# Petition for Writ of Certiorari — Colon v. Feliciano > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1638%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 498 U.S. 879 ## 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1638%3A1. Public record. Not legal advice.