Young v. Kenley, Civ. A. No. 78-0085-R.

• Decision Date: 08 February 1980
• Docket Number: Civ. A. No. 78-0085-R.
• Citation: 485 F. Supp. 365
• Parties: Willie E. YOUNG v. Dr. J. B. KENLEY et al.
• Court: U.S. District Court — Eastern District of Virginia

485 F. Supp. 365

Willie E. YOUNG v. Dr. J. B. KENLEY et al.

Civ. A. No. 78-0085-R.

United States District Court, E. D. Virginia, Richmond Division.

February 8, 1980.

Charles M. L. Mangum, Lynchburg, Va., for plaintiff.

R. Leonard Vance, Robert T. Adams, Asst. Attys. Gen. of Va., Richmond, Va., for defendants.

MEMORANDUM AND ORDER

WARRINER, District Judge.

Faced with a motion for counsel fees under 42 U.S.C. § 1988 and 42 U.S.C. § 2000e-5(k), this Court reviewed and analyzed the factual/legal circumstances in light of the then leading case of Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978). The Court denied counsel fees for the reasons set forth in its memorandum in Young v. Kenley, 465 F.Supp. 1260 (E.D.Va.1979). On appeal the Fourth Circuit, 614 F.2d 373, noting this Court's reliance on the Nadeau guidelines, reversed and remanded for reconsideration on the intervening guidelines formulated by the Fourth Circuit in Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979). This Court directed counsel to file briefs interpreting Bonnes so the Court could properly contrast the Bonnes guidelines with those of the First Circuit in Nadeau. Plaintiff filed her brief, defendants filed their brief in response, and the time within which the rebuttal brief was required to be filed has expired. The Court will consider the matter on remand on the present state of the record.

Although Nadeau was cited with approval in Bonnes, 599 F.2d at 1318, it is apparent from the language of the unreported per curiam memorandum vacating and remanding this case, that a Nadeau analysis is inappropriate in this Circuit. A Bonnes analysis is required. Under these circumstances, it would be helpful to obtain a contrast of Nadeau with Bonnes so the trier of fact would be guided as to what to avoid and what to consider. Unfortunately, the analyses of counsel in their briefs skim over the contrast while the Fourth Circuit in Bonnes, insofar as it refers to Nadeau, refers to it with approval. Accordingly, this Court must conduct the analysis which compares Nadeau with Bonnes to see where it went wrong in following Nadeau and in failing to anticipate Bonnes.

In its previous decision in Young v. Kenley, 465 F.Supp. 1260, 1262-63, this Court summarized the Nadeau test by quoting from Nadeau:

Even if plaintiffs can establish that their suit was causally related to the defendant's actions which improved their condition, this is only half their battle. The test they must pass is legal as well as factual. If it has been judicially determined that defendants' conduct, however beneficial it may be to plaintiffs' interest, is not required by law, then defendants must be held to have acted gratuitously and plaintiffs have not prevailed in a legal sense.

Applying that test this Court held that plaintiff's law suit contributed to the achievement of certain relief obtained in settlement, but the Court found, "the actions the defendants have taken in settlement simply could not have been required by law had this case gone forward to judgment."

Completely apart from the Nadeau test the Court found that plaintiff's law suit was frivolous. Citing Naprstek v. City of Norwich, 433 F.Supp. 1369 (N.D.N.Y.1977), and Green v. Carbaugh, 460 F.Supp. 1193 (E.D.Va.1978), the Court noted that the central relief which plaintiff sought was the lifting of a regulation which acted as a bar to any promotions to which she might otherwise be entitled. This bar to promotion had been removed by defendants well prior to the filing of the suit and the fact of its removal had been published. Thus at the time of the filing of the suit the only bar to plaintiff's promotion was her failure to file an application and take the requisite test. The suit was wholly unnecessary to achieve the relief sought and was, thus, frivolous.

The Fourth Circuit's opinion vacating and remanding the decision of this Court did not mention this latter, separate ground for denying counsel fees nor did it question this Court's application and understanding of the Nadeau test. Accordingly, this Court will assume that in its earlier effort it correctly understood and applied Nadeau as above set forth.

The Court will now turn to and contrast the Bonnes test. In this connection it is important to note that the Fourth Circuit questioned, not the exercise of discretion by this Court, but this Court's determination that plaintiff was a "prevailing party." The Fourth Circuit observed:

The district court properly noted that a plaintiff whose case ends in settlement may be considered `a prevailing party' under the civil rights attorney's fees provisions. In making its determination whether the plaintiff was in fact the `prevailing party,' the Court applied the test set forth in Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978). After the district court rendered its opinion, this Court issued its decision in Bonnes. Bonnes establishes the test to be applied in this circuit for the consideration whether a party to a case which ends in settlement is a `prevailing party' within the meaning of 42 U.S.C. §§ 1988 and 2000e-5(k). Accordingly, the order of the district court is vacated and the case remanded for further proceedings consistent with this opinion.

As the Fourth Circuit noted this Court had found plaintiff to be a "prevailing party" but that determination had been made by following the Nadeau test. The remand directed this Court, as this Court interprets the remand, to redetermine whether plaintiff is a prevailing party by following the Bonnes test. Bonnes notes that the attorney's fee provision, "posits two essential inquiries: whether the fee claimant is the `prevailing party'; and, if so, whether in the court's informed discretion, a fee should be awarded."

Since the Court found, applying the Nadeau test, that plaintiff was a prevailing party but that she should be denied counsel fees in the Court's informed discretion, it would seem that a redetermination as to whether plaintiff is a prevailing party under the Bonnes test would be merely an academic exercise. No matter what test one may use to determine the question of prevailing party vel non, if, after having made that determination, the Court nevertheless determines in its discretion that counsel fees should not be paid, the method or test by which the Court reached the determination of prevailing party may be of interest but it could not be considered as crucial to the holding. Stated differently, if, because of other considerations, counsel fees should not be awarded, the question of whether a plaintiff is a prevailing party becomes relatively immaterial. The means by which that determination was reached is even less material.

Nevertheless, the Court will review the facts in this case to determine under the Bonnes guideline whether plaintiff is a prevailing party. Judge Phillips in Bonnes notes that

This inquiry is properly a pragmatic one of both fact and law that will ordinarily range outside the merits of the basic controversy. Its initial focus might well be on establishing the precise factual/legal condition that the fee claimant has sought to change or affect so as to gain a benefit or be relieved of a burden. With this condition taken as a benchmark, inquiry may then turn to whether as a quite practical matter the outcome, in whatever form it is realized, is one to which the plaintiff fee claimant's efforts contributed in a significant way, and which does involve an actual conferral of benefit or relief from burden when measured against the benchmark condition.

Judge Phillips continues his explication by citing three cases¹ which mention factors entering into a determination as to whether plaintiff is a prevailing party. The factors mentioned are: (1) whether the litigation was a "catalyst" for reforming defendant's condition; (2) whether there was a necessity for bringing the action; and (3) whether resort to the law was reasonably necessary to secure the plaintiff's rights. This Court does not assume that the three examples given by Judge Phillips are intended to be exhaustive but that they are intended to be helpful to a trial court in its determination whether plaintiff is a prevailing party in a given case.

Reverting to the test as quoted above, the factual/legal condition which the Court found in Young v. Kenley, 465 F.Supp. 1260, 1261-62, shows clearly that plaintiff believed there was a racially based regulation promulgated and persisted in by defendants which effectively barred plaintiff from further promotion. She sought to remove this bar or have it rendered ineffective so that she could advance in her career as a public health nurse. As was found in the previous opinion, plaintiff's suit was wholly ineffective to remove this bar to promotion since the bar had been removed by a voluntary, unrelated act of the defendants well before plaintiff's suit was instituted. Incredible as it may seem, plaintiff had never informed herself that the regulations had been changed though it was published in the official manual which was readily available to plaintiff and her lawyer. Thus "as a quite practical matter" plaintiff's efforts in the law suit cannot be said to have "contributed in a significant way" to obtaining any relief for plaintiff "when measured against the benchmark condition."

Further, considering the three examples mentioned by Judge Phillips, it is abundantly clear that the law suit was not a "catalyst" for reformation of the regulation. The regulation had been "reformed" prior to the institution of the law suit. With respect to factor number two there simply was no necessity for bringing the action, hence factor number three, resort to the law, was not reasonably necessary to secure plaintiff's right.

Although there is some inevitable overlap, under the Bonnes test, where the prevailing party test leaves off and the "special circumstance" test begins, see Chastang v. Flynn & Emrich Co., 541 F.2d 1040, 1045 (4th Cir. 1976)...