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.
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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.
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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
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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
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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
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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
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"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
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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
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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
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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
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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.
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