Lander v. Morton, 73-1729
| Decision Date | 08 September 1975 |
| Docket Number | No. 73-1729,73-1729 |
| Citation | 171 U.S.App.D.C. 146,518 F.2d 1084 |
| Parties | Walter J. LANDER, Appellee, v. Rogers C. B. MORTON, Secretary of the Department of the Interior, et al., Appellants. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William M. Brodsky, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, John A. Terry, Ellen Lee Park and Joseph E. di Genova, Asst. U. S. Attys., were on the brief, for appellants.
Stephen E. Moss, Bethesda, Md., for appellee.
Before ROBINSON, ROBB and WILKEY, Circuit Judges.
This is an appeal by Rogers C. B. Morton, Secretary of the Interior, from an order of the District Court directing him to pay $5,000 to the appellee Lander as "compensatory damages" for "excessively delayed compliance" with an order of the court. We reverse.
In 1970 Mr. Lander was transferred from his position as Assistant Director Administration, Bureau of Mines of the Department of the Interior to an administrative position in another agency. The papers relating to the transfer referred to certain "problems" that occurred in Lander's performance with the Bureau of Mines. Thereafter, after various administrative steps, Mr. Lander filed in the District Court a complaint for declaratory judgment that his transfer was improper, and for injunctive relief directing his reinstatement and deletion of any references to "problems" in his personnel file. Named as defendants were Mr. Morton and the chairman and two members of the United States Civil Service Commission.
On June 16, 1971 the District Court granted a motion for summary judgment filed by the plaintiff, issued findings of fact and conclusions of law, and ordered that Mr. Lander be restored to his position "with all of its rights and duties forthwith", that all references to "problems" be deleted from his personnel file, and that he be "free from reprisals or coercion."
On July 6, 1971 Mr. Lander moved to have the defendants held in contempt for their alleged failure to comply with the court's order of June 16. That motion was denied as moot on July 19 because Mr. Lander had been reinstated in his position. Thereafter, on September 9, 1971, Mr. Lander filed a second contempt motion, in which for the first time he sought $10,000 in damages "to compensate . . . for the injuries and expenses . . . sustained as a result of . . . violations of this Court's Order and in prosecuting this proceeding." The motion alleged in part that Secretary Morton and certain of his named assistants and associates in the Department of the Interior had violated the court's order by failing to restore to Mr. Lander all the rights and duties of his position and by failing completely to expunge all references in his file to "problems".
Treating the contempt motion of September 9, 1971 as one for an order to show cause, the District Court held a hearing, and on November 22, 1971 directed two subordinate officials of the Bureau of Mines, Messrs. Osborn and Weis, who were not defendants in the suit, to show cause why Mr. Morton should not be held in contempt. The court found that the plaintiff had "established a prima facie case that the defendant, Rogers C. B. Morton, through his subordinates, Elburt F. Osborn and Stanley Weis, has violated this Court's order of June 16, 1971."
After a hearing on the return of the order to show cause the court refused to hold Mr. Morton in contempt, since the court found that he had "complied with the Court's order of June 16, 1971". The court found that on July 14, 1971, effective June 16, 1971 Mr. Lander was restored to his position in the Bureau of Mines, with a position description identical to the one assigned to him before his transfer. In addition the court found that authority to act as security and certifying officer was not delegated to Mr. Lander upon his restoration, since the duties of these officers were principally clerical and it was thought that he would not wish to have them restored to him, but would prefer that they be delegated to a subordinate who would be responsible to him; however as soon as the Director of the Bureau was advised by way of Mr. Lander's contempt motion that he desired to have these duties restored to him, they were restored. Finally, the court found that both the word "problems" and the context in which the word appeared in Mr. Lander's personnel file had been deleted. The record disclosed however that the deletion of the context did not occur until some time subsequent to November 1971.
Mr. Lander appealed from the District Court's refusal to find Secretary Morton in contempt. We affirmed the District Court's judgment by order, accompanied by an unpublished memorandum, and remanded the case to the District Court. Since it was the basis for the District Court's action which resulted in the present appeal we quote the pertinent part of the memorandum:
Appellant's counsel raised the issue that plaintiff is entitled to compensation, including attorney's fees, because on certain matters, e. g., the "problems" issue, there was a failure to comply with the District Court judgment of June 6, 1971, until plaintiff's counsel took steps to investigate, prepare a show cause order, present the matter to the District Court, etc. Here again, discretion is involved. The mere fact that defendants were not in contempt as of February, 1972, does not mean that plaintiff was not entitled to compensation for the efforts taken in order to secure compliance at an earlier date, and correction of an outstanding violation. The defendants had not obtained a stay, and were not entitled to impose their own stay without liability to compensate plaintiff. While a judgment involving on-going relationships presumably reflects a reasonable-time allowance for compliance, in this case there may well have been, as Government counsel admitted, some excessive delay in certain particulars. Whether this delay, or these matters, warrant an order compensating plaintiff for part of the expenses incurred is a matter on which we have no findings or discussion of the District Court. The case is remanded to the District Court for that purpose, with latitude to enter such compensatory order as the District Court deems sound in law.
At the hearing following remand, held March 26, 1973, the District Court framed the issue as follows:
This case is before the Court for consideration of costs or fees on behalf of the (appellee), having been remanded from the Court of Appeals for that purpose alone.
I think it is a question of bad faith rather than the length of time . . .. (w)hich has been found and has been decided by ...
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