Panel Boosts Suit by Man Expelled From Valdosta State After Parking Deck Complaints

January 14, 2015

By Alyson Palmer at Daily Report

An Atlanta-based federal appeals court panel has given a boost to free speech claims by a former Valdosta State University student who was expelled after he spoke out against the university president’s plans for a parking deck.

Thomas Hayden Barnes, who since has completed law school and been admitted to the bar in Maryland, already won $50,000 at trial on his claim that the university president violated his due process rights. Under Monday’s decision by the U.S. Court of Appeals for the Eleventh Circuit, Barnes will net more than the $55,729 in attorney fees and expenses he was to receive under a lower court order and even could recover more in damages on a separate First Amendment claim, although lawyers for both sides on Tuesday hinted at the possibility of a settlement.

Barnes’ cause in the latest round of litigation was backed by a wide range of groups, from the liberal American Civil Liberties Union of Georgia to the conservative Southeastern Legal Foundation. They said they were concerned about the trial judge’s award of so-called “reverse fees” to some of the defendants on the basis that some of Barnes’ claims were frivolous, canceling out much of Barnes’ award.

One of those groups, the Foundation for Individual Rights in Education, hailed the Eleventh Circuit’s latest ruling in a press release, quoting its president, Greg Lukianoff, as saying that “once again, a federal appeals court has stepped in to ensure that college administrators can’t get away with trampling students’ well-established rights.”

Monday’s decision directs a district court judge to recalculate the reverse fee award to remove all fees except those incurred solely as a result of claims against two of the eight defendants sued by Barnes. The unsigned, unpublished decision emphasized that defendants to civil rights cases have a higher burden than plaintiffs in recovering attorney fees.

As set forth in an earlier district court order in the case, Barnes was a student at Valdosta State in 2007 when the student newspaper ran a story about plans to construct a parking garage on campus. Barnes responded by posting flyers around campus expressing concern about environmental damage the garage might cause. He also created a collage protesting the project, including the words “Zaccari Memorial Parking Garage,” which he posted on his Facebook page, a reference to then-University President Ronald Zaccari. Barnes also called and emailed members of the state Board of Regents in advance of a vote on the proposed parking garage to explain his opposition.

Zaccari told others he felt threatened, particularly in the wake of deadly shootings that had just taken place at Virginia Tech. On May 7, 2007, Barnes received a notice under his dorm room door, signed by Zaccari, saying he had been administratively withdrawn from the school.

Barnes filed a federal lawsuit against Valdosta State, the Board of Regents, Zaccari and several other individuals, alleging breach of contract and violations of his First and Fourteenth Amendment rights and the Americans With Disabilities Act. U.S. District Judge Charles Pannell Jr. dismissed some claims but allowed others to proceed, granting Barnes summary judgment on his due process claim against Zaccari. After a trip to the Eleventh Circuit, the case was transferred to the Middle District of Georgia for a trial on damages on that claim. A jury awarded Barnes $50,000 in damages.

Under a statute that allows the prevailing party in a civil rights case to seek fees, Barnes’ lawyers—attorneys at Davis Wright Tremaine in Washington, Atlanta lawyer Cary Wiggins and an associate and Atlanta lawyer Darl Champion—requested an award of $1,883,412 in fees and $76,230 in expenses, plus $2,918 in expenses incurred directly by Barnes.

Senior U.S. District Judge Hugh Lawson reduced some of the requested hourly rates. The judge then reduced the total fee amount by about 60 percent, based on Barnes having recovered on only one claim against one defendant at a modest dollar amount. Based on those calculations, the judge awarded Barnes $407,242 in fees and $68,596 in expenses.

At the same time, the judge granted the attorney fee requests of some of the defendants on the basis that some of Barnes’ claims were frivolous, for a total reverse fees and expenses award of $420,109. For example, Lawson said that claims against Leah McMillan, a counselor who saw Barnes on campus, were frivolous because she voiced opposition to Zaccari’s opinion that Barnes presented a threat. Lawson said the case against Laverne Gaskins, the university’s in-house attorney, was frivolous because she consistently warned Zaccari about the ramifications if he decided to withdraw Barnes from school.

Barnes appealed both the fee determinations and Pannell’s elimination of his First Amendment retaliation claim. That appeal was assigned to Eleventh Circuit Judge Adalberto Jordan and two visiting judges, Senior Fifth Circuit Judge Fortunato Benavides and Senior U.S. District Judge Harvey Bartle III of the Eastern District of Pennsylvania.

In Monday’s ruling, the panel revived Barnes’ First Amendment retaliation claims against Zaccari. But the panel said the district court had to revisit that claim to determine whether Barnes had enough evidence to support it. Pannell had said Barnes’ complaint included only a conspiracy claim of retaliation, which he said was not supported by the evidence, but the appeals panel concluded that Pannell read the complaint too narrowly.

With the retaliation claim revived, the panel said, Lawson will have to recalculate the attorney fee award to Barnes after he addresses that claim. The panel said Lawson didn’t err in setting a maximum hourly rate of $315 for Barnes’ attorneys. But the panel cautioned that on remand Lawson must not do what Barnes’ lawyers say he did the first time around: penalize them doubly by reducing the requested fee award because they were unsuccessful on some claims, when they already had reduced the number of hours submitted to the court in part based on their lack of success on some claims.

Turning to the reverse fee award, the panel said that Lawson failed to look at the evidence in the light most favorable to Barnes. Looking at the evidence in that light, said the panel, it was not unreasonable for Barnes to believe that four of the defendants—the campus counselor, the school attorney, the vice president of student affairs and the dean of students—participated with Zaccari in having Barnes expelled, and thus his claims against them were not frivolous. The panel said Barnes’ appellate brief had not challenged specifically Lawson’s ruling that his claims against the university itself and its counseling center director were frivolous, meaning on remand the judge must recalculate the attorney fee award against Barnes to reflect only those fees that were incurred solely because of the claims against those two defendants.

Robert Corn-Revere of Davis Wright Tremaine, who argued the appeal for Barnes, said it’s too early to tell what will happen next in the case. He added that although a jury determined that $50,000 was fair compensation for Barnes’ out-of-pocket costs, a new proceeding on Barnes’ First Amendment claim could assess damages for such things as emotional anguish and possible punitive damages.

“We are still processing the opinion, and the parties have not yet had a chance to confer about the prospect of settlement, which could possibly preclude future proceedings,” Corn-Revere said in an email.

David Will of Lawrenceville, who represents Zaccari, the Board of Regents, Valdosta State and several other defendants, also seemed to suggest a deal may be in the cards. “While it is possible that there could be additional damages to the plaintiff,” Will said in an email, “I think it more likely that the case will be resolved without the necessity of a retrial.”

Will said his clients were “obviously disappointed” in the ruling. “Dr. Zaccari is steadfast in his belief that his actions were lawful, that he did not retaliate against Mr. Barnes in any way and that his actions were designed to protect the safety of the VSU campus community,” said Will.

Barnes went on to graduate from Kennesaw State University and received a law degree from the University of Baltimore. He said in an email on Tuesday that he was working as a law clerk for a Columbus firm and planned to sit for the February bar examination in Georgia.

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Schools: Valdosta State University