Ortiz v. Regan

980 F.2d 138, 24 Fed. R. Serv. 3d 480, 1992 U.S. App. LEXIS 31190, 60 Empl. Prac. Dec. (CCH) 41,905, 1992 WL 339895
CourtCourt of Appeals for the Second Circuit
DecidedNovember 23, 1992
DocketNo. 202, Docket 92-7448
StatusPublished
Cited by36 cases

This text of 980 F.2d 138 (Ortiz v. Regan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ortiz v. Regan, 980 F.2d 138, 24 Fed. R. Serv. 3d 480, 1992 U.S. App. LEXIS 31190, 60 Empl. Prac. Dec. (CCH) 41,905, 1992 WL 339895 (2d Cir. 1992).

Opinion

OAKES, Circuit Judge:

Plaintiff-appellant Bernice Ortiz appeals from a judgment of the United States District Court for the Southern District of New York, Michael B. Mukasey, Judge, granting Ortiz a reduced award of attorney’s fees under the Civil Rights Attorney’s Fees Act, 42 U.S.C. § 1988 (1988). The district court awarded limited attorney’s fees for legal work that was done prior to April 1990 but refused to allow Ortiz to recover for work that had been done after April 1990. For the reasons set forth below, we hold that Ortiz is entitled to attorney’s fees for post-April 1990 work and that, on remand, the district court must determine the appropriate level of those fees.

In order to explain our reasoning, we begin by briefly reviewing the underlying facts of Ortiz’s civil rights case.

BACKGROUND

Ortiz’s attorney’s fee claim arises from her successful litigation of a 42 U.S.C. § 1983 (1988) action involving her right to pension fund benefits. In that case, Ortiz, a retired state employee, protested the suspension of her advance pension benefits 1 that resulted from a dispute as to her date of birth. Defendants New York State and Local Retirement Systems and Edward Y. Regan (“Regan”) cut off Ortiz’s advance pension payments in September of 1989, without notice or explanation, and did not renew retirement payments until mid-February of 1990. The new payments were based on the more recent of the birth dates at issue.

Ortiz brought suit in federal district court on March 9, 1990 claiming that Re-gan’s actions had deprived her of property without due process of law. In April 1990, Regan notified Ortiz of her right to a hearing under § 74(d) of New York State’s Retirement and Social Security Law in order to revisit the question of her birth date. Section 74(d) allows pension applicants to receive a de novo determination of final pension benefits from the comptroller of the New York State Employees' Retirement System.2 Ortiz did not request a § 74(d) hearing to protest the birth date determination but proceeded with her due process suit.

The district court issued three opinions addressing different aspects of Ortiz’s action. First, the court denied Regan’s motion to dismiss, finding that Ortiz had stated a claim for deprivation of property without due process of law. Ortiz v. Regan, 749 F.Supp. 1254 (S.D.N.Y.1990). The court reasoned that the availability of a § 74(d) hearing was “irrelevant” because it did not satisfy her pre-deprivation due process rights. Id. at 1261.

In its second opinion, addressing Ortiz’s summary judgment motion, the district court found that Ortiz’s procedural due process rights had been violated because “ ‘she got virtually no process, and the process she did get was ... a runaround.’ ” Ortiz v. Regan, 769 F.Supp. 570, 573 (S.D.N.Y.1991) (quoting Ortiz, 749 F.Supp. at 1260). The court ordered payment of nominal damages of $1, instructed the defendants to hold a hearing to determine Ortiz’s proper birth date, and awarded attorney’s fees. The district court’s third opinion, which is at issue in this appeal, addressed the amount of attorney’s fees to which Ortiz was entitled. Ortiz v. Regan, 777 F.Supp. 1185 (S.D.N.Y.1991). Ortiz sought an award of $57,378.75 for 252.45 hours of work done by four attorneys. The court did not award the fees [140]*140requested by Ortiz. Instead, the court awarded $4,750 and determined that Regan should not “be made to pay for fees incurred after defendants offered plaintiff what she could reasonably have expected to get if she prevailed in the litigation,” Ortiz, 777 F.Supp. at 1187, namely, a hearing. Thus, the court provided no compensation for work that was done after Regan made the § 74(d) offer, even though the court had made clear in its two prior opinions that the § 74(d) hearing was insufficient to meet Ortiz’s pre-deprivation due process rights. In addition, the -district court reduced the hourly fee rates requested by the plaintiffs attorneys and limited the number of hours for which reimbursement would be available for the work they did before Regan’s § 74(d) offer.

DISCUSSION

The Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, was designed to allow private individuals a meaningful opportunity to vindicate civil rights violations. As stated in the legislative record, “[i]f private citizens are to be able to assert their civil rights, and if those who violate the Nation’s fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court.” S.Rep. No. 1011, 94th Cong., 2d Sess. 2 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5910.

In keeping with the legislative purpose of 42 U.S.C. § 1988, Ortiz is entitled to attorney’s fees for the work that was done on her civil rights case after Regan’s offer to hold a § 74(d) hearing. Ortiz’s litigation efforts vindicated her pre-deprivation due process rights even though a post-deprivation remedy was available. If attorney’s fees are not provided in situations such as this one, there would be no incentive for private citizens to challenge pre-deprivation due process violations where a post-deprivation remedy exists.

In denying post-April 1990 .attorney’s fees, the district court found that an offer made by the defendants to hold a post-deprivation hearing under § 74(d) of the New York State Retirement & Social Security Law was “all the relief she clearly deserved and all the relief she has since been granted.” Ortiz, 777 F.Supp. at 1189. The record and first two opinions by the district court make clear, however, that more was involved in this litigation than the post-deprivation hearing originally offered by Regan and subsequently required by the. court. For example, the district court in its first opinion stated that it “is irrelevant whether the hearing allegedly available under § 74(d) to contest the incorrect final calculation of benefits satisfied the requirement of due process.” Ortiz, 749 F.Supp. at 1261 The court correctly reasoned that “this argument does not address the plaintiff’s contention that the cutoff of advanced retirement benefits in September 1989 without any prior notice or hearing violated her rights to procedural due process.” Id.

That more was at stake here than the post-deprivation hearing offered by Regan is further supported by the district court’s decision to award nominal damages. In awarding nominal damages, the district court acknowledged that a nonpecuniary constitutional right was being vindicated. The district court determined that Ortiz would “receive nominal damages of one dollar for the deprivation of her right to procedural due process....” Ortiz, 769 F.Supp. at 575. The award of nominal damages is sufficient to support the provision of attorney’s fees under § 1988. Fassett v. Haeckel, 936 F.2d 118, 122 (2d Cir.1991) (per curiam), see also S.Rep. No. 1011, supra, at 6, reprinted in 1976 U.S.C.C.A.N. at 5913.

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980 F.2d 138, 24 Fed. R. Serv. 3d 480, 1992 U.S. App. LEXIS 31190, 60 Empl. Prac. Dec. (CCH) 41,905, 1992 WL 339895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ortiz-v-regan-ca2-1992.