WHEN STATE AGENCIES QUIBBLE OVER DOLLARS
On Wednesday, April 6, the Fourth Circuit found itself an involuntary referee in a boxing match between two Commonwealth agencies over an attorney’s fee award. The case is Virginia Office for Protection and Advocacy v. Commissioner, and involves a claim by a state-created watchdog agency against the Commonwealth’s Department of Mental Health, Mental Retardation, and Substance Abuse Services.
VOPA was created, consistent with federal enabling legislation in the 1980’s, “to protect the rights of, and advocate for, the mentally ill.” It is “an independent Virginia state agency.”
When VOPA and the Department disagreed over the latter’s provision of patient information to VOPA, the watchdog agency sued in federal court, alleging inter alia a violation of 42 USC §1983. Following entry of a preliminary injunction directing the disclosure sought by VOPA, the parties then reached an agreement on all issues except those relating to the §1983 claim, specifically including the agency’s right to attorney’s fees under §1988. Reserving its right to appeal, the Department agreed that the fee amount, if justified at all, would be some $16,000. The district court entered judgment accordingly.
On appeal, the majority, led by Chief Judge Wilkins, holds that as a state agency, VOPA is not a “person” entitled to bring an action under §1983. Accordingly, although the parties had reached an agreement on substantive relief, the appellate court found that attorney’s fees were not recoverable by the agency.
The majority’s analysis is, in this writer’s humble view, unassailable. But the real star of this show is the short concurrence, written by District Judge Samuel G. Wilson, of the Western District of Virginia. In simple, direct terms, Judge Wilson lays bare the fundamental flaw in the assertion of federal jurisdiction in this case. Here is the concurrence, in its entirety:
“I completely agree with the court’s opinion. I write separately, however, to note my view that there is an additional, equally fundamental, basis supporting our result. Stripped of its pretense, this suit is nothing more than an intramural contest over the allocation of state funds. The authority to entertain a lawsuit such as this one, which gives a state’s warring factions a federal forum in which to compel the reallocation of state funds, is to place in federal court hands, the power to Balkanize state government. I believe it is implicit in our federal system that federal courts lack that authority.”