Lewin v. Cooke ( 2002 )

Rehearing en banc denied; panel rehearing granted
solely for purpose of amending opinion; motion
for publication denied; motion for sanctions denied
by unpublished order entered 3/8/02.
Filed: March 8, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 00-1732(L)
(CA-99-2117-2)
JONATHAN LEWIN,
Plaintiff - Appellant,
versus
WILLIAM J. COOKE, et al.,
Defendants - Appellees.
ORDER
The court amends its opinion filed January 7, 2002, as
follows:
On page 5, third full paragraph -- The paragraph, beginning on
the bottom of page 5 and continuing onto the top of page 6, is
deleted and is replaced with the following:
Lewin argues that these pre-Lewin I denials of
access had not accrued into a full-fledged FERPA
§ 1232g(a)(1)(A) violation because EVMS had not yet
manifested a policy of denying access to records. If
these denials had not accrued into a § 1232g(a)(1)(A)
claim prior Lewin I, he could not have brought the claim
in that suit, and the claim would not be precluded now.
FERPA § 1232g(a)(1)(A) applies to an institution “which
has a policy of denying, or which effectively prevents,
[eligible students] . . . the right to inspect and review
[their] education records.” 20 U.S.C. § 1232g(a)(1)(A)
(emphasis added). Under the statute an institution
“which effectively prevents” a student from access to his
education records violates § 1232g(a)(1)(A), regardless
of whether it also has a “policy of denying” access to
such records. Even if EVMS had not manifested a “policy
of denying” access to Lewin’s education records prior to
his first lawsuit, it had “effectively prevent[ed]” him
from inspecting and reviewing those records. Thus, these
denials gave rise to claims under § 1232g(a)(1)(A) prior
to the first lawsuit. Alternatively, even if EVMS must
have manifested a policy of denial in order for a
§ 1232g(a)(1)(A) claim to accrue, Lewin’s allegations in
this suit include multiple denials of access prior to the
first federal lawsuit. In his October 8, 1999, motion
for judgment filed in Norfolk Circuit Court (which was
subsequently removed to federal court), Lewin alleges at
least five separate instances prior to Lewin I in which
EVMS faculty or administration denied or refused to
consider his repeated requests for access to his exam.
He also alleges at least two concurrent denials prior to
Lewin I of his requests for access to the full SPC
deliberations tape. Taken together, these alleged
denials suffice to establish a policy on the part of EVMS
of denying access to Lewin’s education records.
Accordingly, even if a plaintiff must show a policy of
denial of access to state a claim under § 1232g(a)(1)(A),
Lewin’s § 1232g(a)(1)(A) right of access claim had
accrued by the commencement of his first federal suit.
Entered at the direction of the panel.
For the Court
Clerk
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JONATHAN LEWIN,
Plaintiff-Appellant,
v.
WILLIAM J. COOKE; CLINTON H.
TOEWE, II; JAMES E. ETHERIDGE, JR.;
ROBERT M. MCCOMBS; JAMES F. No. 00-1732
LIND; THOMAS J. MANSER; MEDICAL
COLLEGE OF HAMPTON ROADS, a/k/a
Eastern Virginia Medical School of
the Medical College of Hampton
Roads,
Defendants-Appellees.
JONATHAN LEWIN,
Plaintiff-Appellant,
v.
WILLIAM J. COOKE; CLINTON H.
TOEWE, II; JAMES E. ETHERIDGE, JR.;
ROBERT M. MCCOMBS; JAMES F. No. 00-1943
LIND; THOMAS J. MANSER; MEDICAL
COLLEGE OF HAMPTON ROADS, a/k/a
Eastern Virginia Medical School of
the Medical College of Hampton
Roads,
Defendants-Appellees.
JONATHAN LEWIN,
Plaintiff-Appellant,
v.
WILLIAM J. COOKE; CLINTON H.
TOEWE, II; JAMES E. ETHERIDGE, JR.;
ROBERT M. MCCOMBS; JAMES F. No. 01-1165
LIND; THOMAS J. MANSER; MEDICAL
COLLEGE OF HAMPTON ROADS, a/k/a
Eastern Virginia Medical School of
the Medical College of Hampton
Roads,
Defendants-Appellees.
JONATHAN LEWIN,
Plaintiff-Appellant,
v.
WILLIAM J. COOKE; CLINTON H.
TOEWE, II; JAMES E. ETHERIDGE, JR.;
ROBERT M. MCCOMBS; JAMES F. No. 01-1335
LIND; THOMAS J. MANSER; MEDICAL
COLLEGE OF HAMPTON ROADS, a/k/a
Eastern Virginia Medical School of
the Medical College of Hampton
Roads,
Defendants-Appellees.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CA-99-2117-2)
Argued: October 29, 2001
Decided: January 7, 2002
2
Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges.
____________________________________________________________
Affirmed by unpublished per curiam opinion.
____________________________________________________________
COUNSEL
ARGUED: Richard Johan Conrod, Sr., RICHARD J. CONROD, SR.,
P.C., Virginia Beach, Virginia, for Appellant. Jonathan Barkasy
Sprague, POST & SCHELL, P.C., Philadelphia, Pennsylvania, for
Appellees. ON BRIEF: A. James Johnston, POST & SCHELL, P.C.,
Philadelphia, Pennsylvania; David K. Sutelan, MAYS & VALEN-
TINE, Norfolk, Virginia, for Appellees.
____________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
____________________________________________________________
OPINION
PER CURIAM:
Jonathan Lewin has sued the Eastern Virginia Medical School of
the Medical College of Hampton Roads (EVMS) and various of
EVMS's employees, alleging that the defendants prevailed in Lewin's
previous federal lawsuit by improperly and illegally withholding cru-
cial information. In the prior federal case Lewin invoked the Family
Educational Rights and Privacy Act (FERPA), 20 U.S.C.
§ 1232g(a)(2), in seeking to challenge the score he received on a
pharmacology exam at EVMS. Lewin alleged that two of his answers,
which were wrong according to the answer key, were in fact correct.
Lewin essentially sought to have a federal court determine, for exam-
ple, whether chlorothiazide or furosemide is the most appropriate
treatment for congestive heart failure. Not surprisingly, the district
court dismissed his case, holding that FERPA § 1232g(a)(2) only per-
3
mits actions to correct ministerial or technical inaccuracies in educa-
tional records, not to challenge the substantive scientific accuracy of
a pharmacology examination. See Lewin v. Medical College of Hamp-
ton Roads, 931 F. Supp. 443 (E.D. Va. 1996) (Lewin I).
In this case Lewin alleges that the defendants denied him access to
crucial educational records so as to prevent him from prevailing in his
previous federal lawsuit, in violation of FERPA § 1232g(a)(1)(A), 42
U.S.C. § 1985, and Virginia civil conspiracy law. He seeks damages
for lost profits, tuition, and other injuries allegedly caused by
EVMS's refusal to correct the grade on his pharmacology exam and
EVMS's subsequent decision to expel him from the school. The cur-
rent case arises from the sixth complaint filed by Lewin. In addition
to three voluntary non-suits in Virginia state court, Lewin has unsuc-
cessfully litigated one federal and one state lawsuit. Suffice it to say
that the factual and legal history leading up to this case is long and
complicated. Although this history does not merit a full recitation
here, it is set forth in the district court opinion. See Lewin v. Cooke,
95 F. Supp. 2d 513, 516-19 (E.D. Va. 2000) (Lewin II). The district
court rejected Lewin's FERPA and state law claims, and we affirm.
I.
The primary thrust of Lewin's current complaint is that the defen-
dants conspired to withhold information from him regarding the phar-
macology exam and the circumstances of his dismissal from school,
which in turn "caused the dismissal of Mr. Lewin's case [Lewin I]
from federal court." Lewin seeks to revive his original claim to cor-
rect the grade on his pharmacology exam by alleging that he lost his
first federal suit only because the defendants illegally withheld infor-
mation essential to his case. Upon evaluation of Lewin's complaint,
we conclude that all but one of his claims are either barred by res
judicata or wholly without merit. As for one of his claims for access
to educational records under FERPA § 1232g(a)(1)(A), we will
assume arguendo that it is not precluded. Nevertheless, Lewin has
already received the only remedy to which he is entitled on this claim.
Lewin's complaint recites a number of denials of access to infor-
mation, most occurring prior to Lewin I and a few occurring after
4
Lewin I. We will consider the pre-Lewin I denials and the post-Lewin
I denials separately.
A.
First, we address those denials of access to information that
occurred prior to Lewin's initiation of his first federal suit. Lewin
alleges that in 1991 the defendants failed to provide him access to his
pharmacology exam within 45 days of his request, as required by
§ 1232g(a)(1)(A). He also alleges that in 1993 the defendants denied
him access to the unabridged tape recording of the hearing and delib-
erations of the Student Progress Committee (SPC) that voted to expel
him, also in violation of § 1232g(a)(1)(A). To the extent that the
defendants denied Lewin access to information prior to his first fed-
eral lawsuit, these claims are barred by the doctrine of claim preclu-
sion because they are "claims that were raised or could have been
raised in the prior litigation." Pittston Co. v. United States, 199 F.3d
694, 704 (4th Cir. 1999).
Both the § 1232g(a)(2) claim brought in Lewin I and Lewin's cur-
rent § 1232g(a)(1)(A) claim allege that the defendants denied Lewin
access to documents necessary for him to prove the inaccuracy of the
exam. Accordingly, as to Lewin's access claims under §
1232g(a)(1)(A) that accrued prior to his first federal suit, these claims
involve the very same facts, are closely related in motivation, and
"arise[] out of the same transaction or series of transactions" as his
§ 1232g(a)(2) claim to correct his educational records. Id. (quoting
Harnett v. Billman, 800 F.2d 1308, 1313 (4th Cir. 1986)). Thus, as to
denials of access that occurred prior to Lewin I, Lewin could have
brought (and arguably did bring) his § 1232g(a)(1)(A) right of access
claims in that suit, so he is barred by claim preclusion from relitigat-
ing those claims in this suit.
Lewin argues that these pre-Lewin I denials of access had
not accrued into a full-fledged FERPA § 1232g(a)(1)(A) violation
because EVMS had not yet manifested a policy of denying access
to records. If these denials had not accrued into a § 1232g(a)(1)(A)
claim prior Lewin I, he could not have brought the claim in that suit,
and the claim would not be precluded now. FERPA § 1232g(a)(1)(A)
applies to an institution “which has a policy of denying, or which
effectively prevents, [eligible students] . . . the right to inspect and
review [their] education records.” 20 U.S.C. § 1232g(a)(1)(A)
(emphasis added). Under the statute an institution “which effec-
tively prevents” a student from access to his education records
violates § 1232g(a)(1)(A), regardless of whether it also has a
“policy of denying” access to such records. Even if EVMS had
not manifested a “policy of denying” access to Lewin’s education
records prior to his first lawsuit, it had “effectively prevent[ed]”
him from inspecting and reviewing those records. Thus, these
denials gave rise to claims under § 1232g(a)(1)(A) prior to the
first lawsuit. Alternatively, even if EVMS must have manifested
a policy of denial in order for a § 1232g(a)(1)(A) claim to accrue,
Lewin’s allegations in this suit include multiple denials of access
5
prior to the first federal lawsuit. In his October 8, 1999, motion for
judgment filed in Norfolk Circuit Court (which was subsequently
removed to federal court), Lewin alleges at least five separate
instances prior to Lewin I in which EVMS faculty or administration
denied or refused to consider his repeated requests for access to
his exam. He also alleges at least two concurrent denials prior to
Lewin I of his requests for access to the full SPC deliberations tape.
Taken together, these alleged denials suffice to establish a policy
on the part of EVMS of denying access to Lewin’s education records.
Accordingly, even if a plaintiff must show a policy of denial of
access to state a claim under § 1232g(a)(1)(A), Lewin’s
§ 1232g(a)(1)(A) right of access claim had accrued by the
commencement of his first federal suit.
B.
Lewin identifies three alleged FERPA right of access violations
that he asserts are not barred by claim preclusion because they had not
occurred prior to his first suit. Lewin argues that EVMS violated
§ 1232g(a)(1)(A) by failing to turn over the Master Challenge Exam,
which is the answer key to the pharmacology exam, within 45 days
of his request on March 1, 1996; by allegedly misrepresenting to the
United States Department of Education (DOE) the custody status of
the SPC deliberations tape; and by again denying him access in Janu-
ary of 1998 to a complete copy of the SPC deliberations.
As to the Master Challenge Exam, FERPA provides a right of
access only to a student's "education records." 20 U.S.C.
§ 1232g(a)(1)(A). That term is defined by FERPA to include records
and documents that "contain information directly related to a student."
20 U.S.C. § 1232g(a)(4)(A)(i). The DOE has indicated in a letter to
Lewin that the Master Challenge Exam, which is a general answer
key, is not directly related to Lewin and does not constitute part of
his educational record. The Master Challenge Exam does not contain
Lewin's name, nor does it contain any record of his educational per-
formance. While the Master Challenge Exam was certainly relevant
to Lewin's § 1232g(a)(2) claim to correct his educational record, and
thus discoverable in that action, we agree with the DOE that it is not
itself one of Lewin's education records. Accordingly, Lewin has no
right of access to the Master Challenge Exam under § 1232g(a)(1)(A).
Moreover, the Master Challenge Exam was turned over prior to the
conclusion of the first federal lawsuit. Because Lewin did have access
to this document during that suit, the temporary denial of access did
not prevent him from using it to support his claim. Lewin points out
6
that the Master Challenge Exam was turned over only one day before
the district court granted summary judgment, and he argues that he
did not have adequate time to review and understand the importance
of the document. Lewin is barred from now litigating the lateness of
the discovery response because he had the opportunity to do that in
the first lawsuit. He could have requested a continuance at the sum-
mary judgment hearing based on the newly-provided information, or
he could have moved for reconsideration once he had the opportunity
to appreciate the importance of this document.
Lewin also argues that EVMS violated his right of access by inten-
tionally misrepresenting to the DOE the chain of custody of the SPC
deliberations tape. It is not at all clear that the statement about cus-
tody in EVMS's letter amounted to a misrepresentation. Even if it did,
the misrepresentation was made to DOE, not to Lewin, and the DOE
nonetheless ordered EVMS to turn over the SPC tape. Thus, the
alleged misrepresentation by EVMS does not constitute a denial of
access under § 1232g(a)(1)(A).
Finally, Lewin alleges that EVMS's denial of access to the SPC
tape in 1998 constitutes a violation of § 1232g(a)(1)(A) that is inde-
pendent of the claim-barred 1993 denial. It is not clear whether the
district court in the first federal suit actually determined the question
of Lewin's right of access to the SPC tape. If it did, the issue of
Lewin's right to the SPC tape would be barred under the doctrine of
issue preclusion. Lewin's complaint in the first case sought broad
relief and could plausibly be read to state a claim for access to the
tape in addition to his primary claim to correct his educational
records. If read that broadly, the district court's dismissal of his com-
pliant would have necessarily determined that he had no right of
access to the tape, and the doctrine of issue preclusion would bar
Lewin from re-litigating that same issue. On the other hand, Lewin's
earlier complaint primarily presented a § 1232g(a)(2) right to correct
educational records claim, not a § 1232g(a)(1)(A) right of access
claim. The district court opinion granting summary judgment to
EVMS did not discuss whether Lewin had a right to the SPC tape
under § 1232g(a)(1)(A). See Lewin I, 931 F. Supp. 443. It appears that
the SPC tape is part of Lewin's education record to which he is enti-
tled access under § 1232g(a)(1)(A), because it is a record maintained
by an educational institution that contains information directly related
7
to Lewin. 20 U.S.C. § 1232g(a)(4)(A). The DOE evidently agrees and
has instructed EVMS to provide Lewin with a copy of the tape. We
are hesitant to read an implied holding into the district court's previ-
ous opinion when that holding appears incorrect. When the issue of
whether a prior court actually decided an issue is opaque, we should
hesitate to preclude that issue in a subsequent case. 18 Wright, Miller
& Cooper, Federal Practice and Procedure: Jurisdiction § 4420, at
184 (1981).
Assuming arguendo that Lewin's § 1232g(a)(1)(A) claim for
access to the SPC tape is not barred by issue preclusion, that claim
is nonetheless moot. Lewin argues that the denial of access to the SPC
tape prejudiced his first federal lawsuit. However, the denial of access
to the tape in 1998, after the resolution of the first case in 1996,
clearly could not have prejudiced his lawsuit. His suit could only have
been prejudiced by a denial of access prior to the resolution of the
case, but any such denial is barred by claim preclusion, as discussed
above. The only injury Lewin suffered as a result of the 1998 denial
was his inability to review the tape. Accordingly, the proper remedy
for Lewin's § 1232g(a)(1)(A) claim is to order EVMS to provide him
access to the tape. Lewin did not even request this remedy in his com-
plaint. Moreover, Lewin's counsel stated in oral argument that Lewin
has received a complete copy of the transcript of the SPC tape,
including the deliberations section, through the course of discovery in
his now-completed state lawsuit. Therefore, Lewin has already
received the only form of relief to which he is even arguably entitled,
and this claim is moot.
Lewin attempts to rescue this claim from mootness by asserting a
right to nominal damages. Nominal damages are typically available
in § 1983 actions to vindicate constitutional rights. See Carey v.
Piphus, 435 U.S. 247 (1978). It is less clear whether nominal dam-
ages are also available in § 1983 actions asserting statutory rights.
Compare Walker v. Anderson Electrical Connectors, 944 F.2d 841,
845 (11th Cir. 1991) (holding that nominal damages are not available
under Title VII and limiting Carey's holding to constitutional viola-
tions), with Peckham v. Continental Cas. Ins. Co., 895 F.2d 830, 841
(1st Cir. 1990) (analogizing Carey and affirming an award of nominal
damages for a violation of a Massachusetts statute). Even assuming
that nominal damages may be available in statutory § 1983 actions,
8
the defendants would enjoy qualified immunity from damages with
respect to Lewin's § 1232g(a)(1)(A) claim for access to the SPC tape.
Under the doctrine of qualified immunity, governmental officials sued
under § 1983 "are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory . . . rights."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The exchange of letters between EVMS and the DOE illustrates
that EVMS reasonably believed that the SPC tape was excluded from
the definition of education records. The DOE explained that accord-
ing to its interpretation of FERPA, the SPC tapes did not meet the
terms of the exclusion asserted by EVMS. Upon review, we conclude
that EVMS's position was a reasonable, if ultimately incorrect, read-
ing of a statutory exclusion that has not been clearly interpreted by
the courts. Accordingly, it was not clear at the time of the 1998 denial
that the deliberations section of the SPC tape constituted an "educa-
tion record" under FERPA, so the defendants would be entitled to
qualified immunity on that claim. Cf. Fox v. Bd. of Trustees of the
State Univ. of New York, 42 F.3d 135, 141 (2nd Cir. 1994) (noting
that even if the possibility of nominal damages might save an other-
wise moot § 1983 claim, the government defendants would be
immune from damages claims because the rights at issue were not
clearly defined).
In sum, claims alleging denial of access to information that accrued
prior to Lewin's first federal suit could have been brought in that suit,
so Lewin is precluded from litigating these claims in this suit. As to
the three incidents that occurred after the initiation of the first federal
suit, two of these incidents do not constitute § 1232g(a)(1)(A) viola-
tions, and the third is barred by qualified immunity to the extent it is
not moot.
Lewin also sued under 42 U.S.C. § 1985(2), arguing that the defen-
dants conspired to injure his § 1232g(a)(2) cause of action in his first
federal suit in retaliation for Lewin's testimony, deposition, and oral
arguments in that case. The alleged retaliatory acts are, again, the
defendants' withholding of information from Lewin. As stated above,
the acts of denial of access to information are either barred by claim
preclusion or did not cause injury to Lewin's first federal suit.
Accordingly, Lewin's claim under § 1985(2) also fails.
9
II.
Lewin also asserts a Virginia state law claim for the defendants'
alleged conspiracy to withhold information, and he appeals the district
court's dismissal of that claim with prejudice. He argues that the dis-
trict court should not have exercised supplemental jurisdiction over
this state claim after it dismissed his federal claims. Given the related
nature of the state and federal claims and the repetitive nature of
Lewin's litigation, the district court did not abuse its discretion in
retaining supplemental jurisdiction over his state law claim.
As to the merits of Lewin's state conspiracy claim, the district
court correctly ruled that this claim is both barred by the doctrine of
intracorporate immunity and fails to state a viable cause of action.
Because the defendants are all agents of EVMS, they constitute a sin-
gle legal entity. They are thus legally incapable of conspiracy, which
requires multiple parties acting together. Bowman v. State Bank of
Keysville, 331 S.E.2d 797, 801 (Va. 1985). Lewin argues that the doc-
trine of intracorporate immunity does not apply here because the indi-
vidual defendants had an independent personal stake in conspiring to
defeat Lewin's lawsuit, see Greenville Publ'g Co. v. Daily Reflector,
Inc., 496 F.2d 391, 399 (4th Cir. 1974), and the defendants' acts were
unauthorized by EVMS, see Buschi v. Kirven, 775 F.2d 1240, 1252-
53 (4th Cir. 1985). We conclude that neither of these exceptions apply
on the facts of this case and that Lewin's conspiracy claim is barred
by intracorporate immunity. In addition, Lewin's conspiracy claim
relies on the same withholding of information relied on for his
§ 1985(2) claim, and it fails to state a claim for the same reasons: the
alleged claims are either barred by or causally unrelated to his first
suit.
III.
Lewin appeals the district court's sua sponte imposition of Rule 11
sanctions against him in the amount of $5000. Lewin argues that the
district court failed to enter an order to show cause describing the
allegedly sanctionable conduct, as required by Fed. R. Civ. P.
11(c)(1)(B). In a hearing on March 14, 1996, the district court clearly
put Lewin on notice that the court was considering sanctions,
described in detail the specific conduct that might be sanctionable,
10
and requested briefs on the issue from both parties. Both parties
briefed the issue, with Lewin filing both an initial and a reply brief.
The district court's clear instructions during the March 14, 1996,
hearing satisfied the aims of Rule 11(c)(1)(B) and thus in effect con-
stituted an oral order to show cause. See Cox v. Preferred Tech.
Group, Inc., 110 F. Supp. 2d 786, 788-89 (N.D. Ind. 2000).
Having determined that the court did not violate the procedural
requirements of Rule 11, we review the imposition of sanctions for
abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
405 (1990). The district court determined that Lewin's latest lawsuit
had no chance of success under clearly stated precedent, showed a
clear intent by Lewin to harass the defendants, and was a blatant
attempt to re-litigate previously decided claims. These conclusions
are amply supported by the record, and the district court acted well
within its discretion in imposing sanctions on Lewin.
IV.
Lewin challenges the district court's award of attorneys' fees to the
defendants, arguing that the defendants' motion for attorneys' fees
was not filed within 14 days of the final judgment and thus was
untimely under Fed. R. Civ. P. 54(d)(2)(B). The district court's final
judgment dismissing Lewin's suit was entered on May 1, 2000. In this
judgment order the court imposed Rule 11 sanctions but withheld
quantification of the sanctions pending a determination of Lewin's
financial status and the amount of attorneys' fees and costs incurred
by the defendants. On June 27, 2000, the district court entered judg-
ment quantifying sanctions in the amount of $5000. In the opinion
accompanying this order, the court explained its reasons for imposing
sanctions and noted that it declined to impose sanctions in the form
of attorneys' fees. The defendants then moved for attorneys' fees pur-
suant to 42 U.S.C. § 1988 on July 11, 2000, within 14 days of the
June 27, 2000, order but more than 14 days after the May 1, 2000,
order.
Rule 54(d)(2)(B) requires that a motion for attorneys' fees be filed
"no later than 14 days after entry of judgment." The rule defines
"judgment" to include "any order from which an appeal lies." Fed. R.
Civ. P. 54(a). Lewin argues that the motion for attorneys' fees had to
11
be filed within 14 days of the May 1, 2000, order dismissing the com-
plaint, because the motion sought fees associated with defending
against the complaint. The defendants argue that Rule 54(d)(2)(B)
only requires that the motion be filed within 14 days of any final,
appealable judgment, not within 14 days of one specific judgment,
and that the June 27, 2000, judgment constitutes a final, appealable
judgment.
There is some support for the defendants' argument that any final,
appealable judgment suffices to restart the 14-day period for a motion
for attorneys' fees. In Weyant v. Okst, 198 F.3d 311 (2nd Cir. 1999),
the court held that timely postjudgment motions which seek to alter
or reverse the judgment, such as Lewin's 60(b) motion for relief from
judgment, automatically suspend the finality of the judgment. Id. at
314. Accordingly, the court held that a motion for attorneys' fees is
timely if filed within 14 days of the resolution of such postjudgment
motions. Id. at 315.
We need not decide in this case whether Lewin's Rule 60 motion
to reconsider tolled the finality of the May 1, 2000, judgment. Given
the unique nature of the district court's orders on May 1, 2000, and
June 27, 2000, the later order sufficed as a final judgment from which
the defendants had 14 days to move for attorneys' fees. In the district
court's May 1, 2000, order and accompanying opinion, the court
requested an estimation of the defendants' attorneys' fees and clearly
indicated that it was considering awarding fees as part of its sanctions
order. The May 1, 2000, order therefore preserved the issue of the
defendants' attorneys' fees until the final order of June 27, 2000,
which quantified sanctions, and the defendants had good reason to
believe that the district court would treat attorneys' fees as part of
Rule 11 sanctions. The June 27, 2000, order resolved for the first time
whether the district court would award the defendants their attorneys'
fees. Under these circumstances, it was reasonable for the defendants
to wait until the district court had ruled on whether sanctions would
include attorneys' fees before making their own motion for fees.
Because the question of attorneys' fees was essentially held in abey-
ance by the May 1, 2000, order until the June 27, 2000, order, that
later order constitutes a final judgment for the purposes of Rule
54(d)(2)(B)'s 14-day filing requirement.
12
On the merits, the decision to award attorneys' fees is within the
discretion of the district court. See DeBauche v. Trani, 191 F.3d 499,
512 (4th Cir. 1999); Cooke v. Cooke, 474 S.E.2d 159, 162 (Va. Ct.
App. 1995). A prevailing defendant may recover attorneys' fees in
§ 1983 and § 1985 actions only when the plaintiff's claims were "friv-
olous, unreasonable, or without foundation." Christiansburg Garment
Co. v. EEOC, 434 U.S. 412, 421 (1978). The standard for recovering
attorneys' fees under Virginia state law is analogous. See Va. Code
Ann. § 8.01-271.1 (West 2001). The district court found that Lewin's
lawsuit was brought solely for the purpose of harassment, was
asserted in bad faith, and constituted an attempt to relitigate matters
already adjudicated. These findings are clearly supported by the
record, and the district court did not abuse its discretion in awarding
attorneys' fees for both Lewin's federal and state claims.
V.
Lewin also appeals the district court's denial of his motion to
recuse, and we review this denial for abuse of discretion. United
States v. Gordon, 61 F.3d 263, 267 (4th Cir. 1995). After a thorough
review of the record, we conclude that the judge acted in an impartial
and even-handed manner. Despite her early concerns, which proved
justified, that Lewin's suit was frivolous, the judge provided Lewin
ample opportunities to argue and brief his positions, fully considered
Lewin's numerous motions, and wrote thorough and careful opinions
analyzing Lewin's arguments and justifying her decisions. We find
Lewin's motion for recusal wholly without merit, and we affirm the
district court's denial of that motion.
VI.
Finally, Lewin appeals the district court's denial of his motion for
Rule 11 sanctions. We also review this denial for abuse of discretion.
Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). Lewin
moved for sanctions based on the defendants' allegedly frivolous
argument to the district court that Lewin's notice of appeal was pre-
mature. The defendants promptly acknowledged their unintentional
misstatement of law, which the district court found was both reason-
able and non-material. Under these circumstances, Rule 11 sanctions
against the defendants are clearly inappropriate. We affirm the district
court's denial of Lewin's motion for Rule 11 sanctions.
13
VII.
For the foregoing reasons, the orders and judgment of the district
court are
AFFIRMED.
14