Diaz-Rivera v. Rivera-Rodriguez

          United States Court of Appeals
                       For the First Circuit

Nos. 03-1565
     03-1832
     03-1833

                     SERGIO DÍAZ-RIVERA, ET AL.,
               Plaintiffs-Appellants/Cross-Appellees,

                 ELIUD MORALES-CANDELARIA, ET AL.,
                            Plaintiffs,

                                 v.

                 JOSÉ A. RIVERA-RODRÍGUEZ, ET AL.,
               Defendants-Appellees/Cross-Appellants,

                   QUINTILIO COLÓN-DÍAZ, ET AL.,
                            Defendants.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Gustavo A. Gelpí, U.S. Magistrate Judge]


                              Before

                    Torruella, Selya and Lipez,
                          Circuit Judges.


     Claudio Aliff-Ortiz, with whom Aldarondo & López Bras was on
brief, for plaintiffs-appellants/cross-appellees.
     Ismael Rodríguez-Izquierdo, with whom Consuelo Sifre-García,
and Sánchez Betances & Sifre, P.S.C., were on brief, for
defendants-appellees/cross-appellants.



                          August 3, 2004
            TORRUELLA, Circuit Judge.              Plaintiffs-appellants Díaz-

Rivera,    et    al.   ("plaintiffs"),       all    former   employees   of     the

Municipality of Gurabo, Puerto Rico ("Gurabo"), appeal the district

court's judgment in favor of defendants-appellees Rivera-Rodríguez,

et al. ("defendants"), arguing that the district court erred in

refusing to admit evidence in support of a failure to rehire claim.

Defendants      cross-appeal    from    the    district      court's   award     of

attorney's fees to plaintiffs.1          After careful review, we affirm

both the judgment and the attorney's fees award.

                                I. Background

            Prior to the events at issue in these appeals, plaintiffs

were employees of Gurabo, holding irregular appointments for fixed

periods.        During the course of their employment, plaintiffs'

contracts had generally been renewed by Gurabo on a continual and

uninterrupted basis.        All were affiliated with the New Progressive

Party   ("NPP").       On   January    19,    2001,    following   a   change    of

administration brought about by the Popular Democratic Party's

("PDP") victory in the November 7, 2000, general elections, Gurabo

terminated plaintiffs' contracts, which would have expired on

June 30, 2001, without a prior hearing.               Defendants explained the

terminations as a product of budgetary and fiscal considerations.




1
   Plaintiffs also appealed the award of attorney's fees but have
subsequently requested that the appeal be voluntarily dismissed.

                                       -2-
Plaintiffs        allege     that        the   terminations      were     motivated     by

discriminatory animus on account of their political affiliation.

          Following plaintiffs' terminations, new positions became

available at Gurabo financed with funds available due to the

approval, on February 14, 2001, of a proposal submitted by Gurabo

under 29 P.R. Laws Ann. § 711c ("Law 52"), "a vehicle through which

the   Commonwealth          subsidize[s]             locally   managed    programs      to

ameliorate unemployment." Gómez v. Rivera Rodríguez, 344 F.3d 103,

107 (1st Cir. 2003).2             None of plaintiffs was hired to the Law 52

positions.

             On    April     2,     2001,      plaintiffs      filed    this     political

discrimination suit under 42 U.S.C. § 1983, alleging violations of

their First and Fourteenth Amendment rights.                           During pre-trial

proceedings,       on      June     6,     2002,      the   district     court     granted

plaintiffs' motion for partial summary judgment on the Fourteenth

Amendment due process claim, holding that plaintiffs' continued

expectation of employment until June 30, 2001 was terminated

without due process of law in violation of Cleveland Bd. of Educ.

v. Loudermill, 470 U.S. 532 (1985).

          On January 16, 2002, plaintiffs submitted a proposed pre-

trial order, which included the following:


2
   A detailed account of the Law 52 hirings can be found in Gómez,
344 F.3d at 107-08, which reviews district court proceedings in a
political discrimination suit brought by another set of plaintiffs,
previously employed by Gurabo on the basis of Law 52 funding, who
were terminated on January 30, 2001.

                                               -3-
          The Irregular Plaintiffs claim that the
          financial reason advanced on the Irregular
          Plaintiffs' termination letter is a mere
          pretext to conceal the true motive behind
          their dismissal; i.e., a political affiliation
          which is different from defendants' one.
          Defendants, however, played their politically
          discriminatory chips shrewdly, and did not
          hire    replacements    for   the    Irregular
          Plaintiffs; instead, the functions formerly
          performed by the Irregular Plaintiffs are now
          carry-out by newly hired employees affiliated
          to the P.D.P., who were hired on other
          employment   bases,  such   as   Law   52,  or
          transitory contract employments.

On November 21, 2002, the district court issued an order excluding

evidence of the Law 52 hirings.   On November 27, the district court

vacated the order and ruled to permit the introduction of the Law

52 hirings at trial, on the following basis:

          Upon further consideration and analysis, the
          Court has reconsidered its previous ruling,
          and shall permit the introduction of such
          evidence at trial.    The Court is convinced
          that plaintiffs are entitled to have a jury
          (or judge) determine at trial whether their
          layoffs were pretextual, as well as whether
          these were intended to subsequently hire
          individuals of different political affiliation
          (pursuant to Law 52) who sympathized with the
          new municipal administration.

Defendants moved for reconsideration, and during a hearing on

December 3, 2002, the court denied the motion, stating:

                 I heard arguments. My ruling is that I
          will allow this evidence as evidence of
          pretext.
                 Obviously it's not a second cause of
          action, and obviously, damages issues that go
          to the jury will go. But it's not a separate
          cause of action as to the failure to rehire.
          I am allowing it as evidence of pretext.

                                  -4-
During trial, the jury was instructed thus:

                  Now, this First Amendment claim which
           you have before you, this is not a case about
           failure to rehire. It's a case for dismissal
           based on political discrimination; however,
           you may consider evidence of failure to rehire
           as evidence of pretext or of no pretext for
           the dismissal.

                  You are to determine whether that
           failure to rehire was a pretext or not based
           on the overall evidence and the facts.     But
           this is not a case about failure to rehire.
           This is a case about whether the plaintiffs on
           January 19, 2001, were dismissed based on
           political discrimination.

On December 23, 2002, the jury returned a verdict in favor of

defendants on the First Amendment claim and awarded no compensatory

damages to plaintiffs as to their successful Fourteenth Amendment

claim. On January 8, 2003, the district court entered judgment for

defendants on the First Amendment claim and awarded nominal damages

in the amount of one dollar per plaintiff for the due process

violation.

             On March 14, 2003, the district court entered an order

awarding     plaintiffs   attorney's    fees   under   the   Civil   Rights

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

in connection with the due process claim.          The court reduced the

fees by 33% "since the plaintiffs obtained limited claims-based

success    and    relief."      Both     parties    filed    motions   for

reconsideration of the attorney's fees order.




                                  -5-
           While   the   attorney's      fees   motions   remained   pending,

plaintiffs filed a notice of appeal from the judgment, arguing that

the district court erroneously limited the scope and use at trial

of the evidence regarding defendants' failure to hire plaintiffs to

the Law 52 positions.      On April 30, 2003, the district court ruled

on plaintiffs' motion for reconsideration of the attorney's fees

award and increased the hourly rates, again "reduc[ing] the total

fee award by 33% since plaintiffs obtained limited claims based

success and relief."      Defendants appeal this order.

                               II. Analysis

A.   Evidence of Law 52 hirings

           We review the district court's evidentiary rulings for

abuse of discretion.      Cummings v. Standard Register Co., 265 F.3d

56, 62 (1st Cir. 2001)(citing Sheek v. Asia Badger, Inc., 235 F.3d

687, 695 (1st Cir. 2000)).

           Plaintiffs     argue   that    the   district   court     erred   in

admitting evidence regarding the Law 52 hirings only as evidence of

pretext, thus precluding its use to support an independent failure

to rehire cause of action.        Plaintiffs contend that evidence that

none of plaintiffs was hired to the Law 52 positions supports a

failure to rehire claim under Rutan v. Republican Party of Ill.,

497 U.S. 62 (1990).      While conceding that their original complaint

did not include and was never amended to include a failure to

rehire claim, plaintiffs assert that the failure to rehire cause of


                                    -6-
action was referred to in the pretrial memorandum of January 16,

2002, amended in November 2002, which was adopted by the trial

court in its pretrial order, and thus that evidence of the Law 52

hirings should have been allowed in support of a failure to rehire

cause of action.   Plaintiffs base this argument on the principle

that "[p]retrial statements are to be liberally construed to cover

any of the legal or factual theories that might be embraced by

their language."   Rodrigues v. Ripley Indus., Inc., 507 F.2d 782,

787 (1st Cir. 1974)(citing Wright & Miller, Federal Practice &

Procedure § 1527 at 609 & n. 47 (1971)).

          Defendants argue that their due process rights are in

jeopardy, as plaintiffs never amended the complaint and defendants

were therefore denied notice and were not provided an opportunity

to submit a responsive pleading regarding the failure to rehire

claim until days before trial. Although plaintiffs referred to the

Law 52 hirings in pretrial memoranda in relation to the question of

pretext, defendants contend that this did not amount to sufficient

notice of plaintiffs' intent to include a new cause of action and

instead appeared as an isolated statement in relation to the

pretext aspect of their discriminatory discharge claim, and thus

the district   court   did   not   abuse   its    discretion    in   allowing

evidence of the Law 52 hirings only as to pretext.             We agree.

          Plaintiffs   had    ample   time   to    move   to    amend   their

pleadings under Rule 15 to include a failure to rehire cause of


                                   -7-
action.     Fed. R. Civ. P. 15(a).           They chose not to do so.         They

contend that their reading of Rodrigues led them to believe that

such an amendment was unnecessary and yet they do not, and cannot,

provide any authority for the proposition that pretrial statements

can   routinely   be    used   to   augment     the   claims   pleaded   in    the

complaint.    In Rodrigues itself, this court affirmed the district

court's exclusion of evidence because "we cannot hold that the

district court abused its discretion in ruling that plaintiff's

murky pretrial statement did not in the circumstances fairly

apprise [the defendant] of the [new claim]."                Rodrigues, 507 F.2d

at 787.      The same is true here.             A "fleeting mention" of an

unpleaded    claim     in   pretrial    documents      is    "not   sufficiently

informative to satisfy the 'short and plain statement' requirement

of Rule 8(a)(2)." Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168,

1172 (1st Cir. 1995).          "At a bare minimum, even in this age of

notice pleading, a defendant must be afforded both adequate notice

of any claims asserted against him and a meaningful opportunity to

mount a defense."       Id.    We need not address defendants' arguments

calling into question the merits of plaintiffs' failure to rehire

claim, then, because we, yet again, "cannot hold that the district

court abused its discretion in ruling that the plaintiff's murky

pretrial statement did not in the circumstances fairly apprise

[defendants] of the [failure to rehire] claim."                 Rodrigues, 507

F.2d at 787.      The district court acted within its discretion in


                                       -8-
admitting evidence of the Law 52 hirings only as to the question of

pretext.

B.   Attorney's fees

           Attorney's fees awards are reviewed for manifest abuse of

discretion, and "a reviewing court customarily defers to the trial

judge, whose intimate knowledge of the nuances of the underlying

case uniquely positions him to construct a condign award."        Gay

Officers Action League v. Puerto Rico, 247 F.3d 288, 292 (1st Cir.

2001)(citations omitted).       "We therefore confine our review to

whether the district court has made a mistake of law or incorrectly

weighed (or failed to weigh) a factor in its decision." Richardson

v. Miller, 279 F.3d 1, 3 (1st Cir. 2002)(citation omitted).       In

sum, "[t]he trial court's discretion in respect to fee awards is

extremely broad."      Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.

1992).

           Defendants contend that plaintiffs are not entitled to

attorney's fees, despite the success of their due process claim, in

light of the subsequent judgment dismissing their First Amendment

claims and awarding only nominal damages for the due process

violation. Defendants argue alternatively that, even if plaintiffs

are entitled to attorney's fees, the district court abused its

discretion in awarding fees for attorney efforts beyond those




                                  -9-
involved in obtaining summary judgment as to the due process

claim.3

          Defendants are correct that a favorable judgment on the

due process claim does not lead inexorably to attorney's fees for

plaintiffs.   The Fees Act provides only that in specified civil

rights litigation "the court, in its discretion, may allow the

prevailing party, other than the United States, a reasonable

attorney's fee as part of the costs."       42 U.S.C. § 1988(b).

Nevertheless, "[a]lthough this fee-shifting provision is couched in

permissive terminology, awards in favor of prevailing civil rights

plaintiffs are virtually obligatory."   Gay Officers, 247 F.3d at

293 (citations omitted).    The first question, then, is whether

plaintiffs were properly deemed prevailing parties under the Fees

Act based on the success of their due process claim.

          It is indisputable that the failure of plaintiffs' First

Amendment claims does not preclude the award of attorney's fees for

the success of the due process claim.      The Supreme Court has

emphasized that "the plaintiff's success in relation to the other

goals of the lawsuit is a factor critical to the determination of

the size of a reasonable fee, not to eligibility for a fee award at

all." Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489

U.S. 782, 790 (1989)(emphasis added).      "Since the plaintiffs'



3
  Defendants do not dispute the hourly rates adopted by the trial
court.

                               -10-
effort [to vindicate their due process rights] constituted a

discrete claim within a larger case, our focus must not be on who

won more claims, but on how the parties fared with respect to the

[due process] claim."      Gay Officers, 247 F.3d at 294 (citations

omitted).     With respect to the due process claim, plaintiffs

unquestionably prevailed.        The district court's declaration that

Gurabo's    actions   violated   the   Constitution   benefits   both   the

plaintiffs and the public, and plaintiffs were thus prevailing

parties under § 1988, though awarded only nominal damages.         Id. at

295.   The Supreme Court has explicitly held that "a plaintiff who

wins nominal damages is a prevailing party under § 1988."          Farrar

v. Hobby, 506 U.S. 103, 112 (1992).        The district court did not err

in determining that Gurabo's violation of plaintiffs' due process

rights "settled a significant issue whose resolution benefitted the

plaintiffs and the public," Gay Officers, 247 F.3d at 295, nor in

identifying plaintiffs as prevailing parties on that basis.

            Nevertheless, defendants point to the Farrar Court's

suggestion that a plaintiff who seeks compensatory damages but

receives no more than nominal damages is often a prevailing party

who should receive no attorney's fees at all.         Farrar, 506 U.S. at

115 ("In a civil rights suit for damages . . . the awarding of

nominal damages . . . highlights the plaintiff's failure to prove

actual, compensable injury . . . .").           In Farrar, however, the

plaintiff achieved only a de minimis victory in relation to each of


                                    -11-
"the relevant indicia of success -- the extent of relief, the

significance of the legal issue on which the plaintiff prevailed,

and the public purposes served."                 Id. at 122 (O'Connor, J.,

concurring). Here, although plaintiffs' victory was de minimis as

to the extent of relief, the district court appropriately exercised

its discretion      to   award     fees,    as   the   determination   that   the

municipality violated plaintiffs' constitutional rights represented

a significant legal conclusion serving an important public purpose.

In such circumstances, the Supreme Court has explicitly "reject[ed]

the proposition that fee awards under § 1988 should necessarily be

proportionate to the amount of damages a civil rights plaintiff

actually recovers." City of Riverside v. Rivera, 477 U.S. 561, 574

(1986).

            Defendants argue in the alternative that the district

court abused its discretion in determining that a reasonable fee

award     could   include    the    total    hours     worked   by   plaintiffs'

attorneys, including their preparation for and participation in the

trial, reduced by one third to reflect the partial nature of

plaintiffs' success.        Defendants argue that an award of attorney's

fees for any efforts expended after the partial summary judgment in

favor of plaintiffs constitutes an abuse of discretion, since none

of these efforts bore fruit -- plaintiffs' First Amendment claims

failed and the jury awarded no compensatory damages in relation to

the due process violation.            Thus, defendants argue, plaintiffs


                                      -12-
cannot be deemed to have "prevailed" as to any claims pursued

beyond the pretrial summary judgment in their favor.              As noted

above, however, the district court's award of nominal damages after

trial does indeed alter the legal relationship between the parties

in such a way as to justify an award of attorney's fees.           Farrar,

506 U.S. at 574.

            A plaintiff may demand payment for nominal
            damages no less than he may demand payment for
            millions of dollars in compensatory damages.
            A judgment for damages in any amount, whether
            compensatory   or   nominal,    modifies   the
            defendant's behavior for the plaintiff's
            benefit by forcing the defendant to pay an
            amount of money he otherwise would not pay.

Id. at 574.      The Farrar Court thus concluded that "[o]nce 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 under Hensley v. Eckerhart, 461

U.S. 424 (1983)."    Id.    We thus turn to the question of whether the

attorney's fees awarded by the district court were reasonable in

light of the partial nature of the plaintiffs' success.

            In   Hensley,   the   Supreme   Court   emphasized   that   "the

district court has discretion in determining the amount of a fee

award.      This is appropriate in view of the district court's

superior understanding of the litigation and the desirability of

avoiding frequent appellate review of what essentially are factual

matters."    461 U.S. at 437.       This court has reiterated that the

district court "is vested with wide discretion and brings to bear

                                    -13-
an ability to weigh against the total background the significance

of any contributions and the appropriateness of any award of fees

and   costs."       United   States    v.     Comunidades   Unidas    Contra   la

Contaminación, 204 F.3d 275, 283 (1st Cir. 2000). When a plaintiff

is successful on some claims, but not others, we exhibit the same

"great deference" to the trial court's discretion in adjusting the

fees, "motivated by our conviction that 'the decision as to how to

separate the wheat from the chaff in a fees contest, within broad

limits,   is    a   matter   for   the      district   court's   discretion.'"

Lipsett, 975 F.2d at 941 (quoting United States v. Metropolitan

Dist. Comm'n, 847 F.2d 12, 17 (1st Cir. 1988)).

              As required by Hensley, 461 U.S. at 436-37, the district

court considered the relationship between the extent of success and

the amount of the fee award and decided that the partial nature of

plaintiffs' success was best reflected by calculating the fees for

the   total    of   the   attorneys'     efforts    through   trial    and   then

"reduc[ing] the total fee award by 33% since plaintiffs obtained

limited claims based success and relief."               The district court's

rationale for doing so is indicated by its citation to Andrade v.

Jamestown Hous. Auth., 82 F.3d 1179, 1191 (1st Cir. 1996), in which

this court summarized the Supreme Court's holding in Hensley:

              Hensley makes clear that where multiple claims
              are interrelated and a plaintiff has achieved
              only limited success, awarding her the entire
              lodestar amount would ordinarily be excessive.
              Hensley, therefore, counsels that, while
              "[t]here is no precise rule or formula for

                                       -14-
          making these determinations," a court "may
          attempt to identify specific hours that should
          be eliminated, or it may simply reduce the
          award to account for the limited success."

Id. at 1991 (quoting Hensley, 461 U.S. at 436).   The district court

viewed the attorneys' efforts to prove damages at trial as to the

successful due process claim and their efforts regarding the First

Amendment claims as interrelated, and it chose the second of the

options identified in Hensley for reducing the total award to

account for the plaintiffs' partial success, simply reducing the

total award rather than attempting to identify specific hours to be

eliminated.   The district court thus fulfilled its obligations to

"provide a concise but clear explanation of its reason for the fee

award" and to "make clear that it has considered the relationship

between the amount of the fee awarded and the results obtained."

Hensley, 461 U.S. at 437.   The district court found this to be a

case "[w]here it would be an 'exercise in futility' to separate out

the legal services rendered for each claim, [so] the fee should

simply be determined as a function of degree of success." Lipsett,

975 F.2d at 940-41 (quotations and citations omitted).      We have

confirmed elsewhere, following Supreme Court precedent, that "when

a civil rights suit consists of multiple claims, and when the

plaintiff prevails on some but not on others, the plaintiff is

entitled to fees for hours worked not only on the successful civil

rights claims, but also on other claims involving a 'common core of

facts' or 'related legal theories.'"    Aubin v. Fudala, 782 F.2d

                               -15-
287, 291 (1st Cir. 1986)(quoting Hensley, 461 U.S at 435).              Here,

defendants "have done little to carry their burden of showing that

hours which the district court found to be hopelessly blended were

in fact segregable," and the First Amendment claims involved "a

tightly wrapped core of common facts shared with the claims upon

which the plaintiff prevailed -– a circumstance that lends great

credibility to the district court's decision."              Lipsett, 975 F.2d

at 941.    Regardless of whether "we, if writing on a pristine page,

might have been more miserly, we are constrained in this instance

to defer to the trial court's determination that the requisite

linkage was forged."        Id. at 941.

                              III.    Conclusion

            For the reasons stated above, we affirm the district

court's decision to admit evidence of the Law 52 hirings only as

evidence    of   pretext.      We    also    affirm   the   district   court's

attorney's fees award.

            Affirmed.




                                      -16-