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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Torres-Rivera v. O'Neill-Cancel
Court: Court of Appeals for the First Circuit
Date filed: 2008-04-30
Citations: 524 F.3d 331
Copy Citations