A recent Law 360 story by Matthew Santoni, “Pa. School Says Pro-Mask Parents Didn’t ‘Prevail’ For Fees” reports that a Pittsburgh-area school district said it should not have to pay the attorney fees for a group of pro-mask parents who got the schools to temporarily reinstate their mask policy because the Third Circuit eventually dismissed the case as moot and the parents did not "prevail" on the merits of their argument.  Attorneys for the Upper St. Clair School District told a Pennsylvania federal court that the parents had not won anything because the Third Circuit had only granted them a temporary order maintaining the status quo for masks until they could get to briefing and arguments on the merits, then dismissed the case as moot when the Centers for Disease Control and Prevention loosened the guidelines for masking amid falling COVID-19 cases.

"The temporary relief granted by the Third Circuit was not merit based and only served to preserve the status quo while the parties were given the opportunity to argue their respective positions. Prior to resolving the pending motions or even formally assigning the case to a merit panel, the case became moot," the district's brief said.  The district said the court should refuse the request from attorneys Kenneth Behrend and Kevin Miller for nearly $109,000 in fees and costs from the school district.

Behrend and Miller had represented a group of "John Doe" parents seeking to make the Upper St. Clair School District keep its mask mandate in place while the CDC still considered the area's COVID-19 transmission rates to be "high."  Making masks optional violated the rights of students with disabilities, who were more vulnerable to COVID-19 and would have to choose between risking the disease and missing in-person class with their peers, the parents said.  A district judge initially denied the Upper St. Clair parents' request for a temporary restraining order, but on an appeal to the Third Circuit, the appellate court issued an order that said the schools should keep masks until the case had been more fully briefed and argued.

That appeal was consolidated with a similar case involving the North Allegheny School District, where a different judge had granted the temporary restraining order, but the appellate court said both cases were moot in early March when the CDC issued updated mask guidance and changed how it measured levels of COVID-19 risk for communities.

Behrend and Miller argued on March 16 that the school districts should pay their legal fees because the temporary restoration of masking was exactly what the parents had sought.  But Upper St. Clair countered that the fees were not justified because the parents' attorneys had never fully argued the merits of their case or "won" anything, and even if they had, the fees they sought were excessive and not justified.  The district pointed to the 1990 Seventh Circuit decision in Libby v. Illinois High School Association, where a girl had gotten a temporary restraining order that enabled her to play in a soccer tournament that had only allowed boys, but her case was rendered moot after her team lost.

"A plaintiff who obtains provisional relief, such as a TRO, becomes a prevailing party only if that relief was a determination on the merits or acted as a catalyst to obtain concessions from the appellee, but not where the grant of provisional relief merely preserves the status quo," the district's brief said.  "The district court denied the TRO in this case and Third Circuit merely granted temporary relief pending disposition of opposing motions.  The plaintiffs in this case achieved even less of a procedural victory than Libby and are not prevailing parties."

The district said there was never a ruling on the merits — the case had been rendered moot by a change in the CDC's assessments and guidance that meant even if the number of COVID-19 cases in Allegheny County was still relatively the same, the "community transmission rate" went from "high" to "low."

"Plaintiffs based their request for relief on a legal theory — universal masking when community transmission is 'high' or 'substantial' being the only viable accommodation under the ADA for medically fragile students — that is no longer available," the brief said.  "The lack of a ruling and the unavailability of relief will not deter future lawless conduct and the award of fees serves no public purpose."

Even if the parents were considered the "prevailing" party, the district said making it pay their fees would be unjust because the schools had been stuck facing litigation no matter which way it went on masks once a statewide mandate was struck down.  In addition to the parents claiming their children would be harmed without masks, another group of parents had joined the suit arguing their children had disabilities that prevented them from wearing masks.

And the district questioned the fees being requested, arguing the plaintiffs' lawyers had not handled educational-law cases like this one until recently and had based their fees on their years of experience in the field of consumer protection.  The hours they allegedly spent on the case appear to have overlapped with their work on the North Allegheny case, where they were separately seeking over $70,000 in fees and costs, Upper St. Clair said.