Marvin Gerber v. Henry Herskovitz

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0098n.06
Case Nos. 22-1075/1097/1131
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
MARVIN GERBER (22-1097/1131); DR. MIRIAM ) Feb 22, 2023
BRYSK (22-1075/1131), ) DEBORAH S. HUNT, Clerk
)
Plaintiffs - Appellants/Cross - Appellees,
)
) ON APPEAL FROM THE
v.
) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
HENRY HERSKOVITZ; GLORIA HARB; TOM
) DISTRICT OF MICHIGAN
SAFFOLD; RUDY LIST; CHRIS MARK,
)
Defendants - Appellees/Cross - Appellants. ) OPINION
)
Before: SUTTON, Chief Judge; CLAY and McKEAGUE, Circuit Judges.
SUTTON, Chief Judge. Congregants of the Beth Israel Synagogue in Ann Arbor wanted
to put a stop to the anti-Israel picketing of their Saturday worship services. They sued the
protesters, city, and city officials. After we affirmed the dismissal of the complaint, the district
court granted attorney’s fees to the protester defendants under 42 U.S.C. § 1988. Finding no abuse
of discretion, we affirm.
I.
After enduring sixteen years of anti-Israel picketing at their weekly worship service,
congregants of the Beth Israel Synagogue had had enough. Two congregants, Marvin Gerber and
Dr. Miriam Brysk, filed a lawsuit, seeking to enjoin the protests.
Case Nos. 22-1075/1097/1131, Gerber, et al. v. Herskovitz, et al.
The district court dismissed their complaint for lack of standing. Gerber v. Herskovitz,
No. 19-13726, 2020 WL 4816145, at *4 (E.D. Mich. Aug. 19, 2020). We affirmed, but on different
grounds. Gerber v. Herskovitz, 14 F.4th 500, 512 (6th Cir. 2021), cert. denied, 142 S. Ct. 1369
(2022), and cert. denied, 142 S. Ct. 2714 (2022). We held that the congregants had standing, but
the complaint nevertheless failed to state a claim under Civil Rule 12(b)(6). Id. at 506, 512. Judge
Clay concurred. He reasoned that the congregants lacked standing because they had not shown
the invasion of a legally protected interest and they lacked even “a colorable legal claim” against
the protesters. Id. at 514–15 (Clay, J., concurring).
Back in the district court, the prevailing protesters moved for attorney’s fees under
42 U.S.C. § 1988 and for sanctions under 28 U.S.C. § 1927 and the court’s inherent authority. The
district court granted the motion in part, awarding $158,721.75 in attorney’s fees. The two
congregants separately appealed, and the protesters filed a protective cross-appeal.
II.
A court may award reasonable attorney’s fees to a prevailing civil rights defendant after
finding the lawsuit “frivolous, unreasonable, or without foundation.” Christiansburg Garment Co.
v. EEOC, 434 U.S. 412, 421 (1978); see also 42 U.S.C. § 1988; Hughes v. Rowe, 449 U.S. 5, 14
(1980) (per curiam) (applying Christiansburg to § 1983 actions). Two competing principles guide
today’s review. On the one hand, this court reviews fee awards for abuse of discretion. Garner v.
Cuyahoga Cnty. Juv. Ct., 554 F.3d 624, 634 (6th Cir. 2009). On the other hand, awarding fees to
a prevailing civil rights defendant is “an extreme sanction, and must be limited to truly egregious
cases of misconduct.” Jones v. Cont’l Corp., 789 F.2d 1225, 1232 (6th Cir. 1986).
(As a side note, the district court awarded fees under § 1988 jointly and severally against
the congregants and one of their attorneys, Marc Susselman. An award under § 1988 “may only
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be charged against the losing party,” however, “not the party’s attorney.” Smith v. Detroit Fed’n
of Tchrs. Loc. 231, 829 F.2d 1370, 1374 n.1 (6th Cir. 1987); see also Roadway Express, Inc. v.
Piper, 447 U.S. 752, 761 & n.9 (1980). But the congregants opted not to raise this non-
jurisdictional issue on appeal, leaving us to accept the parties’ framing of the issue.)
The district court did not abuse its discretion by awarding fees to the prevailing protesters.
The congregants brought seven federal civil rights claims against the protesters. Each claim
plainly lacked one or more elements required under settled precedent. The § 1981 claim lacked
any allegation that the congregants “lost out on the benefit of any ‘law or proceeding.’” Gerber,
14 F.4th at 510. The § 1982 claim did not implicate a property interest, because the protesters
never prevented the congregants “from using their synagogue.” Id. at 511. The § 1983 claim
lacked any semblance of state action. Id. So too for the § 1985(3) claim. Id. And the civil
conspiracy claims under §§ 1982, 1983, and 1985(3) failed in short order because the congregants
did not plead any “facts showing a single plan or a conspiratorial objective to deprive them of their
rights.” Id.
These kinds of unsupported claims permitted the district court to treat them as frivolous
under Christiansburg. “[U]nambiguous” precedent “clearly barred” each civil rights claim. Smith
v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir. 1985). Through even the most cursory legal
research, the congregants would have found that “no case law supported [their] arguments under
§§ [1981, 1982, 1983, and] 1985.” Royal Oak Ent., LLC v. City of Royal Oak, 316 F. App’x 482,
487 (6th Cir. 2009). And the congregants did not identify any reasonable basis for expanding the
well-settled precedent interpreting and applying these statutes. Nor did complicating questions of
fact arise during the pendency of the case. See Lowery v. Jefferson Cnty. Bd. of Educ., 586 F.3d
427, 438 (6th Cir. 2009) (finding “legitimate” questions of fact and law precluded fee award).
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With no factual or legal foundation to speak of, the civil rights claims against the protesters meet
the Christiansburg standard.
The congregants offer a medley of counterarguments.
They start with the standard of review, arguing that this court should review the district
court’s legal conclusions anew. But the abuse of discretion standard already captures this point,
because “[m]istakes of law by definition constitute an abuse of discretion.” Sisters for Life, Inc.
v. Louisville-Jefferson County, 56 F.4th 400, 403 (6th Cir. 2022).
What of the broader First Amendment issues implicated by the complaint, the congregants
ask? The protesters’ defense that their conduct enjoyed First Amendment protection, to be sure,
“require[d] a context-driven examination of complex constitutional doctrine.” Gerber, 14 F.4th at
508. But that does not help the congregants. Our First Amendment analysis largely centered on
the claims against the city, see id. at 508–10, and the city did not seek fees. Whatever the
difficulties of the broader First Amendment principles implicated by the lawsuit, the civil rights
claims against the protesters turned on plainly inapplicable statutes.
The congregants make much of our statement in Gerber that their “claims may be wrong
and ultimately unsuccessful, but the fourteen pages that the concurrence devotes to analyzing the
constitutional issues belie the conclusion that they are frivolous.” Id. at 508. This statement, as
they see it, precludes fees. But it’s not that simple. The fee issue was not before us in Gerber;
what was before us was a question of subject matter jurisdiction. We considered only whether the
complaint’s deficiencies were so weak that they “raise[d] a jurisdictional problem.” Id. Courts
may dismiss a complaint for lack of subject matter jurisdiction due to the inadequacy of a federal
claim “only when the claim is so insubstantial, implausible, foreclosed by prior decisions of [the]
Court, or otherwise completely devoid of merit as not to involve a federal controversy.” Steel Co.
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v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quotation omitted). That does not happen
often; it happens indeed only in vanishingly rare settings. That inquiry sets a much higher bar than
Christiansburg’s “frivolous, unreasonable, or without foundation” standard. 434 U.S. at 421. The
fee award cases confirm as much. We have routinely approved the award of fees to prevailing
defendants without finding that the defects in the merits of the claims stripped the court of subject
matter jurisdiction. See, e.g., Garner, 554 F.3d at 636–41; Dubay v. Wells, 506 F.3d 422, 431–32
(6th Cir. 2007); Wolfe v. Perry, 412 F.3d 707, 720–21 (6th Cir. 2005); N.E. v. Hedges, 391 F.3d
832, 836 (6th Cir. 2004); Wilson-Simmons v. Lake Cnty. Sheriff’s Dep’t, 207 F.3d 818, 823–24
(6th Cir. 2000); Bowman v. City of Olmsted Falls, 802 F. App’x 971, 974–75 (6th Cir. 2020); Bagi
v. City of Parma, 795 F. App’x 338, 343–45 (6th Cir. 2019) (per curiam).
The congregants point out that the district court denied a stay without bond pending the
appeal of the fee order. But that herring is red. The court’s order shows only that their appeal was
“not frivolous.” R.119 at 8. We agree and would not sanction them for bringing it. Whether an
appeal raises non-frivolous issues differs from whether the underlying complaint raises non-
frivolous claims.
Gerber claims that the court could not assess fees against the congregants before this
court’s dismissal under Civil Rule 12(b)(6) because the frivolousness of the claims became evident
only at that point. But district courts may award fees when, as here, a claim “was clearly defective
at the outset of the case.” Wolfe, 412 F.3d at 721.
The congregants say that the district court acted as a Monday-morning quarterback. The
Supreme Court, it is true, has directed courts to “resist the understandable temptation to engage in
post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action
must have been unreasonable.” Christiansburg, 434 U.S. at 421–22. This court has found
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impermissible hindsight logic when a case required extensive discovery or involved unsettled law.
E.g., Tarter v. Raybuck, 742 F.2d 977, 988 (6th Cir. 1984). But neither factual nor legal disputes
beset the civil rights claims against the protesters. Because the claims’ deficiencies appeared at
the outset, no impermissible post hoc reasoning occurred. See Bagi, 795 F. App’x at 343.
Gerber argues that the protesters’ failure to pursue Rule 11 sanctions dooms the fee award.
Not only does Gerber fail to cite any authority for this point, but this court’s precedent also
confirms the opposite view. See Dubay, 506 F.3d at 432 (distinguishing fees under § 1988 from
sanctions under Rule 11).
The congregants assert that the protesters challenged only the § 1983 claim as frivolous in
their renewed fees motion. To the contrary, the protesters wrote in the motion that the “entire
complaint” was frivolous, R.84 ¶ 3, and in their opening brief that the “entire case” lacked merit,
id. at 30; see also R.96 at 7 (arguing that the claims under §§ 1981, 1982, 1983, and 1985(3), and
the civil conspiracy claims “were equally without merit and lacking any arguable factual or legal
basis”). Because the district court could find all of the claims against the protesters frivolous, it
did not need to disaggregate fees for the frivolous claims from fees for the non-frivolous claims.
See Fox v. Vice, 563 U.S. 826, 834–35 (2011). What is more, the congregants failed to make this
argument before the district court. Below, Gerber described the motion as “based primarily on
the” § 1983 claims, R.99 at 11, and never disclaimed the possibility of fees for the other civil rights
claims. And Dr. Brysk never even alluded to the issue. The congregants failed to preserve the
issue for appeal. See Thurman v. Yellow Freight Sys., Inc., 97 F.3d 833, 835 (6th Cir. 1996).
The possibility of chilling future civil rights plaintiffs does not warrant a different
conclusion. The exacting standard for awarding fees to defendants already accounts for this
chilling effect. See Kidis v. Reid, 976 F.3d 708, 722 (6th Cir. 2020). It balances the goal of
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encouraging plaintiffs to vindicate their civil rights with the opposing goal of compensating
defendants for having to answer frivolous lawsuits. That the district court could award fees to the
protesters under this standard means this balance weighs against the congregants today.
The congregants fault the court for including fees for time spent on the unsuccessful
standing arguments. They cite three cases to support their contention that the fee award must
exclude this time. But they are all inapposite. Hensley v. Eckerhart, 461 U.S. 424 (1983),
explained that a partially prevailing civil rights plaintiff may recover only for the time spent on
successful claims. Id. at 435. But Hensley considered claims for relief in a complaint, not different
arguments or bases for dismissal in a motion to dismiss. The Court went on to say that “[l]itigants
in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection
of or failure to reach certain grounds is not a sufficient reason for reducing a fee.” Id. Here, the
protesters raised two grounds (Civil Rules 12(b)(1) and 12(b)(6)) to achieve the desired outcome
(dismissal). And In re Bavelis, 743 F. App’x 670 (6th Cir. 2018), and Goodyear Tire & Rubber
Co. v. Haeger, 581 U.S. 101 (2017), both dealt with sanctions under a court’s inherent authority,
not under § 1988.
Gerber—who retained new counsel for this appeal—insists that the court should leave him
out of it and just sanction the congregants’ counsel, Marc Susselman, under § 1927. He adds that,
as a lay person, he did not understand the nuances of the First Amendment and civil rights law.
While we sympathize with Gerber, courts hold litigants responsible for their attorneys’ conduct.
Garner, 554 F.3d at 644. The district court did not abuse its discretion in awarding fees under
§ 1988, as opposed to another mechanism, after finding that the standard had been met. See id.
Lastly, Susselman, of his own accord, accuses the district court of antisemitism. The basis
for this serious allegation? A “series of questionable rulings.” Dr. Brysk’s Br. 32. Not content to
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Case Nos. 22-1075/1097/1131, Gerber, et al. v. Herskovitz, et al.
stop there, Susselman accuses Judge Clay of racially motivated hypocrisy too. Well-founded
allegations of judicial bias, we appreciate, deserve a serious-minded accounting. But Susselman
grounds his allegations almost entirely in adverse rulings, which rarely “constitute a valid basis
for a” claim of judicial bias. Liteky v. United States, 510 U.S. 540, 555 (1994). The only external
source for the allegation is a study supposedly finding higher-than-average rates of antisemitic
attitudes in the African American community. From this, Susselman concludes that the district
judge—who is African American—must have been biased against the congregants. This argument
rests on offensive, essentialist stereotypes. It involves enormous logical leaps. And it disserves
Susselman’s client by distracting from the merits of the fee issue. If this is the quality of
Susselman’s advocacy, the fee award hardly comes as a surprise. Susselman’s bias arguments
“find no support in the record,” Dixon v. Clem, 492 F.3d 665, 679 (6th Cir. 2007), and are “not
well received,” Gerber, 14 F.4th at 519 n.4 (Clay, J., concurring) (quotation omitted).
We affirm.
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