source: Caselaw Access Project

author: FUENTES, Circuit Judge.

license: Public Domain

text:
    L.R., Parent and Natural Guardian of N.R., a minor v. SCHOOL DISTRICT OF PHILADELPHIA; School Reform Commission of the School District of Philadelphia; James A. Rocco, III, Esq., as Administrator CTA of the Estate of Reginald M. Littlejohn, Appellants
    No. 14-4640
    United States Court of Appeals, Third Circuit.
    Argued February 11, 2016
    (Filed: September 6, 2016)

      Kerri E. Chewning, Archer & Greiner, P.C., One Centennial Square, 33 East Euclid Avenue, Haddonfield, NJ 08033, Jeffrey M. Scott [ARGUED], Archer & Greiner, P.C., 1650 Market Street, One Liberty Place, 32nd Floor, Philadelphia, PA 19103, Counsel for Appellants
    Charles L. Becker [ARGUED], Dominic C. Guerrini, Thomas R. Kline, Trade L. Palmer, David C. Williams, Kline & Specter, P.C., 1525 Locust Street, 19th Floor, Philadelphia, PA 19102, Counsel for Appel-lee
    Before: FUENTES, KRAUSE, and ROTH, Circuit Judges

       Honorable Julio M. Fuentes assumed senior status on July 18, 2016.

   OPINION

FUENTES, Circuit Judge.

Teachers not only educate our children, but also provide them with sources of care and comfort outside the home. Recognizing that the threat of civil liability might discourage teachers and other public servants from taking on such significant roles, courts have developed a doctrine of qualified immunity that, in many instances, shields them from civil lawsuits. But there are exceptions and this is one of those cases.

In January 2013, a teacher in the Philadelphia School District allowed a kindergarten student to leave his classroom with an adult who failed to identify herself. The adult sexually assaulted the child later that day. In the early hours of the next morning, a sanitation worker found the child in a playground after hearing her cries. The child’s parent sued the teacher, who claims he is immune from suit.

We hold that the parent’s allegations sufficiently state a constitutional violation of the young child’s clearly established right to be free from exposure by her teacher to an obvious danger. In short, we conclude that it is shocking to the conscience that a kindergarten teacher would allow a child in his care to leave his classroom with a complete stranger. Accordingly, we will affirm the District Court’s denial of qualified immunity.

I. BACKGROUND

A. Factual Background

Because this case comes to us on a motion to dismiss, the allegations are taken from the complaint and are assumed true for purposes of this appeal. On an ordinary school day in January 2013, Christina Regusters entered W.C. Bryant Elementary School in Philadelphia, Pennsylvania, where Jane was enrolled as a kindergarten student. Regusters proceeded directly to Jane’s classroom, where she encountered Defendant Reginald Little-john, Jane’s teacher. Per Philadelphia School District policy, Littlejohn asked Regusters to produce identification and verification that Jane had permission to leave school. Regusters failed to do so. Despite this failure, Littlejohn allowed Jane to leave his classroom with Regus-ters. Later that day, Regusters sexually assaulted Jane off school premises, causing her significant physical and emotional injuries.

B. Procedural Background

Jane’s parent and natural guardian, L.R., filed this civil rights lawsuit under 42 U.S.C. § 1983 against Reginald Littlejohn in his individual capacity, the School District of Philadelphia, and the School Reform Commission of the School District of Philadelphia (collectively, the “Defendants”). L.R. alleges that Littlejohn deprived Jane of her Fourteenth Amendment rights under a state-created danger theory. Specifically, L.R. alleges that by releasing hér daughter to an unidentified adult, Littlejohn created the danger that resulted in Jane’s physical and emotional harm. Defendants moved to dismiss under the Federal Rules of Civil Procedure, arguing that the complaint does not allege a constitutional violation and, even if it did, Little-john is entitled to qualified immunity.

The District Court denied Defendants’ motion. It explained that “ordinary common sense and experience dictate that there is an inherent risk of harm in releasing a five-year-old [child] to an adult stranger who has failed to produce identification and authorization for release despite being asked to do so.” For the reasons that follow, we will affirm.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had subject matter jurisdiction under 28 U.S.C. § 1331. We exercise appellate jurisdiction over this interlocutory appeal pursuant to the collateral order doctrine. Under this doctrine, “a district court’s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” “This is so because qualified immunity ... is both a defense to liability and a limited entitlement not to stand trial or face the other burdens of litigation.” Here, the disputed issues are whether the complaint sufficiently alleges a violation of a constitutional right and whether that right was clearly established at the time of the violation. Thus, appellate review is appropriate. Our review is plenary.

III. DISCUSSION

The primary purpose of qualified immunity is to shield public officials “from undue interference with their duties and from potentially disabling threats of liability.” This immunity can be overcome, however, when public officials violate clearly established constitutional rights of which a reasonable person would have been aware. In the words of the Supreme Court, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”

To resolve a claim of qualified immunity, courts engage in a two-pronged inquiry: (1) whether the plaintiff sufficiently alleged the violation of a constitutional right, and (2) whether the right was “clearly established” at the time of the official’s conduct. “[W]hether a particular complaint sufficiently alleges a clearly established violation of law cannot be decided in isolation from the facts pleaded.” Thus the sufficiency of L.R.’s pleading is both “inextricably intertwined with” and “directly implicated by” Littlejohn’s qualified immunity defense.

A. Substantive Due Process Claim under the State-Created Danger Theory

The threshold question in any § 1988 lawsuit is whether the plaintiff has sufficiently alleged a deprivation of a constitutional right. L.R.’s claim invokes the substantive component of the Due Process Clause of the Fourteenth Amendment, which “protects individual liberty against certain government actions regardless of the fairness of the procedures used to implement them.” In DeShaney v. Winnebago County Department of Social Services, the Supreme Court explained that “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” Rather, the purpose of the Clause is “to protect the people from the State, not to ensure that the State protects] [the people] from each other.” Applying this principle, the Court held that state social workers did not deprive four-year-old Joshua DeShaney of substantive due process when they failed to remove him from a physically abusive household, despite their ongoing knowledge of suspected abuse by his father. The Court held that, “[a]s a general matter ... a State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.” It suggested, however, that the result may have been different had the State played a role in creating or enhancing the danger to which Joshua was exposed.

Building off that concept, we and other circuits have adopted a “state-created danger” exception to the general rule that the Due Process Clause imposes no duty on states to protect their citizens from private harm. In Bright v. Westmoreland County; we clarified the elements necessary to successfully plead a state-created danger claim:

1. the harm ultimately caused was foreseeable and fairly direct;

2. a' state actor acted with a degree of culpability that shocks the conscience;

3. a relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the statels actions, as opposed to a member of the public in general; and

4. a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.

For the reasons set forth below, we hold that L.R. has sufficiently alleged all four of these elements and has therefore sufficiently pled a substantive due process violation.

i. Affirmative Use of Authority Creating or Increasing Danger

We begin with the fourth element, as it is typically the most contested. This element asks whether the state’s conduct created or increased the, risk of danger to the plaintiff. As we noted in Bright, “[i]t is misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause.”

This element is often contested because of the inherent difficulty in drawing a line between an affirmative act and a failure to act. Often times there is no clear line to draw; virtually any action may be characterized as a failure to take some alternative action. For example, Defendants attempt to reframe Littlejohn’s alleged actions as inactions, or failures. They argue that Littlejohn’s failure to follow School District policy, failure to obtain proper identification from Regusters, and failure to obtain verification from Regus-ters that Jane had been permitted to leave school are not affirmative acts. This strategy is unavailing.

Rather than approach this inquiry as a choice between an act and an omission, we find it useful to first evaluate the setting or the “status quo” of the environment before the alleged act or omission occurred, and then to ask whether the state actor’s exercise of authority resulted in a departure from that status quo. This approach, which is not a new rule or concept but rather a way to think about how to determine whether this element has been satisfied, helps to clarify whether the state actor’s conduct “created a danger” or “rendered the citizen more vulnerable to danger than had the state not acted at all.”

The setting here is a typical kindergarten classroom. Children in this setting are closely supervised by their teacher. Their freedom of movement is restricted. Indeed, they are not likely to use the bathroom without permission, much less wander unattended from the classroom. In the classroom, the teacher acts as the gatekeeper for very young children who are unable to make reasoned decisions about when and with whom to leave the classroom. Viewed in this light, Jane was safe in her classroom unless and until her teacher, Littlejohn, permitted her to leave.

We can therefore easily distinguish Litt-lejohn’s conduct from the state actors’ conduct in DeShaney. The Supreme Court’s focus in DeShaney was on the State’s failure to remove Joshua a second time from a situation it had reason to believe was dangerous, meaning the State’s decision to leave Joshua with his father was a maintenance of the status quo. Moreover, in responding to the argument that the State’s action in previously intervening and then returning Joshua to his father gave rise to an affirmative duty to protect and remove him again, the Court further observed: “That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father’s custody, it placed him in no worse position than that in which he would have been had it not acted at all.” In other words, had the State done nothing, Joshua would have been in the same dangerous position. The setting here, by contrast, was a kindergarten classroom where students presumably were safe from outside dangers. When Littlejohn allowed Jane to leave the classroom with an adult who failed to produce proper identification or verification, he exposed Jane to a danger she would not have otherwise encountered.

We can also distinguish this case from our decision in Morrow v. Balaski, where we declined to find a state-created danger in a school setting. In Morrow, two high school students sued their school for failing to protect them from another student who was bullying them persistently. The school at one point temporarily suspended the bully but then allowed her to return to school, contrary to a school policy requiring expulsion of students adjudicated “guilty of a crime.” We held that the school’s failure to enforce its own disciplinary policy was not equivalent to an “affirmative act.” Thus, Morrow paralleled DeShaney in that maintenance of the status quo was insufficient to create liability.

This case is different. Littlejohn’s actions resulted in a drastic change to the classroom status quo, not a maintenance of a situation that was already dangerous. And unlike in Morrow, the presence or absence of a school policy is largely irrelevant to L.R.’s claim. Littlejohn’s actions in asking Regusters for proper identification and verification, and then permitting Jane to leave with Regusters despite her failure to produce either, amounted to an affirmative misuse of his authority as Jane’s teacher and “gatekeeper.”

Defendants contend that there is no constitutional right to have a school official intervene to prevent an unauthorized person from removing a child from school. But this was not just a failure to intervene. Under the facts as pled, Littlejohn had the authority to release Jane from his classroom and used it. By allowing Jane to leave his classroom with an unidentified adult, Littlejohn “created or increased the risk [of harm] itself.”

We find clear parallels between this case and our seminal state-created danger case, Kneipp v. Tedder. There, police officers stopped a couple walking home from a tavern, released the husband first -to relieve the babysitter, and then left the visibly intoxicated wife to walk home alone in the cold. Police later discovered the wife unconscious at the bottom of an embankment near her home. She suffered permanent brain damage as a result of her exposure to the cold. We concluded that the officers created a dangerous situation or at least made the intoxicated woman more vulnerable to danger. This was because the officers chose to displace the caretaker of someone who was clearly unable to care for herself. Having taken on responsibility for the woman’s wellbeing, the officers thereafter abandoned it and, in so doing, subjected a vulnerable individual to an obvious risk of harm — walking home alone in the cold while highly intoxicated.

The dynamic of a kindergarten classroom is similar. The state is responsible for the safety of very young children unable to care for themselves. Indeed, it is a responsibility the state undertakes when young children are left in its care. When Littlejohn surrendered that responsibility by releasing Jane to an unidentified adult, thereby terminating her access to the school’s care, he affirmatively misused his authority just as culpably as the officers in Kneipp misused theirs.

Our decision in Horton v. Flenory is similarly instructive. In that case, a police officer intervened in a dispute between a night club owner and a crime suspect, then allowed the night club owner to interrogate the' suspect, leading to the suspect’s death. We explained that the officer’s action in delegating his authority to the night club owner was “anything but passive,” as he “used his official status to confirm that [the night club owner] was free to continue the custodial interrogation” despite signs of physical mistreatment. In both Horton and this case, the particular responsibilities that were relinquished — interrogating suspects and protecting the safety of kindergarteners — were an integral part of the state actor’s job functions. In both cases, the state actor handed over their responsibility to a private actor who, under the circumstances, posed an obvious risk of harm to the plaintiff. Such actions are an affirmative misuse of state authority.

ii. Foreseeable and Fairly Direct Harm

Next, we ask whether “the harm ultimately caused was a foreseeable and a fairly direct result of the state’s actions.” L.R. alleges that Littlejohn “w[as] aware that releasing pupils to unidentified and otherwise unverified adults would result in harm to those pupils, including but not limited to sexual assault.” Defendants counter that the complaint is devoid of any facts that support the inference that Littlejohn could have known of Regusters’ intent to harm Jane. That is not the appropriate inquiry. Rather, the plaintiff must only “allege an awareness on the part of the state actors that rises to the level of actual knowledge or an awareness of risk that is sufficiently concrete to put the actors on notice of the harm.” We think the risk of harm in releasing a five-year-old child to a complete stranger was obvious.

A comparison of Kneipp with our decision in Morse v. Lower Merion School District illustrates this concept. In Kneipp, we explained that a highly intoxicated woman was “more likely to fall and injure herself if left unescorted than someone who was not inebriated,” and we indicated that the police officers’ “ordinary common sense and experience” sufficiently informed them of this risk. By contrast, we held in Morse that school officials could not have foreseen that allowing construction workers to leave the school’s rear entrance unlocked would result in the fatal shooting of a teacher by a trespasser. We explained that there was no allegation that the school was aware of the assailant or anyone else posing a credible threat of violence to persons inside the school. Rather, the only facts alleged that would have alerted school officials to any danger were that there had been “previous ‘security breaches’ by unnamed persons” and the assailant had been seen loitering in the school area the week before the shooting. This, we held, was not enough to warn officials that a person “would enter the school in search of a victim.”

Here, it was foreseeable that releasing a young child to a stranger could result in harm to the child. This inherent risk is not only a matter of experience as a teacher in charge of a kindergarten classroom, but, as in Kneipp, it is also a matter of common sense. Regardless of which of the many apparent risks of harm — whether kidnapping, child pornography, human trafficking, sexual assault or some other violation — came to pass, Littlejohn knew, or should have known, about the risk of his actions.

We also conclude that the harm ultimately caused to Jane was a fairly direct result of Littlejohn’s conduct. We have explained that, although this inquiry is fact-specific, “a distinction exists between harm that occurs to an identifiable or discrete individual ... and harm that occurs to a ‘random’ individual with no connection to the harm-causing party.” In Morse, we declined to find the school’s decision to allow the back door to remain open to be the “catalyst for the attack” on the teacher because “[t]he causation, if any, [was] too attenuated.” Here, randomness and attenuation are not in play. Littlejohn released Jane directly to the unidentified adult who sexually assaulted her the same day. On the facts as pled, Littlejohn’s actions were indeed the “catalyst for the attack.”

iii. Conscience-Shocking Conduct

We next consider whether Little-john’s actions “shock the conscience.” The Supreme Court has emphasized that the “touchstone of due process” is protection against arbitrary government action. Government action is “arbitrary in the constitutional sense” when it is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.”

The level of culpability required for behavior to shock the conscience largely depends on the context in which the action takes place. In a “hyperpressur-ized environment,” such as a high-speed police chase, intent to harm is required. But in situations “where deliberation is possible and officials have the time to make ‘unhurried judgments,’ deliberate indifference is sufficient.” On the facts as pled, the appropriate culpability standard here is deliberate indifference, since there is nothing to indicate that Littlejohn faced circumstances requiring him to make a quick decision. We have defined deliberate indifference as requiring a “conscious disregard of a substantial risk of serious harm.” That is, “deliberate indifference might exist without actual knowledge of a risk of harm when the risk is so obvious that it should be known.”

As we have already explained, the risk of harm in releasing a five-year-old child to an unidentified, unverified adult is “so obvious” as to rise to the level of deliberate indifference. The fact that there was a school policy in place prohibiting the release of pre-kindergarten through eighth grade students to an adult without proper documentation tends to show that school officials were aware that releasing a young child to a stranger is inherently dangerous. What is more, whether or not that policy existed, the fact that Littlejohn asked Re-gusters for her identification illustrates that Littlejohn himself was indeed aware of the risk of harm in releasing Jane to a stranger, even if he was unaware of Re-gusters’ specific criminal intent. That he still allowed Jane to leave despite Regus-ters’ failure to produce identification or verification, we think, rises to conscience-shocking behavior.

To support their contention that Little-john’s conduct could not shock the conscience, Defendants direct us to Doe ex rel. Magee v. Covington County School District, a Fifth Circuit case with some factual similarity to this case. In Doe, school employees on six separate occasions allowed a nine-year-old student to be checked out from school by a man claiming to be her father but who bore no relationship to her and was not listed on her check-out form. On each occasion, the man sexually assaulted the young student and then returned her to school. The Fifth Circuit concluded that, even assuming it recognized a state-created danger theory (to date it has not officially adopted this doctrine), the allegations failed because the complaint did “not allege that the school knew about an immediate danger to [the student’s] safety.” By contrast, we are comfortable concluding that Littlejohn’s conduct in releasing Jane to an adult who failed to identify herself démonstrated a “conscious disregard of a substantial risk of serious harm.”

iv. Foreseeable Victim

The “foreseeable victim” element requires that some sort of relationship exist between the state actor and the plaintiff such that the plaintiff was a foreseeable victim of the state actor’s conduct. This element is satisfied easily here. Jane was a member of the discrete class of kindergarten children for whose benefit the School District’s release policy had been instituted. In this sense, Jane was a foreseeable victim of Littlejohn’s actions.

For these reasons, we conclude that L.R. has sufficiently alleged all the elements of a state-created danger claim.

B. Whether the Right was Clearly Established

Having concluded that L.R. has sufficiently alleged a violation of her daughter’s substantive due process rights, we next ask whether the right was clearly established at the time of Littlejohn’s actions. We conclude it was. “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘the contours of a right are sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ ” The ultimate question is whether the state of the law when the offense occurred gave Littlejohn “fair warning that [his] alleged treatment of ' [Jane] was unconstitutional.” We look first to applicable Supreme Court precedent. “Even if none exists, it may be possible that a ‘robust consensus of cases of persuasive authority’ in the Court[s] of Appeals could clearly establish a right for purposes of qualified immunity.”

Defining the right at issue is critical to this inquiry. We must frame the right “in light of the specific context of the case, not as a broad general proposition.” “The dispositive question is whether the violative nature of particular conduct is clearly established.” “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful.” The Supreme Court has explained that, “[a]lthough earlier cases involving fundamentally similar facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary' to such a finding.” Indeed, the Court has made clear that “officials can still be on notice that their conduct violates established law even in novel factual circumstances.”

We stressed this concept in Estate of Lagano v. Bergen County Prosecutor’s Office. There too the plaintiff filed a § 1983 lawsuit under the state-created danger theory, claiming that police officers’ improper disclosure of Lagano’s status as a confidential informant ultimately led to his murder. After defining the right at issue as “a confidential informant’s constitutional right to nondisclosure,” the district court explained that there was no binding precedent acknowledging such a right in the state-created danger context and, accordingly, it granted the officers’ qualified immunity. We vacated that decision. We explained that the district court’s “unduly narrow construction of the right at issue” missed the mark, and exact congruence between prior cases and the current case was not required. Rather, the proper inquiry was “whether the facts averred by the Estate fall within the elements of the state-created danger theory, and whether it would be clear to a reasonable officer that the alleged disclosure was unlawful under the circumstances.”

Defendants argue that the District Court defined Jane’s right at the highest level of generality: “[Jane’s] Fourteenth Amendment right to bodily integrity ... under the state-created danger theory.” We agree that this definition is too broad. Individuals indeed have a broad substantive due process right to be free from “unjustified intrusions on personal security.” For example, the Supreme Court has described this “historic liberty interest” as “encompass[ing] freedom from bodily restraint and punishment.” In light of the specific allegations in the complaint, however, the right at issue here is an individual’s right to not be removed from a safe environment and placed into one in which it is clear that harm is likely to occur, particularly when the individual may, due to youth or other factors, be especially vulnerable to the risk of harm. Framed in this way, and surveying both our case law and that of our sister circuits, we conclude that this right was clearly established at the time of Littlejohn’s actions. Although there is no case that directly mirrors the facts here, as in Estate of Lagano, there are sufficiently analogous cases that should have placed a reasonable official in Littlejohn’s position on notice that his actions were unlawful.

Our decision in Kneipp is key. There, the officers’ decision to separate an intoxicated woman from her caretaker at the time, her husband, and the subsequent abandoning of the woman in her vulnerable state, led us to conclude that the officers could be liable for creating or enhancing the danger to which the woman was exposed. Similarly, in Rivas v. City of Passaic, we held that emergency medical technicians who told police officers that a man in the midst of a seizure had assaulted them, but failed to tell them about the man’s medical condition, could have created or enhanced the danger that ultimately led to his death. We explained that, at the time of the defendants’ actions, it was clearly established that “state actors may not abandon a private citizen in a dangerous situation, provided that the state actors are aware of the risk of serious harm and are partly responsible for creating the opportunity for that harm to happen.”

Other circuits have come to similar conclusions under analogous circumstances. For example, in White v. Rockford, the Seventh Circuit held that police officers who “abandon children and leave them in health-endangering situations after having arrested their custodian and thereby deprived them of adult protection” violate the children’s “right to be free from unjustified intrusions upon physical and emotional well-being.” There, officers arrested the children’s uncle for drag racing, then left the children with the immobilized car on a major highway on a cold evening. The concurring judge explained that arresting the uncle removed the children’s only protection against danger, and by not providing any alternative protection, the officers unnecessarily exposed the children to obvious hazards. As the Seventh Circuit later articulated in Bowers v. DeVito, “[i]f the state puts a [person] in' a position of danger from private persons and then fails to protect him, it will not be heard to say that its role was merely passive; it is as much an active tortfeasor as if it had thrown him into a snake pit.” Similarly, in Wood v. Ostrander, the Ninth Circuit held that a police officer who left a female passenger stranded late at night in a high-crime area after arresting the driver violated her constitutional right to personal security. The court explained that “the inherent danger facing a woman left alone at night in an unsafe area is a matter of common sense.”

This notion is not limited to circumstances in which police officers abandon private citizens in dangerous situations. In Currier v. Doran, the Tenth Circuit held that the plaintiff sufficiently pled a state-created danger claim when state social workers failed to investigate numerous allegations of child abuse and recommended that the children’s abusive father assume legal custody. In denying qualified immunity, the court concluded that a reasonable state official at the time would have known that “reckless, conscience shocking conduct that altered the status quo and placed a child at substantial risk of serious, immediate, and proximate harm was unconstitutional.” The Tenth Circuit had previously held that the parents of a special education student who committed suicide established a state-created danger claim when school officials sent the student home after he was acting up in school, despite knowing that he was having suicidal thoughts, he had access to firearms in his house, and his parents were not home.

Against this backdrop, we conclude that the state of the law in 2013 was sufficiently clear to put Littlejohn on notice that permitting a kindergarten student to leave his classroom with an unidentified adult could lead to a deprivation of that student’s substantive due process rights.

IV. CONCLUSION

State-created danger cases often involve unsettling facts and this case is no different. Even so, our resolution of the legal issues is straightforward. Exposing a young child to an obvious danger is the quintessential example of when qualified immunity should not shield a public official from suit. Accordingly, the order of the District Court is affirmed.

      . We will refer to the child as “Jane” throughout this opinion. This name is fictitious and we use it for ease of reference.

      . The complaint states that Philadelphia School District policy provides that only the principal or his/her designee, the assistant principal, or the teacher-in-charge may grant a release of students during the school day. The policy also states that (i) under no circumstances may a pre-kindergarten through eighth grade student be released without a properly identified adult, (ii) the adult's identification must be checked against school records, and (iii) the release must take place in the school office. Compl. (J.A. Vol. II 58-67) ¶¶ 15-16.

      . See Fed. R. Civ. P. 12(b)(6).

      . L.R. v. Sch. Dist. of Phila., 60 F.Supp.3d 584, 590 (E.D. Pa. 2014) (internal quotation marks omitted).

      . The District Court also held that L.R. sufficiently stated a claim for municipal liability against the School District and the School Reform Commission under a failure to train and supervise theory. See id. at 599-601. Defendants' appeal concerns only the District Court's denial of Littlejohn's claim of qualified immunity.

      . Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

      . Ashcroft v. Iqbal, 556 U.S. 662, 672, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).

      . Atkinson v. Taylor, 316 F.3d 257, 261 (3d Cir. 2003).

      . Harlow v. Fitzgerald, 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

      . Id. at 818, 102 S.Ct. 2727.

      . Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (internal quotation marks omitted).

      . Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

      . Iqbal, 556 U.S. at 673, 129 S.Ct. 1937.

      . Id. (internal quotation marks omitted).

      . Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992) (internal quotation marks omitted).

      . 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989).

      . Id. at 195, 109 S.Ct. 998.

      . Id. at 196, 109 S.Ct. 998 (emphasis added).

      . Id. at 201-02, 109 S.Ct. 998.

      . Id. at 197, 109 S.Ct. 998.

      . See id. at 201, 109 S.Ct. 998 (“While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them.”).

      . See Kneipp v. Tedder, 95 F.3d 1199, 1211 (3d Cir. 1996) ("[W]e hold that the state-created danger theory is a viable mechanism for establishing a constitutional claim under 42U.S.C. § 1983.”).

      . 443 F.3d 276 (3d Cir. 2006).

      . Id. at 281 (citations and internal quotation marks omitted).

      . Id. at 282.

      . See, e.g., Morrow v. Balaski, 719 F.3d 160, 179 (3d Cir. 2013) (en banc) ("[M]erely restating the Defendants’ inaction as an affirmative failure to act does not alter the passive nature of the alleged conduct.”); Sanford v. Stiles, 456 F.3d 298, 312 (3d Cir. 2006) (per curiam) ("Sanford has attempted to ‘recharacterize’ [the school guidance counselor’s] failures as ‘affirmative actions.’ We believe that this case is more about [her] failure to prevent Sanford’s death.”); D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1376 (3d Cir. 1992) (en banc) ("Accepting the allegations as true, [namely], that one school defendant was advised of the misconduct and apparently did not investigate, they show [inaction] but they do not rise to the level of a constitutional violation.”).

      . See Morrow, 719 F.3d at 198 (Fuentes, J., dissenting).

      . Bright, 443 F.3d at 281.

      . DeShaney, 489 U.S. at 201, 109 S.Ct. 998.

      . 719 F.3d 160.

      . Id. at 178.

      . Id.

      . Id. at 186 (Ambro, J., concurring in part and dissenting in part).

      . 95 F.3d 1199.

      . 889 F.2d 454 (3d Cir. 1989).

      . Id. at 458.

      . Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 908 (3d Cir. 1997).

      . Compl. ¶ 39.

      . Phillips v. Cty. of Allegheny, 515 F.3d 224, 238 (3d Cir. 2008) (emphasis added).

      . 132 F.3d 902.

      . Kneipp, 95 F.3d at 1208.

      . Phillips, 515 F.3d at 237 (citing Kneipp, 95 F.3d at 1208); cf. Wood v. Ostrander, 879 F.2d 583, 590 (9th Cir. 1989) (noting the "inherent danger facing a woman left alone at night in an unsafe area is a matter of common sense”).

      . Morse, 132 F.3d at 908.

      . Id.

      . Phillips, 515 F.3d at 239.

      . Morse, 132 F.3d at 909-10.

      . Cty. of Sacramento v. Lewis, 523 U.S. 833, 845, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (internal quotation marks omitted).

      . Id. at 846, 118 S.Ct. 1708 (quoting Collins, 503 U.S. at 129, 112 S.Ct. 1061).

      . Id. at 847 n.8, 118 S.Ct. 1708.

      . Sanford, 456 F.3d at 309.

      . Id.

      . Vargas v. City of Philadelphia, 783 F.3d 962, 973-74 (3d Cir. 2015) (quoting Ziccardi v. City of Philadelphia, 288 F.3d 57, 66 (3d Cir. 2002) (internal quotation marks omitted)).

      . Phillips, 515 F.3d at 241 (quoting Sanford, 456 F.3d at 309).

      . 675 F.3d 849 (5th Cir. 2012) (en banc).

      . Id. at 866.

      . Vargas, 783 F.3d at 973-74 (quoting Ziccardi, 288 F.3d at 66 (internal quotation marks omitted)).

      . A "special relationship” is not required. Indeed, this is an entirely separate theory on which to base a substantive due process claim, applicable when "the State takes a person into its custody and holds him there against his will.” Morrow, 719 F.3d at 167 (quoting DeShaney, 489 U.S. at 199-200, 109 S.Ct. 998). In the public high school context, we have explained that compulsory attendance laws and in loco parentis authority do not give rise to a special relationship between schools and their students. Id. at 171-72; Middle Bucks, 972 F.2d at 1371-72. In Morrow, however, we left open the possibility that a special relationship between a school and its students could arise under certain “unique and narrow circumstances,” 719 F.3d at 171, as when a school locks classroom doors or otherwise imposes limitations on a student’s “freedom to act on his own behalf.” Id. at 181 (quoting DeShaney, 489 U.S. at 200, 109 S.Ct. 998). We have never addressed the special relationship theory in the context of a school’s youngest and most vulnerable students. Although we decline to do so here, as L.R. does not raise this claim, we note that, at some point, the age and/or dependency of certain students in combination with restraints a school may place on its students may indeed forge a "special relationship.” See, e.g., Ingraham v. Wright, 430 U.S. 651, 670, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977) ("Except perhaps when very young, the child is not physically restrained from leaving school during school hours .... ” (emphasis added)).

      . al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).

      . Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002).

      . Mammaro v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (quoting Taylor v. Barkes, - U.S. -, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (per curiam)).

      . Saucier, 533 U.S. at 201, 121 S.Ct. 2151.

      . Mullenix v. Luna, - U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per cu-riam) (internal quotation marks omitted).

      . Anderson, 483 U.S. at 640, 107 S.Ct. 3034.

      . Hope, 536 U.S. at 741, 122 S.Ct. 2508 (internal quotation marks omitted).

      . Id. (citing United States v. Lanier, 520 U.S. 259, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997)).

      . 769 F.3d 850 (3d Cir. 2014).

      . Id. at 859.

      . Id.

      . Id. (internal quotation marks omitted); see, e.g., Mammaro, 814 F.3d at 169 (explaining that, in defining the right at issue, the court must “consider the substantive due process right of Mammaro as a parent in light of the specific allegations in her amended complaint”).

      . L.R., 60 F.Supp.3d at 596.

      . Ingraham, 430 U.S. at 673, 97 S.Ct. 1401.

      . Id. at 673-74, 97 S.Ct. 1401.

      . 365 F.3d 181 (3d Cir. 2004).

      . Id. at 194-95.

      . Id. at 200.

      . 592 F.2d 381 (7th Cir. 1979).

      . Id. at 382, 386.

      . Id. at 382.

      . Id. at 387-88 (Tone, J., concurring).

      . 686 F.2d 616 (7th Cir. 1982).

      . Id. at 618.

      . 879 F.2d 583 (9th Cir. 1989).

      . Id. at 590 ("The fact that [the officer] arrested [the driver], impounded his car, and apparently stranded Wood in a high-crime area at 2:30 a.m. distinguishes Wood from the general public and triggers a duty of the police to afford her some measure of peace and safety.”).

      . Id.

      . 242 F.3d 905 (10th Cir. 2001).

      . Id. at 919-20. In distinguishing these circumstances from DeShaney, the Tenth Circuit explained that, "[i]n this case, Anthony and Latasha were removed from their mother and placed with their father. In DeShaney, Joshua was removed from his father and then returned to his father.” Id. at 918. Thus, “Anthony and Latasha would not have been exposed to the dangers from their father but for the affirmative acts of the state; the same cannot be said for Joshua in DeShaney." Id.

      . Id. at 924.

      . Armijo by and through Chavez v. Wagon Mound Pub. Sch., 159 F.3d 1253, 1264 (10th Cir. 1998).

      . See also Frances-Colon v. Ramirez, 107 F.3d 62, 63-64 (1st Cir. 1997) (explaining that a substantive due process violation occurs when a state actor "affirmatively acts to increase the threat of harm to the claimant or affirmatively prevents the individual from receiving assistance”); Pinder v. Johnson, 54 F.3d 1169, 1177 (4th Cir. 1995) ("[S]tate actors may not disclaim liability when they themselves throw others to the lions.”); Sciotto v. Marple Newton Sch. Dist., 81 F.Supp.2d 559, 570 (E.D. Pa. 1999) (concluding that "it was clearly established ... that a student enjoy[s] a constitutional right to be free from school officials’ deliberate indifference to, or acts that increase the risk of serious injury from[,] unjustified invasions of bodily integrity perpetrated by third parties”).


author: FISHER, Circuit Judge.

text:
    Robert ADDIE; Jorge Perez; Jason Taylor, Appellants in 14-4265 v. Christian KJAER; Helle Bundgaard; Steen Bundgaard; John Knud Fürst; Kim Fürst; Nina Fürst; Kevin F. D’Amour Christian Kjaer; Helle Bundgaard; Steen Bundgaard; John Knud Fürst; Kim Fürst; Nina Fürst, Appellants in 14-4395 Kevin F. D’Amour, Appellant in 14-4394
    Nos. 14-4265, 14-4394 and 14-4395
    United States Court of Appeals, Third Circuit.
    Argued December 10, 2015
    (Filed: September 7, 2016)

      Robert L. Byer, Duane Morris, 600 Grant Street, Suite 5010, Pittsburgh, PA 15219, Robert M. Palumbos [ARGUED], John J. Soroko, Andrew R. Sperl, Dnane Morris, 30 South 17th Street, United Plaza, Philadelphia, PA 19103, Counsel for Appellants Robert Addie et al.
    Carol G. Hurst, 3562 Honduras, Suite 7, St. Thomas, VI 00802, Sherry L. Taitón [ARGUED], 302 North Market Street, Suite 450, Dallas, TX 75202, Counsel for Appellees/Cross-Appellants Christian Kjaer et al.
    Maria T. Hodge, Esq. [ARGUED], Gay-lin Vogel, Esq., Hodge & Hodge, 1340 Taarneberg, St. Thomas, VI 00802, Counsel for Appellee/Cross-Appellant Kevin F. D’Amour
    Before: FISHER, KRAUSE, and ROTH, Circuit Judges.
   OPINION OF THE COURT

FISHER, Circuit Judge.

The romantic notion of having an island to one’s self has long captivated people’s imagination. Twelve years ago, the parties to this case contemplated the sale and purchase of a small island in the U.S. Virgin Islands. The deal fell apart and took a decidedly unromantic turn — the parties have been litigating the aftermath ever since. We addressed the merits of the parties’ claims in a previous opinion, Addie v. Kjaer, 737 F.3d 854 (3d Cir. 2013). At issue in the present appeals are prejudgment and postjudgment interest and attorney’s fees.

I

Our previous opinion provided a detailed factual and procedural history. Id. at 857-61. There is no need to rehash that history in its entirety here, so what follows is a condensed version.

In 2004, Robert Addie, Jorge Perez, and Jason Taylor entered into several contracts to buy a small island off the coast of St. Thomas and a launch point on St. Thomas for, respectively, $21,000,000 and $2,500,000. The sellers were Christian Kjaer and his family members Helle Bund-gaard, Steen Bundgaard, John Knud Fürst, Kim Fürst, and Nina Fürst. The sellers’ attorney was Kevin D’Amour, who was also the sole owner of the escrow company involved in the transaction. The contracts required the buyers to pay a deposit of $1,000,000. The buyers later paid an additional $500,000 to extend the closing date. Taylor provided the money for these deposits, which were nonrefundable. After another extension of the closing date, the buyers had not paid the purchase price, and the sellers had not conveyed marketable title. D’Amour sent the buyers a notice of default, and the buyers in turn demanded that the deposits be refunded. Shortly thereafter, the buyers sued the sellers and D’Amour in the District Court of the Virgin Islands, asserting various tort and contract claims. The sellers filed counterclaims.

The district court granted summary judgment to the buyers on a conversion claim against D’Amour for $500,000. The remaining claims were tried to a jury, which awarded Taylor (alone) $1,546,000 (remitted to $1,500,000) in contract damages from the sellers and $46,000 for fraudulent misrepresentation by D’Amour. The jury awarded the sellers $339,516.76 in damages from Addie and Perez for misrepresenting their ability to purchase the properties, but the district court granted Addie and Perez judgment as a matter of law because it concluded that the tort claims were barred by the gist of the action doctrine. On motion by the sellers, the district court reduced Taylor’s contract damages award to $0, concluding that no damages were appropriate since all parties had breached the contracts. The district court upheld the fraudulent misrepresentation verdict against D’Amour for $46,000.

On appeal, we concluded that the gist of the action doctrine applied and barred all tort claims. Id. at 865. We affirmed the order granting judgment as a matter of law to Addie and Perez and reversed both the order granting summary judgment against D’Amour and the jury verdict against D’Amour. We concluded that the buyers and the sellers failed to perform under the contracts and affirmed the order of the district court denying all damages for breach of contract. Id. at 864. But we also concluded that Taylor was entitled to restitution from the sellers in the amount of $1,500,000. Id. at 864-65.

On remand, the district court entered judgment for Taylor for $1,500,000 on April 3, 2014. The district court entertained motions from Taylor (for prejudgment interest, costs, and attorney’s fees) and D’Amour (for costs and attorney’s fees).

The district court found that awarding prejudgment interest at the statutory rate of 9 percent “would amount to a windfall,” and instead awarded prejudgment interest at a rate of 3 percent for the time during which the sellers possessed the funds— September 22, 2004, to April 26, 2010, and November 7, 2011, to April 3, 2014. (App. 219.) From April 26, 2010, to November 7, 2011, the funds were deposited in the registry of the district court, and the court awarded the interest actually earned during that period. The district court concluded that postjudgment interest should run from April 3, 2014, the date of its judgment after remand, and not August 14,' 2009, the date of its original judgment.

The district court declined to award attorney’s fees to Taylor, concluding that he “was a prevailing party in a meaningful sense on only one claim' — -unjust enrichment.” (App. 217.) Taylor’s “role in breaching the contract” and the complexity of the case “counselled] against awarding any party attorney’s fees.” (App. 217-18.) The district court concluded that D’Amour was not entitled to an award of attorney’s fees because of his conduct. The court noted that the jury found he made fraudulent misrepresentations and fraudulently failed to disclose information he was under a duty to disclose. Taylor, the sellers, and D’Amour filed notices of appeal.

II

We are faced with five issues in these appeals. First, we address whether it was appropriate to award prejudgment interest on the $1,500,000 in restitution awarded to Taylor, and, if so, whether the district court erred by awarding 3 percent interest. We conclude that prejudgment interest at 9 percent is mandatory in this case under the Virgin Islands prejudgment interest statute. Second, we review the district court’s decision to award only the actual interest earned while the disputed funds were in the court’s registry, and we find no error in that decision. Third, we conclude that the district court was correct to award postjudgment interest from the date of the judgment after remand rather than the date of the original judgment following the jury verdict. Fourth and fifth, we find that the district court did not abuse its discretion by declining to award attorney’s fees to Taylor and D’Amour.

A

We start our prejudgment interest analysis with the Virgin Islands prejudgment interest statute, which provides, in pertinent part:

(a) The rate of interest shall be nine (9%) per centum per annum on — (1) all monies which have become due; (2) money received to the use of another and retained beyond a reasonable time without the owner’s consent, either express or implied; (3) money due upon the settlement of matured accounts from the day the balance is ascertained; and (4) money due or to become due where there is a contract and no rate is specified.

V.I. Code tit. 11, § 951(a).

The district court found that Taylor was entitled to prejudgment interest. But the court was concerned that prejudgment interest at 9 percent was “a substantial sum” — approximately $1,300,000 — that was “nearly equivalent to the judgment amount.” (App. 219.) The court considered this “a windfall.” (Id.) Accordingly, it reduced the interest rate to 3 percent for the periods during which the funds were in the sellers’ possession.

The sellers assert that the district court erred by awarding any prejudgment interest. Taylor argues that the district court erred by awarding less than the 9 percent interest rate specified by V.I. Code tit. 11, § 951(a). The question we must answer, then, is whether awarding prejudgment interest under V.I. Code tit. 11, § 951(a) is mandatory. We hold that it is mandatory in this case for three reasons.

First, the statute is worded in mandatory terms. It is a simple command: the rate of interest “shall be” 9 percent. Where the Legislature of the Virgin Islands intended to give courts discretion, it did so explicitly. E.g., V.I. Code tit. 5, § 541(b) (“[Tjhere shall be allowed to the prevailing party in the judgment such sums as the court in its discretion may fix by way of indemnity for his attorney’s fees.... ”). The prejudgment interest statute affords no such discretion.

Second, courts have interpreted similarly worded statutes from other states as mandatory. For example, New York law provides that

[ijnterest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment' of, property, except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court’s discretion.

N.Y. C.P.L.R. § 5001(a) (emphasis added).' Under this statute, prejudgment interest is mandatory in a breach of contract action. New England Ins. Co. v. Healthcare Underwriters Mut. Ins. Co., 352 F.3d 599, 606 (2d Cir. 2003). The interest rate is also mandatory under New York law. N.Y. C.P.L.R. § 5004 (“Interest shall be at the rate of nine per centum per annum, except where otherwise provided by statute.”); Oy. Saimaa Lines Logistics Ltd. v. Mozaica-N.Y., Inc., 193 F.R.D. 87, 90 (E.D.N.Y. 2000) (“Under New York law, the court has no discretion to award prejudgment interest at a rate higher than the statutory rate.”); cf. Int’l Telemeter Corp. v. Hamlin Int’l Corp., 754 F.2d 1492, 1494 (9th Cir. 1985) (“Under New York law, the district court had no discretion to deviate from the 9% rate in awarding post-judgment interest.”).

Massachusetts has a similarly phrased statute for prejudgment interest in tort actions. Under Massachusetts law,

[i]n any action in which a verdict is rendered or a finding made or an order for judgment made for pecuniary damages for personal1 injuries to the plaintiff or for consequential damages, or for damage to property, there shall be added by the clerk of court to the amount of damages interest thereon at the rate of twelve per cent per annum from the date of commencement of the action....

Mass. Gen. Laws Ch. 231, § 6B (emphasis added). This prejudgment interest is mandatory. Bennett v. City of Holyoke, 362 F.3d 1, 11 (1st Cir. 2004). So is the 12 percent interest rate. Doty v. Sewall, 908 F.2d 1053, 1063 (1st Cir. 1990).

Third, the Virgin Islands decision that the district court cited in finding it had discretion over whether to award prejudgment interest, Rasmussen v. Dalmida, 50 V.I. 1032 (D.V.I. 2008), relied on inapposite authority. In Rasmussen, the district court stated that “[a] court may exercise its discretion to award prejudgment interest ‘upon considerations of fairness and prejudgment interest may be denied when its exaction would be inequitable.’ ” Id. at 1039-40 (quoting Thabault v. Chait, 541 F.3d 512, 534 (3d Cir. 2008)). Thabault was a diversity case in which we applied New Jersey law. The New Jersey prejudgment interest statute, unlike that of the Virgin Islands (or New York or Massachusetts), explicitly permits courts to “suspend the running” of prejudgment interest “in exceptional cases.” N.J. Court R. 4:42-ll(b). The Thabault decision provides no basis to conclude that prejudgment interest in the Virgin Islands is similarly discretionary.

Rasmussen also cited Anthuis v. Colt Industries Operating Corp., 971 F.2d 999, 1010 (3d Cir. 1992), and Knapp v. Ernst & Whinney, 90 F.3d 1431, 1442 (9th Cir. 1996). In Anthuis, an ERISA case, we noted that, “[i]n the absence of an explicit congressional directive, the awarding of prejudgment interest under federal law is committed to the trial court’s broad discretion.” 971 F.2d at 1009 (quoting Ambromovage v. United Mine Workers, 726 F.2d 972, 981-82 (3d Cir. 1984)). In Knapp, a securities law case under section 10(b) of the Securities Exchange Act and Rule 10b-5, the Court of Appeals for the Ninth Circuit stated that it was appropriate for the district court to deny prejudgment interest when it would amount to “a windfall recovery” for the plaintiff. 90 F.3d at 1442. ERISA and Rule 10b-5 do not provide for prejudgment interest and thus fall under the general, court-made rule committing the question to the discretion of the district courts. These decisions, and other decisions interpreting federal statutes without a prejudgment interest provision, are simply not relevant for interpreting V.I. Code tit. 11, § 951(a).

We must address one additional argument that the district court could exercise its discretion in this case. The sellers argue that, because the recovery was for restitution rather than breach of contract, the district court had the authority to vary from the statutory rate by exercising its equitable powers. Sellers support this contention by citing Peterson v. Crown Financial Corp., 661 F.2d 287 (3d Cir. 1981). Interpreting Pennsylvania law, we found in Peterson that “because [the plaintiffs] claim sounds in restitution, it calls for the exercise of the court’s broader equitable powers.... [T]he trial judge does have discretion in such cases to award damages in the nature of prejudgment interest in an amount greater than [the] six percent [provided by statute].” Id. at 292-93.

The applicable Pennsylvania statute provided that

Reference in any law or document enacted or executed heretofore or hereafter to “legal rate of interest” and reference in any document to an obligation to pay a sum of money “with interest” without specification of the applicable rate shall be construed to refer to the rate of interest of six per cent per annum.

41 Pa. Stat. § 202. By its terms, this statute applies to contracts and contractual damages. See Peterson, 661 F.2d at 292 (“[U]nder Pennsylvania law, prejudgment interest in the ordinary suit for contract damages is limited to the six percent legal rate.”). In contrast, the Virgin Islands statute is broader and applies to “all monies which have become due,” not just money due under a contractual theory of recovery. V.I. Code tit. 11, § 951(a)(1).

For these reasons, we hold that prejudgment interest at 9 percent is required in this case. The Legislature of the Virgin Islands has determined that prejudgment interest is to be awarded at the rate of 9 percent, and it is not our place to alter the statute or add our gloss to it. The district court erred by awarding interest at a rate other than the rate provided by statute.

B

We next turn to the interest awarded for the period during which the disputed funds were in the registry of the district court, April 14, 2010, to November 7, 2011. The district court explained that the court “is not a for-profit enterprise, nor is it in the business of generating profit for parties.” (App. 220.) For that reason, the court ordered that Taylor receive the actual interest earned while the money was in the registry of the court. This was $19,650.45. Taylor argues that the district court should have awarded him 9 percent prejudgment interest even for the period during which the funds were in the registry of the court, a substantially larger sum.

Under our precedent, however, the district court was correct. In Hartford Accident & Indemnity Co. v. Sharp, 87 F.3d 89 (3d Cir. 1996), we interpreted V.I. Code tit. 11, § 951(a) to permit prejudgment interest from the date a notice of claim was filed until the date the defendant deposited the funds into the district court’s registry. Id. at 93 (citing Atlin v. Security-Conn. Life Ins. Co., 788 F.2d 139, 142 (3d Cir. 1986), for the proposition that “no interest runs against the stakeholder after he pays the disputed sum into court”). In Atlin, we noted two factors supporting the conclusion that paying the funds into the court relieves the paying party from prejudgment interest: “First, the stakeholder no longer has access to the money and enjoys no further benefit. Second, while deposited in the registry, the money presumably will be invested and accrue interest for the benefit of the ultimate recipient.” Atlin, 788 F.2d at 142.

Given this clear authority, the district court did not err by awarding Taylor only the actual interest earned while the funds were in the registry of the court. We will affirm the judgment of the district court in this respect.

C

The sellers assert that the district court erroneously determined the date prejudgment interest ends and post-judgment interest begins. The sellers argue that postjudgment interest should accrue from August 14, 2009, when the district court entered its original judgment following the jury verdict. Taylor argues that the district court correctly awarded postjudgment interest from April 3, 2014, the date of the district court’s judgment after remand.

Our review of the district court’s determination of the accrual date for post-judgment interest is plenary. Loughman v. Consol-Pa. Coal Co., 6 F.3d 88, 97 (3d Cir. 1993). There are no relevant decisions interpreting the Virgin Islands post-judgment interest statute, V.I. Code tit. 5, § 426. Our analysis is guided by the federal postjudgment interest statute, 28 U.S.C. § 1961, which we have noted is “analogous” to V.I. Code tit. 5, § 426. Christian v. Joseph, 15 F.3d 296, 298 (3d Cir. 1994).

Whether postjudgment interest should run from the date of the original judgment following the jury verdict or the post-remand judgment “turns on the degree to which the original judgment was upheld or invalidated on appeal.” Loughman, 6 F.3d at 97 (interpreting 28 U.S.C. § 1961). The application of this standard is fact specific. For example, “if the original judgment is affirmed in whole, such as where the court of appeals reverses the district court’s grant of judgment n.o.v. and orders the original judgment reinstated in its entirety, post-judgment interest will accrue from the date of. the first judgment.” Id. at 98. To the contrary, if the original judgment is reversed, post-judgment interest accrues from the date of the judgment after remand. “[Djistilled to its essence,” the inquiry is when “liability and damages, as finally determined, were ascertained or established.” Id.

In this case, the jury determined that the sellers were liable to Taylor for $1,546,000 in damages for breach of contract, which the district court remitted to $1,500,000 in its judgment dated August 14, 2009. The sellers moved for judgment as a matter of law or amended judgment. The district court found that Taylor failed to tender performance and was barred from recovering on his breach of contract claim. In an order dated March 1, 2011, the court amended the judgment from $1,500,000 to $0. In the first appeal, we agreed that neither Taylor nor the sellers could recover for breach of contract but found that Taylor was entitled to restitution of the $1,500,000 deposit. Addie, 737 F.3d at 865. On April 3, 2014, the district court ordered that the sellers return Taylor’s $1,500,000 deposit and entered judgment in that amount.

The sellers argue that damages were ascertained at the time of the August 2009 judgment because “[t]he amount of the award is the amount of Taylor’s deposit, which has always been known in this litigation.” (Seller’s Br. 40.) The sellers assert that the fact that the legal theory underlying the damage award changed from breach of contract to restitution is irrelevant. This argument is unavailing.

When the legal basis for the judgment changes after appeal, postjudgment interest properly begins from the time of the judgment after remand. See Loughman, 6 F.3d at 97-98 (“In general, where a .first judgment lacks an evidentiary or legal basis, post-judgment interest accrues from the date of the second judgment; where the original judgment is basically sound but is modified on remand, post-judgment interest accrues from the date of the first judgment.” (quoting Cordero v. De Jesus-Mendez, 922 F.2d 11, 16 (1st Cir. 1990))); Lewis v. Whelan, 99 F.3d 542, 545 (2d Cir. 1996) (“[Wjhere the first judgment is vacated because it lacks a legal basis or requires further factual development, the vacated award should be treated as a nullity and post-judgment interest therefore accrues from the entry of judgment on remand.”).

As we set forth in the first Addie decision, we affirmed the amended judgment of $0 on the contractual claims because there was no legal basis for the breach of contract damages awarded to Taylor in the August 2009 judgment. Addie, 737 F.3d at 864. Although the amount of Taylor’s recovery ultimately was the same in the 2009 and 2014 judgments, the nature and legal basis for the judgments changed. In accordance with our instructions, on remand in 2014, the district court granted Taylor recovery on his unjust enrichment claim. Back in 2009, the jury found for Taylor on this claim during the liability phase of the trial, but the district court withdrew it from the jury during the damages phase, eventually holding that an unjust enrichment award is inappropriate where there are valid contracts. Addie, 737 F.3d at 860. Because the district court withdrew it from the jury, there was no judgment on the unjust enrichment claim. Thus, this is not one of those cases in which,a court of appeals reversed a judgment of damages n.o.v. and reinstated a jury verdict. The final determination of liability and damages was not ascertained or established until the judgment of April 3, 2014, and the district court correctly determined that this was the date from which postjudgment interest accrues. Loughman, 6 F.3d at 98. We will therefore affirm the district court’s judgment on this issue.

D

The Virgin Islands Code authorizes courts to award attorney’s fees to the “prevailing party in the judgement.” V.I. Code tit. 5, § 541(b). Whether to award attorney’s fees and the amount of any award is within the discretion of the district court and will only be reversed for a clear abuse of discretion. Id.; Lucerne Inv. Co. v. Estate Belvedere, Inc., 411 F.2d 1205, 1207 (3d Cir. 1969). The determination of whether a party is a “prevailing party” under the statute is a legal question subject to plenary review. See Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 163 (3d Cir. 2002) (interpreting “prevailing party” in the context of 42 U.S.C. § 1988). Taylor argues that the district court erroneously determined that he was not a prevailing party and asks us to reverse and remand so that the district court can properly exercise its discretion in the first instance.

Taylor’s interpretation of the district court’s opinion is flawed. The district court did not determine that Taylor was not a prevailing party; instead, it exercised its discretion to award no fees despite Taylor’s being a prevailing party. Cf. Raab v. City of Ocean City, 833 F.3d 286, 293, 2016 WL 4268940 (3d Cir. 2016) (noting that in the context of § 1988, prevailing party status is necessary but not sufficient to justify a fee award). The district court noted that “Taylor was a prevailing party in a meaningful sense on only one claim — unjust enrichment.” (App. 217.) The district court explained that “Taylor, and his co-plaintiffs, failed on the vast majority of claims that they brought during the course of this litigation.” (Id.) The district court considered “[t]he complexity of [the] matter, ... the inextricably intertwined breaches occasioned by each party to the transaction,” and “the balance between prevailing claims and failed claims.” (App. 217-18.) Weighing these considerations, the district court exercised its discretion and declined to award Taylor attorney’s fees.

Alternatively, Taylor argues that the district court failed to make sufficient factual findings to support a discretionary denial of attorney’s fees to Taylor. Taylor argues that the district court’s reliance on the balance between prevailing claims and failed claims is erroneous due to a flawed prevailing party analysis and that Taylor’s role in breaching his obligations under the contract was irrelevant.

The district court did not engage in a flawed prevailing party analysis. And Taylor cites no cases for the proposition that considering a party’s conduct is entirely irrelevant for determining whether to award attorney’s fees. In similar contexts, courts have approved considering a party’s conduct when deciding whether to award attorney’s fees. For example, in the context of whether to award fees under ERISA, which also permits a discretionary award of attorney’s fees, 29 U.S.C. § 1132(g)(1), we have instructed district courts to consider five factors, including “the offending parties’ culpability or bad faith” and “the relative merits of the parties’ position.” Ursic v. Bethlehem Mines, 719 F.2d 670, 673 (3d Cir. 1983). These two factors are fairly analogous to considering the balance of the claims won and lost between the parties and the parties’ underlying conduct.

Declining to award attorney’s fees to Taylor was not an abuse of discretion.

E

D’Amour also appeals the district court’s denial of his motion for attorney’s fees. In ruling on D’Amour’s motion, the district court considered D’Amour’s conduct. In ruling on the parties’ summary judgment motions, the district court found that D’Amour was liable to the buyers for conversion as a matter of law, and the jury found that D’Amour committed fraud. In the first appeal, we held that the gist of the action doctrine barred the conversion and fraud claims. Nevertheless, on remand the district court found that D’Amour’s underlying conduct weighed against awarding attorney’s fees even though he was a prevailing party.

D’Amour argues that the district court abused its discretion by relying on facts found by the jury during the jury’s consideration of legally barred claims. According to D’Amour, our ruling in the first appeal that the gist of the action doctrine barred the tort claims “plainly warrants the conclusion that any prior findings of the lower court with respect to the improper tort claims were erroneous, and such findings are therefore legally irrelevant.” (D’Amour’s Br. 13.) D’Amour cites no decisions supporting this position.

When we vacated the judgments against D’Amour — -because the tort claims were inextricably intertwined with breach of contract claims — the conduct that led the court and the jury to find wrongdoing by D’Amour did not disappear. D’Amour’s argument that his conduct cannot be considered because he could not be liable in tort is not persuasive. The district court did not abuse its discretion by considering D’Amour’s conduct. We will affirm the denial of D’Amour’s motion for attorney’s fees.

Ill

For the reasons set forth above, we affirm the district court’s judgment in all respects except where it awarded prejudgment interest at a rate other than the statutorily provided 9 percent. On the issue of the prejudgment interest rate we reverse and remand.

      . The district court also dismissed the buyers’ claims against the sellers for negligent misrepresentation, fraud, and conversion.

      . Addie and Perez disclaimed any interest in the $1,500,000 awarded to Taylor.

      . The district court had jurisdiction under 48 U.S.C. § 1612(a) and 28 U.S.C. § 1332. We have jurisdiction under 28 U.S.C. § 1291.

      . The district court had awarded prejudgment interest at 9 percent in the 2009 judgment following the jury verdict.

      . We have not previously considered whether courts have discretion under V.I. Code tit. 11, § 951(a). We have noted, however, that under Virgin Islands law, "the district court is given discretion to award prejudgment interest on unliquidated sums as justice requires.” Am. Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 329 (3d Cir. 1985) (emphasis added). This pronouncement is consistent with V.I. Code tit. 11, § 951(a), which applies to money that is due — in other words, liquidated sums.

      . Other decisions of lower courts in the Virgin Islands have stated that awarding prejudgment interest is discretionary. See, e.g., Dewerd v. Bushfield, 993 F.Supp. 365 (D.V.I. App. Div. 1998) (reviewing the trial court's decision to grant prejudgment interest for abuse of discretion); Bookworm, Inc. v. Tirado, No. Civ. 538/1997, 2002 WL 1765782 (V.I. Terr. Ct. July 1, 2002). We are not bound by those decisions, and we find them similarly mistaken.

      . New York's prejudgment 'interest statute similarly provides discretion in equitable actions, and in this respect it differs from V.I. Code tit. 11, § 951(a). N.Y. C.P.L.R. § 5001(a).

      . Should the Legislature of the Virgin Islands determine that 9 percent is too high or that courts should have discretion in making interest awards, it is perfectly capable of amending the law, as it has done in other contexts. The Virgin Islands postjudgment interest statute, V.I. Code tit. 5, § 426, formerly provided for a 9 percent interest rate but was amended in 2001 to reduce the rate to 4 percent. No similar change was made to V.I. Code tit. 11, § 951(a).

      . We do not share the district court’s concern that awarding Taylor prejudgment interest at the statutorily required rate of 9 percent would amount to a windfall. When Taylor handed over his deposit in 2004, interest rates were significantly higher than they are today. Before they fell to the current rate of around 3.5 percent, prime lending rates, for example, were around 5 percent in 2004, steadily climbed to around 8 percent by 2006, and hovered around 6 to 8 percent until 2008. See Selected. Interest Rates (Weekly) — H.1S, Bd. of Governors of Fed. Reserve Sys., http.7/wuw. federalreserve.gov/releases/hl5/default.htm (last visited Aug. 25, 2016) (Federal Reserve statistical sheets for 2004, 2006, 2007, 2008, and 2016); Levan v. Capital Cities/ABC, Inc., 190 F.3d 1230, 1235 n.12 (11th Cir. 1999) (taking judicial notice of the prime rate). Putting aside these fluctuations, the interest Taylor could have otherwise collected on his $1,500,000 is significant when we consider monthly compounding over the course of a decade. For example, monthly compounding of $1,500,000 at an interest rate of 3.5 percent over ten years would yield over $600,000 in interest, and compounding at a rate of 6 percent would result in interest of $1,200,000. Using another proxy, if Taylor invested his $1,500,000 in a S & P 500 stock market index fund over this time period, he could have expected to roughly double his investment, assuming dividend reinvestment. See Chris Kahn, Historical returns investing calculator, Bankrate.com, http://www.bankrate.com/ finance/investing/historical-returns-investing-calculator.aspx (last visited Aug. 25, 2016). In our view, these considerations counterbalance what might otherwise seem like a windfall for Taylor.

      . This dispute is animated by the difference between the statutory prejudgment interest rate (9 percent) and the statutory post-judgment interest rate (4 percent). Compare V.I. Code tit. 11, § 951(a), with V.I. Code tit. 5, § 426.