Rehearing and Rehearing En Banc Denied February 9, 1982.
INGRAHAM, Circuit Judge:
Appellee Dr. Luis Laje filed this suit under 42 U.S.C. § 1983
Dr. Laje entered into a two-year employment contract with appellant for the period July 15, 1971-July 14, 1973. During his tenure Dr. Laje and his immediate superior developed differences of opinion regarding treatment methodology and hospital procedures. On August 17, 1972, Dr. Laje was informed by the hospital administrator that he was fired, effective the next day, primarily because of insubordination. Allegations of incompetence were added later. Dr. Laje was permitted to address the Hospital Finance Committee on August 20, the following Sunday. At the close of this meeting the committee informed Dr. Laje that he would be given thirty days to resign or be discharged. After further attempts by Dr. Laje to persuade the board chairman and hospital administrator to reinstate him, Dr. Laje was terminated. This suit was filed in November 1973. The discharge issue and a request for staff privileges were severed, and the former held in abeyance while the staff privileges request was remanded to the hospital's Board of Managers for full hearing. After hearings in April 1974, the Board denied the request and its findings were eventually upheld by this court. Laje v. R. E. Thomason General Hospital, supra.
The discharge issue was then remanded to the Board of Managers for hearing. The Board upheld the decision to discharge Dr. Laje on April 5, 1979. On cross-motions for summary judgment, the district court found the decision to discharge Dr. Laje was supported by substantial evidence and therefore dismissed the substantive due process claims, but further found that Dr. Laje had been denied procedural due process prior to the April 1979 hearing before the Board. Accordingly, the district court ordered a jury trial to determine whether Dr. Laje could recover actual damages and attorney's fees for this deprivation of procedural due process. The jury trial took place on September 3 and 4, 1980, and resulted in the award described above.
I. Eleventh Amendment Immunity
Although appellant's original brief did not contest the application of Section 1983 to this case, at oral argument appellant raised the possibility of Eleventh Amendment immunity in light of this court's en banc decision in Van Ooteghem v. Gray, 654 F.2d 304 (5th Cir. 1981). We permitted both parties to submit supplemental briefs on this issue. Faced with the "sensitive" question whether Texas counties should be considered agencies or departments of the state, the en banc court in Van Ooteghem remanded for an initial determination by the district court. Id. at 306; see also Downing v. Williams, 624 F.2d 612, 626 (5th Cir. 1980), vacated, 645 F.2d 1226 (5th Cir. 1981). The Eleventh Amendment status of the R. E. Thomason General Hospital, however, is readily apparent from the material before us and we see no need to further prolong this litigation.
Applying these principles to R. E. Thomason General Hospital, it appears that the relationship between the hospital and the state is simply too attenuated to support an extension of Eleventh Amendment immunity. The hospital is part of the El Paso County Hospital District, created pursuant to Article 4494n, Tex.Rev.Civ.Stat.Ann. (Vernon 1976). Under Article 4494n, creation of a hospital district begins by local initiative. Art. 4494n, § 1; cf. Goss v. San Jacinto Junior College, 588 F.2d 96, 99 n.5 (5th Cir.), modified on other grounds, 595 F.2d 1119 (5th Cir. 1979). Hospital districts are financed through special local taxes entirely separate from other county or state taxes. Art. 4494n, § 2, and through bonds sold in the name and upon the full faith and credit of the hospital district. Id. § 3. Title to land, buildings and equipment used for medical purposes is vested in hospital districts. Id. § 4. The Board of Hospital Managers appointed by the County Commissioners Court enjoys virtually unlimited autonomy and control over hospital affairs, including, significantly, the power "to sue and be sued and to promulgate rules and regulations for the operation of the hospital," make all hiring decisions and enter into contracts with counties and the state and federal government. Id. § 5. A hospital district may acquire property by eminent domain. Id. § 9. Finally, and most telling in our view, the Texas Constitution provides a hospital district "shall never become a charge against the State of Texas." Const. Art. 9, § 4 (Vernon 1955). It is true, as appellant points out, that the activities of a hospital district are subject to approval of the county commissioners court in several instances. Similar supervision, however, did not prevent the Court from considering that, "[o]n balance," a local Ohio school board was nevertheless not an arm of the state. Mount Healthy, supra, 429 U.S., at 280, 97 S.Ct. at 572. See also Holley v. Lavine, 605 F.2d 638, 642-44 (2d Cir. 1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980).
We are left with the definite and distinct impression that a hospital district, and a component thereof such as appellant, is an independent legal entity in relation to the State of Texas. Bexar County Hospital Dist. v. Crosby, 320 S.W.2d 247, 249 (Tex.Civ.App. — San Antonio 1958), modified, 160 Tex. 116, 327 S.W.2d 445 (1959).
II. Damages for Denial of Procedural Due Process
Appellant attacks the jury's award of $20,000 for mental anguish and emotional distress on several grounds, claiming that there was insufficient evidence to support either an award of damages or the amount of damages awarded, and that the district court failed to allow evidence that Dr. Laje's discharge was justified. The crux of appellant's argument is that damages are recoverable only to the extent they flow from a deprivation of procedural due process, excluding any emotional distress resulting from the discharge itself (which was substantively justified). Both parties correctly indicate that Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), is controlling on this question.
In Carey the Court held that no injuries are presumed to result from a deprivation of procedural due process; rather, a plaintiff must prove actual compensable injury, possibly including emotional distress, in order to recover more than nominal damages. Discussing the particular problem presented here, the Court stated:
Id. at 263, 98 S.Ct. at 1052. Appellant strenuously argues that any distress suffered by Dr. Laje in this case resulted only from the fact he was discharged, and that Dr. Laje was unaware of any constitutional deficiency surrounding his discharge. The record discloses, however, that the district court was acutely aware of the difficulty of proof presented by this situation, and instructed the jury as follows:
Thus, the jury was apprised of the proper standard for damages under Carey; and it was specifically told that the reasons for Dr. Laje's discharge were no longer in issue. There is sufficient evidence upon which the jury could have found that Dr. Laje suffered injury from the deprivation of due process in this case: Dr. Laje and his wife both testified specifically that the summary proceedings surrounding his dismissal caused severe anxiety and distress, and that these feelings were not relieved until after the full hearing on his discharge in April 1979. The jury has made the necessary evaluations of credibility and demeanor. Where a jury has been properly instructed, and its verdict is supported by sufficient evidence, the verdict must be upheld. Petrites
Appellant further contends that the jury should not have been permitted to calculate damages based on the period from August 18, 1972 until April 5, 1979, the point at which the district court determined Dr. Laje received a proper hearing on his discharge, because the hearing that took place in April 1974 concerning denial of staff privileges afforded Dr. Laje a full opportunity to "bare his breast." The hospital argues, therefore, that any emotional distress resulting from denial of due process would not have extended beyond that date. On the previous appeal to this court we found that the 1974 hearing comported with due process, while observing that the discharge issue had been held in abeyance, and the hearing was limited to the issue of denial of staff privileges. Laje v. R. E. Thomason General Hospital, 564 F.2d 1159, 1161-62 (5th Cir. 1977), cert. denied, 437 U.S. 905, 98 S.Ct. 3091, 57 L.Ed.2d 1134 (1978). Contrary to appellant's suggestion, however, the jury was made aware of the 1974 hearing, and more specifically that Dr. Laje was represented by counsel, witnesses were presented, and that the hearing explored Dr. Laje's history of employment with the hospital; this subject was discussed during cross-examination of Dr. Laje by appellant's counsel. Therefore, it appears that whether Dr. Laje's emotional distress continued past the 1974 hearing was a question of fact, and the jury was given sufficient information to decide that question.
III. Back Pay
The jury further awarded $32,400.26 representing the income Dr. Laje would have earned on the remainder of his contract had he not been terminated, less sums earned in mitigation during this period. While this appeal was pending, Wilson v. Taylor, 658 F.2d 1021 (5th Cir. 1981), was decided. Wilson interpreted the Supreme Court's decision in Carey to preclude an award of back pay in cases involving procedurally defective discharges. Id. at 1033-35.
As the Wilson panel noted, the recovery of back pay has been a troublesome issue in this circuit. In Carey respondents were school students who had been suspended without procedural due process. The court of appeals in that case instructed that, on remand, if school officials could show that the suspensions were justified and would have taken place even if a proper hearing had been held, then no damages for injuries from the suspensions were recoverable. Such damages, the court of appeals believed, "would constitute a windfall, rather than compensation." After reviewing this background the Supreme Court stated, "we do not understand the parties to disagree with this conclusion. Nor do we." The Court proceeded to say in a footnote "A few courts appear to have taken a contrary view in cases where public employees holding property interests in their jobs were discharged with cause but without procedural due process," citing among other cases our opinion in Zimmerer v. Spencer, 485 F.2d 176 (5th Cir. 1973), 435 U.S. at 260, 260 n.15, 98 S.Ct. at 1050, 1050 n.15.
Until Wilson, this circuit had not directly addressed this aspect of the Carey decision although other circuits considering the question concluded that back pay is not recoverable where an employer can show
In this case, the Board of Managers upheld Dr. Laje's discharge after its hearing in April 1979, and the district court determined that the procedures followed in this hearing were adequate and the decision supported by substantial evidence. These conclusions are amply supported by the record. Accordingly, recovery of lost salary for the period August 18, 1972 to July 14, 1973, the balance of Dr. Laje's contract, was inappropriate and must be eliminated from the award. Wilson v. Taylor, 658 F.2d 1021, 1035 (5th Cir. 1981).
IV. Attorney's Fees
Appellant contests the award of attorney's fees of $25,649.34 under the Civil Rights Attorney's Fees Awards Act, 42 U.S.C.A. § 1988 (Supp. 1979), on the grounds, apparently, that the award did not adequately distinguish between prevailing and non-prevailing issues and that an award of $100 per hour for one of Dr. Laje's attorneys is "clearly excessive." The decision to award attorney's fees, and determination of an appropriate amount of fees, are matters directed to the discretion of the district court and will not be disturbed absent abuse of this discretion. Davis v. City of Abbeville, 633 F.2d 1161, 1163 (5th Cir. 1981); Harkless v. Sweeny Independent School District, 608 F.2d 594, 596 (5th Cir. 1979). In its order regarding attorney's fees, the district court laboriously reviewed the guidelines for attorney's fees established by Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), with particular concern for allowing an award only with respect to those issues upon which appellee prevailed. The court referred to affidavits and billing sheets submitted by appellee's counsel, making several deductions from the amounts claimed; apparently no controverting affidavits were filed by appellant. We perceive no abuse of discretion in the court's calculations. A remand is required, however, so that the district court may consider whether any modification of the award is required in light of the disposition of this appeal. In particular, the district court should take into consideration the deletion of the portions of the award attributable to back pay, as well as the services rendered on the issues affirmed. Jones v. Diamond, 594 F.2d 997, 1027 (5th Cir. 1979), cert. granted in part, 453 U.S. 911, 101 S.Ct. 3141, 69 L.Ed.2d 993 (1981); Morrow v. Dillard, 580 F.2d 1284, 1300 (5th Cir. 1978).
The judgment entered by the district court is affirmed as to recovery of $20,000 for mental anguish and emotional distress but reversed as to $32,400.26 for loss of income. On remand, the district court shall
AFFIRMED in part, REVERSED in part and REMANDED for further proceedings regarding attorney's fees.
R.S. § 1979.