UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROLAND IMPERIAL, M.D.,

Plaintiff-Appellant,

v.

SUBURBAN HOSPITAL ASSOCIATION;

MEDICAL STAFF OF SUBURBAN

HOSPITAL OF BETHESDA, MARYLAND;

No. 96-1978

SUBURBAN HOSPITAL BOARD OF

TRUSTEES; JOHN S. SAIA, Dr.; DANIEL

POWERS, Dr.; JOHN LORD, Dr.; JOHN

S. ENG, Dr.; JOEL SCHULMAN, Dr.;

CHARLES TENNEN, Dr.,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frank A. Kaufman, Senior District Judge.

(CA-90-3237-K)

Submitted: December 16, 1997

Decided: January 22, 1998

Before NIEMEYER and LUTTIG, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Lisa A. Federici, LAW OFFICES OF BRIAN T. O'REILLY, P.C.,

Springfield, Virginia, for Appellant. S. Allan Adelman, GODARD,

WEST & ADELMAN, P.C., Rockville, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Roland Imperial, M.D., appeals from an award of attorney's fees

under the Health Care Quality Improvement Act ("HCQIA"), 42

U.S.C. § 11113 (1994), which award was granted after a similar

award was denied by a different district court judge. Appellees--

Suburban Hospital, the Suburban Hospital Board of Trustees, and six

individually named physicians--filed the first motion after Imperial

filed a notice of appeal from the dismissal of his underlying suit. The

motion was denied as untimely under D. Md. R. 109.2.a, which

required a motion for attorney's fees to be filed within twenty days

of entry of judgment.* After this court affirmed the dismissal of the

underlying case, we denied a similar motion for attorney's fees "without prejudice to the filing of attorney's fees motions with the district

court."

Appellees then filed a second motion in the district court, seeking

the same fees sought in their first motion, as well as fees for defending the appeal. The district court expressly denied the fees incurred

on appeal, reasoning that it lacked jurisdiction to consider such an

award. The court then granted the motion with regard to fees incurred

in the district court. On appeal, Imperial contends that (1) the second

award was barred by collateral estoppel, (2) the fee request was

untimely filed, and (3) the district court's fee award was in error,

because it did not explicitly contain a finding that Imperial's claims

were "frivolous" or brought in "bad faith." Having previously granted

the parties' motion to submit the case without oral argument, we find

Imperial's arguments to be without merit, and we affirm the fee

award.

_________________________________________________________________

*This rule was amended in 1993, after the filing of Appellee's first fee

motion but before the filing of the second, to require attorney's fees

motions to be filed within fourteen days of entry of judgment. See also

Fed. R. Civ. P. 54(d) (effective December 1, 1993).

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Imperial's first two contentions may be addressed together,

because they both ignore a salient fact of this case. When we denied

the fee request filed in this court, we expressly invited reconsideration

of the fee issue by the district court. At that point, a request for attorney's fees needed to be filed within fourteen days of the entry of

judgment "for all services performed prior thereto." Within fourteen

days of the entry of our order permitting reconsideration, Defendants

filed a motion for attorney's fees in the district court. Thus, the

motion was timely filed, and our order permitted reconsideration of

the issue by the district court.

We now turn to whether a finding of frivolousness or bad faith as

required by the statute, see 42 U.S.C. § 11113, must be explicitly

made by the district court, and if not, whether the record here will

support such an implicit finding. While the court here did not make

an explicit bad faith finding in so many words, in light of the entire

record and the expressions of the district court judge, we are satisfied

that the "bad faith" standard was met.

In granting summary judgment for Defendants, the district court

found that "[g]iven this plethora of evidence regarding Dr. Imperial's

substandard patient care . . . any objective panel would have denied

his application for renewal of privileges." Furthermore, the district

court noted that many of Imperial's assertions were sharply refuted by

documentary evidence, and in one instance, the court referred to a

specific claim as "untenable." In addition, the parties fully briefed the

issue of bad faith before the district court, and the district court

expressly referred to those memoranda in its order awarding fees.

Under these circumstances, little would be gained by remanding

this proceeding to the district court for an explicit finding of bad faith,

when it is clearly evident from the record as a whole that the district

court found, albeit implicitly, that Imperial's conduct was in bad faith.

We are convinced from our independent review of the record that the

district court's expressions are sufficient to constitute findings satisfying the bad faith requirement for an assessment of attorney's fees

under § 11113.

The district court's findings are nonetheless subject to our review

and must find support in the record. We review the district court's

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decision to award attorney's fees under the HCQIA for abuse of discretion. See Smith v. Ricks, 31 F.3d 1478, 1487 (9th Cir. 1994). We

addressed the merits of this case on Imperial's appeal from the grant

of summary judgment. At that time, we found that there was "no evidence" that Hospital officials reviewing Imperial were not focused on

quality health care concerns. Imperial v. Suburban Hosp. Ass'n, 37

F.3d 1026, 1030 (4th Cir. 1994). Moreover, we explicitly found that

Imperial's contentions regarding the reporting requirements of 42

U.S.C. § 11133 (1994) were "frivolous." Imperial, 37 F.3d at 1030.

In addition, we noted that Imperial pursued a claim for injunctive

relief on appeal, even though it was abandoned in the district court.

Id. at 1031. Finally, we rejected Imperial's claim that a subsequently

enacted state law regarding immunity did not apply to his case,

because the statute to which Imperial referred was simply a recodification of an earlier statute which was enacted well before Imperial's

cause of action arose. Therefore, Imperial's legal position was

patently incorrect. Id. at 1032.

We, thus, find that the district court did not abuse its discretion in

characterizing Imperial's claims as without foundation or frivolous.

Accordingly, we conclude that the district court properly imposed

attorney's fees against Imperial under § 11113, and we therefore

affirm.

AFFIRMED

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