Opposition Brief — Colon v. Feliciano

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‘ean: Juan, Puerto Rico 00936

Romiuhe (809). 250-5658

Carlos V. Garcia-Gutiérrez

‘fexty Anduze-Montafio

117 ‘oe a mopneval t Ave.

American University

. Box 8897

dez Juncos Station

, Puerto Rico 00910

.

No. 89-1904

SUPREME COURT OF THE UNITED STATES

October Term, 1989

Rafael Hernandez Colon, et al.,

Petitioners,

vi

Carlos Morales Feliciano, et al.,

Respondents.

_ On Petition For A Writ of Certiorari To The

United States Court of Appeals For The First Circuit

RESPONDENTS! BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Rafael Péerez-Bachs

Counsel of Record

G.P.O. Box 4225

San Juan, Puerto Rico 00936

Tel.: (809) 250-5658

Carlos V. Garcia Gutiérrez

Harry Anduze-Montano

117 Eleanor Roosevelt Ave.

Suite 303

Hato Rey, Puerto Rico 00918

Harvey B. Nachman

José Fernandez Sein

P.O. Box 9949

Santurce, Puerto Rico 00908

Carlos Ramos

Inter American University

P.O. Box 8897

Fernandez Juncos Station

Santurce, Puerto Rico 00910

atin

TABLE OF CONTENTS

io ee

II. Summary of Argument: Reasons to Deny the Writ

TELE EET EEE EUEEL ECE

ee ee ee sees eee ee ee eee eee ee

TABLE OF AUTHORITIES

Cases

Carruthers v. Duran, 56 U.S.L.W. 3654,

3831, 486 U.S. 1046, 100 L.Ed. 2d 627 (1988) ........

Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. S41, 93 L.EG. 1528 (1949) cc cnc ccnvnccceees

Colon, Gov. of Puerto Rico v. Feliciano,

58 U.S.L.W. 3597, 108 L.Ed. 2d 646 (1990) ...........

Coopers & Lybrand v. Livesay,

eee Meee Se E.Me, SO SSL (1978) .. 2... ees e cece:

Cullen v. Margiotta,

re ee EE Gs 29B7) www cence n se ncensesecesss

Dardar v. Lafourche Realty Co., Inc.,

wee Os Oe Bee (SEM CLF. T9BS) 2c cece eesscccnceeccssee

Feliciano v. Barcelo, 497 F. Supp. 14

Nee ana seen es besaceesecusvees

Ex Parte Fahey, 332 U.S. 258,

Re Oe ee

Hastings v. Maine-Endwell Central School District,

G76 FP. 20 BOS (20 CAF. 1982) .ncccevveccccccccssceses

Hensley v. Eckerhart, 461 U.S. 424,

UM RM eww eee neeccensaccneccs

Jones Hirsch Connors & Bull v. U.S. District

Court for the District of Puerto Rico,

DCMLEa, SESE, 2600, 3693 (1990) ......ccccccecess

10,

12

ll

12

13

11

ieee

=i1ii-

Lac Courte Oreilles Chippewa Ind. v.

State of Wisconsin, 829 F. 2d 601 (7th Cir. 1987) .... 10

Lauro Lines v. Chasser, 490 U.S. ;

ee Ss ee NS, ko SCs wx 0 dss SRR See ORS 17

Lewis v. Continental Bank Corporation,

494 U.S. » BOS Le BG. 24 400 (1990) «cen ccccsncccses 5

Library of Congress v. Shaw,

476 0.6. 326, $2 b-BA. 26 BESO (19SEC) 2. ce ccvccnscccess 14

Mallard v. United States District Court for the

Southern District of Iowa, 490 U.S. ,

ee Bi cab a eae eee Keke ae 13

Missouri v. Jenkins, 491 U.S. ,

SD Ds Se GOW EEPOOE Beha ce he eee eee tea eees 3, i4, 15, i6

Morales Feliciano v. Hernandez Colon,

ee a ee ee Gs RET E So kha Sh ce cada saensances 1, 19

Morales Feliciano v. Hernandez Colon,

OP Fa. Ws BO Fcc BOT) hoki kc ce cee es ciadacanes :,

Morales Feliciano v. Hernandez Colon,

eS i eS ee) ae ee eee 1, 19, 20

Morales Feliciano v. Hernandez Colon,

Cee ©. Ws OE Cc cils SEES Seon ck cee cccuweneswaas 2, 26, 21

Morales Feliciano v. Hernandez Colon,

ef ee aS SS ee Pre Tee eee eee 1, 20

Morales Feliciano v. Parole Bd. of Com. of P.R.,

887 F. 2d 1 (lst Cir. 1989), cert. den.

LOG L.BG. 26 GEG C1990) ccccesecesscsencssscaensssveecs i+ ae

Morales Feliciano v. Romero Barcelo,

672 F. Gump. S91 (D.PiR. 2906) oo occ cee ceric ccc e sees 1, 18

Pennsylvania v. Delaware Valley Citizens' Council

for Clean Air, 483 U.S. 711, 97 L.Ed. 2d 585 (1987) .. 14

Rosenfeld v. United States,

Cee Os. Gee PEP Eee CAE. BOGR) ncn nc cau chen ccc cecicwess 10, 16

Seigal v. Merrick,

GAD Fs 2G BES CHE CAE. B9GO) ccc cccnccssssssvvscccener 10

——————————————————————————— LLhLhLhlhlhlh CT

Shipes v

-iv-

. Trinity Industries, Inc.,

883 F. 2

& 22D (SER CAE. ASSO) casncoceesoacscvcnsusescess

United States v. State Tax Commission of Mississippi,

Coe was SEes ae Gees OEE SEDTED 4c 00 6 6n0eewu sce vas

Webster v. Sowders,

Dee Ws We BOSe COUN CAs. 1GOR) 6o ccc cn seeccnsecwswaae

Statutes

Re te ee >, + ere ee a ee

er acts DOREE 60 0666-04506 055000 58k 505804664006 64464

OP Sic BRB cGAREE) 6a ccc cceawencensceenesesssescen

Rules

Dee COUPE RULES 10.2. acccsnesasenesvecsasese 6, 12

PURTORO COUFT RULES 13.1. ANG 13.2. weccsvecccsscvscas

Dee. GOMES BAAS 16.5. a cccnestanerceesesesessscesses

First Circuit Local Rules 36.1. and 36.2. ............

Other Authorites

American Jurisprudence Proof of Facts, "Damages"

(1959)

Proof 22

10

11

SUPREME COURT OF THE UNITED

Ictober Term, 1989

Rafael Hernandez Colon, et

Petitioner

On Petition For A Writ of Certiorar1

United States Court of Appeals For The

RESPONDENTS' BRIEF IN OPPOSITION TO PETITION

can wae OF CERTIORARI

I. Statement of the Case

In an on-going civil rights class action

1979, which, in turn, had absorbed by cons

cases dating back to 1976, ° and which continue

Feliciano v. Barcelo, 497 F. Supp. 14

Morales Feliciano v. Hernandez Colon, :

(D.P.R. 1987); Morales Feliciano v. Hernandez

F. Supp. 26 (D.P.R. 1987); Morales Felician

Colon, 697 F. Supp. 37 (D.P.R. 1988); Morales

Hernandez Colon, 704 F. Supp. 16 (D.P ]

Feliciano v. Parole Bd. of Com. of P.R., 887

Cir. 1989), cert. den. 108 L.Ed. 2d 646

e Morales Feliciano v. Romero Barcelo, 67

593, n. 1 (D.P.R. 1986).

to this day, as recently witnessed by this Court,” the United

states District Court for the District of Puerto Rico made an

award of interim attorneys' fees on September 20, 1988 (the

"1988 interim fee award"). Morales Feliciano v. Hernandez

Colon, 697 F. Supp. 51 (D.P.R. 1988); Pet. Ap. 24a-52a. This

1988 interim fee award was overdue because the District Court

had recognized that respondents had long been prevailing parties

(Pet. Ap. 3la) and their counsel had been serving without

sompensation for years and years.

Both sides appealed the 1988 interim fee award to the

United States Court of Appeals for the First Circuit. Three

appeals were docketed with that court, nos. 89-1193, -4 and -

5. No review was sought by writ of prohibition. On May 10,

1989, in an unpublished decision, the Court of Appeals dismissed

all of them "for lack of jurisdiction." Pet. Ap. 53a. It ruled

that the 1988 interim fee award “is not a final order, appeal-

able under 28 U.S.C. 1291." Id. It also ruled that "the

collateral order exception as expressed by Cohen v. Beneficial

Industrial L 337 U.S. 541 (1949)" was "unavailing" to

Support immediate appellate review of the 1988 interim fee

award. Pet. Ap. 54a. Thus, “appeals numbered 89-1193, 89-1194

and 89-1195" were "dismissed without prejudice, for the reason

Bis No. 89-1016, Colon, Gov. of Puerto Rico v. Feliciano, 58

U.S.L.W. 3597, 108 L.Ed. 2d 646 (March 19, 1990 order

denying petition for writ of certiorari).

that this c

55a.

Petitioners were

because they failed to peti

Petitioners did not see fit t

claim by them to the

1989 decision (Pet.

collateral order doctrine," t

precedents and conflict/ing

1s they now -Lalilm Pet. el

January , 1990 decision (Pet

foc award, +he tria irt

for delay; and als refused

] + Of the applicable "t t

reduced histor ate

wWOrKEeEC

the d . pen t ' ~~

Jrant an ennancement tf é

this Court might render in w

Jenkins, 491 ;

Indeed, by ler of ept

adjusted the 1988 nterim f

4. 697 F. Supp. at 57-58

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Jenkins (the "1989 enhancement"). Fur

interim fee award only covered work performed up t t

187, the District Court also made a se | te f¢

-overing the period December 1, 1987 to July L19 t}

YY) T

iterim fee award"); but this one did not t

10n for delay in the form of interest

found to be current in the 1988 nterim fee n

oO

2)

o this 1987-89

period. Pet. Ap. 4a

[This second time, nly petitions

nited States Court of Appeals for ti

y appeal (no. 89-1997) and, a ftert

rit of prohibition -

189 dispositi t f t

terim fee ward

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t Dp¢ t t é 3

PI

e in thelr op; t to the moti t i1ismiss the

et. Al mpha e petiti f writ of pr

j led because S i é t resent he extraordl!

Iimstances necessa t rant 2Cn petition.” Pet.

hese January / lecis ns were 1kewlse not publ

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Ap.

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ished.

Petitioners were not content with the Court of Appeals'

January 1990 decision; but their conduct negated any claim of

irreparable injury or extraordinary circumstances to support

interlocutory review. Instead of immediateiy seeking review

from this Court, they requested and obtained the longest

extension of time possible, adding 60 days to the already

generous 90-day period to petition for certiorari.° Their

petition herein is dated June 4, 1990, the very last day of the

extended term and 150 days after the Court of Appeals' Janu-

ary 5, 1990 decision. In the meantime, petitioners have paid

into court what, according to them, are all of the amounts owing

to respondents under the 1988 and 1989 interim fee awards and

the 1989 enhancement. See Appendix hereto. This important fact

is not disclosed in the petition for certiorari. In respon-

dents' view, it permeates this whole affair with a strong aroma

of mootness.’

Petitioners do not seem to understand what, at this stage,

cannot be brought before this Court:

A. Whether or not the i988 interim fee award (Pet. Ap.

24a-52a) was correct;

6. Pet. 2; see Supreme Court Rules 13.1. and 13.2.

Té United States v. State Tax Commission of Mississippi, 41

U.S. 363 at 368, n. 10, 37 L.Ed. 2d 1 at 7-8, n. 10 (1973).

See also Lewis v. Continental Bank Corporation, 494 U.S.

, 108 L.Ed. 2d 400 (1990).

B. Whether or not the Court of Appeals' May 10, 1989

dismissal of the three appeals from the 1988 interim

fee award (Pet. Ap. 53a-55a) was correct; or

c. Whether or not the 1989 enhancement and the 1989

interim fee award (Pet. Ap. 4a-23a) were correct.

The only issue arguably within this Court's jurisdiction,

whether or not the Court of Appeals' January 4, 1990 dismissal

of petitioners' appeal from the 1989 enhancement, and from the

1989 interim fee award, and its refusal to issue a writ of

prohibition, were correct, is not of sufficient import to merit,

by itself, review by this Court. In addition to any claim of

alleged error, the issue must also merit the exercise of

discretion by this Court because of particular circumstances

(some of which are described in Supreme Court Rule 10.1.).

Stated otherwise, the mere, isolated fact that the Court of

Appeals arguably may have "erred" is insufficient to merit

rectification of the alleged "error" by this Court. Addition-

ally, there must be an inter-circuit conflict; or defiance by

the Court of Appeals of controlling Supreme Court precedent; or

a decision of an important question of federal law which has not

been, but should be, settled by this Court.

In this particular case, in their first "reason for

granting the writ" petitioners claim there is an inter-circuit

conflict between the First, Fifth, Seventh and Ninth Circuits

on one side and the Second and Sixth Circuits on the other; and

in their second "reason for granting the writ," petitioners also

Claim there is another conflict, this time between the First and

Ninth Circuits. In both “reasons for granting the writ"

petitioners claim that the Court of Appeals "depart{ed] from

this Court's precedents." There are no inter-circuit conflicts,

even superficially; and the Court of Appeals obeyed this Court's

controlling precedents.

Respondents note that petitioners' allegation to the effect

that the Court of Appeals "depart({ed] from this cCourt'

precedents" is just that, a bald and unsupported claim.® Albeit

some cases are cited, petitioners fail to explain --- even

inartfully --- exactly how was it that the Court of Appeals

"departed" from Cohen and its progeny; or exactly how was it

that the denial of a writ of prohibition defied controlling

precedent from this Court as to the standards for the issuance

of such a writ. Thus, both "reasons" asserted by petitioners

"for granting the writ" fail the test of Supreme Court Rule

3.6."

II. Summary of the Argument: Reasons for Denying the Writ

A. This Court recently examined the same (or very

Similar) issues now presented by petitioners and found them

8. Or, in petitioners' own language, an "unexplainable and

unexplained" claim (Pet. 17).

9. "The failure of a petitioner to present with accuracy,

brevity and clearness whatever is essential to a ready and

adequate understanding of the points requiring considera-

tion will be sufficient reason for denying the petition."

unworthy of review. Nothing has changed

them worthy of review by this Court.

B. There is no real inter-circuit conf

first issue presented for review, especial

the -ourt of Appeals' decision herein wa

Instead of “depart[ing] from this Court's pre

of Appeals' decision was compelled by them

Cc. There is no inter-circuit conflict

of Appeals departed from this Court's pr

second issue presented for review.

D. The final result sought by petit

standing policy against piecemeal appeals.

E. The final result sought by petitions

policy against extensive, protracted, satellit:

ln Civil rights cases.

A. [he first issue presented for review

interim fee awards should be immediately

special Cohen exception "in cases of protract:

reform litigation with no foreseeable finality"

enhancement to an interim fee award should be 1likew

able as still another Cohen exception). The sec

a subsidiary issue which depends on the first

interim fee award does not qualify for Cohen appe

ment, an enhancement to an interlocutory, non-appeal

fee award can hardly qualify as a Cohen exceptior

This Court examined the issue of the immediate ap-

pealability of interim fee awards (coincidentally, in a civil

rights case strikingly similar to this one: a class action over

prison conditions, No. 87-1325, Carruthers v. Duran, 56 U.S.L.W.

3654 (1988)). If anything, the similar issue presented in

Carruthers was portrayed with more urgency for review by this

Court because the fee awards in Carruthers were made post-

final-judgment, for monitoring and enforcement of an injunctive

decree, and thus it could not be held --- as the Court of

Appeals ruled herein --- that the interim fee awards could

eventually be reviewed by appeal as of right from the final

judgment.

This Court did not find the issue presented in Carruthers

worthy of review and thus certiorari was denied on June 6, 1988.

486 U.S. 1046, 100 L.Ed. 2d 627. The petition herein comes two

years after that denial, almost to the day. But for that

"distinguishing" factor, the basic issue remains the same and

the passage of two years has not made the issue any more worthy

of review. It remains just as unworthy of review as it was two

1

years ago.”

10. Although not as similar to this case as Carruthers vy.

Duran, but more recently, in case no. 89-1082, Jones Hirsch

Connors & Bull v. U.S. District Court for the District of

Puerto Rico, this Court likewise found the issue presented

not to be worthy of review and thus the petition for

certiorari was denied on April 30, 1990. 58 U.S.L.W. 3690,

3693 (1990). In Jones Hirsch the question presented was

whether a district court order imposing sanctions against

counsel was final for purposes of immediate appellate

review by a federal court of appeals. 58 U.S.L.W. 3532,

B. The alleged inter-circuit conflict which petitioners

attempt to construct in their first “reason for granting the

writ" exists only in petitioners' imagination.

The Court may readily notice that the First Circuit's

ruling herein is perfectly in accord with the views of the

Second Circuit, Cullen v. Margiotta, 811 F. 2d 698 at 708 (2d

Cir. 1987); the Fifth Circuit, Shipes v. Trinity Industries,

Inc., 883 F. 2d 339 (5th Cir. 1989); the Seventh Circuit, Lac

Courte Orreilles Chippewa Ind. v. State of Wisconsin, 829 F. 2d

601 (7th Cir. 1987); and the Ninth Circuit, Rosenfeld v. United

States, 859 F. 2d 717 (9th Cir. 1988).

The First Circuit's alleged "conflict" with the views of

the Second Circuit, as exemplified in Seigal v. Merrick, 619

F.2d 160 at 164 n. 7 (2d Cir. 1980) is only timidly alluded to

at page 12 of the petition for certiorari. This is understand-

able, since the fees in Seigal were not truly interim fees in

a case of "protracted institutional reform litigation with no

foreseeable finality," as petitioners themselves characterize

this case in their first question presented for review.

Instead, the fees at issue in Seigal came at the tail-end of the

case: at the settlement stage, albeit a settlement that

eventually aborted, 619 F.2d at 163, and later the action was

finally dismissed, 619 F.2d at 164.

3690 (1990).

-ll-

The views of the Second Circuit, which are in perfect

agreement with those of the First Circuit herein, are better

shown in two cases to which petitioners do not refer: Hastings

v. Maine-Endwell Central School District, 676 F.2d 893 (2d Cir.

1982) and Cullen v. Margiotta, 811 F.2d 698 (2d Cir. 1987).

The only other "conflicting" decision to which petitioners

point is found in the Sixth Circuit, Webster v. Sowders, 846

F.2d 1032 (6th Cir. 1988), and it too is distinguishable, on its

particular facts, from this case. In the paragraph immediately

after the one cited by petitioners at page 11 of their petition

for certiorari, the Webster court explained its departure from

the acknowledged rule that “ordinarily orders awarding interim

fees in the course of litigation are not appealable":

The attorney fee order of Nov. 24, 1986, imposed

a prospective burden upon the State to pay large

monthly fees without any definite cutoff date, without

rulings on central legal issues in the case, without

specific findings or conclusions concerning theories

of liability and immunity and without assurances that

in the event of appellate reversal on the merits the

State could recover from plaintiffs' counsel the

Sizeable amounts already paid (a point conceded at

argument by plaintiffs' counsel)....

846 F.2d at 1035.

Unlike Webster, there is no order in the instant case

providing for prospective fees’ regardless of the issues or who

is the prevailing party; to the contrary, here the District

Court has made so many sufficiently "specific findings or

11. See District Court opinions cited at pages 1 and 2 of this

brief in opposition.

-12-

conclusions concerning theories of liability or immunity," that

petitioners readily concede (Pet. 8), as the District Court has

found (Pet. Ap. 31a), that respondents have been, throughout

this litigation, the prevailing parties in this case.

As the Fifth Circuit has explained in Dardar v. Lafourche

Realty Co., Inc., 849 F. 2d 955 (1988), the alleged "conflict"

among the circuits as to the immediate appealability of interim

fee awards is more apparent than real. The different results

reached by different circuits in different cases, as to the

applicability of the Cohen doctrine in this context, is due to

the specific facts of the particular cases or due to a failure

to apply all three prongs of the test articulated in Coopers &

Lybrand v. Livesay, 437 U.S. 463, 57 L.Ed. 2d 351 (1978).

Petitioners do not make a colorable claim that the Court

of Appeals' decision is in such direct conflict with this

Court's decision in Coopers & Lybrand as to merit review of the

former pursuant to Supreme Court Rule 10.1.(c). All the

petition contains is a passing reference to Coopers (Pet. 7),

without any reasonable explanation as to exactly how it was that

the Court of Appeals failed to heed this precedent. This fatal

flaw in the petition is not surprising, because Coopers &

Lybrand mandates the result reached by the Court of Appeals

herein.

The insignificance of the first question presented for

review is underscored by the First Circuit's decision not to

publish its January 5, 1990 refusals to immediately entertain

-}3-

interlocutory review. Pursuant to First Circuit Local Rules

36.1. and 36.2.(b)6., an unpublished opinion is "directed to the

parties... and may i.ot be cited im unrelated cases"; "may be

cited only in related cases"; i.e., has no precedential value.

This isolated dispute over an arcane point of federal

appellate jurisdiction hardly constitutes a matter cof national

importance which merits plenary review by this Court.

Cc. Petitioners' second "reason for granting the writ" is

nothing more than an argument that the Court of Appeals somehow

"erred" in refusing them a writ of prohibition (or now,

"supervisory mandamus"). Pet. 13-17. This is insufficient to

obtain review herein. Supreme Court Rule 10.1. Other than

merely parsing the case law, Pet. 13-15, there is no showing as

to how the Court of Appeals departed from the demanding stan-

dards established by this Court for the issuance of such

extraordinary writs. Ex Parte Fahey, 332 U.S. 258, 91 L.Ed.

2041 (1947); Mallard v. United States District Court for the

Southern District of Iowa, 490 U.S. , 104 L.Ed.2d 318 (1989).

Petitioners' argument seems to be that the District Court

somehow violated the XI Amendment by compensating for delay

using compound interest calculations; and that this "error" by

the District Court was of such extraordinary constitutional/

jurisdictional magnitude, that it compelled the Court of

Appeals' intervention by writ of prohibition. Pet. 15-17.

Petitioners' argument borders on the frivolous. They had

to demonstrate a "clear abuse of discretion," "conduct amounting

-14-

to usurpation of the judicial power," the absence of adequate

alternative means for relief,'* and that their right to issuance

of the writ was "clear and indisputable." Mallard, 104 L.Ed.2d

at 331.

In this case, petitioners faced two formidable barriers to

any such showing of extraordinary circumstances, which showing

the Court of Appeals understandably found was absent. Pet. Ap.

3a. First, there was controlling precedent from this Court to

the effect that an enhancement to an attorneys' fee award to

compensate for delay in payment does not violate the XxI

Amendment. Missouri v. Jenkins, 491 U.S. , 105 L.Ed.2d 229

(1989). Secondly, there was likewise controlling precedent from

this Court, iterated in Jenkins, to the effect that compensa-

tion for delay may be computed "either by basing the award on

current rates or by adjusting the fee based on historical rates

to reflect its present value." Pennsylvania v. Delaware Valley

Citizens' Council for Clean Air, 483 U.S. 711 at 716, 97 L.Ed.2d

585 at 592 (1987) (emphasized); cited in Jenkins, 105 L.Ed.2d

229 at 239. Thus, it was clear under Jenkins that the XI

Amendment presented no bar whatsoever to compensation for delay

“either by basing the award on current rates or by adjusting the

fee based on historical rates to reflect its present value."

Likewise, Library of Congress v. Shaw, 478 U.S. 310, 92 L.Ed.2d

12. The Court of Appeals found that petitioners did "not even

raise this issue [that irreparable injury would occur if

immediate review were withheld] in their opposition to the

motion to dismiss the appeal." Pet. Ap. 2a.

250 (1986), presented no such XI Amendment bar

protestations to the contrary” notwithstanding.

L.Ed.2ad 229 at 238-240.

Reduced to its essentials, then, petitioner:

that the District Court somehow "erred" in selecti!

alternative, instead of the "either" alternative, bot!

by Jenkins: it adjusted the original fee based

rates to reflect its present value,’ instead of awardi:

rates.” The Court of Appeals then somehow "erred" w!

heeded this Court's demanding standards by refuslr

wr.t of prohibition (now, "supervisory mandamus

actions taken by the District Court which we

authorized by Jenkins.

Under these circumstances, the Court of Appeal:

be faulted for its refusal to issue a writ of prohibit

Ap. 3a. Petitioners have not shown that there wa

abuse of discretion" or "conduct amounting to usurpati

judicial power"; much less that they were "clearly

13. Pet. 16.

14. By definition, "present value" calculations ar:

compound, not simple interest. American Jurisp!

Proof of Facts, "Damages," Proof 22, pp. 652-654 l

In eminent domain, where the delay in payment exceec

year, the federal government allows for compound inters

as just compensation. 40 U.S.C.A. 258.e-1(2 Se

28 U.S.C. 1961(b) (interest on money judgments entere

Civil cases in federal courts to be compounded an:

15. It did award current (1988) rates, without any inter:

for current (1987-1989) work. Pet. Ap. 84a.

putably " entitled to a writ of prohibition. These are hardly

compelling reasons that meet the reviewability standards found

in Supreme Court Rule 10.1.

As with the first "reason for granting the writ," petition-

ers' construction of an alleged "conflict" between the First and

Ninth Circuits, the latter exemplified in Rosenfeld v. U.S., 859

F.2d 717 (9th Cir. 1988), Pet. 15, is contrived. The Rosenfeld

court did not have a controlling precedent, like Jenkins, to

guide it in its examination of the sovereign immunity defense

raised by the United States, which the Rosenfeld court con-

Sidered to "implicate the district court's scope of

Irisdiction." 859 F.2d at 723. Thus, it exercised mandamus

Jurisdiction to review the defense, but eventually found no such

falid defense and denied the writ. Id. at

Here the First Circuit did exactly the same thing: deny the

writ. Pet. Ap. 3a. It had no need to entertain, much less ti

settle, an alleged XI Amendment issue which this Court had

lready settled in Jenkins.

Petitioners!’ construction of an alleged "conflict between

the First Circuit in this case and the Ninth Circuit in

Rosenfeld is based on a flawed premise: that XI Amendment

immunity for state governments is coextensive with the "no-

interest" bar which shields the federal government. This

premise was expressly rejected in Jenkins precisely in the area

of concern herein: attorneys' fees. Jenkins, 105 L.Ed.2d 229

at 238, n. 3.

D. In the final analysis, what petitioners seek is a

ruling by this Court that interim fee awards (and their enhance-

ment) qualify for the exceptional Cohen treatment and are

therefore immediately appealable.

The final result sought by petitioners defies long-

standing policy against piecemeal, interlocutory appeals. This

firm policy is clearly set forth in a statute, 28 U.S.C. 1291:

only final decisions are immediately appealable. The "policies

militating against interlocutory appeals"”® have long been

recognized by this Court.

Furthermore, although the matter in controversy in this

particular case consists of interim attorney's fees, what

petitioners really advocate is a quite extraordinary relaxation

of the Cohen requirements for all "cases of protracted institu-

tional reform litigation where final Judgment is not

foreseeable." Pet. 6. Thus, it is petitioners who seek to

"reformulate the collateral order doctrine," by making every

interlocutory order, no matter how insignificant, immediately

appealable in every "case of protracted institutional reform

litigation where final judgment is not foreseeable." Taken to

its final consequence, petitioners' theory would render

immediately appealable, in such cases, even routine inter-

locutory orders entered as to the most picayune matters, e.g.,

orders granting or denying extensions of time.

16. Scalia, J., concurring in Lauro Lines v. Chasser, 490 U.S.

, 104 L.Ed. 2d 548 (1989).

-18-

In the appendix to a petition for certiorari in a prior

phase of this litigation (petition iio. 89-1016, pp. 63a-64a),

petitioners referred to so-called protracted institutional

reform litigation, pending in all but a handful of states, in

the District of Columbia and in the U.S. Virgin Islands.

Presumably, this should cover all of the federal courts of

appeals, which sit over the federal trial courts where all of

these cases are pending. Taking petitioners' theory to its

logical consequence, all of the federal courts of appeals would

now have to entertain appeals and exercise mandamus jurisdiction

to review any and all interlocutory orders entered in each of

these cases, no matter how inane, just because they were entered

in cases belonging to that newly created and privileged clas-

Sification, "protracted institutional reform litigation."

It must be noted that this artificial classification is

sheer bootstrap, of petitioners' own making. For many years,

petitioners have subjected respondents to cruel and unusual

punishment. Feliciano v. Barcelo, 497 F. Supp. 14, 16 (D.P.R.

1980). This had been going on well before the commencement of

this case and continues to this day. Morales Feliciano v.

Romero Barcelo, 672 F. Supp. 591, 594 (D.P.R. 1986). To

protract matters, petitioners have fought respondents "every

step of the way frequently beyond the limits of responsible

litigation... insisted on an adversary [posture] of extreme

vexatiousness which has surely tested the patience of the

[trial] Court and wasted judicial resources... litigate[d]

-19-

protractedly factual matters which petitioners know[s] to be

true beyond any reasonable doubt... throughout the course of

these proceedings." Id. at 595.

Petitioners have further protracted matters by agreeing to

a stipulation to remedy overcrowding and then making an about-

face and moving for relief from their own stipulation and from

the order approving it. Morales Feliciano v. Hernandez Colon,

672 F. Supp. 627 (D.P.R. 1987). Such tactics have been aptly

described as "brinksmanship." Id. at 636.

Petitioners have protracted matters even further by their

continued contempt for the orders of the trial court, which

defiance has resulted in the imposition of civil fines. Morales

Feliciano v. Hernandez Colon, 697 F. Supp. 26, 36 (D.P.R. 1987).

Petitioners have protracted matters still further by unsuccess-

fully pursuing the issue of fines all the way up to this Court.

Morales Feliciano v. Parole Bd. of Com. of P.R., 887 F.2d 1 (1st

Cir. 1989), cert. den. 108 L.Ed. 2d 646 (1990).

While the litigation has spanned over a decade, Morales

Feliciano v. Hernandez Colon, 697 F. Supp. 37, 38 (D.P.R. 1988),

petitioners have protracted matters even further by their having

“established a pattern of gratuitous, time-wasting contentious-

ness by [petitioners], who litigate in vain and obstruct the

discovery of the truth of facts which are, and should be, beyond

dispute.... The [trial] Court's attempts to mediate have been

rebuffed and the [petitioners] have a poor record of cooperation

-20-

in disposing of the many problems generated even by stipulated

decrees." Id. at 48.

In the meantime, respondents get beaten for talking to

class counsel, Morales Feliciano v. Hernandez Colon, 704 F.

Supp. 16 (D.P.R. 1988); and one jail has been ordered closed.

+

Morales Feliciano v. Hernandez Colon, 697 F. Supp. 37, 51

‘D.P.R. 1988).

In the specific area of attorneys' fees, petitioners have

egregiously protracted matters by their litigation tactics:

A brief summary of the fees' proceeding must be

told. On prior occasions we have noted the conten-

tiousness and the excessive adversariness with which

defendants have met the claims made by the plaintiff

CAGBB. «a. This incident is no exception to the

stonewalling, dilatory tactics used by the defendants.

They have made every attempt to make sure that "[tjhis

fee litigation [would result] in what the Court in

Hensley warned against; "a second major

Latigation.*...

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 particu-

larized claims to match the requests for informatio!

and for time to prepare for this hearing. The

defendants never went beyond vagueness and

protestation....

Finally, we believe that the claimed hours a:

more than reasonable in light of defendants' conten-

tiousness and lack of compliance with this Court's

orders. It must be stressed that the prison condi-

tions 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,... defendants' conduct

throughout the whole litigation has been, to put it

I

2

i

mildly, obstreperous. They have opposed, sometimes

viciously, every discovery attempt or motion by

plaintiffs.~ "The government cannot litigate tena-

ciously [in this case, excessively] and then be heard

to complain about the time necessarily spent by

plaintiffs in response."...

5 The latest example was the Secretary of Justice's

complete disobeyance of this Court's July 13, 1986,

order to produce documents in relation to the attor-

neys' fees issue. We could have held him in contempt

but reluctantly refrained from doing so because that

would have further delayed the attorney's fees award.

Morales Feliciano v. Hernandez Colon, 697 F. Supp. 51, 55-56,

57 (D.P.R. 1988).

If the litigation has been "protracted," then it is only

due to petitioners' failure to abide by the Bill of Rights and

by their reprehensible litigation tactics, which tactics have

caused all sorts of delay; in short, due to petitioners'

inexcusable conduct. This has transmogrified the case into

“protracted institutional reform litigation" and, according to

petitioners, now entitles them to the immediate attention of the

Court of Appeals on any and every interlocutory matter which may

arise in the case.

This petition for certiorari is but another example of

petitioners' tactical maneuvers to further protract this case.’

While petitioners enjoyed the representation of retained counsel

over the years, which counsel get paid on a regular basis, the

payment of fees to respondents' counsel was delayed, in the hope

17. It is petitioners who have defied this Court's admonitions.

Hensley v. Eckerhart, 461 U.S. 424 at 437, 76 L.Ed. 2d 40

at 53 (1983).

that sheer economic power would eventually obstr ‘

tion of the constitutional rights of the prevail t

respondent class.

Respondents submit that this ase not

case where still another fonen exceptio! :

excised; thus it 1s not worthy of review by th rt

therwise, it is not necessary to grant review er

ole purpose of aanering to a policy ana then t iti

i Once again, the final result sovoht by petit

t btain the immediate reviewability f eacti nter fer

ana any ‘ ~~ FP an ement 7 al: re yf yy 17 y > L? | .

ich as this ne.

In this particula. ase there havs bee tw t

awards and an enhancement 9f the first ne he

ther interim fee awards in the future \ petit

have it e h interim fee award would é nmecd t

by a separate round of appeals, eventua t

‘ + Dy —~ > “+ >> } + ‘ by 1 +) ™ ‘

Ui Ue riLtreuUuiclabil y idmt l Ui UU ¢ c

f Appeals and this urt, period

rT Pr - + ; } _ _ _ + ~ ih ~~ + +

the propriety vel nec f ea inter] er -

mr 3 > | =} = } ‘ . A+ a4

Mpi ance € ~ACniLeVeaG l eve! 4 ca

+hic . ~> 1 ; a iy + eh " , i y

‘ ls Court qgaocKket noulia tne De € f .

nroY a-T." > ta l< ~ 12 rr + bh c ~< . -> > P ;

Le! mn iee iwaras aqae in isé

Tr oy . ‘ - >? 1 " . , > ° .

The result would be not ist ne but “

’

‘secondary fee litigation(s)," until fin t

A. 4

nas stated that a reques*® for attorney's f ‘ \

into extensive, protracted satellite litigation. Hensley v.

Eckerhart, 461 U.S. 424 at 437, 76 L.Ed. 2d 40 at 53 (1983).

This case is an example of such an undesirable series of

"secondary fee litigations." The 1988 and 1989 interim fee

awards and the 1989 enhancement have now been the object of no

less than two separate rounds of appeals, totalling four appeals

to the Court of Appeals,” a petition for writ of prohibition,

and now this petition for certiorari. Assuming, as we must,

other interim fee awards, given petitioners’ pugnaciousness, ”

there would be further appeals to the Court of Appeals, further

petitions for writs of prohibition and further petitions for

certiorari to this Court. The rounds of "secondary fee litiga-

tions" would grow exponentially, this time into the appellate

levels.

This would do violence to the policy described in Hensley

against protracted, satellite fee litigation. It is not

necessary to grant review herein just to iterate the Hensley

policy and then affirm because the result sought by petitioners

violates that policy.

IV. Conclusion

18. Respondents admit responsibility for part of the first

round of appeals.

19. As noted by the District Court, 697 F. Supp. 51 at 55-56;

Pet. Ap. 30a-3la.

Petitioners having

review by this Court,

should be denied.

+

=

failed to present a case worthy of

heir petition for a writ of certiorari

Respectfully submitted on July 5, 1990.

Rafael Perez-Bachs

Counsel of Record

G.P.0. BOX 4223

San Juan, Puerto Rico 10936

Tel.: (809) 250-5658

Carlos V. Garcia Gutierrez

Harry Anduze-Montano

117 Eleanor Roosevelt Ave.

Suite 303

Hato Rey, Puerto Rico O91

Harvey B. Nachman

Jose Fernandez Sei!

P.O. Box 9949

Santurce, Puerto Rico 10908

Carlos Ramos

Inter American University

P.O, Box 8897

Fernandez Junc Station

Santurce, Puerto Rico 90910

No. 89-1904

SUPREME COURT OF THE UNITED STATES

October Term, 1989

Rafael Hernandez Colon, et al.,

Petitioners,

¥.

Carlos Morales Feliciano, et al.,

Respondents.

On Petition For A Writ of Certiorari To The

United States Court of Appeals For The First Circuit

APPENDIX TO RESPONDENTS' BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

CARLOS MORALES FELICIANO, *

et al.,

*

Plaintiffs CIVIL NO. 79-4 (PG)

ae *

RAFAEL HERNANDEZ COLON, *

et al.,

Defendants ®

MOTION DEPOSITING MONIES

TO THE HONORABLE COURT:

COME NOW defendants Governor Rafael Hernandez Colé6n,

Administrator of Corrections Mercedes Otero de Ramos, and the

current members of the Parole Board -of the Commonwealth of

Puerto Rico, by their undersigned attorneys, and respectfully

state:

hs Pursuant to this Court’s Order of September 13,

1989, defendants hereby deposit with the Clerk of the Court

check no. 00577241, issued on February 28, 1990 by the Depart-

ment of the Treasury or the Commonwealth of Puerto Rico, to the

Clerk of the U.S. District Court, in the amount of

$2,500,859.00. Said amount represents the additional amount of

interim attorney fees plus interest awarded to the six

petitioners.1}

2. The September 13, 1989 Order amends the September

20, 1988 Order to award petitioners the following additional

amounts. 2

Total Amount >

Award Already Paid Outstanding

Nachman 1,412,976.244 433,748.25 979,227.99

Pérez-Bachs 166,647.48 45,805.50 120,841.98

Anduze 368,781.49 109,456.75 259,324.74

Fdz. Sein 966,846.23 296,596.95 670,249.28

Ramos 106,153.86 __ 49,290.00 56,863.86

3,021,405.30 934,897.45 2,086,507.85

J. The September 13, 1989 Order also awards the

following amounts for services rendered between December 1, 1987

and July 31, 1989:

Nachman 96,473.00

Pérez-Bachs 57,318.30

Anduze 57,324.80

Fdz. Sein 68,390.40

Ramos 29,640.00

Diaz de Carreras 15,080.00

TOTAL 324,226.50

lpefendants have already deposited interim attorneys fees

plus interest in the amounts of $934,897.45 and $70,111.67.

2Por services rendered up to December 1, 1987.

3See Motion Depositing Monies of August 15, 1989.

4while the face of the Order, on p.3, awards $1,413,345.31;

Appendix A correctly establishes the amount to be $1,412,976.24.

as a result

petitioners are entitled to the

Nachman

Pérez-Bachs

Anduze

Fdz.

Ramos

Diaz de Carreras

Sein

979,227.

120,841.

259,324.

670,249.

56,863.

+++ ++

of the September 13,

following

96,473.

57,318.

57,324.

68,390.

29,640.

15,080.

additional amounts:

onhuuw bt i

1,075,700.

178,160.

316,649.

738,639.

86,503.

15,080.

1989 Order,

TOTAL 2,086,507.85 324,226.50 2,410,734.35

3. In addition, post judgment interest has been

calculated at the annual rate of 8.27% for the period comprised

between September 13, 1989, when the Judgment was entered, and

on or about February 28, 1990, when the enclosed check was

prepared as follows:

Principal Post Judgment Total

Amount Interest

Nachman 1,075,700.99 + 40,225.69 = 1,115,926.68

Pérez-Bachs 178,160.28 + 6,662.21 = 184,822.49

Anduze 316,649.54 + 11,836.92 = 328,486.46

Fdz. Sein 738,639.68 + 27,613.46 = 766,253.14

Ramos 86,503.86 + 3,227.43 = 89,731.29

Diaz de Carreras 15,080.00 + 558.94 = 15,638.94

TOTAL 2,410,734.35 90,124.65 2,500,859.00

6. The deposit of these monies with the district

court for withdrawal by petitioners pursuant to this Court Order

of September 13, 1989 is not be construed as a waiver of the

right of defendants and/or the Commonwealth of Puerto Rico to

seek judicial review of said order at the appropriate time and,

should said order be vacated in full or partially, to seek

the refund of monies unwarrantedly paid out. See Morales

eliciano v. Hernandez Colén, Memorandum opini

May 10, 1989 and January 5, 199

WHEREFORE, t is respectfully Tues

Honorable Court to take note f the above

foregoing petitioners to make the Orresponding wit raw

J

lescribed in paragraph 5 of this motion.

RESPECTFULLY SUBMITTED.

In San Juan, Puerto Rico this 6th da v

I HEREBY CERTIFY that nm this late

iocument was mailed to Rafael Pérez-Bachs, Esq

4225, San Juan, Puerto Rico 00936; Harry Anduze Mont

ll Eleanor Roosevelt Ave. Suite 303, Hato Rey 1ert

J0918; Harvey B. Nachman, Esq., P.O. Box 9949, Santurce

Rico 00908; Pedro A. Del Valle Ferrer, Esq., Puert

Department of Justice, P.O. Box 192, San Juan, lert

" . ~~ -=

00902; Nora Rodriguez Matias, Esq., Condominio £1] ent

Bs “7 ahat="

, v oF

~

Oficina 215, Hato Rey, Puerto Rico 009

Carreras, Esq., Midtown Building, Suite 206, 421 unoz

Ave., Hato Rey, Puerto Rico 90919; Carlos Ramos Gonzé

Esq., Inter American University Law School, Box 889 Ferna

Juncos Station, Santurce, Puerto Rico 00910; José FernAncez

Paoli, Esq., Suite 407, Centro de Seguros Bldg., 701 Por

Leén Ave., Miramar, Santurce, Puerto Rico 00907; Vincent *™

Nathan, Esq., 644 Spitzer Bldg., 520 Madison Avenue,

Ohio 43604; Louis Siegel, Esq. Office of the Court Monit

P.O. Box 5918 Old San Juan Station, San Juan, Puerto Ricc

Carlos Garcia Gutiérrez, 117 Eleanor Roosevelt Ave., Suite 303,

Hato Rey, Puerto Rico 00918; Oscar Gonzalez Badillo, Esq. Banco

de Ponce Building, Suite 2203, Hato Rey, P.R. 00918.

HON. HECTOR RIVERA CRUZ

SECRETARY OF JUSTICE

RAMIREZ & RAMIREZ

269 Ponce de Leén Ave.

Second Floor

Hato Rey, Puerto Rico 00917

Tel. (809) 758-5660

\ Peel

Coles Deerleme__

-457 CARLOS DEL VALLE

#130604

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