Ortiz v. Regan, 202
| Decision Date | 23 November 1992 |
| Docket Number | D,No. 202,202 |
| Parties | 60 Empl. Prac. Dec. P 41,905, 24 Fed.R.Serv.3d 480 Bernice ORTIZ, Plaintiff-Appellant, v. Edward V. REGAN, as Controller of the State of NY, and as Trustee of the NYS & Local Retirement Systems; Gregory O. Childs, personally and as Director of Retirement Benefits of the NYS & Local Retirement Systems; Jane A. O'Connor, personally and as Assistant Director of the Retirement Benefits Bureau of the NYS & Local Retirement Systems, Defendants-Appellees. ocket 92-7448. |
| Court | U.S. Court of Appeals — Second Circuit |
Allan L. Gropper, New York City (James M. Wicks, White & Case, Jonathan A. Weiss, Legal Services for the Elderly, of counsel), for plaintiff-appellant.
Clement J. Colucci, New York City (Robert Abrams, Atty. Gen. of State of N.Y., Ronald Turbin, Asst. Atty. Gen., of counsel), for defendants-appellees.
Before MESKILL, Chief Judge, OAKES and CARDAMONE, Circuit Judges.
Plaintiff-appellant Bernice Ortiz appeals from a judgment of the United States District Court for the Southern District of New York, Michael B. Mukasey, Judge, granting Ortiz a reduced award of attorney's fees under the Civil Rights Attorney's Fees Act, 42 U.S.C. § 1988 (1988). The district court awarded limited attorney's fees for legal work that was done prior to April 1990 but refused to allow Ortiz to recover for work that had been done after April 1990. For the reasons set forth below, we hold that Ortiz is entitled to attorney's fees for post-April 1990 work and that, on remand, the district court must determine the appropriate level of those fees.
In order to explain our reasoning, we begin by briefly reviewing the underlying facts of Ortiz's civil rights case.
Ortiz's attorney's fee claim arises from her successful litigation of a 42 U.S.C. § 1983 (1988) action involving her right to pension fund benefits. In that case, Ortiz, a retired state employee, protested the suspension of her advance pension benefits 1 that resulted from a dispute as to her date of birth. Defendants New York State and Local Retirement Systems and Edward V. Regan ("Regan") cut off Ortiz's advance pension payments in September of 1989, without notice or explanation, and did not renew retirement payments until mid-February of 1990. The new payments were based on the more recent of the birth dates at issue.
Ortiz brought suit in federal district court on March 9, 1990 claiming that Regan's actions had deprived her of property without due process of law. In April 1990, Regan notified Ortiz of her right to a hearing under § 74(d) of New York State's Retirement and Social Security Law in order to revisit the question of her birth date. Section 74(d) allows pension applicants to receive a de novo determination of final pension benefits from the comptroller of the New York State Employees' Retirement System. 2 Ortiz did not request a § 74(d) hearing to protest the birth date determination but proceeded with her due process suit.
The district court issued three opinions addressing different aspects of Ortiz's action. First, the court denied Regan's motion to dismiss, finding that Ortiz had stated a claim for deprivation of property without due process of law. Ortiz v. Regan, 749 F.Supp. 1254 (S.D.N.Y.1990). The court reasoned that the availability of a § 74(d) hearing was "irrelevant" because it did not satisfy her pre-deprivation due process rights. Id. at 1261.
The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, was designed to allow private individuals a meaningful opportunity to vindicate civil rights violations. As stated in the legislative record, "[i]f private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court." S.Rep. No. 1011, 94th Cong., 2d Sess. 2 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5910.
In keeping with the legislative purpose of 42 U.S.C. § 1988, Ortiz is entitled to attorney's fees for the work that was done on her civil rights case after Regan's offer to hold a § 74(d) hearing. Ortiz's litigation efforts vindicated her pre-deprivation due process rights even though a post-deprivation remedy was available. If attorney's fees are not provided in situations such as this one, there would be no incentive for private citizens to challenge pre-deprivation due process violations where a post-deprivation remedy exists.
In denying post-April 1990 attorney's fees, the district court found that an offer made by the defendants to hold a post-deprivation hearing under § 74(d) of the New York State Retirement & Social Security Law was "all the relief she clearly deserved and all the relief she has since been granted." Ortiz, 777 F.Supp. at 1189. The record and first two opinions by the district court make clear, however, that more was involved in this litigation than the post-deprivation hearing originally offered by Regan and subsequently required by the court. For example, the district court in its first opinion stated that it "is irrelevant whether the hearing allegedly available under § 74(d) to contest the incorrect final calculation of benefits satisfied the requirement of due process." Ortiz, 749 F.Supp. at 1261. The court correctly reasoned that "this argument does not address the plaintiff's contention that the cutoff of advanced retirement benefits in September 1989 without any prior notice or hearing violated her rights to procedural due process." Id.
That more was at stake here than the post-deprivation hearing offered by Regan is further supported by the district court's decision to award nominal damages. In awarding nominal damages, the district court acknowledged that a nonpecuniary constitutional right was being vindicated. The district court determined that Ortiz would "receive nominal damages of one dollar for the deprivation of her right to procedural due process...." Ortiz, ...
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