Merritt v. Mackey

• Decision Date: 08 May 1991
• Docket Number: 89-35270,Nos. 89-35233,s. 89-35233
• Citation: 932 F.2d 1317
• Parties: Knowlton MERRITT, Plaintiff-Appellee, v. John E. MACKEY, Defendant-Appellant, and Jerry Howard, et al., Defendant. Knowlton MERRITT, Plaintiff-Appellant, v. John E. MACKEY; Steve Vincent, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1317

932 F.2d 1317

Knowlton MERRITT, Plaintiff-Appellee, v. John E. MACKEY, Defendant-Appellant, and Jerry Howard, et al., Defendant.

Knowlton MERRITT, Plaintiff-Appellant, v. John E. MACKEY; Steve Vincent, et al., Defendants-Appellees.

Nos. 89-35233, 89-35270.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Sept. 12, 1990.

Decided May 8, 1991.

Stephen L. Brischetto, Brischetto & Baldwin, Portland, Or., for plaintiff-appellee-appellant.

Richard A. Olderman, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for defendants-appellants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before CANBY, and TROTT, Circuit Judges, and LEGGE, ^* District Judge.

CANBY, Circuit Judge:

John Mackey appeals the district court's judgment, following a bench trial on remand from this court, in favor of Knowlton Merritt in Merritt's action against Mackey, et al. Merritt's action charges that Mackey, a federal official, violated his due process rights in improperly coercing Merritt's private employer to fire him. Merritt cross-appeals. We affirm all of the rulings of the district court except for the award of a multiplier in the award of attorney's fees.

BACKGROUND

Merritt is a former counselor supervisor with Klamath Alcohol and Drug Abuse, Inc. ("KADA"), a private nonprofit corporation. He was fired from that position, partly as a consequence of actions taken by Mackey and Steven Vincent. Mackey was the Area Alcoholism Coordinator for Indian Health Services ("IHS"), a federal agency. Vincent was a Regional Alcohol Specialist with the State of Oregon's Mental Health Division. Mackey and Vincent had jointly evaluated the management of KADA, and had concluded that Merritt had failed to perform adequately. Their report recommended that further funding of KADA be conditioned on Merritt's dismissal. The KADA Board of Director's dismissed Merritt without a pre-termination hearing. The circumstances of this dispute are related in this court's earlier decision in this case, Merritt v. Mackey, 827 F.2d 1368 (9th Cir.1987) ("Merritt I" ).

Merritt brought this action against several defendants alleging various claims. Among those claims was one against Vincent under 42 U.S.C. Sec. 1983, and one against Mackey pursuant to Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Both of those claims alleged deprivation of liberty and property without due process. The district court granted summary judgment in favor of Vincent and Mackey on the ground that Merritt had not stated a claim for deprivation of liberty upon which relief could be granted. The court also decided, after this first trial, that Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), precluded Merritt's claim that his property interest in continued employment could not be extinguished without a pretermination hearing. Finally, the district court ruled that Vincent and Mackey were protected from liability by the doctrine of qualified immunity.

On appeal, a divided panel of this court affirmed the grant of summary judgment as to the liberty deprivation claims, but reversed and remanded as to the property deprivation claims. Merritt I, 827 F.2d 1368 (9th Cir.1987). Merritt I first held that Merritt had a protected property interest in his continued employment with KADA. It then concluded that under the circumstances of this case, Merritt's right to due process was not satisfied by a posttermination remedy, and that he was entitled to "a meaningful hearing at a meaningful time" to challenge his dismissal. Id. at 1371. This court also held that Vincent and Mackey were not entitled to qualified immunity because they knowingly acted outside the scope of their employment and violated a clearly established due process right. Id. at 1372-73.

On remand, the district court ruled that Merritt was entitled to a pretermination hearing and that his due process rights were violated because he had not received such a hearing. The court also found, however, that Merritt would have been terminated even if he had been provided with an adequate predeprivation hearing. Further, the district court concluded that Vincent and Mackey were not entitled to qualified immunity, under this court's mandate in Merritt I.

After a bench trial, the district court awarded Merritt $35,000 in damages as compensation for emotional distress arising from the due process deprivation. It concluded that he was not entitled to either lost wages or punitive damages because he would have been terminated even if he had been afforded a pretermination hearing. In addition, the court awarded Merritt approximately $100,000 in attorney's fees pursuant to 42 U.S.C. Sec. 1988. The court reasoned that Mackey, although a federal Mackey appeals the district court's rulings that he is not entitled to qualified immunity, and that he is liable for attorney's fees under 42 U.S.C. Sec. 1988. He also challenges as excessive the amount of damages and attorney's fees awarded. Merritt cross-appeals, ¹ contending that the district court failed to recognize that his rights to due process were violated not only by the deprivation of a timely hearing, but also by unreasonable governmental interference with his property rights in his chosen occupation. Consequently, Merritt claims, the court improperly denied him damages for lost wages and punitive damages. We affirm the district court as to all issues raised by these appeals.

official, was liable under Section 1988 because he acted jointly with Vincent, a state official, to violate Merritt's rights. The court awarded Merritt fees for 90% of the hours he requested at $125 per hour. It also enhanced the fee by one-third.

ANALYSIS

I. Qualified Immunity

In Merritt I, this court held that neither Vincent nor Mackey was entitled to qualified immunity because "their conduct exceeded the scope of their authority and because they violated Merritt's clearly established constitutional rights." 827 F.2d at 1373. On remand, the district court held that this court's prior holding was "the law of the case." Mackey now asks this court to reconsider the issue, and hold that Vincent and Mackey were entitled to qualified immunity. We agree with the district court that the ruling in Merritt I is the law of the case and decline to address the merits of qualified immunity, except as necessary to determine whether we ought to leave the matter as settled by Merritt I.

"[U]nder the 'law of the case' doctrine, one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case." Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979). The doctrine is discretionary, not mandatory. United States v. Houser, 804 F.2d 565, 567 (9th Cir.1986). It merely expresses the practice of courts generally to refuse to reopen that which has been decided, and is not a limitation of the courts' power. Id. (citing Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912)); United States v. Maybusher, 735 F.2d 366, 370 (9th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985). "[T]he prior decision of legal issues should be followed on a later appeal 'unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.' " Kimball, 590 F.2d at 771-72 (citing White v. Murtha, 377 F.2d 428, 431 (5th Cir.1967)). ²

Mackey contends that two of these exceptions apply here. First, he contends that Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987), effected a change in the appropriate standard for determining qualified immunity, which the panel in Merritt I failed to consider. Second, he contends that the decision in Merritt I court was clearly erroneous and would work a manifest injustice. We disagree with both arguments.

A. A change in the law

Anderson v. Creighton did not change controlling authority on this issue so as to require us to reconsider the merits of Mackey's qualified immunity defense. First, Anderson was decided three months prior to Merritt, so there was no intervening change of law. More important, Anderson did not change the controlling The Supreme Court in Anderson said, "our holding today does not extend official qualified immunity beyond the bounds articulated in Harlow and our subsequent cases...." 483 U.S. at 641-42 n. 3, 107 S.Ct. at 3039-40 n. 3. It was Harlow that first established that qualified immunity is based on the "objective legal reasonableness" of the defendant's conduct. 457 U.S. at 818-19, 102 S.Ct. at 2738-39.

                standard as Mackey suggests.  Anderson clarified and refined the law articulated in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).  In Merritt I, this court relied on Harlow.    Examination of its analysis indicates that it complies with the Anderson "clarification."
                

The Merritt I opinion recognized that immunity attaches to official action unless that action " 'violate[s] clearly established statutory or constitutional rights of which a reasonable person would have known.' " 827 F.2d at 1373 (quoting Harlow, 457 U.S. at 818, 102 S.Ct. at 2738). Anderson emphasized the level of specificity at which that inquiry must be made, requiring that "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.... [I]n the light of pre-existing law the unlawfulness must be apparent." Anderson, 483 U.S. at 640, 107 S.Ct. at 3039. Anderson goes on to require that the unlawfulness of the official's activity must be apparent in light of "the circumstances with which [the...