Virginia Office for Protection and Advoc. v. Reinhard

• Decision Date: 06 April 2005
• Docket Number: No. 04-1795.,04-1795.
• Citation: 405 F.3d 185
• Parties: VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY, Plaintiff-Appellee, v. DR. James REINHARD, in his official capacity as Commissioner of the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

405 F.3d 185

VIRGINIA OFFICE FOR PROTECTION AND ADVOCACY, Plaintiff-Appellee, v. DR. James REINHARD, in his official capacity as Commissioner of the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services, Defendant-Appellant.

No. 04-1795.

United States Court of Appeals, Fourth Circuit.

Argued: February 1, 2005.

Decided: April 6, 2005.

ARGUED:

William Eugene Thro, State Solicitor General, Office of the Attorney General of Virginia, Richmond, Virginia, for Appellant. Jonathan Gerald Martinis, Virginia Office for Protection and Advocacy, Rights of Virginians with Disabilities, Richmond, Virginia, for Appellee.

ON BRIEF:

Jerry W. Kilgore, Attorney General of Virginia, Maureen Riley Matsen, Deputy State Solicitor General, Ronald N. Regnery, Associate State Solicitor General, Jane D. Hickey, Senior Assistant Attorney General, Allyson K. Tysinger, Assistant Attorney General, Richmond, Virginia, for Appellant.

Before WILKINS, Chief Judge, NIEMEYER, Circuit Judge, and Samuel G. WILSON, United States District Judge for the Western District of Virginia, sitting by designation.

Vacated by published opinion. Chief Judge WILKINS wrote the opinion, in which Judge NIEMEYER and Judge WILSON joined. Judge WILSON wrote a seperate concurring opinion.

OPINION

WILLIAM W. WILKINS, Chief Judge:

Commissioner James Reinhard (the Commissioner) appeals an award of attorneys' fees in an action brought against him in his official capacity as head of the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services (the Department), by the Virginia Office for Protection and Advocacy (VOPA), purportedly under 42 U.S.C.A. § 1983 (West 2003). Concluding that VOPA was not entitled to assert a claim under § 1983, we vacate the award.

I.

Concerned about the vulnerability of the mentally ill to abuse and serious injury, Congress enacted the Protection and Advocacy for Mentally Ill Individuals Act of 1986 (the Act). See 42 U.S.C.A. §§ 10801-10827 (West 1995 & Supp.2004). The Act helps states to establish and operate protection and advocacy systems (P & As) to protect the rights of, and advocate for, the mentally ill. VOPA is an independent Virginia state agency that serves as the Commonwealth's P & A. See Va.Code Ann. § 51.5-39.2 (LexisNexis Supp.2004).

This suit arises out of VOPA's investigation — based on complaints of neglect — into the Department's establishment and implementation of discharge plans for persons with mental illness whom the Department deemed "ready for discharge" from its institutions. In order to identify which individuals had been deemed "ready for discharge," VOPA requested that the Commissioner provide it with the names and contact information of all such individuals. When the Commissioner refused, VOPA brought suit against him in his official capacity, alleging that it was entitled to a listing of the names and contact information of Department clients who had not been discharged within 30 days of being deemed ready for discharge by their treatment teams. See 42 U.S.C.A. § 10805(a)(1)(A) (providing that P & As are authorized to investigate possible abuse and neglect when such conduct is reported or there is probable cause to believe it occurred). VOPA sought an injunction under 42 U.S.C.A. § 1983 — or alternatively, under the Act — requiring the Commissioner's compliance as well as a declaration that the Commissioner had violated the Act.¹ VOPA also requested an award of attorneys' fees and costs under 42 U.S.C.A. § 1988(b) (West 2003) (authorizing a district court to award attorneys' fees to the prevailing party in a § 1983 action).

Following a hearing, the district court entered a preliminary injunction ordering the Commissioner to disclose the information sought. Thereafter, the parties reached a settlement, and upon their joint motion, the district court entered an order (the Merits Order) directing the Commissioner to provide the information that VOPA had requested through January 31, 2006. In the Merits Order, the district court recognized that the parties had "agreed to settle a majority of the issues in dispute between them" and that the only claims remaining were VOPA's "claims that it is a prevailing party under 42 U.S.C. § 1983, and that it is entitled to attorney's fees under 42 U.S.C. § 1988, and the amount of any such fee award, all of which claims are disputed by the [Commissioner]." J.A. 84-85.

VOPA subsequently moved for an award of attorneys' fees and costs under § 1988. The Commissioner opposed the motion, arguing, inter alia, that VOPA was not a prevailing party under § 1983 — and thus not entitled to fees under § 1988 — because VOPA, as a state agency, could not be a plaintiff in a § 1983 suit. The Commissioner argued that, notwithstanding VOPA's allegations in its complaint, its relief had actually been obtained under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which authorizes "suits against state officers for prospective equitable relief from ongoing violations of federal law." Lytle v. Griffith, 240 F.3d 404, 408 (4th Cir.2001). The district court rejected the Commissioner's argument, concluding that VOPA "has the legal authority and capacity to bring a 42 U.S.C. § 1983 action." J.A. 143. The court therefore granted VOPA's motion and directed the parties to attempt to reach agreement regarding the amount of fees and costs to be awarded. The parties agreed on the figure of $16,195.00, and the district court entered judgment for VOPA in that amount.

II.

On appeal, the Commissioner contends that the district court erred in awarding fees to VOPA under § 1988 because, as a state agency, VOPA was not entitled to assert a claim under § 1983. We agree.²

A.

Even when a plaintiff purports to assert rights under § 1983 and obtains the relief sought in the complaint, a defendant generally may prevent an award of fees by showing that the plaintiff was not entitled to assert a claim under § 1983. See Md. Pest Control Ass'n v. Montgomery County, 884 F.2d 160, 161-63 (4th Cir.1989) (per curiam). VOPA contends, however, that when it moved for attorneys' fees the district court had already determined, in the Merits Order, that the relief VOPA obtained was under § 1983. VOPA maintains that because the Commissioner had not appealed that ruling, it was already the law of the case. See Nat'l Home Equity Mort. Ass'n v. Face, 322 F.3d 802, 804 (4th Cir.2003) (holding that the proposition that the action was properly brought under § 1983 was the law of the case and could not be challenged in the context of a subsequent fee award motion because the plaintiff obtained relief after purporting to sue under § 1983, the district court determined the action was properly brought under § 1983, and the defendant unsuccessfully appealed without challenging that determination).

We do not read the Merits Order as deciding that VOPA was entitled to relief under § 1983, however. The only mention of § 1983 in the Merits Order is the statement that "[t]he only claims remaining before this Court are [VOPA's] claims that it is a prevailing party under 42 U.S.C. § 1983, and that it is entitled to attorney's fees under 42 U.S.C. § 1988, and the amount of any such fee award, all of which claims are disputed by the [Commissioner]." J.A. 85. We conclude that in the absence of any clarifying language, the statement that the Merits Order left open whether VOPA was "a prevailing party under ... § 1983" also left open the antecedent issue of whether VOPA had obtained relief "under § 1983."

B.

With the law of the case doctrine inapplicable here, the Commissioner maintains that the district court erred in deciding that VOPA could bring suit under § 1983. Section 1983 allows "citizen[s]" and "other person[s] within the jurisdiction" of the United States to seek legal and equitable relief from "person[s]" who, under color of state law, deprive them of federally protected rights. 42 U.S.C.A. § 1983 (emphasis added). The Commissioner contends that because VOPA is a state agency, it is not a "person" within the meaning of the statute. We agree.

The word "person" in a federal statute generally includes "corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals." 1 U.S.C.A. § 1 (West 2005). At the same time, the Supreme Court has held that "person" should generally not be construed to include the sovereign. See Wilson v. Omaha Indian Tribe, 442 U.S. 653, 667, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979). Though it is not a "hard and fast rule of exclusion," United States v. Cooper Corp., 312 U.S. 600, 604-05, 61 S.Ct. 742, 85 L.Ed. 1071 (1941), the presumption that "person" does not include the sovereign may be overcome only by an "affirmative showing of statutory intent to the contrary," Vt. Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 781, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000). Whether a sovereign entity qualifies as a "person" also depends upon the "legislative environment" in which the word appears. Georgia v. Evans, 316 U.S. 159, 161, 62 S.Ct. 972, 86 L.Ed. 1346 (1942) (holding that a state, as purchaser of asphalt shipped in interstate commerce, qualified as a "person" entitled to seek redress under the Sherman Act for restraint of trade); see Pfizer Inc. v. Gov't of India, 434 U.S. 308, 320, 98 S.Ct. 584, 54 L.Ed.2d 563 (1978) (holding that a foreign nation, as purchaser of antibiotics, ranked as a "person" qualified to sue pharmaceuticals manufacturers under federal antitrust laws).

Two Supreme Court decisions are particularly relevant to the question before us. The first is Will v. Michigan Department of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), wherein the Court held that a state is not a "person" for purposes of determining who can be sued under § 1983. See Will, 491 U.S. at 71, 109 S.Ct. 2304. The Will Court reasoned that "in enacting § 1983, Con...