FOURTH CIRCUIT RULES ON §1988 FEES, QUALIFIED IMMUNITY
Today, December 12, the Fourth Circuit hands down two opinions in civil rights cases. In Wendt v. Leonard, authored by Judge Traxler, the court addresses – sort of – the question whether a district court that does not have subject matter jurisdiction over a case can nevertheless award attorney’s fees for a frivolous suit.
Wendt got in trouble the all-American way: He didn’t pay his taxes. The North Carolina taxing authorities got a judgment against him, and executed on that judgment by seizing Wendt’s boat. Wendt felt aggrieved, and filed a pro se suit in federal court, seeking an injunction and $24 million in damages in a §1983 suit. (The opinion, alas, does not say how valuable the boat was.)
The problem with this is that, with very few exceptions, federal courts have no jurisdiction to entertain suits involving state and local taxes, by virtue of the Tax Injunction Act, 28 USC §1341. This case wasn’t within one of the exceptions, so Wendt was out of federal court.
Well, not quite out. The district judge retained jurisdiction just long enough to “entertain requests from the defendants for costs and sanctions” due to their having to defend the suit. Wendt, it turns out, has frequent flier miles from fighting, and losing, tax challenges like this, and the court found that he should have learned his Tax Injunction Act lesson by then. The several defendants filed Rule 11 motions, but those were denied; since the motions were filed after the case was dismissed, Wendt was not afforded the benefit of the safe harbor provision of Rule 11. The court did, however, assess attorney’s fees against Wendt under 42 USC §1988, since the defendants were the prevailing parties in civil rights litigation.
A short digression is warranted here. Ordinarily, a prevailing plaintiff can get §1988 fees just by prevailing. But when a defendant wins, he ordinarily has to show that the underlying suit was frivolous. That standard was met here, the district judge ruled, as he assessed some $12,000 in fees.
For whatever reason, Wendt did not appeal this ruling. Instead, six months later, he filed a Rule 60 motion for relief from a judgment, asserting that the fees order was void. He argued, quite plausibly, that if the district court didn’t have subject matter jurisdiction to decide the merits, then the district court didn’t have jurisdiction to award attorney’s fees, either. The district court was unmoved by this logic and denied the motion. This time, Wendt appealed.
Today, the Fourth affirms, but does not come right out and say that the district court did, indeed, have jurisdiction to award fees. There is a split in the federal circuits over whether a district court can award fees in exactly this situation; the Seventh has ruled that it may, while the Eighth and Ninth have ruled to the contrary. The Fourth defers the question to another day, due to the procedural posture of the matter.
Today’s opinion notes, on more than one occasion, that Wendt voluntarily did not appeal the original fees order. There is ample caselaw to support the premise that a Rule 60 motion is not a substitute for a timely appeal, and that proved Wendt’s undoing here. The standard for reviewing the denial of a Rule 60 motion is quite lenient, especially as it applies to assertions regarding subject matter jurisdiction; the district court need only arguably have had a basis for asserting jurisdiction over the fees petition. As the court notes today, the very fact that there is a split in the circuits shows that the district court here arguably had jurisdiction, so the ruling is affirmed.
It is transparent from a reading of this opinion that this ruling may well have gone the other way if Wendt had only raised this argument in a timely appeal instead of waiting six months to try to resurrect his case by resort to Rule 60. But we’ll have to wait for another day, and another case, to find out.
In the other case handed down today, the court reverses a qualified immunity ruling, and directs the entry of judgment in favor of a police officer in a Fourth Amendment case. The ruling comes in the case of McKinney v. Richland County Sheriff.
McKinney was a South Carolina elementary school teacher who was accused by one of his students of grabbing her neck and choking her. After an investigator took initial statements from the child and her mother, and took photos of her injuries, he turned the matter over to a youth crimes investigator. The investigator re-interviewed the girl and her mother, getting confirmation of the original stories. He then screened the case with a prosecutor, who opined that he had probable cause to prosecute. The prosecutor recommended an interview with the teacher, but the investigator didn’t do that; instead, he prepared an affidavit, and arranged to meet the mother at the magistrate’s office. There, the mother signed the affidavit and spoke privately with the magistrate, who thereupon issued a warrant for McKinney’s arrest. A grand jury issued a no bill, so McKinney was never prosecuted for the offense.
McKinney sued, claiming that he had been arrested upon a warrant that was devoid of probable cause. The investigator filed a qualified immunity defense, asserting that a reasonable officer in possession of the facts he knew could have believed that probable cause existed. The district judge was not impressed; he denied the motion.
One of the unique things about qualified immunity defenses in civil rights cases is that where one is denied, the defendant gets an immediate interlocutory appeal; the investigator took that option, bringing on today’s decision. The Fourth Circuit reverses the district court and rules that the investigator is qualifiedly immune from suit.
Qualified immunity analysis is generally a two-part test. First, the court decides whether a plaintiff has alleged a violation of federally protected rights. If not, the case is over (at least against that defendant). If the facts do support the denial of a right, the next step is to determine whether that right was clearly established at the time of the events, so that an objectively reasonable officer would have known that his conduct would violate that right.
McKinney never gets to the second step with this panel. It finds that the facts of the case do not establish that he was arrested without probable cause. Several factors point to this conclusion, most notably the direct testimony of the complaining witness, who positively identified McKinney. The investigator, the court rules today, was entitled to believe the consistent statements of the girl and the corroborating physical evidence. McKinney contended that the investigator failed to follow up on leads that would have developed exculpatory evidence. The court discards this argument, citing a line of authority that officers are not required to pursue such leads; they may not disregard exculpatory evidence of which they are aware, but if the record does not show that they knew of any, then the issue is irrelevant.
To me, the most telling aspect of the case is that the investigator cleared the charge with a prosecutor and a magistrate before proceeding. The opinion cites some (very persuasive) authority that an officer is not required to second-guess a legitimate judgment call made by a prosecutor or a magistrate in this context.
The court declined to address one intriguing argument, whether the investigator could be liable when it was the mother, not the investigator, who signed the affidavit. Finding that no deprivation of rights had occurred, the court deemed it unnecessary to address this argument.
McKinney also tried to claim that his rights were violated by another warrant for other conduct, which warrant was obtained by the same investigator. Unfortunately, he was shot down here by his failure to plead that specifically as a rights violation.
This case presents an excellent, timely treatise on the court’s current views of the qualified immunity defense. Judge Luttig writes the opinion, joined by Judges Williams and Michael.