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No attorneys' fees in suit for exam accommodation.

Byline: Barry Bridges

An applicant who sought extra time and a low-distraction environment in taking the Rhode Island bar exam could not recover attorneys' fees in his action against the state Board of Bar Examiners, a three-judge panel of the 1st U.S. Circuit Court of Appeals has held.

Sitting by designation, U.S. District Court Judge Michael A. Ponsor from the District of Massachusetts wrote for the panel and found that plaintiff Anthony E. Sinapi, although successful in receiving an 11th-hour temporary restraining order granting the accommodations he sought, was not a "prevailing party" so as to shift fees under the Americans with Disabilities Act.

"Beyond a necessarily hasty review of the likelihood of Sinapi's success on the merits, the board never received in-depth assessment of its substantive arguments [against the plaintiff's claim for injunctive relief]," Ponsor wrote. "It would be unfair to deem Sinapi a 'prevailing' party in these circumstances and slap the board with a fee bill based on a finding it never received a fair opportunity to contest on a properly developed record."

The panel also ruled that the 11th Amendment and quasi-judicial immunity militated against the plaintiff's claims for monetary damages against the board members in their official and individual capacities.

The 25-page decision is Sinapi v. Rhode Island Board of Bar Examiners, et al., Lawyers Weekly No. 01-245-18. The full text of the ruling can be found here.

Representing the plaintiff was Richard A. Sinapi of Warwick. Assistant Attorney General Michael W. Field was on brief for the board. Neither responded to requests for comments on the holding by press time.

TRO granting accommodations

As he was preparing to sit for the Rhode Island and Massachusetts bar exams in the summer of 2015, Anthony Sinapi sought testing accommodations due to his attention deficit/hyperactivity disorder and anxiety. He asked for 50 percent more time, a low-distraction environment, and permission to take his prescription medications into the testing room.

Though the Massachusetts Board of Bar Examiners approved the accommodations, the Rhode Island board declined to do so, noting in a July 16 letter that Sinapi's request "was not supported by medical documentation."

On July 22, six days before the exam, Sinapi filed an "emergency petition for review and summary reversal" of the board's decision with the Rhode Island Supreme Court as directed by Rule 4(b) of the Bar Examiners Rules.

Chief Justice Paul A. Suttell denied the request for relief on July 24, and Sinapi immediately filed suit in federal court against members of the board in both their official and individual capacities. He sought a TRO compelling the board to provide accommodations, albeit with a reduced request of 25 percent more time, as well as money damages for disability discrimination.

On the day before the exam, a U.S. District Court judge granted Sinapi's motion for a TRO and ordered that he be provided with the requested accommodations.

In that ruling, the judge found that the balance of hardship weighed in favor of the plaintiff; that Sinapi would be irreparably harmed without the accommodations; and that he had demonstrated likelihood of success on the merits, particularly noting that Massachusetts had granted the requests.

Thus, on July 28, Sinapi sat for the Rhode Island exam with accommodations.

In the meantime, the disability discrimination claim moved forward, but in April 2016, the District Court granted the board's motion to dismiss, finding the plaintiff's complaint against the members was foreclosed by the 11th Amendment and quasi-judicial immunity.

However, the District Court granted Sinapi's motion for almost $20,000 in attorneys' fees and costs, reasoning that he was a "prevailing party" under the fee-shifting provisions of the ADA since he was successful in securing a TRO.

Before the 1st Circuit was the board's appeal on the fees and Sinapi's cross-appeal of the dismissal of his discrimination suit.

No examination of merits

At the outset, the 1st Circuit panel dispensed with a threshold issue raised by the board: whether the District Court lacked subject matter jurisdiction under the Rooker-Feldman doctrine, which stands for the idea that only the U.S. Supreme Court, as opposed to lower federal courts, has the power to reverse or modify final state court judgments.

"Courts of appeal generally have an obligation to address any question of Article III jurisdiction before addressing the merits of an appeal," Ponsor wrote. "The Rooker-Feldman doctrine, however, is based on 28 U.S.C. 1257 and implicates statutory, not Article III, jurisdiction."

Ponsor further explained that, even if Justice Suttell's order was a "final" ruling, circuit precedent allows the court to "step around" statutory jurisdictional concerns when "an alternative substantive ruling provides a simpler and more direct resolution of an appeal."

With the present case in that category, the jurisdictional hurdle was cleared.

Therefore moving to the substance of the appeal, Ponsor determined that Sinapi was not a "prevailing party" under the ADA for purposes of attorneys' fees.

With a plaintiff not able to rely on a "transient victory at the threshold" to recoup fees, the panel noted that there must be at least some relief based on the merits of the claim.

"The preliminary proceedings in the case before us were 'necessarily hasty and abbreviated,'" Ponsor wrote. "While it is true that the District Court made the required threshold assessment of a likelihood of success on the merits, the precipitant circumstances permitted no thorough examination of the merits of this issue prior to the issuance of the TRO."

Though Sinapi "realized his threshold goal of getting the accommodations," his "initial victory was ephemeral," Ponsor continued.

He concluded that because the substance of Sinapi's claim for injunctive relief "was never addressed in any depth, despite the board's vigorous argument that the claim was fatally flawed, and no merits-based decision ever entered in his favor, Sinapi never achieved prevailing party status, and the award of fees was unsupported."

But the 1st Circuit set aside any notion that preliminary injunctive relief, unless explicitly followed by a favorable judgment on the merits, can never provide the basis for an attorneys' fee award.

"Here, however, where the initial assessment of likelihood of success on the merits was so pressured and necessarily superficial with the bar exam only hours away and where the ultimate issue of Sinapi's entitlement to injunctive relief was never addressed substantively, the fee award based on Sinapi's supposed 'prevailing party' status was not justified," Ponsor wrote.

Board immunity

In the second prong of the appeal, the District Court judge's decision to toss Sinapi's claims seeking monetary damages against the board members under 42 U.S.C. 1983 and Title II of the ADA was affirmed.

Their official actions were protected by the 11th Amendment, which gives states immunity from federal suits brought by its citizens.

"There can be no question that the board, including its members in their official capacities, stands in the shoes of Rhode Island itself, as an arm of the state," Ponsor wrote. "Thus, without more, the board and its members in their official capacities would appear to be protected by the Eleventh Amendment from any suits for money damages."

As for that something "more," Ponsor explained that "[n]o immunity protects states from a claim for monetary damages based on actual violations of the Fourteenth Amendment."

However, the complaint here did not demonstrate that Sinapi incurred "actual" due process violations. To the contrary, Ponsor said the plaintiff offered "less [than] compelling" complaints: a delay in reviewing his application for accommodation; failure to disclose the reasons for his application's denial; failure to provide for timely reconsideration; and failure to provide notice of the mechanism of appeal.

And further, the undisputed facts of the amended complaint cut against Sinapi's arguments, the judge added.

"This process could possibly have been improved; most processes can be. But the standard here is relatively modest [since] 'professional licensing decisions are subject only to rational basis review,'" Ponsor said. "We are far from the arena of strict scrutiny, and the process Sinapi received, even accepting the allegations in his complaint, falls well within the basic constitutional requirements."

Finally, the claims against the members in their individual capacities were precluded by quasi-judicial immunity. Consistent with the standards established by the 1st Circuit almost 30 years ago in Bettencourt v. Board of Registration in Medicine, Ponsor described the role of board members as functionally comparable to a judge, and said that denying an accommodation request from a bar applicant is likely to prompt a litigious reaction.

"The need for quasi-judicial protection of the board member is almost painfully obvious [and] is simply essential if the board is to function effectively," Ponsor wrote.

CASE: Sinapi v. Rhode Island Board of Bar Examiners, et al., Lawyers Weekly No. 01-245-18

COURT: 1st U.S. Circuit Court of Appeals

ISSUE: Were attorneys' fees properly awarded to a plaintiff who secured a TRO granting him accommodations in taking the Rhode Island bar exam?

DECISION: No, because the plaintiff could not be considered a "prevailing party" under the ADA

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Author:Bridges, Barry
Publication:Rhode Island Lawyers Weekly
Date:Dec 20, 2018
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