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I Tnite Tate No. OFFICE OF THE CLL~K i tnite tate DR. HERMAN SMITH, Petitioner, Vo KAREN JO BARROW, Respondent. On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit PETITION FOR WRIT OF CERTIORARI THOMAS P. BRANDT Counsel of Record JOSHUA A. SKINNER ROBERT FUGATE FANNING HARPER ~ MARTINSON, P.C. 4849 Greenville Ave., Suite 1300 Dallas, Texas 75206 (214) 369-1300 Attorneys for Petitioner COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 QUESTIONS PRESENTED 1. When a public school teacher, who is denied a promotion to an administrative position in the public school district because she chooses to educate her children in a competing private school, asserts a parental rights claim against the public school super- intendent based on his failure to promote her, is that Fourteenth Amendment claim subject to rational basis scrutiny pursuant to Wisconsin v. Yoder, 406 U.S. 205 (1972), or is it subject to a heightened level of scrutiny as held by the Fifth Circuit? 2. Whether it is appropriate, within the current framework of qualified immunity, to apply the law of the case doctrine in such a way as to preclude a public school superintendent from asserting the defense of qualified immunity, when the "law of the case" was based on facts which were assumed prior to trial and the superintendent’s qualified immunity defense is based on the actual facts which were found at trial. 3. Whether the Fifth Circuit’s approach to Smith’s Rule 68 offer of judgment and interrelated legal issues regarding attorney’s fees improperly serves to encourage wasteful litigation instead of encouraging the "just, speedy and inexpensive resolu- tion of civil disputes." ii PARTIES TO THE PROCEEDING Including the parties named in the caption of this Petition, the parties to the proceeding in the court whose judgment is sought to be reviewed are: Dr. Herman Smith (Smith), Petitioner an individual Ms. Karen Jo Barrow (Barrow), Respondent an individual Greenville Independent School Party to District District (GISD), Court Judgment a governmental entity Only iii TABLE OF CONTENTS Page QUESTIONS PRESENTED ................................i PARTIES TO THE PROCEEDING .....................ii TABLE OF CONTENTS .....................................iii TABLE OF AUTHORITIES .................................viii INTRODUCTION ................................................1 OPINIONS BELOW .............................................5 JURISDICTION ...................................................5 CONSTITUTIONAL AND STATUTORY PROVISIONS ...................................................5 STATEMENT OF THE CASE ..............................8 A. Factual Background ..................................8 B. Procedural History .................................... 9 REASONS FOR GRANTING THE WRIT ...........11 I. THE DECISION BELOW UNREASONA- BLY INTERFERES WITH THE MAN- AGEMENT OF PUBLIC SCHOOLS ..........11 A. The Fifth Circuit’s Decisions Conflict with the Precedents of This Court ........ 12 B. This Case Involves Important Legal Is- sues That This Court Should Resolve... 14 C. The Fifth Circuit’s Decisions Conflict with the Decisions of Other United States Courts of Appeals ....................... 16 D. Smith’s Conduct Was Reasonable .........17 iv TABLE OF CONTENTS - Continued Page II. THE FIFTH CIRCUIT DEPARTED FROM WELL-ESTABLISHED PRINCIPLES OF QUALIFIED IMMUNITY BECAUSE IT ADMITTED THAT THE LAW WAS NOT CLEAR, BUT STILL IMPOSED LIABIL- ITY ............................................................. 21 A. What Constitutes "Clearly Established Law?" ................................................... 22 B. The Problem of the Law of the Case Doctrine as Applied to Qualified Im- munity Appeals .................................... 26 III. THE DECISION BELOW APPLIED THE WRONG LEGAL STANDARD FOR AWARDING ATTORNEY’S FEES AND FOR ANALYZING RULE 68 OFFERS OF JUDGMENT, THUS THWARTING RULE 68’s PURPOSE OF ENCOURAGING SETTLEMENT .......................................... 32 A. Barrow Was Awarded Fees for Unrea- sonable Activities .................................... 33 B. Barrow Did Not Meet Her Burden of Proof on Her Fee Request ..................... 36 C. The District Court Departed From Well- Established Principles of Law in Ana- lyzing Smith’s Offer of Judgment .........39 CONCLUSION ..................................................... 43 V TABLE OF CONTENTS - Continued Page APPENDIX Appendix A Circuit Court Opinion (Barrow III) ............App. 1-24 Appendix B Circuit Court Judgment (Barrow III) ......App. 25-26 Appendix C Circuit Court Opinion (Barrow II) ...........App. 27-38 Appendix D Circuit Court Judgment (Barrow II) ........App. 39-40 Appendix E District Court Memorandum Opinion (Dec. 20, 2005) .....................................App. 41-118 Appendix F District Court Amended Judgment (Dec. 20, 2005) ...................................App. 119-120 Appendix G District Court Memorandum Opinion (Aug. 5, 2005) .....................................App. 121-204 Appendix H District Court Memorandum Opinion (March 25, 2005) ................................App. 205-206 Appendix I District Court Judgment (March 25, 2005) ................................App. 207-208 Appendix J Court’s Charge to the Jury ...................App. 209-237 TABLE OF CONTENTS - Continued Page Appendix K Order (March 10, 2005) ........................App. 238-241 Appendix L Report (Judge Sanders) .......................App. 242-263 Appendix M Order (June 4, 2004) ....................................App. 264 Appendix N Order (March 8, 2004) ..........................App. 265-266 Appendix O Supreme Court Opinion (Nov. 10, 2003) ....App. 267 Appendix P Circuit Court Judgment (Barrow I) .....App. 268-269 Appendix Q On Petition for Rehearing En Banc (Barrow I) ...........................................App. 270-271 Appendix R Circuit Court Opinion (Barrow I) .........App. 272-280 Appendix S District Court Memorandum Opinion (April 18, 2002) ..................................App. 281-309 Appendix T District Court Order (March 4, 2002) ....App. 310-312 Appendix U District Court Memorandum Opinion (Feb. 20, 2002) ................................... App. 313-332 Appendix V District Court Judgment (Feb. 20, 2002) ...................................App. 333-334 vii TABLE OF CONTENTS - Continued Page Appendix W On Petition for Rehearing En Banc (Barrow III) ........................................App. 335-336 viii TABLE OF AUTHORITIES Page CASES Agostini v. Felton, 521 U.S. 203 (1997) ......................30 Angstadt v. Midd-West Sch. Dist., 377 F.3d 338 (3d Cir. 2004) ............................................................16 Arizona v. California, 460 U.S. 605 (1983) ................30 Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986) ....1, 11 Brosseau v. Haugen, 543 U.S. 194 (2004) ......22, 25, 26 Brown v. Bd. of Educ., 347 U.S. 483 (1952) .................1 Brown v. Hot, Sexy & Safer Prods., Inc., 68 F.3d 525 (lst Cir. 1995) .....................................].6, 23 Bunting v. Mellen, 541 U.S. 1019 (2004) .............22, 26 Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (1988) ...........................................20, 31 Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) ............................1.3, 24 C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159 (3d Cir. 2005) ............................................................25 County of Sacramento v. Lewis, 523 U.S. 833 (1998) ..................................................................22, 26 Denno v. Sch. Bd. of Volusia County, 218 F.3d 1267 (llth Cir. 2000) ...............................................21 Doe v. Heck, 327 F.3d 492 (7th Cir. 2003) ..................17 Employment Div. v. Smith, 494 U.S. 872 (1990) .......13 Fair Housing Council v. Landow, 999 F.2d 92 (4th Cir. 1993) ...................................................37, 38 ix TABLE OF AUTHORITIES - Continued Page Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951 (2006) .......................................................... 2, 11 Gruenke v. Seip, 225 F.3d 290 (3d Cir. 2000) ....... 15, 17 Hensley v. Eckerhart, 461 U.S. 424 (1983) ....34, 35, 36 Herndon v. Chapel Hill-Carrboro City Bd. of Educ., 89 F.3d 174 (4th Cir. 1996) ....................16, 23 Hooks v. Clark County Sch. Dist., 228 F.3d 1036 (9th Cir. 2000) ................................................16 Hotel & Rest. Employers Local 25 v. JPR, Inc., 136 F.3d 794 (D.C. Cir. 1998) ..................................35 Hutchins v. District of Columbia, 188 F.3d 531 (D.C. Cir. 1999) (en banc) .......................................17 Immediato v. Rye Neck Sch. Dist., 73 F.3d 454 (2d Cir. 1996) .....................................................16, 23 Jacobs v. Mancuso, 825 F.2d 559 (lst Cir. 1987) .......35 Key v. Grayson, 179 F.3d 996 (6th Cir. 1999) .............21 Kinney v. Weaver, 367 F.3d 337 (5th Cir. 2004) (en banc) ..................................................................21 Kite v. Marshall, 661 F.2d 1027 (Former 5th Cir. Nov. 1981) ...................................................16, 23 Leebaert v. Harrington, 332 F.3d 134 (2d Cir. 2003) ........................................................................16 Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275 (5th Cir. 2001) ............................................15, 16 Luciano v. Olsten Corp., 109 F.3d 111 (2d Cir. 1997) ........................................................................35 X TABLE OF AUTHORITIES - Continued Page Marek v. Chesny, 473 U.S. 1 (1985) ...........................39
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