Bagby v. Beal

• Decision Date: 05 October 1979
• Docket Number: Nos. 78-2195,78-2408,78-2605 and 78-2606,s. 78-2195
• Citation: 606 F.2d 411
• Parties: Elizabeth V. BAGBY v. Frank S. BEAL, Individually and in his official capacity as Secy. of the Pa. Dept. of Public Welfare, et al., Donald E. Downs and Thomas F. Brubaker, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 411

606 F.2d 411

Elizabeth V. BAGBY v. Frank S. BEAL, Individually and in his official capacity as Secy. of the Pa. Dept. of Public Welfare, et al. Donald E. Downs and Thomas F. Brubaker, Appellants.

Nos. 78-2195, 78-2408, 78-2605 and 78-2606.

United States Court of Appeals Third Circuit.

Argued Sept. 6, 1979.

Decided Oct. 5, 1979.

Robert B. Hoffman, Deputy Atty. Gen. (argued), David Max Baer, Deputy Atty. Gen., Norman J. Watkins, Deputy Attys. Gen., Chief, Civil Litigation, Edward G. Biester, Jr., Acting Atty. Gen., Dept. of Justice, Commonwealth of Pennsylvania, Harrisburg, Pa., for appellants.

Donald Marritz, Legal Services, Inc., Gettysburg, Pa. (argued), Joan Bertin Lowy, National Employment Law Project, New York City, for appellee.

Before SEITZ, Chief Judge, and VAN DUSEN and GIBBONS, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

I.

This is an appeal by the Secretary of the Pennsylvania Department of Public Welfare and the administrator and personnel officer of South Mountain Restoration Center (South Mountain) from a final order of the district court. The order declared that the appellants had violated appellee's constitutional rights under the fourteenth amendment and awarded appellee attorney's fees.

The dispute centers on appellants' suspension of appellee from her employment. On March 15, 1976, the Pennsylvania Civil Service Commission (the Commission) appointed appellee to the position of licensed practical nurse, probationary status, at South Mountain. Approximately five months later, in early August 1976, five of appellee's co-workers accused her of stealing state property. On September 9, 1976, appellant Brubaker, the personnel officer at South Mountain, told the appellee to attend a meeting in his office later that afternoon. She was not informed that the purpose of the meeting was to determine the facts surrounding the theft allegations until she arrived at the meeting. Once there, she was a given a chance to present any person who might possess relevant information to rebut the charges, but her only response was that all the charges were lies.

During the next week, two important events occurred. First, three of appellee's co-workers informed Brubaker that appellee also had abused patients during the performance of her nursing duties. Second, appellee, unaware of these latest charges, met with appellant Downs, the administrator of South Mountain, regarding the theft allegations, and he told her that he would look into the matter. On September 17, Downs informed the appellee by letter that she had been suspended without pay. The suspension lasted ten days.

Appellee appealed her suspension to the Commission, which declined to review her case. She then filed this action under 42 U.S.C. § 1983 (1976), alleging that the failure to give sufficient notice of the September 9, 1976 meeting or to afford her an opportunity to rebut the abusive treatment charges violated due process. On November 2, 1976, her employment was terminated for reasons unrelated to this lawsuit.

The district court held that despite her probationary status, appellee had a property interest in her continued employment and that this interest was injured by her suspension. Bagby v. Beal, 439 F.Supp. 1257 (M.D.Pa.1977). In a separate opinion, it turned to the questions of what process was due appellee prior to her suspension and whether the appellants had failed to afford such process. The court entered a declaratory judgment stating that appellants had violated appellee's due process rights by failing to provide her with notice of the charges against her sufficiently in advance of the hearing to give her a reasonable opportunity to rebut the charges. It ordered that she be given a new hearing and specified procedures to be taken to ensure that she received due process of law. Bagby v. Beal, 455 F.Supp. 881 (M.D.Pa.1978). The court also awarded appellee attorney's fees totalling $8,730. The district court did not act on appellants' motion to stay its injunction pending appeal. Therefore, the required hearing was held on December 15, 1978. The hearing examiner, after taking evidence solely on the theft charges, concluded that the suspension was just under the circumstances.

On this appeal appellants argue that the appellee did not have a protectible property interest in her continued employment and that even if she did, the presuspension hearing provided her due process. Because we conclude that these issues are moot, however, we do not reach the merits of these arguments. Appellants also assert that the amount of attorney's fees awarded by the district court was excessive. This contention will be discussed further herein.

II.

Article III of the Constitution conditions federal court jurisdiction on the existence of an actual case or controversy. The Supreme Court recently announced a two-part test for determining whether either party has a "legally cognizable interest in the final determination of the underlying questions of fact and law." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). It held that:

jurisdiction, properly acquired, may abate if the case becomes moot because

(1) it can be said with assurance that "there is no reasonable expectation . . . " that the alleged violation will recur . . . and

(2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.

Id. (quoting United States v. W. T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)).

This case satisfies both prongs of the Davis test. First, there is very little chance that the alleged violation of appellee's due process rights will recur. She no longer is employed by the Pennsylvania Civil Service Commission, and since her dismissal she has moved out of the state. She now lives and works in Maryland. The second part of the test is satisfied because appellee already has received all of the affirmative relief ordered by the district court. She has been afforded a hearing that remedied the flaws that the district court found in the original hearing. Even though this hearing considered only the theft charges, appellee asserts in her brief and appellants do not deny that the parties have agreed that the appellants will remove any references to the abusive treatment charges from appellee's civil service records if these records ever become public. ¹ Thus there is no live controversy between the parties regarding appellee's due process claims.

Appellants offer several arguments in an effort to show that this case is not moot. First, they point out that the district court's order included a declaratory judgment stating that appellants' suspension procedure violated appellee's due process rights. They assert that this judgment continues to affect their conduct. But because of our decision that this case is moot, we follow the settled practice of vacating the district court judgment and remanding the case to the district court with instructions to dismiss appellee's complaint. See Preiser v. Newkirk, 422 U.S. 395, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975); United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950). This removes any precedential effect of the district court's opinion. Regardless of the effect of dismissal of appellee's complaint, appellants assert that they remain uncertain about the constitutional rights of future employees in appellee's position. This concern covers matters too speculative and remote to support jurisdiction in this case.

The appellants' second argument is that cases never should be held moot because of a party's voluntary compliance with an injunction when it sought to have that injunction stayed. It asserts that otherwise the only way for such a party to preserve its right to appeal would be to defy the injunction. The Supreme Court, however, on many occasions has held cases to be moot when the event causing mootness was compliance with a lower court injunction. See, e. g., DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). For example, in Brownlow v. Schwartz, 261 U.S. 216, 43 S.Ct. 263, 67 L.Ed. 620 (1923), the petitioner issued a building permit pursuant to a writ of mandamus ordered by the court of appeals. During the pendency of his appeal, the building was completed and sold to a third party. The Court held that the case was moot:

It is urged that the permit was issued by the Inspector of Buildings only because he believed it was incumbent upon him to comply with the judgment of the Court of Appeals and avoid even the appearance of disobeying it. The motive of the officer, so far as this question is concerned, is quite immaterial. We are interested only in the indisputable fact that his action, however induced, has left nothing to litigate.

Id. at 218, 43 S.Ct. at 264. Thus the motive of the appellants here is immaterial. The decisive factor is that their acts have left no live issues between the parties.

Finally, appellants attempt to make us do indirectly what we cannot do directly by arguing that we must review the merits of the case in order to determine whether the appellee is entitled to receive reasonable attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (1976). This statute provides that "(i)n any action or proceeding to enforce a provision of (section 1983) . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Appellants' theory is that the district court erred in holding for appellee on her due process claims and that therefore she is not a "prevailing party" within the meaning of § 1988. Although this argument presents an issue about the meaning of "prevailing party," it does not require us to look at the merits of this case and does not disturb our conclusion that this case is moot.

This court...