Loudermill v. Cleveland Bd. of Educ.

• Decision Date: 06 April 1988
• Docket Number: Nos. 86-4069,87-3435,s. 86-4069
• Citation: 844 F.2d 304
• Parties: 46 Ed. Law Rep. 523, 3 Indiv.Empl.Rts.Cas. 142 James LOUDERMILL, individually and on behalf of all others similarly situated, Plaintiff-Appellant (86-4069), Plaintiff-Appellee (87-3435), v. CLEVELAND BOARD OF EDUCATION, Defendant-Appellee (86-4069), Defendant-Appellant (87-3435).
• Court: U.S. Court of Appeals — Sixth Circuit

Page 304

844 F.2d 304

46 Ed. Law Rep. 523, 3 Indiv.Empl.Rts.Cas. 142

James LOUDERMILL, individually and on behalf of all others similarly situated, Plaintiff-Appellant (86-4069) Plaintiff-Appellee (87-3435), v. CLEVELAND BOARD OF EDUCATION, Defendant-Appellee (86-4069) Defendant-Appellant (87-3435).

Nos. 86-4069, 87-3435.

United States Court of Appeals Sixth Circuit.

Argued Feb. 4, 1988.

Decided April 6, 1988.

Sanford J. Berger, Robert M. Fertel (argued), Berger and Fertel, Cleveland, Ohio, for Loudermill.

Stuart A. Friedman, James Wyman (argued), Cleveland Bd. of Educ., Cleveland, Ohio, for Cleveland Bd. of Educ.

Before JONES and MILBURN, Circuit Judges, and JOINER, Senior District Judge. ^*

NATHANIEL R. JONES, Circuit Judge.

These appeals, consolidated by this court's July 24, 1987 order, stem from the district court's decisions granting James Loudermill attorneys' fees and holding that he was provided proper pretermination procedures by the Cleveland Board of Education. For the following reasons, we affirm the district court's decisions.

I.

This case was originally filed by James Loudermill ("Loudermill") on October 27, 1981 in the United States District Court for the Northern District of Ohio against the Cleveland Board of Education ("Board") alleging violations of 42 U.S.C. Section 1983. ¹ At that time, Loudermill also filed a motion to proceed in forma pauperis asserting that he was unable to pay the required filing fees.

On November 6, 1981, the district court, sua sponte, dismissed Loudermill's complaint for failure to state a claim upon which relief could be granted and denied his motion to proceed in forma pauperis. This was done prior to the service of Loudermill's complaint upon the Board.

On November 17, 1983, pursuant to Loudermill's appeal, this court affirmed the district court's dismissal of the part of Loudermill's complaint alleging that delays in receiving a post-termination hearing had violated his due process rights, but vacated and remanded the part of the lower court's opinion which held that no pretermination procedures were required to be given to Loudermill. Loudermill v. Cleveland Board of Education, 721 F.2d 550 (6th Cir.1983). The United States Supreme Court affirmed this court's decision and remanded the case to the district court for further proceedings. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).

Upon remand the district court tried the issue, asserted for the first time by the Board, of whether Loudermill was given a pretermination hearing that would comply with the Supreme Court's mandate.

During the bench trial, conducted on September 11-12, 1986, testimony was given concerning the pretermination procedures provided by the Board to Loudermill. This testimony was adopted by the lower court in its findings of fact. See Loudermill v. Cleveland Board of Education, 651 F.Supp. 92, 93-94 (E.D.Ohio 1986). Those findings, which we do not disturb, are as follows. In September 1979, the Board hired Loudermill as a night-time security guard. On his job application, he indicated that he had never been convicted of a felony. In October 1980, as a part of a routine examination of employment records, the Board discovered that Loudermill had a felony conviction. Dishonesty by an applicant was an automatic ground for dismissal. ²

2]

After Thomas Roche, Loudermill's supervisor, learned of Loudermill's conviction, he summoned him to his office. ³ No reason was given for the summons, but on or about October 27, 1980, Loudermill met with Roche.

At that meeting, Roche informed Loudermill that he knew of his conviction. Roche testified that he showed Loudermill a Cuyahoga County Sheriff's Report containing information that Loudermill had been convicted in 1968 for burglary of an inhabited dwelling and sentenced to six months in "the workhouse." He also testified that he showed Loudermill his employment application in which he had answered "No" to the following question:

Have you ever been convicted of a crime (felony)?

Loudermill, however, testified that Roche only showed him a piece of scrap paper with handwriting on it which stated that he had been convicted of a felony.

Roche testified that he asked Loudermill to explain the apparent falsehood on the employment application. Loudermill testified that he did not recall being asked to explain his response on the application. Both men, however, testified that Loudermill stated during the meeting that he believed his conviction was for a misdemeanor, not a felony. Roche testified that Loudermill explained that he believed his conviction was for a misdemeanor because he was sentenced to six months in the workhouse, while Loudermill, on the other hand, testified that he did not recall being given an opportunity to further explain the conviction.

Loudermill testified that Roche informed him that he could no longer work as a night-time security guard because, as a felon, he was not permitted to carry a gun. According to Loudermill, Roche offered him a daytime job and gave him until the end of the week, which was three to four days, to decide whether to accept it, resign, or be discharged. Roche also stated that he gave Loudermill until the end of the week to produce any evidence in support of his statement that he was convicted of a misdemeanor.

Loudermill did not contact Roche after that meeting. By a letter dated November 3, 1980, the Board's Business Manager informed Loudermill of his dismissal because of dishonesty. Thereafter, Loudermill sought legal counsel.

After hearing the above testimony, the district court held that the procedures provided by the Board ensured Loudermill of a pretermination hearing and were not violative of his due process rights. This appeal followed.

Prior to the district court's decision, however, Loudermill, on September 9, 1986, filed a motion for attorneys' fees pursuant to 42 U.S.C. Section 1988. ⁴ Loudermill claimed "prevailing party" status under the statute. On November 13, 1986, the Board filed a brief in opposition to Loudermill's motion.

On December 8, 1986, the lower court held that Loudermill, as contemplated by the statute, was a prevailing party. This On April 3, 1987, the lower court held that its order on attorney's fees was final and appealable pursuant to Fed.R.Civ.P. 54(b) and that there was no just cause for a delay of an appeal. On May 1, 1987, the Board filed its notice of appeal.

determination was based upon the fact that Loudermill's case had served as the "catalyst" which had caused the Cleveland Civil Service Commission to make changes in its rules to provide for a pretermination hearing prior to the discharge of its employees. See Civil Service Rule 9.20. The court, however, declined to determine the amount of fees to be awarded to Loudermill and instead postponed that determination until a later date.

On July 6, 1987, the Board moved this court to consolidate the hearings of the two appeals pending in this case. On July 24, 1987, that motion was granted.

II. JURISDICTION

As an initial matter, we note that this court has jurisdiction over all issues presented to us even though the amount of attorneys' fees has not yet been determined.

This court recently addressed the distinction between an appeal on the merits of a case and an appeal on attorneys' fees. In Morgan v. Union Metal Mfg., 757 F.2d 792 (6th Cir.1985), this court held that while a judgment on the merits was a final judgment and could be appealed when the amount of attorneys' fees was undecided, id. at 794, such reasoning did not apply to a splitting of the elements of attorneys' fees. The court stated:

[A] determination of the amount of attorneys' fees is not collateral to a determination of liability for attorneys' fees. A rule that permits a party to delay an appeal of a finding of liability for attorneys' fees until the amount of fees is determined serves the purpose of avoiding piecemeal litigation.

Id. at 795 (emphasis added and citations omitted).

This appeal, however, differs in at least one respect. Here, an appeal on the merits has been consolidated with an appeal on the determination of liability for attorneys' fees. The Morgan court specifically addressed this situation and held that this court has jurisdiction to decide both the merits and the attorneys' fees claim. In so doing, the court stated:

The rule permitting a party to delay an appeal until the amount of fees is determined will not have untoward consequences in those instances in which the party timely appeals a judgment on the merits and wishes to consolidate with it an appeal from a determination of liability for attorneys' fees when the amount of fees has not been set. In those cases, the court's jurisdiction over the appeal on the merits carries with it the authority to determine the liability for fees.

Id. at 796 (emphasis added). Our jurisdiction in such a situation is expanded seemingly because the underlying policy considerations which would cause us to deny jurisdiction, i.e., avoiding piecemeal litigation, are diminished. Thus, we have jurisdiction to decide all issues presented to us in this appeal.

STANDARD OF REVIEW

Appellate review of a district court's findings of fact is controlled by the "clearly erroneous" rule. Fed.R.Civ.P. 52(a). Consequently, a lower court's findings of fact shall not be set aside unless clearly erroneous and that standard is met "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). This court may, however, freely review the district court's legal conclusions. Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 143 (6th Cir.1983).

A different standard, however, is employed when reviewing the lower court's award of...