October 6, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-1625
DENNIS J. DOMEGAN,
Plaintiff, Appellee,
v.
JOSEPH PONTE, ET AL.,
Defendants, Appellants.
_____________________
No. 91-1753
DENNIS J. DOMEGAN,
Plaintiff, Appellee,
v.
JOSEPH PONTE, ET AL.,
Defendants, Appellants.
____________________
ERRATA SHEET
ERRATA SHEET
The opinion of this Court issued on August 10, 1992, is amended
as follows:
Page 50, footnote 38, line 1, should read: "Eighth Amendment"
instead of "Fifth Amendment"
August 10, 1992 ____________________
August 10, 1992 ____________________
No. 91-1625
No. 91-1625
DENNIS J. DOMEGAN,
DENNIS J. DOMEGAN,
Plaintiff, Appellee,
Plaintiff, Appellee,
v.
v.
JOSEPH PONTE, ET AL.,
JOSEPH PONTE, ET AL.,
Defendants, Appellants.
Defendants, Appellants.
_____________________
_____________________
No. 91-1753
No. 91-1753
DENNIS J. DOMEGAN,
DENNIS J. DOMEGAN,
Plaintiff, Appellee,
Plaintiff, Appellee,
v.
v.
JOSEPH PONTE, ET AL.,
JOSEPH PONTE, ET AL.,
Defendants, Appellants.
Defendants, Appellants.
____________________
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
[Hon. Rya W. Zobel, U.S. District Judge]
___________________
____________________
____________________
Before
Before
Campbell, Circuit Judge,
Campbell, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
Bownes, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
and Cyr, Circuit Judge.
_____________
____________________
____________________
Stephen G. Dietrick, Deputy General Counsel, with whom Nancy
Stephen G. Dietrick, Deputy General Counsel, with whom Nancy
____________________ _____
Ankers White, Special Assistant Attorney General, was on brief for
Ankers White, Special Assistant Attorney General, was on brief for
____________
appellants defendants.
appellants defendants.
Paul E. Nemser with whom Paula M. Bagger and Goodwin, Procter &
Paul E. Nemser with whom Paula M. Bagger and Goodwin, Procter &
______________ _______________ ___________________
Hoar were on brief for plaintiff appellee.
Hoar were on brief for plaintiff appellee.
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____________________
____________________
____________________
____________________
3
3
CYR, Circuit Judge. After former inmate Dennis J. Domegan won
CYR, Circuit Judge.
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a one dollar damage award in a civil rights action against
certain Massachusetts corrections officials, the district court
approved an attorney fee award against the defendants in the
amount of $41,441.55 under 42 U.S.C. 1988. The defendant
officials challenge the fee award primarily on the ground that
Domegan cannot be considered a "prevailing party" in light of the
results achieved in litigation. With modifications to the amount
of the award, we affirm the district court judgment.
I
I
BACKGROUND
BACKGROUND
__________
On August 15, 1983, while imprisoned at the Massachusetts
Correctional Institution at Walpole ("MCI-Walpole"), Domegan
lodged a pro se complaint in the United States District Court for
___ __
the District of Massachusetts, alleging civil rights violations
under the Eighth and Fourteenth Amendments to the United States
Constitution. The complaint stemmed from Domegan's disciplinary
placement on the "Alternate Feeding Program" ("AFP") at MCI-
Walpole in May and again in July of 1983.1 At that time, each
meal served to AFP inmates, including Domegan, consisted entirely
____________________
1The May placement occurred after Domegan threw his food tray and
human waste against the wall outside his cell; in July, he threw
his food and tray outside his cell.
4
4
of two cheese sandwiches. The solid steel doors of AFP inmate
cells remained closed. The inmate was given no hearing prior to
the AFP placement. AFP status was reviewed every five days by
the prison official who recommended the particular placement.
Domegan remained on AFP for seven and one-half days in May 1983,
and for five days in July 1983.
During March 1984, the district court appointed Goodwin,
Procter & Hoar [hereinafter Procter & Hoar] to represent Domegan.
The final amended complaint asserted three causes of action:
cruel and unusual punishment (Eighth and Fourteenth Amendments;
42 U.S.C. 1983; M.G.L. c. 12, 11 H,I);2 violation of due
_
process (Fourteenth Amendment; 42 U.S.C. 1983; M.G.L. c. 12,
11 H,I); and violation of the Massachusetts Civil Rights Act
_
(M.G.L. c. 12, 11 I). The final amended complaint demanded
_
declaratory and injunctive relief, compensatory damages totaling
$50,000,and$35,000 inpunitivedamagesfromeach ofthetendefendants.3
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2Initially, Domegan sought to establish that the AFP was viola-
tive of the Eighth Amendment, facially and as applied, but later
relinquished the facial claim. The "as applied" claim alleged
that the defendant officers and sergeants assigned to the AFP:
(i) turned off the electricity to Domegan's cell to prevent him
from complying with the AFP regimen for receiving food at meal
time; (ii) refused to feed him, knowing that he could not comply
with the AFP regimen; and (iii) turned off his water supply.
3The ten defendants named in the final amended complaint were
Joseph J. Ponte, Superintendent at MCI-Walpole; Frank Leppert,
Administrator of the Department Segregation Unit ("DSU") at MCI-
Walpole; Peter Gallagher, Acting DSU Administrator; Sergeants
Anthony Silva and James Brooks; and Officers Carl Harrison, Gary
Mendes, Christopher Pires, Patrick Smith, and Brian Bissonnette.
Three other defendants were named in earlier complaints but were
5
5
Domegan was granted summary judgment on the procedural due
process claim. The case proceeded to trial on the remaining
claims in March 1989. The jury awarded Domegan $1.00 in "compen-
satory" damages on the due process claim, but returned verdicts
for all defendants on the remaining Eighth Amendment claims.
Judgment was entered in the amount of $1.00 against Ponte,
Leppert, and Gallagher.4 Domegan requested attorney fees and
costs in the amount of $88,655.16, pursuant to 42 U.S.C. 1988.
Although the district court determined that Domegan was a "pre-
vailing party" entitled to recover a reasonable attorney fee, it
reduced the amount of the award to $41,441.55 in light of the
limited success achieved in litigation. The defendants challenge
the fee award on several grounds.5
II
II
____________________
dropped from the final amended complaint.
On November 1, 1983, two and one-half months after Domegan
filed his pro se complaint, MCI-Walpole instituted a more varied
___ __
and nutritious menu for AFP inmates. In 1985, MCI-Walpole
revised its post-deprivation review procedures, requiring that
each AFP inmate's status be reassessed after each meal. On or
about October 11, 1988, prior to trial, Domegan was released from
state custody, and the claims for injunctive and declaratory
relief were not pursued.
4It is not clear why judgment was never entered against the other
seven defendants.
5Although judgment was entered only against defendants Ponte,
Leppert and Gallagher, the other seven defendants joined the
appeal because the attorney fee award ran against "defendants."
As Domegan correctly concedes, however, there is no basis for an
award against the seven codefendants who were found not liable.
Accordingly, we dismiss these seven defendants-appellants.
6
6
DISCUSSION
DISCUSSION
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A. Appellate Jurisdiction
A. Appellate Jurisdiction
______________________
The district court "Memorandum and Order" awarding attorney
fees was entered on May 24, 1991. A defective notice of appeal
(No. 91-1625) was filed on June 24, 1991, naming no appellant
except Ponte, and then only in the following caption: "Domegan
v. Ponte, et al." See Torres v. Oakland Scavenger Co., 487 U.S.
___ ______ _____________________
312, 314-15, 318 (1988) (use of "et al." does not satisfy Fed. R.
App. P. 3(c) requirement that notice of appeal specify parties
appealing); Pontarelli v. Stone, 930 F.2d 104, 108-09 (1st Cir.
__________ _____
1991) (same). In response to our order to show cause why the
appeal ought not be dismissed except as to Ponte, on July 16 a
motion for permission to file an amended notice of appeal was
filed by defendants' counsel with the district court. See Fed.
___
R. App. P. 4(a)(5). The district court granted the motion ex
__
parte on the following day. But see id. ("Notice of any such
_____ ___ ___ ___
motion which is filed after the expiration of the prescribed time
shall be given to the other parties in accordance with local
rules."). See also D. Mass. R. 7.1(a)(2),(b),(e). An amended
___ ____
notice of appeal (No. 91-1753), naming all ten appellants, was
promptly filed.
Domegan contends that the ex parte district court order,
__ _____
permitting appellants to file a corrected notice of appeal after
the expiration of the original appeal period, was ineffective
7
7
since the fourteen-day notice required by Local Rule 7.1 was not
served. See Fed. R. App. P. 4(a)(5); D. Mass. R. 7.1(a)(2), (b),
___
(e); see also, e.g., Hable v. Pairolero, 915 F.2d 394, 395 (8th
___ ____ ____ _____ _________
Cir. 1990) (requiring notice of rule 4(a)(5) motion); Truett v.
______
Johns-Manville Sales Corp., 725 F.2d 1301, 1302 (11th Cir. 1984)
__________________________
(same). Domegan also challenges the sufficiency of the showing
of "good cause" or "excusable neglect" required under Fed. R.
App. P. 4(a)(5). See, e.g., Pontarelli, 930 F.2d at 109-112. We
___ ____ __________
need not address Domegan's contentions, however, as the initial
notice of appeal was premature.
The district court "Memorandum and Order," entered May 24, did
not satisfy the "separate document" rule. See Fed. R. Civ. P. 58
___
advisory committee note (1963) ("The amended rule . . . requir[e-
s] that there be a judgment set out on a separate document
distinct from any opinion or memorandum which provides the
________ ____ ___ _______ __ __________
basis for the entry of judgment.") (emphasis added); Fiore v.
_____
Washington County Community Mental Health Ctr., 960 F.2d 229,
_________________________________________________
234-35 (1st Cir. 1992) (en banc) (discussing generally the nature
of a separate document); Smith v. Massachusetts Dep't of Correc-
_____ ______________________________
tion, 936 F.2d 1390, 1393-94 (1st Cir. 1991) (memorandum and
____
order does not constitute "separate document"); In re Smith
____________
Corset Shops, Inc., 696 F.2d 971, 975 (1st Cir. 1982) (same,
___________________
applying analogous Bankruptcy Rule). As the order appealed from
was not a "final judgment," see Fed. R. Civ. P. 54(a), 58, the
___
appeal period never commenced running prior to the filing of the
8
8
corrected notice of appeal. Fed. R. App. P. 4(a)(1), (7); Smith,
_____
936 F.2d at 1394; Scola v. Boat Frances, R., Inc., 618 F.2d 147,
_____ ______________________
151 (1st Cir. 1980); see also Bankers Trust Co. v. Mallis, 435
___ ____ __________________ ______
U.S. 381, 384-86 (1978) (per curiam) (purpose of "separate
document" rule is to promote greater predictability as to when
time for appeal begins to run); Fiore, 960 F.2d at 233 (same).6
_____
Although appellants at all times treated the May 24 "Memorandum
and Order" as an appealable order, the "separate document" rule
is to be strictly applied as concerns the commencement of the
appeal period. See United States v. Indrelunas, 411 U.S. 216,
___ ______________ __________
221-22 (1973) (per curiam) (applying rule 58 mechanically not-
withstanding previous aborted appeal by same appellant within
appeal period); Fiore, 960 F.2d at 235 (discussing technicality
_____
of rule 58); Gregson & Assocs. Architects v. Government of the
_____________________________ _________________
V.I., 675 F.2d 589, 592-93 (3d Cir. 1982) (Indrelunas applied
____ __________
despite both parties' treatment of memorandum opinion as appeal-
able order); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d
________ _____________________________
683, 688-90 (4th Cir. 1978) ("nor are we free to penalize plain-
tiffs . . . by binding them to their erroneous assertion that
judgments" had been entered); see also Fiore, 960 F.2d at 237
___ ____ _____
____________________
6We raise the "separate document" issue sua sponte, as it is
___ ______
intertwined with Domegan's jurisdictional challenge. See, e.g.,
___ ____
Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 688-89
________ _____________________________
(4th Cir. 1978) (raising "separate document" issue sua sponte);
___ ______
see also Parisie v. Greer, 705 F.2d 882, 890-91 (7th Cir.)
___ ____ _______ _____
(Eschbach, J.) (discussing duty of court to raise "separate
document" issue sua sponte), cert. denied, 464 U.S. 918, and
___ ______ _____ ______ ___
cert. denied, 464 U.S. 950 (1983).
_____ ______
9
9
(emphasizing that the "separate document" requirement "should
always be interpreted 'to prevent loss of the right to appeal,
not to facilitate loss'") (quoting Bankers Trust, 435 U.S. at
______________
386); Willhauck v. Halpin, 919 F.2d 788, 792 (1st Cir. 1990)
_________ ______
(same); 9 Moore's Federal Practice 58.02.1[2], at 58-20 to 21.
________________________
Nevertheless, a notice of appeal deemed premature due to noncom-
pliance with the "separate document" rule does not deprive the
appellate court of subject matter jurisdiction, Bankers Trust,
_____________
435 U.S. at 384, 385; see also Smith, 936 F.2d at 1394 (applying
___ ____ _____
Bankers Trust), and the appeal may proceed in the normal course
_____________
where the court of appeals determines that the "separate docu-
ment" requirement was waived by the parties. Bankers Trust, 435
_____________
U.S. at 384-86; Smith, 936 F.2d at 1394.
_____
The district court treated its May 24 "Memorandum and Order" as
an appealable order; it was duly docketed; and no party chal-
lenged appellate jurisdiction for failure to comply with the
"separate document" requirement. See Smith, 936 F.2d at 1394
___ _____
(finding waiver); see also Bankers Trust, 435 U.S. at 387-88
___ ____ _____________
(considering same factors). Compare Fiore, 960 F.2d at 232, 237.
_______ _____
All parties to the present appeal consistently treated the May 24
"Memorandum and Order" as a final judgment and there is no
suggestion that unfair prejudice would be occasioned any party by
our assertion of appellate jurisdiction, without remanding for
formal compliance with the "separate document" requirement. See
___
Smith, 936 F.2d at 1394 (assertion of appellate jurisdiction
_____
10
10
proper, as parties waived "separate document" requirement and
would not be prejudiced). Moreover, dismissal of the second
notice of appeal in these circumstances, solely to permit compli-
ance with the "separate document" rule, would force "[w]heels
[to] spin for no practical purpose." Bankers Trust, 435 U.S. at
_____________
385; Smith, 936 F.2d at 1394 ("We will not needlessly 'force the
_____
parties round and round the mulberry bush' . . . ." (quoting
Jusino v. Zayas, 875 F.2d 986, 989-90 (1st Cir. 1989)).
______ _____
B. The Merits
B. The Merits
__________
1. "Prevailing Party"
1. "Prevailing Party"
________________
The principal focus of appellants' discontent with the fee
allowance in the instant case is that the district court deter-
mined that Domegan was a "prevailing party" even though he
obtained only a one dollar damage award. Absent "special circum-
stances" which would render an award unjust, ordinarily a civil
rights plaintiff who qualifies as a "prevailing party" is enti-
tled to a reasonable award of attorney fees under 42 U.S.C.
1988.7 Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); de Jesus
_______ _________ ________
v. Banco Popular de Puerto Rico, 918 F.2d 232, 234 (1st Cir.
______________________________
1990); Stefan v. Laurenitis, 889 F.2d 363, 370 (1st Cir. 1989).
______ __________
____________________
7Section 1988 provides, in part: "In any action or proceeding to
enforce a provision of section[] . . . 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.
11
11
A prevailing party is one who "has succeeded on 'any signifi-
cant issue in litigation which achieve[d] some of the benefit the
[plaintiff] sought in bringing suit'. . . ." Texas State Teach-
__________________
ers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92
__________ __________________________
(1989) [hereinafter Texas Teachers] (quoting Nadeau v. Helgemoe,
______________ ______ ________
581 F.2d 275, 278-79 (1st Cir. 1978)). "[A]t a minimum . . . the
plaintiff must be able to point to a resolution of the dispute
which changes the legal relationship between itself and the
defendant." Id. at 792. Moreover, even under this "generous
___
formulation," as the Court stated in Texas Teachers, the plain-
______________
tiff cannot qualify as a "prevailing party" if his "success on a
legal claim can be characterized as purely technical or de
__
minimis . . . ." Id. "The touchstone of the prevailing party
_______ ___
inquiry must be the material alteration of the legal relationship
___________________
of the parties in a manner which Congress sought to promote in
_____ ________ ______ __ _______ __
the fee statute." Id. at 792-93 (emphasis added).
___ ___ _______ ___
The district court determination that Domegan met the
"prevailing party" test is subject to de novo review. See
__ ____ ___
Romberg v. Nichols, 953 F.2d 1152, 1156 (9th Cir. 1992) ("We must
_______ _______
reverse . . . if the district court applied incorrect legal
standards to reach [the factual findings underlying its "prevail-
ing party" determination]."); Guglietti v. Secretary of Health &
_________ _____________________
Human Services, 900 F.2d 397, 399 (1st Cir. 1990) (where normal
______________
deference due EAJA fee award could not be accorded because
district court misapprehended the record, court of appeals would
12
12
decide case, rather than remand, as the facts were not in genuine
dispute and the "prevailing party" question is "largely one of
law . . ."). But cf. McDonald v. Secretary of Health & Human
___ ___ ________ ____________________________
Services, 884 F.2d 1468, 1474 (1st Cir. 1989) ("abuse of discre-
________
tion" standard governs review of "prevailing party" determination
in EAJA fee award cases).8
Although Domegan met with no success on the Eighth Amendment
and state law claims, he obtained a favorable verdict on the
____________________
8McDonald broadly established an "abuse of discretion" standard
________
of review for all "prevailing party" determinations in EAJA
cases. As subsequently demonstrated in Guglietti, however,
_________
certain aspects of the "prevailing party" determination in a
particular case may turn solely on the proper legal standard,
making de novo review appropriate. The "prevailing party"
__ ____
determination in the present case does not entail any of the
considerations which led us to apply a deferential standard of
review in McDonald. Nor does it involve fact-based inquiries
________
like those we found appropriate for deferential review in Langton
_______
v. Johnston, 928 F.2d 1206, 1225 (1st Cir. 1991) (district court
________
assessment of causation and materiality elements in the "cata-
lyst" test) ( 1988 award). The only question in the present
case is whether a judgment for one dollar in damages entitles
Domegan to "prevailing party" status. The facts are not in
dispute, see Guglietti, 900 F.2d at 399, and application of the
___ _________
"prevailing party" test presents a pure question of law warrant-
ing plenary review.
Moreover, as we have explained, the district court's discretion
to deny a fee award to a "prevailing party" under section 1988 is
narrowly circumscribed:
Despite the explicit grant of discretion in section 1988, it
is well-established [sic] that a court may not deny an award
___ ___
of attorney's fees to a prevailing civil rights plaintiff in
the absence of special circumstances rendering the award
unjust, and this court requires findings of fact and conclu-
sions of law identifying the special circumstances and ex-
plaining why an award would be inappropriate.
de Jesus, 918 F.2d at 234 (citations omitted) (emphasis added).
________
13
13
procedural due process claim, a "significant issue in litiga-
tion." See Langton v. Johnston, 928 F.2d 1206, 1226 (1st Cir.
___ _______ ________
1991) (assessing significance "given the scope and tenor of the
litigation as a whole").9 Appellants insist, nonetheless, that
the final judgment cannot have had any significant effect on
their legal relationship with Domegan, and question how a one
dollar damage award can be considered other than de minimis
__ _______
success. Although one dollar most assuredly is a nominal amount,
the final judgment nonetheless represented "some" of the benefit
____________________
9Appellants attempt to demonstrate the de minimis nature of
__ _______
Domegan's one dollar "compensatory" damage award on the procedur-
al due process claim against three defendants by pointing out
that he asserted 42 "defendant/counts" at the "height" of the
litigation. The same sort of argument was made by the defendants
in Rogers v. Okin, 821 F.2d 22 (1st Cir. 1987), cert. denied, 484
______ ____ ____ ______
U.S. 1010 (1988). In rejecting their contention, this court
stated that the defendants had "adopted the kind of 'mathematical
approach' criticized in [Hensley v. Eckerhart, 461 U.S. 424, 435-
_______ _________
36 n.11 (1983)] . . . ." Id. at 25. Along the lines explained
___
in Rogers, "prevailing party" success cannot be measured by an
______
arithmetic comparison of the claims and defendants joined in the
complaint with the number of claims and defendants named in the
final judgment. Id. (rejecting defendants' attempt to minimize
___
plaintiffs' success by claiming victory on "no fewer than 224"
issues); see Hensley, 461 U.S. at 435-36 n.11 (mathematical
___ _______
comparison of the total number of issues in a case with those
actually won "provides little aid in determining what is a
reasonable fee in light of all the relevant factors"), quoted in
______ __
Rogers, 821 F.2d at 25. Domegan's procedural due process claim
______
doubtless represented a significant constitutional claim in
qualitative terms. We cannot treat the quantitative dimensions
of the relief obtained on the due process claim as dispositive of
the allowability, vel non, of a 1988 fee award, as distin-
___ ___
guished from the reasonableness of the amount awarded. Texas
_____
Teachers, 489 U.S. at 790, 793 ("the degree of the plaintiff's
________
overall success" goes to the reasonableness, not the allowability
of the award); Nadeau v. Helgemoe, 581 F.2d 275, 281 (1st Cir.
______ ________
1978) (some fee award appropriate where success is but partially
____
attributable to plaintiff's lawsuit).
14
14
sought in the litigation; namely, an enforceable judgment against
the defendant officials who deprived the plaintiff of the consti-
tutional right to due process of law. We are unable to agree
that an enforceable judgment for nominal damages redressing
significant procedural due process violations cannot qualify the
plaintiff for "prevailing party" status.10
a. Baseline Criteria
a. Baseline Criteria
_________________
Prior to Texas Teachers at least, attorney fees were not
_______________
withheld under section 1988 simply because the plaintiff merely
obtained a nominal damage award. Perez v. University of Puerto
_____ _____________________
____________________
10Similarly, the Supreme Court has never intimated that a valid
final judgment declaring a violation of a claimant's civil rights
constituted "purely technical or de minimis" success simply
__ _______
because no compensatory damage award or injunctive relief was
obtained. Rather, presumably in recognition of the fact that the
wrong occasioned by a procedural due process violation often is
not susceptible to monetary measurement, the Court has stated
that plaintiffs who establish a procedural due process violation
"nevertheless will be entitled to recover nominal damages not to
________
exceed one dollar . . . ." Carey v. Piphus, 435 U.S. 247, 267
_____ ______
(1978) (emphasis added); Maldonado Santiago v. Velazquez Garcia,
__________________ _________________
821 F.2d 822, 829 (1st Cir. 1987). (citing Carey). See Memphis
_____ ___ _______
Community Sch. Dist. v. Stachura, 477 U.S. 299, 308 n.11 (1986)
____________________ ________
(Nominal damages "are the appropriate means of 'vindicating'
rights whose deprivation has not caused actual, provable inju-
ry"); see also, e.g., Fassett by and through Fassett v. Haeckel,
___ ____ ____ ______________________________ _______
936 F.2d 118, 121 (2d Cir. 1991) (Fourth Amendment violation);
Floyd v. Laws, 929 F.2d 1390, 1401-03 (9th Cir. 1991) (violation
_____ ____
of "constitutional rights"); Cowans v. Wyrick, 862 F.2d 697, 699,
______ ______
700 (8th Cir. 1988) (Eighth Amendment violation); Farrar v. Cain,
______ ____
756 F.2d 1148, 1152 (5th Cir. 1985) (violation of "civil
rights"); Kincaid v. Rusk, 670 F.2d 737, 746 (7th Cir. 1982)
_______ ____
(violation of due process and First Amendment); McGhee v. Draper,
______ ______
639 F.2d 639, 646 (10th Cir. 1981) (due process violation). But
___
cf. Ganey v. Edwards, 759 F.2d 337, 339 (4th Cir. 1985) (award of
___ _____ _______
nominal damages left to jury).
15
15
Rico, 600 F.2d 1, 2 (1st Cir. 1979) ("Fees may not be denied
____
simply because only nominal damages are awarded."); Ganey v.
_____
Edwards, 759 F.2d 337, 339-40 (4th Cir. 1985) (liability determi-
_______
nation need not even be accompanied by nominal damage award);
Burt v. Abel, 585 F.2d 613, 618 (4th Cir. 1978) (nominal damage
____ ____
award sufficient); Basiardanes v. City of Galveston, 682 F.2d
___________ __________________
1203, 1220 (5th Cir. 1982) (judgment for nominal damages may
warrant fee award); Skoda v. Fontani, 646 F.2d 1193, 1194 (7th
_____ _______
Cir. 1981) (per curiam) ($1.00 judgment satisfies "prevailing
party" requirement); Hogue v. Clinton, 791 F.2d 1318, 1323 (8th
_____ _______
Cir.) (absent proof of actual injury, plaintiff should be granted
nominal damages and attorney fees), cert. denied, 479 U.S. 1008
_____ ______
(1986); Scofield v. City of Hillsborough, 862 F.2d 759, 766 (9th
________ ____________________
Cir. 1988) (attorney fees allowable solely on basis of nominal
damage award); see Derr v. Gulf Oil Corp., 796 F.2d 340, 344
___ ____ _______________
(10th Cir. 1986) (Title VII case citing Nephew v. City of Aurora,
______ ______________
766 F.2d 1464, 1466 (10th Cir. 1985)), a 1988 case subsequently
reversed on other grounds, 830 F.2d 1547 (10th Cir. 1987) (en
banc); nominal damage award entitled plaintiff to attorney fees);
Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir.
______ ______________________
1987) (Title VII case; nominal damage award confers "prevailing
party" status). But compare Huntley v. Community Sch. Bd., 579
___ _______ _______ ___________________
F.2d 738, 742 (2d Cir. 1978) (district court did not abuse
________ _____
discretion in determining that $100 damage award on procedural
due process claim amounted, at most, to "moral victory") with
____
16
16
Milwe v. Cavuoto, 653 F.2d 80, 84 (2d Cir. 1981) (nominal damage
_____ _______
award on constitutional claim stemming from official misconduct
"sufficient to support an award of fees") (alternate holding).
Much as the Fifth Circuit recently pointed out, however, in
Estate of Farrar v. Cain, 941 F.2d 1311, 1317 (5th Cir. 1991),
________________ ____
cert. granted sub nom. Farrar v. Hobby, 112 S. Ct. 1159 (1992),
____ _______ ___ ____ ______ _____
all of the cases cited above, except Scofield, antedate Texas
________ _____
Teachers as well as Hewitt v. Helms, 482 U.S. 755 (1987), and
________ ______ _____
Rhodes v. Stewart, 488 U.S. 1 (1988) (Per Curiam). Furthermore,
______ _______
the courts of appeals which have been presented with the issue in
the wake of Texas Teachers have drifted apart.11 Compare Rom-
______________ _______ ____
berg v. Nichols, 953 F.2d 1152, 1159 (9th Cir. 1992) ("a nominal
____ _______
damages award does not a nominal victory make"); Fassett by and
_______________
through Fassett v. Haeckel, 936 F.2d 118, 122 (2d Cir. 1991) (fee
_______________ _______
award appropriate where nominal damages are recovered for depri-
vation of an absolute constitutional right) (citing Ruggiero v.
________
Krzeminski, 928 F.2d 558, 564 (2d Cir. 1991)) with Estate of
__________ ____ _________
Farrar, 941 F.2d at 1315-17 (nominal damage award represents de
______ __
minimis success where sole purpose of lawsuit was recovery of
_______ ____
damages); Spencer v. General Electric Co., 894 F.2d 651, 662 (4th
_______ ____________________
____________________
11The Fourth and Fifth Circuits have concluded, contrary to their
pre-Texas Teachers precedent, that a nominal damage award alone
______________
cannot confer "prevailing party" status. See Denny v. Hinton,
___ _____ ______
131 F.R.D. 659, 662-63 (M.D.N.C. 1990), aff'd mem., Denny v.
_____ ____ _____
Elliott, 937 F.2d 602 (4th Cir.), and aff'd mem. Lawrence v.
_______ ___ _____ ___ ________
Hinton, 937 F.2d 603 (4th Cir. 1991); Estate of Farrar, 941 F.2d
______ ________________
at 1315 (where sole purpose of lawsuit was to recover damages).
____
17
17
Cir. 1990) (dicta) (indicating that $1.00 judgment might con-
stitute de minimis success absent any other favorable litigation
__ _______
result); Denny v. Hinton, 131 F.R.D. 659, 662-63 (M.D.N.C. 1990)
_____ ______
(nominal damage award constitutes de minimis success), aff'd
__ _______ _____
mem., Denny v. Elliott, 937 F.2d 602 (4th Cir. 1991), and Law-
____ _____ _______ ___ ____
rence v. Hinton, 937 F.2d 603 (4th Cir. 1991). See also Brewer
_____ ______ ___ ____ ______
v. Chauvin, 938 F.2d 860, 864 (8th Cir. 1991) (citing Hogue v.
_______ _____
Clinton, 791 F.2d 1318 (8th Cir. 1986)).
_______
As Texas Teachers explains, in order for a claimant to qualify
______________
for "prevailing party" status the litigation must achieve, at a
minimum, a "material alteration" in the legal relationship
between the parties. Texas Teachers, 489 U.S. at 792. The Court
______________
in Texas Teachers limned its "material alteration" standard, in
_______________
broad outline, through reference to two earlier cases, see id.
___ __
(discussing Hewitt v. Helms, 482 U.S. 755 (1987), and Rhodes v.
______ _____ ______
Stewart, 488 U.S. 1 (1988) (Per Curiam)), to which we now turn.
_______
In Hewitt v. Helms, 482 U.S. 755 (1987), a prison inmate
______ _____
commenced a section 1983 action for damages, as well as declara-
tory and injunctive relief, alleging due process violations by
prison officials. Helms was released on parole prior to any
decision by the district court, and the district court later
entered summary judgment against Helms. The Third Circuit
_______
reversed on the ground that Helms had been denied due process.
The court of appeals ordered the case remanded for entry of
judgment in favor of Helms, except as to any defendant determined
18
18
entitled to qualified immunity. Prior to the actual remand to
the district court, however, the defendant prison officials
secured a favorable Supreme Court decision dismissing one of
Helms' claims. After remand from the Supreme Court, the Third
Circuit reaffirmed its earlier holding on the other due process
claim and again remanded to the district court on the issue of
qualified immunity. On remand, Helms did not pursue injunctive
relief. The district court once again entered summary judgment
against Helms, on the ground that the defendants were immune from
liability for damages, and denied a fee award under section 1988.
The Third Circuit again reversed, on the ground that its earlier
interlocutory ruling that Helms' due process rights had been
violated constituted significant success.
The Supreme Court disagreed. Justice Scalia pointed out that
Helms had obtained no relief whatever on any claim in litigation
no judgment, no damages, no injunctive relief, and no declara-
tory relief. "The most that he obtained was an interlocutory
_____________
ruling that his complaint should not have been dismissed for
failure to state a constitutional claim." Hewitt, 482 U.S. at
______
760 (emphasis added). The Supreme Court refused to equate the
Third Circuit ruling with declaratory relief, since the inter-
locutory ruling could not conceivably alter the legal relation-
_____ ___
19
19
ship between the parties12 in the face of a final judgment
"against the plaintiff . . ., " id. at 763 (emphasis added), and
_______ ___ _________ ___
the litigation resulted in no other "relief" which "affect[ed]
______ __
the behavior of the defendant[s] towards the plaintiff," id. at
___ ________ __ ___ _________ _ _______ ___ _________ ___
761 (emphasis in original).
We are not persuaded that Hewitt can be considered analogous
______
authority for withholding "prevailing party" status on the ground
that a final judgment for nominal damages is no different than
the Third Circuit interlocutory ruling declaring a violation of
Helms' due process rights. Moreover, as the Court clearly
explained in Hewitt:
______
Respect for ordinary language requires that a plaintiff
receive at least some relief on the merits of his claim
before he can be said to prevail. See Hanrahan v. Hampton,
___ ________ _______
446 U.S. 754, 757 (1980). Helms obtained no relief. Because
of the defendants' official immunity he received no damages
award. No injunction or declaratory judgment was entered in
his favor. Nor did Helms obtain relief without benefit of a
formal judgment for example, through a consent decree or
settlement. See Maher v. Gagne, 448 U.S. 122, 129 (1980).
___ _____ _____
The most that he obtained was an interlocutory ruling that
his complaint should not have been dismissed for failure to
state a constitutional claim. That is not the stuff of which
legal victories are made. Cf. Hanrahan, supra, at 758-59.
__ ________ _____
____________________
12It is to this same discussion in Hewitt, 482 U.S. at 760-61,
______
that the Court cites in Texas Teachers, 489 U.S. at 792, to
______________
explicate its threshold standard for "prevailing party" status
under 42 U.S.C. 1988. We consider it no happenstance that
Texas Teachers and Hewitt both cite to Hanrahan v. Hampton, 446
______________ ______ ________ _______
U.S. 754 (1980) (Per Curiam), and its seminal discussion of the
threshold test for "prevailing party" status. See infra at note
___ _____
13.
20
20
482 U.S. at 760.13
____________________
13In Hanrahan, 446 U.S. at 756-57, the Supreme Court reversed a
________
1988 fee award made pendente lite to appellate counsel, on the
________ ____
ground that all rulings favorable to the plaintiffs were inter-
locutory and procedural. The Court noted that
it seems clearly to have been the intent of Congress to
permit such an interlocutory award only to a party who has
established his entitlement to some relief on the merits of
___________ ___ ___________ __ ____ ______ __ ___ ______ __
his claims, either in the trial court or on appeal. The
___ ______
congressional Committee Reports described what were consid-
ered to be appropriate circumstances for such an award by
reference to two cases Bradley v. Richmond School Board,
_______ ______________________
416 U.S. 696 (1974), and Mills v. Electric Auto-Lite Co., 396
_____ ______________________
U.S. 375 (1970). S. Rep. No. 94-1011, [p.] 5 [(1976)]; H.R.
Rep. No. 94-1558, [p.] 8 [(1976)]. In each of those cases
the party to whom fees were awarded had established the
___
liability of the opposing party, although final remedial
_________ __ ___ ________ _____ ________
orders had not been entered.
Id. at 757 (emphasis added). Texas Teachers, 489 U.S. at 790-92,
___ ______________
reaffirms this essential element of the "prevailing party" test,
which was discussed not only in Hanrahan, 446 U.S. at 757, but in
________
Hewitt, 482 U.S. at 760, as well.
______
Furthermore, as Hanrahan indicates, in Mills v. Electric Auto-
________ _____ ______________
Lite Co., 396 U.S. 375 (1970), the Court deemed an interim fee
________ _______
award appropriate once liability had been determined, even though
_________
"the question of relief [would] await further proceedings . . .
.;" that is, even though no order directing relief had yet been
granted. It is particularly noteworthy, we believe, that Mills
_____
is cited with approval in the companion Senate Report accompany-
ing 1988, as well as in the House Report, since the latest
Supreme Court pronouncement on the subject states that "[t]he
touchstone of the prevailing party inquiry must be the material
alteration of the legal relationship of the parties in a manner
__ _ ______
which Congress sought to promote in the fee statute." Texas
_____ ________ ______ __ _______ __ ___ ___ _______ _____
Teachers, 489 U.S. at 793 (emphasis added). Of course, the
________
Hewitt citation to Hanrahan illuminates the reason Helms could
______ ________
not possibly have been granted "prevailing party" status, since
________
he never established entitlement to any relief.
_____ ___________
Finally, the Supreme Court observed in Hanrahan:
________
It seems apparent from these passages that Congress intended
to permit the interim award of counsel fees only when a party
has prevailed on the merits of at least some of his claims.
For only in that event has there been a determination of the
_____________
'substantial rights of the parties,' which Congress deter-
21
21
The Fifth Circuit recently vacated a section 1988 fee award to
plaintiffs whose only relief on the merits of their claims was a
judgment for nominal damages, stressing "the principles set forth
in [Hewitt] and applied in Rhodes [v. Stewart] . . . ." Estate
______ ______ _______ ______
of Farrar v. Cain, 941 F.2d at 1311, 1317 (5th Cir. 1991), cert.
_________ ____ ____
granted sub nom., Farrar v. Hobby, 112 S. Ct. 1159 (1992). With
_______ ___ ____ ______ _____
respect, and recognizing the closeness of the question, we would
ascribe a somewhat different intendment to the principles enunci-
ated in Hewitt and applied in Rhodes; that is, as not precluding
______ ______
"prevailing party" status for the claimant who obtains sufficient
relief to effect a material alteration in the legal relationship
out of which the claim for relief arose. In other words, we
think the principles enunciated in Hewitt portend no significant
______
departure from earlier Supreme Court criteria for determining
"prevailing party" status on the part of a plaintiff who obtains
an enforceable judgment for nominal damages on a significant
constitutional claim.14
____________________
mined was a necessary foundation for departing from the usual
rule in this country that each party is to bear the expense
of his own attorney.
Hanrahan, 446 U.S. at 757-58 (emphasis added) (quoting H.R. No.
________
94-1558, p. 8 (1976)).
14Prior to Hewitt, the Court held that "liability on the merits
______ _________
and responsibility for fees go hand in hand; where a defendant
has not been prevailed against, either because of legal immunity
_______ __ _____ ________
or on the merits, 1988 does not authorize a fee award against
that defendant." Kentucky v. Graham, 473 U.S. 159, 165 (1985)
________ ______
(emphasis added). See also Supreme Court of Virginia v. Consum-
___ ____ _________________________ _______
ers Union of the United States, Inc., 446 U.S. 719, 738-39 (1980)
____________________________________
22
22
The other Supreme Court case discussed in Texas Teachers is
______________
Rhodes v. Stewart, 488 U.S. 1 (1988) (Per Curiam), a section 1983
______ _______
action in which two prison inmates obtained a judgment declaring
that their First and Fourteenth Amendment rights had been violat-
ed by prison officials who failed to comply with prison adminis-
trative procedures regulating magazine subscriptions by inmates.
The district court judgment ordered compliance and awarded
attorney fees. The Sixth Circuit affirmed the section 1988 fee
award. The Supreme Court reversed, observing that "[t]he case
_ __ ____
was moot before judgment issued, and the judgment therefore
___ ____ ______ ________ ___ ___ ________ _________
afforded the plaintiffs no relief whatsoever[,]" id. at 4 (empha-
________ __ ______ __________ ___
sis added), since one plaintiff-inmate died and the other was
released from custody prior to judgment. Whatever relief other
inmates might realize from the judgment,15 the plaintiffs, as
former inmates, realized no relief and, therefore, were not
______
entitled to "prevailing party" status. Id. Thus, we think
___
____________________
(overturning 1988 fee award premised on conduct for which
defendants possessed absolute legislative immunity).
15In the instant case, notwithstanding that the challenged AFP
procedures were revised within three months after the filing of
the pro se complaint, Domegan does not contend that an informal
___ __
alteration in the parties' legal relationship was occasioned by
the litigation. See Nadeau, 581 F.2d at 281 ("We . . . consider
___ ______
the chronological sequence of events to be an important, although
clearly not definitive factor, in determining whether or not
defendant can be reasonably inferred to have guided his actions
in response to plaintiff's lawsuit."); see also Langton, 928 F.2d
___ ____ _______
at 1225 ("'the mere existence of a temporal coincidence . . .
cannot alone suffice' to engage the gears of the catalyst test.")
(quoting Martinez v. Rhode Island Housing & Mortgage Finance
________ __________________________________________
Corp., 628 F. Supp. 996, 1001 (D.R.I. 1986)).
_____
23
23
Rhodes signifies no different result in the present context than
______
would have been required under its predecessor, Hewitt.
______
At this point in our analysis, as we see it, the baseline
standard for "prevailing party" status set out in Texas Teachers
_______________
has been met. Domegan obtained an enforceable final judgment
affording at least some relief against the defendant corrections
officials who violated his procedural due process rights.16
Furthermore, we consider the nominal damage award not only "some
relief on the merits" of a significant constitutional claim, see
___
Texas Teachers, 489 U.S. at 792 (quoting Hewitt, 482 U.S. at
_______________ ______
760),17 but relief commensurate with the intrinsically-nonpecu-
____________________
16We recognize, of course, that one dollar is a nominal amount.
Yet we cannot think that a nominal damage award does not repre-
sent "some relief," particularly where the significance of the
constitutional claim and the nature of the established depriva-
tion are not susceptible to monetary measurement. Thus, we
believe we must recognize that the nominal damage award does not
warrant an inference that the fact-finder intended to minimize
the seriousness of the wrong done, or the substantiality of the
relief intended, since the intangible nature of the absolute
constitutional injury in the instant case is not measurable in
monetary terms.
17Cf. Walker v. Anderson Elec. Connectors, 944 F.2d 841, 843 n.4
___ ______ _________________________
& 845-47 (11th Cir. 1991) (upholding denial of fee award where
Title VII jury found that defendant's sexual harassment had not
been the proximate cause of any lost work, thereby precluding
even a nominal damage award; where court stated that "an award of
nominal damages . . . would make the prospect of obtaining
attorney fees much easier . . . ."), petition for cert. filed, 60
________ ___ _____ _____
U.S.L.W. 3800 (U.S. May 8, 1992) (No. 91-1794); Warren v. Fan-
______ ____
ning, 950 F.2d 1370, 1375 (8th Cir. 1991) (where money damages
____
alone were requested, and jury found Eighth Amendment violation,
plaintiff "and his counsel . . . have no one to blame but them-
selves for the jury's decision not to award nominal damages,"
since they proposed a jury instruction which left any nominal
damage award to the discretion of the jury, even though applica-
24
24
niary procedural due process deprivation established in litiga-
tion.18
b. Purely Technical or de minimis Success
b. Purely Technical or de minimis Success
______________________________________
Notwithstanding the majority view prevailing among the courts
of appeals allowing section 1988 attorney fee awards based on
an enforceable judgment for nominal damages see supra at pp.
___ _____
14-16, the residual "prevailing party" standard recently enunci-
ated by a unanimous Court in Texas Teachers concededly gives us
______________
pause. The opinion cautioned that a district court might con-
________ _____
clude that a civil rights claimant was not eligible for "pre-
vailing party" status if the "success [achieved] on a legal claim
____________________
ble law mandated nominal damage award).
18Appellants emphasize that Domegan could not have obtained
injunctive or declaratory relief at the time judgment was
entered, because the AFP had been revised in 1983 and Domegan had
been released from state custody in 1988. Accordingly, relying
on Hewitt and Rhodes, and the Fifth Circuit's interpretation of
______ ______
those cases in Estate of Farrar, appellants argue that the
__________________
judgment in no way affected their behavior toward Domegan.
________
Unlike the plaintiffs in Hewitt and Rhodes, however, Domegan
______ ______
obtained an enforceable judgment for nominal damages redressing
appellants' previous violations of Domegan's constitutional
rights.
We are satisfied that the intendment appellants attribute to
the threshold "prevailing party" standard set out in Texas
_____
Teachers would work results sufficiently foreign to the develop-
________
ing appellate caselaw under section 1988 as to make its sub
___
silentio adoption by the Supreme Court extremely improbable.
________
Thus, we do not interpret Texas Teachers or its precursors as
______________
requiring a material alteration in the future legal relationship
_________ ______
between the parties. In circumstances where the wrong occasioned
the claimant is nonpecuniary in nature, we think an award of
nominal damages can alter the legal relationship out of which the
_____ ____________
dispute arose as significantly as a large monetary award can
compensate for pecuniary injury.
25
25
can be characterized as purely technical or de minimis . . . ."
__ _______
Texas Teachers, 489 U.S. at 792. Under the de minimis success
______________ __ _______
standard, therefore, we must determine whether an enforceable
judgment awarding nominal damages on a procedural due process
claim can effect a sufficiently material alteration in the
________
parties' legal relationship to entitle the claimant to "prevail-
ing party" status.
First, we examine the illustration of "purely technical or de
__
minimis success" taken from the Texas Teachers case itself, where
_______ ______________
the plaintiff teachers' organizations successfully challenged a
school policy forbidding teacher meetings during non-school hours
absent prior approval from the school principal. The Court
hypothesized that plaintiffs would not have qualified for "pre-
vailing party" status on this basis alone, as "[t]he District
Court [had] characterized this issue as 'of minor significance'
and noted that there was 'no evidence that the plaintiffs were
__ ________ ____ ___ __________ ____
ever refused permission to use school premises during non-school
____ _______ __________ __ ___ ______ ________ ______ __________
hours.'" Texas Teachers, 489 U.S. at 792 (quoting App. to Pet.
_____ ______________
for Cert. 60a n. 26) (emphasis added). Since there was no
evidence that the particular school policy ever had been, or
would be, applied, their successful challenge did not avail
plaintiffs of sufficient "relief" to effect a "material alter-
ation in the legal relationship between the parties." Compare
_______
Rhodes, 488 U.S. at 4.
______
26
26
We interpret the Texas Teachers hypothetical to require some
_______________
justiciable past, present or impending civil rights deprivation
entitling the claimant to relief. Moreover, no matter how
comprehensive the "relief" obtained by the claimant, unless the
wrong occasioned or threatened by the challenged procedure is
"significant" the alteration effected in the overall legal rela-
tionship out of which the claim arose will be considered too
insubstantial to satisfy the "prevailing party" test. Thus, the
success achieved may be ruled purely technical or de minimis if
__ _______
the civil rights violation is either too abstract or too remote
in prospect for the "relief" obtained in litigation to have
effected a material alteration in the relevant legal relationship
between the parties.
The second illustration of "technical or de minimis success" is
__ _______
found in Naprstek v. City of Norwich, 433 F. Supp. 1369 (N.D.N.Y.
________ _______________
1977). See Texas Teachers, 489 U.S. at 792. Some years ago,
___ ______________
Nadeau v. Helgemoe, 581 F.2d 275, 279 n.3 (1st Cir. 1978) (Cof-
______ ________
fin, C.J.), cited Naprstek as a case in which fee shifting would
________
have been inappropriate since "the grounds for attacking an anti-
_______
quated and rarely enforced curfew statute [were found] to be
'more contrived than real.'" Id. (quoting Naprstek, 433 F. Supp.
__ ________
at 1370) (emphasis added). The Supreme Court in Texas Teachers
______________
essentially identified Naprstek as an example of a purely "tech-
________
nical" victory that neither prevented any significant risk of
27
27
prospective wrongdoing nor vindicated any genuine previous or
contemporaneous wrong.
These exemplars imply qualitative criteria for determining
"technical or de minimis" success, requiring careful analysis of
__ _______
the materiality of the relief obtained in litigation to the wrong
occasioned the claimant. If the wrong "redressed" was illusory
or contrived, even comprehensive "relief" may amount to mere
technical or de minimis success.
__ _______
The third exemplar cited in Texas Teachers is New York City
______________ ______________
Unemployed and Welfare Council v. Brezenoff, 742 F.2d 718, 724
_______________________________ _________
n.4 (2d Cir. 1984) [hereinafter Brezenoff II], where the district
____________
court denied a section 1988 award because plaintiffs' success was
considered purely technical or de minimis. In Brezenoff II, the
__ _______ _______________
constitutional violations alleged in the complaint were compared
with the relief obtained in litigation.19 The plaintiff orga-
nization and some of its members launched a broadside against the
regulatory framework through which the defendant agency allegedly
fettered access to government buildings and restricted organiza-
____________________
19Although ostensibly Brezenoff II compared the wrongs alleged
____________ _______
with the relief obtained, the net effect of its analysis, as in
the Texas Teachers hypothetical and Naprstek, correctly resulted
______________ ________
in a qualitative comparison between the demonstrated wrong and
the relief obtained. We submit that the "degree of success"
achieved, which goes to the amount of the fee award, Texas
______ _____
Teachers, 489 U.S. at 790, 793; Nadeau, 581 F.2d at 281, is to be
________ ______
strictly distinguished from the quality of the relief obtained in
_______
relation to the nature and significance of the established
___________
wrongdoing, which goes to the entitlement to a fee award vel non.
___ ___
28
28
tional activities inside government buildings.20 Ultimately,
the only relief the plaintiffs obtained was an order requiring
that at least one representative be permitted to move freely
about the designated IMC reception area. A comparative analysis
of the unconstitutional action and the relief obtained demon-
strates that the lawsuit effected no material alteration in the
________
relevant legal relationship out of which the litigation arose.
The remedial alteration in the legal relationship between the
parties amounted to a nick in the agency's regulatory armor.
Neither the fabric nor the design of the regulatory framework was
altered by the ruling hardly an indictment of agency overdra-
fting that one member of each organization must be allowed to
walk about the reception area. Thus, the Court's citation to
Brezenoff II illustrates that the success achieved may be consid-
____________
ered technical or de minimis if the relief effected too insub-
__ _______
____________________
20The complaint charged that four regulations promulgated by the
New York City Human Resources Administration infringed the
constitutional rights of the plaintiff organization's members "to
converse with, distribute leaflets to, and collect contributions
from welfare recipients and applicants on the premise of the
City's Income Maintenance Centers ('IMCs')." New York City
______________
Unemployed and Welfare Council v. Brezenoff, 677 F.2d 232, 234
_______________________________ _________
(2d Cir. 1982) [Brezenoff I]. Plaintiffs failed to demonstrate
___________
the unconstitutionality of the challenged regulations narrowly
confining organization activities to the first-floor reception
areas of the IMCs, requiring a one-day notice of intent to
utilize the IMC distribution tables, and banning solicitation of
membership fees and contributions inside the IMCs. Instead, a
minor provision in one of the four challenged regulations was
ruled unduly restrictive; that is to say, insofar as it required
all representatives of the plaintiff organization to remain at
______ __
the IMC tables.
29
29
stantial an alteration in the overall legal relationship out of
which the litigation arose.
The fourth exemplar offered in Texas Teachers provides similar
______________
guidance. In Chicano Police Officer's Ass'n v. Stover, 624 F.2d
______________________________ ______
127, 131 (10th Cir. 1980), the Tenth Circuit ruled that nuisance
settlements do not represent "relief" of the sort required for
"prevailing party" status. Its instruction is not unlike that
found in a seminal First Circuit case. See Nadeau, 581 F.2d at
___ ______
281 (action must not have been "frivolous, unreasonable, or
groundless"). Furthermore, it is in the nature of nuisance
settlements that the benefits tendered in settlement have less to
do with the intrinsic merit of the claim than with the cost of
defending against it.21
____________________
21On the other hand, a conventional settlement of a significant
claim may entitle the claimant to "prevailing party" status even
in the absence of a final judgment. Maher v. Gagne, 448 U.S.
_____ _____
122, 129 (1980). See Forrest v. New York City Criminal Justice
___ _______ ______________________________
Agency, 549 F. Supp. 211, 213 (S.D.N.Y. 1982) (rejecting defen-
______
dant's "nuisance settlement" defense to plaintiff's claim for a
1988 attorney fee award: "Both the amount and the timing of the
settlement make clear that it was not a means employed by defen-
dants to be free of a frivolous claim.") (emphasis added); see
_ _________ _____ ___
also Ashley v. Atlantic Richfield Co., 794 F.2d 128, 134 & n.9
____ ______ ______________________
(3d Cir. 1986) ("nuisance settlement" inquiry not to be undertak-
en as part of "prevailing party" determination, but as part of
"special circumstances" determination, and stating that "the
focus should be on the lack of merit in the plaintiff's case").
Cf. Dowling v. Narragansett Capital Corp., 735 F. Supp. 1105,
___ _______ ___________________________
1111 (D.R.I. 1990) (stating that one of the purposes behind Fed.
R. Civ. P. 9(b), particularly in the context of securities
litigation, is to "deter groundless claims that are asserted
__________ ______
solely for tactical reasons or for purposes of extracting nui-
__________ ____
sance settlements") (emphasis added).
_____ ___________
30
30
The next guidepost in Texas Teachers is its admonition that the
______________
"degree of success" achieved in litigation goes to the reason-
ableness of the amount of the award and "not to the availability
______
of a fee award vel non," Texas Teachers, 492 U.S. at 793; id. at
___ ___ ______________ __
790; that is, not to the "prevailing party" determination. Texas
_____
Teachers clearly considers "degree of success" a nonqualitative
________ ___
criterion relating exclusively to the amount of an award, rather
than its availability.
Thus, Texas Teachers and its precursors are not prologue to the
______________
quantitative "prevailing party" test advocated by appellants.
Instead, differences in the degree of success achieved are
reflected in the amount awarded; whereas differences in kind, as
______
suggested by the Court's articulation of the residual de minimis
__ _______
success standard ("significance," "materiality"), require quali-
tative assessments pertaining principally to the claimant's
eligibility for a fee award. Throughout its discussion in Texas
_____
Teachers, and particularly its references to the "degree of
________
success" achieved in litigation, see id. at 790, 793, the Court
___ ___
appears to intend a quantitative assessment of the claimant's
success only in relation to the reasonableness of the amount of
the fee awarded a "prevailing party."
The "prevailing party" criteria endorsed in Texas Teachers
_______________
inquire whether the plaintiff (i) obtained relief on a signifi-
________
cant claim in litigation, (ii) effecting a material alteration in
____ ________
the parties' legal relationship, (iii) that is not merely techni-
31
31
cal or de minimis in nature. See Texas Teachers, 492 U.S. at
__ _______ ___ _______________
791-93 (emphasis added). Whereas the "degree of success"
achieved in litigation may affect the amount awarded, the third
______
criterion for "prevailing party" status superimposes a residual
limitary standard on its companion criteria designed to ensure
that entitlement to an award will depend on the qualitative
___________ ___________
significance of the relief obtained, in terms of its materiality
______ ___________
to the legal relationship which occasioned the unconstitutional
action.22
Domegan obtained a final judgment for damages on a significant
constitutional claim. See Carey v. Piphus, 435 U.S. 247, 266
___ _____ ______
(1978) (as procedural due process is an "absolute" right, its
denial is actionable without proof of actual injury, because of
"the importance to organized society that procedural due process
be observed").23 Although the monetary damage award is minus-
____________________
22In Brezenoff II, for example, the decree derailing the "walk-
____________
about" restriction afforded relief that effected a purely techni-
cal alteration in the legal relationship that gave rise to the
claims in litigation. The hypothetically-limited relief dis-
cussed in Texas Teachers brought no relief, since the requirement
______________
of permission to use school premises during non-school hours was
never actuated or threatened. Similarly, the putative risk of
injury in Naprstek was "'more contrived than real[,]'" Nadeau,
________ ______
581 F.2d at 279 n.3, and in Stover the nuisance settlement lacked
______
the required nexus to a significant claim.
23Carey, 435 U.S. at 266, has never been limited in any Supreme
_____
Court case arising under section 1988. See City of Riverside v.
___ _________________
Rivera, 477 U.S. 561, 574 (1986) (plurality op.) ("reasonable
______
fee" case, citing to Carey's "nominal damages" discussion in
_____
support of Rivera view that "a civil rights plaintiff seeks to
______
vindicate important civil and constitutional rights that cannot
be valued solely in monetary terms."); id. at 594 (Rehnquist, J.,
___
32
32
cule in amount, in the eyes of the law its remedial significance
is substantial, as society recognizes the intrinsic deterrent
effect in judgments against public officials who violate proce-
dural due process rights guaranteed under the Constitution. See
___
id. & infra note 32; see also Memphis Community Sch. Dist. v.
___ _____ ___ ____ _____________________________
Stachura, 477 U.S. 299, 308 n.11 (1986) (stating: Carey "makes
________ _____
clear that nominal damages . . . are the appropriate means of
'vindicating' rights whose deprivation has not caused actual,
provable injury."). Thus, in these circumstances, the final
judgment awarding nominal damages for violations of the inmate-
plaintiff's absolute constitutional right to procedural due
process cannot be characterized, in any legitimate qualitative
sense, as "purely technical or de minimis success." Furthermore,
__ _______
since the procedural due process deprivation in the present case
is not amenable to monetary reparation, a quantitative assessment
of the relief obtained in litigation would defeat the congres-
sional intent underlying the principles governing fee shifting in
civil rights cases.
The Supreme Court made it abundantly clear in Texas Teachers
_______________
that the ultimate monitor for the "prevailing party" test is
congressional intent. Congress avowedly designed section 1988 to
enable private citizens to vindicate civil rights violations in
____________________
dissenting) (distinguishing Rivera case from "a case such as
______
[Carey], in which the deprivation of a constitutional right
_____
necessarily results in only nominal pecuniary damages.").
33
33
circumstances where the unlikelihood of significant financial
recoveries would deter their remediation due to the otherwise-
unaffordable litigation costs.
If private citizens are to be able to assert their civil
rights, and if those who violate the Nation's fundamental
laws are not to proceed with impunity, then citizens must
have the opportunity to recover what it costs them to vindi-
cate these rights in court.
. . . .
. . . [F]ee awards are essential if the Federal statutes
to which [ 1988] applies are to be fully enforced. We find
that the effects of such fee awards are ancillary and inci-
dent to securing compliance with these laws, and that fee
awards are an integral part of the remedies necessary to
obtain such compliance. . . .
It is intended that the amount of fees awarded under
[ 1988] . . . not be reduced because the rights involved may
be nonpecuniary in nature. . . .
. . . If the cost of private enforcement actions becomes
too great, there will be no private enforcement. If our
civil rights laws are not to become mere hollow pronounce-
ments which the average citizen cannot enforce, we must main-
tain the traditionally effective remedy of fee shifting in
these cases.
S. Rep. No. 1011, 94th Cong., 2d Sess. 2, 5, 6 (1976), reprinted
_________
in 1976 U.S.C.C.A.N. 5908, 5910, 5913. See also Furtado v.
__ ___ ____ _______
Bishop, 635 F.2d 915, 919 (1st Cir. 1980) (emphasizing that
______
1988 is meant to finance litigation in cases which apply
(rather than create) legal rules, and stating that "pathbreaking
holdings that will not be enforced are of limited public value,"
adding that "the 'principle' of enforcement is served by suits
__
that 'merely' seek damages." (emphasis in original)).
34
34
Especially significant in the circumstances of the instant case
is Congress' explicit pronouncement that "the amount of fees
awarded under [ 1988] . . . not be reduced because the rights
involved may be nonpecuniary in nature." S. Rep. No. 1011, at 6,
reprinted in 1976 U.S.C.C.A.N. at 5913. As the Supreme Court
_________ __
similarly observed, "Congress enacted 1988 specifically to
enable plaintiffs to enforce the civil rights laws even where the
amount of damages at stake would not otherwise make it feasible
for them to do so . . . ." City of Riverside v. Rivera, 477 U.S.
_________________ ______
561, 577 (1986) (plurality op.).24
____________________
24Four years before Congress enacted the Civil Rights Attorney's
Fees Awards Act of 1976 (the "Act"), this court reversed a
district court order denying a fee award to a successful 1982
claimant. The reversal was predicated on public policy consider-
ations which were explained as follows:
The violation of an important public policy may involve
little by way of actual damages, so far as a single individu-
al is concerned, or little in comparison with the cost of
vindication, as the case at bar illustrates. If a defendant
may feel that the cost of litigation, and, particularly, that
the financial circumstances of an injured party may mean that
the chances of suit being brought, or continued in the face
of opposition, will be small, there will be little brake upon
deliberate wrongdoing.
Knight v. Auciello, 453 F.2d 852, 853 (1st Cir. 1972) (per
______ ________
curiam).
These very words were quoted four years later on the floor of
the United States Senate by the sponsor of the Senate bill subse-
quently enacted into law as the Act. 122 Cong. Rec. 33, 313-14
(1976) (remarks of Sen. Tunney); see 122 Cong. Rec. 33,314 (1976)
___
(remarks of Sen. Kennedy) ("[C]ivil rights cases unlike tort
or antitrust cases do not provide the prevailing plaintiff
with a large recovery from which he can pay his lawyer."), quoted
______
in Rivera, 477 U.S. at 577 (plurality op.); see also H.R. Rep.
__ ______ ___ ____
No. 1558, 94th Cong., 2d Sess. 9 (1976) (noting importance of fee
35
35
Unless private citizens are to be denied "the opportunity to
recover what it costs them to vindicate [their civil] rights in
court," S. Rep. No. 1011, at 2, reprinted in 1976 U.S.C.C.A.N. at
_________ __
5910, contrary to the explicit intent of Congress and the in-
struction in Texas Teachers,25 an enforceable final judgment on
______________
____________________
awards in protecting civil and constitutional rights, given
"immunity doctrines and special defenses" which "preclude or
severely limit" availability of damages), reprinted in Subcomm.
_________ __
on Constitutional Rights, Senate Comm. on the Judiciary, 94th
Cong., 2d Sess., Civil Rights Attorney's Fees Awards Act of 1976:
Source Book: Legislative History, Texts, and Other Documents 217
(Comm. Print 1976) [hereinafter Source Book].
______ ____
25Throughout the legislative history of the Act, Congress recog-
nized the need to protect civil rights claimants whose financial
circumstances would foreclose litigation aimed at vindicating
deprivations of important nonpecuniary rights. S. Rep. No. 1011,
at 2, reprinted in 1976 U.S.C.C.A.N. at 5910 ("In many cases
_________ __
arising under our civil rights laws, the citizen who must sue to
enforce the law has little or no money with which to hire a
lawyer. If private citizens are to be able to assert their civil
rights . . . then [they] must have the opportunity to recover
what it costs them to vindicate these rights in court."); H.R.
Rep. No. 1558, at 1, reprinted in Source Book 209 (recognizing
_________ __ ______ ____
that it is important that "the judicial remedy [be] full and
complete," and stating, "[b]ecause a vast majority of the victims
of civil rights violations cannot afford legal counsel, they are
unable to present their cases to the courts."); Rivera, 477 U.S.
______
at 577 (plurality op.) (quoting floor debate remarks by members
of Congress). The remarks of Rep. Hamilton Fish are particularly
noteworthy in the present context:
Without the provision of attorney's fees, it would be
very difficult to bring cases such as the following:
. . . .
Fourth. Suits under [42 U.S.C. 1983 et al.] by inmates of
a penitentiary alleging violations of the inmates' rights
under the 1st, 8th, 13th, and 14th amendments.
122 Cong. Rec. 35,126 (1976) (remarks of Rep. Fish).
36
36
a significant constitutional claim which materially alters the
rights and responsibilities of the parties to the legal relation-
ship in which the claim arose cannot be deemed "purely technical
or de minimis" success simply because it vindicates a nonpecuni-
__ _______
ary deprivation. As we are persuaded that the nominal damage
award effected a "material alteration of the legal relationship
of the parties in a manner which Congress sought to promote in
__ _ ______ _____ ________ ______ __ _______ __
the fee statute," Texas Teachers, 492 U.S. at 792-93 (emphasis
___ ___ _______ ______________
added), it cannot be deemed "purely technical or de minimis"
__ _______
success simply because the plaintiff sustained no injury of the
sort traditionally considered amenable to compensatory damages.
c. "Sole Object" Test
c. "Sole Object" Test
_________________
Appellants vigorously urge, however, that no fee award should
have been allowed, as Domegan did not sue for nominal damages but
for substantial compensatory and punitive damages. Relying on
Estate of Farrar v. Cain, 941 F.2d 1311 (5th Cir. 1991), cert.
_________________ ____ ____
granted sub nom. Farrar v. Hobby, 112 S. Ct. 1159 (1992), appel-
_______ ___ ____ ______ _____
lants argue that Domegan's inability to establish an entitlement
to compensatory or punitive damages required a determination that
the nominal damage award represented de minimis success.
__ _______
Appellants' contention runs counter to the formulation in Texas
_____
Teachers, 492 U.S. at 792-93, which precludes consideration of
________
the "degree of success" in connection with the "prevailing party"
test. de Jesus v. Banco Popular de Puerto Rico, 918 F.2d 232,
________ _____________________________
37
37
234 (1st Cir. 1990) (rejecting defendant's attempt to limit
"prevailing party" status to plaintiffs "whose damage awards
closely approximate the sums sought").26 In Estate of Farrar,
_________________
941 F.2d 1311, the Fifth Circuit did not conclude and, we submit,
___
could not have concluded, in light of Carey and the congressional
_____
____________________
26We fail to see how a material alteration of a legal relation-
ship is made "non-material" through reference to relief not
obtained. The corollary that a non-material alteration does
not become material merely because it represents the full relief
sought was recognized in Waterman S.S. Corp. v. Maritime
____________________ ________
Subsidy Bd., 901 F.2d 1119 (D.C. Cir. 1990) (EAJA case), where
____________
the plaintiffs were deemed prevailing parties on the basis of a
district court order remanding their case to the administrative
agency. The Court of Appeals for the District of Columbia
Circuit reversed on the ground that the order of remand afforded
no relief on the merits. The court rejected the contention that
a bare remand constitutes some of the benefit sought by a plain-
tiff whose main purpose in bringing suit was to secure a remand:
To the extent [it is] argue[d] that the concept of benefit
should be proportional to what is sought, we disagree . . . .
It would seem absurd to grant fees to [] a party [seeking
only a remand], while denying them to a party that differs
only in that it asked for a more complete victory . . . and
lost on that . . . . Proportionality would come in only after
an adequate victory is found and the court considers what
share of the fees is reimbursable.
Waterman S.S. Corp., 901 F.2d at 1123; see also Gillespie v.
____________________ ___ ____ _________
Brewer, 602 F. Supp. 218, 223 (N.D.W. Va. 1985) ("The nature or
______
importance of an action does not vary in proportion to the amount
of monetary relief requested.").
Had Domegan sought only nominal damages on his procedural due
process claim, there would be no question, under our analysis,
that the comprehensive relief obtained through the nominal damage
award would be sufficient for "prevailing party" status. Compare
_______
Waterman S.S. Corp., 901 F.2d at 1123. That Domegan may have
____________________
sought compensatory damages, but see infra nn. 28 & 30, would not
___ ___ _____
detract from such a "prevailing party" finding. Of course, as we
have stated, adjustment in the amount of the fee award may be
______ ___
appropriate in certain circumstances in response to a great
disparity between the damages sought and recovered. See, e.g.,
___ ____
Foley v. City of Lowell, 948 F.2d 10, 19-20 (1st Cir. 1991).
_____ ______________
38
38
intent underlying section 1988, that a nominal damage award
invariably constitutes de minimis success. Rather, the court
__ _______
held: "when the sole object of a suit is to recover money
____
damages, the recovery of one dollar is no victory under 1988."
Estate of Farrar, 941 F.2d at 1315 (emphasis added) ("This was no
________________
struggle over constitutional principles. It was a damage suit
and surely so since plaintiffs sought nothing more.").27
Respectfully, we are unable to agree that a bona fide civil
____ ____
rights action converts to a mere "damage suit" simply by an
adjustment to the ad damnum, particularly where the claim can
__ ______
(but need not) be brought only for nominal damages based on an
alleged deprivation of an "absolute" constitutional right. See
___
Carey, 435 U.S. at 266; see also Stachura, 477 U.S. at 308 n.11.
_____ ___ ____ ________
The present cause of action arose under the United States Consti-
tution and was not converted into a mere tort claim for damages
simply because Domegan demanded compensatory relief.28 See
___
____________________
27The Supreme Court rejected the Fifth Circuit's "central issue"
test in Texas Teachers, 489 U.S. at 791. In Estate of Farrar,
______________ ________________
941 F.2d at 1315, the court formulated its "sole object" test.
28We note also that Domegan initially sought declaratory and
injunctive relief but properly refrained from pursuing those
claims following his release from state custody. Cf., e.g.,
___ ____
Rhodes, 488 U.S. at 4 (former inmates not "prevailing parties,"
______
as case became moot before entry of judgment for equitable
relief); Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975) (inmate-
_______ _______
's action for equitable relief from wrongful transfer was mooted
by retransfer of inmate after filing of complaint; there was no
legitimate concern that the wrongful transfer would affect "good
time" or parole decisions, and no reasonable expectation that the
alleged wrong would be repeated); American Postal Workers Union
______________________________
v. Frank, No. 91-1633, slip op. at 9 (1st Cir. July 6, 1992)
_____
39
39
also Blanchard v. Bergeron, 489 U.S. 87, 96 (1989) (rejecting
____ _________ ________
"the notion that a civil rights action for damages constitutes
nothing more than a private tort suit benefiting only the indi-
vidual plaintiffs whose rights were violated") (quoting Rivera,
______
477 U.S. at 574 (plurality op.)).
Domegan did not deny culpability for the disciplinary charges
which led to the AFP placement. Instead, he claimed that he was
wrongfully placed and kept on the AFP without procedural due
process. Accordingly, even if de facto isolation and an inade-
__ _____
quate diet had caused provable injury amenable to monetary
compensation, Domegan could not have established an entitlement
to compensation for the substantive deprivation.29 See Carey,
___ _____
435 U.S. at 260, 263; Rodriguez de Quinonez v. Perez, 596 F.2d
______________________ _____
486, 491 (1st Cir.), cert. denied, 444 U.S. 840 (1979). The only
____ ______
wrong occasioned Domegan was the unconstitutional denial of his
absolute right to procedural due process. Although a civil
rights plaintiff may demand compensatory damages for mental and
____________________
("The presence of viable damages claims . . . does not establish
a 'present case or controversy regarding [equitable] relief,'
O'Shea [v. Littleton], 414 U.S. [488,] 495-96 [(1974)].").
______ _________
29Domegan asserted Eighth Amendment claims, and companion sub-
stantive due process claims, for damages allegedly sustained as a
consequence of the wrongful procedural placement on AFP and other
AFP-related conduct by prison officials. The jury found for the
defendants on these claims. Under Texas Teachers, Domegan's lack
______________
of success on those claims, and thus on a large part of his
complaint, goes to the degree of success and the amount of the
1988 award, not its availability. See Texas Teachers, 489 U.S.
___ ______________
at 792.
40
40
emotional distress resulting from a procedural due process
deprivation,30 see Carey, 435 U.S. at 263-64 (damages for men-
___ _____
tal and emotional distress); Maldonado Santiago v. Velazquez
___________________ _________
Garcia, 821 F.2d 822, 829 (1st Cir. 1987) (same), monetary
______
damages are not presumed to flow from the violation. Carey, 435
_______ ___ ________ _____
U.S. at 260-64; id. at 263 ("[W]here a deprivation is justified
___
but procedures are deficient, whatever distress a person feels
may be attributable to the justified deprivation rather than to
deficiencies in procedure.").31
d. Summary
d. Summary
_______
____________________
30Domegan demanded compensatory damages aggregating $50,000 in
___________
connection with all his federal constitutional claims and the
___ ___
state law claim. Moreover, the special verdict form indicates
that the entire $350,000 punitive damage demand related to the
______
Eighth Amendment claim.
31This is in noteworthy contrast to certain other constitutional
violations resulting in nonpecuniary injury, such as deprivations
of the right to vote, for which presumptive damages may be
recoverable for the definite, though not readily measurable, harm
________
presumed to flow from the bare violation. See Stachura, 477 U.S.
___ ________
at 310-11 & 311 n.14 (discussing Nixon v. Herndon, 273 U.S. 536
_____ _______
(1927), and other cases); Carey, 435 U.S. at 264-65 & 265 n.22
_____
(emphasizing that "elements and prerequisites for recovery" for
one constitutional deprivation are not necessarily appropriate
for another; discussing voting rights cases); see also Walje v.
___ ____ _____
City of Winchester, Kentucky, 827 F.2d 10, 12-13 (6th Cir. 1987)
_____________________________
(presumed damages available for First Amendment deprivation not
involving the right to vote); City of Watseka v. Illinois Pub.
_______________ _____________
Action Council, 796 F.2d 1547, 1559 (7th Cir. 1986) (presumed
_______________
damages for deprivation of First Amendment solicitation rights),
aff'd, 479 U.S. 1048 (1987). But cf. Schneider v. Colegio de
_____ ___ ___ _________ __________
Abogados de Puerto Rico, 917 F.2d 620, 639 (1st Cir. 1990)
_________________________
(upholding nominal damage award in First Amendment case where
plaintiff offered no proof of damages), cert. denied, 112 S. Ct.
____ ______
865 (1992).
41
41
Supreme Court analysis on the sufficiency of the relief ob-
______
tained in litigation invariably centers on its capacity to
redress real wrongdoing. The Supreme Court has never ruled (nor
adverted with approval to a case which has held) an award of fees
improper under section 1988 merely because the monetary relief
obtained in litigation was de minimis in amount. All cases
__ _______
adverted to in Texas Teachers involved circumstances in which the
______________
wrong established was more illusory than real, or the relief
_____ ___________ ______
obtained in litigation was so insubstantial in relation to the
________
relevant legal relationship as to be considered "purely technical
or de minimis." Thus, "prevailing party" status in the instant
__ _______
case was neither precluded by the inability to obtain a compen-
satory damage award on the procedural due process claim, nor by
the failure to establish liability on other claims, which are
matters appropriately considered in assessing the reasonableness
of the fee award. See Texas Teachers, 489 U.S. at 793; de Jesus,
___ ______________ __ _____
918 F.2d at 234 (citing Texas Teachers).
______________
Were we to conclude that a nominal damage award in a civil
rights action based on a nonpecuniary deprivation represents mere
de minimis success, we would rule out fee shifting under section
__ _______
1988 notwithstanding that the claimant recovers an enforceable
judgment on a significant constitutional claim. We find no
warrant in Supreme Court caselaw for doing so. See Carey, 435
___ _____
U.S. at 266 (procedural due process deprivation is actionable
without proof of injury because the right to procedural due
42
42
process is "absolute," and "because of the importance to orga-
nized society that procedural due process be observed.");32 see
___
also Stachura, 477 U.S. at 380 n.11 (nominal damage award appro-
____ ________
priate to vindicate rights whose infringement causes no "actual"
injury). Thus, we do not understand Texas Teachers to condone
_______________
(let alone require) disentitlement to "prevailing party" status
merely because the final judgment redressing a procedural due
process violation awards only nominal damages.
A nominal damage award based on a denial of the predeprivation
process due the claimant whose culpability is later conceded
presents a tantalizing candidate for characterization as "techni-
cal or de minimis success." Yet to do so would be to conclude
__ _______
that the constitutional violation itself was de minimis, which
__ _______
cannot be done under current Supreme Court caselaw, see, e.g.,
___ ____
Carey, 435 U.S. at 266, our own precedent, see, e.g., Perez v.
_____ ___ ____ _____
University of Puerto Rico, 600 F.2d 1, 2 (1st Cir. 1979), or the
_________________________
congressional intent underlying section 1988. We therefore
conclude that "prevailing party" status is appropriate where the
claimant establishes a significant procedural due process depri-
vation and obtains an enforceable nominal damage award against
the responsible public officials.
____________________
32Significantly, the Court noted in Carey that "the potential
_____
liability of 1983 defendants for attorney's fees . . . provides
additional and by no means inconsequential assurance that
agents of the State will not deliberately ignore due process
rights." Carey, 435 U.S. at 257 n.11.
_____
43
43
2. Special Circumstances
2. Special Circumstances
_____________________
Appellants argue that Domegan is entitled to no fee award,
because he allegedly exhibited an "inexcusable reaching for fees"
by submitting an inflated fee application. See Lewis v. Kendric-
___ _____ ________
k, 944 F.2d 949, 958 (1st Cir. 1991) (on rehearing).33 In
_
Lewis, we denied a fee award where the application reflected (1)
_____
no "good faith" effort to exclude excessive, redundant, or other-
wise unnecessary hours, (2) no reduction for time spent on unsuc-
cessful claims, and (3) no allowance for the limited "degree of
success" achieved by the plaintiff. Id. at 957-58 (relying on
___
Hensley v. Eckerhart, 461 U.S. 424, 434, 436 (1983)). On the
_______ _________
other hand, the present fee request reflects reasonable regard
for the concerns expressed in Lewis, as evidenced in part by the
_____
fact that the number of hours for which compensation was request-
ed approximates only one third of the hours counsel devoted to
the litigation. These self-imposed, pre-application cuts sub-
stantiallyanticipated
virtuallyallofappellants'
presentcontentions.34
____________________
33As the present claim is raised for the first time on appeal, we
review for "plain error" indicative of "a 'clear miscarriage of
justice' . . . ." Playboy Enterprises, Inc. v. Public Serv.
__________________________ ____________
Comm'n., 906 F.2d 25, 40 (1st Cir.) (quoting Brown v. Trustees of
_______ _____ ___________
Boston Univ., 891 F.2d 337, 359 (1st Cir. 1989), cert. denied,
_____________ ____ ______
111 S. Ct. 388 (1990)).
34An examination of certain objections raised by appellants
demonstrates that the fee application was prepared with no
purpose to inflate fees. For instance, appellants suggest that
Procter & Hoar's over-staffing and personnel changes caused "a
spate of conferences, cross-conferences, drafts, revisions, edits
of other people's drafts and revisions, etc., for which plaintiff
sought compensation." Our review of the application allays any
44
44
Appellants contend that the fee application inadequately
reflected the limited "degree of success" achieved in litigation,
as demonstrated by the sizeable reduction imposed by the district
court, and, therefore, that the total compensation requested was
____________________
such concerns. Approximately 267 of the 352 time entries in the
fee application pertain to services performed by the lead partner
and the primary associate who took charge of the litigation
several years after Procter & Hoar was appointed. Moreover, the
application pares the total hours billed, in recognition of the
fact that "some of the time billed was redundant, owing to
unavoidable changes of staffing on the case, or was less effi-
cient than it might have been because some assignments were given
in the first instance to law clerks and interns."
Appellants further contend that the fee request was inflated,
because, they say, virtually the entire trial was dedicated to
litigating the unsuccessful claims, lead trial counsel sought
compensation for more than ten hours daily even though the trial
was conducted on a half-day basis, and compensation was requested
for two trial attorneys. Nevertheless, it was not improper to
request compensation for the trial time spent securing the due
process nominal damage award. In recognition of the lack of
success on the other claims, compensation was requested for only
one third of the trial time. Contrary to appellants' suggestion,
moreover, we do not find the pretrial discovery entries exces-
sive, nor, for the most part, inclusive of work for which compen-
sation should not have been sought. Virtually all of the discov-
ery services for which compensation was requested (including the
deposition of a Department of Correction nutritionist and the
interrogatories propounded to victorious defendants) were not
plainly unrelated to the successful due process claim, in support
of which evidence was needed to establish the existence and
nature of the due process deprivation. See infra note 40.
___________ ___ _____
Appellants point to a handful of "mixed" entries pertaining to
amendments to the complaint which are not compensable because
they related to unsuccessful claims (even though each entry
included some compensable services as well). Likewise, a number
of other "mixed" entries relating to unsuccessful claims should
not have been included in the fee application. But for these
minor exceptions, however, the fee application accorded due
regard to the requirement that compensation not be sought for
services rendered on unsuccessful claims. In all fairness, we
cannot conclude that these lapses in precision fee-cutting
approached those involved in Lewis, such that the present award
_____
again should be slashed under the "special circumstances" test.
45
45
inflated. Our review discloses, however, that appellants neither
identify any substantial failure of "reasonable compliance with
the judicial pronouncements" relating to fee requests, Lewis, 944
_____
F.2d at 958 (on rehearing), nor challenge the veracity of the
time sheets or the supporting affidavits. Although we conclude
that further reductions are required, we discern no basis for
questioning the bona fides of the fee application under the
____ _____
"special circumstances" exception.
3. Size of the Award
3. Size of the Award
_________________
The fee application requested an award totaling $86,016.80 for
legal services performed during the five-year period spanned by
the litigation. The district court found "the rates and hours
charged for various aspects of the case to be reasonable,"35
____________________
35The only appellate challenge to the reasonableness of these
hourly rates asserts that the district court was required to com-
pensate counsel at different rates for different services, but
instead allowed a flat hourly rate for all legal services per-
formed by the same attorney. We do not accept Domegan's conten-
tion that appellants waived their right to contest the reason-
______
ableness of the fee award on this basis by reason of their
failure to present evidence as to reasonable hourly rates. Cf.
___
Blum v. Stenson, 465 U.S. 886, 892 n.5 (1984) (failure to present
____ _______
evidence supporting challenge to the "accuracy and reasonableness
of the hours charged"). Nevertheless, their failure to present
evidence that the flat rates approved by the district court were
unreasonable means that appellants cannot prevail on their "flat
_______
rate" challenge. Since the "bottom line" is a reasonable fee
award, their "flat rate" challenge cannot succeed unless appel-
lants show that the flat rates allowed by the district court were
not reasonable average rates for the types of legal services
determined compensable by the district court. We do not think
appellants can manage their burden without establishing the
hourly rates which they would propose be used in place of the
flat rates approved by the district court, especially since the
46
46
but halved the request to reflect the limited degree of success
achieved in litigation. See Hensley, 461 U.S. at 434-37. The
___ _______
$41,441.55 award purportedly allowed compensation only for the
388.5 hours "explicitly spent on the due process issue, the
summary judgment motion, and the [interlocutory] appeal . . . ."
We review the reasonableness of the attorney fee award for
abuse of discretion, finding an abuse "'when a material factor
deserving significant weight is ignored, when an improper factor
is relied upon, or when all proper and no improper factors are
assessed, but the court makes a serious mistake in weighing
them.'" Foster v. Mydas Assoc., Inc., 943 F.2d 139, 143 (1st
______ ___________________
Cir. 1991) (quoting Independent Oil & Chem. Workers of Quincy,
____________________________________________
Inc. v. Proctor & Gamble Mfg. Co., 864 F.2d 927, 929 (1st Cir.
____ __________________________
1988)). "District courts have discretion when awarding fees and
expenses under 42 U.S.C. 1988, [Hensley], and appellate courts
_______
accord deference to the exercise of that discretion." Grendel's
_________
____________________
approved rates do not appear excessive on their face. Although
appellants contend that flat rates are impermissible as a matter
of law, we have never indicated as much, see infra p. 52; nor do
___ _____
we believe it necessary to reach the issue on the present record.
See Foley v. City of Lowell, Mass., 948 F.2d 10, 21 (1st Cir.
___ _____ ______________________
1991) (Where "a fee target has failed to offer either counter-
vailing evidence or persuasive argumentation in support of its
position, we do not think it is the court's job [] to do the
target's homework . . . .").
We likewise reject the contention that appellants failed to
preserve their challenges to particular hours billed, by failing
_____
to present countervailing evidence below. These challenges
founded primarily on caselaw, the insufficiency of the billing
entries, and argumentation based on the circumstances in the
present case did not depend on evidentiary support.
47
47
Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984). The
__________ ______
district court enjoys broad discretion in setting the amount of
an attorney fee award. de Jesus v. Banco Popular de Puerto Rico,
________ ____________________________
951 F.2d 3, 5 (1st Cir. 1991) [hereinafter de Jesus II]; United
____________ ______
States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 14 (1st Cir.
______ _________________________
1988). On an "abuse of discretion" review, the basis for the
fee award is to be reviewed carefully, and we must ensure that
the amount is reasonable, but "we normally prefer to defer to any
thoughtful rationale and decision developed by a trial court and
to avoid extensive second guessing." Grendel's Den, 749 F.2d at
_____________
950.
a. Disproportion
a. Disproportion
_____________
Appellants contend that the attorney fee award is grossly
disproportionate to the one dollar damage award, particularly in
light of the damages demanded. The amount of the monetary
recovery is "certainly [a] relevant" factor to be considered in
setting the size of an attorney fee, Rivera, 477 U.S. at 574
______
(plurality op.); Foley, 948 F.2d at 19-20 (amount of damages
_____
relevant to determination of reasonable fee; fee may be reduced
when amount of damages sought is large but recovery small); Home
____
Placement Serv., Inc. v. Providence Journal Co., 819 F.2d 1199,
_____________________ _______________________
1210 (1st Cir. 1987) ("recovery of only nominal damages can be
cause for reducing a fee award if the litigation is not otherwise
significant") (Clayton Act case); Perez, 600 F.2d at 2 (nominal
_____
48
48
damage award one factor that may affect amount of fee).
Nevertheless, disproportion alone does not render an award
unreasonable, Rivera, 477 U.S. at 574 (plurality op.); id. at 585
______ ___
(Powell, J., concurring); Foley v. City of Lowell, Mass., 948
_____ _______________________
F.2d 10, 20 (1st Cir. 1991 ) (reasonable fee may exceed damage
recovery "several times over"), and a judgment for nominal
damages may warrant a substantial fee award. Aubin v. Fudala,
_____ ______
782 F.2d 287, 290-91 (1st Cir. 1986) (suggesting intrinsic value
in "simple declaration of violations of federal law."); Perez,
_____
600 F.2d at 2 n.2 (policy of awarding nominal fees for recovery
of nominal damages would "handicap those seeking to assert civil
rights to the same extent as denying fees altogether"); see also
___ ____
Ruggiero v. Krzeminski, 928 F.2d 558, 564 (2d Cir. 1991) (uphold-
________ __________
ing $12,833.34 fee based on $1.00 damage award); Allen v. Higgin-
_____ _______
s, 902 F.2d 682, 684-85 (8th Cir. 1990) ($10,000 fee based on
_
$1.00 damage award); Home Placement Serv., 819 F.2d at 1212
______________________
(awarding $16,989 for portion of litigation relating to nominal
damage award); McCann v. Coughlin, 698 F.2d 112, 129 (2d Cir.
______ ________
1983) (that successful procedural due process claimant who
recovered $1.00 damage award did not warrant reduction in attor-
ney fee award of almost $50,000).36
____________________
36Of course, the "degree of success" achieved in litigation is a
"critical" factor in fixing the amount of an award under section
1988. Texas Teachers, 489 U.S. at 789-90 (discussing Hensley).
______________ _______
Appellants do not contend, however, that the district court
failed to reduce the fee request to reflect the recovery of only
____
a nominal damage award on the procedural due process claim and
49
49
b. Summary Judgment
b. Summary Judgment
________________
Appellants argue that the district court should not have
allowed compensation for all legal services attributed to the
summary judgment proceedings, since a significant portion went
toward the unsuccessful Eighth Amendment claims, which appellants
assert were wholly distinct from the successful due process
claim. See Hensley, 461 U.S. at 434-35 (no compensation allow-
___ _______
able for services on unsuccessful claims segregable from success-
ful ones); Wojtkowski v. Cade, 725 F.2d 127, 130 (1st Cir. 1984)
__________ ____
(same). The district court implicitly determined, however, that
the due process and Eighth Amendment claims were interrelat-
ed.37 As its interrelatedness finding is adequately supported
____________________
the lack of success realized on the other claims in litigation.
Rather, even though the court reduced the number of compensable
hours from 808.3 to 388.5 for these purposes, appellants still
_____
contend that the "extraordinarily high award" constituted an
abuse of discretion. As we find no abuse of the district court's
broad discretion based on the disproportion between the fee
and damage awards see Nydam v. Lennerton, 948 F.2d 808, 813
___ _____ _________
(1st Cir. 1991) (appellate court will not interfere "'[w]here . .
. [a] district court [has] carefully weighed the correct factors
and arrived at a result within a supportable range . . . .'")
(quoting Wojtkowski v. Cade, 725 F.2d 127, 131 (1st Cir. 1984)),
__________ ____
we turn to appellants' demands for further reductions relating to
fees for particular services.
37After observing that "a one dollar award constitutes rather
less than a resounding victory," the district court opinion
quoted the following passage from Hensley:
_______
If . . . a plaintiff has achieved only partial or limited
success, the product of hours reasonably expended on the
litigation as a whole times a reasonable hourly rate may be
an excessive amount. This will be true even where the plain-
tiff's claims were interrelated, nonfrivolous, and raised in
____________
50
50
in the record,38 we see no abuse of discretion in the district
court decision to forego the request to separate the time spent
on interrelated claims where it would have been largely impracti-
cable to do so. Aubin v. Fudala, 821 F.2d 45, 47 (1st Cir. 1987)
_____ ______
[hereinafter Aubin II]; see Hensley, 461 U.S. at 435-36 (focusing
________ ___ _______
on overall success when different claims are legally or factually
__
intertwined); Nydam v. Lennerton, 948 F.2d 808, 812 (1st Cir.
_____ _________
1991) (no abuse of discretion where district court determined
____________________
good faith.
Hensley, 461 U.S. at 436 (emphasis added). The section of the
_______
majority opinion from which the quoted excerpt is taken provides
instruction on the proper approach to fee applications for legal
services on interrelated, nonsegregable claims where the claimant
achieved limited success in litigation.
We think it clear, therefore, that the district court recog-
nized the interrelatedness of these claims. The court awarded
compensation for "only those hours explicitly spent on the due
process issue, the summary judgment motion, and the [defendants'
interlocutory] appeal (including research on qualified immunity
issues) . . . ." As we understand the district court award,
since Domegan's "success [on the interrelated claims] may fairly
be characterized as 'limited,'" attorney fees were awarded only
for the legal services in connection with the summary judgment
litigation and the interlocutory appeal. Additionally, legal
services specifically devoted to the due process claim (i.e., any
such services which could be separated out) were determined
_____
compensable, as that was the only claim on which Domegan "gar-
nered [any] success." See also infra n.40.
___ ____ _____
38For example, even though the due process and Eighth Amendment
claims differed, the "Memorandum in Support of Plaintiff's Motion
for Partial Summary Judgment" reveals that they arose out of the
same circumstances, and both concerned Domegan's placement on the
AFP. Although not all material facts are common to both claims,
the core facts are common. Moreover, both claims were dependent
on the factual investigation and legal research underlying the
portion of the summary judgment memorandum relating to the direct
and supervisory liability of the individual appellants.
51
51
that successful and unsuccessful claims arose from core of common
facts); Fishman v. Clancy, 763 F.2d 485, 491 (1st Cir. 1985)
_______ ______
(same); see also Nydam, 948 F.2d at 813 (appellate court will not
___ ____ _____
interfere "'[w]here . . . [a] district court [has] carefully
weighed the correct factors and arrived at a result within a
supportable range . . . .'") (quoting Wojtkowski, 725 F.2d at
__________
131).
Appellants point to certain time-sheet entries which reflect
services devoted to the successful "due process" claim or the
__
unsuccessful Eighth Amendment claim.39 Of course, the inter-
relatedness finding is not undermined simply because it may have
_______
been practicable to discern some further, partial distinction
_______
between the services rendered on successful and unsuccessful
claims. See Wagenmann v. Adams, 829 F.2d 196, 225 (1st Cir.
___ _________ _____
1987) (upholding interrelatedness finding, noting clearly segreg-
able item on billing sheets); see also Aubin II, 821 F.2d at 47
___ ____ ________
("It might not have been practical for the lawyers to allocate
each hour among the several factually related legal claims.")
____
(emphasis added). For example, a billing entry which distin-
guishes between legal research on different claims does not
necessarily enable a clear allocation of fees where the different
____________________
39Only one of these time-sheet entries was approved in connection
with the fee award for summary judgment services, an entry for
3.8 hours spent on the due process and Eighth Amendment claims,
and the facts section of Domegan's summary judgment memorandum.
___ ___ _____
We adjust for this entry (# 111) as indicated below. See infra
___ _____
note 44.
52
52
claims are factually intertwined. See, e.g., supra note 39. As
_________ ___ ____ _____
these summary judgment claims were interrelated,40 appellants'
complaint that compensation should not have been allowed because
the time entries might have distinguished more sharply between
the due process and Eighth Amendment claims is unavailing in the
present circumstances. See Rivera, 477 U.S. at 570 n.4 (plurali-
___ ______
ty op.) ("[W]hile it is true that some of the disputed time
records do not identify the precise claims worked on at the time,
we find this lapse unimportant, in light of the District Court's
finding that all of respondents' claims were interrelated.").
The award of fees for professional services in the summary
judgment proceedings must also be viewed in the context of the
award as a whole. The district court awarded fees only for
pretrial summary judgment services, the interlocutory summary
judgment appeal, and the services specifically related to the due
____________________
40Appellants urge that these claims were entirely separate, due
to the fact that the Eighth Amendment claim concerned so-called
"substantive conditions of confinement" while on the AFP, whereas
the due process claim dealt with "procedural issues before
______
implementation of the AFP." However, as Domegan points out, one
of the summary judgment disputes turned on whether due process
protection attached, which depended on whether appellants'
actions constituted punishment as distinguished from mere admin-
istrative restraint. The due process portion of the summary
judgment memorandum therefore focused in part on the nature of
the deprivations caused by the AFP placement, and the lack of a
sufficient administrative rationale for the deprivations.
("Nutritionally deficient and unvaried meals in no way advance
the interest in preventing health hazards caused by thrown food
and waste."). Thus, this section of the memorandum did rely on
evidence as to the conditions of confinement while Domegan was on
the AFP.
53
53
process claim. Consequently, due to the interrelatedness of the
Eighth Amendment and due process claims, as a practical matter
essentially no fee award was made for virtually all legal servic-
es devoted to pretrial discovery and to the trial itself, since
such entries did not distinguish among interrelated claims.
Furthermore, with the exception of the time devoted to the
summary judgment proceedings and the related interlocutory
appeal, the district court rationale ensured that counsel were
penalized for any failure to segregate successful and unsuccess-
ful claims on their billing sheets. Thus, the district court
rationale affords counsel a substantial inducement to maintain
detailed time records, wherever practicable clearly delineating
the particular claims and issues to which the legal services
related. See Hensley, 461 U.S. at 437 (billing records should
___ _______
enable court to identify distinct claims); see also Grendel's
___ ____ _________
Den, 749 F.2d at 952 (substantial fee reduction appropriate if
___
detailed contemporaneous time records not kept); Wojtkowski, 725
________ __________
F.2d at 130 (billing sheets should distinguish between particular
issues); Nadeau, 581 F.2d at 279 (same).
______
Careful review reassures us that the district court tailored
its total award to reflect the value of the legal services in
light of the time reasonably required for their performance and
54
54
the degree of success achieved.41 Gabriele v. Southworth, 712
________ __________
F.2d 1505, 1507 (1st Cir. 1983) ("Nor should the judge become so
deluged with details that [s]he is unable to view the claims for
fees in perspective. [S]he must retain a sense of overall
proportion."). There was no abuse of discretion in determining
the number of compensable hours. See United States v. Metropoli-
___ _____________ __________
tan Dist. Comm'n, 847 F.2d 12, 17 (1st Cir. 1988) (separation of
________________
"wheat from chaff" in fee award context is, "within broad lim-
its," a matter for the district court's discretion).42
c.Uniform Hourly Rates
c.Uniform Hourly Rates
____________________
____________________
41In response to the limited "degree of success" achieved in
litigation, the district court halved the fee request, even
_______
though the request sought compensation only for about one third
the total time counsel devoted to the case. Cf. Home Placement
___ _______________
Serv., 819 F.2d at 1211-12 (awarding 50% of fees related to
_____
portion of litigation in which nominal damages were obtained).
42Appellants argue that the district court should have disallowed
fees for legal services on the unsuccessful due process claims
against their codefendants. Yet appellants propose no prac-
ticable method for doing so. See Cobb v. Miller, 818 F.2d 1227,
___ ____ ______
1233-34 (5th Cir. 1987) (reversing fee-reduction order where
plaintiff succeeded on but one of three interrelated claims
against different defendants: interrelated claims did "not arise
from a course of conduct that is easily differentiated on the
basis of each defendant."). The only significant summary judg-
ment services which might conceivably have been distinguished on
such a basis would have been legal research and drafting related
to the supervisory liability of the appellants, as distinguished
___ __________
from their victorious codefendants. As for any other services
which might have been distinguished on the basis of the particu-
lar defendant involved, (e.g., pretrial discovery), the district
____
court allowed no compensation. In sum, appellants have failed to
demonstrate that the fee award includes compensation for any
significant, readily-segregable services specifically relating to
the victorious codefendants.
55
55
Appellants assert error in the district court's approval of a
uniform hourly rate for all legal services performed by each
attorney regardless of the nature of the services rendered (e.g.,
research, conferencing, court appearances). In Maceira v. Pagan,
_______ _____
698 F.2d 38, 41 (1st Cir. 1983), we noted that, "while Miles v.
_____
Sampson, [675 F.2d 5, 9 (1st Cir. 1982),] upon which [appellants]
_______
rel[y], indicates the importance of using more than one rate when
appropriate, it does not hold that differential rates are always
______
required." Maceira, 698 F.2d at 41 (citing cases) (emphasis in
_______
original). Although it would have been within the bounds of the
district court's broad discretion to assign differential rates
for various legal services, appellants proposed no alternate
rates and submitted no evidence that the rates charged by Procter
& Hoar were not reasonable. We find no abuse of discretion in
the decision to forego differential rates in these circumstances.
d.Excessive Hours
d.Excessive Hours
_______________
Appellants contend that the 247 hours attributed to the summary
judgment litigation, and the 152 hours to the related interlocu-
tory appeal, were excessive. The hours determined compensable by
the district court do not appear excessive on their face and no
particular rationale is assigned in support of the allegation of
excessiveness as it relates to the summary judgment litigation.
We recognize that the district court was better situated to
evaluate whether the time spent on these services was reasonably
56
56
necessary. See Foley, 948 F.2d at 19 ("[A]n appellate tribunal
___ _____
lacks the means to replicate the trial court's first-hand knowl-
edge of the litigation and its nuances."); Wagenmann, 829 F.2d at
_________
224-25 (district court "has far greater familiarity than do we
with how much was done, who did it, and how effectively the
result was accomplished"); Chalmers v. Los Angeles, 796 F.2d
________ ____________
1205, 1211 (9th Cir. 1986) ("The district court is in the best
position to determine in the first instance the number of hours
reasonably expended in furtherance of the successful aspects of a
litigation."). We therefore defer to the district court's
informed judgment that the hours devoted to "various aspects of
the case" were reasonably efficient and necessary.43
e.Challenges to Particular Time-sheet Entries
e.Challenges to Particular Time-sheet Entries
___________________________________________
____________________
43Appellants attempt to assign grounds for their contention that
too much time was spent on the interlocutory appeal; we find none
convincing. First, their contention that the request was exces-
sive because Procter & Hoar did not need to compile the appendix
for the interlocutory appeal (for which the district court
allowed 1.5 hours of compensable time) is an insufficient basis
for finding that other, necessary interlocutory appeal services
(research and drafting) did not reasonably require as much time
as claimed. Second, we find particularly unconvincing appel-
lants' overall plaint of excessiveness, as well as their direct
attack on the services performed by one attorney whose (minimal)
time was spent largely in researching interlocutory appellate
jurisdiction, especially since appellants had attempted to
present appellate claims not subject to interlocutory appeal.
See infra, pp. 54-55. The additional time reasonably spent
___ _____
successfully resisting appellants' attempt to assert appellate
jurisdiction where none existed is fully compensable. Although
appellants advance several other objections to the reasonableness
of the hours determined compensable by the district court, we
find none of sufficient moment to warrant discussion.
57
57
Appellants contend that the fee award, contrary to the district
court's own criteria, includes compensation for services not
devoted to the summary judgment litigation, the interlocutory
appeal, or the procedural due process claim. Appellants contest
the allowance of compensation based on certain "mixed" entries
which appear to combine hours devoted to compensable and noncom-
pensable services.
Our concerns about ambiguous time-sheet entries are well recog-
nized. See, e.g., Furtado v. Bishop, 635 F.2d 915, 922 (1st Cir.
___ ____ _______ ______
1980) (disallowing compensation for "Conf[erence] G. Sousa and
travel," since the entry did not indicate the time spent in
conference and "we are disinclined to compensate an attorney at
professional rates for travel time . . . ."). Accordingly, we
have culled out, for disallowance on these grounds, various
"mixed" entries to which appellants have called our attention,
totaling $3,502.60.44 In other respects, we find that the
district court's handling of various "mixed" time entries was
well within its broad discretion. Metropolitan Dist. Comm'n, 874
_________________________
F.2d at 17 (separation of "wheat from chaff," "within broad
limits," is within the discretion of the district court).
Appellants challenge an apparent allowance of compensation
based on "at least three" entries for research relating to
____________________
44Thus, all compensation is denied for the services identified in
the following entries: ## 36, 69, 97, 111, 124, 182, 190, 192,
195, 206, and 207; totaling 37.8 hours.
58
58
interlocutory appellate review. As the defendant state officials
unquestionably were entitled to an interlocutory appeal from the
denial of their motion for partial summary judgment on qualified
immunity grounds, appellants insist that no interlocutory appeal
research was necessary. We remind appellants that there were two
other appellate claims which they had no right to present on
interlocutory appeal. See Domegan v. Fair, 859 F.2d 1059, 1061-
___ _______ ____
62 (1st Cir. 1988) (no interlocutory appeal permitted on two of
appellants' three claims). We have been given no reason to
believe that the services rendered in connection with these three
entries were unnecessary.45
f.Computational Errors
f.Computational Errors
____________________
Finally, appellants assign errors in the computation of the
award, which require that the award be reduced by $165.60 (2.4
hours at $69.00 per hour); $295.00 (5.9 hours at $50.00 per
hour);46 $484.50 (5.1 hours at $95.00 per hour), and increased
____________________
45A fourth billing entry involved "[r]esearch on appealability of
qualified immunity ruling." The 1.7 hours billed for this entry
seem entirely reasonable, as does the .3 hour entry for a con-
ference on the motion to dismiss the appeal and research on
appellate jurisdiction.
46The district court apparently allowed 8.3 hours for services
relating to liability issues at the pretrial discovery stage
which had no connection with the interlocutory appeal or with
qualified immunity. The award is reduced accordingly.
59
59
by $90.00 (1 hour at $90.00) and $40.00 (.4 hours at $100.00).47-
The attorney fee award is reduced to $37,123.85. The district
_________________________________________________ ____________
court judgment is affirmed, as modified; costs to appellee.
__________________________________________________________
- Concurrence Follows -
- Concurrence Follows -
___________________
____________________
47The district court allowed 55.0 hours at $95.00 per hour for
services by Attorney Bagger. As appellants point out, the fee
application claimed that Ms. Bagger spent 49.1 hours of compensa-
ble time (on summary judgment and the interlocutory appeal) at
the $95.00 hourly rate. Our review of the fee request and time
sheets indicates that she actually devoted 49.9 hours, but that
other minor miscalculations necessitate the net adjustment set
forth in the text.
60
60
CAMPBELL, Senior Circuit Judge (Concurring). I join in Judge
CAMPBELL, Senior Circuit Judge (Concurring)
____________________
Cyr's exceedingly thoughtful opinion. Even if one were not fully
persuaded, the result is dictated by this Circuit's prior prece-
dent and our panel is bound by stare decisis. The Supreme Court
will presumably decide the matter definitively next term in
Farrar v. Hobby.
______ _____
61
61