Petition for Writ of Certiorari — Colon v. Feliciano
Supreme Court brief1990
Ask Donna
What actually matters in this document.
Text
Ge 19 OM [sapere conus.”
ED
IN THE Jun 4 wm
ton F. SPANIOL,
Supreme Court of the Anited Srey ocx
OCTOBER TERM, 1989 _
RAFAEL HEKNANDEZ COLON, individually and as
Governor of the Commonwealth of Puerto Rico;
Mercedes Otero de Ramos, individually and as
Administrator of the Corrections Administration of the
Commonwealth of Puerto Rico; and Lorenzo Villalba,
Juanita G6mez, Julio Acevedo Ascencio, individually and
as members of the Parole Board of the
Commonwealth of Puerto Rico,
Petitioners,
v.
CARLOS MORALES FELICIANO, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS
FOR THE FIRST CIRCUIT
HECTOR RIVERA CRUZ
Secretary of Justice of the
Commonwealth of Puerto Rico
JORGE E. PEREZ DIAz
Solicitor General of the
Commonwealth of Puerto Rico
CAROLS DEL VALLE
(Counsel of Record)
Marcos A. RAMIREZ LAVANDERO
A. MANUEL MARTIN
EILEEN LANDRON GUARDIOLA
RAMIREZ & RAMIREZ
269 Ponce de Leén Ave. Second Floor
Hato Rey, Puerto Rico 00917
(809) 758-5660
June 4, 1990
PRESS OF BYRON 8. ADAMS, WASHINGTON, D.C. (202) 347-8203
QUESTIONS PRESENTED
1. Whether interim awards of attorney fees under
§1988 are immediately appealable under the collateral
order doctrine, particularly in cases of protracted in-
stitutional reform litigation with no foreseeable fi-
nality.
2. Whether a writ of prohibition should issue to
review a jurisdictional issue of constitutional rank left
open in Jenkins; namely, whether Jenkins authorizes
a district court to award compounded interest oth-
erwise barred by the Eleventh Amendment as com-
pensation for delay in payment of attorney fees under
§1988.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ...............-..scsccsccssssecseeeees
AE GE CPR ENTED cvtcceanesesesininennietcrsesennnsanaanees
TAMRMe AE REFER ACRE cesscecscccscescnsasssesssassiensennes
RUMEN SEREAT sscecccnicssssessssnsonstannsonsieeianenbenenniis’
FUR TE TIDE hsticvonssnesenisssicinnensinrnannieamnnnnameniania
SLATE TVR V EEE) scisscnsesscusesssrincdsranenssabesasansnne
STATES E CP TMM CRI vicssoscscsssiesiscrsiiennsesens
REASONS FOR GRANTING THE WRIT ...................
A
II.
By reformulating the collateral order doc-
trine as requiring a showing of irreparable
harm equivalent to a right incapable of vin-
dication on appeal, the First Circuit departs
from this Court’s precedents and conflicts
with other Court of Appeals .............
The First Circuit’s denial of the petition for
a writ of prohibition disregards the function
of the writ in resolving jurisdictional issues
of a constitutional rank that arise in pro-
tracted institutional reform litigation and is
conflict with other Court of Appeals ...........
COINCEFEIND osesacssccnscscensdscunsassenensesieeeaaesaeeeaanes
13
17
Nt
TABLE OF AUTHORITIES
CASES Page
— ty Licht & Semanoff, 796 F.2d 564 (1st Cir. ,
Bradley v. Richmond School Bd., 416 U.S. 696
TTI icildilidiubiemccunsnseasesesinseeescaescseseoesecnccees 10
Brewster v. Dukakis, 786 F.2d 16 (1st Cir.
NT tielstibdnentseushendasaastennuassessmesnesssecss 6
Brown v. General Motors Corp., 722 F.2d 1009 (2d
is nacnsascsngsissentarsnneseasescnscnases 10
Cohen v. Beneficial Industrial Loan Corp., 337 U.S.
5 3,passim
Coopers and Lybrand v. Liversay, 437 U.S. 463
Nee Mai inc cesecatsnnsyenncanenscesifhosaseses 7
Dardar v. La Fourche Realty Co., Inc., 849 F.2d
ass ccucnsdenennansannencsace 9
De Beers Consolidated Mines v. United States, 325
lh cikelnkacnindensencesesvascnceessss 12
Evans v. Jeff D., 475 U.S. 717 (1986) ................... 10
Firestone Tire & Rubber Co. v. Risjord, 449 U.S.
adi aictaresnncdecesenssesennsecasevenes 7
Gulfstream Aerospace C v. Mayacamas Corp.,
a s S.Ct, 1133 (1988) inhisheanee 7
Hillery, Jr. v. Rushen, 702 F.2d 848 (9th Cir.
iiainksadhscnsenseecchesevssecsesvensesocess 9
In re Rafael Hernandez Colén, No. 89-2056, slip op.
(ist Cir. January 5, 1990) a. i
La Buy v. Howes Leather Co., 352 U.S. 249
ITER ulinidbnbsnbvactsesessscocssecsenensanscccesses 13,14
Lac Courte Oreilles Indians v. State of Wisconsin,
Bee Bae GOL CIE Cir. 1967) .......ccscccccccccccccees 9
Library of Congress v. Shaw, 478 U.S. 310
arene nesncgniscassssacecscseeceseesGee 15
Lightfoot v. Walker, 826 F.2d 516 (7th Cir
i csceawvecsuncebunusnesceseccccseseees 16
Louisville Black Police Officers Organization, Inc.
v. Louisville, 700 F.2d 268 (6th Cir. 1983) .... 16
iv
Table of Authorities Continued
Page
Missouri v. Jenkins By Agyei, ___ U.S. ___ , 109
fo AES. SEEN. 3,4,5,14,15,16,17
Morales Feliciano v. Hernandez Colén, 697 F.Supp.
ee 3
Morales Feliciano v. Rafael Hernandez Colén No.
89-1997, Slip op. (1st Cir. January 5, 1990) .. 1,7
Morales Feliciano v. Parole Board of the Common-
wealth of Puerto Rico, 887 F.2d 1 (1st Cir.
1989) cert. denied, Herndndez Colén v. Morales
Feliciano, 110 S.Ct. 1511 (1990) ......... 5,10
Moses Cone Memorial Hospital v. Mercury Con-
struction Co, 460 U.S. 1 (1988) ................0.00. 7
National Right to Work Legal Defense and Edu-
cational Foundation v. Richey, 510 F.2d 1239,
1244, cert. denied, 422 U.S. 1008 (1975) ........ 14
Pennsylvania v. Delaware Valley Citizens’ Council,
ee ee WHT NEE candibdbarclnncinsinthdesinlcdincevetin 16
Richardson Merrell Inc. v. Koller, 472 U.S. 424
SRE Winchsoieadiecaidiecahiacllaiinkaaiebiiedaasscakincdiinisiamnnans 7
Roche v. Evaporated Milk Ass’n, 319 U.S. 21
RTI Wanita encdnitidcilidaeiatuinninindatiiatndiennmvinsann 13
Rogers v. Okin, 821 F.2d 22 (1st Cir. 1987) ......... 3
Rosenfeld v. U.S., 859 F.2d 717 (9th Cir. 1988) . 9,15,17
Ruiz v. Estelle, 609 F.2d 118 (5th Cir. 1980) ....... 9
Schlangenhauf v. Holder, 379 U.S. 104
ERR AUNT RS RS 13,14,15,17
Seigel v. Merrick, 619 F.2d 160 (2d. Cir. 1980) .... 12
Shipes v. Trinity Industries, 883 F.2d 339 (5th Cir.
SN sll ciccacaddadaiea eetaimiaiea ciated ccd 8,9
Sierra Club v. EPA, 769 F.2d 796 (D.C. Cir.
SEG cadainaine Riciacauadedentasaniones 16
Table of Authorities Continued
Page
Texas State Teachers Ass’n v. Garland Independent
School District, __._ U.S. ___ , 109 S.Ct. 1486
SII asibildscciescibiniansianiipnistaniabisbiatinciipiiiietadiaibanitieankaie 8
18th Regional Corp. v. U.S. Department of Interior,
654 F.2d 758 (D.C. Cir. 1980) ...................0000. 14
Trustees v. Greenough, 105 U.S. 527 (1881) .......... 12
United States v. Lasher, 481 F.2d 229 (2d Cir. 1973)
cert. denied, 415 U.S. 975 (1974) ............ eee 14
United States v. Jackson, 550 F.2d 830 (2d Cir.
SPUN Naisdiichervkisoabltiaipaieibeiteiailonaaiceaideiiaiiag adimstet binoecet 14
United States v. Palmer, 871 F.2d 1202 (3d Cir.
TTI sca canuaduteidenhsaipbantiaiecnngauabeaiaiddetbabiaibadsiasbenanudepncartn 14
Webster v. Sowders, 846 F.2d 1032 (6th Cir.
aE TOR nT) PO eo OES ND Fe 11
White v. New Por as Dep’t of Employment Se-
curity, 455 U.S. 445 (1982) ....ccccccccccseseceseeeeee. 8
CONSTITUTIONAL PROVISIONS
United States Constitution
I csc ccennnnciisaiemndwaehane il
United States Constitution
Eleventh Amendment ..................c00cceeeees 3,4,12,15,17
FEDERAL STATUTES AND RULES:
I I I ii casi sairdtnceensnbianeionntnns 2
Be ra aia can asec ciapnanabsemniaibiiniiiaoan 2,3,7,12
2B U.S.C. §1292(aN1) ...ecacccccscsecesscssscseseseseeseeees 12
Be ee EE Giinescuincctnesandinniinadnbannenaiinniacaisn 2
Be ire is ID oa sstcnetencsnedecacesescemens 8
NE I RC Ee ae Me $
Or 3,passim
I nO a ar 15
Table of Authorities Continued
PERIODICALS:
Supervisory and Advisory Mandamus Under
the All Writs Act, 86 Harv. L. Rev. 595, 613-
RE OEE LEN 13
IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1989
No. 89- __
RAFAEL HERNANDEZ COLON, et. al.,
Petitioners,
Vv.
CARLOS MORALES FELICIANO, et. al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS FOR THE
FIRST CIRCUIT
Petitioners, Rafael Hernandez Colén, Governor of
Commonwealth of Puerto Rico, Mercedes Otero de
Ramos, Administrator for the Administration of Cor-
rections (““AOC’’), and the current members of the
Parole Board of the Commonwealth of Puerto Rico,
respectfully pray that a writ of certiorari issue to
review the two orders of the United States Court of
Appeals for the First Circuit entered in the above
entitled proceeding on January 5, 1990.
OPINIONS BELOW
The two orders of the Court of Appeals for the
First Circuit are: (a) the order of the court entered
in Carlos Morales Feliciano, et al. v. Rafael Herndn-
dez Colén, No. 89-1997, Slip op. (1st Cir. January 5,
199G); and (b) the order of the Court entered in Jn
re Rafael Herndndez Colén, No. 89-2056, slip op. (1st
Cir. January 5, 1990). Said unreported orders appear
as Appendixes A and B. The underlying opinions of
the district court and a prior related order of the
First Circuit appear as Appendixes C, D and E.
JURISDICTION
The orders of the Court of Appeals were entered
on January 5, 1990. Through order of March 27, 1990,
Justice Brennan extended the time for filing the
petition to and including June 4, 1990. This Court
has jurisdiction to review the orders of the Court of
Appeals for the First Circuit under 28 U.S.C.
§1254(1).
STATUTES INVOLVED
28 U.S.C. §1651(a). Writs
The Supreme Court and all courts established
by Act of Congress may issue all writs nec-
essary or appropriate in aid of their respec-
tive jurisdictions and agreeable to the usages
and principles of law.
28 U.S.C. §1291. Final decisions of district courts
The courts of appeals (other than the United
States Court of Appeals for the Federal Cir-
cuit) shall have jurisdiction of appeals from
all final decisions of the district court of the
United States, the United States District
Court for the District of the Canal Zone, the
District Court of Guam, and the District
Court of the Virgin Islands, except where a
dizxect review may be had in the Supreme
Court. The jurisdiction of the Untied States
Court of Appeals for the Federal Circuit shall
be limited to the jurisdiction described in sec-
tions 1291(c) and (d) and 1295 of this title.
STATEMENT OF THE CASE
This application for a writ of certiorari originates
in an opinion and order of September 20, 1988, issued
by the District Court for the District of Puerto Rico
in Morales Feliciano v. Herndndez Colén, 697 F.Supp.
51 (D.P.R. 1988), awarding interim attorney fees un-
der 42 U.S.C. §1988 to five of plaintiffs’ counsel for
services rendered from 1979 to 1987. Appendix D.
At the time, the district court denied plaintiffs’ re-
quest for compensation for delay, based on Rogers v.
Okin, 821 F.2d 22 (1st Cir. 1987), which held that
tne Eleventh Amendment barred compensation for
delay pursuant to an award of attorney fees. Both
parties appealed. On May 10, 1989, the First Circuit
dismissed said appeals for lack of jurisdiction. Ap-
pendix E. The Court held that an interim award of
attorney fees was not a final order appealable under
28 U.S.C. §1291 nor fell within the collateral order
exception of Cohen v. Beneficial Industrial Loan
Corp., 337 U.S. 541 (1949).
Subsequently, however, the Supreme Court held in
Missouri v. Jenkins By Agyei, __U.S. —__, 109 S.Ct.
2463 (1989) that the Eleventh Amendment did not
bar an adjustment for delay in payment pursuant to
an award of attorney fees under §1988. On September
13, 1989, the district court issued a second award of
interim attorney fees and, relying on Jenkins, con-
temporaneously amended nunc pro tunc its prior in-
terim award of attorney fees of September 20, 1988
to reflect an enhancement for delay “calculated by
compounding the amount of each yearly loadstar fig-
ure at the interest rate which was prevailing at the
end of each corresponding year.’’ Appendix D. Said
compounded interest was calculated on the basis of
the historical year-end prime interest rate.
In its original order of September 20, 1988, the
Court awarded $722,275 in attorney fees on the basis
of the lodestar plus an enhancement of 30% which
raised the total attorney fees award to $934,897.95.
As a result of the award of compounded interest, the
original award dramatically increased by
$2,086,796.42, for a total award of $3,021,405.37.
Simultaneously, with respect to the second fee ap-
plication covering services rendered from December
1987 to July 1989, the district court awarded a lode-
star fee of $251,305.00 plus an enhancement of
$72,920.00, for a total award of $324,225.00. This
enhancement was predicated on the following factors:
(a) the undesirability of the case; (b) its public im-
portance; and (c) the preclusion of more renumerative
employment.
As a result, petitioners filed both a petition for a
writ of prohibition and a new appeal. In the petition
for the writ of prohibition, petitioners asserted that
Jenkins left open the important question of whether
the allowance of compensation for delay could include
the imposition of compounded interests otherwise
barred by the Eleventh Amendment. Mandamus was
appropriate because this issue presented a novel and
important jurisdictional question of constitutiona! rank
subject to repetition before effective review.
In the appeal, petitioners presented the Jenkins is-
sue, and three additional questions of statutory exe-
gesis under §1988: whether §1988 allowed for an
enhancement on the three factors relied upon by the
district court; whether the lodestar adcpted reflected
the prevailing community rates; and whether counsel
should be compensated for work on a unsuccessful
appeal. The use of the enhancement and the lodestar
adopted by the district court had already been mis-
applied in the two fee awards to date and was likely
of continued misapplication in future fee awards.
In response to an order to show cause why the
second appeal should not be dismissed, petitioners dis-
tinguished the dismissal of the appeal of the first fee
award on two grounds. First, the award of com-
pounded interest pursuant to Jenkins implicated ju-
risdictional and constitutional concerns absent from
the first appeal. Second, the intervening First Circuit
decision in the same underlying litigation, Morales
Feliciano v. Parole Board of the Commonwealth of
Puerto Rico, 887 F.2d 1 (1st Cir. 1989), cert. denied
by Herndndez Colén v. Morales Feliciano, 110 S.Ct.
1511 (1990), adroitly acknowledged the distinctive
characteristic of this protracted institutional reform
litigation warranting interlocutory review. There, the
court of appeals recognized that the case was a dec-
ade-old litigation with no end in sight: ‘Although the
district court has not entered a judgment called ‘fi-
nal,’ its injunction and later decrees are functionally
equivalent to a final determination of the legal merits,
for the parties no longer dispute their legal] validity
and the district court seems unlikely to make any
further ‘final’ determination of the merits in the near
future.’ Parole Board, 887 F.2d at 4. Thus,
petitioners contended, the second award of fees and
compounded interest was functionally equivalent to
the continuing post-judgment monitoring attorney fees
over which the First Circuit exercised jurisdiction in
Brewster v. Dukakis, 786 F.2d 16 (1st Cir. 1986).
The Court of Appeals summarily denied the petition
for a writ of prohibition in one sentence: “It does
not present the extraordinary circumstances neces-
sary to grant such petition.”” See Appendix B.
On the same date, the First Circuit dismissed
petitioners’ appeal because it did not fall within the
purview of Cohen’s collateral order doctrine. In its
order of January 5, 1990, the Court assumed, ar-
guendo, that the separability, finality and importance
criteria of Cohen were present. It dismissed the
appeal, however, because “‘it fails, as it did before,
on the ground that no irreparable injury would occur
if immediate review were withheld.”” Appendix A.
This petition for a writ of certiorari ensued.
REASONS FOR GRANTING THE WRIT
I. By reformulating the collateral order doctrine as re-
quiring a showing of irreparable harm equivalent to
a right incapable of vindication on appeal, the First
Circuits departs from this Court’s precedents and
conflicts with other Court of Appeals
The First Circuit’s dismissal of petitioners’ appeal
under the collateral order doctrine significantly de-
parts from Cohen’s legacy by requiring a showing of
irreparable harm that the court equates with a right
incapable of vindication on appeal. This reformulation
of the Cohen test practically extinguishes the collat-
eral order doctrine from those situations were it is
the ‘most warranted: in cases of protracted institu-
tional reform litigation where final judgment is not
foreseeable.
In Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541 (1949), this Court recognized a subset of
decisions that are appealable under 28 U.S.C. §1291
even though they do not terminate the underlying
litigation. Since Cohen, this Court has had occasion
to revise and refine the collateral order exception to
the final judgement rule. See Coopers and Lybrand
v. Liversay, 437 U.S. 463 (1978); Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368 (1981); Moses
Cone Memorial Hospital v. Mercury Construction Co.,
460 U.S. 1 (1983); Richardson Merrell Inv. v. Koller,
472 U.S. 424 (1985); Gulfstream Aerospace Corp. v.
Mayacamas Corp., __U.S. __, 108 S.Ct. 1133 (1988).
In these cases, the Court has articulated a three-
pronged test to determine whether an order that does
not finally resolve a litigation is nonetheless appeal-
able under §1291: (a) first, the order must ‘“‘conclu-
sively determine the disputed question’; (b) second,
the order must “‘resolve an important issue completely
separate from the merits of the action”; and (c) fi-
nally, the order must be “effectively unreviewable on
appeal from a final judgment.’ Coopers, 437 U.S. at
468. Each of these prongs is a necessary condition
that must be met.
In its decision of January 5, 1990 in No. 89-1997,
the First Circuit dismissed petitioner’s appeal because
“it fails, as it did before, on the ground that no
irreparable injury would occur if immediate review
were withheld.”” Apx. at 2a. Revealingly, the First
Circuit identified irreparable injury as the ‘‘core con-
cern of the Cohen exception” and cited Appeal of
Licht & Semanoff, 796 F.2d 564, 571 (1st Cir. 1986)
for the proposition that irreparable injury requires a
“right incapable of vindication of appeal.’’ Jd. In its
prior order of May 10, i989, the Court dismissed the
appeal because ‘‘[o]ther than the speculative claims
that the fees, once paid, may not be recoverable, the
appellants making the claim of irreparable harm have
failed to show that delaying appellate review of the
fee award will destroy the legal and practical value
of an appeal or that it will make an effective review
impossible.”’
The Fifth, Seventh and Ninth Circuits have coin-
cided with the First Circuit in finding that an award
of interim attorney fees falls short of the collateral
order exception due to the availability of relief at the
end-of-the-case appeal. An exemplary case is Shipes
v. Trinity Industries, 883 F.2d 339 (5th Cir. 1989),
where the Fifth Circuit examined the appealability of
an interim fee award under 42 U.S.C. sec. 2000e-5(k)
granted by the district court in a Title VII employ-
ment discrimination suit. With respect to the first
factor, the court noted that White v. New Hampshire
Dep’t of Employment Security, 455 U.S. 445, 452
(1982), which held that a post-judgment motion for
attorney’s fees under §1988 is uniquely separable from
the cause of action to be proved at trial, suggested
that interim fees are separable from the merits. The
court, however, was hesitant to find the second Cohen
factor present because an appeal on the merits was
still pending, and the possibility of reversal could re-
voke plaintiffs’ standing as prevailing parties. Shipes,
883 F.2d 339 (5th Cir. 1989). In the instant petition,
said concern is absent because petitioners have con-
ceded plaintiffs’ status as prevailing party for the lim-
ited purpose of the interim attorney fees, in light of
Texas State Teachers Ass’n v. Garland Independent
School District, __ U.S. —_, 109 S.Ct. 1486 (1989)
(‘‘a prevailing party is one who has succeeded on any
significant claim affording it some of the relief sought,
either pendente lite or at the conclusion of litiga-
tion.’’). As with the First Circuit, the court stressed
the availability of post-judgment review, since
defendants could “recover [the interim attorney fees]
should the judgment be reversed at some later point.”’
Shipes, 883 F.2d at 345. See Ruiz v. Estelle, 609 F.2d
118 (5th Cir. 1980); Dardar v. LaFourche Realty Co.,
Inc., 849 F.2d 955 (5th Cir. 1988).
Likewise, in Lac Courte Oreilles Indians v. State
of Wisconsin, 829 F.2d 601 (7th Cir. 1987), an Indian
rights claim under §1983, the Seventh Circuit found
the Cohen exception unavailing to review an interim
award of attorney fees where appellants failed to show
irreparable harm if the appeal is postponed at the
end of litigation.
A similar result was reached in Rosenfeld v. U.S.,
859 F.2d 717 (9th Cir. 1988), where the Ninth Circuit
held that an interim fee award under FOIA was not
appealable under the collateral order doctrine because
the government could recoup any erroneously awarded
interim fees upon appeal of the district court’s final
disposition of the litigation. Rosenfeld, 859 F.2d at
721. See Hillery, Jr. v. Rushen, 702 F.2d 848 (9th
Cir. 1983Xdeciding without discussing that interim
award of attorneys fees under §1988 was not appeal-
able collateral order).
The problem with this line of ‘‘recoupment theory”’
cases is that by insisting that the right asserted must
be incapable of vindication on an appeal following a
final judgment, they overstate the third prong of the
collateral order doctrine—effectively unreviewable on
appeal from a final judgment—beyond any functional
10
utility in institutional reform cases.! While traditional
cases do not enjoy perpetual existence, the new breed
of institutional reform litigation in areas such as racial
segregation and prison conditions frequently are of
unaugurable duration. In civil rights cases concerning
“relief of an injunctive nature that must prove its
efficacy only over a period of time ... many final
orders may issue in the course of litigation’”’ which
may not rise to the stature of a final judgment. Brad-
ley v. Richmond School Bd., 416 U.S. 696, 722-23
(1974).
The “effectively unreviewable’”’ requirement of Coh-
en’s third prong is significantly more supple than the
First Circuit’s restrictive paraphrase of a “right in-
capable of vindication on appeal.’’ The latter is a me-
chanistic formula incapable of vindicating the
legitimate interests that may arise in the course of
the dynamic, ongoing judicial intervention that char-
acterizes institutional reform litigation. It is scaf-
folded on the premise that in traditional litigation a
final judgment is a reasonable expectation. This prem-
ise, however, is frequently absent from protracted in-
stitutional reform litigation such as the one in which
petitioners are involved. The underlying case is eleven-
years old and even the First Circuit was forced to
acknowledged that the district court was ‘‘unlikely to
make any further ‘final’ determination of the merits
in the near future.’’ Parole Board, 887 F.2d at 4.
1 The premise of these cases, that the statutory fees goes to
the attorney who is more likely than his client to conserve the
assets for eventual restitution, is erroneous as a matter of law.
Under §1988, the fees belong to the party and not the attorney.
Evans v. Jeff D., 475 U.S. 717, 730 n.19 (1986); Brown v. Gen-
eral Motors Corp., 722 F.2d 1009, 1011 (2d Cir. 1983).
11
This circumstance renders petitioners appeal ‘“‘effec-
tively unreviewable’”’ almost by definition. At the very
least, in order to determine whether an order is ‘‘ef-
fectively unreviewable,”’ it is necessary to go beyond
the First Uircuit’s wooden test. Cohen requires a per-
ceptive probe of the nature of the underlying litiga-
tion, the magnitude of the interests at stake, and the
need for regulatory intervention.
In contrast to the First Circuit, the Sixth Circuit
has articulated a more balanced approach for meas-
uring Cohen’s third prong. Webster v. Sowders, 846
F.2d 1032 (6th Cir. 1988) concerns a class action by
inmates against state and prison officials claiming an
Eighth Amendment violation by exposure to high lev-
els of asbestos. There, the district court granted a
preliminary injunction, appointed experts to oversee
compliance and ordered interim attorney fees to
plaintiffs’ counsel. The Sixth Circuit, recognizing the
particular attributes of institutional reform litigation,
adopted a less formalistic standard that focused on
the practical and functional examination of the un-
derlying litigation:
The Supreme Court recently has emphasized
that appellate jurisdiction to review interlo-
cutory orders in this era of ‘‘modern litiga-
tion” when some lawsuits are tried in stages
over extended periods centers on the related
questions of whether “‘such review is truly
needed” and whether the orders in question
have serious and perhaps irreparable conse-
quences.
846 F.2d at 1035. (citations omitted).
12
Using this standard, it found that the interim award
of attorney fees constituted both a collateral order
under 28 U.S.C. §1291 and the “‘practical’’ equivalent
of an injunction reviewable under 28 U.S.C.
§1292(aX1). Id.
In Seigal v. Merrick, 619 F.2d 160 (2d. Cir. 1980),
the Second Circuit held that an interim award of
attorney fees fell under the collateral order doctrine.
It relied on Trustees v. Greenough, 105 U.S. 527
(1882), which permitted an appeal from an order
awarding fees because it was “‘collateral’’ in nature,
“having a distinct and independent character.” Seigal,
619 F.2d at 164 n.7. The Court noted that Greenough
was a precursor of the Cohen collateral order doctrine.
In sum, the First Circuit’s denial of petitioners’
appeal transmutes Cohen’s third prong into a me-
chanistic prescription impervious to the realities of
institutional reform litigation. Its definition of the col-
lateral order doctrine conflicts with a Sixth Circuit
standard receptive to needs of modern civil rights
litigation. In petitioners case, two interim fee awards
totailing over $3 million have already been awarded
and respondents have recently requested interim fee
awards every three months. There is a real need to
review the district court’s award of interim fees in
this case. Common sense dictates recognition of a
fundamental error when a court places an award of
compounded interests on top of an award of an en-
hancement on top of a lodestar, and a core fee of
$973,580.00 explodes into a total award of $3,345,625.
Petjtioners contend the the award of compounded in-
terest is barred by the Eleventh Amendment and the
computation of the interim attorney is contrary to
§1988. Timely appellate review is necessary to clarify
a
13
said issues for future awards. Lower courts need guid-
ance as to the applicability of the Cohen collateral
order doctrine to awards of interim attorney fees in
cases of institutional reform litigation.
II. The First Circuit’s denial of the petition for a writ
of prohibition disregards the function of the writ
in resolving jurisdictional issues of a constitutional
rank that arise in protracted institutional reform
litigation and is in conflict with other Court of
Appeals
The First Circuit’s conclusory one-sentence denial
of petitioners’ petition for a writ of prohibition does
ill service to the functional and legal objectives that
inform the writ. It directly conflicts with the historical
parameters established by this Court for invoking the
writ in order “‘to confine an inferior court to a lawful
exercise of its prescribed jurisdiction or to compel it
to exercise authority when it is its duty to do so,”
Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26
(1943), or to prevent a judicial ‘‘usurpation of power.”’
De Beers Consolidated Miners v. United States, 325
U.S. 212, 217 (1945).
The writ, furthermore, has been also employed to
impart advisory guidance and effect supervisory con-
trol of lower court operations in those extraordinary
circumstances were the magnitude, novelty and re-
currence of the claim of error would defeat end-of-
the-case review. La Buy v. Howes Leather Co., 352
U.S.249 (1957); Schlangenhauf v. Holder, 379 U.S. 104
(1964). See, generally Note, Supervisory and Advisory
Mandamus Under the All Writs Act, 86 Harv. L. Rev.
595, 613-619 (1973) (henceforth Note). The supervisory
mandamus uses the writ to effect supervisory contro]
14
by the court of appeals over the district court to
further ‘‘the proper judicial administration of the fed-
eral system.”’ La Buy, 352 U.S. at 258. It is appro-
priate to review important issue “‘likely of significant
repetition prior to effective review.” National Right
to Work Legal Defense and Educational Fondation v.
Richey, 510 F.2d 1239, 1244, cert. denied, 422 U.S.
1008 (1975). The advisory mandamus, on the other
hand, uses the writ to determine “basic, undecided
issues ... of first impression ... that presents new
and important problems.” Schlangenhauf, 379 U.S. at
110-111.
The recognition of the advisory mandamus corre-
sponds to the development of jurisprudence away from
a focus on formal labels of jurisdictional error or min-
isterial duty toward an examination of the practical
nature of the claim of error warranting immediate
judicial review of non-final orders because the normal
end-of-case appeal would be either “ineffectual or
leave legitimate interest unduly at risk.’’ United States
v. Lasher, 481 F.2d 229, 235 (2d Cir. 1973), cert.
denied, 415 U.S. 975 (1974). In particular, mandamus
has been exercised in situations ‘‘where the interpre-
tation of the controlling statute is in doubt ... [and]
the statute, once interpreted creates a peremptory
obligation for the [court] to act.’’ United States v.
Palmer, 871 F.2d 1202, 1209 (8d Cir. 1989); 18th
Regional Corp. v. U.S. Department of Interior, 654
F.2d 758 (D.C. Cir. 1980); United States v. Jackson,
550 F.2d 830, 831 (2d Cir. 1977).
The issue of whether the Eleventh Amendment still
bars the award of compounded interest after Jenkins,
is parallel to the issue in Schlangenhauf, over which
the Supreme Court confirmed the issuance of a man-
15
damus. There, the petitioner sought a writ of pro-
hibition with respect to the district court’s power to
order a mental and physical examination of defendant
pursuant to the recently enacted Fed. R. Civ. P. 35.
Acknowledging that a writ is not to be used as a
substitute for an appeal, the court nonetheless found
its use appropriate to resolve the basic, undecided
question of the district court’s power to order an
examination. According to the Court: ‘‘that this issue
is substantial is underscored by the fact that the chal-
lenged order requiring examination of a defendant
appears to be the first of its kind in any reported
decision in the federal courts under Rule 35, and we
have found only one such modern case in the state
courts.’”’ Schlangenhauf, 379 U.S. at 111.
~The First Circuit’s opinion directly conflicts with
the Ninth Circuit’s decision in Rosenfeld v. U.S., 859
F.2d 717 (9th Cir. 1988). There, the Ninth Circuit
examined whether the district court’s award of in-
terim attorney fees under the Freedom of Information
Act violated the United States’ claim of sovereign
immunity. Rosenfeld, 859 F.2d at 723. The federal
government had presented both an appeal and a
petition for a writ of mandamus. The Ninth Circuit
asserted that orders which exceed limitations on waiv-
ers of sovereign immunity were extra-jurisdictional.
Although it found that the appeal did not fall within
Cohen’s collateral order doctrine, it held that ‘‘juris-
dictional issues raised in the government’s appeal
make mandamus review especially appropriate.” Jd.
The First Circuit’s order in this case is antithetical
to this Court’s precedents and in conflict with the
Ninth Circuit. Like in Rosenfeld, petitioners assert
that Jenkins allowance for compensation for delay is
16
not a waiver of the Commonwealth’s Eleventh
Amendment immunity against interest grounded in
Library of Congress v. Shaw, 478 U.S. 310 (1986).
The district court’s reticent opinion does not explain
how it arrived at the conclusion that Jenkins’ en-
dorsement of the delay enhancement was equivalent
to the imposition of compounded interest. Admittedly,
Jenkins endorses the language in Pennsylvania v. Del-
aware Valley Citizens’ Council, 483 U.S. 711, 716
(1987), which provides: ‘In setting fees for prevailing
counsel, the courts have regularly recognized the de-
lay factor, either by basing the award on current
rates, or by adjusting the fees based on historical
rates to reflect its present value.” Jenkins, however,
does not make a single reference to interest as a
measure of compensation for delay. There, the Court
was reviewing an enhancement for delay consisting
of an award of attorney fees based on current, rather
than historic, market rates. Interest was not an issue.
The reference in Jenkins of adjusting the historical
fee to “reflect its present value’ is no authority for
the imposition of compounded interest as a measure
of compensation for delay. In neither of the two sup-
porting cases cited in Jenkins was interest awarded
as compensation for delay. Sierra Club v. EPA, 769
F.2d 796 (D.C. Cir. 1985) (awarding current rates);
Louisville Black Police Officers Organization, Inc. v.
Louisville, 700 F.2d 268 (6th Cir. 1983) (33% en-
hancement). On the contrary, there is authority for
the proposition that the concession of interest as com-
pensation for delay creates a ‘‘windfall’’ for attorneys
antagonistic to the congressional intent of §1988.
Lightfoot v. Walker, 826 F.2d 516, 523 (7th Cir. 1987)
(favoring current rates over an award of interest since
orw te
17
the latter creates a windfall for attorneys). Thus, in
addition to the Eleventh Amendment bar, the award
of compounded interest may be proscribed by §1988
itself.
The First Circuit’s failure to grant the writ of pro-
hibition in this case is unexplainable and unexplained.
As in Rosenfeld, a legitimate jurisdictional questional
of constitutional rank is present. This question, as in
Schlangenhauf, is an important issue of first impres-
sion, nascent from this Court’s recent opinion in Jen-
kins. As acknowledged by the First Circuit, this is
protracted institutional reform litigation with no fore-
seeable final judgment allowing an effective appeal.
The denial of the writ under these circumstances en-
tails the surrender of the Commonwealth’s legitimate
Eleventh Amendment interests. Plenary consideration
of this matter is essential.
CONCLUSION
For these reasons, the writ of certiorari should be
granted.
Respectfully submitted,
HeEcTOR RIVERA CRUZ
Secretary of Justice of the
Commonwealth of Puerto Rico
JORGE E. PEREZ DIAz
Solicitor General of the
Commonwealth of Puerto Rico
CARLOS DEL VALLE
Counsel of Record
RAMIREZ & RAMIREZ
269 Ponce de Leén Ave.
Second Floor
Hato Rey, Ruerto Rico 00917
June 4, 1990
a }
a es
. ney
ae =o ota
a
2 a ee
_ ee . en
1%
APPENDIX
DAAC Ne a go He eb .
Ni SAAC
, » > o ;
er oS |
f . ' s a P, . | :
“ |
, | | ‘ -
‘ ae | )
” | : :
Sy . &
| | : . ; : .
= ‘ | | :
~ : : )
- e a ~ « é : a : :
a |
° |
= |
xf
“-
‘
. ‘ . — *
Ni :
e : | |
'
: a
"SS |
‘.
;
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 89-1997
CAROLS MORALES FELICIANO, ET AL.,
Plaintiffs, Appellees,
v.
RAFAEL HERNANDEZ COLON, ET AL.,
Defendants, Appellants.
Before
Breyer, Torruella and Selya,
Circuit Judges.
ORDER OF COURT
Entered January 5, 1990
The Commonwealth appeals from an interim award of
attorneys’ fees made under 42 U.S.C. § 1988. The first
such award was made on September 20, 1988. In the order
disposing of its appeal from that first order, entered in
May, 1989, we found that the appeal was interlocutory
and did not fit under the collateral order exception en-
dorsed in Cohen v. Beneficial Industrial Loan Corp., 337
U.S. 541 (1949).
The second award of fees was entered on September
13, 1989. In the appeal of this award, we see no reason
to depart from our earlier ruling. Appellants point to two
intervening events that, they claim, make this appeal col-
lateral under Cohen. First is the recent Supreme Court
2a
decision in Jenkins v. Missouri, 109 S.Ct. 2463 (1989),
which decided, contrary to the law in this circuit, that an
enhancement in attorneys’ fee awards for delays was not
barred by the eleventh amendment. Appellants claim that
this holding concerns an important and unsettled question
of controlling law. Thus, appellants argue, this appeal fits
within the borders of the Cohen collateral order exception.
In this context, we note the presence of 28 U.S.C. § 1292(b)
which deals with just these kinds of questions. Appellants
also claim that the award of fees is separable from the
merits and is final.
Even assuming that this appeal meets three of Cohen’s
four criteria, it fails, as it did before, on the ground that
no irreparable injury would occur if immediate review were
withheld. This factor is the core concern of the Cohen
exception. In re Licht & Semanoff, 796 F.2d 564, 571 (1st
Cir. 1986) (to satisfy third factor there must be a right
incapable of vindication on appeal). Indeed, appellants do
not even raise this issue in their opposition to the motion
to dismiss the appeal.
Second, appellants rely upon a recent decision of this
court, in this same action, finding an order increasing fines
pursuant to a contempt order appealable under Cohen. See
Morales v. Parole Board, 887 F.2d 1 (1st Cir. 1989). There
we found that, if forced to wait until a ‘‘final’’ judgment
issues, the Commonwealth might be irreparably damaged
given the large sums of money involved. Here, again, no
one is arguing that a delay in appeal would result in a
risk that the government would be denied justice.
We therefore grant appellees’ motion to dismiss the
appeal.
: By the Court:
/s/ Francis P. Scigliano
Clerk.
3a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 89-2056
IN RE: RAFAEL HERNANDEZ COLON,
Petitioner.
ee te
Before
Breyer, Torruella and Selya,
Circuit Judges.
seared gh.
ORDER OF COURT
Entered January 5, 1990
We dismiss the motion to consolidate the petition for a
writ of prohibition with the appeal in 89-1997, as we have
dismissed the appeal. As for the petition for a writ of
prohibition, we deny it. It does not present the extraor-
dinary circumstances necessary to grant such petition. See
In re Recticel Foam Corp., 859 F.2d 1000, 1005 (1988).
Di Ran pst a a ekg al PE pet in leh GT eae
ee Sa
By the Court:
Clerk.
Ae Wet ae SO
eae Ons! i oes Mancina Ver Ue et
4a
APPENDIX C
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF PUERTO RICO
Civil No. 79-4(PG)
CARLOS MORALES FELICIANO, et al.,
Plaintiffs,
v.
RAFAEL HERNANDEZ COLON, et al.,
Defendants.
FILED
SEP 13 1989
OPINION AND ORDER
Before us are two separate matters pertaining to ap-
plications for interim attorney’s fees submitted by counsel
for plaintiffs herein. First, the attorneys have submitted
a motion requesting reconsideration of our fee award of
September 20, 1988, see Morales Feliciano v. Hernandez
Colon, 697 F.Supp. 51 (D.P.R. 1988), to conform the same
to recently decided Supreme Court precedent. Second, the
attorneys have submitted applications for further interim
fees, corresponding to the hours devoted by them to the
above-captioned cause from December 1, 1987, until July
31, 1989. We address these matters seriatim.
: I
In making our September 20, 1988 attorney’s fee award
we felt bound by our Circuit’s decision in Rogers v. Okin,
5a
821 F.2d 22 (1st Cir. 1987) (holding that Eleventh Amend-
ment prohibits award of attorneys’ fees against state that
includes interest and delay of payment factors unless state
expressly waives Eleventh Amendment immunity). Hence,
we disallowed the attorneys’ request that they be paid
current rates for their work in light of the nearly nine
years of inflation since the case was commenced and the
lost interest income that could have been generated had
the fees been paid when their services were provided. In-
stead, we did what the Rogers court had done: we used
the attorneys’ historical rates as a point of reference in
determining a reasonable fee.
The U.S. Supreme Court’s recent decision in Missouri
v. Jenkins, No. 88-64 (June 19, 1989), however, mandates
reconsideration of this conclusion, for the Court’s holding
in that case implicitly overrules Rogers. After reaffirming
its holding in Hutto v. Finney, 437 U.S. 678 (1978) (Elev-
enth Amendment does not apply to award of attorney’s
fees against state ancillary to grant of prospective relief),
the Court in Jenkins went on to state:
It follows that the same is true for the calculation
of the amount of the fee. An adjustment for delay
in payment is, we hold, an appropriate factor in
the determination of what constitutes a reason-
able attorney’s fee under § 1988. An award
against a State of a fee that includes such an
enhancement for delay is not, therefore, barred
by the Eleventh Amendment.
Slip Op. at 9. The Court’s holding in Jenkins thus makes
clear that our September 20, 1988, award of interim fees
could have properly included an enhancement for delay of
payment. Our order is therefore hereby AMENDED nunc
pro tunc to reflect such an enhancement, calculated by
compounding the amount of each yearly “‘lodestar’’ figure
6a
at the interest rate which prevailed at the end of each
corresponding year, which yields the following awards:
Mr.
Nachman: $1,418,345.31
Mr. Pérez Bachs: $ 166,647.48
Mr. Anduze: 368,781.49
Mr. Fernandez Sein: 966,846.23
Mr. Ramos: 106,153.86
II
We turn next to the application for further interim fees
submitted by plaintiffs’ counsel. Plaintiffs have been ably
represented by attorneys Harvey Nachman, José Fernan-
dez Sein, Rafael Pérez Bachs, Harry Anduze, Carlos Ra-
mos, Carlos Garcfa Gutierrez, Nora Rodriguez Matias and
Ivonne Diaz de Carreras. All except Mr. Garcia Gutierrez
and Ms. Rodriguez Matias have submitted records of the
hours devoted by each to this case between December 1,
1987, and July 31, 1989.?
Pursuant to 42 U.S.C. § 1988, we may allow the pre-
vailing party in a suit brought under 42 U.S.C. § 1983 “‘a
reasonable attorney’s fee as part of the costs.’’ We have
already declared plaintiffs to have been prevailing parties
with respect to the instant litigation See Morales Feliciano,
supra, 697 F.Supp. at 56.
In order to calculate a reasonable attorney’s fee a two-
step process must be followed. Henseley v. Eckerhart, 461
U.S. 424, 433-484 (1983). First, the hours reasonable ex-
pended by each prevailing attorney must be multiplied by
a reasonable hourly rate in order to arrive at a ‘lodestar’
figure, which is “presumed to be the reasonable fee to
which counsel is entitled.’’ Pennsylvania v. Delaware Val-
1 See Appendix A for a yearly breakdown of the calculations.
?Mr. Garcia Gutierrez has settled the amount of his fees with
defendants. Ms. Rodriguez Matias, currently president of the ‘Colegio
de Abogados”, refues to accept compensation for legal services per-
formed pro bono publico while she serves in such capacity.
7a
ley Citizen’s Council for Clean Air, 478 U.S. 546, 564
(1986) (Delaware Valley I) (quoting Blum v. Stetson, 465
U.S. 886, 897 (1984)). Second, the Court may, in excep-
tional cases, make upward adjustments to the lodestar fig-
ure to reflect various factors which it does not account
for, such as risk of nonpayment, delay in payment, and
undesirability or importance of the case. Pennsylvania v.
Delaware Valley Citizens’ Council for Clean Air, 483 U.S.
711, 716 (1987) (Delaware Valley II).
To determine the number of hours reasonably expended
on a case, we must take the “hours actually spent and
then subtract from that figure hours which were dupli-
cative, unproductive, excessive or otherwise unnecessary.”’
Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir.
1984). After careful scrutiny of the monthly time records
submitted by counsel pursuant to our August 19, 1988
order, we find that for the most part the hours claimed
by the attorneys have been reasonably expended, and are
not “duplicative, unproductive, excessive or otherwise un-
necessary.’’®
As to the reasonable compensation for each hour worked,
it must be based upon an analysis of the prevailing local
rates and the attorneys’ “‘skill, experience and reputation.”’
Grendel’s Den, supra, at 955 (citing Blum v. Stetson, 465
U.S. 886, 895 n. 11 (1984)). Having already heard testi-
mony on this point from the attorneys representing
plaintiffs, see Morales Feliciano, supra at 55-57, we are
suitably familiarized with the hourly rates awarded them
in the past. We have also received evidence documenting
the most current prevailing hourly rates charged by local
attorneys for legal services involving federal litigation.‘
* We found only one instance of duplication, to wit: Mr. Nachman's
application inadvertently twice billed 10 hours for court appearances
on August 15, 1988. Naturally, we counted this entry but once.
‘See e.g., Plaintiffs’ Eahibit 1, ‘Survey of Hourly Rates for Legal
Lae ~ esac a
8a
In accordance with the holding of Jenkins, we base our
award on the attorneys’ current rates in order to account
for any delay in payment. After examining the evidence
submitted by counsel, we hereby find their current hourly
rates to be the following:
Mr. Nachman: $200/hr.; Mr. Pérez Bachs: $180/hr.; Mr.
Anduze: $160/hr.; Mr. Fernandez Sein: $160/hr.; Mr. Ra-
mos: $130/hr.; Ms. Diaz de Carreras: $100/hr.
The rate-fixing task does not end, however, with the
determination of the attorneys’ current hourly rates. Fol-
lowing the practice approved by our Court of Appeals and
the U.S. Supreme Court, we must also assign different
rates to the different tasks performed by the attorneys.
See Delaware Valley I, Supra at 567; United States of
America v. Metropolitan District Commission, 847 F.2d
12, 19 (1st Cir. 1988); Jacobs v. Mancuso, 825 F.2d 559,
561 n. 3 (1st Cir. 1987); Miles v. Sampson, 675 F.2d 5, 9
(1st Cir. 1982); Furtado v. Bishop, 635 F.2d 915, 920 (1st
Cir. 1979), cert. denied, 444 U.S. 1035 (1980).
As in our previous award, we distinguish between three
basic categories of tasks performed by plaintiffs’ attorneys.
See Morales Feliciano, supra at 59. The attorneys shal] be
awarded the full hourly rate, or a fraction thereof, for
each task performed, depending on which category it falls
in. The categories are:
1. Low: includes notifications and visits to the
penal institutions; prisoners interviews; confer-
ences with co-counsel or adversaries (unless oth-
erwise categorized); drafting of letters; drafting
and reading of intra-counsel memoranda; proof-
reading and copyreading; notification of and
Services Involving Federal Litigation’, prepared by Donald J. Kevane,
C.P.A., and submitted into evidence at the hearing held August 18th
1989.
9a
preparation for depositions; review of documents;
telephone conversations; and travel time.
2. Medium: includes general research; taking of
and attendance at depositions; preparation for
court hearings or conferences (if so specified on
the time records); preparation of subpoenas, class
notices, interrogatories and answers thereto, pri-
sioners’ questionnaires, and affidavits; unspeci-
fied meetings with monitors; preparation for
prisioners, rights seminars; and preparation for
fee applications.
8. High: includes court appearances and in-cham-
bers conferences; appearances before the legis-
lature or administrative agencies; jail visits with
the judge; preparation and drafting or dictation
of motions and briefs; stipulation negotiations
with court monitors and/or defendants.
As done previously, hours falling into the low, medium
and high categories shall be compensated at 60%, 80%
and 100% of the applicable rate, respectively.
Implementation of the above-mentioned guidelines yields
the following ‘‘lodestars’’:5
Mr. Nachman: $74,210.00
Mr. Pérez Bachs: 44,091.00
Mr. Anduze: 44,096.00
Mr. Fernandez Sein: 52,608.00
Mr. Ramos: 24,700.00
Mr. Diaz de Carreras 11,600.00
As previously stated in our Opinion and Order of Sep-
tember 20, 1988, we believe the instant litigation to be
one of those exceptional cases in which it is appropriate
to upwardly adjust the lodestar figures based on three
factors: (a) The undesirability of the case, (b) its enormous
* See Appendix B for a breakdown per category for each applicant.
10a
public importance, and (c) the fact of plaintiffs’ counsel’s
foregoing more remunerative employment in order to ac-
cept and prosecute it. See Morales Feliciano, supra at 60-
61 (explaining appliciability of each factor).
Hence, we shall increase each applicant’s lodestar by
10% for each factor applicable to him or her. In other
words, the lodestars of Messrs. Nachman, Ferndadez Sein,
Anduze, Pérez Bachs, and of Ms. Diaz de Carreras -shall
be increased by 30%. Mr. Ramos’ lodestar shall be in-
creased by 20%.* The awards will therefore be:
Mr. Nachman: $96,473.00
Mr. Pérez Bachs: 57,318.30
Mr. Anduze: 57,324.80
Mr. Fernandez Sein: 68,390.40
Mr. Ramos: 29,640.00
Mr. Diaz de Carreras 15,080.00
IT IS SO ORDERED.
San Juan, Puerto Rico, September 13, 1989.
/s/ Juan M. Perez-Gimenez
JUAN M. PEREZ-GIMENEZ
/s/ Chief U.S. District Judge
* Mr. Ramos is not affected by the economic factor because he is not
in private practice. See Morales Feliciano, supra at 61 n. 9.
lla
Appendix A to Opinion Order of the District Court of
Puerto Rico, Morales Feliciano v. Hernandez Colén, Civil
No. 79-4 (PG), Slip op., entered on September 13, 1989
This is a breakdown of the computations made in order
to amend our September 20, 1988 award of interim fees
to include an additional enhancement factor for delay in
payment, as permitted by the U.S. Supreme Court’s re-
cent decision in Missouri v. Jenkins. The following figures
are computed by compounding the amount of the origina!
historical ‘‘lodestar’”’ at year-end prime interest rates;’ ac-
cruing no interest the first year but accruing full com-
pound interest through December 31, 1989. The fina] total
also takes into account the three award enhancement fac-
tors mentioned in our Opinion and Order of September
20, 1988.
MR. NACHMAN
A. 1979
1. Original award: $25,300.00
2. Interest rate at end of 1979: 15.25%
3. Compounded (12/31/89): $90,758.78
B. 1980
1. Original award: $165,255.00
; 2. Interest rate at end of 1980: 20.5%
3. Compounded (12/31/89): $734,600.00
| C. 1981
q 1. Original award: %51,667.50
2. Interest rate at end of 1981: 15.75%
3. Compounded (12/31/89): $143,834.90
‘ All calculations are made using historica) year-end prime interest
rates (See Plaintiffs’ Exhibit 5, attached to their Motion for Reconsi-
deration of Fee Award).
wT St SA LOOD hl BEB, BI ALY Fs trteat
12a
D. 1982
1. Original award: $11,047.00
2. Interest rate at end of 1982: 11%
3. Compounded (12/31/89): $20,662.45
E. 1983
1. Original award: $1,215.00
2. Interest rate at end of 1983: 11%
3. Compounded (12/31/89): $2,047.33
F. 1984
1. Original award: $11,722.50
2. Interest rate at end of 1984: 10.75%
3. Compounded (12/31/89): $17,635.77
G. 1985
1. Original award: $7,770.00
2. Interest rate at end of 1985: 9.5%
3. Compounded (12/31/89): $10,201.48
H. 1986
1. Original award: $33,285.00
2. Interest rate at end of 1986: 7.5%
3. Compounded (12/31/89): $38,464.97
I. 1987
1. Original award: $26,390.00?
2. Interest rate at end of 1987: 8.75%
, 3. Compounded (12/31/89): $28,699.12
2 As amended, nunc pro tunc, by order of this Court dated January
10, 1989.
13a
J. TOTAL
1. “Lodestar”’ including interest: $1,086,904.80
2. Plus 30%? award enhancement: $326,071.44
3. Total award: $1,412,976.24
MR. PEREZ BACHS
A. 1976
1. Original award: $875.00
2. Interest rate at end of 1976: 6%
3. Compounded (12/31/89): $1,866.31
B. 1977
1. Original award: $1,352.00
2. Interest rate at end of 1977: 7.75%
3. Compounded (12/31/89): $3,311.19
C. 1978
1. Original award: $3,609.00
2. Interest rate at end of 1978: 11.75%
3. Compounded (12/31/89): $12,249.25
D. 1979
| 1. Original award: $4,660.00
| 2. Interest rate at end of 1979: 15.25%
3. Compounded (12/31/89): $19,266.16
* In accordance with our order of September 20, 1988, the “‘lodestars”’
of Messrs. Nachman, Pérez Bachs, Anduze and Fernandez Sein are
increased by 30 percent, and Mr. Ramos’ “‘lodestar’’ is increased by
20 percent.
F.
I.
J.
l4a
1980
1. Original award: $10,026.50
2. Interest rate at end of 1980: 20.5%
3. Compounded (12/31/89): $53,707.23
1981
1. Original award: $9,150.00
2. Interest rate at end of 1981: 15.75%
3. Compounded (12/31/89): $29,484.18
1982
1. Original award: $1,174.50
2. Interest rate at end of 1982: 11%
3. Compounded (12/31/89): $2,438.45
1983
1. Original award: $420.00
2. Interest rate at end of 1983: 11%
3. Compounded (12/31/89): $785.57
1984
1. Orginal award: $360.00
2. Interest rate at end of 1984: 10.75%
3. Compounded (12/31/89): $599.82
1986
1. Original award: $3,608.00
2. Interest rate at end of 1986: 7.5%
3. Compounded (12/31/89): $4,482.21
}
4
|
/
|
5
;
|
.
|
:
|
4
15a
TOTAL
1. “‘Lodestar” including interest: $128,190.37
2. Plus 30% award enhancement: $38,457.11
3. Total award: $166,647.48
MR. ANDUZE
1979
1. Original award: $3,036.00
2. Interest rate at end of 1979: 15.25%
3. Compounded (12/31/89): $10,890.97
1980
1. Original award: $44,500.50
2. Interest rate at end of 1980: 20.5%
3. Compounded (12/31/89): $197,815.86
1981
1. Original award: $19,236.00
2. Interest rate at end of 1981: 15.75%
3. Compounded (12/31/89): $53,550.25
1982
1. Original award: $648.00
2. Interest rate at end of 1982: 11%
3. Compounded (12/31/89): $1,212.00
1983
1. Original award: $156.00
2. Interest rate at end of 1983: 11%
3. Compounded (12/31/89): $262.84
G.
H.
I.
A.
16a
1984
1. Original award: $1,579.50
2. Interest rate at end of 1984: 10.75%
3. Compounded (12/31/89): $2,376.24
1985
1. Original award: $4,487.00
2. Interest rate at end of 1985: 9.5%
3. Compounded (12/31/89): $5,891.12
1986
1. Original award: $3,514.00
2. Interest rate at end of 1986: 7.5%
3. Compounded (12/31/89): $4,060.86
1987
1. Original award: $7,005.00
2. Interest rate at end of 1987: 8.75%
3. Compounded (12/31/89): $7,617.93
TOTAL
1. “‘Lodestar” including interest: $283,678.07
2. Plus 30% award enhancement: $85,103.42
3. Total award: $368,781.49
MR. FERNANDEZ SEIN
1979
1. Original award: $22,500.50
2. Interest rate at end of 1979: 15.25%
3. Compounded (12/31/89): $80,713.89
B.
17a
1980
1. Original award: $87,081.50
2. Interest rate at end of 1980: 20.5%
3. Compounded (12/31/89): $452,954.14
1981
1. Original award: $31,380.00
2. Interest rate at end of 1981: 15.75%
3. Compounded (12/31/89): $87,357.42
1982
1. Original award: $8,586.00
2. Interest rate at end of 1982: 11%
3. Compounded (12/31/89): $16,059.35
1983
1. Original award: $21,086.00
2. Interest rate at end of 1983: 11%
3. Compounded (12/31/89): $35,531.12
1984
1. Original award: $10,361.00
2. Interest rate at end of 1984: 10.75%
3. Compounded (12/31/89): $15,728.71
1985
1. Original award: $12,950.00
2. Interest rate at end of 1985: 9.5%
3. Compounded (12/31/89): $17,002.47
I.
J.
18a
1986
1. Original award: $17,339.00
2. Interest rate at end of 1986: 7.5%
3. Compounded (12/31/89): $20,037.37
1987
1. Original award: $16,867.50
2. Interest rate at end of 1987: 8.75%
3. Compounded (12/31/89): $18,343.40
TOTAL
1. ‘“‘Lodestar” including interest: $743,727.87
2. Plus 30% award enhancement: $223,118.36
3. Total award: $966,846.23
19a
Appendix A to Opinion Order of the District Court of
Puerto Rico, Morales Feliciano v. Hernandez Colén, Civil
No. 79-4 (PG), Slip op., entered on September 13, 1989
This is a breakdown, by category as defined supra, of
the annual fees (without multipliers) we are awarding in
favor of Messrs. Nachman, Pérez Bachs, Anduze, Ferndn-
dez Sein, Ramos, and Ms. Diaz de Carreras. The following
is a model/description of how the calculations were made:
YEAR X (CURRENT HOURLY RATE)
Low category hours claimed times 60% of current hourly
rate = fees awarded for low category hours in year X.
Medium category hours claimed times 80% of current
hourly rate = fees awarded for medium category hours
in year X.
High category hours claimed times 100% of current hourly
rate = fees awarded for high category hours in year X.
Total hours claimed for year X/Lodestar (total fees awarded
[without multiplier] for year X).
MR. RAMOS
A. 1981
1. Original award: $24,270.00
2. Interest rate at end of 1981: 15.75%
3. Compounded (12/31/89): $67,564.17
B. 1983
1. Original award: $1,200.00
2. Interest rate at end of 1983: 11%
3. Compounded (12/31/89): $2,022.05
20a
C. 1985
1. Original award: $8,450.00
2. Interest rate at end of 1985: 9.5%
3. Compounded (12/31/89): $11,094.27
D. 1987
1. Original award: $7,155.00
2. Interest rate at end of 1987: 8.75%
3. Compounded (12/31/89): $7,781.06
E. TOTAL
1. “Lodestar” including interest: $88,461.55
2. Plus 20% award enhancement: $17,692.31
3. Total award: $106,153.86
MR. NACHMAN
1987 ($200)
19.25 x $120 = $2,310.00
18.75 x $160 = 3,000.00
0.50 x $200 = 100.00
38.50 $5,410.00
1988 ($200)
238.25 x $120 = $28,590.00
46.00 x $160 = 7,360.00
107.25 x $200 = 21,450.00
391.50 $57,400.00
1989 ($200)
47.00 x $120 = $ 5,640.00
16.00 x $160 = 2,560.00
"16.00 x $200 = 3,200.00
79.00 $11,400.00
Total hours = 509 / Lodestar = $74,210.00
1988 ($180)
31.00 x 108
45.00 x 144
21.50 x 180
97.50
1989 ($180)
2la
MR. PEREZ BACHS
$ 3,348.00
6,480.00
3,870.00
$13,698.00
10.50 x 108 = $ 1,134.00
68.50 x 144 =
107.75 x 180 =
186.75
Total hours = 284.25 / Lodestar = $44,091.00
1987 ($160)
6.00 x 96
0.00 x 128
0.00 x 160
6.00
1988 ($160)
110.50 x 96
12.50 x 128
126.25 x 160
249.25
1989 ($160)
115.75 x 96
0.00 x 128
0.00 x 160
115.75
Total hours = 371.00 / Lodestar = $44,096.00
9,864.00
19,395.00
$30,393.00
MR. ANDUZE
$576.00
0.00
0.00
$576.00
$10,608.00
1,600.00
20,200.00
$32,408.00
= $11,112.00
= 0.00
= 0.00
$11,112.00
22a
MR. FERNANDEZ SEIN
1987 ($160)
5.25 x 96 = $ 504.00
12.25 x 128 = = 1,568.00
0.00 x 160 = 0.00
17.50 $2,072.00
1988 ($160)
117.00 x 96 = $11,232.00
64.50 x 128 = 8,256.00
114.00 x 160 = 18,240.00
295.50 $37,728.00
1989 ($160)
95.00 x 96 = $ 9,120.00
14.75 x 128 = ~—1,888.00
11.25 x 160 = 1,800.00
121.00 $12,808.00
Total hours = 434.00 / Lodestar = $52,608.00
MR. RAMOS
1988 ($130)
61.00 x 78 = $ 4,758.00
16.00 x 104 = ~=1,664.00
64.50 x 180 = 8,385.00
141.50 $14,807.00
1989 ($130)
71.25 x 78 = $5,557.50
30.75 x 104 = 3,198.00
8.75 x 180 = 1,187.50
, 110.75 $9,893.00
Total hours = 252.25 / Lodestar = $24,700.00
23a
MS. DIAZ DE CARRERAS
1988 ($100)
39.25 x 60 = $2,355.00
2.00 x 80 = 160.00
39.00 x 100 = 3,900.00
80.25 $6,415.00
1989 ($100)
47.50 x 60 = $2,850.00
17.00 x 80 = 1,360.00
9.75 x 100 = 975.00
74.25 $5,185.00
Total hours = 154.50 / Lodestar = $11,600.00
24a
APPENDIX D
United States District Court,
D. Puerto Rico
Civ. No. 79-4(PG).
Carlos MORALES FELICIANO, et al.,
Plaintiffs,
Vv
Rafael] HERNANDEZ COLON, et al.,
Defendants.
Sept. 20, 1988.
As Amended Sept. 23, 1988.
OPINION AND ORDER
PEREZ-GIMENEZ, Chief Judge.
Under our consideration are applications for intcrim
attorney’s fees submitted by five of plaintiffs’ attorneys:
Messrs. Harvey Nachman, Rafael Pérez Bachs, Harry An-
duze, José Fernandez Sefn and Carlos Ramos. The appli-
cations cover the hours worked until November 30, 1987.
Attorneys for plaintiffs and for defendants have exchanged
documents as to the hours worked in this case and rates
charged in this as well as other cases. A two-day hearing
was held in which all applicants testified as witnesses on
their own behalf and submitted documentary and expert
evidence in support of their applications.’ Before going into
‘ At the beginning of the hearing defendants attempted to submit a
so-called “hearing aid brief’ that we disallowed. At the end of the
hearing, they again tried to submit it as a post-hearing brief. We
reiterated our rejection convinced that our acceptance would be unfair
tg plaintiffs’ attorneys, who would not have had an opportunity to
oppose the brief. Defendants had a chance to present their challenges
to the claimed hours and fees during the hearing, where we would
have had the benefit of face-to-face confrontation.
25a
the applications’ merits, a brief summary of this litigation
is a necessary background.
I.
Plaintiffs are all persons incarcerated under the custody
of the Administration of Correction of the Commonwea!th
of Puerto Rico, and the defendants are the Governor of
the Commonwealth, the Administrator of Correction, as
well as the present and some former members of the Pa-
role Board of the Commonwealth. The action was com.
menced by a complaint filed on February 7, 1979.* and
certified as a class action on April 9, 1979. Plaintiffs a!
leged the conditions of confinement violated their Sas
under the United States Constitution as wel] as the laws
and Constitution of the Commonwealth.
After more than a year of bitterly contested discover)
plaintiffs filed a motion for a preliminary injunction for
emergency, provisiona! and extraordinary relief to halt the
alleged violations. On May 7, 1980, we issued an order to
show cause why the requested injunction should not be
granted. A month-long hearing on the motion was held.
On September 5, 1980, we granted emergency relief as to
the most pressing health and custodial maladies within the
prison system. Feliciano v. Barcelé, 497 F.Supp. 14 (D.P.R.
1981). Patent violations to the Eighth Amendment to the
U.S. Constitution sufficed as a basis to our order. Jd. at
18. Thirty-eight days of hearing followed during the No-
vember 1980 to March 1987 period. Convinced that the
chaotic conditions would take time to mend, we gave
defendants some leeway to come up with a major reform
plan.
* This action originated as a letter complaint filed on January 2, 1979
After petitioner was allowed to proceed in forma pauperis and an
attorney was named to represent him, the formal! complaint was filed
on this date.
26a
During the years between 1981 and 1985 some short
lived efforts were made by defendants to comply partially
with the preliminary injunction. To corroborate it, the
Court visited most of the penal institutions on the Island.
Evidentiary hearings were held. Finding that the consti:
tutional violations continued and, thus, that compliance
would not come about voluntarily, the Court had no choice
but to appoint monitors on March 21, 1986. Morales Fel:
iciano v. Romero Barcelé, 672 F.Supp. 591 (D.P.R. 1986).
The Court was particularly shocked at the intolerably ov.
ercrowded condition of most penal institutions.
The first formal act of the monitors, undertaken wit
the Court’s express approval, was to convene negotiations
to address the overcrowding crisis. After several months
of gathering information and negotiating as to living space
in the different institutions, the parties signed a stipulatior
on the overcrowding issue. Defendants were to provide 35
feet of living space per inmate by December 31, 1986.
They had been ordered to provide that space since 1980.
This Court approved the stipulation and transformed it
into its order on January 26, 1987.
A month later the monitors filed a report as t
defendants’ compliance with the stipulation. Defendants
had not complied. Plaintiffs moved for contempt and im.
position of civil sanctions. Hearings were held. On Jul;
23, 1987, this Court found defendants in contempt of the
January order, fined them for $50,000, and imposed <
prospective daily fine of $10 for each inmate above stip
ulated institutional capacity, 697 F.Supp. 26. Defendant:
moved for relief of their obligation to provide the requirec
living space. The motion was denied. Morales Feliciano v.
Herndéndez Colén, 672 F.Supp. 627 (D.P.R. 1987).
* Since then defendants have been fined every day fo
violating the stipulation. During February and March ot
the current year they were close to fully complying witt
it. Unfortunately, this effort was short-lived. Defendants
27a
have been paying biweekly fines of over $25,000 since May
13. By July the biweekly fines were of over $80,000. Given
this pattern of non-compliance, we decided to increase the
fine per inmate held in violation of the stipulation to $50
a day beginning on September 1 and an automatic increase
of $10 per inmate for every upcoming month in which
defendants fail to comply. Furthermore, we ordered the
Ponce District Jail to commence a phase out to be com-
pleted by December 31, 1988.
Il.
Eight attorneys have represented plaintiffs at some point
during this litigation. Two of them have already settled
thei fees with defendants. Messrs. Nachman, Pérez Bachs,
Anduze, Fernandez Sein and Ramos await our award.?
Mr. Nachman was the first lawyer we tapped to rep-
resent plaintiffs. He is their lead counsel, the mastermind
behind the whole case. He has been a litigator ever since
he graduated from Columbia University School of Law and
started practicing in 1950. Mr. Nachman is among the
three better plaintiffs’ lawyers of our bar. His expertise
in civil rights cases is indisputable. In his fee application,
Mr. Nachman claims to have worked 2,810 hours and asks
us to awardeach hour worked at $200, his current hourly
rate. His rates during the years of this litigation have
increased in the following manner: $125 between 1979 and
1980; $150 between 1980 and 1986; $175 between 1986
and 1987; and since January 1, 1988, $200. Most of his
work, however, is done on a contingency basis.
Mr. Pérez Bachs became involved in this litigation in
1979, when four cases in which he represented maximum
security prisoners were consolidated with the one at hand.
He has been litigating since his graduation from the Uni-
*Mrs. Ivonne Santiago submitted her application, belatedly, on Sep-
tember 9, 1988. We will be ruling on it very soon.
28a
versity of Puerto Rico Law School (“‘U.P.R. Law School’’)
in 1971. He is currently a partner in Puerto Rico’s largest
law firm, where he works as a corporate litigator. Mr.
Pérez Bachs is undoubtedly one of the premiere litigators
of his kind. Although he rarely worked or works on civil
rights litigation other than this case, at the time of its
inception he had been working on prisoners’ cases for over
two years. That experience made Mr. Pérez Bachs an “‘ex-
pert’”’ on such cases given the only handful of attorneys
then accepting prisoners’ representation. In his fee appli-
cation Mr. Pérez Bachs asks us to award him fees for
385.75 hours of work at a rate between $140 and $160
per hour. The bulk of his labored hours occurred during
the early years of this litigation, including some worked
prior to the consolidation. He has been almost completely
inactive in this case since 1982. His hourly rates during
the years of this litigation have increased in the following
fashion: 1976-$70; 1977-$80; 1978-$90; 1979-$100; 1980-
$110; 1981-$125; 1982-$135; 1983-$140; 1984-$150; 1985-
$160; 1986-$170; 1987-$170; 1988-$180.
Mr. Anduze was recruited by Mr. Nachman to join the
case in 1979. His initial task was to teach a prisoners’
rights seminar to Legal Services’ (‘‘Legal Services’’)
attorneys along with Messrs. Nachman and Fernandez
Sein, in exchange for which Legal Services was to pay
for the expenses incurred by plaintiffs’ attorneys during
the early years of this litigation and to provide the help
of three of Legal Services’ lawyers for this case. Although
Mr. Anduze does not have the years of experience Mr.
Nachman does, he is also one of the shining stars of our
plaintiffs’ bar as well as an excellent criminal defense law-
yer. He has been litigating since his graduation from the
U.P.R. Law School in 1968, with a three-year interruption
(1969-1972) while he served in the armed forces. From
1972 to 1979 he was associated with the law firm of Cald-
erén, Rosa-Silva and Vargas. He has been a solo practi-
tioner since 1979. Mr. Anduze claims 869.25 hours of work
29a
to be paid at a rate of $150 per hour. He has not had
fixed billing rates since being on his own. Most of his
work is done on a contingency basis. He testified that his
rates during the 1979-80 period fluctuated between $100
and $150 and his current rates vary between $100 and
$200. Mr. Anduze states in his application that $150 is
“his current billing rate.”’
Mr. Fernandez Sefn was recruited by Mr. Nachman in
1978. They struck a deal under which Mr. Nachman pro-
vided Mr. Fernandez Sein with office space in exchange
for 25 hours of work a month in this case. Mr. Fernandez
Sein graduated from the U.P.R. Law School in 1966. Be-
tween 1966 and 1973 he litigated with private firms, mostly
on behalf of insurance companies. From 1973 to 1976 he
worked for the Commonwealth government, first as legal
counsel to the Right to Work Administration and then as
a Special Assistant to the Governor. In 1977 he joined
Legal Services as a staff attorney for its litigation division.
A year later he was promoted to supervisor of his division,
position that he held until 1979. During his years at Legal
Services, Mr. Fernandez Sein became very involved in the
prisoner’s rights cause. He filed several class actions on
behalf of prisoners. With Mr. Pérez Bachs, he was one of
the Island’s very few “experts” in prisoner’s cases at the
commencement of this case. Mr. Fernandez Sefn shared
office space with Mr. Nachman until becoming his associate
in 1983 and his full partner in 1984. He requests an award
for 2,480 hours worked to be paid at $150 an hour. We
do not know what were his hourly rates from 1979 to
1983. Since then his rates have been $125 per hour be-
tween 1984 and 1985, and $150 per hour since January
1986. Like Mr. Nachman, however, most of his work is
done on a contingency basis.
Mr. Ramos joined the team of plaintiffs’ attorneys in
1979 while working at Legal Services. He was one of the
three lawyers Mr. Nachman bargained in exchange for the
seminars. Mr. Ramos was employed by Legal Services in
30a
January 1979, some months after his graduation from the
U.P.R. Law School. He remained there until late 1980,
when he joined the faculty of the Inter American Univer-
sity Law School. Among other courses, he has taught a
prisoner’s rights seminar since joining the faculty. He has
remained active in this case while teaching and has acted
as court-appointed counsel in several other prisoners’ and
civil rights cases in this as well as the Commonwealth
courts. He took a sabbatical year between 1986 and 1987
to obtain his Master in Law degree from the University
of California at Berkeley. Mr. Ramos requests an award
for 582.5 worked hours at $100 per hour. All hours claimed
occurred after he left Legal Services. He has never had
any fixed billing rates because he has not assumed any
representation on such basis.
Ill.
A brief summary of the fees’ proceeding must be told.
On prior occasions we have noted the contentiousness and
the excessive adversariness with which defendants have
met the claims made by the plaintiff class. Feliciano, 497
F.Supp. at 17; Morales Feliciano, 672 F.Supp. at 595; and
Opinion and Order of July 28, 1988, 697 F.Supp. at pp.
47-48. This incident is no exception to the stonewalling,
dilatory tactics used by the defendants. They have made
every atempt to make sure that “[tJhis fee litigation [would
result] in what the Court in Hensley warned against; ‘a
second major litigation.’’’ Rogers v. Okin, 821 F.2d 22,
2& (1st Cir. 1987), quoting Hensley v. Eckerhart, 461 U.S.
424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983).
Months before the hearing on these applications,
defendants had received from plaintiffs’ attorneys state-
ments in support of their applications. These statements
itemized for each attorney the service for which payment
was claimed as well as the date and the time spent on
each occasion. A few days before the date in which the
hearing was first scheduled, defendants moved to take
8la
depositions and for production of documents. We denied
the motion for the taking of depositions, modified the re-
quest for production of documents and granted the
defendants additional time to prepare for the hearing.
Not unexpectedly, the showing made by defendants at
the hearing was weak. Broad-gauged attacks on duplication
of work or challenges to the claims made by plaintiffs’
attorneys followed the same pattern of litigation that has
characterized this case. The fact that an immense amount
of work had been performed for the plaintiff by first-rate
lawyers could not be contested. We had anticipated attacks
on particularized claims to match the requests for infor-
mation and for time to prepare for this hearing. The
defendants never went beyond vagueness and protestation.
The one witness which the defendants brought before
the Court only established the bad faith with which he
had been treated by the defendants. Jorge Segarra Olivero,
Esquire, Executive Director of Puerto Rico Legal Services,
Inc., had settled the claims made by that corporation on
the clear understanding that he would not be required to
give evidence on this matter. Defendants nevertheless sub-
poenaed him, by surprise, to try and elicit from him the
testimony which they had agreed not to require from him.
The applicants base their fee award petition on 42 U.S.C.
§ 1988 (1981). Since the claim on which we have ruled as
to the unconstitutionality of the prison system is based on
42 U.S.C. § 1983 (1981), we ‘‘may allow the prevailing
party ...a reasonable attorney’s fee as part of the costs.”’
Plaintiffs clearly are prevailing parties under section 1988.
Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978).
We so held on March 20, 1986. Defendants have not chal-
lenged that fact. We will thus award reasonable fees in
favor of plaintiffs’ attorneys.
It is settled law that to calculate attorney’s fees under
section 1988 a two-step process must be followed. Hensley
v. Eckerhart, 461 U.S. 424, 433-434, 103 S.Ct. 1933, 1939-
Oe
32a
1940, 76 L.Ed.2d 40 (1983). We first have to multiply
hours reasonably expended by each prevailing attorney
times a reasonable hourly rate, to arrive at the “lodestar”
of a reasonable fee. This lodestar is “presumed to be the
reasonable fee to which counsel is entitled.” Pennsylvania
v. Delaware Valley Citizen’s Council for Clean Air, 478
U.S. 546, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986)
(Delaware Vailey I). Then we may, in exceptional cases,
make upward adjustments to the lodestar figure in light
of various factors which are not accounted for in it, such
as risk of nonpayment, delay in payment, and undesira-
bility or importance of the case. Pennsylvania v. Delaware
Valley Citizens’ Council for Clean Air, __U.S. __ , 107
S.Ct. 3078, 3081-3082, 97 L.Ed.2d 585 (1987) (Delaware
Valley II).
A.
To determine the number of reasonable hours that each
of plaintiffs’ attorney should be paid for, we take the
“hours actually spent and then substract from that figure
hours which were duplicative, unproductive, excessive or
otherwise unnecessary.” Grendel’s Den, Inc. v. Larkin, 749
F.2d 945, 950 (1st Cir. 1984). During the attorneys’ fees
hearing defendants made general allegations that plaintiffs’
attorneys overstaffed court appearances and negotiation
meetings.‘ Defendants unfortunately did not specify which
hours should have been reduced. Notwithstanding, we do
not think their allegations have any merit.
As explained during the hearing, and a matter of which
this Court has intimate knowledge, plaintiffs’ attorneys
had to divide up their work by ‘“‘committees’’. During the
discovery period in 1979 and 1980, they split among them-
selves the nineteen penal institutions involved in this case.
When the time came to argue the 1980 preliminary in-
‘See August 15, 1988, Transcript (‘‘Tr. 8/15/88’’), pp. 107-110.
33a
junction in court or when the 1986 stipulation was ne-
gotiated, lawyers with first-hand knowledge of all
institutions had to be present. Furthermore, the work was
also divided by tasks. Messrs. Fernandez Sein, Nachman
and Ramos did most of the discovery and, thus, had a
better command of the facts. They obviously had to be
presen‘ in court or at the negotiating table. Mr. Anduze
did not do much field work, but co-counsel needed him to
be on top of all the technical aspects of courtroom ap-
pearances. His expertise in such matters made him the
perfect choice for that task. In sum, the factual and pro-
cedural complexity of a class action challenging the con-
stitutionality of the confinement conditions in nineteen
penal institutions required the presence of the plaintiffs’
attorneys that appeared in court or at the negotiating
table.
Defendants did not make any other specific challenges
to the reasonability of the claimed hours. They rightly did
not do so because the claimed hours are more than rea-
sonable. This Court knows that all applicants underrepre-
sented the hours worked in this case. They so testified
during the hearing without being challenged by defendants:
A couple of examples illustrate our point. During 1983 Mr.
Nachman claims compensation for 9.5 hours and calculates
that at least 100 hours were not reported because of dif-
ficulty in reconstructing time records. We know that he
worked more than 9.5 hours that year and that his un-
derrepresentation estimate for that year is very modest.
Mr. Pérez Bachs’ claimed hours offer another fine ex-
ample. He asks for compensation for time spent on only
2 phone calls, 2 visits to institutions and 2 meeting with
co-counsel. He certainly did many more than those in 12
years of litigation. We could go on and on with such ex-
amples.
Finally, we believe that the claimed hours are more than
reasonable in light of defendants’ contentiousness and lack
of compliance with this Court’s orders. It must be stressed
34a
that the prison conditions were declared unconstitutional
more than eight years ago. Plaintiffs’ attorneys are still
litigating this case because of defendants’ irresponsibility.
And, as we have held before, Feliciano, 479 F.Supp. at
17; Morales Feliciano, 672 F.Supp. at 595, defendants’
conduct throughout the whole litigation has been, to put
it mildly, obstreperous. They have opposed, sometimes vi-
ciously, every discovery attempt or motion by plaintiffs.®
“The government cannot litigate tenaciously [in this case,
excessively] and then be heard to complain about the time
necessarily spent by plaintiffs in response.” Jacobs v. Man-
cuso, 825 F.2d 559, 562 (1st Cir. 1987), quoting from, City
of Riverside v. Rivera, 477 U.S. 561, n. 11, 106 S.Ct. 2686,
n. 11, $1 L.Ed.2d 466 (1986).
In light of all that has transpired in this case, we will
compensate plaintiffs’ attorneys for all the hours claimed
in their applications—Mr. Nachman for 2810 hours; Mr.
Pérez Bachs for 385.75 hours; Mr. Anduze for 869.25
hours; Mr. Fernandez Sefn for 2480 hours; and Mr. Ramos
for 582.5 hours.
B.
As to the reasonable compensation for each hour worked,
plaintiffs’ attorneys believe to be entitled to be paid at
their current hourly billing rates (except for Mr. Ramos,
who does not have fixed rates). As previously indicated,
their billing rates have increased periodically since the
commencement of this case—Mr. Nachman’s from $125 to
$200; Mr. Pérez Bachs’ from $70 to $180; Mr. Anduze’s
from $100-150 to $100-$200; and Mr. Fernandez Sefn’s
from $125 (in 1984) to $150. They want to be paid current
‘The latest example was the Secretary of Justice’s complete diso-
beyance of this Court’s July 13, 1986, order to produce documents in
relation to the attorneys’ fees issue. We could have held him in con-
tempt but reluctantly refrained from doing so because that would have
further delayed the attorney’s fees award.
35a
rates given the close to nine years of inflation depreciating
the value of the dollar and lost interest income that could
have been generated if fees had beer paid when their
services were provided.
We sympathize with plaintiffs’ argument but are con-
strained by our Court of Appeals decision in Rogers v.
Ohio, 821 F.2d 22 (1st Cir. 1987), which itself was bound
to apply the principles in Library of Congress v. Shaw,
478 U.S. 310, 106 S.Ct. 2957, 92 L.Ed.2d 250 (1986). The
Rogers holding is clear: unless the sovereign, in this case
the Commonwealth, waives its immunity under the Elev-
enth Amendment, we can neither award lost interest nor
take into consideration the delay-in-payment factor when
assessing a reasonable fee under 42 U.S.C. § 1988. Rogers,
821 F.2d at 26-27. By ignoring this key factor we believe
to be unduly penalizing plaintiffs’ attorneys. Unfortunately,
there is nothing we can do but echo our Court of Appeals’
request:
We are not happy about this result from a policy
standpoint; indeed, particularly where private and un-
funded counsel are expected to be enlisted to assist
the private attorney general plaintiff[s], one can hardly
overestimate the chilling effect of an interminable wait
for payment in sharply shrunken dollars. The situation
cries out for congressional remedy.
Rogers, 821 F.2d at 28.
We have no choice but to do what the Rogers court did:
use the attorney’s historical rates as a point of reference
in determining a reasonable fee. As to Messrs. Anduze
and Fernandez Sefn, of whom we do not have historical
rates for some years or, as to Ramos, who has no such
rates, we will have to determine what would have been
their reasonable historical rates for those years.
It is fair to treat Messrs. Anduze and Fernandez Sein
as one person for purposes of assessing rates. They have
nee
36a
been practicing law for almost the same number of years
(Mr. Anduze, 20 years; Mr. Fernandez Sein, 22 years).
Both have been actively litigating civil rights cases since
the late 1970’s. Mr. Fernandez Sefn has been involved in
this case maybe a few months longer than Mr. Anduze.
They are equally well-respected within the Puerto Rican
legal community.
As noted before, supra, pp. 54-55, both of them offered
some testimony as to historical rates. Mr. Anduze said his
1979-80 hourly rates ranged from between $100 and $150
and currently go from between $100 and $200. He indi-
cated in his application that $150 is his current rate. Mr.
Fernandez Sefn’s historical rates were $125 during the
1984-85 period and since January 1986 they have been
fixed at $150. We also have rates that they have been
assigned in previous civil rights cases. Mr. Anduze’s hours
were valued at $150 for in-court and $100 for out-of-court
in a recent civil rights case. Mr. Fernandez Sein has been
awarded fees by this Court in the following civil rights
cases: Morales v. Romero Barcelé, Civil No. 80-1783—$100
per hour awarded in 1983; Wildman v. Lerner Stores, 771
F.2d 605 (1st Cir. 1985)—$100 per hour awarded in 1984;
Vazquez v. Racing Sport Adm., Civil No. 82-2796—$100
per hour awarded in 1984; Cristébal v. Romero Barcelé,
Civil No. 81-0006—$125 per hour in 1986; Valdivieso v.
Burgos, Civil No. 82-1430—$125 per hour in 1986; Bal-
domero Arbona v. Awilda Aponte Roque, Civil No. 85-
1367—$150 per hour awarded in August 11, 1988.
With all this professional background and fee data in
mind, we fix Messrs. Anduze’s and Fernandez Sein’s his-
torical hourly rates in the following fashion: $110 for the
1979 and 1980 years; $120 for the 1981 and 1982 years;
$130 for the 1983 and 1984 years; $140 for the 1985 and
1986 years; and $150 for 1987. The $10 increase every
two years is to reflect what is obvious to all of us in the
legal profession: an attorney’s rate goes up as he or she
accumulates years of experience. We believe these rates
87a
are reasonable approximations of what would have been
the prevailing market rates for civil rights lawyers with
the skill, experience and reputation of Messrs. Anduze and
Fernandez Sein.
Mr. Ramos stands on a different footing. He had been
practicing law for nine years. Although we have only but
praise for his abilities as a litigator, his experience in court
is far less than those of his fellow attorneys. Knowing the
legal fees’ market, these factors would have certainly been
reflected in the rates Mr. Ramos could have commanded
if he had worked on a fixed rate basis. With that in mind,
we believe the market would have valued Mr. Ramos’
hourly rate in the following fashion: $60 an hour during
1980 and 1981; $80 an hour during 1982 and 1983; $100
an hour during 1984 and 1985; and $120 an hour in 1986
and 1987. The $20 increase every two years is to account
for the fact that, as we said before, lawyer’s rates go up
with years of experience. The bianual increases are higher
than those we assigned to Messrs. Anduze and Fernandez
Sein because the experience a young lawyer acquires dur-
ing the early years of his or her career is usually more
valuable than what he can learn after fifteen or twenty
years in the profession.
The rate-fixing task does not end with the determination
of historical rates. We also must assign different rates to
different tasks following the practice approved by our
Court of Appeals and the Supreme Court of the United
States. See United States of American v. Metropolitan Dis-
trict Commission, 847 F.2d 12, 19 (1st cir.1988); Jacobs,
825 F.2d at 561, n. 3; Miles v. Sampson, 675 F.2d 5, 9
(1st Cir. 1982); Furtado v. Bishop, 635 F.2d 915, 920 (1st
Cir.1979), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62
L.Ed.2d 672 (1980); Delaware Valley I, 106 S.Ct. at 3099.
Two factors come to mind in trying to differentiate the
tasks performed by plaintiffs’ attorneys in this case: (a) how
much legal skill and ability is required by the task; and
38a
(b) how emotionally and mentally demanding is the task.
For example, an hour in court or brief-drafting will be
more valuable than fact-finding tasks, which in this case
would be, among others, visits to the prison or interview"
with prisoners. By the same token, since an hour of dep-
osition-taking is usually not as legally and mentally ex-
acting as an hour of writing letters or reviewing
documents, the former will be priced higher than the lat-
ter.
In light of those principles, we have divided up the tasks
performed by plaintiffs’ attorneys in three categories. They
will be awarded a fraction of or full historical hourly rate
depending on which category the task falls. The categories
are:
1) Low: includes notifications and visits to the penal
institutions; prisoners’ interviews; conferences with co-
counsel or adversaries (unless otherwise categorized);
drafting of letters; drafting and reading of intra-
counsel memoranda; proofreading and copyreading:
notification of and preparation for deposits; review of
documents; telephone conversations; and travel time.
Hours falling under the low category will be compen-
sated at 60 percent of the applicable historical rate.
2) Medium: includes general research; taking of and
attendance to depositions; preparations for court hear-
ings or conferences (if so specified on the time rec-
ords); preparation of subpoenas, class notices,
interrogatories and answers to them, prisoners’ ques-
tionnaires, and affidavits; «specified meetings with
monitors; preparation for prisoner rights’ seminar; and
preparation of fee applications.
Hours falling under the medium category will be com-
pensated at 80 percent of the applicable historical rate.
3) High: includes court appearances and in-chambers
conferences; legislature and administrative agencies’
39a
appearances; jail visits with the judge; preparation
and drafting/dictation of motions and briefs; negoti-
ations toward stipulation with court monitors and
defendants.
Hours falling under the high category will be compen-
sated at the full applicable historical rate.
The composition of the team of plaintiffs’ counsel com-
ples us to implement the categories. Four out of five ap-
plicants command very high hourly rates, and rightfully
so, given their sill and reputation. This case had to be
managed by lawyers of their caliber. By the same token,
not all tasks to be performed had to be done by lawyers
of their extraordinary capacity. An analogy with a large
law firm illustrates our point. If plaintiffs would have been
represented by such a firm, tasks in the low and medium
categories could have been delegated, partly or totally, to
associates or junior partners charging a lower fee. By
valuing the applicants’ claimed hours at 60 or 80 percent
of their historical value, we superimpose such hierarchy in
an attempt to arrive at a reasonable fee award.* The use
of the historical rates as a reference point reflects the fact
that, although task differentiation is appropriate, we must
not forget their skill and reputation. An “associate hour’’
of work by any of the applicants will obviously be more
efficient and, therefore, more valuable, than a “real as-
sociate”’ hour.
IV.
The implementation of the guidelines in Part III of this
opinion result in the following “‘lodestars’’:’
* We start categorizing Mr. Ramos’ hours after 1985, when he be-
comes a “partner” in this imaginary law firm. Pre-1985 hours are
valued at “‘associate’’ rates and, thus, need not be further reduced
through categorization. After 1985, his hours in the low and medium
categories are priced at 75 percent of his historical rate.
*See Appendixes A and B for an annua! breakdown per category
for each applicant.
40a
Mr. Nachman: $337,422.50
Mr. Pérez Bachs: $35,235.00
Mr. Anduze: $84,197.50
Mr. Fernandez Sein: $228,151.50
Mr. Ramos: $41,075.00
These “‘lodestars’’ are “presumed to be the reasonable
fee to which counsel are entitled.’’ Delaware Valley II, 106
S.Ct. at 3098, quoting from Blum v. Stenson, 465 U.S.
886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). We believe,
however, that this is one of the exceptional cases where
an upward adjustment is appropriate based on three fac-
tors: (a) The undesirability of this case, (b) the public im-
portance of this case, and (c)counsel for plaintiffs’
preclusion of more remunerative employment due to the
acceptance of this case. An explanation ensues.
Plaintiffs’ representation is undesirable because their
cause is unpopular. The prisoners’ cause is repudiated in
a community, like Puerto Rico, infested with crime. The
Island’s largest cities, San Juan and Ponce, have among
the worst murder-per-capita rates in the United States.
Robberies, rapes, drug deals, and other felonies are so
* We would have considered another enhancement factor, risk of loss,
but unfortuately plaintiffs’ attorneys did not present the quite specific
evidence required in Delaware Valley II. That case sets forth two
criteria for awarding such enhancement. Justice O’Connor together with
four dissenting justices (Blackman, Brennan, Marshal] and Stevens) held
that “compensation for contingency must be based on the difference
in market treatment of contingent fee cases as a class, rather than on
an assessment of the riskiness of any particular case.’’ Delaware Valley
II, 107 S.Ct. at 3089. (O’Connors, J. concurring) A different majority
(Chief Justice Rehnquist and Justices White, Powell, Scala and O’Con-
nor) held that “‘no enhancement for risk is appropriate unless the ap-
plicant can establish that without an adjustment for risk the prevailing
party ‘would have faced substantial difficulties in finding counsel in the
local or other relevant market’.’’ Jd. at 3091 (O’Connor, J. concurring,
quoting White, J. plurality) Plaintiffs’ attorneys made neither showing.
See McKenzie v. Kennickell, 684 F.Supp. 1097 (D.D.C.1988).
4la
common Puerto Ricans see them as a part of every day
life. The general population’s attitude toward those who
commit or are accused of committing crimes is under-
standably one bordering in despise. Many Puerto Ricans
believe that since plaintiffs are criminals, they deserve the
conditions under which they live in the prisons. We must
also note that Puerto Rico is decades behind the United
States in the prisoners’ rights movement. While prisoners
in the State fought over their rights to law books in the
1970’s, Puerto Rican prisoners fought, and still are fight-
ing, over a humane amount of living space. Prisoners’
rights had been completely ignored by our government
and, sadly, by our legal community until the commence-
ment of this litigation.
The case is also undesirable because it involves grueling
work. In January 1989, this litigation will be ten years
old. More than a thousand motions have been filed. Tran-
scripts of in-court proceedings cover hundreds of pages.
Expert witnesses had to be procured in the United States.
Videos and hundreds of photos were taken and introduced
into evidence.
This is not the typical plaintiff in a civil rights’ case
who knocks on the lawyer’s door. Access to plaintiffs was
a severe problem. Plaintiffs’ counsel had to travel through-
out the Island’s twenty-four institutions to visit their
clients, a task made more difficult when prisoners are
being constantly moved from institution to institution to
prevent them from consulting with their lawyers. Hundreds
of inmates were inerviewed. A further complication was
that plaintiffs’ attorneys had to rely on their clients’ word
as to prison conditions. Before we ordered defendants to
open up the institutions, plaintiffs’ attorneys were not al-
lowed to visit them. It is a very difficult task to build up
a case when a lawyer is unable to investigate the facts
for himself. Finally, and more importantly, having to go
in and out of prisons for nine years is undesirable in itself,
and that normal discomfort reaches depressive levels when
42a
the institutions are as ill-kept as those under defendants’
control. We have commented extensively on the institu-
tions’ grim conditions elsewhere. See Feliciano, 479
F.Supp. 14; Morales Feliciano, 672 F.Supp. 591. Plaintiffs’
lawyers have had to deal with the Island’s prison bureauc-
racy, which has demonstrated to be totally inefficient and
uncooperative.
The case’s undesirability is further compounded by its
economic effects on the practice of plaintiffs’ counsel. Ap-
plicants in private practice have spent many hours of bill-
able time in this case when they could have been billing
rates higher than those we have allowed them or taking
cases on contingency basis that would hve resulted in
higher paychecks.® To illustrate our point, we have allowed
them to charge 60 or 80 percent of what were or would
have been their historical rates for 59 percent of the hours
claimed by Mr. Nachman; 56 percent of the hours claimed
by Mr. Pérez Bachs; 49 percent of the hours claimed by
Mr. Anduze; and 68 percent of the hours claimed by Mr.
Fernandez Sein. Of course, we recognize that their billing
rates ‘‘at best afford relevant comparisons,” U.S. v. Met-
ropolitan District Commission, 847 F.2d 12, 17 (ist
Cir.1988), quoting from Blum, 465 U.S. at 895-896 n. 11,
104 S.Ct. at 1547-1548 n.11 and, that we are therefore
not compelled to base our award on those rates. “It is
precisely because there is no external market-based check
upon the scope of counsel’s efforts in such a case that it
falls to the court to act as the guarantor of fairness.”
Meironolitan, 847 F.2d at 17. On the other hand, we may
not completely ignore the aforementioned percentages, es-
pecially knowing that these lawyers did not take this case
voluntarily.
*Mr. Ramos is not affected by this economic factor because he is
not in the private practice. Working on this case certainly has precluded
him from doing more enjoyable things but not from assuming more
remunerative representations.
43a
The public importance of this case is enormous.
Plaintiffs’ attorneys are the pioneers of the prisoners’
rights movement in Puerto Rico. Without their initiative,
more than 8,000 citizens would probably still be held under
custody in violation of their basic constitutional rights.
Plaintiffs’ attorneys took it upon themselves to achieve an
imperative prison reform and at least have laid out a solid
ground on which to build it. They have not done more
because of defendants’ protraction. It is up to defendants
to comply with the minimal requirements this Court has
imposed.
Quantifying these three award enhancement factors is
far from an exact science. But mindful of the frowning at
multipliers in recent case law of our Court of Appeals and
the Supreme Court, Delaware Valley I, 106 S.Ct. at 3098;
Cortés Quinones v. Jiménez Nettleship, 842 F.2d 556, 564
(1st Cir.1988), we will increase each applicant’s lodestars
of Messrs. Nachman, Pérez Bachs, Anduze and Fernandez
Sein will be increased by 30 percent and Mr. Ramos’ lode-
star will be increasea by 20 percent. The awards will there-
fore be:
Mr. Nachman: $438,649.25
Mr. Pérez Bachs: $45,805.50
Mr. Anduze: $109,456.75
Mr. Fernandez Sein: $296,596.95
Mr. Ramos: $49,290.00
IT IS SO ORDERED.
44a
Appendix A to Opinion and Order of the District Court of
Puerto Rico, Morales Feliciano v. Hernandez Colén, Civil
No. 79-4 (PG), Slip op., entered on September 13, 1989
This is a breakdown, by the categories defined in Part
B III of the opinion, of the annual fees (without multipliers)
we are awarding in favor of Messrs. Nachman, Pérez
Bachs, Anduze and Fernandez Sein. The following is the
model/description of how the calculations were made:
YEAR X (year X’s historical rate)
Low category hours claimed x 60% of year X’s historical
rate = fees awarded for low category hours in year X.
Medium category hours claimed x 80% of year X’s his-
torical rate = fees awarded for medium category hours
in year X.
High category hours claimed x 100% of year X’s historical
rate = fees awarded for high category hours in year X.
Total hours claimed for year X/Lodestar (total fees awarded
(without multiplier) for year X).
MR. NACHMAN
1979 ($125)
192.5 x $75 = $14,437.50
63 x $100 = 6,300.00
36.5 x $125 = 4,562.50
292 $25,300.00
1980 ($150)
596.75 x $ 90 = $ 53,707.50
169.25 x $120 = 20,310.00
608.25 x $150 = 91,237.50
1374.25 $165,255.00
45a
1981 ($150
160.6 x $90 = $14,445.00
16.75 x $120 = 2,010.00
234.75 x $150 = 35,212.50
412 $51,667.50
1982 ($150)
| 19 x$90 = $ 1,710.00
0 x $120 = 00.00
62.25 x $150 = 9,337.50
: 81.25 $11,047.50
1983 ($150)
3.5 x $90 = $ 315.00
; 0 x $120 = 00.00
; 6 x $150 = 900.00
. 9.5 $1,215.00
| 1984 ($150)
4 56.75 x $ 90 = $ 5,107.50
| 7 x $120 = 840.00
| 38.5 x $150 = 5,775.00
102.25 $11,722.50
: 1985 ($150)
4 66 x$90 = $5,940.00
7.75 x $120 = 930.00
6 x $150 = 900.00
79.75 - $7,770.00
7 1986 ($175)
171.25 x $105 = $17,981.25
16.50 x $140 = _— 2,310.00
74.25 x $175 = 12,993.75
262 $33,285.00
1987 ($200)
111.75 x $120 = $13,410.00
7.50 x $160 = 1,200.00
77.75 x $200 = 15,550.00
197 $30,160.00
Total hours 2810 / Lodestar $337,422.00
MR. PEREZ BACHS
1976 ($70)
1.25 x $42 = §$ 52.50
0 x$ 56 = 00.00
11.75 x $ 70 = 822.50
13 $875.00
1977 ($80)
6.75 x $48 = $ 324.00
2 x $ 64 = 128.00
11.25 x $ 80 = 900.00
20 $1,352.00
1978 ($90)
8.75 x $54 = $ 472.50
32 x$ 72 = 2,304.00
9.25 x $ 90 = 832.50
50 $3,609.00
1979 ($100)
25.5 x $ 60 = $1,530.00
8.5 x $ 80 = 680.00
24.5 x $100 = 2,450.00
58.5 $4,660.00
47a
1980 ($110)
20.5 x $66 = §$ 1,353.00
95 x $ 88 = 836.00
71.25 x $110 = 7,837.50
101.25 $10,026.50
1981 ($125
40.75 x $75 = $3,056.25
7.50 x $100 = 750.00
42.75 x $125 = 5,343.75
91 $9,150.00
1982 ($135)
14.5 x $ 81 = $1,174.50
0 x $108 = 00.00
0 x $135 = 00.00
14.5 $1,174.50
1983 ($140)
5 x $ 84 = $420.00
0 x $112 = 00.00
0 x $140 = 00.00
5 $420.00
1984 ($150)
4x $90 = $360.00
0 x $120 = 00.00
0 x $150 = 00.00
4 $360.00
1986 ($160)
1.25 x $ 96 = 120.00
27.25 x $128 = 3,488.00
0 x $160 = 00.00
28.50 $3,608.00
Total hours 385.75 / Lodestar $35,235.00
MR. ANDUZE
1979 ($110)
26 x $ 66 = $1,716.00
15 x $ 88 = 1,320.00
0 x $110 = 110.00
4] $3,036.00
1980 ($110)
141 x $66 = $ 9,306.00
59 x $ 88 = 5,192.00
272.75 x $110 = 30,002.50
472.75 $44,500.50
1981 ($120)
38 x$72 = $ 2,736.00
0 x $ 9 = 00.00
137.5 x $120 = 16,500.00
175.5 $19,236.00
1982 ($120)
9.5 x $ 72 = $684.00
0 x $ 96 = 00.00
0 x $120 = 00.00
9.5 $684.00
1983 ($130
2x $ 78 =
0 x $104 =
0 x $130 =
2
1984 ($130)
7.75 x $ 78
0 x $104
7.5 x $1380
15.25
1985 ($140)
39.25 x $ 84
0 x $112
8.5 x $140
47.75
1986 ($140)
35.5 x $ 84
4.75 x $112
0 x $140
40.25
1987 ($150)
43.5 x $ 90
5.75 x $120
16 x $150
49a
$156.00
00.00
00.00
$156.00
$ 604.50
00.00
975.00
$1,579.50
$3,297.00
00.00
1,190.00
$4,487.00
$2,982.00
532.00
00.00
$3,514.00
$3,915.00
690.00
2,400.00
$7,005.00
Total hours 869.25 / Lodestar $84,197.50
MR. FERNANDEZ SEIN
50a
1979 ($110)
157.75 x $ 66 =
129.25 x $ 88
6.5 x $110 =
293.5
1980 ($110)
435.75 x $ 66 =
145.25 x $ 88 =
414 x $110 =
995
1981 ($120)
136.5 x $ 72 =
14.5 x $ 96 =
168 x $120 =
319
1982 ($120)
67.25 x $ 72 =
29 x $ 96 =
& x $120 =
104.25
1983 ($130)
39.75 x $ 78 =
49.5 x $104 =
90.75 x $130 =
190
1984 ($130)
107.5 x $ 78 =
4 x $104 =
12 x $130 =
123.5
$10,411.50
11,374.00
715.00
$22,500.50
$28,759.50
12,782.00
45,540.00
$87,081.50
$ 9,828.00
1,392.00
20,160.00
$31,380.00
$4,842.00
2,784.00
960.00
$8,586.00
$ 3,100.50
6,188.00
11,797.50
$21,086.00
$ 8,385.00
416.00
1,560.00
$10,361.00
5la
1985 ($140)
90.75 x $ 84 = $ 7,623.00
14.75 x $112 = 1,652.00
26.25 x $140 = 3,675.00
131.75 $12,950.00
1986 ($140)
107.25 x $ 84 = $ 9,009.00
52.50 x $112 = 5,880.00
17.5 x $140 = 2,450.00
177.25 $17,339.00
1987 ($150)
76.25 x $ 90 = $ 6,862.50
14 x $120 = 1,680.00
55.5 x $150 = 8,325.00
145.75 $16,867.00
Total hours 2480 / Lodestar $228,151.50
52a
Appendix B to Opinion and Order of the District Court of
Puerto Rico, Morales Feliciano v. Hernandez Colén, Civil
No. 79-4 (PG), Slip op., entered on September 13, 1989
This is a breakdown, by categories during 1986 and
1987, see n. 4, of the annual fees (without multipliers) we
are awarding in Mr. Ramos’ favor:
1980-81
404.5 hours x $60 hourly rate = $24,270.
1984-85
15 hours x $80 hourly rate = $1,200.
1984-85
84.5 hours x $100 hourly rate = $8,450.
1986-87 ($120 hourly rate)
75.5 hours in low and medium categories x $90 (75%
hourly rate) = $6,795.
3 hours in high category x $120 (full hourly rate) =
$360.
Total hours 582.5/Lodestar $41,075.00
APPENDIX E
Campbell, Chief Judge,
Bownes and Breyer, Circuit Judges.
ORDER OF COURT
Entered May 10, 1989
The parties in cases numbered 89-1193, 89-1194 and 89-
1195 have appealed from the district court’s order award-
ing interim attorneys’ fees under 42 U.S.C. § 1988 for
services rendered over a ten year period in connection with
efforts to improve prison conditions in the Puerto Rico
correctional system. The relief obtained thus far included
a preliminary injunction, « stipulation between the parties
and the appointment of monitors to ensure compliance
therewith. No final judgment has been rendered to date.
Although the appellants in all three cases agree that
the appeals should go forward, we conclude that the
appeals must be dismissed for lack of jurisdiction. An in-
terim award of attorneys’ fee is not a final order, appeal-
able under 28 U.S.C. § 1291. See e.g., Appeal of Licht &
Semonoff, 796 F.2d 564 (1st Cir. 1986); Hillery v. Rushen,
702 F.2d 848 (9th Cir. 1983); Hastings v. Maine-Edwell
Central School District, 676 F.2d 893 (2d Cir. 1982); Ruiz
v. Estelle, 609 F.2d 118 (5th cir. 1980). In the cases before
us, the order awarding fees does not finally dispose of
either the underlying litigation or the fee issue itself, and
therefore cannot be construed as final. We distinguish
Brewster v. Dukakis, 786 F.2d 16 (1st Cir. 1986), raised
by appellants in 89-1194. In Brewster, we reviewed an
award of attorneys’ fees made for work performed after
the entry of a consent decree. Our review of these con-
tinuing post-judgment monitoring fees is not dispositive of
the appealability of interim fees under § 1291.
54a
The appellants’ arguments, in the alternative, for ap-
plication of the collateral order exception as expressed by
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541
(1949), are also unavailing. We have analyzed the Cohen
doctrine to require an interlocutory order to satisfy four
criteria in order to be appealable: separability, finality,
urgency and importance. In re Continental Investment
Corp., 637 F.2d 1, 5 (1st Cir. 1980). We have also found
that urgency should be the central focus, and perhaps even
the dispositive criterion of appellate jurisdiction over such
orders. Jd. at 6. We conclude that the claims of the parties
are not “urgent” for purposes of the collateral order doc-
trine. Whether a claim satisfies the urgency requirement
turns on whether irreparable harm would result to the
appellants not from the order itself, but from a delay in
obtaining. appellate review of that order. Jd. at 5. Other
than speculative claims that the fees, once paid, may not
be recoverable, the appellants making the claim of irre-
parable harm have failed to show that delaying appellate
review of the fee award will destroy the legal and practical
value of an appeal, or that it would make an effective
review impossible. Absent special circumstances, such as
those shown by the particular fee arrangements in Palmer
v. City of Chicago, 806 F.2d 1316 (7th Cir.), cert. denied,
481 U.S. 1049 (1986), the payment of money usually does
not inflict irreparable harm, since the money can always
be refunded. E.G., Mulay Plastics Inc. v. Grand Trunk
Western R. Co., 742 F.2d 369 (7th Cir. 1984), cert. denied,
470 U.S. 1037 (1985); Kordich v. Marine Clerk’s Associ-
ation, 715 F.2d 1892 (9th Cir. 1983); Eastern Maico Dis-
tributors, Inc. v. Fahrezeugfabrik G.m.b.H., 658 F.2d 944
(3d Cir. 1981).
While we recognize that the instant case involves a sub-
stantial amount of money, the appellants who have been
ordered to pay the fees have not persuaded this court that
a delay in review of the fee award will be significantly
detrimental under the guidelines of Cohen. We add further
55a
that, as to the finality requirement of Cohen, there is no
indication that the order awarding fees finally resolves that
issue. Having concluded that appellants’ claims have failed
to satisfy two of the four criteria required to satisfy the
collateral order exception, we see no need to analyze the
remaining criteria of importance and separability.
In light of the foregoing discussion, the appeals num:
bered 89-1193, 89-1194 and 89-1195 are hereby dismissed
without prejudice, for the reason that this court lacks ju-
risdiction to consider them.
By the Court:
/s/ Francis P. Scigliano
Clerk.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.