Diffenderfer v. Gomez-Colon

United States Court of Appeals
For the First Circuit
Nos. 08-2139, 09-1742, 09-1743
SYLVIA DIFFENDERFER, on behalf of herself and as a representative
of the class herein defined; ROBERT MCCARROLL, on behalf of
himself and as a representative of the class herein defined,
Plaintiffs, Appellees/Cross-Appellants,
v.
RAMON E. GOMEZ-COLON, President of the State Electoral Commission
of Puerto Rico; WALTER VELEZ-RODRIGUEZ, Secretary of the State
Electoral Commission of the Commonwealth of Puerto Rico,
Defendants, Appellants,
GERARDO CRUZ-MALDONADO, Electoral Commissioner of Popular
Democratic Party; JUAN DALMAU-RODRIGUEZ, Electoral Commissioner
of the Puerto Rican Independence Party; NELSON ROSARIO-RODRIGUEZ,
Electoral Commissioner of the Puerto Ricans for Puerto Rico
Party; EDWIN MUNDO-RIOS, Electoral Commissioner of the New
Progressive Party; JOHN DOE,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, Chief Judge]
Before
Lynch, Chief Judge,
Torruella and Ripple*, Circuit Judges.
*
Of the Seventh Circuit, sitting by designation.
Noel S. González-Miranda with whom González Miranda & González
Abella PSC was on brief for appellants.
Eliezer Aldarondo Ortiz with whom Eliezer A. Aldarondo and
Aldarondo & López Bras were on brief for appellees-cross-
appellants.
November 19, 2009
LYNCH, Chief Judge. Two issues are presented in the
aftermath of a prior appeal in a civil rights case that has become
moot due to legislative action. The first is whether the
underlying injunctive order the plaintiffs obtained in the district
court should be vacated on remand, given the reason for mootness of
the appeal. The second is whether plaintiffs would, under these
circumstances, remain entitled to the award of attorney's fees in
the now moot case and, if so, whether the fees the district court
awarded were reasonable. We vacate the judgment and remand to the
district court with instructions to dismiss the action, and we
affirm the district court's award of attorney's fees.
Plaintiffs, a class of Puerto Rican residents who only
speak English, sued members of the State Electoral Commission of
Puerto Rico (Commission) under 42 U.S.C. § 1983, challenging the
Commission's decision to print ballots in the November 2008
elections solely in Spanish. The federal district court of Puerto
Rico found for the plaintiffs on the merits and granted them a
permanent injunction in August 2008, which compelled the Commission
to print bilingual ballots in the November 2008 election. The
district court later awarded plaintiffs attorney's fees under 42
U.S.C § 1988 in the sum of $67,550.34, less than the amount
requested of $122,988.75. Defendant Ramon Gomez-Colon, who was
President of the Commission at the time, appealed from both the
underlying judgment and the award of attorney's fees. Plaintiffs
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have cross-appealed from the diminution of their requested award,
and the appeals were consolidated.
While these cases were pending on appeal, Puerto Rico
passed legislation requiring the use of bilingual ballots in all
future elections, and the governor signed the legislation, which is
in effect. Both parties agree this has mooted the underlying
judgment.
I.
Plaintiffs and appellees, Sylvia Diffenderfer and Robert
McCarroll, are longtime Puerto Rico residents and registered voters
who speak and read only English. On August 19, 2008, plaintiffs
filed a putative class action suit under 42 U.S.C. § 1983 in the
federal district court of Puerto Rico. They sued the President of
the Commission and the four Commissioners in their individual and
official capacities, arguing that the Commission's administrative
decision to issue ballots for the November 2008 Puerto Rican
elections only in Spanish discriminated against and effectively
disenfranchised voters who only speak English.
On August 27, 2008, the district court granted plaintiffs
a permanent injunction directing the Commission to immediately
begin printing bilingual ballots for use in the November 2008
elections. In a written opinion issued September 2, 2008, the
district court held that this relief was warranted on the grounds
that the Commission's balloting policy violated the Voting Rights
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Act, the First Amendment, and the Equal Protection Clause of the
Fourteenth Amendment. See Diffenderfer v. Gomez-Colon, 587 F.
Supp. 2d 338 (D.P.R. 2008). On September 5, 2008, Ramon Gomez-
Colon, the President of the Commission, filed a notice of appeal.1
In the meantime, the Commission complied with the injunction and
used bilingual ballots in the November 2008 elections.
In April 2009, the district court awarded Diffenderfer
and McCarroll attorney's fees under 42 U.S.C. § 1988 because they
had prevailed before the district court on the merits of the § 1983
action. Based on the "lodestar" method, the district court awarded
a total of $67,550.34 in attorney's fees and litigation costs. The
plaintiffs had requested $122,988.75. This amount was reduced by
the court to account for duplicative and excessive hours and to
adjust for plaintiffs' practice of billing by the quarter-hour,
which the district court found had produced an inflated number of
billable hours. This fee was awarded only against Gomez-Colon in
his official capacity as the President of the Commission. See
Diffenderfer v. Gomez-Colon, 606 F. Supp. 2d 222, 225-30 (D.P.R.
2009) (initial order and judgment); 2009 WL 1140219 at *2 (D.P.R.
2009) (revised order and judgment).2 Gomez-Colon appealed this
1
Walter Velez-Rodriguez, who was Secretary of the
Commission at the time, was originally a co-appellant. His appeal
was voluntarily dismissed pursuant to Fed. R. App. P. 42(b) on
February 5, 2009.
2
The district court made an initial award of attorney's
fees on April 1, 2009 and issued an amended order and judgment on
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award on April 30, 2009, and Diffenderfer and McCarroll cross-
appealed on May 7, 2009.
While these appeals were pending before this court,
Puerto Rico enacted Law No. 90, which mandates that bilingual
ballots will be used in all future Puerto Rican elections. Both
parties agree that Law No. 90 mooted the appeal of the district
court's judgment on the merits.
The parties disagree, however, as to the proper
disposition of that appeal and the effect this would have upon the
appeal of the attorney's fees award. Diffenderfer and McCarroll
argue that we should leave the district court's judgment on the
merits intact because Gomez-Colon's voluntary actions in not
seeking a stay pending appeal had rendered the case moot even
before Puerto Rico passed Law No. 90. They further argue that they
are still entitled to attorney's fees for costs incurred in the
district court litigation, even if we were to vacate the district
court's judgment, because, inter alia, they obtained a favorable,
material alteration in the legal relationship between the parties
April 24, 2009. The first order awarded $65,992.00 in attorney's
fees against three of the four Commissioners, in addition to Gomez-
Colon. After this initial judgment issued on April 1, 2009,
Diffenderfer and McCarroll asked for reconsideration of the
calculations and for inclusion of litigation costs. In a revised
order on April 24, 2009, the district court accepted plaintiffs'
arguments in part and revised the attorney's fee figure upwards to
$67,550.34. It also imposed attorney's fees only upon Gomez-Colon
in his official capacity, since, as President of the Commission, he
was the only one able to represent the Commission as a whole.
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before the case became moot. Finally, they argue that the district
court abused its discretion in reducing plaintiffs' award of
attorney's fees because of plaintiffs' practice of billing in
quarter-hour increments and request that the award of attorney's
fees be adjusted upwards to $82,490. Their claim for attorney's
fees is limited to their work before the district court.
Gomez-Colon instead urges us to vacate the district
court's judgment on the grounds that vacatur is the general rule
when a case becomes moot on appeal through happenstance, for
instance due to intervening legislation like Law No. 90. Gomez-
Colon further argues that vacation of the underlying judgment would
necessarily require reversal of the district court's disposition of
attorney's fees. Plaintiffs, he asserts, cannot be considered
"prevailing parties" in the district court if the district court's
judgment is vacated, and the district court's award of attorney's
fees should therefore be reversed. He does not argue that
plaintiffs were not otherwise prevailing parties before the
district court or that the fees awarded were not reasonable.
Gomez-Colon also filed motions to substitute his
successor as the President of the Commission as the appellant and
to consolidate the appeals of the district court's judgment on the
merits and its award of attorney's fees. We granted the motion to
consolidate but reserved judgment on the question of substitution
of parties.
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II.
The first issue is the appropriate disposition of the
appeal of the district court's judgment on the merits of
plaintiffs' § 1983 action. Both parties contend, and we agree,
that Law No. 90 mooted that appeal. Under that statute, the
Commission must use bilingual ballots now that Puerto Rico has made
bilingual ballots mandatory. Because we can no longer issue any
judicial remedy capable of affecting the parties' rights, the case
no longer presents a live "case or controversy" under Article III,
and we lack jurisdiction to decide its merits. See City of Erie v.
Pap's A.M., 529 U.S. 277, 287 (2000); Horizon Bank & Trust Co. v.
Massachusetts, 391 F.3d 48, 53 (1st Cir. 2004). We hold that the
district court's judgment should be vacated because it was rendered
moot by an independent, intervening act of legislation.
As a general rule, federal courts of appeals vacate the
judgment below when a civil case becomes moot during the pendency
of an appeal. Arizonans for Official English v. Arizona, 520 U.S.
43, 71 (1997); see also Rusco Steel Co. v. Atkinson-Kiewit, J/V, 98
F.3d 1333 (1st Cir. 1996) (per curiam). Vacatur, an equitable
remedy, is ordinarily granted unless the losing party appealing the
judgment was responsible for making the case unreviewable, for
instance by failing to appeal or by entering into a settlement.
See U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 24-
25 (1994); Shelby v. Superformance Int'l, Inc., 435 F.3d 42, 46
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(1st Cir. 2008). In such cases, vacatur is inappropriate because
it was within that party's power to keep the controversy live and
the judgment is therefore unreviewable only by choice. Bancorp,
513 U.S. at 25. When the losing party's voluntary action causes
the case to become moot, a presumption against vacatur applies, and
vacatur is appropriate only when it would serve the public
interest. Id. at 25-28.
In contrast, "[v]acatur is in order when mootness occurs
through happenstance--circumstances not attributable to the
parties." Arizonans for Official English, 520 U.S. at 71.
Vacatur, unlike a reversal of the district court's judgment on the
merits, does not reflect upon the underlying merits of the parties'
claims, which the court no longer has jurisdiction to determine.
It is instead a remedy designed to prevent unfairness to the losing
party, who would otherwise have to continue complying with an
adverse judgment. Bancorp at 25; see also Kerkhof v. MCI WorldCom,
Inc., 282 F.3d 44, 53-54 (1st Cir. 2002) (explaining that "vacatur
is generally appropriate" when mootness results from intervening
events outside the losing party's control).
We hold that this action by the legislature is a
circumstance not attributable to the Commission as an individual
administrative entity. All circuits to address this issue have
held that such legislation is generally considered an intervening,
independent event and not voluntary action, particularly when the
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governmental entity taking the appeal, as here, is not part of the
legislative branch. See, e.g., Khodara Envtl., Inc. v. Beckman,
237 F.3d 186, 194-95 (3rd Cir. 2001); Valero Terrestrial Corp. v.
Paige, 211 F.3d 112, 121 (4th Cir. 2000); Nat'l Black Police Ass'n
v. Dist. Ct. of Columbia, 108 F.3d 346, 351-53 (D.C. Cir. 1997).
Diffenderfer and McCarroll essentially ask us to ignore
the fact that an intervening event mooted the case and deprived
this court of jurisdiction over the merits of the appeal. They
argue that we should instead wade into a separate, hotly contested
possible issue in the underlying case which has been rendered moot-
-the issue of whether the case would have been moot anyway.
Specifically, they claim that the case was rendered moot by the
passage of the November 2008 Puerto Rican elections and that Gomez-
Colon's failure to seek a stay of the district court's injunction
in September 2008 was a voluntary decision not to preserve the case
for appeal. We can find no basis for doing so. See, e.g., Bd. of
Educ. v. Nathan R., 199 F.3d 377, 381 (7th Cir. 2000) (declining to
address possibility of earlier mootness when subsequent,
intervening event made it impossible to grant any judicial remedy
that would affect the parties' rights and vacating judgment
below).3
3
This is not a case where the initial mootness arguably
occurred during proceedings before the district court and the later
mootness occurred while the case was on appeal, thereby raising
questions regarding the legal effect of ancillary judgments. Cf.
In re Scruggs, 392 F.3d 124, 128-30 (5th Cir. 2004) (evaluating
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We accordingly vacate the district court's judgment and
remand it with instructions to dismiss the action.
III.
We turn to Gomez-Colon's appeal and plaintiffs' cross-
appeal of the district court's award of attorney's fees.
A. Gomez-Colon's Appeal From the Attorney's Fees Award
We review a district court's award of attorney's fees
under § 1988 for an abuse of discretion, in deference to the
district court's superior ability to calibrate such awards to the
nuances of the case. See Gay Officers Action League v. Puerto
Rico, 247 F.3d 288, 292 (1st Cir. 2001).
It is true that a party's interest in recouping
attorney's fees does not create a stake in the outcome sufficient
to resuscitate an otherwise moot controversy. Lewis v. Cont'l Bank
Corp., 494 U.S. 472, 480 (1990). However, even when federal courts
lack jurisdiction to decide the merits of an appeal, "the
expiration of the underlying cause of action does not moot a
controversy over attorney's fees already incurred." In re Savage
Indus., Inc., 43 F.3d 714, 719 n.6 (1st Cir. 1994) (quoting
Anderson v. U.S. Dep't of Health and Human Servs., 3 F.3d 1383,
1385 (10th Cir. 1993) (internal quotation marks omitted)); see also
whether case was already moot prior to decisive intervening event
of mootness when date of mootness determined whether Bankruptcy
Court order remained in place or whether district court had
jurisdiction to reverse that order).
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United States v. Ford, 650 F.2d 1141, 1143-44 (9th Cir. 1981)
("[T]he question of attorney's fees is ancillary to the underlying
action and survives independently under the Court's equitable
jurisdiction.").
Under § 1988, when a plaintiff successfully pursues a
civil rights action under § 1983, "the court, in its discretion,
may allow the prevailing party . . . a reasonable attorney's fee as
part of the costs." 42 U.S.C. § 1988(b). Generally speaking, a
"prevailing party" is "one who has been awarded some relief by the
court," meaning a "judicially sanctioned change in the legal
relationship of the parties." Buckhannon Bd. and Care Home, Inc.
v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 603, 605
(2001); see also Aronov v. Napolitano, 562 F.3d 84, 89 (1st Cir.
2009) (en banc). A plaintiff who receives a favorable judgment on
the merits of a claim is the classic example of a "prevailing
party." See, e.g., Farrar v. Hobby, 506 U.S. 103, 111-12 (1992);
De Jesus Nazario v. Morris Rodriguez, 554 F.3d 196, 199-200 (1st
Cir. 2009).
Gomez-Colon's lone argument on appeal is that vacatur of
this judgment means that plaintiffs are no longer "prevailing
parties" at any stage of the litigation.4 Vacatur of a moot case
4
Gomez-Colon also asserts that under Local Rule 54(a),
plaintiffs prematurely filed their claim for attorney's fees before
the district court. He suggests that plaintiffs should have waited
to apply for fees until after the disposition of this appeal. But
Gomez-Colon never made this argument before the district court when
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means that the initial, favorable judgment plaintiffs obtained from
the district court is no longer binding law. This, Gomez-Colon
claims, makes it identical in effect to a reversal of the district
court's judgment on the merits. When a federal court of appeals
reverses a district court's judgment on the merits in a civil
rights case, it is well established that plaintiffs are no longer
"prevailing parties" entitled to attorney's fees for litigation
before the district court. See, e.g., Globe Newspaper Co. v.
Beacon Hill Architectural Comm'n, 100 F.3d 175, 195 (1st Cir.
1996); see also Greenville Women's Clinic v. Bryant, 222 F.3d 157,
175 (4th Cir. 2000); Clark v. Twp. of Falls, 890 F.2d 625, 626-27
(3d Cir. 1989). Gomez-Colon argues that the same rule should apply
to judgments vacated as moot.
We reject this argument, which misunderstands the
difference between reversal on the merits and vacatur of a moot
case. Reversal on the merits deprives a plaintiff of "prevailing
party" status because it repudiates the favorable change in the
parties' legal relationship effectuated by the district court's
judgment and holds that the plaintiff was never legally entitled to
such relief. In contrast, in the mootness context, a "prevailing
party" is a party who managed to obtain a favorable, material
alteration in the legal relationship between the parties prior to
it assessed attorney's fees, even though Gomez-Colon had, at that
time, already filed a notice of appeal of the underlying judgment.
We therefore consider this argument waived.
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the intervening act of mootness. See Buckhannon, 532 U.S. at 605;
see also Grano v. Barry, 783 F.2d 1104, 1108 (D.C. Cir. 1986).
Courts of appeals apply this test by looking only to what relief
the district court granted and not to whether the case was rightly
decided. See Ctr. for Biological Diversity v. Marina Point Dev.
Co., 566 F.3d 794, 805-06 (9th Cir. 2009) (collecting cases).
Thus, a plaintiff cannot be a "prevailing party" when his
lawsuit prompted a favorable legislative outcome but had produced
no judicial decision at the time the legislation mooted the case.
See Buckhannon, 532 U.S. at 605. Similarly, a party is not a
"prevailing party" at the appeals stage, entitled to attorney's
fees for the cost of appellate litigation, if the case becomes moot
pending appeal. See Lewis, 494 U.S. at 483. But the Supreme Court
has explicitly left open the question presented in this case,
observing that "[w]hether [a plaintiff] can be deemed a 'prevailing
party' in the District Court, even though its judgment was mooted
after being rendered but before the losing party could challenge
its validity on appeal, is a question of some difficulty." Id.We agree the question is difficult, but we must decide
it. Numerous circuits have held both before and after Lewis that
an award of fees is within the discretion of the district court.
We agree. When plaintiffs clearly succeeded in obtaining the
relief sought before the district court and an intervening event
rendered the case moot on appeal, plaintiffs are still "prevailing
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parties" for the purposes of attorney's fees for the district court
litigation. See, e.g., UFO Chuting of Haw., Inc. v. Smith, 508
F.3d 1189, 1197 & n.8 (9th Cir. 2007) (noting that when a party
successfully obtains an injunction before a district court prior to
an intervening act of mootness, that party remains the "prevailing
party," and that this conclusion is consistent with Lewis); Dahlem
v. Bd. of Educ., 901 F.2d 1508, 1512-13 (10th Cir. 1990) (listing
cases and holding that "[w]e are in accord with the courts which
have held that a party which achieves the objective of its suit by
means of an injunction issued by the district court is a prevailing
party in that court, notwithstanding the fact that the case becomes
moot . . . while the order is on appeal") (footnote omitted);
Palmer v. City of Chicago, 806 F.2d 1316, 1321 (7th Cir. 1986)
(assuming though not holding that plaintiffs are "prevailing
parties" "if after some relief has been obtained the case becomes
moot," unless the plaintiffs caused the mootness); Grano, 783 F.2d
at 1109 ("The mootness of the subsequent appeal of that holding
following the actual election and the passage of the initiative,
emphasizes, rather than detracts from, the practical substance of
their victory.").
We hold that Diffenderfer and McCarroll were "prevailing
parties" entitled to attorney's fees for the costs of the district
court litigation notwithstanding the subsequent mootness. They not
only obtained the injunctive relief they sought. They also
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obtained the desired practical outcome of their suit through the
operation of that injunction: the Commission in fact distributed
bilingual ballots in the November 2008 elections.5 Plaintiffs were
"prevailing parties" in this litigation at the district court
before Law No. 90 made the appeal moot.
We recognize that the defendant did not have the chance
to seek to reverse the court's injunction on appeal on the ground
that it was based on an error of law. In the end, this is a
question of what Congress would have intended under the
circumstances. Congress's overarching purposes in enacting § 1988,
the Supreme Court has held, were "to ensure 'effective access to
the judicial process' for persons with civil rights grievances,"
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting H.R. Rep.
No. 94-1558, at 1 (1976)), and to "encourag[e] the enforcement of
federal law through lawsuits filed by private persons," Missouri v.
Jenkins by Agyei, 491 U.S. 274, 283 n.6 (1989) (internal quotation
marks omitted). The award of attorney's fees serves this purpose
5
We reject Diffenderfer and McCarroll's alternate theory,
that they were prevailing parties under § 1988 because their
lawsuit formed the impetus for Law No. 90 and therefore provided
them with the real-world change their lawsuit was designed to
achieve. The Supreme Court squarely rejected this "catalyst
theory" of "prevailing party" status in Buckhannon. 532 U.S. at
605. Sole v. Wyner, 551 U.S. 74 (2007), did not alter that
conclusion; it was concerned with the question of whether a
preliminary injunction that was dissolved by a subsequent final
decision in the same case was enough to create "prevailing party"
status, and its "consistency" with the majority and dissenting
opinions in Buckhannon did not challenge the validity of the
majority's holding. Id. at 82 n.3.
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because it corrects a defect Congress identified in the market:
"[T]he private market for legal services failed to provide many
victims of civil rights violations with effective access to the
judicial process" because "[t]hese victims ordinarily cannot afford
to purchase legal services at the rates set out by the private
market" and because the amount of damages in most civil rights
suits is ordinarily too low to otherwise cover the cost of a
lawyer. City of Riverside v. Rivera, 477 U.S. 561, 576-77 (1986).
To hold that mootness of a case pending appeal inherently
deprives plaintiffs of their status as "prevailing parties" would
detract from § 1988's purposes. Such a rule could result in
disincentives for attorneys to bring civil rights actions when an
event outside the parties' control might moot the case after the
district court rendered a favorable judgment but before the
judgment could be affirmed on appeal. Cf. Jenkins by Agyei, 491
U.S. at 283 n.6 (interpreting § 1988 to include an adjustment for
a delay in payment to calculate fees because the potential hardship
involved in a contrary rule "could well deter otherwise willing
attorneys from accepting complex civil rights cases that might
offer great benefit to society at large" and "this result would
work to defeat Congress' purpose in enacting § 1988"). Our
solution is our best view of what Congress, in designing the civil
rights attorney's fees scheme, would intend.
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B. Diffenderfer and McCarroll's Cross-Appeal
On cross-appeal, Diffenderfer and McCarroll reiterate
their claim that the district court erroneously reduced their award
when it imposed an across-the-board fee reduction to account for
plaintiffs' practice of billing in quarter-hour increments.6 They
argue that this reduction was an abuse of discretion, because
billing by the quarter-hour is common practice in the Puerto Rican
legal community.
Because we review such claims for an abuse of discretion,
we generally do not disturb a district court's calculation of an
award. See Gay Officers Action League, 247 F.3d at 292-93. This
case is no different. Plaintiffs misconstrue the district court's
reasoning: the reduction was not imposed because the district court
found billing in quarter-hour increments per se unreasonable, but
because it found that plaintiffs had billed fifty or more menial
items in quarter-hour increments when the actual task would have
taken a negligible amount of time. See Diffenderfer, 606 F.Supp.2d
at 229. The district court explained that it imposed this
reduction pursuant to its duty to ensure that the ultimate fee was
reasonable. Its conclusions on this and other reductions were well
within the boundaries of existing precedents, and we find no abuse
of discretion.
6
Plaintiffs do not appeal the district court's across-the-
board reduction for excessive and duplicative billing practices.
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IV.
Finally, we turn to Gomez-Colon's motion for substitution
of parties. Gomez-Colon is no longer President of the Commission
and seeks to substitute Hector J. Conty-Perez, the new President,
as appellant. Substitution is automatic where, as here, the
district court imposed fees against Gomez-Colon only in his
official capacity. See Fed. R. App. P. 43(c)(2); Fed. R. Civ. P.
25(d).
Appellant Gomez-Colon's motion to substitute parties is
hereby granted. The district court's judgment in Diffenderfer v.
Gomez-Colon, 587 F. Supp. 2d 338 (D.P.R. 2008), is vacated, and we
remand to the district court with instructions to dismiss the
action. We affirm the district court's award of attorney's fees in
the district court. No costs are awarded on these appeals.
So ordered.
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