of being denied a full and fair chance to compete for the position.
3. appropriate equitable injunction
Hannon is entitled to have the framework of the ALJ selection process restored, as nearly as possible and with due consideration to the interests of the SSA and other applicants, to that which existed in 1993, so that he can have an objective opportunity to compete for an ALJ post based on the legitimate criteria applicable in 1993. He will not be made whole until he is given such an opportunity.
Hannon remains on the OPM's register of eligible applicants for placement on a certificate of eligibles to be hired for ALJ openings within the SSA.
Hannon's current rating, however, is 83.4, below the minimum score of 87 generally required to place a candidate on a certificate of eligibles,
and several points lower than Hannon's rating of 88.75 in 1993.
It is, therefore, appropriate and equitable to compel the SSA to formally request that OPM restore Hannon's 1993 composite rating of 88.75,
and to formally request that OPM place Hannon's name on the next certificate of eligible ALJ candidates for hire regardless of whether Hannon's 88.75 rating would otherwise have qualified him for such placement.
In addition, SSA shall be required to adjust the certificate, notwithstanding Hannon's score, in such fashion that he will be among the candidates ranked first and actually considered for at least one ALJ position within the geographical area previously designated by Hannon in 1993.
The SSA, in making its hiring decisions with respect to ALJ openings for which Hannon is among the considered candidates, must comply in good faith with all applicable laws and regulations, including but not limited to the duty not to consider gender as a motivating factor, 42 U.S.C. § 2000e-2(m), and must not retaliate against Hannon, nor adversely affect his candidacy for an ALJ position, nor make any negative notation on a register, certificate, application papers or related documents because Hannon initiated and/or prosecuted the instant litigation.
This Court shall retain continuing jurisdiction to effectuate and enforce the injunction.
C. Attorney's Fees and Costs
1. prevailing party analysis
In a Title VII action, the court, in its discretion, may award the "prevailing party" reasonable attorney's fees and costs, including expert fees, and the United States is liable for costs the same as a private person. 42 U.S.C. § 2000e-5(k). The standard for making the threshold determination whether a plaintiff is a "prevailing party" is whether he "'succeeded on any significant issue in the litigation which achieves some of the benefit [he] sought in bringing suit'". Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983) (citation omitted).
"The touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties." Texas State Teachers Ass'n v. Garland Ind. School Dist., 489 U.S. 782, 109 S. Ct. 1486, 103 L. Ed. 2d 866 (1989). "In short, a plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 573, 121 L. Ed. 2d 494 (1992).
"[A] technical victory may be so insignificant . . . as to be insufficient to support prevailing party status." Garland, supra, 109 S. Ct. at 1493 (finding purely hypothetical victory where no evidence that unconstitutionally vague regulation was ever enforced). However, "once civil rights litigation materially alters the legal relationship between the parties, 'the degree of the plaintiff's overall success goes to the reasonableness' of a fee award". Farrar, supra, 113 S. Ct. at 574 (citation omitted). "The fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. . . . The result is what matters." Hensley, supra, 103 S. Ct. at 1940.
"If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount. This will be true even where the plaintiff's claims were interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried the case with devotion and skill. Again, the most critical factor is the degree of success obtained."