Casa Marie Hogar Geriatrico, Inc. v. Rivera-Santos

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 94-1408

            CASA MARIE HOGAR GERIATRICO, INC., ET AL.,

                     Plaintiffs, Appellants,

                                v.

                  ESTHER RIVERA-SANTOS, ET AL.,

                      Defendants, Appellees.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Jose Antonio Fuste, U.S. District Judge]
                                                                 

                                             

                              Before

                      Selya, Circuit Judge,
                                                    

                 Campbell, Senior Circuit Judge,
                                                         

                    and Stahl, Circuit Judge.
                                                      

                                             

     Charles S.  Hey-Maestre, with  whom Rick Nemcik-Cruz  was on
                                                                   
brief, for appellants.
     Ramon L. Walker Merino for appellees.
                                     

                                             

                         October 28, 1994

                                             

          SELYA, Circuit Judge.  In this appeal, Casa Marie Hogar
                    SELYA, Circuit Judge.
                                        

Geriatrico, Inc. (Casa Marie), a residential elder-care facility,

and its principals, Victor Pla, Damaris Rodriguez, Maria Pla, and

Francisco  Monrouzeau  (collectively,  appellants), calumnize  an

order assessing attorneys' fees against them under  the Fees Act,

42 U.S.C.   1988  (1988).  Because the district  court's findings

are not sufficiently complete  to justify a fee award,  we vacate

the order and remand for further proceedings.

I.  BACKGROUND
          I.  BACKGROUND

          The history  of this litigation has  been chronicled at

considerable   length  both  in   the  district  court's  initial

decision,  see Casa Marie, Inc.  v. Superior Court,  752 F. Supp.
                                                            

1152,  1154-60 (D.P.R. 1990) (Casa  Marie I), and  in our opinion
                                                     

vacating the  judgment entered pursuant thereto,  see Casa Marie,
                                                                           

Inc.  v. Superior  Court, 988  F.2d 252,  255-58 (1st  Cir. 1993)
                                  

(Casa Marie II).  Because there is scant benefit in repastinating
                        

well-spaded soil, we touch  only on such matters as  are directly

relevant to the instant appeal.

          Casa Marie's decision to locate its elder-care facility

within  the municipality of Arecibo, Puerto Rico, set in motion a

train of events that led to the present encounter.  Displeased by

Casa Marie's  intrusion into a residential  subdivision, Jardines

de Arecibo (JDA),  a group of neighbors filed  suit in the Puerto

Rico  Superior  Court  on April  18,  1988.    They alleged  that

operation  of the facility  violated municipal  zoning ordinances

and restrictive covenants applicable to the JDA subdivision.

                                2

          After  vigorous skirmishing,  not  relevant  here,  the

superior  court entered  judgment for  the neighbors  and ordered

Casa  Marie to  close its  doors.   When appellants  continued to

operate  in   defiance  of  the  ban,   the  neighbors  initiated

enforcement proceedings.  On October 9, 1990,  the superior court

issued  a  civil  contempt  citation,  ordering  the  arrest  and

imprisonment of Casa Marie's principals if  they failed to comply

with the original judgment within a stated time frame.

          At that point, appellants apparently concluded that the

best defense  was a good offense.   Joined by a  cadre of elderly

persons who resided  at the facility, appellants  brought a civil

action  in the United States  District Court for  the District of

Puerto  Rico  on October  19, 1990.    The plaintiffs  invoked 42

U.S.C.   1983 (1988) and the Fair Housing Act, 42 U.S.C.    3601-

3617 (1993) (FHA), alleging  that the neighbors and the  superior

court had acted in  concert to enforce the zoning  ordinances and

restrictive covenants selectively;  that these efforts were  born

of  a   discriminatory  animus;   and  that,  by   composing  and

orchestrating  this scheme,  the  named  defendants  transgressed

section 1983, the Equal Protection Clause, and the FHA.

          The   district   court   proved  hospitable   to   this

counteroffensive.   It determined that  the neighbors' use of the

local  court  system constituted  "state  action,"  and that  the

elderly  persons  residing   at  the  facility  had   established

violations of both section  1983 and the FHA.   Consequently, the

district court enjoined the neighbors from executing the superior

                                3

court  judgment.   See Casa  Marie  I, 752  F. Supp.  at 1165-69.
                                               

However,  the  court's hospitality  extended  only  to the  aged;

remarking appellants' participation in the earlier superior court

action  and citing  res judicata  principles, the  district court
                                          

dismissed  their  federal claims  but kept  them  in the  case as

"necessary parties  for the disposition of  th[e] separate action

by the elders."  Id. at 1161.
                              

          On appeal, a  panel of this court vacated  the district

court's judgment on two  grounds.  First, the panel  discerned no

state action sufficient to undergird the section 1983 claim.  See
                                                                           

Casa Marie  II, 988 F.2d at 258-60.  Second, the panel ruled that
                        

federal  law,  including  abstention  doctrines  and  the   Anti-

Injunction Act, 28 U.S.C.   2283 (1988), barred injunctive relief

under  the FHA.  See  Casa Marie II, 988 F.2d  at 260-70.  In the
                                             

last  sentence of  the opinion,  the panel stated  that "[d]ouble

costs are  awarded against Casa  Marie and  its owners."   Id. at
                                                                        

270.

          In due course, the neighbors, having  prevailed, sought

upward of $25,000 in counsel fees against appellants (though  not

against  the  other  plaintiffs).   On  February  25,  1994,  the

district  court granted  the neighbors'  application in  part and

awarded fees in the  amount of $18,052.50.  The court  hinged its

order on the Fees Act, restricting the award to time spent on the

section 1983 claim  and disregarding  all time spent  on the  FHA

                                4

claim.  This appeal followed.1

II.  LEGAL PRINCIPLES AFFECTING REVIEW
          II.  LEGAL PRINCIPLES AFFECTING REVIEW

          It  is  firmly  settled  in  this  circuit  that,  when

shifting  fees, "the district  court is  expected to  explain its

actions."   Foster v. Mydas Assoc.,  Inc., 943 F.2d 139, 141 (1st
                                                   

Cir. 1991).  One cardinal  reason for this rule is  to facilitate

appellate review    a goal that is better achieved  when the nisi
                                                                           

prius  court  produces   a  suitable  set  of   findings  and  an
               

explication of why  it authored  the particular fee  award.   See
                                                                           

Peckham v. Continental Cas. Ins. Co., 895 F.2d 830, 842 (1st Cir.
                                              

1990).  Although such findings need not be  "infinitely precise,"

United States v. Metropolitan  Dist. Comm'n, 847 F.2d 12,  16 n.4
                                                     

(1st Cir. 1988), they must be reasonably complete  and offer at a

bare  minimum  a "clear  explanation  of  [the district  court's]

reasons for the fee  award," Hensley v. Eckerhart, 461  U.S. 424,
                                                           

437 (1983),  together with  some appropriate "method  and manner"

insight into how the  award was calculated, see Blum  v. Stenson,
                                                                          

465 U.S. 886, 888 (1984). 

          We  review fee-shifting orders for abuse of discretion.

See Foley  v. City of  Lowell, 948 F.2d  10, 18 (1st  Cir. 1991);
                                       

Metropolitan  Dist.  Comm'n, 847  F.2d at  14.   While this  is a
                                     

deferential  mode  of oversight,  the  standard  is not  entirely

toothless; the court of appeals will find an abuse of discretion,
                    
                              

     1Appellees  have not  cross-appealed the  denial of  fees in
connection with the  FHA claim.  Therefore, the  district court's
order has become final in that respect.

                                5

and  set  aside the  underlying  order, "when  a  material factor

deserving significant weight is  ignored, when an improper factor

is  relied upon, or  when all proper and  no improper factors are

assessed,  but  the court  makes  a serious  mistake  in weighing

them."  Foster, 943 F.2d at  143, quoting Independent Oil & Chem.
                                                                           

Workers of  Quincy, Inc. v.  Procter & Gamble Mfg.  Co., 864 F.2d
                                                                 

927, 929 (1st Cir. 1988).

III.  ANALYSIS
          III.  ANALYSIS

          Appellants advance two interrelated arguments in aid of

their contention  that the  lower  court stumbled.   First,  they

claim  that the trial judge  abused his discretion  by relying on

the appellate panel's imposition of double costs as a dispositive

factor  with respect  to whether  fees should  be awarded  in the
                                                                           

district court.  Second,  they asseverate that the facts  of this
                        

case  do not warrant a  fee award under 42 U.S.C.    1988 (or, at

the  least, that  the judge  failed to  find facts  sufficient to

underpin such an award).2

                                A
                                          A
                    
                              

     2In their brief, appellants also bemoan the district court's
ostensible failure  to  consider  their  financial  condition  in
imposing a  fee award.  Although  we have held that  "an award of
attorney's  fees to a prevailing defendant  must not be oblivious
of a  plaintiff's financial  capacity," Charves v.  Western Union
                                                                           
Tel.  Co.,  711  F.2d  462,  465  (1st  Cir.  1983),  appellants'
                   
importuning comes too late.  A party desirous of holding down the
size of a fee award by reason of limited resources has the burden
of  raising  the  point  in  a  timely  fashion  and   thereafter
establishing his financial condition.  See Gibbs v. Clements Food
                                                                           
Co., 949  F.2d 344, 345 (10th Cir. 1991).  In the district court,
             
appellants disregarded these requirements.  Since it is our usual
policy to  eschew consideration  of points not  seasonably raised
below, see, e.g., Clauson  v. Smith, 823 F.2d 660,  666 (1st Cir.
                                             
1987), we deem appellants to have waived the argument.

                                6

          In  civil  rights cases,  fee-shifting  in  favor of  a

prevailing plaintiff  is the rule, whereas  fee-shifting in favor

of  a  prevailing defendant  is the  exception.   Thus,  though a

prevailing plaintiff is presumptively entitled to fee-shifting in

such a  case, see, e.g., Hensley,  461 U.S. at 429,  a prevailing
                                          

defendant  is entitled  to  similar  largesse  only  if  she  can

establish  that  the  plaintiffs'  suit  was  totally  unfounded,

frivolous,  or otherwise  unreasonable, see  Hughes v.  Rowe, 449
                                                                      

U.S. 5, 14 (1980);  Christiansburg Garment Co. v. EEOC,  434 U.S.
                                                                

412, 421  (1978); Foster,  943 F.2d at  145-46.  The  court below
                                  

accurately rehearsed this standard in its  unpublished memorandum

order.   But  the court  compressed into  a single  paragraph its

discussion  of whether  appellants'  section 1983  claim sank  to

these depths.  The court wrote:

          In light of [Christiansburg and its progeny],
                                               
          no  relief  is  available  to  the defendants
          unless  we find  that plaintiffs'  action was
          frivolous.    Defendants'  attorneys  suggest
          that the imposition  of double  costs on  the
          owners  of  Casa  Marie   on  appeal  is   an
          indication  of  the meritlessness  of [their]
          action.   Although the  Court of  Appeals did
          not explain its reasoning, we assume that the
          imposition  of the  sanction of  double costs
          reflects a finding that the case lacked merit
          as to these particular plaintiffs.   See also
                                                                 
          Eastway Constr.  Corp. v.  City of New  York,
                                                                
          762 F.2d 243, 252 (2d Cir. 1985).

After  writing this  paragraph,  the court  immediately  switched

gears and began discussing why fee-shifting was not warranted  in

connection  with the FHA claim.   Then, without  returning to the

section  1983  claim or  offering  additional  insights into  its

reasons  for pulling  the  trigger of  the  Fees Act,  the  court

                                7

awarded  a sum  certain.  Thus,  when all  is said  and done, the

district court made  specific mention  of only one  factor    the

assessment of  double  costs  on  appeal    as  a  particularized

justification for its fee award.

          Appellants assail  the trial judge's  reliance on  this

solitary factor as a bellwether for shifting fees in the district
                                                                           

court.   They  advocate a bright-line  rule to the  effect that a
               

trial court may  not consider an appellate court's  imposition of

sanctions in determining frivolity for the purpose of a fee award

in  favor of a prevailing defendant under  42 U.S.C.   1988.  Any

such  consideration, they contend,  would contravene  the Supreme

Court's  mandate that a district court  considering a fee request

from a  prevailing defendant  should  "resist the  understandable

temptation to engage in post hoc reasoning."  Christiansburg, 434
                                                                      

U.S.  at 421-22.  The appellees also hawk a bright-line rule, but

they  propose  drawing  the  line  at  a  much  different  angle.

Specifically,  appellees would  have  us hold  that an  appellate

court's  imposition of double costs is tantamount to a finding of

frivolity, and that, therefore, it is always proper for the trial

court  to  rely  on  such  an  impost  as  a  factor in  awarding

attorneys' fees to a prevailing defendant.

          To be sure,  bright lines are  sometimes useful in  the

law.  But for all their seductive allure, they have a tendency in

certain situations  to blind courts and lawyers to the subtleties

inherent  in the problems to which they  are addressed.  So it is

here.   We are wary  of the glare in  this context and  refuse to

                                8

adopt   either  of   the  bright-line   rules  proposed   by  the

protagonists.

          In lieu of  a rigid  rule, we prefer  to recognize  the

relevant reality:   that the significance of an appellate court's

dispensation   of   double   costs   to   the   district  court's

determination  of frivolity  will vary  case by case.   Appellate

sanctions are  appropriately awarded when an appellant prosecutes

an  appeal "without  any realistic  hope  of prevailing."   Ochoa
                                                                           

Realty Corp.  v. Faria, 815  F.2d 812, 818  (1st Cir. 1987).   In
                                

some situations,  a determination  that an appeal  was foredoomed

may  bear  no  relationship  to   the  question  of  whether  the

underlying  action  was  frivolous  when commenced.3    In  other

situations,  however, a  determination that  an appeal  was taken

against all odds may bear directly upon, or  at least inform, the

district  court's judgment  as to  the frivolity  of the  suit ab
                                                                           

initio.4   To enable the  district court to  tell the difference,
                
                    
                              

     3Consider  the example  of a  tort action  hinging  upon the
credibility of witnesses and involving evaluative judgments about
the care (or lack of care) exhibited by the protagonists.  Though
such cases are  often fairly debatable  when brought (and,  thus,
not frivolous), they may be so factbound that an appeal of a jury
verdict  on liability might well be deemed frivolous.  See, e.g.,
                                                                          
Levesque  v. Anchor Motor Freight,  Inc., 832 F.2d  702 (1st Cir.
                                                  
1987); see  also La  Amiga del Pueblo,  Inc. v. Robles,  937 F.2d
                                                                
689, 692  (1st Cir.  1991) (holding  that an  appeal from  a jury
verdict  was frivolous  given  conflicting evidence  and lack  of
preserved  objections,   although  the  trial   itself  may  have
presented fairly debatable questions).

     4Consider a  case in which the district court grants summary
judgment against a plaintiff and the appellate court, applying de
                                                                           
novo   review,  determines  that   the  plaintiff's   claims  are
              
frivolous.  Such  a case  may well have  been totally  groundless
when  brought, and  the appellate  court's conclusion  may inform
that determination, especially if neither the known facts nor the

                                9

the appellate court must furnish, or the record must adumbrate, a

reasoned explanation of why the sanction was levied.

          Assuming for argument's  sake that, as appellees  would

have it,  the panel in Casa  Marie II intended double  costs as a
                                               

sanction,5  this action,  without  further explication,  sheds no

light on the question  of whether appellants' section 1983  claim

was unfounded or frivolous when originally raised in the district

court.  Because the appellate panel  kept its own counsel and the

record does not  suggest an  obvious reason for  its action,6  it

follows  that  the district  court's  reliance  on the  appellate

sanction as a proxy for  a finding of frivolity was improper.   A
                                                                           

fortiori, such  reliance cannot comprise  an adequate  substitute
                  

                    
                              

law  changed materially  during the  pendency of  the litigation.
See, e.g., Raskiewicz  v. Town of  New Boston, 754  F.2d 38  (1st
                                                       
Cir.), cert. denied, 474 U.S. 845 (1985); see also Sierra Club v.
                                                                        
Secretary  of  Army,  820  F.2d   513,  518-20  (1st  Cir.  1987)
                             
(upholding district court award of fees under EAJA where district
court, on remand,  had relied  on a prior  appellate decision  in
making its determination that government's  original position was
                                                              
not substantially justified).

     5In their  attack on the district  court's order, appellants
assert that,  since the  panel  provided no  explanation for  the
impost, it is at least  arguable that double costs were merely  a
special  compensatory  assessment under  Fed.  R.  App. P.  39(a)
rather than a sanction.   We find this argument  to be ingenious,
but  not particularly persuasive.   In any event,  even if double
costs  were intended as a  sanction, the district  court's use of
the datum cannot stand.  See infra.
                                            

     6Indeed, Casa Marie and its principals remained  in the case
not of their own  volition, but because the district  court opted
to  retain  jurisdiction   over  them   after  dismissing   their
complaint.   See Casa Marie I, 752 F.  Supp. at 1161.  They filed
                                       
no notice of appeal, and to the extent they appeared at all, they
appeared  as  appellees,  not   appellants,  in  Casa  Marie  II.
                                                                          
Consistent  with this  circumscribed role,  they neither  filed a
brief nor presented oral argument in this court.

                                10

for the  concrete findings ordinarily demanded  as a prerequisite

to a fee-shifting order.  See Peckham, 895 F.2d at 842.
                                               

                                B
                                          B

          The  neighbors have one last string to their bow.  They

maintain  that, putting to one side its misplaced reliance on the

award of  double costs, the district court made enough additional

findings to prop  up a conclusion  that appellants' section  1983

claim  was frivolous when brought.  In this vein, appellees argue

that the  district court's  cryptic citation to  Eastway, coupled
                                                                  

with  its earlier  allusion to the  fact that  appellants' claims

originally  were dismissed on  res judicata  grounds,7 constitute
                                                     

"findings" sufficient to ground the fee award.

          We  do not  think  that the  district court's  rescript

permits so generous  a reading.   While the  court's citation  to

Eastway may perhaps hint that the  fee award was based in part on
                 

the  res  judicata bar  that  blocked  appellants' federal  court
                            

action  from the  start,8  any such  indication is  substantially

outweighed by  the fact that  the district court's  only explicit

reference to  res judicata  actually cuts against  the neighbors'
                                    
                    
                              

     7This is  by all  odds a  slender  reed.   The court  simply
wrote, in describing the  travel of the case, that  "[t]he owners
of  the facility were dismissed on res judicata grounds, but were
                                                         
retained as necessary parties."

     8In  Eastway,  the  Second  Circuit  reversed  the  district
                           
court's  denial of attorneys' fees to a prevailing defendant in a
civil  rights  action, finding  it "particularly  noteworthy that
[the plaintiff] had  already challenged the City's  policy in the
state  courts,  and  had  been unsuccessful,"  and  stating  that
"[t]hese  proceedings should  at  least have  put [plaintiff]  on
notice of  the possibility  that its adversary  might be  awarded
counsel fees."  762 F.2d at 252 (citation omitted).

                                11

hypothesis that the res judicata dismissal provided the basis for
                                          

the fee award.  We explain briefly.

          The district  court gave  two reasons for  its decision

not to bestow fees in connection with the FHA claim.   First, the

Court  concluded  that it  could not  classify  the FHA  claim as

frivolous  because "the  First Circuit  found that  [the district

court] should have abstained in favor  of the state proceedings,"

and, therefore,  made "no holding  on the  merits . .  . in  that

claim."  Second, the court noted that, because appellants' claims

in  federal court  were barred by  res judicata,  appellants were
                                                         

only retained in  the action  as necessary parties.   Relying  on

"these  reasons," the court denied counsel fees on the FHA claim.

Thus,  it appears that the  district court used  the res judicata
                                                                           

dismissal  of appellants' FHA  claim as  a justification  for not
                                                                           

awarding  attorneys' fees  on that  claim.9  Presumably,  what is

sauce for  the goose is also  sauce for the gander:   because the

district court  dismissed appellants'  section 1983 claim  on the

very same res judicata grounds, the record strongly suggests that
                                

the  court  could  not  have  believed  this  circumstance  as  a

justification  for   a  fee  award.10     We  can   only  assume,

therefore,  that  the  court   awarded  attorneys'  fees  to  the

                    
                              

     9We  take  no  view  of  the  correctness of  this  holding.
Rather, we  cite to  it in  an effort to  elucidate the  district
court's thinking.

     10This  logic seems especially  compelling when one realizes
that appellants' involuntary retention in the case was a sequelae
not  only of the  dismissal of their  FHA claim, but  also of the
dismissal of their section 1983 claim.

                                12

neighbors on the section  1983 claim for some other  reason, say,
                                                             

because the court of appeals awarded double costs.

          We need not beat this drum too long or too loudly.  The

crux of the matter  is not whether the district  court "could" or

"might" have intended to give weight to the circumstances leading

to the  res judicata dismissal  of the section 1983  claim.  What
                              

counts is that the record is fuliginous on this point.  Appellate

review of a fee award must comprise more than a shot in the dark.

When,  as now,  the  district court's  fee-shifting order  leaves

critical questions unanswered, the order cannot stand.

                                C
                                          C

          Although the  district court's fee-shifting  order must

be vacated, the course  of future proceedings is open  to debate.

Appellants invite us  to decide  here and now  that no  plausible

rendition  of the record will  sustain a fee-shifting  order.  We

decline the invitation.   Once we  discount the district  court's

improper reliance on  the earlier imposition of double  costs, we

are left  to guess about the district court's thinking.  Here, as

in Foster, plunging  ahead would be  tantamount to "usurping  the
                   

district court's  function, [and]  depriving  ourselves, and  the

parties, of the insights of the judicial officer  most intimately

familiar with the  case and its  nuances."   Foster, 943 F.2d  at
                                                             

144.  We will not participate in such a speculative exercise.  

          For these  reasons, we conclude that the course of both

fairness and prudence is to remand  for further consideration of,

and findings  appertaining to,  the application for  an award  of

                                13

fees in  respect  to the  section  1983 claim.    We intimate  no

opinion as to appellees' entitlement vel non to such fees.
                                                      

          Vacated and  remanded.    No fees  or  costs  shall  be
                    Vacated and  remanded.    No fees  or  costs  shall  be
                                                                           

awarded to  any party, under 42  U.S.C.   1988 or  otherwise, for
          awarded to  any party, under 42  U.S.C.   1988 or  otherwise, for
                                                                           

work in connection with this appeal.
          work in connection with this appeal.
                                             

                                14