UNPUBLISHED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Affirmed by unpublished per curiam opinion.

_________________________________________________________________

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Unpublished opinions are not binding precedent in this circuit.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 "with-
out 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 defend-
ing 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 attor-
ney'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 satisfy-
ing 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 dis-
cretion. 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 evi-
dence" 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 recodifi-
cation 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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