • However both the length of the District Court’s summary judgment ruling—at 49 pages long—and the depth of its analyses imply reasonable claims for relief.
  • That ruling, in turn, synthesized down the 83 pages of summary judgment briefing and 700 pages of exhibits.
  • The amount of the attorney fees—$100,328.50—that the Defendant incurred in defending itself against those claims likewise corroborates the reasonableness of the litigation by further showing how its resolution entailed careful attention and review.
  • That the Plaintiff ultimately would not prevail on his claims was not necessarily evident when he first filed his lawsuit.
  • Nor did the Plaintiff unnecessarily prolong the litigation. The summary judgment analysis depended on discovery that was gathered during the pre-trial stage.
  • Such important, dispositive discovery included affidavits from and depositions of the various involved city officials.
  • Consequently this case does not meet the Christiansburg standard for shifting the Defendant’s attorney fee to the Plaintiff to pay.

Here is a copy of the decision:

So in the end, the question is: do we as a society want to discourage people like Chief Batz from bringing to light what they perceive as misconduct by elected and appointed officials? By making them pay the other side’s attorneys’ fees we are penalizing them if they lose. If we do that, why would anyone risk bringing the underlying misconduct to light? The risk is too great.

Discouraging such suits in turn will encourage the kind of political interference that was alleged to have occurred in Sebring, to continue unchecked. On the other hand, we do not want to encourage the filing of frivolous lawsuits. Under the Christianburg Standard, if someone does file a frivolous case, the court would have the ability to award attorneys’ fees to the prevailing party. A frivolous finding would have to be premised on objective bad faith, or (as the decision says) “frivolousness that falls just short of subjective bad faith.”

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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