National Home Equity Mortgage Ass'n v. Face ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATIONAL HOME EQUITY MORTGAGE 
ASSOCIATION,
Plaintiff-Appellee,
v.
E. JOSEPH FACE, JR., Commissioner
of Financial Institutions, Bureau of

Financial Institutions, Virginia State
Corporation Commission; SUSAN E. No. 01-1631
HANCOCK, Deputy Commissioner,
Consumer Finance, Bureau of
Financial Institutions, Virginia State
Corporation Commission,
Defendants-Appellants,
MARK L. EARLEY,
Movant.

On Remand from the United States Supreme Court.
(S. Ct. No. 01-1827)
Decided on Remand: March 10, 2003
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Affirmed by published per curiam opinion.
COUNSEL
Jerry W. Kilgore, Attorney General of Virginia, William H. Hurd,
State Solicitor, Judith Williams Jagdmann, Deputy Attorney General,
2 NATIONAL HOME EQUITY MORTGAGE v. FACE
Maureen Riley Matsen, Deputy State Solicitor, William E. Thro, Dep-
uty State Solicitor, Gregory E. Lucyk, Senior Assistant Attorney Gen-
eral, A. Ann Berkebile, Assistant Attorney General, Christy A.
McCormick, Assistant Attorney General, Richmond, Virginia, for
Appellants. E. Duncan Getchell, Jr., Robert L. Hodges, William H.
Baxter, II, MCGUIRE WOODS, L.L.P., Richmond, Virginia, for
Appellee.
OPINION
PER CURIAM:
This case is on remand from the United States Supreme Court for
"further consideration in light of Gonzaga University v. Doe, 536 U.S.
[273], 122 S. Ct. 2268, 153 L. Ed. 2d 309 (2002)." Face v. Nat’l
Home Equity Mortgage Ass’n, 123 S. Ct. 69 (2002). After careful
reconsideration and for the reasons that follow, we respectfully adhere
to our decision in National Home Equity Mortgage Association v.
Face, 283 F.3d 220 (4th Cir. 2002), which we now readopt.
In National Home Equity Mortgage Association, we affirmed the
district court’s award to the National Home Equity Mortgage Associ-
ation ("NHEMA") of $79,750 for attorneys fees, costs, and expenses
as the prevailing party under 42 U.S.C. § 1988. We rejected Virgin-
ia’s arguments (1) that sovereign immunity precludes an award of
attorneys fees when no violation of the Fourteenth Amendment has
been alleged; (2) that sovereign immunity bars an award of attorneys
fees against State officers because the standard for awarding attorneys
fees favors private plaintiffs and discriminates against States; (3) that
NHEMA was not a prevailing party on a claim brought under 42
U.S.C. § 1983 because the Supremacy Clause is not a source of sub-
stantive individual rights and we never concluded that NHEMA had
a private right of action under the Alternative Mortgage Transaction
Parity Act of 1982, 12 U.S.C. § 3801 et seq. (the "Parity Act"); and
(4) that special circumstances were presented in this case that would
render the award unjust. Only the third reason colorably implicates
the Supreme Court’s holding in Gonzaga.
NATIONAL HOME EQUITY MORTGAGE v. FACE 3
In Gonzaga, the Supreme Court considered whether the Family
Educational Rights and Privacy Act of 1974 created a personal right
that plaintiffs could enforce under 42 U.S.C. § 1983. Concluding that
that Act conferred no specific individual right enforceable under
§ 1983, the Court observed that the Family Educational Rights and
Privacy Act did not have the "rights-creating" language that is "criti-
cal to showing the requisite congressional intent to create new rights"
and therefore the individual plaintiffs had no rights to enforce under
§ 1983. 122 S. Ct. at 2277.
Although Virginia did, in the district court, contend that the Parity
Act did not confer a right enforceable under 42 U.S.C. § 1983, the
district court, applying the jurisprudence of implied rights of action,
see Gonzaga, 122 S. Ct. at 2275-77, rejected the argument and con-
cluded that the Parity Act did create an enforceable right. We, how-
ever, never had an opportunity to review that ruling. As we pointed
out,
In appealing the district court’s judgment, Virginia
elected not to challenge the district court’s conclusion that
the Parity Act conferred a cause of action on NHEMA and
its members. Rather, it limited its challenge to whether Vir-
ginia law was in conflict with the Parity Act. When we dis-
posed of that issue in favor of NHEMA and its members,
NHEMA became a prevailing party on its claims brought
under the Parity Act and 42 U.S.C. § 1983.
283 F.3d at 225. Thus, we were, and still are, left with the unappealed
holding of the district court that the Parity Act created a right of
action and that NHEMA prevailed on its assertion of that right of
action. Thus, on the issues before us, the holding of Gonzaga is irrele-
vant.
On reconsideration from the Supreme Court, we therefore respect-
fully adhere to our earlier decision in National Home Equity Mort-
gage Association v. Face, 283 F.3d 220 (4th Cir. 2002), and for the
reasons given in that decision, we affirm the order of the district court
awarding NHEMA attorneys fees, costs, and expenses in the amount
of $79,750.
AFFIRMED ON RECONSIDERATION