Doe v. Chao

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BUCK DOE, 
Plaintiff-Appellee,
and
ROBERT DOE; TAYS DOE; OTIS DOE;
THOMAS DOE; JOE DOE; CHARLES
DOE,  No. 06-2015
Plaintiffs,
v.
ELAINE L. CHAO, Secretary of Labor,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
Glen M. Williams, Senior District Judge.
(2:97-cv-00043)

Argued: November 2, 2007

Decided: December 28, 2007

Before WILLIAMS, Chief Judge, and WILKINSON
and MICHAEL, Circuit Judges.

Reversed by published opinion. Judge Wilkinson wrote the opinion,
in which Chief Judge Williams and Judge Michael joined.

COUNSEL

ARGUED: Anthony Alan Yang, Appellate Staff, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
2 DOE v. CHAO
D.C., for Appellant. Joseph E. Wolfe, WOLFE, WILLIAMS &
RUTHERFORD, Norton, Virginia, for Appellee. ON BRIEF: Peter
D. Keisler, Assistant Attorney General, Washington, D.C.; John L.
Brownlee, United States Attorney, Roanoke, Virginia; Michael Jay
Singer, Appellate Staff, Civil Division, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellant.

OPINION

WILKINSON, Circuit Judge:

This case has been appealed to us twice before. This time, we are
asked to decide whether the district court’s July 2006 award of attor-
neys’ fees to Buck Doe under the Privacy Act, 5 U.S.C.
§ 552a(g)(4)(B), violated the mandate we issued the last time this case
was before us. Because the district court’s decision was directly con-
trary to the mandate of this court, we reverse.

I.

Because this is the court’s third opinion in this case, see Doe v.
Chao, 435 F.3d 492 (4th Cir. 2006); Doe v. Chao, 306 F.3d 170 (4th
Cir. 2002), we must set forth briefly some procedural history. The
series of cases leading to this appeal all trace back to a consent order
entered against the Secretary of Labor in 1997. On February 13, 1997,
Robert Doe, a black lung benefit claimant, filed suit against the Secre-
tary under the Privacy Act, which prohibits, as a general matter, fed-
eral agencies from disclosing "any record" of an individual in an
agency "system of records" without that individual’s consent. 5
U.S.C. § 552a(b) (2000). The Secretary acknowledged that in repro-
ducing Social Security numbers on multi-captioned hearing notices
for black lung benefits claimants, the DOL had run afoul of the limits
set by the Privacy Act. See 5 U.S.C. § 552a(b).

On February 20, 1997, the Secretary stipulated to a district court
consent order in Robert Doe’s case, requiring that the DOL stop using
Social Security numbers on its multi-captioned hearing notices in
black lung cases. That same day, six additional Doe plaintiffs —
 DOE v. CHAO 3
including appellee Buck Doe (who was not a party to the consent
order) — filed six separate lawsuits in the Western District of Vir-
ginia, seeking both equitable relief and monetary damages under the
Privacy Act. See Doe v. Chao, 346 F.Supp. 2d 840, 842-43 (W.D.Va.
2004) (summarizing the case history). On June 4, 1997, these six law-
suits were consolidated with Robert Doe’s suit. The seven claimants
continued to press for monetary damages and also sought certification
of a class of every black lung benefit claimant who had applied for
benefits since the passage of the Privacy Act.

Following entry of the consent order, the DOL undertook numer-
ous steps to ensure compliance. However, some Social Security num-
bers, including that of Buck Doe, were inadvertently revealed. In
January 1998, Buck Doe and other plaintiffs moved to hold the Secre-
tary in civil contempt for violating the consent order. In May 1998,
the district court denied the motion, and held that the Secretary had
"substantially complied with [the earlier consent] order regarding the
existence of social security numbers on multi-captioned hearing
notices." In June 1998, the district court denied plaintiffs’ motion to
reconsider contempt sanctions. See Doe v. Chao, 346 F.Supp. 2d at
843.

In July 2000, on cross-motions for summary judgment, the district
court denied class certification, and granted summary judgment in
favor of the Secretary for all claimants except Buck Doe, to whom the
district court granted summary judgment and awarded $1,000 in statu-
tory damages. See Doe v. Herman, 2000 WL 34204432 (W.D.Va.
July 24, 2000) ("Doe I"). Before any appellate proceedings began on
Doe I, the three counsel who represented the Doe plaintiffs filed three
separate motions in district court in September and October 2000
seeking attorneys’ fees under the Privacy Act for work performed
through September 12, 18, and 21, 2000.

On cross-appeals, this court affirmed the district court’s grant of
summary judgment in favor of the Secretary, but reversed the district
court’s grant of summary judgment in favor of Buck Doe. Doe v.
Chao, 306 F.3d 170, 185 (4th Cir. 2002) ("Doe II"). As to Buck Doe’s
claim, we remanded for entry of judgment in favor of the Secretary,
on the grounds that the plain language of the Privacy Act precluded
Buck Doe from recovering statutory damages because he (like all the
4 DOE v. CHAO
other Doe plaintiffs) had not proven actual damages. Doe II, 306 F.3d
at 184-85. The Supreme Court granted certiorari, and affirmed this
court’s judgment. Doe v. Chao, 540 U.S. 614 (2004) ("Doe III"). In
April 2004, pursuant to remand from the Supreme Court, the district
court entered judgment in favor of the Secretary on Buck Doe’s claim
for monetary damages.

In July 2004, after the Secretary prevailed in the Supreme Court,
Buck Doe and the other plaintiffs moved for attorneys’ fees and costs
under both the Privacy Act, 5 U.S.C. § 552a(g)(4)(B) and the Equal
Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(b) (2000). Plain-
tiffs did not supplement the attorney time records that they had previ-
ously submitted with their original fee motions in September and
October 2000.

In November 2004, the district court denied all plaintiffs’ requests
for fees under the EAJA, and denied fees under the Privacy Act to all
plaintiffs except Buck Doe. Doe v. Chao, 346 F.Supp. 2d 840, 843-49
(W.D. Va. 2004) ("Doe IV"). Although the district court specifically
denied Buck Doe’s attorneys’ fee request for work done on numerous
"unrelated or unsuccessful claims," including Buck Doe’s "motion to
hold the Secretary in contempt," the district court awarded him
$57,520.97 in attorneys’ fees and costs under the Privacy Act for
work performed "in prosecuting and defending the parties’ cross-
motions for summary judgment." Doe IV 346 F.Supp. 2d at 850.

The Secretary appealed the award of Privacy Act fees to Buck Doe,
but Buck Doe did not appeal the denial of attorneys’ fees for the con-
tempt proceedings or under the EAJA. In January 2006, this court
vacated the fee award on the grounds that "the district court failed to
determine the reasonableness of Doe’s attorney fee award in light of
the fact that Doe recovered no damages." Doe v. Chao, 435 F.3d 492,
507 (4th Cir. 2006) ("Doe V"). Because Doe "failed to recover any
monetary award," and because "his underlying litigation was largely
unsuccessful," we noted that "it is unlikely that Doe may recover sig-
nificant attorney fees." Doe V, 435 F.3d at 506. Noting that the dis-
trict court was "in the best position" to determine a reasonable
attorneys’ fee, we remanded to the district court for reconsideration
of its fee award, emphasizing that "the most critical factor in deter-
mining the reasonableness of a fee award is the degree of success
 DOE v. CHAO 5
obtained." Id. at 506 (quoting Farrar v. Hobby, 506 U.S. 103, 114
(1992)).

On remand, the district court did not award any fees for the work
performed by Buck Doe on the cross-motions for summary judgment.
Doe v. Chao, No.2:97CV00043, 2006 WL 2038442, at *5 (W.D. Va.
July 19, 2006) ("Doe VI"). However, the district court awarded Buck
Doe $5,887.50 in attorneys’ fees for work performed on the contempt
motion, justifying its reversal of course on the grounds that the con-
tempt motion "served an important public purpose." Id. (relying upon
Mercer v. Duke Univ., 401 F.3d 199 (4th Cir. 2005)). The district
court also, sua sponte and without explanation, awarded Buck Doe
$10,000 for work performed on the appellate phase of the merits liti-
gation. Doe VI, 2006 WL 2038442, at *5.

The Secretary now appeals the decision of the district court in Doe
VI.

II.

The threshold question is whether the district court’s July 2006
judgment in Doe VI violated the mandate of this court in Doe V. We
review de novo whether a post-mandate judgment of the district court
"contravenes the mandate rule, or whether the mandate has been
‘scrupulously and fully carried out.’" S. Atlantic Ltd. P’ship of Tenn.
v. Riese, 356 F.3d 576, 583 (4th Cir. 2004) (quoting 2A Fed. Proc.,
L.Ed. § 3:1016)).

The mandate rule is a "more powerful version of the law of the
case doctrine." Invention Submission Corp. v. Dudas, 413 F.3d 411,
414 (4th Cir. 2005); see also LaShawn A. v. Barry, 87 F.3d 1389,
1393 n.3 (D.C. Cir. 1996) (en banc). "Few legal precepts are as firmly
established as the doctrine that the mandate of a higher court is ‘con-
trolling as to matters within its compass.’" United States v. Bell, 5
F.3d 64, 66 (4th Cir. 1993) (quoting Sprague v. Ticonic Nat’l Bank,
307 U.S. 161, 168 (1939)). "The principle that a district court may not
violate the mandate of a circuit court of appeals and may not alter the
law of the case so established is basic." United States v. Henry, 709
F.2d 298, 306 (5th Cir. 1983) (citing cases). Indeed, "[i]n its earliest
days, [the Supreme Court] consistently held that an inferior court has
6 DOE v. CHAO
no power or authority to deviate from the mandate issued by an appel-
late court . . . . The rule of these cases has been uniformly followed
in later days." Briggs v. Pa. R.R. Co., 334 U.S. 304, 306 (1948) (cit-
ing cases).

The mandate rule prohibits lower courts, with limited exceptions,
from considering questions that the mandate of a higher court has laid
to rest. See Sprague, 307 U.S. at 168. "When matters are decided by
an appellate court, its rulings, unless reversed by it or a superior court,
bind the lower court." Ins. Group Comm. v. Denver & Rio Grande W.
R.R. Co., 329 U.S. 607, 612 (1947).

The mandate rule likewise restricts the district court’s authority on
remand from the court of appeals. First, "any issue conclusively
decided by this court on the first appeal is not remanded," and second,
"any issue that could have been but was not raised on appeal is
waived and thus not remanded." United States v. Husband, 312 F.3d
247, 250-51 (7th Cir. 2002); see also S. Atl. Ltd. P’ship of Tenn., 356
F.3d at 584 (stating that the mandate rule prohibits district courts from
"reconsider[ing] issues the parties failed to raise on appeal").

The mandate rule serves two key interests, those of hierarchy and
finality. "A rule requiring a trial court to follow an appellate court’s
directives that establish the law of a particular case is necessary to the
operation of a hierarchical judicial system." Mirchandani v. United
States, 836 F.2d 1223, 1225 (9th Cir. 1988). It is axiomatic that in our
judicial hierarchy, the decisions of the circuit courts of appeals bind
the district courts just as decisions of the Supreme Court bind the cir-
cuit courts: "The Supreme Court or any other court of appellate juris-
diction may affirm, modify, vacate, set aside or reverse any judgment,
decree, or order of a court lawfully brought before it for review, and
may remand the cause and direct the entry of such appropriate judg-
ment, decree, or order, or require such further proceedings to be had
as may be just under the circumstances." 28 U.S.C. § 2106 (2000).
The principle of hierarchy is no empty shell. It protects the very value
and essential nature of an appeal, namely the chance afforded litigants
for review of a judgment and for correction, generally by a larger
judicial body, of errors that may have serious consequences or work
significant injustice.
 DOE v. CHAO 7
This is not to say appellate courts are somehow superior or always
correct, but only that our system has been served well by the avail-
ability of review and the need for appropriate review to be final. The
mandate rule in fact "serves the interest of finality" in litigation. See,
e.g., United States v. Thrasher, 483 F.3d 977, 982 (9th Cir. 2007);
United States v. O’Dell, 320 F.3d 674, 679 (6th Cir. 2003). "Repeti-
tive hearings, followed by additional appeals, waste judicial resources
and place additional burdens on . . . hardworking district and appellate
judges." O’Dell, 320 F.3d at 679 (internal quotation marks omitted).
If no appeal of a judgment is taken, or if the appellate court deter-
mines questions put before it, the orderly resolution of the litigation
requires the district court to recognize those interests served by final
judgments and to implement the appellate mandate faithfully.

III.

A.

The district court violated the mandate rule in this case by award-
ing attorneys’ fees to Buck Doe for (1) work performed on the con-
tempt proceedings, and (2) work performed on the appellate phase of
the merits litigation.1 In Doe V, this court instructed the district court
to determine the reasonableness of Buck Doe’s attorneys’ fee award
under the Privacy Act,2 in light of the fact that Buck Doe recovered
no damages. Doe V, 435 F.3d at 506-507. In that regard, the district
court did as instructed, concluding that Buck Doe was not entitled to
any fees under the Privacy Act. Doe VI, 2006 WL 2038442, at *5.
But the district court improperly went further and addressed two mat-
ters that were not before it for consideration, in clear violation of this
court’s mandate in Doe V.
1
Because we find that the mandate of this court precludes the award
of attorneys’ fees to Buck Doe, we need not reach the question of
whether the attorneys’ fees awarded here were permissible or reasonable.
2
When we refer to the fees awarded under the Privacy Act, we mean
the fees the district court awarded for work performed by Buck Doe "in
prosecuting and defending the parties cross-motions for summary judg-
ment." Doe IV at 850.
8 DOE v. CHAO
First, the mandate of this court did not permit the district court to
award Buck Doe attorneys’ fees for work performed on the contempt
motion. In 2004, the district court rejected Buck Doe’s request for
fees for his unsuccessful "motion to hold the Secretary in contempt,"
Doe IV, 346 F.Supp. 2d at 850, and Buck Doe did not appeal that rul-
ing. At that point, the denial of fees for work performed on the con-
tempt motion became final. Because the mandate rule "forecloses
litigation of issues decided by the district court but foregone on
appeal or otherwise waived," the district court was not free to deviate
from this court’s mandate by reconsidering Buck Doe’s claims for
attorneys’ fees that it had denied before appeal and that had not been
raised by Buck Doe on cross-appeal. Bell, 5 F.3d at 66; see also, e.g.,
S. Atl. Ltd. P’ship of Tenn., 356 F.3d at 584.

Second, the scope of the remand of this court in Doe V did not per-
mit the district court to broach the entirely new issue of whether Buck
Doe was entitled to an award of attorneys’ fees for work performed
on the earlier appellate phase of the merits litigation. Buck Doe never
even requested fees for the appellate phase of the merits litigation that
concluded with the Supreme Court’s decision in February 2004. Doe
III, 540 U.S. 614. In fact, after the Supreme Court affirmed the deci-
sion of this court in Doe III, Buck Doe and the other Doe plaintiffs
filed a motion for attorneys’ fees that did not include documentation
of hours worked on the appellate phase of the merits litigation. Given
that Buck Doe never requested fees for appellate work at that or any
other time, he clearly waived any such claim. Indeed, because of
Buck Doe’s waiver, the Secretary had no opportunity to litigate the
issue, and the district court likewise had no proper basis to make an
award. The district court was not free to use this court’s remand on
a totally separate issue as an opportunity to breathe life into Buck
Doe’s long abandoned claim.

This court remanded in Doe V for the limited purpose of requiring
the district court to assess the reasonableness of Buck Doe’s fee
award under the Privacy Act for work performed on summary judg-
ment. Once the district court determined that the reasonable fee for
that work was zero, the mandate rule required that it go no further.

B.

We are not persuaded by Buck Doe’s argument that two exceptions
to the mandate rule permitted the district court to award fees for work
 DOE v. CHAO 9
performed on the contempt motion and the earlier appellate phase of
the merits litigation. "Deviation from the mandate rule is permitted
only in a few exceptional circumstances, which include (1) when
‘controlling legal authority has changed dramatically’; (2) when ‘sig-
nificant new evidence, not earlier obtainable in the exercise of due
diligence, has come to light’; and (3) when ‘a blatant error in the prior
decision will, if uncorrected, result in a serious injustice.’" Invention
Submission Corp., 413 F.3d at 415 (quoting Bell, 5 F.3d at 67)). Here,
Buck Doe argues that our decision in Mercer v. Duke University, 401
F.3d 199, constitutes a dramatic change in legal authority, and that the
district court’s refusal in Doe IV to award fees for work performed on
the contempt proceedings was a blatant error which, if left uncor-
rected, would result in serious injustice. See Brief of Appellee at 13-
14. It is clear that neither of these exceptions applies here.

First, Buck Doe argues that this court’s decision in Mercer repre-
sented a "dramatic change in the law governing the award of attor-
ney’s fees . . . ." Because this court in Doe V instructed the district
court to determine the "reasonableness" of Buck Doe’s attorneys’ fees
in light of Mercer, Buck Doe contends that this court’s mandate "can
be reasonably interpreted to permit the district court to reopen the
issue of attorneys’ fees." Brief of Appellee at 13; see Doe V, 435 F.3d
at 506 n.19.

This court’s decision in Mercer, however, did not represent a dra-
matic change in legal authority. In Mercer, we held that it was not an
abuse of discretion for the district court to have awarded attorneys’
fees to a plaintiff who had obtained only nominal damages in a Title
IX discrimination action. 401 F.3d at 212. In so holding, we simply
recognized that the Supreme Court’s decision in Farrar v. Hobby, 506
U.S. 103, — which held that a plaintiff who only recovers nominal
damages generally will not be entitled to an award of attorney’s fees
— does not preclude the possibility that such a plaintiff may be enti-
tled to a fee award in some rare cases. Mercer, 401 F.3d at 203. We
then went on to apply the factors set forth by Justice O’Connor in her
concurrence in Farrar to conclude that Mercer presented an "unusual
case that d[id] warrant an award of attorney’s fees." Mercer, 401 F.3d
at 203-04. Our decision in Mercer was thus not a dramatic change in
legal authority, but simply an application of the Supreme Court’s
1992 decision in Farrar.
10 DOE v. CHAO
Moreover, our decision in Mercer was issued in March 2005,
nearly a year before we handed down the opinion in Doe V. The par-
ties even addressed Mercer in their briefs in the Doe V appeal. Given
that Mercer was squarely before this court in Doe V, it can hardly
constitute a justification for the district court to go beyond our
instructions on remand.

Second, Buck Doe argues that the district court was free to ignore
this court’s mandate on remand because its refusal to award fees for
the contempt proceedings constituted "a blatant error that, if left
uncorrected," would result in "serious injustice." Brief of Appellee at
14. To agree with Buck Doe would be to allow the exception to swal-
low the rule. There is no "serious injustice" in denying fees for the
contempt proceedings when that work did not result in a contempt
order against the Secretary, monetary damages under the Privacy Act,
or any other relief whatsoever for Buck Doe. Further, there is no "se-
rious injustice" when Buck Doe did not even challenge either the dis-
trict court’s 1998 denial of the contempt motion or the district court’s
2004 denial of fees for the work performed in the contempt proceed-
ings. See Doe IV, 346 F.Supp.2d at 843, 850. Finally, there is no "se-
rious injustice" in denying attorneys’ fees for work performed in the
earlier appellate litigation when Buck Doe did not even request such
fees.

IV.

Even litigation spawning multiple Roman numeral suffixes must
come to an end. Here, the case should have ended with the district
court’s finding that no fee award was appropriate under the Privacy
Act. By reopening other long-settled issues on remand, the district
court inappropriately prolonged this already tortuous litigation.
Accordingly, the judgment of the district court must be

REVERSED.