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PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-1284
NAGLA ABDELHALIM,
Plaintiff - Appellant,
v.
AARON LEWIS; DINARA LEWIS; ANDREW MCDEVITT; ROXANA MCDEVITT,
Defendants - Appellees,
and
ARMISTEAD PARK HOMEOWNERS ASSOCIATION,
Defendant.
No. 21-2405
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No. 22-1035
Plaintiff - Appellee,
ANDREW MCDEVITT; ROXANA MCDEVITT,
Defendants - Appellants,
AARON LEWIS; DINARA LEWIS; ARMISTEAD PARK HOMEOWNERS ASSOCIATION,
Defendants.
Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, Senior District Judge. (1:19-cv-00858-LO-TCB)
Argued: December 6, 2023 Decided: January 5, 2024
Before WYNN, THACKER, and HEYTENS, Circuit Judges.
Vacated by published opinion. Judge Thacker wrote the opinion, in which Judge Wynn and Judge Heytens joined.
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Nicholas Harry Hantzes, HANTZES & ASSOCIATES, Fairfax, Virginia, for Appellant/Cross-Appellee. Philip Corliss Krone, COOK CRAIG & FRANCUZENKO, PLLC, Fairfax, Virginia; Douglas R. Kay, OFFIT KURMAN, PA, Tysons Corner, Virginia, for Appellees/Cross-Appellants.
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THACKER, Circuit Judge:
This case arises from an ongoing dispute between Nagla Abdelhalim (“Appellant”)
and her neighbors, Aaron and Dinara Lewis and Andrew and Roxana McDevitt
(collectively, “Appellees”). Appellant is an Egyptian immigrant and a Muslim woman
who wears a hijab in public. Appellant and Appellees live in the same neighborhood.
Appellees are Appellant’s immediate neighbors, with one family living on each side of
Appellant’s home. The underlying dispute arose when Appellant began a short-term rental
business, renting out her basement on platforms such as Airbnb. Appellees disapproved of
the practice, which also violated a local ordinance at the time. Appellees confronted
Appellant and then began a year long campaign of harassment against her, despite
Appellant stopping her short-term rental business.
Eventually, Appellant filed suit against Appellees alleging, among other claims, that
Appellees violated the Fair Housing Act (“FHA”), 42 U.S.C. § 3617, by engaging in a
course of conduct which included threats, intimidation, and interference with Appellant’s
enjoyment of her home in an attempt to drive her out of the neighborhood because of her
race, national origin, and religion. The district court ultimately granted summary judgment
to Appellees because it concluded that Appellant had not produced evidence of an essential
element of her claims -- intentional discrimination based on a protected ground. Appellees
then moved the court for an award of attorneys’ fees and the court granted that motion.
Appellant does not challenge the district court’s summary judgment order. Rather,
this appeal relates only to the district court’s fee award. We conclude that the district court
applied the wrong legal standard and thus abused its discretion in granting attorneys’ fees
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to Appellees. Applying the correct standard, we hold that Appellant’s case was not
“without foundation.” Therefore, we vacate the fee award.
I.
A.
Appellant purchased a home in the Armistead Park neighborhood of Fairfax County,
Virginia in September 2017 and resides there with her brother, Haitham. Appellant began
renting her basement to tenants on a short term basis through a listing on Airbnb in March
2018. Between March and June 2018, Appellant had approximately nine tenants rent the
basement for spans of three to 28 days. As a result, Appellees began noticing and
complaining of increased traffic and reduced visitor parking. According to Appellees,
Appellant’s short term rental business caused them to have “overall safety concerns.” J.A.
1581. *
On May 5, 2018, three of the Appellees and another neighbor who is not a party to
this lawsuit “went to [Appellant’s] house and stood together at her front door . . . . [They]
voiced their concerns surrounding the rental activity . . . and asked that she stop renting the
space.” J.A. 1581. The district court described the incident as follows:
Mr. McDevitt and others cited the rules of the HOA and a Fairfax County ordinance in arguing that the rentals were illegal. The interaction lasted approximately forty minutes, during which time Mrs. Lewis asked [Appellant] how much money she made and where she worked. Mr. McDevitt, with Mrs. Lewis in agreement, said he would make [Appellant’s] life miserable. At some point during the interaction, [Appellant’s] brother, Haitham, came to the door and
* Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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addressed the neighbors, asking them to leave. [Appellant] installed security cameras shortly after this encounter.
J.A. 1581–82 (internal citations omitted).
Appellant describes the incident as being more aggressive. According to Appellant,
Appellees “yelled and raised their voices at her and threatened and intimidated her for 40
minutes. The neighbors were blocking the front door [and Appellant] could not walk out
her door and was not free to leave her house.” Appellant’s Opening Br. at 3. Appellees
“stated that they did not feel ‘safe’ with [Appellant] in the neighborhood.” Id. They told
her they would take pictures of her and her brother and that “they wanted to know who
exactly lived in the house, who was coming into and out of the house, including friends,”
and “they made other demands for information about where [Appellant] worked, what her
sources of income were, and who lived in the house with her.” Id. at 4. Appellant also
says that Mrs. Lewis asked her “repeatedly about where her money came from, and how
much money did she make and how could she afford the house.” Id.
Appellant claims that she removed her home from Airbnb the day of the encounter
with Appellees. And she asserts that “the nature of the questions and manner of questioning
led [Appellant] to believe [Appellees] thought she was being supported by some kind of
terrorist group.” J.A. 1595 (cleaned up).
Ten days later, on May 15, 2018, all parties attended an Armistead Park
Homeowner’s Association (“HOA”) meeting. During the meeting, Appellees “voiced
concerns about the short-term rental activity; Mr. McDevitt spoke of safety concerns.” J.A.
1582. The HOA did not have its own policy on short term rentals, so it deferred to the
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ordinances in place in Fairfax County which, at that time, did not permit short term rentals.
Appellant explained at the HOA meeting that she had removed the listing from Airbnb and
would stop short term rentals as soon as she had fulfilled her existing contracts for May
and June.
Appellant claims that after the meeting, the President of the HOA “indicated to
[her] . . . that the source of the [Appellees’] hostility toward her was because she was from
the Middle East and wore the Hijab.” J.A. 1966. When she described the conversation
more specifically, Appellant explained that the HOA President “advised me to go to the
Fairfax County and file a complaint against the Lewis and McDevitts. And he just simply
told me, ‘Just tell them because of your -- they’re giving you all these issues.’” Id. at 1314.
Appellant alleged that the HOA President pointed to her hijab.
Following the HOA meeting, Mr. McDevitt wrote a detailed complaint about
Appellant’s short term rentals to the HOA Board on May 27, 2018. The Board secretary
responded that the Board agreed with Mr. McDevitt that “short term rentals should not be
happening in our neighborhood” and that he could submit any evidence of “additional
activity” to the Board. J.A. 1583 (citation omitted). Then, on June 19, 2018, Mr. McDevitt
submitted complaints to Fairfax County regarding Appellant’s short term rental activity at
the Armistead Park house and at another property Appellant owned and rented on Airbnb.
In July 2018, Appellant began renting the basement of her Armistead Park house to a long
term tenant, which was allowed in Fairfax County and approved by the HOA.
But Appellees’ alleged campaign of harassment continued “[o]ver an extended
period of time.” J.A. 1583. Appellees took numerous photographs of Appellant’s cars and
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guests/suspected tenants. And the Lewises, who shared a driveway with Appellant, used
their cars to block access to the driveway or block cars into the driveway. In addition, the
Lewises drove up to the back of Appellant’s house and to her garage door so that they could
look inside. At other times, they drove through Appellant’s yard.
This menacing behavior was not all, however. From December 2018 to March 29,
2019, Appellant received a series of text messages and calls from anonymous numbers.
The text messages “included demands for [Appellant’s] work address and to meet and
talk,” but the senders would not respond to requests to identify themselves. J.A. 1584. The
text messages appeared to be from Mr. Lewis, however, because on March 2, 2019, the
sender wrote “Hey Nagla, I like for you not to park your car over there no more. Park
Infront of you own House. Next time it be park by my [expletive] house I will get it Tow
away. Me and my wife is so tired of you and your family.” Id. Other messages said, “if
you ever park your [expletive] car by my house again I will fine your [expletive]. And also
have your [expletive] car Tow away. We cant wait to you move out of our area. // when
your [expletive] go to work tomorrow me and my wife will see you. we have words for
your [expletive].” Id.
Appellant called the police after receiving the March 2 text messages but then asked
the police not to speak to Appellees. But she called the police again on March 3 due to the
continued harassment and the police questioned Mr. Lewis. Additionally, in “February
and March 2019, [Appellant] received eight calls between 8:59 and 11:02 p.m.” J.A. 1585.
As the district court noted, “None of the text messages referred to [Appellant’s] race, color,
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religion, or national origin; [Appellant] never heard anyone say anything on the phone calls
or associated voicemails.” Id.
According to Appellant, Mr. Lewis continued taking photographs of her and her
guests, and he continued driving close to her basement window this entire time.
Appellant also alleges that on March 19, 2019, the HOA held a meeting to present
and discuss policies to comply with the FHA, “to prevent homeowners from taking actions
to harass other neighbors based on race, religion, gender, and national origin and other
protected categories and to assess discriminatory harassment among neighbors.”
Appellant’s Opening Br. at 11. Appellant attended the HOA meeting, as did Mr. Lewis.
“Mr. Lewis expressed opposition to the Board’s announcement at the meeting and
repeatedly asked argumentative questions which reflected he was opposed to the policy
against discrimination.” Id. at 12.
B.
On October 19, 2019, Appellant filed an Amended Complaint against Appellees and
the Armistead Park HOA for violation of the FHA, 42 U.S.C. § 3617, “by engaging in a
course of conduct which included threats, intimidation, and interference with [Appellant’s]
enjoyment of her home in an attempt to drive her out of the neighborhood because of her
race, national origin, and religion.” Appellant’s Opening Br. at 12. Appellant also filed
claims against Appellees for violation of the Civil Rights Act, 42 U.S.C. § 1982, and for
conspiracy to violate the Civil Rights Act, 42 U.S.C. § 1985(3). Appellant voluntarily
dismissed the HOA as a defendant after the district court denied the HOA’s motion to
dismiss the complaint.
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On June 17, 2020, the district court granted summary judgment in favor of
Appellees on all claims. Specifically, each of Appellants’ claims had a common element
-- intentional discrimination based on Appellant’s race, color, religion, or national origin.
The district court explained that it could not “locate evidence that raises a genuine issue of
material fact as to whether [Appellees] discriminated based on [Appellant’s] race, color,
religion . . . or national origin,” and Appellant “fail[ed] to show that [Appellees’]
discontent as to rentals was pretextual, as her arguments rely on unsupported inferences
and conclusions.” J.A. 1594.
According to the district court, Appellant’s only argument that Appellees were
discriminating against her based on a protected characteristic was that based on the May 5
front door incident, she believed they thought she was being supported by a terrorist
organization because Appellees used “code words” when they said they were concerned
about safety and asked about her sources of income. J.A. 1590.
The district court held that this inference was “conclusory,” “vague,” and
unsupported by the record. J.A. 1595. The harassment described by Appellant was, in the
district court’s view, all related to Appellees’ opposition to the short term rentals. Because
the district court held that Appellant had no evidence of an essential element of her claims,
it granted summary judgment in Appellees’ favor.
C.
On June 30, 2020, Appellees filed requests for attorneys’ fees and costs pursuant to
Federal Rule of Civil Procedure 54 and 42 U.S.C. §§ 3613(c)(2) and 1988(b). The Lewises
argued that Appellant’s claims were frivolous, unreasonable, or without foundation, and
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requested $53,824.50 in attorneys’ fees. The McDevitts also argued that Appellant’s
claims were frivolous, unreasonable, or without foundation, but they went farther and also
argued that Appellant’s case was filed in bad faith. The McDevitts did not include an
amount sought or a reasonable estimate of the amount sought as required by Rule 54.
Appellants’ attorney notified the McDevitts’ attorney less than a month later that
the motion was defective because it failed to state an amount requested. Two days later,
the McDevitts filed a motion for enlargement of time to file a complaint fee petition. The
court entered an agreed briefing schedule and briefing was complete in August 2020. The
district court ruled on the motions in February 2021. The court held that all Appellees were
entitled to attorneys’ fees because Appellant’s claims were without foundation because
“[i]n choosing to sue under the Fair Housing Act, [Appellant] chose to pursue her case
based solely on the accusation of discrimination without evidence that [Appellees’]
motivations were discriminatory.” J.A. 2125. The court did not hold that Appellant filed
her case in bad faith, however, because Appellees “did, after all, peer into her windows,
block access to her driveway, and take pictures of her guests’ vehicles.” Id. at 2126.
The district court also granted the McDevitt’s motion for enlargement of time,
concluding that the error was based on excusable neglect and there was “little danger of
prejudice” and only “negligible” impact on the proceedings. J.A. 2126. The court ordered
the McDevitts to file an accounting of their requested fees and gave Appellant an
opportunity to respond to the reasonableness of both the Lewises’ and McDevitts’
requested amounts. The McDevitts ultimately requested $141,152.50 in fees and an
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additional $5,625 for “the preparation of the accounting and supporting papers.” J.A.
2128–32.
Appellant objected to the amount of fees requested by each party. She did not argue
that the rates were unreasonable but argued that the attorneys should have filed motions to
dismiss rather than waiting until summary judgment. She also took issue with the number
of hours the McDevitts’ attorneys spent on various aspects of the case. And Appellant
argued that her financial situation did not allow her to pay the award of fees because she
had lost her job and been unable to fill her rental units during the COVID-19 pandemic.
Though the district court did not hold a hearing, it granted the Lewises their full
requested fee of $54,148.90, and it granted the McDevitts a reduced fee award of
$69,812.00. The court reduced the McDevitts’ award because it determined that the
number of hours credited should be comparable for each couple because the attorneys were
defending the same case with the same allegations, and the Lewises’ attorneys were able
to accomplish the same result with substantially fewer hours of work. The court also
determined that Appellant had the ability to pay a fee award because she had equity in her
properties and retained the education and capacity to earn a professional salary.
D.
Appellant did not appeal the district court’s order granting summary judgment to
Appellees. Rather, this appeal concerns only the district court’s order granting the
McDevitts’ motion for enlargement of time, and the orders granting Appellees’ motions
for attorneys’ fees. Additionally, the McDevitts filed a cross-appeal challenging the district
court’s reduction of their requested attorneys’ fees.
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We consider only whether the district erred in granting Appellees’ fee petitions as
that question is dispositive.
II.
As a general matter, a litigant must pay her own attorneys’ fees. See Christiansburg
Garment Co. v. E.E.O.C., 434 U.S. 412, 415 (1978). But in civil rights cases, like this one
involving claims pursuant to the FHA, fee shifting provisions allow district courts to award
attorneys’ fees to a prevailing party. Id. at 416. Where the plaintiff is the prevailing party,
she should typically be awarded fees in the normal course. Id. at 416–17. But where, as
here, the prevailing party is a defendant, the test is more stringent. Because Congress did
not want to discourage plaintiffs from bringing reasonable cases, the Supreme Court has
held that to award fees to a prevailing defendant, the court must find “that the plaintiff’s
action was frivolous, unreasonable, or without foundation, even though not brought in
subjective bad faith.” Id. at 421 (emphasis supplied).
“In applying these criteria, it is important that a district court 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 or without
foundation.” Christiansburg Garment Co., 434 U.S. at 421–22. Thus, “an award will not
stand if based only on the plaintiff’s failure to prevail.” E.E.O.C. v. Propak Logistics, Inc.,
746 F.3d 145, 151 (4th Cir. 2014). “An award of attorneys’ fees to a prevailing defendant
is a ‘conservative tool, to be used sparingly’ in cases in which the plaintiff initiated or
continued to litigate a claim that the plaintiff ‘knew or should have known was groundless,
frivolous, or unreasonable.’” Id. (quoting E.E.O.C. v. Great Steaks, Inc., 667 F.3d 510,
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517 (4th Cir. 2012)). But “[t]here is neither a precise test to be used, nor a specific quantum
of proof required, in determining whether a plaintiff’s claim was unreasonable.” Propak
Logistics, 746 F.3d at 151 (citing Arnold v. Burger King Corp., 719 F.2d 63, 65 (4th Cir.
1983)).
Given the difficulty of applying this standard, “‘[t]he fixing of attorneys’ fees is
peculiarly within the province of the trial judge, who is on the scene and able to assess the
oftentimes minute considerations which weigh in the initiation of a legal action.’” Great
Steaks, 667 F.3d at 517 (quoting Arnold, 719 F.2d at 65). “We thus accord great deference
to the trial court’s assessment of whether the plaintiff’s claim was frivolous, unreasonable,
or groundless.” Great Steaks, 667 F.3d at 517. A district court abuses its discretion when
its reasoning “is flawed by erroneous factual or legal premises.” James v. Jacobson, 6 F.3d
233, 238 (4th Cir. 1993). “Additionally, we review the district court’s factual findings in
support of the fee award for clear error.” Propak, 746 F.3d at 151–52.
III.
The threshold issue on appeal, and the one dispositive here, is whether the district
court abused its discretion in determining that Appellant’s claims were “without
foundation” when it granted Appellees’ motions for attorneys’ fees. Appellant argues that
the district committed legal error because it applied post hoc reasoning and held that her
case was without foundation merely because she did not prevail. We agree.
In Appellant’s opposition to the fee motions, she argued that there were various
sources of circumstantial evidence that provided a foundation for her claim of intentional
discrimination. For example, she argued that “the nature of [Appellees’] repeated
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questioning regarding safety, [Appellant’s] sources of income, who lived in the house and
where she worked[,] and the manner of questioning on her front porch on May 5, 2018”
were all reasonably perceived by her as “reflect[ing] animus” “based on [her] life
experiences as [a] Muslim from the Middle East.” J.A. 1957, 1993. Appellant argued that
her perception “cannot be ignored” in determining whether she had a basis to file her claim
because “[i]t cannot be expected in this day and age that [Appellees] would make any overt
statement about the national origin and religion of [Appellant]. . . . Rather, the
discrimination is evident from more subtle conduct.” Id. at 1957–58, 1993–94.
Next, Appellant argued that Appellees’ “overly aggressive and unreasonable
conduct . . . combined with continuing to engage in aggressive acts for approximately one
year after she agreed and did stop short term rental of her home in June 2018” was
circumstantial evidence that supported her belief that their actions were based on animus
rather than their disapproval of her short term rental business. J.A. 1959–60, 1996
(emphasis omitted). Appellant also pointed to the fact that Mr. Lewis objected to the
HOA’s proposed anti-discrimination policy “knowing that it [wa]s being considered to
protect [Appellant],” to support her belief that Appellees were motivated by animus. J.A.
1966, 2003.
Finally, Appellant pointed to her interaction following the May 15, 2018 HOA
meeting when the HOA President pointed to her hijab and told her to file a complaint
against Appellees because “they’re giving you all these issues” “because of your --.” J.A.
1314; see J.A. 1966, 2003. Though Appellant acknowledged that the district court had
held that this evidence was inadmissible and thus did not consider it at summary judgment,
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Appellant asserted that it nevertheless “was still evidence that supports the claim was not
without foundation.” J.A. 1966, 2004.
Taking all of this evidence together, Appellant argued that she had a reasonable
basis to believe that Appellees intended to discriminate against her based on her race,
religion, and national origin, such that her claim was not without foundation. But the
district court did not engage with any of these arguments in its order granting Appellees’
fee motions. Instead, the district court’s analysis was only a single paragraph:
Plaintiff glosses over the fact that the evidence did not support the very foundation of her claim: discriminatory intent based on her race, national origin, or religion. In choosing to sue under the [FHA], she chose to pursue her case based solely on the accusation of discrimination without evidence that Defendants’ motivations were discriminatory. Without such evidence, her case was without foundation.
J.A. 2125.
This brief explanation leads to the conclusion that the district court applied post hoc
reasoning and determined that Appellant’s claims were without foundation merely because
she did not prevail at summary judgment. Our precedent confirms that where a plaintiff
puts forth arguments that supported the filing of her claims, a district court must make clear
that it considered those arguments in its fee decision.
First, in Bryant Woods Inn, Inc. v. Howard Cnty., 124 F.3d 597, 607 (4th Cir. 1997),
we affirmed the denial of a fee award where “a reasonable legal basis existed for [the
plaintiff’s] initiation and pursuit of its action” even though the plaintiff ultimately did not
come forward with sufficient evidence to survive summary judgment on its claim of an
FHA violation.
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Then, in EEOC v. Propak Logistics, Inc., 746 F.3d 145, 153 (4th Cir. 2014), we
affirmed the fee award where the district court’s fee decision engaged in detailed fact
finding on grounds distinct from the summary judgment order. We explained there that
“the district court’s award was not based on the earlier summary judgment decision.
Although the court referenced its previous findings of delay and prejudice from the
summary judgment holding, and the two decisions set forth many overlapping facts, the
two holdings were based on different principles of law.” Id. at 152. Specifically, the
district court considered the information available to the EEOC “when the complaint was
filed” to determine that it had been filed unreasonably because the EEOC knew or should
have known the case was “moot at its inception.” Id. “Thus, the court’s fee award reflected
proper consideration of the Christiansburg standard by assessing whether the EEOC acted
unreasonably in initiating the litigation.” Id.
But the district court undertook no such analysis here, despite its awareness that the
“award of attorneys’ fees to a prevailing defendant is a ‘conservative tool, to be used
sparingly’ in cases in which the plaintiff initiated or continued to litigate a claim that the
plaintiff ‘knew or should have known was groundless, frivolous, or unreasonable.’” J.A.
2124 (quoting Propak Logistics, 146 F.3d at 151 (citation omitted)). Rather, the district
court’s order reveals that it applied post hoc reasoning and held that Appellant’s case was
without foundation simply because she did not prevail. That was legal error. Thus, the
district court abused its discretion in awarding attorneys’ fees to Appellees.
Appellant’s oppositions to the fee motions set forth sufficient evidence for us to
determine that her claims were not “without foundation.” Particularly compelling in this
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analysis is that (1) the harassment continued well after Appellant ceased renting her
basement on a short term basis; (2) Mr. Lewis opposed the anti-discrimination policy that
was being considered specifically based on these events; and (3) the HOA President
suggested that Appellees’ actions were because of Appellant’s hijab. Based on these facts,
we have no trouble concluding that Appellant had a sufficient basis to believe Appellees
intended to discriminate against her based on her race, religion, or national origin. While
Appellant may not have ultimately adduced evidence sufficient to survive summary
judgment, the district court was not entitled to award Appellees attorneys’ fees on that
basis.
IV.
The district court abused its discretion in awarding Appellees attorneys’ fees.
Therefore, the district court’s order awarding attorneys’ fees is
VACATED.