Premachandra v. Mitts, 81-46C(2).
Decision Date | 27 September 1982 |
Docket Number | No. 81-46C(2).,81-46C(2). |
Citation | 548 F. Supp. 117 |
Parties | Dr. Bhartur N. PREMACHANDRA, Plaintiff, v. Dr. Murray G. MITTS, et al., Defendants. |
Court | U.S. District Court — Eastern District of Missouri |
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Marilyn S. Teitelbaum, St. Louis, Mo., for plaintiff.
Joseph B. Moore, Asst. U. S. Atty., St. Louis, Mo., for defendants.
This case is now before this court on the motion of the plaintiff for allowance of reasonable attorney's fees brought pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 2412. Plaintiff's original cause of action arose out of the termination of his employment by the Veterans Administration at its Jefferson Barracks Hospital as a Research Endocrinologist. On December 30, 1980, the Agency notified the plaintiff of his termination effective January 16, 1981, and also directed him to end his experiments and dismantle his laboratory by that date. Subsequently, the plaintiff appealed his termination to the Merit Systems Protection Board, on January 31, 1981.
In response to the actions of the Agency, the plaintiff also filed this action in this court for the purpose of acquiring injunctive relief. In his complaint, the plaintiff sought an order enjoining the Agency from terminating him and requiring him to dismantle his laboratory, until such time that he received a due process hearing before the Merit Systems Protection Board. The plaintiff alleged that the failure of the Agency to provide him with a pre-termination hearing was in violation of his due process rights as guaranteed by the Fifth Amendment of the United States Constitution. Although the plaintiff was successful initially in his acquisition of a temporary restraining order enjoining the Agency from discharging him and dismantling his laboratory, this court subsequently entered an order denying his motion for a preliminary injunction on March 3, 1981. In addition, this court also denied the plaintiff's application for injunction pending appeal, but granted him seven days to seek an injunction from the Eighth Circuit. The plaintiff was unsuccessful in acquiring an injunction pending appeal from either of the Eighth Circuit or the Supreme Court upon his first motion, although he was granted several stays. However, on May 4, 1981, the plaintiff submitted a second motion for injunction pending appeal to the Court of Appeals. In his second motion, the plaintiff requested an order that would prohibit the Agency from dismantling the laboratory or disrupting his experiments. Therefore, in the latter motion, the plaintiff abandoned his request for injunctive relief, which would have restrained the agency from ending his employment prior to the receipt of a due process hearing before the Merit Systems Protection Board. In response to this motion and to the willingness of the defendant not to disrupt the plaintiff's laboratory, the Eighth Circuit entered an order on May 21, 1981 in which it recognized the Veterans Administration's agreement not to dismantle the plaintiff's laboratory and ordered a stay with regard to that issue pending appeal. However, the Court of Appeals did not extend the stay to the termination of the plaintiff's employment. Premachandra v. Mitts, No. 81-1246 (8th Cir. May 21, 1981).
Subsequent to the Eighth Circuit's order staying the dismantling of plaintiff's laboratory pending appeal of the denial of plaintiff's request for a preliminary injunction, oral arguments were held by the Court of Appeals in June of 1981. However, the Eighth Circuit never ruled on the question of the proprietary of this court's denial of the plaintiff's request for a preliminary injunction. A formal order was unnecessary because in a letter to the court dated July 2, 1981 the defendants voluntarily agreed "not to dismantle or interfere with appellant's use of the laboratory before the decision on the merits of appellant's discharge is filed by the Hearing Examiner." Although the defendants at one point in time suggested they might retract this settlement, the plaintiff did in fact have use of his laboratory until he had his hearing before the Merit Systems Protection Board. On September 16, 1981 the Board issued its decision, which reversed the action of the Agency. This decision became final on October 21, 1981. As a result, the Eighth Circuit dismissed as moot the plaintiff's appeal of the denial of his motion for a preliminary injunction upon its own motion, on October 27, 1981.
Upon dismissal of this case by the Eighth Circuit, the plaintiff has submitted this motion for allowance of reasonable attorney's fees pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 2412(b). The plaintiff has already been awarded fees by the Merit Systems Protection Board for the services it rendered in connection with the proceedings before the Board. The plaintiff contends that Section 1988 provides a court with the discretion to award a "prevailing party" in a civil rights action a reasonable attorney's fee as part of the costs of an action. The plaintiff further alleges that it was a "prevailing party" as that term is defined by 42 U.S.C. § 1988 and 28 U.S.C. § 2412(b) because this lawsuit was the catalyst that prompted the defendants to provide him with the fundamental relief that he initially sought. Finally, the plaintiff argues that recent amendments to 28 U.S.C. § 2412(b) permit an award of attorney's fees against the United States to the same extent that such awards may be made against private parties. Therefore, the plaintiff contends that the defendants are subject to the common law exception to the American rule on attorney's fees, as well as the exception embodied in 42 U.S.C. § 1988.
In response to the plaintiff's motion for attorney's fees, the defendants argue that the plaintiff has failed to state a legal basis for the allowance of fees in this case. The defendants assert that the plaintiff also has failed to satisfy the prerequisites for obtaining fees pursuant to 28 U.S.C. § 2412. In addition the defendants argue that the plaintiff should have appealed directly to the Eighth Circuit, the decision of the Merit Board. The Board held that it did not have the requisite jurisdiction to award the plaintiff the attorney's fees incurred in connection with proceedings before the federal courts.
Effective October 1, 1981, the Equal Access to Justice Act, Public Law 96-481, amended 28 U.S.C. § 2412 to permit the award of attorney's fees against the United States in two contexts. The statute now provides a court with the power to award reasonable attorney's fees and expenses to the "prevailing party" in any civil action or adversary adjudication brought by or against the United States, to the same extent that such awards may be made against private parties, unless the award is expressly prohibited by statute. 28 U.S.C. § 2412(b). "Thus, the United States will be subject to the common law `bad faith', `common fund', and `common benefit' exceptions to the American rule on attorney's fees, as well as any statutory exceptions such as those under the Civil Rights Act and the Omnibus Control and Safe Streets Act." 14 Wright & Miller, Federal Practice and Procedure, § 3659 p. 86 (Supp.1981).
42 U.S.C. § 1988 is a statutory exception to the American rule, which precludes the award of attorney's fees to the successful litigant. Section 1988 provides district courts with the authority to award "the prevailing party, other than the United States a reasonable attorney's fee as part of the costs" in any suit brought in vindication of a litigant's civil rights. Therefore, 42 U.S.C. § 1988 read in conjunction with 28 U.S.C. § 2412 may provide the plaintiff in this case with a vehicle for obtaining attorney's fees and expenses because § 1988 explicitly allows for the award of fees to "prevailing parties" in civil rights actions.1 Thus, the remaining issue before this court is whether the plaintiff is a "prevailing party" as that term is defined by 28 U.S.C. § 2412(b) and 42 U.S.C. § 1988.2
Although § 1988 entrusts the award of attorney's fees to the discretion of the trial court, a "prevailing party" should be awarded those fees, unless special circumstances would render the recovery unjust. Christianburg Garment Company v. E. E. O. C., 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978); Riddell v. National Democratic Party, 624 F.2d 539 (5th Cir. 1980). In addition, the legislative history of 42 U.S.C. § 1988 indicates that a litigant may be a "prevailing party" without having obtained a final judgment after a full trial on the merits. Therefore "parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief." Hanrahan v. Hampton, 446 U.S. 754, 757, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980) (citing H.R.Rep.No.94-1558 p. 7 (1976).) Moreover, courts have allowed a litigant to be defined as a "prevailing party" and therefore to be eligible for attorney's fees when subsequent remedial action by a defendant effectively moots the controversy after the initiation of a lawsuit. Harrington v. DeVito, 656 F.2d 264 (7th Cir. 1981); Handicapped Federation v. Andre, 622 F.2d 342 (8th Cir. 1980); Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978); Connor v. Winter, 519 F.Supp. 1337 (S.D.Miss.1981). Finally, the fact that a plaintiff does not prevail on every theory does not preclude the recovery of attorney's fees. Handicapped Federation v. Andre, 622 F.2d at 348.
In an effort to determine whether a litigant is a "prevailing party" and therefore entitled to attorney's fees, in the context of a suit which has been settled, courts have adopted a two step test known as the "Nadeau" test. The Eighth Circuit adopted this test in Handicapped Federation v. Andre, supra. The first step is a question of fact and requires a determination of whether the plaintiff's lawsuit served in part as a catalyst which prompted the opposing party to take remedial action. Under this...
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