Before Seitz, Chief Judge, and Van Dusen and Gibbons, Circuit Judges.
This is an appeal by the Secretary of the Pennsylvania Department of Public Welfare and the administrator and personnel officer of South Mountain Restoration Center (South Mountain) from a final order of the district court. The order declared that the appellants had violated appellee's constitutional rights under the fourteenth amendment and awarded appellee attorney's fees.
The dispute centers on appellants' suspension of appellee from her employment. On March 15, 1976, the Pennsylvania Civil Service Commission (the Commission) appointed appellee to the position of licensed practical nurse, probationary status, at South Mountain. Approximately five months later, in early August 1976, five of appellee's co-workers accused her of stealing state property. On September 9, 1976, appellant Brubaker, the personnel officer at South Mountain, told the appellee to attend a meeting in his office later that afternoon. She was not informed that the purpose of the meeting was to determine the facts surrounding the theft allegations until she arrived at the meeting. Once there, she was a given a chance to present any person who might possess relevant information to rebut the charges, but her only response was that all the charges were lies.
During the next week, two important events occurred. First, three of appellee's co-workers informed Brubaker that appellee also had abused patients during the performance of her nursing duties. Second, appellee, unaware of these latest charges, met with appellant Downs, the administrator of South Mountain, regarding the theft allegations, and he told her that he would look into the matter. On September 17, Downs informed the appellee by letter that she had been suspended without pay. The suspension lasted ten days.
Appellee appealed her suspension to the Commission, which declined to review her case. She then filed this action under 42 U.S.C. § 1983 (1976), alleging that the failure to give sufficient notice of the September 9, 1976 meeting or to afford her an opportunity to rebut the abusive treatment charges violated due process. On November 2, 1976, her employment was terminated for reasons unrelated to this lawsuit.
The district court held that despite her probationary status, appellee had a property interest in her continued employment and that this interest was injured by her suspension. Bagby v. Beal, 439 F. Supp. 1257 (M.D.Pa.1977). In a separate opinion, it turned to the questions of what process was due appellee prior to her suspension and whether the appellants had failed to afford such process. The court entered a declaratory judgment stating that appellants had violated appellee's due process rights by failing to provide her with notice of the charges against her sufficiently in advance of the hearing to give her a reasonable opportunity to rebut the charges. It ordered that she be given a new hearing and specified procedures to be taken to ensure that she received due process of law. Bagby v. Beal, 455 F. Supp. 881 (M.D.Pa.1978). The court also awarded appellee attorney's fees totalling $8,730. The district court did not act on appellants' motion to stay its injunction pending appeal. Therefore, the required hearing was held on December 15, 1978. The hearing examiner, after taking evidence solely on the theft charges, concluded that the suspension was just under the circumstances.
On this appeal appellants argue that the appellee did not have a protectible property interest in her continued employment and that even if she did, the presuspension hearing provided her due process. Because we conclude that these issues are moot, however, we do not reach the merits of these arguments. Appellants also assert that the amount of attorney's fees awarded by the district court was excessive. This contention will be discussed further herein.
Article III of the Constitution conditions federal court jurisdiction on the existence of an actual case or controversy. The Supreme Court recently announced a two-part test for determining whether either party has a "legally cognizable interest in the final determination of the underlying questions of fact and law." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 1383, 59 L. Ed. 2d 642 (1979). It held that:
jurisdiction, properly acquired, may abate if the case becomes moot because
(1) it can be said with assurance that "there is no reasonable expectation . . . " that the alleged ...