Torres-Rivera v. O'Neill-Cancel

United States Court of Appeals
For the First Circuit

No. 07-1806

MARGARET TORRES-RIVERA ET AL.,

Plaintiffs, Appellants,

v.

CHARLES O'NEILL-CANCEL,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Lynch, Circuit Judge.

David A. Cerda, with whom Sigfredo A. Irizarry-Semidei was on
brief, for appellants.
Luis A. Rodríguez Muñoz, with whom Roberto Sánchez Ramos,
Secretary of Justice, Salvador Antonetti Stutts, Solicitor General,
Eduardo Vera Ramírez, Eileen Landrón Guardiola, and Landrón & Vera,
LLP were on brief, for appellee.

April 30, 2008
 SELYA, Senior Circuit Judge. After a lengthy battle to

redeem egregious violations of their civil rights, the plaintiffs

were granted attorneys' fees pursuant to the Civil Rights

Attorney's Fees Awards Act of 1976 (the Fees Act), 42 U.S.C. § 1988.

They were later denied additional recompense for services rendered

in (i) litigating the fee petition, (ii) attempting to collect the

underlying judgments, and (iii) seeking statutory interest.

Displeased with the district court's calculation and apportionment

of the fees awarded and with its rejection of their supplemental

motion, the plaintiffs prosecuted this appeal.

After careful consideration of a tangled record, we

conclude that the district court abused its discretion in two

respects. First, the court used an inappropriate methodology in

apportioning the original fee award. Second, despite the

plaintiffs' presumptive entitlement to further relief, the court

failed adequately to explain its denial of the supplemental motion.

Consequently, we vacate the orders appealed from and remand for

further proceedings consistent with this opinion.

I. BACKGROUND

Our earlier opinion in Torres-Rivera v. O'Neill-Cancel

(Torres-Rivera I), 406 F.3d 43 (1st Cir. 2005), contains an

exegetic account of the events that form the backdrop for the

orders at issue. We urge the reader who hungers for further detail

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to consult that opinion and rehearse here only those facts needed

to put this appeal into perspective.

In August of 1998, Ernesto Espada-Cruz (Espada), a Puerto

Rico police officer, beat two teenage boys, Angel Santiago-Cora

(Santiago) and Ernid Gómez. Charles O'Neill-Cancel (O'Neill), an

agent of the Puerto Rico Treasury Department, stood by without

intervening and trained his gun first on Gómez and then on Gómez's

mother, Margaret Torres-Rivera (who witnessed the attack).

On August 27, 1999, Torres-Rivera and the two boys sued

O'Neill and Espada under 42 U.S.C. § 1983 and Puerto Rico tort

law.1 The Commonwealth of Puerto Rico agreed to represent O'Neill

but not Espada.

Espada failed to answer the complaint and the clerk of

court entered a default against him on June 19, 2000. See Fed. R.

Civ. P. 55(a). O'Neill answered the complaint and later moved

unsuccessfully for summary judgment. A flurry of activity

followed, including an interlocutory appeal, several motions, and

protracted pretrial discovery involving O'Neill and the plaintiffs.

This skirmishing culminated in a five-day trial that

began on August 6, 2003. Espada did not participate in the trial.

O'Neill, represented by four attorneys, mounted a ferocious

defense.

1
Three other plaintiffs who asserted derivative claims fell by
the wayside during the course of the litigation. They are not
parties to this appeal.

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 At the end of the plaintiffs' case in chief, the district

court granted O'Neill's motion for judgment as a matter of law vis-

à-vis Santiago. See Fed. R. Civ. P. 50(a). At the close of all

the evidence, the court submitted the remaining claims to the jury

(including questions as to the amount of damages to be assessed

against the defaulted defendant, Espada). The jurors found O'Neill

liable to Gómez for violating his Fourth Amendment rights by

failing to intervene notwithstanding Espada's use of excessive

force. They also found him liable to Torres-Rivera under local law

for negligently causing her harm. Espada's liability to all three

plaintiffs was assumed by reason of the default.

The jurors awarded damages as follows: $100,000 for Gómez

against O'Neill; $20,000 for Torres-Rivera against O'Neill;

$100,000 for Gómez against Espada; $20,000 for Torres-Rivera

against Espada; and $100,000 for Santiago against Espada. O'Neill

appealed, but to no avail. See Torres-Rivera I, 406 F.3d at 55.

Espada did not appeal.

In due course, the plaintiffs moved under the Fees Act

for attorneys' fees referable to services rendered through October

9, 2005. The district court granted fees in an amount that the

plaintiffs thought was too meager. When the plaintiffs moved for

reconsideration, the court revised the award, using the lodestar

method. Torres-Rivera v. Espada-Cruz (Torres-Rivera II), Civ. No.

99-1972, 2007 WL 906176, at *3 (D.P.R. Mar. 22, 2007). As part of

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its calculations, the court made a fifteen percent global reduction

to take account of what it characterized as overly generic

descriptions of time expended. Id. at *2-3. It then apportioned

responsibility for payment of the award between the defendants

based on the relative damages assessed against each of them by the

jury. Id. at *3. Thus, the court ordered the overall award

($101,584.45) to be paid thirty-five percent by O'Neill and sixty-

five percent by Espada. Id.

During some of the time that the fee petition was

pending, the underlying judgments remained unsatisfied.

Eventually, the plaintiffs filed a supplemental motion seeking

payment of attorneys' fees generated after October 9, 2005 in

litigating the fee petition itself and in litigating to compel

payment not only of the judgments but also of interest thereon.

The district court, without explanation, denied this motion. See

Torres-Rivera v. Espada-Cruz, Civ. No. 99-1972 (D.P.R. Feb. 2,

2007) (unpublished order).

O'Neill paid the damages judgments against him on or

about October 28, 2005; but as of March 27, 2008, he had not paid

any post-judgment interest. Espada has not paid any part of the

judgments or fees and is apparently judgment-proof.

The plaintiffs appeal both the fee award and the denial

of their supplemental motion. Our standard of review is familiar.

We review a fee award for abuse of discretion. Coutin v. Young &

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Rubicam P.R., Inc., 124 F.3d 331, 336 (1st Cir. 1997). A district

court may abuse its discretion if it fails to consider a

significant factor in the decisional calculus, if it relies on an

improper factor in working that calculus, or if it considers all

the appropriate factors but makes a serious error in judgment as to

their relative weight. Id. Within this framework, an error of law

is always tantamount to an abuse of discretion. See Rosario-Urdaz

v. Rivera-Hernández, 350 F.3d 219, 221 (1st Cir. 2003).

II. ANALYSIS

On appeal, the plaintiffs advance three claims. They

assert that the district court erred in (i) apportioning fees based

on the defendants' relative liability for damages, (ii) applying a

global reduction to their fee request, and (iii) denying them fees

for their efforts in litigating the fee petition and trying to

collect the underlying judgments (including the accrued interest).

We address these claims of error sequentially.

First, we sketch the legal landscape. Congress authored

the Fees Act as a means of encouraging persons to seek redress for

civil rights violations through judicial avenues. Hensley v.

Eckerhart, 461 U.S. 424, 429 (1983); Coutin, 124 F.3d at 337.

Under that statute, a prevailing party in a civil rights suit is

entitled to reasonable attorneys' fees "unless special

circumstances would render such an award unjust." Hensley, 461

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U.S. at 429 (quoting S. Rep. No. 94-1011, at 4 (1976), reprinted in

1976 U.S.C.C.A.N. 5908, 5912).

A reasonable fee typically is determined through the

lodestar method, which involves multiplying the number of hours

productively spent by a reasonable hourly rate to calculate a base

figure. Hensley, 461 U.S. at 433; Coutin, 124 F.3d at 337. In

fashioning the lodestar, a district court may adjust the hours

claimed to eliminate time that was unreasonably, unnecessarily, or

inefficiently devoted to the case. Hensley, 461 U.S. at 434.

Subject to principles of interconnectedness, see, e.g., Lipsett v.

Blanco, 975 F.2d 934, 940-41 (1st Cir. 1992), the court may

disallow time spent in litigating failed claims. It also may

adjust the lodestar itself, upwards or downwards, based on any of

several different factors, including the results obtained and the

time and labor actually required for the efficacious handling of

the matter. See Hensley, 461 U.S. at 430 n.3, 434 n.9; Coutin, 124

F.3d at 337.

Reasonableness in this context is largely a matter of

informed judgment. There are, however, guideposts in the case law.

For instance, a district court may deem an expenditure of time

unreasonable if the reported hours are "excessive, redundant, or

otherwise unnecessary." Hensley, 461 U.S. at 434; see, e.g.,

United States v. Metro. Dist. Comm'n, 847 F.2d 12, 18-19 (1st Cir.

1988); Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 952-55 (1st

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Cir. 1984). By like token, it may discount or disallow the total

hours claimed if it determines that the time is insufficiently

documented. Hensley, 461 U.S. at 433; see Grendel's Den, 749 F.2d

at 952.

Of particular pertinence for present purposes, time

records may be too generic and, thus, insufficient as a practical

matter to permit a court to answer questions about excessiveness,

redundancy, and the like. In that event, the court may either

discount or disallow those hours. See, e.g., Tenn. Gas Pipeline

Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir. 1994); see

also Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 297

(1st Cir. 2001) (warning that failure to keep time records "in

reasonable detail" is apt to "have deleterious consequences").

After determining the time reasonably expended by the

prevailing party's legal team, the court must focus on the rates to

be applied to those hours. See, e.g., Grendel's Den, 749 F.2d at

955. We eschew any more precise description of that process, as

this appeal does not involve any rate-based challenge to the

district court's computations.

When the district court arrives at the lodestar and

completes its consideration of possible adjustments, it ought to

provide a "concise but clear" explanation of its calculation of the

resultant fee award. Hensley, 461 U.S. at 437. Alternatively, a

reviewing court sometimes may be able to infer the district court's

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reasoning from the record as a whole. Cf. United States v. Arango,

508 F.3d 34, 48 (1st Cir. 2007) (inferring trial court's reasoning

from the record in criminal sentencing context). We emphasize,

however, that the district court's explanation is valuable, and the

requirement ought not to be sidestepped routinely.

Where the plaintiffs have prevailed over more than one

defendant, the court must take an additional step: it must

determine whether the fee award should run jointly and severally

against the defendants or, if not, what portion of the award each

defendant should bear. See Grendel's Den, 749 F.2d at 959. In

cases in which apportionment is the preferred option, there is no

uniform prescription as to how to effect that result. Rather, a

district court in a multi-defendant case must choose among a

variety of modalities. These modalities include equal division

among the defendants, division by relative liability, and division

by assignment of the time reasonably expended in litigating against

each defendant. Id. at 959-60. The appropriate choice among these

modalities depends on the contours and idiosyncracies of the

particular case. Id. at 960. The guiding principle is equity; the

district court should strive to determine "the most fair and

sensible solution" for apportioning the fee award. Id.

Allocation of fees by time expended is the default

modality in certain circumstances: that method is ordinarily the

most appropriate when, in a multi-defendant case in which joint and

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several responsibility has been deemed inappropriate, the relative

time dedicated to litigating with one defendant is clearly

disproportionate to the time required to litigate with another

defendant.

Our decision in Grendel's Den illustrates this point.

There, the district court considered only that both defendants had

"participate[d] to some degree at every stage of the litigation"

and apportioned the awarded fees equally between them. Id. On

appeal, we modified that order because one defendant had mounted

three times the opposition as had the other defendant. Id.

(holding that equity required that seventy-five percent of the fee

award be allocated against the former defendant).

Other federal appellate courts have enunciated similar

tenets and concluded that, when the defensive efforts mustered by

one defendant have been markedly more robust than the defensive

efforts mustered by another, the relative time spent litigating

against each of them is the appropriate methodology by which to

apportion an award of attorneys' fees. For example, the Ninth

Circuit has held that, under fairness principles, markedly unequal

efforts by each defendant require apportionment by the "time

expended" method. Corder v. Gates, 947 F.2d 374, 382-83 (9th Cir.

1991). In so holding, the court stated that "the party that is the

focus of the litigation should ordinarily bear the bulk of the

litigation's costs," especially when "the time expended by the

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plaintiff in pursuing each defendant [is] grossly unequal." Id.

(emphasis in original). Other cases reflect similar reasoning.

See, e.g., Nash v. Chandler, 848 F.2d 567, 574 (5th Cir. 1988)

(deeming time expended the most equitable method of apportionment

as to one defendant who, unlike other defendants, was not a

principal in the litigation); Se. Legal Def. Group v. Adams, 657

F.2d 1118, 1126 (9th Cir. 1981) (upholding apportionment by time

expended because three-quarters of the plaintiff's efforts were

directed toward one defendant alone).

A. The Apportionment of Fees.

Against this background, we return to the case at hand.

The district court decided that the responsibility for fees should

not run jointly and severally, and that apportionment was in order;

no one disputes either of these eminently reasonable decisions.

The court proceeded to use the "relative liability" method as a

means of effectuating that apportionment, comparing the damages

assessed against each defendant to apportion the awarded attorneys'

fees. See Torres-Rivera II, 2007 WL 906176, at *3. Because the

total damages assessed against Espada were sixty-five percent of

the aggregate damages awarded, the court apportioned responsibility

for payment of the fees sixty-five percent to Espada and thirty-

five percent to O'Neill.2 The court based this division on the

2
We note in passing that Santiago's claim against Espada was
successful but his claim against O'Neill was not. Thus, there may
be a question as to whether — and for what purposes — Santiago

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following arithmetic: it divided each of the portions of the

damages awarded against Espada and O'Neill ($220,000 and $120,000,

respectively) by the total damages award ($340,000). This

calculation resulted in sixty-five percent responsibility for

Espada and thirty-five percent for O'Neill.

The issue here is the district court's selection of a

"relative liability" method of apportionment. The plaintiffs take

umbrage at that choice. They asseverate that since O'Neill was the

only defendant to mount a defense — and a ferocious one at that —

their lawyers spent virtually all of their time litigating against

him. Conversely, very little time was spent litigating against

Espada. On this basis, they posit that O'Neill should be held

responsible for the lion's share of the awarded fees.

O'Neill disagrees with this construct. He emphasizes the

broad discretion vested in the district court and argues that a

"relative liability" apportionment of the fee award falls within

the encincture of that discretion.

This is a case in which the considerable time spent by

the plaintiffs in litigating against O'Neill dwarfs the rather

modest amount of time spent in litigating against Espada. O'Neill,

as was his right, mounted a Stalingrad-type defense, employing four

lawyers and battling the plaintiffs at every turn. By contrast,

should be deemed a prevailing party. But because O'Neill has not
raised this issue on appeal, we do not probe the point more deeply.

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Espada never answered the complaint but, rather, defaulted while

the litigation was in an embryonic stage. The time, effort, and

energy involved in litigating against O'Neill — a take-no-prisoners

opponent — scarcely can be compared to the time, effort, and energy

involved in securing a default and proving damages against a non-

appearing party.

Of course, Espada's actions were front and center. The

claims against O'Neill were based on multiple theories of failure

to intervene to prevent Espada's unlawful behavior. The first of

these required the plaintiffs to show that Espada used excessive

force; that O'Neill observed what was transpiring; and that he took

no action to prevent the ongoing mayhem. See Torres-Rivera I, 406

F.3d at 51-52. The second theory required the plaintiffs to show

that O'Neill assisted Espada in placing one or both of the victims

in harm's way. See id. at 52.

So viewed, developing the claims against O'Neill depended

in part on developing the basis for a case against Espada. But

given the entry of default, the plaintiffs would not have had to

make the case against Espada except for O'Neill's decision to

resist the claims against him. See Goldman, Antonetti, Ferraiuoli,

Axtmayer & Hertell v. Medfit Int'l, Inc., 982 F.2d 686, 693 (1st

Cir. 1993) ("[A]n entry of a default against a defendant

establishes the defendant's liability.").

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 The rule that we glean from the case law runs along the

following lines. Where apportionment is indicated, the choice

among available options generally lies within the district court's

sound discretion. See Grendel's Den, 749 F.2d at 960. But when

the time required to litigate against one defendant is grossly

disproportionate to the time required to litigate against another

defendant and the two defendants are not in privity, then the time

expended method of apportionment should be used. See, e.g.,

Corder, 947 F.2d at 383.

This is a case of the latter stripe: because Espada

defaulted, the plaintiffs had no need to spend significant time

either in preparing a case against him or in presenting that case

to the jury.3 Thus, it was O'Neill, as the lone defendant actually

contesting the plaintiffs' proof, who caused the plaintiffs to

incur the bulk of the time expended. The short of it, then, is

that the amount of time spent in mounting the case against O'Neill

was grossly disproportionate to the amount of time spent in

litigating against Espada.

3
To be sure, the plaintiffs had to prove damages against
Espada. See Fed. R. Civ. P. 55(b)(2); In re Home Rests., Inc., 285
F.3d 111, 114 (1st Cir. 2002) ("A hearing may be required . . . to
set damages [in a default judgment scenario] when the amount is in
dispute or is not ascertainable from the pleadings."). But the
"time expended" method will take full account of any work involved
in that endeavor. To the extent that the time overlaps with the
time spent in proving damages against O'Neill, it is, of course,
subject to equitable allocation. That is a matter that the
district court may consider on remand.

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 We have carefully perused the record, the district

court's explanation of the fee award, and the court's comments on

the choice of a "relative liability" method of apportionment. See

Torres Rivera II, 2007 WL 906176, at *3. It is clear from that

perusal that the district court did not appropriately weigh the

disparity in time expended, nor did it offer any adequate

justification for veering off in the direction of "relative

liability." Fairness and equity dictate that, given this

inequality and the apparent absence of any offsetting

circumstances, the court should as a matter of law have used the

"time expended" method of apportionment and calculated the

approximate time spent in litigating against each defendant. See

Grendel's Den, 749 F.2d at 960 (explaining that a court undertaking

to fashion a fee award should "make every effort to achieve the

most fair and sensible solution that is possible"). The fee award,

therefore, cannot stand.

B. The Global Reduction.

Even though vacation of the fee award is in order, see

supra Part II (A), we are mindful that the plaintiffs have

contested the global reduction essayed by the district court in

calculating the lodestar. When reallocating the responsibility for

payment of the award, the district court will once again have to

begin with its extant lodestar computation (which includes the

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fifteen percent global reduction). Thus, it behooves us to resolve

this contretemps here and now.

The lower court explained that many of the time entries

logged by the plaintiffs' attorneys failed adequately to describe

the tasks for which the time was expended. Torres-Rivera II, 2007

WL 906176, at *1. This impeded the court's ability to evaluate the

utility of those hours. Id. at *2. To compensate, the court

treated the offending entries as block billing and reduced the fee

request by fifteen percent. Id. at *1-2. The plaintiffs challenge

this global reduction.

This assignment of error engenders abuse of discretion

review. See, e.g., Gay Officers, 247 F.3d at 292-93. Attorneys'

time records, submitted in support of fee requests, often contain

questionable entries, and the district court's discretion in

separating wheat from chaff is quite broad. See id. at 295-96;

Lipsett, 975 F.2d at 937. Nothing in the record conduces to the

view that the district court abused its discretion in effecting the

global reduction at issue here.

The judge had managed the case for several years and had

presided over the trial. She was intimately familiar with the

nuances of the litigation. She canvassed the time records and

provided a plausible rationale for her binary decision to discount

generic time entries and to shrink the overall award. No more was

exigible.

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 The prevailing party has the burden of proving the

reasonableness of the hours claimed. See Hensley, 461 U.S. at 433.

Where that party furnishes time records that are ill-suited for

evaluative purposes, the court is hampered in ascertaining whether

those hours were excessive, redundant, or spent on irrelevant

issues. See Tenn. Gas Pipeline, 32 F.3d at 634. In such a

circumstance, the court may adjust those entries to achieve an

equitable result. See id.; Grendel's Den, 749 F.2d at 951-52.

To be sure, the district court's discretion in this

regard is not unbounded. Here, however, the court's description of

the entries as "generic" appears apt. Moreover, the court sensibly

explained what it was doing and why it felt impelled to make the

adjustment. Our case law has acknowledged that in the fee-shifting

milieu reasonableness is not an absolute but a range. See, e.g.,

Metro. Dist. Comm'n, 847 F.2d at 17. On this record, the decision

to make the fifteen percent global reduction plainly falls within

the range of reasonableness.

C. The Supplemental Motion.

The district court denied without explanation the

plaintiffs' supplemental motion for additional attorneys' fees.

The plaintiffs' last challenge implicates this ruling.

A prevailing party in a civil rights action normally is

entitled to attorneys' fees incurred in the pursuit of fees under

section 1988. See, e.g., Brewster v. Dukakis, 3 F.3d 488, 494 (1st

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Cir. 1993); Bond v. Stanton, 630 F.2d 1231, 1235 (7th Cir. 1980)

(collecting cases). In awarding such fees, the reasonableness

requirement applies without diminution. See Lund v. Affleck, 587

F.2d 75, 77 (1st Cir. 1978). Because litigating a fee petition is

typically an uncomplicated exercise, fees for such work are often

calculated at lower rates than those deemed reasonable for the main

litigation. See, e.g., Brewster, 3 F.3d at 494; Gabriele v.

Southworth, 712 F.2d 1505, 1507 (1st Cir. 1983). Prevailing

parties in civil rights cases also may recover reasonable

attorneys' fees incurred in successfully litigating a variety of

post-judgment motions. See, e.g., Webb v. Ada County, 285 F.3d

829, 835 (9th Cir. 2002) (awarding fees for litigation related to

enforcement of court-ordered relief); Weyant v. Okst, 198 F.3d 311,

316 (2d Cir. 1999) (explaining that reasonable attorneys' fees are

in order when a prevailing party takes action to realize upon, or

to defend, a favorable judgment).

These principles inform our treatment of this claim of

error. The original fee application was hotly contested, and

litigation over fees was required to perfect the plaintiffs' rights

under section 1988. By the same token, the underlying judgments

were not seasonably paid and collection efforts were at least

arguably necessary. Finally, the plaintiffs were entitled to post-

judgment interest up until the date that the damages judgments were

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paid. See 28 U.S.C. § 1961. Yet as of March 27, 2008, no accrued

interest had been tendered.

There is a presumption that the plaintiffs, as prevailing

parties, are entitled to recover reasonable attorneys' fees with

respect to these matters. See, e.g., Weyant, 198 F.3d at 316;

McDonald v. Sec'y of HHS, 884 F.2d 1468, 1480 (1st Cir. 1989).

While there may be reasons why the plaintiffs are not entitled to

recover further sums pursuant to the supplemental motion, none are

apparent from the face of the record and the district court's

opaque ruling sheds no light on that possibility. Without some

reasoning sufficient to explain why recovery is inappropriate,

there is no principled way in which we can uphold the outright

denial of the supplemental motion. Accordingly, that order must be

set aside and the matter remanded for reconsideration.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we vacate both the fee award and the order denying the plaintiffs'

supplemental motion. This case has been pending for several years.

Thus, we direct the district court, on remand, to give expeditious

consideration to this last vestige of the matter.

We vacate the orders appealed from and remand the case to

the district court for further proceedings consistent with this

opinion. In addition to the matters discussed above, the district

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court shall consider the plaintiffs' entitlement vel non to fees

incurred in connection with the aspects of this appeal as to which

the plaintiffs may be deemed prevailing parties and shall award a

reasonable fee for those services. See 1st Cir. R. 39.1(b).

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