first cases sixteen dash one five four four six southern atlantic companies at all versus the school board of orange county mr miller board is the final policy maker in asserting a claim against and assigning southern atlantic companies big protests on to wharton smit so that were a smith could sue the surety in awarding both the is the assignment of a bond unconstitutional retaliation your honor in this context it was because there were no attorney's fees awarded in the dough administrate are proceeding below which requires that the administrative law judge find that there was the protest was brought for an improper purpose that finding was not made here that order the order would have needed to include that finding and i think that just means that something that they did wasn't legally supportable at the end of the day that doesn't mean that it was first amendment retaliation your honor the facts of this case showed that the general counsel his reasons for her for signing the bond were a pretext there's a timeline and which shows there is caught causation to support that it was retaliation is also comments by the general counsel connecting the big protest to the assignment stating it was frivolous and should never been there in the first place where you lost a big protest so maybe they had something there there there there was a finding there was no standing but it was not frivolous that would have been the improper purpose finding it the l j would have had to make further the the pretext that the general counsel provided was that dead school board was on the hook for the attorneys fees and costs incurred by wharton smith morton smith was required of the contract construction management contract to indemnify and defend the school board for any claim they were not on that a bit later the general counsel in e mails to school board members daryl flynn stated we are not on the hook for these attorneys fees or costs because smith is required to indemnify the school board therefore it was a retaliatory action on the part of the general counsel in assigning the bond but that action by the contractor against you the separate action in state court although it proved unsuccessful that didn't generate bad faith attorneys fees against the contractor right yes your honor but those are separate issues that was in regards to whether or not smith's action was frivolous and the judge blackwell in that proceeding summed it up nicely at the sanctions hearing when  international deli company's attorney was trying to get the fifty seven one of five sanctions stating that it shouldn't this issue should have never been brought before the court because no attorney's fees were awarded below the bond should have been returned she summed that up saying well isn't that the school board's wrong it should never even gotten to the point where there was a lawsuit that weren't smith could bring because the school board through the general counsel she had never even assigned that did protest beyond the general counsel was the final policy maker in this aspect because his decisions were not subject to review they were not constrained by written policies they were to do that below when you felt that they were they should not have sought use of the bondage you asked for some sort of sanctions during an appropriate court proceeding litigation lots of times people do things that turn out not to be successful or meritorious and during the immediate litigation that's the time where you seek sanctions for an appropriate action i must admit i've never heard of anybody fallen a first amendment kline based on something like that against them perhaps it was their assignees responsibility for what happened not the school board that you know your honor not in this context because the general council is the final policy maker for the school board with regard to what i want to say that he's the final policy maker what is there that officially in writing says he's a he's a policy maker so anything in the statutes of florida that say that or anything in his contract your order one thousand one point four three allows the school board to create a legal department and have the legal department govern legal affairs for the school board they did this they hired the general counsel as its first inside in house counsel the school board and not create any internal written policies for review the general counsel decisions for the areas that he is to manage and he is not to manage or what he needs to seek approval of but there were custom and practices within the school board so every time general counsel does something a piece of litigation he he objects to something in discovery or he himself was aggressive in discovery every time he does something he's the final decision maker file policymaker and you get to go after the school board for whatever that decision was honor because what the test requires by the circuit is that there be an opportunity for meaningful administrative review and the appellant sought that opportunity for meaningful administrative you first know where the point is that there is no written process once again for actually seeking this review so the only potential review they could have obtained was by going to a pretender meeting before the school boards five minutes before the normal meetings and and addressing their concerns at that time they did exactly that and at that meeting on january eleventh two thousand and eleven the chairman of the school board specifically assigned handling the requested return of the ball on to the general counsel from that moment on the school board they as the chairman said in his deposition we were keeping an arm's length from this matter and the general counsel was to deal with this you couldn't you you didn't have the opportunity to challenge the assignment after the fact before the school board no your honor let like the holman versus harlan case the assignment was essentially a fa accompli once it was completed those that were affected by the decision the appellant's they were subject to that decision they had to hear or there are a lot of cases in which individuals try to set aside government action municipal or otherwise on the ground that were challenge such action on the ground that the person doing the work on behalf of the government entity didn't have the authority to do it or exercise his or her authority in correctly you couldn't have done that you don't think and you're saying that there was no meaningful opportunity for review of that assignment and i'm asking you why not the assignment was completed on august second two thousand and eleven the very next day wharton smith filed the lawsuit aug third two thousand eleven there was no practical opportunity to be able to see the board's review at that time the board couldn't have done an s ex post review because of her maiden expos decision to reverse the assignment because they would have had to had  in order to do so and they would have had to dismiss the lawsuit so by this time i mean why couldn't that have happened your honor in theory it could have but in practice there was no opportunity for that review to take  place that the lawsuit went for d appellants and sought to intervene they mediately intervene once they found out about this they sought to dismiss that they did initially dismiss the are about to dismiss the original complaint and then it was amended complaint alleging that the bond was now a common law on giving the action a colorable legal basis and leaving it to go on for years so there was no opportunity for them to actually be able to see the board's review for wharton smith's lawsuit against the bond after the general counsel had specifically assigned it to work in smith knowing full well that they were going to sue the surety if if if warden smith had not sued would you have a retaliation claim there there like there were been no damages your honor so you still would have had to bond with held for a period of time yes your honor but the damages that have occurred here because of the attack against the bond of the surety hurting southern atlantic companies essential to their credit rating and be able to get additional jobs if they would never made that lawsuit against it the bond was dead because it was a statutory bond the damages incurred because of the amended complaint allowing it to continue on as a common law on well there was a statutory bond but it didn't really say so right i mean there was some question about that that the appellant's attend the bond from the school board's website they use in a bid protest to the school board that went before a division of ministry of hearings so it was used for a statutory purpose this general counsel's decisions were not subject to review this is for the confirmed by the numerous letters that the appellant sent to the board specifically requesting that the board actually take action to don't find any evidence anywhere that indicates the school board does not have the authority to review whatever the general counsel did how can you say that the record supports the statement you made the chairman testified that the school board  have the ability to intervene in a legal matters and that's the general counsel responsibility no more than the board has the ability to that can't be right you're telling you're telling me that if the general counsel decided to admit that the city had engaged in a course of conduct would open it up to all sorts of liability that that action couldn't be countermanded by the school board itself it could but the way that the chairman understood it which is help support there was a defect in the review process is that they couldn't do these things no more than they could intervene in the hiring and firing of employees sex but that's the superintendent's strict purview and decision you're talking about the fifty thousand dollar threshold or or outside of that well he classified that as as handling the assignment being that that was strictly within general counsel's purview and that would never come before the board and if it did the filing of a lawsuit is ministerial now but the assignment was the school board didn't file the lawsuit i know that i'm just asking a question only when there is a payment or that you were to either making or they are receiving payment that in settlement of a claim that the matter would actually become for the board for a review and approval even then that wasn't a written policy was a custom in practice only over fifty thousand they assert knowingly nonexistent right their positions were supported by law and fact and they essentially establish a crime facia case the one element that has yet to be determined is causation but that's a factual matter for the jury to  decide this court and the supreme court have described as the stringent standard there have been cases that support the fact that even when an individual's position is not supported by case law it's a new and novel theory that that's not necessarily case all from the ninth circuit is some case law from the middle dish of florida where we came from that support that theory too so their claim was not frivolous and therefore the district court abuse ascription right thank you very much mr miller druckerman thank you your honor the school board does not consider this to be a close case and the school board and not request oral argument and it's apparent from the questioning of the panel so far that you are on to this tell you what's on my mind yes your honor and that is the attorney's fees shoe there are cases not binding but there are cases from other jurisdictions one from the second circuit one from a district court elsewhere which allow the principles of a company one of them in a case involving a job you know a contract to file an independent claim for retaliation aside from the claim filed by the company itself one of them involving emotional distress claims so legally speaking this was not a frivolous claim right i'm not familiar with a case that you set aside over the one day or the one cited by  hutchins and mr mackintosh in their blue brief you know they have tonight second circuit maybe i got the circuit incorrect but i'll tell you what the cases are thank you know you are correct and i am in correct so ninth circuit this year and this one was around o's gas go incorporated i can't put my fingers on the district court case there was one published case and i think one published case you can't put my finger on it but so were my reading of those cases was that at least some courts one had denied summary judgment one had denied a motion to dismiss allowing a claim by the principal of a company when and you might think that the municipalities conduct was directed at the company and not the princip i recall serranos gasket the owner of the business had spoke out on a variety of governmental matters over the course of numerous years that did not necessarily relate to his business he also got into head to head fights with the government i believe on regulatory and permitting matters that were obviously in the name of the business so the holding of the case as we see it the court said as shareholder does have standing were he or she has been injured directly and independently of the corporation so we think the better rule is that the shareholder would have to participate in some constitutionally protected behavior in his own capacity or her own capacity and not simply be acting on behalf of the corporation and i believe that was what the court was getting at in serrano's gascon but the district court here did not was not able to say at least with any confidence that their speech was not protected right he seemed to assume that it was protected yes you're right so if that's true then the case like serrano is gasket becomes a little closer my point is not that they should have prevailed on their claim my point is that maybe there's a pretty decent argument that their claim was not legally from frivolous so as to allow an award of attorney that is true and if they had spoken out in their individual capacities which i don't agree with the district court's assumption which is i believe a one sentence assumption if you look at the facts and you look at the statements that are actually relied upon every single one of them is in the context of the big protest kweisi judicial hearing itself there is no far reaching  political speech by mr hutchens or mr mcintosh outside of this proceeding and fact the main letter they rely on it's on a s a c letterhead it's signed by mr hudgens in his capacity as president of the limited liability company so this is not like serranos gasket where i believe the owner had for many years spoken out on political issues and simultaneously had been involved in his corporate capacity against the government so that is why we think the better rule is the one that we have cited would also point out that if the threshold for a individual owner of a company to file a section one thousand nine hundred three lawsuit against the government is that they have been injured only then that is a serious floodgate you're on i struggle to understand how any owner of any company could not allege emotional distress over a lawsuit but they're inherently cause emotional distress you and i are not on a different page i think i agree with you but at the time that this lawsuit was filed i don't see that there's anything in the eleventh circuit that precluded someone from trying to get a district court to adopt that theory and do you think there's binding precedent for closing that attempt at the time that the lawsuit was f yeah that's there is but i don't know that i would you know strenuously urge it there is gregory v mitchell which under bond to be pressured is binding precedent and gregory v mitchell is consistent with the other cases that we've cited now does gregory have a link the exposition on this issue that's precise and direct and aggressive i would readily concede it does not but it is binding precedent it was decided back in one thousand nine hundred one before barnaby pritchard a claim for a retaliation based upon damage to the business and separate distinct damage to the individual owners based upon so long as they meet the other elements of the first member television claim being cajun first member taken speech there was adverse effect and they had separate distinct damages at the doe proceedings they chose to have mr green represent them and did not specifically act as qualified representatives as they could pursuant to one twenty point six two six so therefore they did act in their individual capacity and not as numbers or owners of the corporation if i may i'd like to just clarify you an answer that i made to judge gordon's question earlier about whether or not opponents could have sought to have the assignment reversed and they did do that in once they found out about it in august twenty ninth sending the letter to the school board specifically notifying them of the issue and trying to resolve and have addressed and the board did not take any action i was aware of it continued to refer the matter the general counsel and therefore there was a continued defect in any sort of alleged review process that could have been potentially available to them so they they did try to seek that reversal but it was not provided to them all right thank you very much