Premachandra v. Mitts

• Citation: 727 F.2d 717
• Decision Date: 18 April 1984
• Docket Number: No. 82-2441,82-2441
• Parties: Dr. Bhartur N. PREMACHANDRA, Appellee, v. Dr. Murray G. MITTS, etc., et al., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 717

727 F.2d 717

Dr. Bhartur N. PREMACHANDRA, Appellee, v. Dr. Murray G. MITTS, etc., et al., Appellant.

No. 82-2441.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 15, 1983.

Decided Feb. 9, 1984.

Rehearing and Rehearing En Banc Granted April 18, 1984.

Marilyn S. Teitelbaum, Sally E. Barker, Schuchat, Cook & Werner, St. Louis, Mo., for appellee.

Thomas E. Dittmeier, U.S. Atty., St. Louis, Mo., J. Paul McGrath, Asst. Atty. Gen., William Kanter, Anne Buxton Sobol, Nicholas S. Zeppos, Attys., Civ. Div., Dept. of Justice, Washington, D.C., for appellants.

Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

The Veterans Administration (VA) appeals the district court's ^* award to plaintiff, Dr. Bhartur N. Premachandra, of $15,630.67 in attorneys' fees and $1,848.49 in expenses under 28 U.S.C. Sec. 2412 (Equal Access to Justice Act) and 42 U.S.C. Sec. 1988 (Civil Rights Attorneys' Award Act). The VA contends the plaintiff was not eligible for attorneys' fees because: (1) plaintiff was not a "prevailing party"; (2) plaintiff's suit was not brought pursuant to any civil rights provision enumerated in 42 U.S.C. Sec. 1988; and (3) sovereign immunity bars awards of fees for attorney time expended before the October 1, 1981 effective date of the EAJA. We reject these contentions and affirm the award of attorneys' fees, but reduce the amount of the fee to $10,000.

I. Background

Plaintiff is a research endocrinologist employed by the VA for the past eighteen years. On December 30, 1980, the VA notified plaintiff of his termination effective January 16, 1981, and also directed him to end his experiments and dismantle his laboratory by that date.

Plaintiff's response was two-fold. First, he appealed his termination to the Merit Systems Protection Board (MSPB). Second and most relevant to this appeal, he filed suit in federal district court seeking an order enjoining the VA from terminating him and from requiring him to dismantle his laboratory, until he received a due process hearing before the MSPB. Plaintiff claimed that he was entitled to a pretermination hearing under the 5th Amendment to prevent possible irreparable harm to his laboratory research and experiments.

The district court, 548 F.Supp. 117, initially granted plaintiff a temporary restraining order, but then later denied him a preliminary injunction. The court found that plaintiff may be irreparably injured by the dismantling of the laboratory, but nevertheless concluded that this potential hardship was outweighed by plaintiff's slight chance of success on the merits. Relying principally on Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), the court rejected plaintiff's contention that the continuation of his laboratory research entitled him to a pretermination/predismantling due process hearing under the 5th Amendment. See Premachandra v. Mitts, 509 F.Supp. 424, 428-30 (E.D.Mo.1981).

The district court also denied plaintiff's application for an injunction pending appeal, as did the Eighth Circuit and the Supreme Court. Plaintiff later submitted a second motion for injunction pending appeal to the Eighth Circuit, this time seeking an order prohibiting the VA from dismantling his laboratory or disrupting his experiments, but permitting the VA to terminate his employment prior to the due process hearing before the MSPB.

In response to this second motion, and to the VA's expressed willingness not to disrupt the plaintiff's laboratory pending appeal, the Eighth Circuit entered an order to stay the VA's dismantling of plaintiff's laboratory pending oral argument before the Eighth Circuit. This stay did not extend to plaintiff's employment and so the VA subsequently terminated plaintiff's salary but permitted him to continue working in the laboratory.

Oral argument on plaintiff's appeal from the district court's denial of his request for preliminary injunction was held before the Eighth Circuit on June 15, 1981. However, the Eighth Circuit never ruled on the merits of this appeal because, in a letter to the court, dated July 2, 1981, the VA agreed "not to dismantle or interfere with [plaintiff's] use of the laboratory before the decision on the merits of [his] discharge is filed by the [MSPB] Hearing Examiner." This agreement permitted plaintiff to remain in the laboratory until the MSPB ruled on the validity of his discharge. On October 26, 1981, the Board issued a final decision reversing the VA's termination of plaintiff. As a result, the Eighth Circuit dismissed as moot plaintiff's appeal of the denial of his motion for a preliminary injunction.

Following these decisions by the Eighth Circuit and the Board, the plaintiff sought and obtained attorneys' fees in connection with the discharge proceedings before the Board. ¹ The plaintiff also asked the district court to award reasonable attorneys' fees he incurred in the preliminary injunction litigation, pursuant to 42 U.S.C. Sec. 1988 and 28 U.S.C. Sec. 2412(b). In awarding attorneys' fees of $15,630.67, the district court interpreted Sec. 2412(b) in conjunction with 42 U.S.C. Sec. 1988 to make federal defendants, like the VA, liable to a prevailing party for attorneys' fees incurred in a suit for the vindication of civil rights. The court then, applying the Nadeau ² two-part test, concluded that plaintiff was a "prevailing party" in this litigation because: 1) his lawsuit served as a "catalyst" to the VA's agreement not to disrupt plaintiff's laboratory pending disposition of his case before the Agency; 2) his lawsuit was reasonable, as evidenced by plaintiff's eventual success before the MSPB. In calculating the award, the court reduced by one-third the number of compensable hours to reflect the fact that plaintiff was unsuccessful in attempting to enjoin the VA from terminating his employment prior to his hearing before the Board. The court therefore awarded attorneys' fees of $15,630.67 and expenses of $1,848.49 for a total of $17,431.16.

II. Prevailing Party

The threshold issue in this case is whether the district court erred in finding that plaintiff was a "prevailing party" under Sec. 2412 (EAJA) and therefore entitled to attorneys' fees. Although the EAJA does not define the term "prevailing party", the legislative history clearly indicates that the term is to be read consistently with its use in other fee shifting statutes. See H.R.Rep. No. 96-1418, 96th Cong., 2nd Sess. 11 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4990. ³ Recently, the Supreme Court stated that "plaintiffs may be considered 'prevailing parties' for attorneys' fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit". Hensley v. Eckerhart, --- U.S. ----, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40, 50 (1983), quoting, Nadeau, 581 F.2d at 278-79. "Prevailing party", however, is not limited to a "victor" only after entry of final judgment following a full trial on the merits; a party may be considered to have prevailed through a favorable settlement of a case or consent agreement, even if he does not ultimately prevail on all issues. ⁴ United States ex rel. Heydt v. Citizens State Bank, 668 F.2d 444, 447 (8th Cir.1982); United States v. 329.73 Acres, Grenada and Yalobusha, 704 F.2d 800, 808-09 (5th Cir.1983) (en banc); Doe v. Busbee, 684 F.2d 1375, 1379 (11th Cir.1982).

While the parties agree on the law generally, they disagree on the proper standard for determining "prevailing party" where, as here, the defendant's voluntary compliance with plaintiff's requested relief moots the lawsuit. The VA contends the appropriate standard is the two-part test announced in Nadeau v. Helgemoe, 581 F.2d 281, and applied by the district court. The first step under Nadeau requires a court to determine, as a factual matter, whether the plaintiff's suit served as a catalyst--i.e., "a necessary and important factor"--in achieving the relief desired. This first step presents no dispute here; both parties agree on the necessity of a "catalyst" inquiry and the VA does not contest the district court's finding that the plaintiff's lawsuit served as a catalyst ⁵ in bringing about plaintiff's desired relief--i.e., maintenance of his laboratory pending the Board's disposition of the underlying appeal. Assuming plaintiff's suit was a catalyst, the second part of Nadeau requires a court to make the legal determination whether plaintiff's suit was so "frivolous, unreasonable, or groundless" that the defendant's voluntary compliance with plaintiff's desired relief may be considered "gratuitous." Id.

As noted by the district court and the VA, the Eighth Circuit adopted both parts of Nadeau 's two-part test in United Handicapped Federation v. Andre, 622 F.2d 342, 346-347 (8th Cir.1980), a case which, like Nadeau, involved relief through a settlement agreement. The plaintiff nevertheless contends that the second part of Nadeau --asking whether plaintiff's suit was "reasonable"--is inapplicable in cases of voluntary compliance. In support, plaintiff relies on Parham v. Southwestern Bell Telephone, 433 F.2d 421, 429-30 (8th Cir.1970) and Williams v. Miller, 620 F.2d 199, 202 (8th Cir.1980) (per curiam).

We are compelled to apply the "reasonableness" prong of Nadeau, as the court did in United Handicapped. First, the Parham court's failure expressly to apply the "reasonableness" prong of Nadeau was understandable since Parham preceded Nadeau by eight years. Reading Parham, however, it is difficult to conceive that the court regarded plaintiff's suit in that case as being anything but reasonable. See Parham, 433 F.2d at 429-30. Second, in United Handicapped, 622 F.2d at 346-7, the court cited Parham in applying Nadeau's two-part test, apparently recognizing that Nadeau augmented, rather than contradicted Parham. Third, although the...