Dennis WOLFEL v. Nick SANBORN, et al.
No. 80-3012
United States Court of Appeals, Sixth Circuit
Oct. 20, 1982
Certiorari Denied Jan. 10, 1983. See 103 S.Ct. 751.
III.
The defendants introduced into the record relevant statistics from the Consumer Price Index to show the monthly cost-of-living increases which occurred between 1978 and 1980. An application of the median rate of inflation disclosed by these exhibits to the previously approved hourly rates for the special master and his associates would produce the following fees:
| Special master | $200,256.95 |
| Associates | 90,242.172 |
| 290,499.123 |
This is the total compensation which this court approves for the special master for all services from March 1, 1978 to August 30, 1980. The special master is also entitled to recover out-of-pocket expenses of $11,638.01 plus the legal fee of $15,525.57 and other expenses of $1450 incurred in the appeal from the first interim award of fees.
The record indicates that the special master was discharged on February 25, 1981, and it is assumed that a final request for compensation will be filed in the district court. Fees for the special master from August 31, 1980 to February 25, 1981 will be calculated in the same manner as we have approved for the period from March 1, 1978 to August 30, 1980. The special master will be compensated for hours worked at the base rate of $65 per hour adjusted by the median rate of inflation for the period; the fee of the associates in the master‘s law firm will be at the base rate of $40 per hour adjusted by the median rate of inflation for the period.
The special master was permitted to file a brief and his counsel was permitted to present oral argument as amicus curiae in this appeal. Prior to the date of argument he also filed a motion to be permitted to intervene as a party-appellee to “assure that the two actual opposing sides are heard by the Court in the conventional roles of appellant and appellee.” The motion is granted.
The judgment of the district court is reversed, and the cause is remanded for further proceedings in accordance with this opinion. The intervenor-appellee will bear costs on appeal.
Michael A. Geltner/Ellen S. Shapiro, Geltner & Ritchie, Washington, D. C., for plaintiff-appellee.
Before EDWARDS, Chief Judge, and WEICK and PHILLIPS, Senior Circuit Judges.
PER CURIAM.
On June 28, 1982, the Supreme Court, --- U.S. ---, 102 S.Ct. 3476, 73 L.Ed.2d 1363 (1982), vacated the decision of this court reported at 666 F.2d 1005 (6th Cir. 1981) and remanded the case to this court for further consideration in the light of Harlow v. Fitzgerald, 457 U.S. ---, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
The order of the Supreme Court in pertinent part is as follows:
ON WRIT OF CERTIORARI to the United States Court of Appeals for the Sixth Circuit.
THIS CAUSE having been submitted on the petition for writ of certiorari and response thereto,
ON CONSIDERATION WHEREOF, it is ordered and adjudged by this Court that the judgment of the Court of Appeals in this cause is vacated with costs, and that this cause is remanded to the United Court of Appeals for the Sixth Circuit for further consideration in light of Harlow v. Fitzgerald, 457 U.S. [102 S.Ct. 2727, 73 L.Ed.2d 396] (1982). See Butz v. Economou, 438 U.S. [478] 504 [98 S.Ct. 2894, 2909, 57 L.Ed.2d 895] (1978) (deeming it “untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials“).
Following this order of remand, the parties were invited to submit supplemental briefs, which have been filed and considered by this court.
This is an action under
We construe the remand order of the Supreme Court to mean that State officials are entitled to the same qualified immunity in an action filed under
In footnote 30 of Harlow, 457 U.S. at ---, 102 S.Ct. at 2738-39, the Supreme Court wrote:
30 This case involves no issue concerning the elements of the immunity available to state officials sued for constitutional violations under
§ 1983 . We have found previously, however, that “it would be untenable to draw a distinction for purposes of immunity law between suits brought against state officials under§ 1983 and suits brought directly under the Constitution against federal officials.” Butz v. Economou, 438 U.S., at 504 [98 S.Ct. at 2909].
Wolfel contends that the decision of the Supreme Court in Harlow v. Fitzgerald should not be applied retroactively. The short answer to this contention is that the Supreme Court would not have directed this court to reconsider this case in the light of Harlow if it did not intend for this court to follow the law established in that case in making our decision on remand.
Upon consideration, it is ORDERED that the judgments of this court and the district court in this case and the order of the district court filed July 14, 1978, overruling the motion of the parole officers for summary judgment, be and hereby are vacated. The case is remanded to the district court for reconsideration of the motion for summary judgment in the light of Harlow v. Fitzgerald and for further action consistent with this opinion. No costs are taxed for the proceedings in this court. The parties will bear their own costs in the Court of Appeals.
WEICK, Senior Circuit Judge, concurring in part:
I concur in all of the opinion of the panel except that portion which remands to the district court for reconsideration of the motion of the parole officers for summary judgment.
In my opinion, under the decision of the Supreme Court in Harlow, Butz and Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), the parole officers were entitled to qualified immunity as a matter of law and the district judge erred in not granting their motion for summary judgment. We should now enter the judgment which the district court should have entered and grant their motion for summary judgment and assess the costs against plaintiff-appellee. It is time that this prolonged litigation be brought to a close as it has no merit.