Opinion
No. 5-519 / 04-0995
Filed October 26, 2005
Appeal from the Iowa District Court for Cerro Gordo County, Paul R. Huscher, Judge.
An employee appeals from the dismissal of his 42 U.S.C. § 1983 cause of action against the departmental director who terminated his employment. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Bruce H. Stoltze of Brick, Gentry, Bowers, Swartz, Stoltze, Schuling Levis, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Forrest Guddall, Assistant Attorney General, for appellees.
Heard by Sackett, C.J., and Mahan and Miller, JJ.
Royce Echelberger appeals from a district court judgment that annulled the termination of his employment with the Second Judicial District Department of Correctional Services (Department) and awarded him back pay, but dismissed his 42 U.S.C. § 1983 claims against the State, the Department, and departmental director Linda Murken, and further denied his request for attorney fees. Echelberger asserts the district court erred in dismissing his § 1983 claim against Murken to the extent he sought injunctive relief, and in determining he was not entitled to attorney fees pursuant to 42 U.S.C. § 1988. Although we affirm the court's dismissal of Echelberger's § 1983 claim, we reverse and remand on the attorney-fee issue.
I. Background Facts and Proceedings.
Royce Echelberger, an honorably-discharged veteran of the United States Army, began his employment with the Department in 1992. After six months as a Veteran's Administration intern, Echelberger was offered a permanent job as a residential officer. On January 10, 2003, Echelberger was notified he was suspended with pay "pending completion of an investigation regarding possible misconduct." On February 3 Echelberger was notified that he was required to submit to a "fitness for duty" evaluation prior to any final determination regarding his job status. Echelberger submitted to an evaluation on February 10. On February 21 Echelberger was notified that, based upon the evaluation, he was being immediately removed from the payroll as unfit for duty. Echelberger was not provided a pre-removal hearing.
On March 21, 2003, Echelberger filed the instant action against the State, the Department, and Murken. He sought a writ of certiorari, requesting an order vacating his removal, reinstating his employment, and awarding him appropriate equitable and legal relief, including damages. He also alleged a violation of his equal protection and due process rights, and sought equitable and legal relief under 42 U.S.C. § 1983, including retroactive reinstatement, damages including lost income, attorney fees and costs.
Echelberger also filed a grievance through his local union. A grievance hearing was held on March 24, 2003. On April 16, 2003, Murken concluded there was no contract violation, and the grievance was denied.
Echelberger also sought a writ of mandamus, and alleged a violation of Iowa Code chapter 91A (2003). These claims were dismissed by the district court, and their dismissal is not at issue on appeal.
In February 2004 the district court granted Echelberger partial summary judgment. The court ruled the Department's removal of Echelberger from the payroll was unlawful, as Echelberger was an honorably discharged veteran and thus entitled to the benefits conferred by Iowa Code chapter 35C (2003), including the notice and hearing requirements of section 35C.6.
Following a March 2004 trial, the district court sustained Echelberger's petition for a writ of certiorari. The court annulled and set aside "the actions of the Defendants in terminating the Plaintiff's employment," "reinstated" Echelberger's employment, and awarded him back pay. The court denied Echelberger's § 1983 claims. Although the court determined Echelberger had a property right in continued employment by virtue of his veteran's preference, and was deprived of that right without procedural due process, the court concluded all three defendants were immune from suit: the State because it had not waived immunity, the Department because it had been sued as an alter-ego of the State, and Murken because she had been sued in her official capacity. The court also denied Echelberger's request for attorney fees.
Echelberger was awarded hourly pay, employer-paid IPERS contributions, and deferred compensation matching funds.
Echelberger filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). In relevant part, Echelberger asserted that § 1983 allowed him to seek injunctive relief against Murken in her official capacity, that he was entitled to such relief, and that because he was entitled to relief against Murken under § 1983 he was further entitled to recover attorney fees pursuant to § 1988. The district court denied this portion of the motion.
The court found Echelberger was not entitled to injunctive relief under § 1983 because he "received an adequate remedy at law." The court rejected Echelberger's attorney fee claim under § 1988. The court further noted that Echelberger's remedy had been premised entirely upon a state law violation. Echelberger now appeals.
II. Scope and Standard of Review.
As the issues on appeal turn upon the interpretation and application of legal principles, our review is for the correction of errors at law. Iowa R. App. P. 6.4; State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000). We review such issues without deference to the trial court's legal conclusions. Wilson v. IBP, Inc., 589 N.W.2d 729, 730 (Iowa 1999); Production Credit Ass'n of Midlands v. Farm Town Indus., Inc., 518 N.W.2d 339, 341 (Iowa 1994).
III. Injunctive Relief under § 1983.
We turn first to the question of whether the district court erred in refusing to grant Echelberger injunctive relief against Murken pursuant to 42 U.S.C. § 1983. In relevant part § 1983 creates a cause of action, at law or in equity, for deprivation of federal rights by a person acting under color of state law. It affords injunctive relief against state officials sued in their official capacity, "because `official-capacity actions for prospective relief are not treated as actions against the State.'" Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n. 10, 109 S. Ct. 2304, 2312 n. 10, 105 L. Ed. 2d 45, 58 n. 10 (1989) (citation omitted). Here, the district court determined that Murken, acting in her official capacity, had violated Echelberger's right to procedural due process. See Aluminum Co. v. Musal, 622 N.W.2d 476, 479 (Iowa 2001) (noting procedural due process requires both notice and a meaningful opportunity to be heard). The court nevertheless concluded Echelberger could not obtain injunctive relief against Murken, because Echelberger "received an adequate remedy at law."
Echelberger does not appeal the court's dismissal of his § 1983 claims against the State or the Department.
There appears to be no dispute Echelberger demonstrated that Murken (1) deprived him of a right secured by the constitution or laws of the United States, and (2) did so while acting under color of state law. See Parratt v. Taylor, 451 U.S. 527, 535, 101 S. Ct. 1908, 1913, 68 L. Ed. 2d 420, 428 (1981).
Iowa law is clear that "`an action for an injunction will not lie' when the party seeking injunctive relief `has an adequate remedy at law.'" Worthington v. Kenkel, 684 N.W.2d 228, 232 (Iowa 2004) (quoting Sergeant Bluff-Luton Sch. Dist. v. City of Sioux City, 562 N.W.2d 154, 156 (Iowa 1997)); see also Allee v. Medrano, 416 U.S. 802, 815, 94 S. Ct. 2191, 2200, 40 L. Ed. 2d 566, 580 (1974) (approving injunctive relief pursuant to § 1983 where "[n]o remedy at law would be adequate to provide such protection"). Echelberger acknowledges the district court granted him relief pursuant to an ordinary action at law, see Iowa R. Civ. P. 1.1402(2), but contends the "reinstatement" of his employment with the Department was prospective equitable relief. Thus, Echelberger contends he neither received nor had a remedy at law adequate to ensure the injunctive relief he sought against Murken pursuant to § 1983. Although not clearly articulated, it appears the injunctive relief sought pursuant to § 1983 might have been reinstatement of Echelberger's employment.
We first note that Echelberger limited the issue in his appeal brief to the question of whether § 1983 afforded injunctive relief against a state official acting in her official capacity. It was not until the reply brief that Echelberger addressed the court's conclusion that he had an adequate remedy at law. We typically do not address on appeal claims raised for the first time in a reply brief. Sun Valley Iowa Lake Ass'n v. Anderson, 551 N.W.2d 621, 642 (Iowa 1996). Moreover, Echelberger provides no authority in support of his contentions that the district court provided him with equitable relief rather than a remedy at law, or that injunctive relief under § 1983 was warranted. This alone is sufficient to waive his claim on appeal. See Iowa R. App. P. 6.14(1)( c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue.").
Even if we were to address the merits of Echelberger's claim, he cannot prevail. Final judgment on certiorari does not encompass injunctive relief. Rather, it is "limited to sustaining the proceedings below, or annulling the same wholly or in part, to the extent that they were illegal or in excess of jurisdiction, and prescribing the manner in which either party may proceed further." Iowa R. Civ. P. 1.1411; see also O'Malley v. Gundermann, 618 N.W.2d 286, 291 (Iowa 2000) ("[R]eview of a veteran's removal from a public position held by appointment or employment is limited to a determination of whether the person authorizing the veteran's removal acted illegally or in excess of the person's jurisdiction. . . .").
Rule 1.1411 makes an exception where "otherwise specially provided by statute. . . ." However, nothing in chapter 35C provides for relief beyond that authorized by rule 1.1411.
Here, the district court annulled the Department's illegal termination of Echelberger's employment. Thus, despite the court's use of the term "reinstatement," it did no more than return Echelberger to his pre-termination status. Annulling the department's action is a legal remedy, see Sergeant Bluff-Luton Sch. Dist., 562 N.W.2d at 156, and adequate to provide Echelberger relief. The district court did not err in denying Echelberger's claim for injunctive relief under § 1983. We therefore turn to Echelberger's assertion that, even if the court did not err in dismissing his § 1983 claim against Murken, he was nevertheless entitled to attorney fees under § 1988.
To the extent Echelberger sought some further injunctive relief, such as an injunction barring Murken from again terminating his employment without pre-deprivation notice and hearing, he points this court to no evidence demonstrating a "likelihood of substantial and immediate irreparable injury" if denied further injunctive relief. City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S. Ct. 1660, 1670, 75 L. Ed. 2d 675, 690 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 502, 94 S. Ct. 669, 679, 38 L. Ed. 2d 674, 687 (1974)).
IV. Attorney Fee Award under § 1988.
Section 1988 provides, in relevant part: "In any action or proceeding to enforce a provision of section . . . 1983, . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs. . . ." Echelberger asserts he is a "prevailing party," even though his § 1983 claim was dismissed, because he could have received prospective injunctive relief under § 1983.
We first note Echelberger's argument presupposes entitlement to prospective injunctive relief against Murken under § 1983, but does not cite to facts or law in support of this contention. As we have previously noted, this is sufficient to waive the claim on appeal. See Iowa R. App. P. 6.14(1)( c). We decline to deem the claim waived here, however, where the plaintiff was deprived of a property right without procedural due process.
Under prevailing federal law, the availability of attorney fees under § 1988 depends upon the resolution of the § 1983 claim. Obviously, if the plaintiff succeeds on his § 1983 claim, an attorney fee award is statutorily authorized. See 42 U.S.C. § 1988. Conversely, if the § 1983 claim is decided adversely to the plaintiff, he cannot avail himself of the attorney fee provision of § 1988. See e.g., Mateyko v. Felix, 924 F.2d 824, 828 (9th Cir. 1990) (finding no basis for fee award where jury found for plaintiff on negligent infliction of emotional distress claim, but court directed verdict in favor of defendants on § 1983 claim); Reel v. Arkansas Dep't of Corr., 672 F.2d 693, 698 (8th Cir. 1982) (rejecting fee claim where plaintiff prevailed on assault and battery claims, but district court found plaintiff had no federal constitutional claim).
It is not uncommon, however, for a party to succeed on state law claims without a resolution of federal constitutional claims. In such cases a "pendant jurisdiction" test is employed. Under that test if the federal claim is "substantial" or not "obviously frivolous," and the state law claim shares a common nucleus of operative facts with the federal claim, attorney fees may be awarded under § 1988. Id. This test has been employed by numerous state courts. See Dawson v. Birenbaum, 968 S.W.2d 663, 667 n. 3 (Ky. 1998). As noted by one state court, to conclude attorney's fees may not be awarded under the foregoing circumstances "would both contravene the congressional goal of encouraging vindication of constitutional rights and undermine the judicial policy of avoiding unnecessary decision of important constitutional issues." International Ass'n. of Machinists v. Affleck, 504 A.2d 468, 470 (R.I. 1986).
See Hagans v. Lavine, 415 U.S. 528, 536-37, 94 S. Ct. 1372, 1379, 39 L. Ed. 2d 577, 587-88 (1974) (noting an insubstantial claim is one that is "wholly insubstantial," "obviously frivolous," or "obviously without merit," and not merely of doubtful or questionable merit).
As explained in a footnote to the Report of the House Judiciary Committee which accompanied The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988:
To the extent a plaintiff joins a claim under one of the statutes enumerated in (the Act) with a claim that does not allow attorney fees, that plaintiff, if it prevails on the non-fee claim, is entitled to a determination on the other claim for the purpose of awarding counsel fees. In some instances, however, the claim with fees may involve a constitutional question which the courts are reluctant to resolve if the nonconstitutional claim is dispositive. In such cases, if the claim for which fees may be awarded meets the "substantiality" test, attorneys' fees may be allowed even though the court declines to enter judgment for the plaintiff on that claim, so long as the plaintiff prevails on the non-fee claim arising out of a "common nucleus of operative fact."
H.R. Rep. No. 94-1558, at 4 n. 7 (1976), as reprinted in 1976 USCCAN 5908.
The parties' difference of opinion on the fee issue turns upon their respective interpretations of the district court's order. Murken asserts the court decided the § 1983 claim adversely to Echelberger, and thus attorney fees are not available under § 1988. Echelberger asserts the court did not in fact resolve his § 1983 claim but disposed of the matter on state law grounds, and that he is eligible for a fee award as his § 1983 claim against Murken is both meritorious and based on the same set of facts as his petition for a writ of certiorari. We believe Echelberger has the better argument.
Contrary to Murken's assertions, Echelberger's § 1983 claim has merit. The defendants conceded and the district court found, after an extensive analysis of the issue, that the defendants had violated Echelberger's federal right to procedural due process. There appears to be no dispute that Murken participated in the illegal termination under color of state law, or that she has the authority to reinstate Echelberger. Moreover reinstatement under § 1983 is a form of prospective, equitable relief. See Turker v. Ohio Dep't of Rehab. and Corr., 157 F.3d 453, 459 (6th Cir. 1998); Murphy v. State of Arkansas, 127 F.3d 750, 754 (8th Cir. 1997); Kashani v. Purdue Univ., 813 F.2d 843, 848 (7th Cir. 1987); Dwyer v. Regan, 777 F.2d 825, 836 (2nd Cir. 1985). Thus, but for the existence of an adequate state law remedy, Echelberger could have succeeded on his § 1983 claim against Murken for reinstatement of his employment.
Murken contends the existence of that adequate state law remedy is fatal to Echelberger's claim for attorney fees under § 1988. In support of this conclusion she relies on the case of National Private Truck Council, Inc. v. Oklahoma Tax Commission, 515 U.S. 582, 115 S. Ct. 2351, 132 L. Ed. 2d 509 (1995). There, the Supreme Court determined § 1983 "does not call for either federal or state courts to award injunctive and declaratory relief in state tax cases when an adequate legal remedy exists." National Private Truck Council, 515 U.S. at 589, 115 S. Ct. at 2355, 132 L. Ed. 2d at 517. Because the plaintiff had an adequate legal remedy of a state refund, the Oklahoma court was precluded from awarding equitable relief under § 1983, and "[i]t follows that when no relief can be awarded pursuant to § 1983, no attorney's fees can be awarded under § 1988." Id. at 592, 115 S. Ct. at 2357, 132 L. Ed. 2d at 519. Murken contends there is no meaningful distinction between the present case and National Private Truck Council, and that the Supreme Court's holding precludes an award of attorney fees to Echelberger. We cannot agree.
We first note the Supreme Court resolved a limited question in National Private Truck Council: "We granted certiorari to resolve a conflict among the state courts as to whether, in tax cases, state courts must provide relief under § 1983 when adequate remedies exist under state law." Id. at 585-586, 115 S. Ct. at 2354, 132 L. Ed. 2d at 515 (emphasis added). Moreover, the Court's decision was driven by the long-standing reluctance of federal courts to interfere with state taxation:
We have long recognized that principles of federalism and comity generally counsel that courts should adopt a hands-off approach with respect to state tax administration. . . .
Since the passage of § 1983, Congress and this Court repeatedly have shown an aversion to federal interference with state tax administration. The passage of the Tax Injunction Act in 1937 is one manifestation of this aversion.
Id. at 586, 115 S. Ct. at 2354, 132 L. Ed. 2d at 515.
Having previously held that "Congress never authorized federal courts to entertain damages actions under § 1983 against state taxes when state law furnishes an adequate legal remedy," the Court concluded, in light of "the background presumption that federal law generally will not interfere with administration of state taxes[,] . . . that Congress did not authorize injunctive or declaratory relief under § 1983 in state tax cases when there is an adequate remedy at law." Id. at 587-89, 115 S. Ct. at 2354-56, 132 L. Ed. 2d at 516-18. In declaring that its holding applied to state as well as federal courts, the Court noted that equitable relief issued by a state court pursuant to a federal statute would cause just as great a disruption to state tax administration as would equitable relief granted by federal court. Id. at 590-91, 115 S. Ct. at 2356-57, 132 L. Ed. 2d at 518-19.
We believe there is a distinction between an inability to grant relief because such a claim was never authorized by Congress, and declining to grant injunctive relief because there is an adequate remedy at law. While the former directly bears upon the merits of the cause of action, the latter is akin to the long-standing reluctance "to address constitutional questions unless their answers are necessary to dispose of the case." Wengert v. Branstad, 474 N.W.2d 576, 578 (Iowa 1991) (citing City of Des Moines v. Lohner, 168 N.W.2d 779, 782 (1969)). Moreover, adopting Murken's position would allow persons acting under color of state law to violate individuals' federal rights yet escape the consequences of § 1988 any time the State has provided a statutory remedy. This would run contrary to the intent behind § 1988: "[T]o encourage compliance with and enforcement of the civil rights laws." Dennis v. Chang, 611 F.2d 1302, 1305 (9th Cir. 1980).
Section 1988 must be liberally construed to achieve its legislative purpose. Id. We conclude that, under the facts of this case, § 1988 authorizes an award of attorney fees to Echelberger. We therefore reverse that portion of the district court's judgment that concluded an award of attorney fees under § 1988 was not available, and remand this matter to the district court for a consideration of Echelberger's request for an award of attorney fees. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
While a fee award is a matter within the court's discretion, we note that discretion is limited: "[The prevailing party] should ordinarily recover an attorney's fee unless special circumstances render such an award unjust." S. Rep. No. 1101, at 1, (1976), as reprinted in 1976 USCCAN 5908, 5912 (quoting Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S. Ct. 964, 966, 19 L. Ed. 2d 1263, 1266 (1968)).