Dennis J. Domegan v. Joseph Ponte, (Two Cases)

DOMEGAN, Plaintiff, Dennis J.

Appellee,

Joseph PONTE, al., Defendants, et (Two Cases).

Appellants

Nos. 91-1753.

United Appeals, States Court of

First Circuit.

Heard Dec. Aug. 10,

Decided

der 42 U.S.C. 1988. The § defendant offi- cials challenge the fee award primarily on ground Domegan cannot be con- sidered a “prevailing party” light results litigation. achieved in With modifi- cations to the amount of affirm the district judgment. I

BACKGROUND August 15, On imprisoned while the Massachusetts Correctional Institution at Walpole (“MCI-Walpole”), Domegan lodged pro se complaint in the United States District Court for the District of Massachusetts, alleging rights civil viola- tions under the Eighth and Fourteenth Amendments to the United States Constitu- tion. complaint The stemmed from Dome- gan’s disciplinary placement on the “Alter- Feeding nate Program” (“AFP”) at MCI- Walpole May again and in July of 1983.1 time, At that each meal served to AFP inmates, including Domegan, consisted en- Stephen Dietrick, G. Deputy Gen. Coun- tirely of two cheese sandwiches. The solid sel, with Nancy White, whom Ankers Sp. steel doors of AFP inmate cells remained Gen., Atty. Boston, Asst. Mass., was on closed. The given inmate was no hearing defendants, brief for appellants. prior to placement. the AFP AFP status Paul E. Nemser with whom Paula M. was reviewed every days five by the prison Bagger Goodwin, Hoar, and Procter & Bos- official who recommended particular ton, Mass., were on plaintiff, ap- brief placement. Domegan remained on AFP pellee. for seven and days one-half in May 1983, and for five days in July 1983. CAMPBELL, Before Judge, Circuit BOWNES, Senior Judge, Circuit CYR, During and March the district court Judge. Circuit appointed Goodwin, Procter & Hoar [here- inafter Procter & to represent Dome- Hoar] CYR, Judge. Circuit gan. The final complaint amended assert- action; After former inmate Dennis Domegan J. ed three causes of and cruel un- awon one dollar damage a civil punishment usual (Eighth and Fourteenth against action certain Massachusetts Amendments; 1983; 42 U.S.C. c. § M.G.L. officials, corrections ap- 12, district court 11H, 117);2 violation §§ of due proved an attorney against (Fourteenth fee award Amendment; 1983; 42 U.S.C. § defendants $41,441.55 amount un- 11H, 117); M.G.L. c. and §§ violation placement May 1. The Domegan occurred after sergeants the defendant officers and as- tray threw his against food and human waste signed (i) to the AFP: electricity turned off the cell; July, wall outside his he threw his Domegan's prevent cell to comply- him from tray food and outside his cell. ing regimen receiving AFP food time; (ii) him, meal knowing refused to feed Initially, Domegan sought to establish that the comply that he could not regimen; with the AFP Amendment, AFP was facially Eighth violative (iii) supply. turned off his water applied, relinquished but later the facial applied” claim. The alleged "as claim Ponte, Torres v. et al.” See “Domegan (M.G.L. Act Rights Civil Massachusetts Co., 314- Scavenger complaint Oakland 117). The final amended c. § relief, injunctive declaratory and demanded (use (1988) of “et al.” does $50,000, L.Ed.2d 285 totaling compensatory 3(c) requirement Fed.R.App.P. satisfy each damages from $35,000 punitive appealing); parties appeal specify notice defendants.3 the ten Stone, Pontarelli summary judg- Domegan granted our Cir.1991) (same). response claim. ment ought appeal why the show cause order the remain- trial on proceeded case Ponte, on except as not be dismissed jury award- in March ing claims to file an permission motion for July 16 a dam- “compensatory” Domegan $1.00 ed by de- filed appeal was notice of amended claim, but returned ages on the court. district with the counsel fendants’ the remain- on all defendants verdicts 4(a)(5). Fed.R.App.P. district See Judgment claims. ing Eighth Amendment parte the motion ex granted court against $1.00 in the amount of entered was (“Notice of id. following day. But see Domegan Gallagher.4 Ponte, Leppert, and filed after motion which any such costs fees and attorney requested time shall be prescribed expiration of the to $88,655.16, pursuant of amount in accordance parties the other given to court district Although the 1988. U.S.C. § rules.”). also D.Mass.R. See with local “prevail- Domegan was determined of notice (B), (E). An amended 7.1(A)(2), a reasonable recover entitled ing party” appel- 91-1753), naming all ten (No. appeal amount fee, it attorney reduced filed. lants, promptly was light of the limited $41,441.55 in award The defen- litigation. achieved success parte dis- ex Domegan contends on several challenge fee award dants order, appellants permitting court trict grounds.5 appeal after of notice file a corrected appeal period, original expiration II fourteen-day no- since was ineffective not 7.1 was by Local Rule required tice DISCUSSION 4(a)(5); Fed.R.App.P. See served. Appellate Jurisdiction A. also, (E); e.g., 7.1(A)(2),(B), see D.Mass.R. (8th Pairolero, 915 F.2d Hable v. and Or- “Memorandum The district 4(a)(5) of rule Cir.1990) notice (requiring entered was awarding attorney fees der” Sales motion); v. Johns-Manville Truett A notice 1991. defective May Cir.1984) Corp., 725 91-1625) on June (No. was filed appeal challenges suf- Domegan also Ponte, (same). except appellant 1991, naming no or showing “good cause” ficiency following caption: only in the then and orOn after meal. each be reassessed status the final amend- named in defendants ten 3.The trial, Domegan prior Ponte, Superin- October Joseph about J. complaint were ed custody, claims state and the from Leppert, Ad- was released MCI-Walpole; Frank tendent at declaratory relief were injunctive Segregation and Unit Department ministrator Gallagher, pursued. Act- ("DSU”) MCI-Walpole; Peter Administrator; Anthony Sergeants Sil- ing DSU en- why judgment never was clear It is not Brooks; Harri- Carl and Officers James va and defendants. against other seven Pires, tered Mendes, Christopher Patrick son, Gary Smith, de- Three other Bissonnette. Brian and complaints only against but earlier Although judgment named in fendants were was entered Ponte, Gallagher, com- amended dropped Leppert the final from were defendants appeal be- plaint. joined the seven defendants other against "defen- ran cause the 1, 1983, two and one-half On November concedes, correctly how- Domegan dants.” As Domegan pro se com- his filed after months against the ever, an award is no basis there varied MCI-Walpole a more instituted plaint, not liable. found who were codefendants seven inmates. for AFP menu nutritious defendants- these seven Accordingly, dismiss review post-deprivation its MCI-Walpole revised appellants. AFP inmate's requiring that each procedures, ing neglect” required mechanically under Fed. rule 58 notwithstanding “excusable 4(a)(5). See, Pontarelli, previous appeal by aborted R.App.P. e.g., appellant same appeal period); Fiore, address at 109-112. We need not within 960 F.2d contentions, however, 58); Domegan’s (discussing technicality as the of rule appeal premature. Gregson initial notice & Assocs. Architects v. Govern V.I., (3d ment 592-93 court “Memorandum district applied despite both {Indrelunas Order,” satisfy May entered did not parties’ opinion treatment of memorandum “separate document” rule. Fed. order); appealable Caperton v. Beatrice (1963) advisory committee note R.Civ.P. Co., Pocahontas Coal 688-90 (“The requir[es] that amended rule ... (4th Cir.1978)(“nor penalize are we free to separate there set out on a be by binding ... them to their erro opinion document —distinct from judgments” neous assertion that had been provides the basis memorandum —which entered); Fiore, see also 960 F.2d at 237 entry judgment.”) for the (emphasizing “separate that the document” added); Washington County Fiore v. requirement always interpreted “should Ctr., 960 F.2d Community Mental Health prevent right appeal, ‘to loss of the (1st Cir.1992) (en banc) (dis ”) (quoting facilitate loss’ Bankers cussing generally separate the nature of a Trust, 386, 1121); 435 at 98 S.Ct. at document); Dep’t Smith v. Massachusetts Halpin, 788, v. Willhauck 919 F.2d 792 1390, (1st Correction, 936 F.2d 1393-94 of Cir.1991) (1st Cir.1990) (same); 9 Moore’s Federal (memorandum and order does not 1158.02.1[2], Practice at 58-20 to 21. document”); “separate constitute In re Nevertheless, appeal a notice of deemed Inc., 971, Shops, 696 F.2d Smith Corset premature noncompliance due to with the (1st Cir.1982) (same, applying 975 analo “separate deprive document” rule does not Rule). gous Bankruptcy ap As the order appellate subject the court of juris matter pealed judgment,” from was not a “final diction, Trust, 384, Bankers 435 U.S. at 54(a), 58, appeal period see Fed.R.Civ.P. the 385, 1120; Smith, 98 S.Ct. at see also 936 running prior commenced the fil never Trust), (applying F.2d at 1394 Bankers ing appeal. of the corrected notice of Fed. appeal may proceed in and the the normal 4(a)(1), (7); Smith, R.App.P. 936 F.2d at appeals course where the court of deter 1394; Frances, R., Inc., 618 Scola v. Boat “separate mines that the document” re 147, 151(1st Cir.1980); F.2d see also Bank quirement parties. was waived the Mallis, 381, 435 U.S. 384- ers Trust Co. v. Trust, 384-86, Bankers 435 U.S. at 98 S.Ct. 86, 1117, 1120-21, L.Ed.2d 98 S.Ct. 55 357 1120-21; Smith, at 936 F.2d at 1394. (1978) curiam) (per (purpose “separate greater promote pre document” rule is to 24 May The district court treated its appeal dictability as to when time for be appeal- and as an “Memorandum Order” run); Fiore, gins to 960 F.2d at 233 order; docketed; duly it and no able (same).6 challenged appellate jurisdiction for party comply “separate failure to with the doc Although appellants at all times Smith, requirement. ument” See May treated the 24 “Memorandum and Or waiver); (finding order, at 1394 see also Bankers appealable “separate the der” as an 387-88, Trust, at 1121 98 S.Ct. strictly applied is to document” rule be as factors). Compare (considering same appeal concerns the commencement of the Indrelunas, Fiore, parties All 960 F.2d at period. v. See United States 216, 221-22, consistently present appeal treated 411 U.S. 93 S.Ct. (1973) curiam) Order” as a (per May 202 24 “Memorandum and (apply-

36 L.Ed.2d Cir.) (Eschbach, J.) (dis “separate 6. We raise the document” issue sua F.2d 890-91 cussing duty "separate Domegan’s juris- to raise doc sponte, it with of court as is intertwined denied, See, challenge. e.g., Caperton sponte), 464 U.S. v. Bea- ument” issue sua cert. dictional Co., cert. 104 S.Ct. 78 L.Ed.2d 261 and trice Pocahontas Coal denied, (4th Cir.1978) L.Ed.2d (raising "separate 104 S.Ct. 78 document" is- Greer, (1983). sponte)-, see also Parisie v. sue sua v. Garland Teachers Ass’n Texas State suggestion there is final 791-92, Dist., 489 U.S. Indep. Sch. occasioned would be prejudice unfair (1989) L.Ed.2d 866 appellate assertion by our party Na (quoting Teachers ] remanding for [hereinafter formal without jurisdiction, 275, 278-79 F.2d Helgemoe, deau “separate document” with compliance ... Cir.1978)). a minimum (1st “[A]t Smith, F.2d at requirement. resolu point able must be plaintiff jurisdiction proper, appellate (assertion legal changes the which dispute tion re- document” “separate waived parties as defen itself and the relationship between prejudiced). not be would quirement More at 1493. 792, 109S.Ct. at Id. dant.” notice Moreover, second dismissal “generous formula this over, under even circumstances, solely to in these appeal Teach in Texas stated tion,” the Court as “separate doc- compliance permit “pre as a qualify cannot ers, “[wjheels rule, force [to] would ument” aon if his “success vailing party” purpose.” Bankers practical spin for no purely techni be characterized claim can 1120; S.Ct. at Trust, U.S. at minimis_” touch- Id. “The cal or de (“We will Smith, inquiry must party prevailing stone parties round needlessly ‘force ” alteration material (quoting mulberry bush’.... round in a manner parties relationship of 986, 989-90 Zayas, Jusino promote sought to Congress Cir.1989)). Id. statute.” added). B. Merits determination The district Party” “Prevailing “prevailing Domegan met appellants’ of principal focus The review. See de novo subject is test in the fee allowance the discontent 1152, 1156 Nichols, 953 F.2d Romberg v. deter court the district case is that instant if the Cir.1992)(“We must reverse ... par “prevailing a Domegan was mined that legal stan applied incorrect court district only a one obtained though he even ty” findings under factual to reach dards [the cir “special damage Absent award. dollar party” determina “prevailing lying its an award would render which cumstances” Secretary Health tion].”); Guglietti v. of rights plaintiff ordinarily a civil unjust, (1st Services, 900 F.2d & Human is party” “prevailing as a qualifies who due Cir.1990) (where normal deference of award to a reasonable entitled not be accorded could EAJA fee Hensley v. 1988.7 42 U.S.C. fees under § the misapprehended court district because 424, 429, 103 S.Ct. Eckerhart, 461 U.S. case, decide record, appeals would of court (1983); de Jesus 76 L.Ed.2d not remand, the facts were as rather than Rico, 918 de Puerto Popular v. Banco par “prevailing dispute and genuine in Cir.1990); v. Lau- (1st 232, 234 F.2d Stefan ”). ... “largely one of law is ty” question Cir.1989). (1st 363, 370 renitis, F.2d Health Secretary McDonald But of cf. 1468, 1474 Services, Human “has & party one who A prevailing stan (“abuse discretion” of (1st litiga issue in ‘any significant succeeded party” “prevailing of governs review dard some of the benefit tion which achieve[d] ” cases).8 fee award in EAJA determination bringing suit’.... sought in [plaintiff] Guglietti, how- in subsequently demonstrated any part: action “In provides, in Section 1988 party” "prevailing ever, aspects of the certain provision sec- of a proceeding to enforce may turn particular case discretion, in a court, determination ..., its in ... 1983 tion[ ] may standard, making de proper solely on the party a prevailing ... reasonable allow par- “prevailing appropriate. review novo U.S.C. part costs." 42 attorney’s of the fee as not present does case in the ty" determination § us to led considerations of the entail apply in Mc- of review standard deferential a broadly "abuse established 8. McDonald in- fact-based does it involve Nor Donald. "prevail- all of review standard discretion” for def- appropriate found quiries those we like As cases. in EAJA ing party” determinations considered other than de minimis success. Domegan met with no Although Although one Eighth assuredly Amendment dollar most is a on the success amount, claims, judgment the final he obtained a favorable none- law state process represented theless “some” of the procedural due benefit verdict sought litigation; claim, litigation.” namely, an en- “significant a issue Johnston, Langton v. judgment against forceable the defendant (1st Cir.1991) (assessing significance deprived plaintiff officials who of the right process constitutional to due of law. “given scope and tenor whole”).9 insist, agree Appellants none We are unable to that an as a enforceable theless, judgment redressing cannot for nominal the final significant procedural process any significant effect on their due viola- have had Domegan, ques qualify “pre- relationship with tions cannot vailing party” a one dollar award can be status.10 tion how Johnston, issues); Langton Hensley, 224” see review in 435-36 n. erential Cir.1991) (district (mathematical (1st court assess- 103 S.Ct. at 1940 n. 11 com- materiality parison elements in of the total number of issues in a case ment of causation and test) (§ award). actually “provides "catalyst” with those won little aid judg- determining light present question in the case is whether a what is a reasonable fee in factors"), quoted Rogers, entitles Dome- all the relevant ment for one dollar Domegan’s party” gan "prevailing The facts are F.2d at 25. status. Guglietti, represented dispute, F.2d at claim doubtless a consti- see "prevailing party” qualitative application test tutional claim in terms. We cannot warranting ple- quantitative pure question treat the dimensions of the relief presents of law a nary dispositive obtained on the due claim as review. non, allowability, vel of a § Moreover, explained, as we have the district distinguished from the reasonableness deny discretion to a fee award to court’s of the amount awarded. Texas is narrow- “prevailing under section 1988 ("the degree U.S. at 109 S.Ct. at 1488 ly circumscribed: goes success” to the rea- overall grant Despite explicit of discretion in sec- sonableness, award); allowability not the it is well-established [sic] tion Helgemoe, Nadeau v. deny attorney’s may an award Cir.1978) (some appropriate fee award where prevailing rights plaintiff to a civil fees plaintiff's partially success is but attributable to rendering special circumstances absence lawsuit). unjust, requires find- the award and this court identifying ings of of fact and conclusions law Similarly, Supreme Court has never inti- explaining why special circumstances and judgment declaring a mated that a valid final inappropriate. would be an award civil constituted violation of a claimant’s Jesus, (citations omitted) F.2d at 234 de 918 simply "purely or de minimis" success technical added). (emphasis compensatory damage award or in- because no Rather, presum- junctive attempt relief was obtained. Appellants to demonstrate the de min- wrong ably recognition Domegan’s "compen- of the fact that the dollar nature of one imis satory” damage by procedural process procedural due viola- due occasioned award on the susceptible monetary by point- mea- against is not three defendants tion often claim surement, Court has stated that ing that he asserted 42 out “defendant/counts” litigation. viola- "height” sort who establish same to recover by will be entitled argument the defendants in tion "nevertheless was made of Okin, (1st Cir.1987), exceed one dollar....” not to Rogers F.2d 22 cert. nominal v. 821 1042, 1010, 709, denied, Carey Piphus, U.S. 98 S.Ct. L.Ed.2d v. 435 U.S. 108 S.Ct. 98 484 1054, (1978) added); contention, (1988). rejecting 55 L.Ed.2d 252 their this 660 Garcia, Santiago Velazquez "adopted 821 v. had Maldonado court stated that the defendants 822, (1st Cir.1987) (citing Carey). See approach’ criticized F.2d 829 of ‘mathematical the kind Stachura, 424, Eckerhart, Community 477 Memphis Sch. Dist. v. [Hensley n. 461 U.S. 435-36 v. 2537, 11, 299, 11, 11, 1933, 11, 106 S.Ct. n. 91 U.S. 308 n. n. 76 L.Ed.2d 40 103 S.Ct. 1940 (1986) (Nominal damages "are the (1983)]_’’ Along 249 ex- L.Ed.2d Id. at 25. lines ‘vindicating’ rights whose appropriate of Rogers, "prevailing party” means plained success actual, provable in- deprivation caused by compari- has not an arithmetic cannot be measured also, through e.g., jury”); Fassett joined see defendants in the of the claims and son 118, Haeckel, (2d Cir. F.2d 121 v. 936 complaint claims and defen- Fassett with the number of violation); 1991) Floyd (Fourth v. judgment. (reject- Amendment Id. named in the final dants 1390, Cir.1991) (9th Laws,. plaintiffs’ F.2d ing attempt to minimize 929 defendants’ (violation rights”); v. Cowans of "constitutional by claiming victory fewer than on “no success 408 Cavuoto, 80, (2d F.2d 84 Milwe v. 653 with Criteria Baseline a. Cir.1981) (nominal damage on consti- award least, attor- Texas Teachers Prior mis- stemming from official claim tutional under section not withheld were ney fees of support an award conduct “sufficient merely simply because 1988 fees”) (alternate holding). Perez damage award. a nominal obtained recently point- 1, the Fifth Circuit Rico, 2 Much as F.2d 600 Puerto University v. of v. Farrar however, Estate out, denied ed Cir.1979) may not be (“Fees of Cir.1991), 1311, (5th Cain, 1317 941 F.2d damages are only nominal simply because Hobby, v. nom. Farrar Edwards, granted cert. sub F.2d 759 awarded.”); Ganey v. — 1159, U.S.-, 117 L.Ed.2d 112 S.Ct. Cir.1985) (liability determi- (4th 337, 339-40 above, cases cited (1992), all of the 407 accompanied by not even need nation Teachers Abel, except Scofield, Texas antedate v. Burt award); 585 damage nominal 755, Helms, 482 U.S. as Hewitt v. Cir.1978) (nominal as well dam (4th 613, 618 F.2d (1987), 2672, L.Ed.2d 654 City v. 107 S.Ct. 96 Basiardanes sufficient); age award Stewart, 1, 109 v. Cir. Rhodes 1203, (5th Galveston, 1220 F.2d 682 of Curiam). (1988) (Per 202, 1 may 102 L.Ed.2d nominal 1982) (judgment Furthermore, Fontani, appeals the courts v. award); Skoda warrant presented with the issue Cir.1981) (7th (per cu- been have 1194 646 F.2d Teachers have drifted ‘.‘prevailing wake ($1.00 satisfies riam) judgment Nichols, Romberg v. Clinton, Compare v. apart.11 Hogue requirement); Cir.1992) (9th (“a nom- 1159 Cir.) F.2d (8th (absent proof 953 1318, 1323 F.2d nominal does not a damages award granted inal should be injury, plaintiff actual through make”); Fassett victory cert. fees), attorney damages and nominal Haeckel, (2d v. 936 F.2d 93 Fassett denied, where Cir.1991) (fee appropriate City v. award (1986); L.Ed.2d Scofield depri- damages are recovered (9th nominal Cir.

Hillsborough, right) constitutional of an absolute solely on vation ba- 1988) (attorney fees allowable Krzeminski, F.2d (citing Ruggiero v. award); see Derr v. damage nominal sis of Far Cir.1991)) (2d Estate (10th Corp., F.2d Oil Gulf (nominal damage rar, 941 F.2d at 1315-17 citing Nephew Cir.1986) (Title case VII success de minimis (10th represents Aurora, award City recov- sole purpose lawsuit re- subsequently where Cir.1985)), 1988 case a § Elec damages); Spencer General ery of 830 F.2d 1547 grounds, on other versed (4th Co., tric banc); Cir.1987) (en (10th (indicating that fees); (dicta) $1.00 plaintiff to entitled minimis success ab- Stores, Inc., might constitute de v. Wal-Mart Gamer result); case; any other Cir.1987) (Title sent favorable VII 659, Hinton, 662-63 131 F.R.D. “prevailing Denny v. confers damage award nominal damage (nominal award (M.D.N.C.1990) Huntley v. compare But status). party” success), minimis de 738, Bd., F.2d 742 constitutes Community Sch. 579 aff'd Elliott, (4th mem., 602 Denny v. Cir.1978) (district did not abuse (2d Hinton, 937 v. and Lawrence Cir.1991), damage determining that $100 discretion v. also Brewer Cir.1991). See (4th F.2d 603 process claim due on award Cir.1991) 860, (8th Chauvin, F.2d 864 938 most, victory”) to “moral amounted, at Cir.1988) conclud- 697, 699, (8th Fifth Circuits have The Fourth and 700 Wyrick, F.2d 862 ed, prece- Cain, contrary pre-Texas violation); to their Teachers v. (Eighth Farrar Amendment dent, can- alone Cir.1985) (violation 1148, that a nominal (5th 1152 Denny 737, "prevailing party” Rusk, confer status. rights"); v. 670 Kincaid “civil (M.D.N.C. 659, Hinton, 1982) (violation 131 F.R.D. process and v. of due (7th Cir. 746 Elliott, mem., 1990), Denny F.2d 602 937 v. Amendment); Draper, 639 F.2d v. McGhee First aff'd Hinton, Cir.), v. violation). (4th Lawrence Cir.1981) (due mem. (10th process 646 aff'd. Farrar, Cir.1991); (4th Estate Edwards, F.2d 603 937 339 Ganey 759 But cf. (where purpose of lawsuit sole (award F.2d at damages left to nominal damages). to recover jury). (citing Clinton, Hogue v. 791 F.2d 1318 er interlocutory ruling that Helms’ due (8th Cir.1986)). process rights had been violated constitut- ed success.

As explains, Texas Teachers in order for qualify a claimant to “prevailing for Supreme disagreed. Court Justice litigation achieve, status the must at a min- pointed Scalia out that Helms had obtained imum, a “material alteration” in the no relief whatever any on claim in litiga- relationship between the parties. Texas judgment, tion—no damages, no injunc- U.S. relief, S.Ct. at tive and no declaratory relief. “The 1493. The Court in Texas Teachers limned most that he obtained was an interlocu- standard, its “material alteration” tory ruling broad complaint his should not outline, through reference to two earlier have been dismissed for failure to a state cases, (discussing see id. Helms, Hewitt v. Hewitt, constitutional claim.” 755,107 U.S. S.Ct. 96 L.Ed.2d 654 107 S.Ct. at (emphasis added). (1987), Stewart, and Rhodes v. Supreme U.S. Court equate refused to (1988) (Per S.Ct. 102 L.Ed.2d 1 Third Circuit ruling relief, declaratory Curiam)), to which we now turn. since the interlocutory ruling could not conceivably alter relationship be- Helms, Hewitt parties12 tween in the face of a final S.Ct. (1987), 96 L.Ed.2d prison judgment “against ...,” plaintiff id. inmate commenced a section action 107 S.Ct. at (emphasis added), damages, as well declaratory as and the resulted in no other “re- injunctive relief, alleging due viola- lief” which the behavior “affect[ed] by prison tions officials. Helms was re- towards the plaintiff,” id. at defendants] parole leased prior any decision by 761, 107 S.Ct. at 2676 in origi- court, the district and the district court nal). later summary entered judgment against persuaded We are Helms. The Third Circuit reversed on the Hewitt can be ground analogous considered authority that Helms had been denied with- holding process. “prevailing The court of appeals party” status on ordered the ground case judgment remanded for that a final entry Helms, favor of is no except as different than the Third defendant Circuit interlocutory ruling qualified declaring determined entitled to immunity. a vio- Prior to the lation Helms’ due process rights. actual remand to the district More- court, over, however, clearly the Court explained prison defendant offi- Hew- cials itt: Supreme secured favorable Court

decision dismissing one of Helms’ claims. Respect for ordinary language requires After Supreme Court, remand from the that a at least receive some re- Third Circuit reaffirmed its holding earlier lief on the merits of his claim before he on the other due again claim can prevail. be said to See Hanrahan v. to the district remanded court on the issue Hampton, 446 [,100 qualified immunity. remand, On Helms (1980). 64 L.Ed.2d 670] did not pursue injunctive relief. The dis- Helms obtained no relief. Because of trict again court once summary entered the defendants’ immunity official he re- judgment against Helms, ground ceived no injunction award. No that the defendants were immune from lia- or declaratory judgment was entered in bility for damages, and a fee denied award his favor. Nor did Helms obtain relief under 1988. section The Third Circuit without benefit of judgment— a formal again reversed, ground on the that its earli- example, through for a consent decree Hewitt, It is this same to discussion 482 Texas Teachers and 12. both cite to Hewitt Hanra 760-61, 2676, U.S. at 107 S.Ct. at Teachers, that 754, the Court 1987, Hampton, v. han 446 U.S. 100 S.Ct. 64 792, cites in Texas 489 U.S. at 109 (1980) (Per Curiam), 670 L.Ed.2d and its semi 1493, explicate S.Ct. at to its threshold standard "prevail nal discussion of the test for threshold "prevailing party” for under 42 U.S.C. status ing party” status. See at note 13. infra happenstance § 1988. We consider it no that 410 — U.S.-, nom., Hobby, 112 Farrar 448 Gagne, Maher See settlement. 2575, 2570, (1992). 65 With 1159, 117 L.Ed.2d 407 122, [,100 S.Ct. 129 S.Ct. U.S. that he (1980). The most closeness of recognizing L.Ed.2d the respect, 653] and ruling that interlocutory an was obtained a somewhat would ascribe question, we the dis- not have been should complaint his principles enun- to the intendment different a constitution- state failure to for missed Rhodes; applied in in Hewitt and ciated of which the stuff is not claim. That al par- is, “prevailing precluding as not that Hanrahan, are made. legal victories Cf. who obtains claimant for the ty” status at S.Ct. supra, at [100 U.S.] [446 altera- to effect a material relief sufficient 1990], out of which legal relationship in the tion 2675-76.13 760, 107 S.Ct. at

482 at U.S. words, In other for arose. claim relief recently a sec vacated The Fifth Circuit in Hew- principles enunciated think plaintiffs whose to fee award tion 1988 departure from significant itt portend no of their claims on the merits only relief deter- Supreme Court criteria earlier stressing damages, for nominal judgment a party” on the “prevailing status mining forth principles set [Hewitt] “the obtains an enforce- a who part of Es Stewart]_” in Rhodes [v. applied damages on a 1311, able Cain, F.2d at Farrar v. 941 tate of claim.14 granted sub Cir.1991), constitutional cert. 1317 756-57, pronouncement Supreme Hanrahan, Court S.Ct. at since the latest 100 446 U.S. at subject touchstone of 1989, “[t]he fee states that a 1988 on Supreme Court reversed § counsel, inquiry materi- prevailing party be the appellate must pendente to lite made award relationship of rulings alteration of the ground favorable al that all on the Congress sought interlocutory procedural. parties which in a manner plaintiffs were Teachers, 489 statute.” Texas promote that— The Court noted fee added). (emphasis 109 S.Ct. at 1493 U.S. at of clearly been the intent to have it seems course, Hanrahan illu- citation Of the Hewitt interlocutory permit an Congress to such possibly not Helms could minates the reason his only party has to a who established award status, granted "prevailing been have his on the merits entitlement to some claims, relief entitlement he never established since appeal. court or either in the trial on relief. Reports congressional de- Committee Finally, Supreme in Han- Court observed appropri- considered to be what were scribed rahan: an for such award ate circumstances refer: passages apparent from these that It seems Bradley v. Richmond ence to two cases - permit the interim Congress intended Board, 40 U.S. 696 S.Ct. [94 School party only a has of counsel fees when award (1974), v. Electric and Mills 476] L.Ed.2d some of prevailed merits of at least his Co., S.Ct. [90 396 U.S. Auto-Lite only been has there For in that event claims. 94-1011, (1970). [p.] S.Rep. No. 593] L.Ed.2d determination 'substantial 94-1558, [p.] [(1976)]; H.R.Rep. No. Congress was a parties,’ which determined party (1976) cases In each of those [ ]. from necessary departing foundation had established fees were awarded whom party country each is to rule in usual this although party, liability opposing final attorney. expense of his own bear been entered. orders had remedial 757-58, Hanrahan, at 1989 100 S.Ct. atU.S. (emphasis at at S.Ct. Id. 446 U.S. 94-1558, p. added) (quoting No. 790-92, H.R. added). at 489 U.S. (1976)). element this essential S.Ct. at reaffirms test, party" was dis- "prevailing Hewitt, ''liability the Court held Prior to Hanrahan, 446 U.S. cussed not go responsibility for fees the merits Hewitt, but 100 S.Ct. hand; not been has a defendant where hand 2675, as well. against, immu- either because prevailed indicates, Furthermore, Mills as Hanrahan merits, authorize nity 1988 does § or on the Co., 396 U.S. 90 S.Ct. Auto-Lite v. Electric Kentucky against that defendant.” (1970), the Court deemed 24 L.Ed.2d Graham, v. 3104, liability appropriate once had interim fee award added). (1985) (emphasis 87 L.Ed.2d determined, question though "the been even Virginia v. Consum- Supreme Court also proceedings_ await further relief [would] Inc., States, the United directing Union is, ers 738-39, though relief order even L.Ed.2d 64 641 100 S.Ct. particularly granted. note- yet It is been had premised (1980) (overturning award 1988 fee believe, ap- § with worthy, Mills is cited possessed ab- for which defendants Report conduct accom- companion Senate proval in the immunity). legislative Report, solute as in House panying well §

41J Supreme The other Court case discussed entitled “prevailing party” Id. status. Stewart, in Teachers Rhodes v. Thus, we think Rhodes signifies no differ- L.Ed.2d ent result present context than (1988) (Per Curiam), a section 1983 action in required would have been under prede- its prison judg- inmates two obtained cessor, Hewitt. declaring ment their First and Four- point At this analysis, it, our as we see teenth Amendment had been violat- the baseline by prison ed officials comply “prevailing par- who failed to standard prison procedures reg- administrative ty” status in Texas Teachers has set out ulating magazine subscriptions by inmates. Domegan been met. obtained an enforce- judgment compli- district court ordered judgment able final affording at least some ance and awarded fees. against relief the defendant corrections of- Sixth Circuit affirmed the section 1988 fee ficials who procedural violated his due reversed, Supreme award. The Court ob- process rights.16 Furthermore, we consid- serving that case was moot “[t]he before er the damage nominal award not issued, judgment judgment and the there- “some relief on the merits” of a what- plaintiffs fore afforded relief claim, see Texas constitutional id. soever[,]” S.Ct. at 203-04 U.S. at (quoting S.Ct. at 1493 (emphasis added), plaintiff-inmate since one Hewitt, 107 S.Ct. at died and the other was released from custo- 2675),17 but relief commensurate with the dy prior judgment. Whatever relief oth- intrinsically-nonpecuniary might er inmates realize judg- from the process deprivation ment,15 plaintiffs, inmates, litiga- established as former and, therefore, realized no relief were not tion.18 case, notwithstanding

15. In the instant proximate that the had any not been the cause of lost challenged procedures work, AFP thereby were revised within precluding even a nominal dam filing award; pro three months after the age se com- where court stated that “an award plaint, Domegan does not contend that an infor- pros of nominal ... would make the parties’ legal relationship mal alteration in the pect obtaining attorney fees much eas Nadeau, litigation. was occasioned ier-”), petition filed, cert. 60 U.S.L.W. (“We 581 F.2d logical sequence ... consider the chrono- (U.S. 8, 1992) (No. May 91-1794); Warren important, of events to be an Fanning, factor, although clearly not definitive in deter- (where money damages requested, alone were mining whether or not defendant can be reason- violation, jury Eighth found Amendment ably guided inferred to have his actions in re- plaintiff “and his counsel ... have no one to lawsuit."); sponse plaintiffs Langton, see also jury’s blame but themselves for the decision not (“‘the 928 F.2d at 1225 mere existence of a damages,” they pro to award nominal since temporal coincidence ... cannot alone suffice’ posed jury instruction which left nominal engage test.”) gears catalyst (quot- to ing damage jury, award to the discretion even Housing v. Rhode Island & Mort- Martinez though applicable law mandated nominal dam gage Corp., F.Supp. Finance award). age (D.R.I.1986)). course, recognize, 16. We that one dollar is a 18.Appellants emphasize Domegan could nominal amount. Yet we cannot think that a injunctive declaratory not have obtained re- represent award does not entered, judgment at the time lief because relief,” particularly signifi- “some where the Domegan AFP had been revised in 1983 and cance of the constitutional claim and the nature custody been had released from state in 1988. deprivation suscepti- of the established are not Rhodes, Accordingly, relying on Hewitt and Thus, monetary ble to measurement. we be- interpretation the Fifth Circuit's of those cases recognize lieve we must that the nominal dam- Farrar, appellants argue in Estate that the age does not warrant an inference that judgment way in no affected their behavior to- the fact-finder intended to minimize the serious- Domegan. ward in Hewitt Unlike done, wrong substantiality ness of the or the Rhodes, however, Domegan obtained an intended, intangible the relief since the nature enforceable for nominal re- injury of the absolute constitutional in the in- dressing appellants’ previous violations of Do- monetary stant case is not measurable in terms. megan’s rights. constitutional Connectors, appel- Walker v. Anderson Elec. We are satisfied that the intendment Cf. (11th Cir.1991) "prevailing par- n. & lants attribute to the threshold (upholding ty” denial of fee award where Title VII standard set out in Texas Teachers would jury sufficiently foreign develop- found that defendant's sexual harassment work results legal in the a “material alteration effect minimis or de Technical Purely b. parties.” Com- relationship between the Success Rhodes, S.Ct. at pare pre- majority view Notwithstanding the appeals the courts among vailing —al- hypo- interpret the Texas Teachers We attorney fee awards lowing section past, require justiciable some thetical nom- judgment for enforceable on an based rights depriva- impending civil present or pp. supra at inal —see More- entitling the claimant to relief. tion standard party” “prevailing the residual comprehensive over, matter how the by a unanimous Court recently enunciated claimant, by the unless obtained “relief” gives us concededly in Texas Teachers wrong or threatened occasioned a dis- cautioned that opinion The pause. “significant” the challenged procedure is a civil conclude that might trict legal rela- in the overall effected alteration “pre- eligible rights claimant will claim arose tionship out of which the “success if vailing status party” satisfy too insubstantial be considered charac- claim can be legal aon [achieved] Thus, the suc- party” test. “prevailing or minim- purely technical terized as is_” de purely technical may be ruled cess achieved Teachers, 489 U.S. at Texas rights violation if the civil is or de minimis the de minimis Under 109 S.Ct. at 1493. pros- or too remote either too abstract standard, therefore, deter- we must success the “relief” obtained pect for an enforceable mine whether alteration effected a material to have aon awarding nominal par- legal relationship between relevant sufficiently a claim can effect ties. parties’ material alteration “pre- relationship entitle the claimant “technical or illustration of second status. vailing party” Naprstek found minimis success” is de Norwich, F.Supp. 1369 City First, the illustration examine we (N.D.N.Y.1977). See Texas minimis success” “purely technical or de years 109 S.Ct. at 1493. Some U.S. at itself, case Texas Teachers taken from the Helgemoe, ago, Nadeau organizations teachers’ where (Coffin, C.J.), (1st Cir.1978) cited 3n. challenged policy for- successfully a school shifting in which fee Naprstek as a case during bidding meetings non-school teacher since inappropriate “the have been would prior approval from hours absent attacking antiquated grounds hypothesized principal. The Court school statute enforced curfew rarely [were qualified for not have plaintiffs would ” than real.’ ‘more contrived to be found] on this basis “prevailing status 1370) F.Supp. at Naprstek, (quoting Id. alone, charac- District Court as [had] “[t]he added). Supreme Court significance’ as ‘of minor terized this issue essentially Na- identified Teachers Texas ‘no evidence that noted that there was example purely “techni- as an prstek permis- were ever plaintiffs refused sig- prevented any victory that neither cal” premises during non- school sion to use ” wrongdoing nor prospective risk of nificant Teachers, 489 U.S. Texas hours.’ school contem- any genuine previous vindicated App. to (quoting poraneous wrong. added). 26) (emphasis n. 60a Pet. for Cert. crite- partic- exemplars imply qualitative that the no evidence there was These Since been, or de min- determining or would policy ever had ria for “technical school ular success, analysis of challenge requiring did careful be, successful imis” applied, their relief obtained in materiality “relief” to of sufficient not avail wrong claim- occasioned the nature, as to where the ing appellate under stances caselaw section Supreme nonpecuniary in we think an adoption ant sub silentio make its Thus, damages can alter the extremely improbable. do not of nominal award relationship Court dispute arose precursors as as out of which or its interpret Teachers monetary large significantly award can le- requiring a alteration material future injury. compensate pecuniary parties. circum- relationship gal between the wrong the arose. The remedial alteration in the occasioned the litigation to wrong relationship parties If the “redressed” was between amounted claimant. contrived, in comprehensive agency’s regulatory to a nick illusory or even armor. design technical or Neither the fabric nor the of the may amount to mere “relief” regulatory by framework was altered success. de minimis ruling hardly agency an indictment of — exemplar cited Texas Teach- The third overdrafting one member of each or- —that City Unemployed and ers is New York ganization must be allowed to walk about F.2d Brezenoff, Council Welfare Thus, reception area. the Court’s cita- (2d Cir.1984) 724 n. [hereinafter II tion illustrates that Brezenoff ], the district court de- II where Brezenoff achieved,may success be considered techni- plain- nied a section 1988 award because if cal or de minimis the relief effected too techni- purely tiffs’ was considered success insubstantial alteration the overall II, In cal or de minimis. Brezenoff legal relationship litiga- out of which the alleged violations the com- constitutional tion arose. compared the relief plaint were with ob- organi- exemplar The litigation.19 plaintiff fourth offered in tained Texas provides guidance. launched a Teachers similar zation and some of its members Stover, regulatory frame- against Chicano Police Ass'n v. broadside Officers agency Cir.1980), through the defendant the Tenth work which allegedly government access to Circuit ruled that nuisance settlements do fettered organizational represent required ac- not “relief” of the sort buildings and restricted government buildings.20 “prevailing party” Ul- status. Its instruc tivities inside tion is not unlike that found in a seminal timately, relief the ob- Nadeau, requiring an order that at least First Circuit case. See tained was (action representative permitted to move at 281 must not have been “friv one be unreasonable, olous, groundless”). designated reception Fur freely about the IMC thermore, it is in the nature of nuisance comparative analysis A of the uncon- area. and the relief obtained settlements that the benefits tendered stitutional action do the intrinsic that the effected no settlement have less to with demonstrates lawsuit than the cost of in the relevant merit of the claim material alteration defending against it.21 relationship out of which the IMCs, ostensibly compared reception requiring Although II areas of the first-floor Brezenoff obtained, wrongs alleged one-day with the relief notice of intent to utilize the IMC analysis, tables, as the Texas banning net effect of its Teach- and solicitation distribution correctly hypothetical Naprstek, and resulted ers membership fees and contributions inside the comparison qualitative between the demon- Instead, in a provision in one of the IMCs. a minor wrong the relief obtained. We sub- strated and regulations unduly challenged ruled four achieved, "degree of success” mit that restrictive; say, required that is to insofar as it goes amount of the fee organization plaintiff representatives of the all 790, 793, 1493; 109 S.Ct. at IMC tables. to remain at the Nadeau, strictly is 581 F.2d at distin- guished quality of the relief obtained from hand, a conventional settlement 21.On the other significance of the in relation to the nature may entitle the claimant of a claim goes wrongdoing, which to the en- established "prevailing party” the absence status even in a fee award vel non. titlement to judgment. Gagne, of a final Maher v. 2570, 2575, 65 L.Ed.2d 653 charged regulations complaint that four 20. The (1980). City Criminal See Forrest v. New York City promulgated the New York Human Re (S.D.N.Y. Agency, F.Süpp. Justice infringed the constitu Administration sources 1982) (rejecting settle "nuisance defendant’s organization’s mem tional plaintiff’s § claim for ment” defense to to, with, distribute leaflets “to converse bers the amount and the fee award: "Both recipients contributions from welfare collect timing clear that it was make of the settlement premise City’s applicants In employed defendants to be free a means ('IMCs’)." New York come Maintenance Centers added); claim.") (emphasis see of a City Unemployed and Council v. Breze frivolous Welfare Co., Ashley v. Atlantic (2d Cir.1982) also noff, [Brezenoff Richfield ("nuisance (3d Cir.1986) settle & n. 9 to demonstrate the uncon Plaintiffs failed /]. part of inquiry be undertaken as regulations not to stitutionality the.challenged ment” “prevailing party” nar determination, part but confining organization rowly activities to the legal relationship, parties’ alteration in the in Texas Teachers guidepost next (iii) “degree merely of success” that is not technical or de min- its admonition Teachers, goes to the reason- in nature. Texas in imis See achieved (em- of the award at at 1492-93 of the amount S.Ct. ableness availability added). vel phasis “degree of a award “not to the Whereas 793, 109 non,” litigation may 489 U.S. at success” achieved in affect 790, 1492; 1493; at awarded, S.Ct. id. the third criterion S.Ct. amount party” deter- is, “prevailing superimposes that not to “prevailing for status clearly consid- Texas Teachers limitary compan- mination. on its a residual standard qualitative “degree of success” now ers designed to ensure that entitle- ion criteria relating exclusively to the amount criterion depend quali- ment to an award will availability. rather than its obtained, of an significance in tative relief materiality terms of its rela- precursors Thus, and its Texas Teachers tionship which the unconstitu- occasioned quantitative “pre- prologue to the are not tional action.22 by appellants. vailing party” test advocated Instead, degree in of suc- differences Domegan judgment a final for obtained achieved are reflected amount cess damages significant on a constitutional kind, awarded; in as differences whereas 247, Carey Piphus, claim. See 435 U.S. by the articulation suggested Court’s 1042, 1054, 55 L.Ed.2d 252 success standard the residual de minimis (1978)(as procedural process is due an “ab “materiality”), require qua- (“significance,” right, solute” its denial is actionable with pertaining principally litative assessments proof injury, out of actual of “the because eligibility for a fee award. to the claimant’s society importance organized proce Throughout in Texas Teach- its discussion observed”).23 process dural due be Al ers, particularly its references to the though monetary damage is mi litigation, in “degree of success” achieved amount, eyes in nuscule in of the law 1492, 1493, 109 S.Ct. at see id. substantial, significance its remedial quantitative appears the Court to intend a society recognizes the intrinsic deterrent only the claimant’s success assessment of judgments against public effect in officials in relation to the reasonableness of rights procedural due who violate “prevailing of the fee awarded a amount guaranteed under the Constitution. id. party.” 32; Memphis & note see also Com infra Stachura, “prevailing party” munity Dist. v. 477 U.S. criteria endorsed Sch. 11, 106 inquire in whether 308 n. 2544 n. Texas Teachers (i) (1986)(stating: Carey “makes significant obtained relief on a L.Ed.2d (ii) litigation, effecting in a material clear that nominal ... are the claim determination, injury "special putative Naprstek and stat risk of in was “‘more circumstances” ” Nadeau, real[,]’ ing F.2d at 279 focus should be on the lack of contrived than that "the case”). Dowling and in Stover the nuisance merit in the n. settlement Cf. Narragansett Corp., F.Supp. required Capital lacked the nexus to a claim. (D.R.I.1990) pur (stating that one of the 9(b), particularly poses behind Fed.R.Civ.P. Carey, has 98 S.Ct. at litigation, the context of securities is to “deter any Supreme never been limited in Court case solely groundless claims that are asserted arising City River under section 1988. See purposes extracting or for tactical reasons Rivera, 561, 574, 106 S.Ct. side v. settlements") added). nuisance ("rea (1986) (plurality op.) L.Ed.2d case, Carey's citing "nominal sonable fee” II, example, damages” support de- of Rivera view the decree discussion Brezenoff rights plaintiff railing seeks to vindicate the "walk-about” restriction afforded re- that "a civil rights purely important civil and constitutional lief that effected a technical alteration terms."); monetary solely legal relationship gave be rise to the claims cannot valued J., (Rehnquist, litigation. hypothetically-limited S.Ct. at 2704 relief id. at dissenting) (distinguishing relief, brought Rivera case from “a no discussed in Texas Teachers deprivation [Carey], requirement permission use case such as in which the since right necessarily during results in premises of a constitutional non-school hours was school pecuniary damages.”). Similarly, never actuated or threatened. appropriate ‘vindicating’ rights means of obtain, dies necessary to such compli- ance_ deprivation actual, whose has not caused Thus, provable injury.”). in these circum- It is intended that the amount of fees stances, the final awarding nom- awarded under ... not be re- [§ 1988] inal duced violations the inmate- because the may involved plaintiff’s right nonpecuniary absolute constitutional in nature.... cannot be charac- ... If the private cost of enforcement terized, any legitimate sense, qualitative actions great, becomes too there will be as “purely our, technical or de minimis suc- private enforcement. If civil Furthermore, cess.” rights since the laws are not to become mere hol- process deprivation pronouncements present in low case which the average

is citizen enforce, to cannot monetary reparation, amenable we must maintain quantitative traditionally assessment remedy of the relief effective of ob- fee shifting in these litigation tained in would defeat cases. the con- gressional underlying intent principles S.Rep. No. 94th Cong., 2, 5, 2d Sess. governing shifting rights fee in civil cases. (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5910, 5918. See also Furtado v. Supreme Court abundantly it made Bishop, (1st 635 F.2d 915, clear in Texas Teachers that the ultimate (emphasizing that 1988 is meant to fi- § monitor for the “prevailing test is litigation nance in (rath- cases apply which congressional Congress intent. avowedly create) er than legal rules, stating that designed section 1988 private to enable citi- “pathbreaking holdings that will not be zens rights to vindicate civil violations enforced are public value,” of limited add- circumstances where the of unlikelihood ing that ‘principle’ “the is of enforcement significant financial recoveries would deter served ‘merely’ suits that seek dam- their remediation due to the otherwise ages.” (emphasis in original)). unaffordable costs. Especially significant in the circum- private If citizens are to able to be assert stances case Congress’ instant is rights, civil their and if those who violate pronouncement explicit that “the amount the Nation’s fundamental laws are to of fees awarded under ... not be [§ 1988] proceed with impunity, then citizens reduced because the rights may involved opportunity must have the to recover nonpecuniary in S.Rep. nature.” No. it costs what them to vindicate these 6, reprinted in 1976 U.S.C.C.A.N. at rights in court. Supreme 5913. As the similarly Court ob- served, “Congress specifi- enacted § ... awards are essential if the [F]ee cally to enable to enforce the civil Federal statutes ap- which [§ 1988] rights laws even where the amount of dam- plies fully are to be enforced. We find ages at stake would not otherwise make it ” that effects such fee are awards for them City feasible do so.... ancillary securing and incident to compli- Rivera, Riverside v. 561, 577, laws, ance with these and that (1986) (plu- S.Ct. 91 L.Ed.2d 466 integral part awards are an rality op.).24 reme- years Congress before particularly, Four enacted the Civil that the financial circumstances Rights Attorney’s (the Fees Awards Act of 1976 injured party may of an mean that "Act”), this court reversed a district court order being brought, chances of suit or continued in denying a fee award to a small, § successful opposition, the face of will be there will predicated pub- The reversal claimant. lic upon wrongdoing. be little brake deliberate policy explained considerations which were Auciello, Knight Cir. as follows: 1972) curiam). (per important public policy very The violation of an quoted years These words four were may by way damages, involve little of actual later on the floor of United States Senate concerned, single so as a sponsor far subsequently individual or Senate bill comparison little Cong.Rec. the cost of vindica- enacted into law as 33, Act. 122 tion, (1976) (remarks as the case at bar Tunney); If a defen- illustrates. of Sen. and, may 33,314 litigation, (1976) (remarks feel that Cong.Rec. dant the cost of see 122 Object” Test “Sole denied c. are to be citizens private

Unless what it costs to recover opportunity “the however, urge, vigorously Appellants them to vindicate have been al [their civil] no fee award should reprinted lowed, for nominal Domegan did not sue court,” S.Rep. No. compensatory but for 5910, contrary to the substantial 1976 U.S.C.C.A.N. on Estate damages. punitive Relying Congress the instruc- explicit intent Cir.1991), Cain, 941 F.2d 1311 Farrar v. Teachers,25 enforceable an tion Farrar granted sub nom. rt. ce constitu- aon final — -, Hobby, materially alters claim which tional (1992), appellants argue L.Ed.2d parties responsibilities rights and entitle Domegan’s inability establish the claim relationship punitive compensatory ment “purely technical deemed arose cannot be required a determination it simply because minimis” success or de minimis de represented damage As nonpecuniary deprivation. vindicates success. that the nominal persuaded we are to contention runs counter Appellants’ of “material alteration effected Teachers, 489 in the formulation in a parties relationship of the legal the 1493, 792-93, 109 S.Ct. at which at U.S. sought pro- to Congress manner which “degree the of precludes consideration of statute,” Texas mote in the fee “prevailing the success” in connection with (em- at 1493 test, Popular de v. Banco de Jesus added), “purely deemed it cannot be phasis Rico, 232, Cir. Puerto simply minimis” technical or de success 1990) attempt to lim (rejecting defendant’s injury no of sustained plaintiff because plaintiffs “prevailing party” it status traditionally approxi amenable damage closely considered awards sort “whose In Estate sought”).26 sums damages. mate the compensatory of (recognizing impor- (“[CJivil it is rights Kennedy) Source Book 209 cases—unlike Sen. judicial remedy full and com- provide [be] tant that “the or antitrust cases—do not tort prevailing majority stating, plete,” a vast of large recovery and “[b]ecause from with a rights violations cannot af- of civil lawyer.”), quoted the victims pay he can his which Rivera, counsel, they present are unable ford at 2696 at S.Ct. 477 U.S. Rivera, courts.”); U.S. at their cases H.R.Rep. op.); No. (plurality see also op.) (quoting (plurality at 576 (1976) S.Ct. (noting impor- Cong., 2d Sess. 9 94th Congress). of remarks floor debate members protecting and civil of fee awards tance particu- Rep. are of Hamilton Fish The remarks rights, given "immunity doc- constitutional larly noteworthy present context: "preclude special defenses" and trines damages), severely availability of fees, limit” attorney’s provision it Without reprinted in Subcomm. on Constitutional bring very cases such as be difficult to would Comm, Judiciary, 94th Rights, Senate following: Sess., Rights Attorney’s Cong., Fees 2d Civil Legislative Act of 1976: Source Book: Awards History, et U.S.C. [42 § Fourth. Suits under Texts, Other alleging Documents penitentiary vio- inmates aof ah] 1976) (Comm. 1st, Source rights [hereinafter Print the inmates’ under lations 8th, 13th, Book ]. 14th amendments. 35,126 (1976) (remarks Rep. Cong.Rec. Act, Throughout legislative history of the Fish). protect recognized civil Congress the need of a rights financial circumstances claimants whose 26. We fail to see how a material alteration vindicating relationship at is made foreclose aimed “non-material” would rights. important nonpecuniary through relief not deprivations reference to obtained. does reprinted corollary in- 1976 a non-material alteration S.Rep. at No. —that merely repre- (“In arising it because many material cases become U.S.C.C.A.N. sought recognized laws, relief rights sents full who must our civil citizen under —was Bd., Subsidy Corp. money v. Maritime S.S. has or no Waterman enforce the law little sue to case), (EAJA (D.C.Cir.1990) where lawyer. private If citizens with which to hire a prevailing parties on plaintiffs deemed rights were their ... then to be able to assert civil are remanding of a district court order opportunity recover [they] basis must have agency. The rights to the administrative their case to vindicate these it costs them what Appeals of Columbia for the District court."); reprinted Court H.R.Rep. No. Farrar, the Fifth Circuit did arose under the United States Constitution not conclude and, submit, could not and was not converted into a mere tort Carey concluded, light have and the damages claim for simply because Dome- congressional underlying intent section gan relief.28 See . compensatory demanded damage that a nominal award invari- also Bergeron, Blanchard v. 489 U.S. de minimis ably constitutes success. 96, 109 939, 945,103 (1989) L.Ed.2d 67 Rather, “when the sole the court held: (rejecting “the notion that a rights civil object money of a suit is to recover dam- action for constitutes nothing ages, recovery of one dollar is no victo- private more than a benefiting tort suit Farrar, 1988.” Estate ry under § only the plaintiffs individual rights whose added) (“This F.2d at 1315 (quoting Rivera, violated”) were struggle principles. over constitutional 106 S.Ct. at (plurality op.)). surely It awas suit and so since more.”).27 sought nothing Domegan did deny culpability Respectfully, agree we are unable to the disciplinary charges which led to a bona civil action converts to a fide placement. Instead, the AFP he claimed “damage simply by adjust mere suit” an wrongfully placed that he was kept damnum, to the ad particularly ment the AFP process. without (but not) where the claim can need Accordingly, even if de isolation and facto brought only for nominal based inadequate provable diet had caused in alleged deprivation on an of an “absolute” jury monetary compensation, amenable to Carey, right. constitutional Domegan could not have established see also Sta 266, 1053-54; at 98 S.Ct. at chura, 11, compensation entitlement 477 at for the U.S. 308 n. 106 S.Ct. at sub Carey, present See deprivation.29 2544 n. cause of action stantive 435 U.S. ground Lowell, 10, e.g., Foley City Circuit reversed on the that the order of v. 948 F.2d 19-20 (1st Cir.1991). afforded no remand relief on the merits. The rejected the contention that a bare re- Supreme. rejected 27. The Court the Fifth Cir- sought by mand constitutes some of the benefit cuit’s "central issue” test in Texas 489 plaintiff purpose bringing a whose main in suit 791, U.S. at 109 S.Ct. at 1492. In Estate of was to secure a remand: Farrar, 1315, at the court formulated argue[d] concept To the extent that the [it is] object” its "sole test. proportional of benefit should be sought, to what is disagree_ It would seem ab- Domegan initially sought 28. We note also that grant party [seeking only surd to remand], fees to a a [ ] declaratory injunctive properly relief but denying party while them to a following pursuing refrained from those claims only differs in that it asked for a more com- Rhodes, Cf., custody. e.g., his release from state that_ plete victory Propor- ... lost on (former U.S. at 109 S.Ct. at inmates tionality only would come in after an ade- "prevailing parties,” as case became moot quate victory is found and the court considers relief); entry equitable before for what share of the fees is reimbursable. Newkirk, 395, 402-03, Preiser v. 422 U.S. 95 S.Ct. 1123; Corp., Waterman S.S. 901 F.2d at see also 2330, 2335, (1975) (inmate’s 45 L.Ed.2d 272 ac- Brewer, Gillespie F.Supp. equitable wrongful tion for relief from transfer (N.D.W.Va.1985) (“The importance nature or filing mooted retransfer of inmate after was vary proportion an action does not in complaint; legitimate there was no concern monetary requested."). amount of relief wrongful "good transfer would affect that the Domegan sought only damages Had nominal decisions, parole time” or and no reasonable claim, procedural process on his due there alleged wrong expectation be would question, analysis, would be no under our repeated); Union v. American Postal Workers through comprehensive relief obtained Frank, (1st Cir.1992) ("The award would be sufficient for presence damages of viable does not claims ... "prevailing party" Compare Waterman status. regard- ‘present controversy establish a case or Domegan Corp., S.S. 901 F.2d at 1123. That relief,’ Littleton], ing [equitable] O'Shea [v. may sought compensatory damages, have but 669, 676, [488,] L.Ed.2d [94 see nn. 28 & would not detract from (1974)].”). infra course, "prevailing party” finding. such a Of ' stated, Eighth adjustment Domegan Amendment we have in the amount asserted claims, process may appropriate companion due be certain cir- substantive fee award in claims, response great disparity damages allegedly as a in to a be- sustained cumstances See, place- damages sought consequence wrongful procedural tween the and recovered. All 1052; in amount. eases tion was de minimis Rodri at 98 S.Ct. at involved cir- Perez, adverted to Texas Teachers Quinonez guez de wrong established denied, cumstances in which the Cir.), (1st cert. real, (1979). illusory than or the was more 62 L.Ed.2d 100 S.Ct. relief Domegan litigation was so insubstantial was obtained wrong occasioned relationship right of his absolute in relation to the relevant denial unconstitutional Although a civ de “purely considered technical or procedural process. due as to be compensato may Thus, demand “prevailing sta- rights il minimis.” and emotional dis mental ry preclud- instant case neither tus procedural due resulting from a inability compensato- tress a by the obtain ed Carey, 435 U.S. deprivation,30see on damage award ry 263-64, (damages for at 1052 98 S.Ct. at claim, nor the failure to estab- distress); Maldona and emotional mental claims, which are mat- liability on other lish Garcia, 821 F.2d Velazquez Santiago v. do assessing considered appropriately ters Cir.1987) (same) (monetary the fee award. See the reasonableness to flow from presumed are not Teachers, 489 U.S. at 109 S.Ct. violation). at Carey, 435 U.S. (cit- 1493-94; Jesus, 918 F.2d at 234 de at 1050-52; 98 S.Ct. id. Teachers). ing Texas justified (“[W]here deprivation that a nominal dam Were we to conclude deficient, whatever dis procedures are but in a action age award civil based may attributable person feels tress a represents nonpecuniary deprivation than to defi justified deprivation rather success, we would rule mere de minimis procedure.”).31 ciencies notwith shifting under section 1988 out fee recovers an en standing that the claimant Summary d. judgment on a consti forceable find no warrant Su claim. tutional We analysis on the sufficien- Supreme Court doing so. preme Court caselaw invari- cy of the obtained relief 266, 98 S.Ct. at 1054 Carey, 435 U.S. at capacity to redress real ably centers on its deprivation is ac (procedural due Supreme Court has nev- wrongdoing. The proof injury of because without tionable (nor approval to a adverted with er ruled process is “ab right procedural due held) of fees an award case which has importance to solute,” of the and “because merely improper section 1988 be- under procedural due organized society that litiga- monetary obtained cause the relief Stachura, by 477 U.S. at 310-11 bare violation. AFP-related conduct ment on AFP and other 2545, 14, (discussing n. 14 n. 106 jury & 311 S.Ct. prison found for the defen- officials. The 446, 536, Herndon, Teachers, S.Ct. 71 47 Nixon v. Under Texas dants on these claims. Domegan's cases); (1927), Carey, claims, 435 and other L.Ed. 759 of on those lack success 22, 22 & 265 n. 98 S.Ct. 1053 n. goes U.S. at 264-65 large part complaint, of his thus on a prerequisites (emphasizing "elements and that degree award, § the amount of the 1988 of success and recovery” deprivation constitutional for availability. for one See Texas not its another; necessarily appropriate for dis- 792, not are cussing voting rights 109 S.Ct. at 1493. 489 U.S. at cases); Walje v. see also 10, Winchester, Kentucky, City 12-13 compensatory damages Domegan demanded 30. 1987) (presumed damages for $50,000 available Cir. all aggregating in connection with his involving deprivation First Amendment claims and the state law constitutional federal vote); Moreover, right City v. Illinois Pub. Watseka special verdict form indi- claim. Council, (7th Cir. $350,000 1559 damage F.2d punitive Action 796 cates that entire 1986) deprivation of (presumed Eighth Amendment demand related to aff’d, rights), 479 First Amendment solicitation claim. (1987). 93 L.Ed.2d U.S. Abogados de Colegio de noteworthy But Schneider v. to certain oth- contrast 31. This is cf. (1st Rico, resulting nonpe- Puerto er constitutional violations damage (upholding award First right deprivations nominal cuniary injury, such plaintiff offered no vote, damages may case where Amendment presumptive — -, denied, damages), U.S. readily proof cert. though definite, recoverable for the (1992). measurable, L.Ed.2d 772 S.Ct. from presumed to flow harm Stachu-ra, observed.”);32 see also process be able damage against award 77 U.S. at 380 n. responsible public at 2544 S.Ct. officials. 4 n. (nominal damage appropriate Special Circumstances infringement to vindicate whose Thus, injury). causes no “actual” we do Appellants argue Domegan that is not understand Texas Teachers to condone entitled to no fee because alleg he (let require) “pre alone disentitlement edly exhibited an reaching “inexcusable vailing party” merely status because the by fees” submitting an applica inflated fee final redressing procedural a Kendrick, See Lewis v. due tion. rehearing).33 only Cir.1991) (on violation awards nominal dam In Lew is, we denied a fee

ages. appli award where the (1) cation “good reflected faith” effort A nominal award based on excessive, redundant, exclude or other predeprivation process a denial of the due hours, (2) wise unnecessary no reduction culpability the claimant whose later con is spent for time claims, on unsuccessful presents ceded tantalizing candidate for (3) no allowance for the “degree limited characterization as “technical or de minim- success” achieved Id. plaintiff. is success.” Yet to do so would be to on Hensley Eckerhart, (relying conclude that the constitutional violation 424, 434, 436, 103 minimis, itself was de which cannot be (1983)). 76 L.Ed.2d 40 On the other done Supreme under current case- Court hand, present request reflects rea law, see, e.g., Carey, 435 U.S. at regard sonable for the expressed concerns see, e.g., precedent, S.Ct. at our own Lewis, part by as evidenced in the fact Rico, University Perez v. Puerto the number of hours for which com (1st Cir.1979), congression or the pensation requested approximates was underlying al intent section 1988. We one third of the hours counsel devoted to “prevailing party” therefore conclude that litigation. self-imposed, pre-ap These appropriate status where the claimant plication substantially anticipated cuts vir establishes tually appellants’ due all present content ions.34 process deprivation and obtains an enforce- Significantly, Carey partner primary the Court noted in lead and the associate who potential liability "the charge years 1983 defendants for § took several after attorney's provides Moreover, fees ... appointed. additional —and Procter & Hoar was inconsequential billed, no means application pares the total in rec- hours —assurance agents deliberately ignore of the State will not ognition of the fact that "some of the time billed process rights.” Carey, redundant, n. owing changes to unavoidable 11, 98 S.Ct. at case, 1049 n. 11. staffing of on the or was efficient than less might assignments it have been because some present 33. As the claim is raised for the first given were in the first instance to law clerks "plain appeal, time on we review for error” and interns.” miscarriage jus- indicative of "a 'clear of Appellants further contend that the fee re- tice’_” Playboy Enterprises, Inc. v. Public inflated, because, quest they say, virtually was Comm’n., (1st Cir.) (quot Serv. litigating the entire trial was dedicated to the Univ., ing Brown v. Trustees Boston 891 F.2d — of claims, sought unsuccessful lead trial counsel Cir.1989), denied, rt. U.S. ce compensation daily for more than ten hours -, (1990)). 112 L.Ed.2d 399 though even the trial was conducted on a half- basis, day compensation requested objections was for An examination of certain raised Nevertheless, attorneys. by appellants was not applica- two trial it demonstrates that the fee prepared purpose improper request compensation to for the trial tion was with no to inflate instance, appellants suggest spent securing process For time the due fees. that Proc- over-staffing personnel recognition ter & Hoar’s of the lack of award. conferences, claims, changes conferences, drafts, revisions, spate compensation caused "a of cross- success on the other was peo- requested edits of other one third of the trial time. for moreover, revisions, etc., ple’s plain- Contrary suggestion, appellants’ drafts and for which sought discovery compensation.” pretrial entries tiff Our review of the we do not find the nor, excessive, application allays any Approxi- part, such concerns. the most inclusive of mately compensation of should not have the 352 time entries in the fee work for which performed sought. Virtually discovery application pertain by ser- to services the been all the during five-year period applica- performed the that the fee contend

Appellants spanned by litigation. The district the limited “de- inadequately reflected tion charged found “the rates and hours litigation, as achieved gree of success” rea- aspects of the case be various reduction im- by the sizeable demonstrated sonable,” request to re- but halved the court, and, therefore, posed by the district degree of success achieved flect the limited requested was compensation the total that Hensley, See litigation. at 434- discloses, however, Our review inflated. $41,441.55 37, 103 at 1940-41. The identify any sub- neither appellants compensation purportedly allowed award compliance of “reasonable stantial failure “explicitly spent only for the 388.5 hours relating judicial pronouncements” issue, summary on the due Lewis, (on requests, to fee motion, [interlocutory] and the challenge veracity of rehearing), nor appeal....” supporting affida- time sheets or the further Although we conclude vits. reasonableness We review the required, we discern ba- reductions are fee award for abuse “ the bona fides questioning sis for discretion, finding an ‘when a ma abuse “special circum- application under fee deserving significant weight terial factor exception. stances” improper factor is relied ignored, when an improper upon, proper when all and no the Award Size of assessed, the court makes a factors are but ” Fos weighing requested serious mistake in them.’ application The fee Assoc., Inc., 139, 143 Mydas ter v. $86,016.80 totaling services award (failure (1984) present compensation requested evi- 79 L.Ed.2d 891 vices for which "accuracy Department supporting challenge (including deposition to the of a dence charged”). interrogatories hours Never- Correction nutritionist and reasonableness of the theless, defendants) present propounded were not evidence that the to victorious their failure approved by due plainly claim, to the successful the district court were unrelated flat rates support appellants pre- evidence was needed of which cannot unreasonable means that due challenge. and nature of the to establish the existence Since the vail on their “flat rate” process deprivation. note 40. is a reasonable fee their “bottom line” infra Appellants point en- to a handful of "mixed” challenge ap- cannot succeed unless "flat rate” complaint pertaining tries to amendments to the by pellants flat rates allowed show that the they compensable are because related not average not reasonable rates district court were (even though entry unsuccessful claims each types com- for the services determined well). compensable some services as included pensable We do not think the district court. Likewise, “mixed” entries a number of other appellants manage their burden without can relating should not have to unsuccessful claims they establishing hourly rates which would application. But for been included in the ap- propose place rates be used in flat however, exceptions, appli- the fee these minor court, especially proved since the the district requirement regard cation accorded appear their approved excessive on rates do sought compensation for services Although appellants contend that flat face. unsuccessful claims. In all fair- rendered on ness, law, impermissible a matter of rates are lapses that these we cannot conclude 423; much, p. see have never indicated as infra fee-cutting precision approached those involved necessary the issue it to reach nor do we believe Lewis, present again such that Foley City present record. See "special be slashed under the circum- should 10, Cir.1991) Lowell, Mass., (1st 21 F.2d 948 stances" test. (Where target either has failed to offer “a fee persuasive argumen- countervailing evidence or challenge only appellate reason- position, support we do not think of its tation in hourly of these rates asserts that the ableness target’s job home- to do the [ ] it is the court’s compensate required court was to coun- district _”). work services, different rates for different but sel at appel- reject the contention that We likewise hourly allowed a flat rate all instead challenges par- preserve their lants failed to attorney. performed We the same services billed, by failing present coun- ticular hours tervailing Domegan’s appel- accept contention do not challenges— below. These evidence right reason- their to contest the lants waived caselaw, insufficiency primarily founded rea- fee award on this basis ableness of the entries, billing argumentation based present of evidence as to son of their failure to Stenson, present case—did on the circumstances hourly v. rates. Blum reasonable Cf. 5, 5, 1541, evidentiary support. 886, depend on n. n. 1545 465 U.S. 892

421 Cir.1991) (quoting Independent Oil & (1st reducing a litigation fee award if the is not Quincy, Inc. v. Proctor Chem. Workers significant”) (Clayton case); otherwise Act of Co., Perez, 927, (1st Mfg. & Gamble (nominal 864 F.2d 929 600 F.2d at 2 damage Cir.1988)). have discretion “District courts may award one factor that affect amount expenses 42 awarding fee). fees and under when of 1988, [Hensley], appellate U.S.C. § Nevertheless, disproportion of courts accord deference to the exercise alone does not render an award unreason Den, Inc. v. Grendel’s that discretion.” able, Rivera, 574, 477 at 106 S.Ct. at Larkin, Cir.1984). 945, (1st 749 F.2d 950 id. (plurality op.); 2694 106 S.Ct. at enjoys The district court broad discretion (Powell, J., concurring); Foley City v. 2699 attorney setting the amount of an fee Lowell, Mass., (1st 948 F.2d 20 Cir. Popular de v. Banco de Jesus 1991) (reasonable may damage fee exceed Rico, Cir.1991) (1st Puerto F.2d over”), recovery judg times “several and a de Jesus United States v. II]; [hereinafter damages may ment for nominal warrant a Comm’n,

Metropolitan Dist. 847 F.2d Fudala, fee award. Aubin v. substantial (1st Cir.1988). On an “abuse of discre- (1st Cir.1986) 782 F.2d (sug 290-91 review, the for the fee award is tion” basis gesting “simple intrinsic value declara carefully, reviewed and we must en- be law.”); Perez, tion of violations of federal reasonable, the amount is but sure that 2 (policy awarding 600 F.2d at n. normally prefer “we to defer recovery nominal fees for of nominal dam thoughtful developed rationale and decision ages “handicap seeking would those to as by a trial court and to avoid extensive deny sert civil to the same extent as Den, guessing.” Grendel’s second Ruggiero see also v. ing altogether”); fees F.2d at 950. Krzeminski, (2d Cir. 1991) $12,833.34 (upholding fee based on Disproportion a. Higgins, award); Allen v. damage $1.00 Appellants contend that the attor (8th Cir.1990) ($10,000 disproportionate ney grossly fee award is award); Home damage fee based on $1.00 award, particular damage to the one dollar Serv., 819 F.2d at 1212 (award Placement damages ly light demanded. $16,989 relating ing portion litigation monetary recovery is “cer amount of the award); McCann damage to nominal tainly considered relevant” factor be [a] Cir.1983) (2d Coughlin, F.2d fee, Riv setting the size of an (that successful era, at 2694 damage claimant who $1.00 recovered (plurality op.); Foley, 948 F.2d at 19-20 in attor did not warrant reduction (amount relevant to determina $50,000).36 ney of almost fee award fee; may reduced tion of reasonable large damages sought when amount Summary Judgment b. small); Home Placement recovery but Co., Serv., argue district Inc. v. Providence Appellants Journal compensa not have allowed (“recovery court should legal services attributed to can be cause for tion for all course, "extraordinarily high "degree award” constituted 36. Of of success” achieved fixing abuse of the abuse of discretion. As we find no is a "critical” factor award under section district court's broad discretion —based disproportion amount of an between the fee U.S. at 109 S.Ct. at 1492 Lennerton, Appellants Nydam (discussing Hensley). do not con- awards—see tend, however, (1st Cir.1991) (appellate will not inter- the district court failed to “ care- recovery request [has] fere district court *[w]here [a] the fee to reflect the ... reduce fully weighed and arrived only procedur- the correct factors award on the a (quot- range_”’) supportable process within a claim and the lack of success a result al due (1st Cade, litigation. ing Wojtkowski 725 F.2d Rath- v. realized on the other claims in er, Cir.1984)), appellants’ demands for though the number we turn even the court reduced particular relating to fees for compensable further reductions hours from 808.3 to 388.5 for purposes, appellants that the services. these still contend Clancy, (1st Cir.1985) proceedings, since a 763 F.2d

summary judgment Nydam, also see (same); the unsuc- portion went toward 948 F.2d at 813 “ claims, Eighth Amendment (appellate cessful court not interfere will ‘[w]here wholly distinct from appellants assert were carefully district court ... [has] [a] See process claim. the successful weighed the correct factors and arrived at Hensley, 461 U.S. at range....’”) supportable a result within a (no for servic- compensation allowable (quoting Wojtkowski, 725 F.2d at 131). segregable claims from es on unsuccessful Appellants point to certain time-sheet en- Cade, Wojtkowski v. ones); successful tries which reflect services devoted to the (1st Cir.1984) (same). or process” claim un- successful “due determined, implicitly how- district court Eighth Amendment claim.39 Of successful ever, process Eighth and the due finding course, the interrelatedness is not claims were interrelated.37 As Amendment simply may undermined because it have finding adequately its interrelatedness further, practicable to discern some been record,38 supported in the we see no abuse partial distinction between the services court decision to of discretion the district rendered on and unsuccessful successful forego request separate the time Adams, Wagenmann claims. spent on interrelated claims where it would (1st Cir.1987) (upholding in- largely impracticable have to do so. been finding, noting clearly seg- terrelatedness Fudala, (1st Aubin see also billing sheets); regable item on II]; Aubin see Hens- Cir.1987) [hereinafter II, Aubin (“It might F.2d at 47 not ley, 435-36, 103 at 1940- practical lawyers have been for the to allo- (focusing differ- on overall success when each hour among factually cate several legally factually ent claims are inter- claims.”) added). legal Lennerton, related Nydam v. twined); billing example, entry For a which distin- (no abuse of discre- guishes legal between research on differ- district court determined that tion where necessarily ent a claims does enable and unsuccessful claims arose successful Fishman v. facts); from core of common clear allocation of fees where the different observing mary judgment litigation interlocutory 37.After that "a one dollar award con- and the resounding victory,” appeal. Additionally, legal specifically rather stitutes less than services (i.e., following opinion quoted process the district court devoted to the due claim such out) passage Hensley: separated were from services which could only compensable, determined as that was the only partial has achieved If ... Domegan "garnered [any] claim on which suc- success, product or limited sonably of hours rea- infra, cess.” See also n. 40. expended on the as a whole hourly may times a reasonable rate be an example, though process For even the due excessive amount. This will be true even differed, Eighth and Amendment claims interrelated, where the non-frivolous, claims were Support "Memorandum in of Plaintiffs Motion good and raised in faith. Summary Judgment” Partial reveals that (em- Hensley, 461 U.S. at 103 S.Ct. at 1941 circumstances, they arose out of the same added). phasis majority The section of the Domegan’s placement on the both concerned opinion quoted excerpt from which is taken Although AFP. facts are com- all material proper provides approach instruction on the claims, mon to both the core facts are common. applications services on interrelat- Moreover, dependent on the both claims were ed, nonsegregable where the claims claimant underly- investigation legal research factual ing litigation. achieved limited success in summary judgment portion mem- clear, therefore, We think it that the district supervisory relating direct and orandum recognized the interrelatedness of these appellants. liability of the individual compensation The court awarded claims. "only explicitly spent hours on the due those motion, issue, ap- summary judgment Only of these time-sheet entries was one (in- interlocutory] appeal proved fee award for in connection with the and the [defendants’ services, entry cluding qualified immunity summary judgment for 3.8 is- research on sues) spent Eighth As understand the district court hours on the due ...." claims, Domegan’s and the section of since "success the in- Amendment Domegan's summary judgment [on facts may fairly memorandum. be characterized as terrelated claims] ” (#111) ‘limited,’ entry adjust as indicated for this fees were awarded for We note 44. in connection with the sum- below. See services infra See, segregate e.g., failure to successful and factually are intertwined. claims summary judg- billing 39. As these supra note unsuccessful claims on their sheets. interrelated,40 appellants’ ment claims were Thus, the district court rationale affords compensation complaint that should counsel a substantial inducement to main- the time entries have been allowed because records, practi- tain detailed time wherever distinguished sharply more be- might have clearly delineating particular cable the Eighth Amend- process the due tween legal claims and issues to the which servic- present unavailing in the ment claims is Hensley, es related. See Rivera, 477 at 570 circumstances. See (billing records should op.) (plurality n. 4 n. claims); identify enable court to distinct see dis- (“[Wjhile it is true that some of the Den, (sub- also Grendel’s identify pre- puted time records do not appropriate fee reduction if stantial de- time, find claims worked on at the cise contemporaneous tailed time records not light of the Dis- lapse unimportant, in this kept); Wojtkowski, (billing 725 F.2d at 130 finding respon- all of trict that Court’s distinguish particu- sheets should between interrelated.”). claims were dents’ issues); Nadeau, lar 581 F.2d at 279 professional ser- of fees for The award (same). proceed- summary judgment in vices Careful review reassures us that the dis- ings also viewed the context must trict court tailored its total award to reflect court as a whole. The district the award light of the the value services pretrial summary only fees awarded reasonably required per- time for their services, interlocutory sum- degree formance and the of success mary judgment appeal, and the services Southworth, achieved.41 v. Gabriele process specifically related to the due (1st Cir.1983)(“Nor should interrelat- Consequently, due to the claim. judge deluged so with details become and due Eighth of the Amendment edness [sjhe is unable to view the claims for claims, practical matter essen- process as a perspective. [Sjhe retain a fees in must virtually made for tially no fee award was proportion.”). There was sense of overall pretrial dis- all services devoted determining of discretion no abuse itself, covery to the trial since such compensable hours. number of See United among distinguish interre- entries did Comm’n, 847 Metropolitan Disk States Furthermore, excep- with the claims. lated Cir.1988) (separation summary time devoted to the tion of the in fee award context "from chaff” “wheat related in- judgment proceedings and the limits,” is, a matter for the broad “within terlocutory appeal, the district court ratio- discretion).42 court’s penalized district nale ensured that counsel were Domegan was of confinement while 40.Appellants urge were entire- conditions that these claims Eighth ly on the AFP. separate, due to the fact so-called "substan- Amendment claim concerned "degree response limited of success” of confinement” while tive conditions AFP, litigation, halved the district court claim dealt with achieved whereas the due sought though request implementation request, the fee even "procedural issues before out, However, the total Domegan points compensation for about one third one of AFP.” as Home the case. summary judgment disputes on time counsel devoted to turned Cf. attached, Serv., (awarding protection F.2d at 1211-12 Placement due whether depended litigation in portion of appellants’ consti- of fees related on whether actions 50% obtained). distinguished were punishment from mere which nominal tuted process por- due restraint. The administrative argue district Appellants summary judgment memorandum tion legal services on fees for disallowed part should have on the nature of therefore focused against process claims placement, unsuccessful deprivations the AFP caused appellants propose no Yet codefendants. their practicable Miller, a sufficient administrative rationale the lack of doing so. See Cobb ("Nutritionally method deprivations. deficient for the way meals in no advance and unvaried (reversing order where fee-reduction preventing health hazards caused interest Thus, interrelated waste.”). but one of three on section of succeeded this thrown food and interrelat- against defendants: different rely claims evidence as to the did the memorandum summary judgment ness as it relates to the Hourly Rates c. Uniform litigation. recognize We district error in the district Appellants assert was situated to evaluate court better hourly approval of a uniform rate court’s spent whether the time on these services performed by each legal services for all necessary. reasonably Foley, 948 was See of the nature of the attorney regardless (“[A]n appellate F.2d at 19 tribunal lacks research, (e.g., confer- services rendered replicate the means to the trial court’s In encing, appearances). Maceira v. knowledge first-hand of the Cir.1983), Pagan, 698 F.2d nuances.”); Wagenmann, its 829 F.2d at that, Sampson, noted “while Miles [675 (district greater court “has far fa (1st Cir.1982),]upon [appel- miliarity than do we with how much was importance rel[y], indicates the lants] done, it, effectively who did and how appropri- using more than one rate when accomplished”); result Chalmers v. ate, it does not hold that differential rates Angeles, 796 F.2d Los Cir. Maceira, required.” always are 1986) (“The district court is in the best cases) (citing original). position to determine in the first instance Although within the it would have been reasonably expended of hours number discre- bounds of the district court’s broad aspects in furtherance of the successful assign tion to differential rates for various litigation.”). We therefore defer to the services, appellants proposed no alter- district court’s informed that the nate rates and submitted no evidence that aspects hours devoted to “various charged by the rates Procter & Hoar were reasonably case” were efficient and necess find no of dis- reasonable. We abuse ary.43 forego cretion in the decision to differential rates in these circumstances. e.Challenges to Particular Time-sheet Entries

d. Excessive Hours Appellants Appellants contend that the 247 the fee contend summary judgment contrary hours attributed to the district court’s own litigation, criteria, compensation and the 152 hours to the related includes for services interlocutory appeal, summary judgment were excessive. The not devoted to the liti compensable by gation, interlocutory appeal, pro hours determined the dis or the appear Appellants trict court do not excessive on their cedural due claim. con particular assigned face and no compensation rationale is test the allowance of based support allegation appear excessive- on certain “mixed” entries which to compile appendix ed claims did "not arise from a course of con- need to for the interlocu- easily (for duct that is differentiated on the tory appeal basis of which the district court allowed defendant.”). only significant each mary judgment sum- time) compensable 1.5 hours of insuffi- might services which conceiva- other, finding necessary cient basis for in- bly distinguished have been such a basis (research terlocutory appeal services and draft- drafting would have been research and ing) reasonably require did not as much time as supervisory liability appel- related to the Second, particularly claimed. we find uncon- lants, distinguished from their victorious co- vincing appellants' plaint overall of excessive- defendants. As for might other services which ness, as well as their attack on the servic- direct distinguished have been on the basis of (minimal) performed by es one whose involved, particular (e.g., pretrial defendant researching spent largely interlocu- time was discovery), the district court allowed no com- ap- tory appellate jurisdiction, especially since sum, pensation. appellants have failed to present appellate pellants attempted had demonstrate that the fee award includes com- subject interlocutory appeal. claims not pensation any significant, readily-segregable infra, pp. 424-425. The additional time reason- specifically relating services to the victorious successfully resisting ably spent appellants’ at- codefendants. tempt appellate jurisdiction to assert where fully compensable. Although none existed is grounds Appellants attempt assign appellants objections spent advance several other their contention that too much time was interlocutory appeal; the reasonableness of the hours determined we find none con- First, court, compensable by vincing. request their contention that the the district we find none was excessive because Procter & Hoar did not of sufficient moment to warrant discussion. compensable and the services rendered connection with devoted combine hours unnecessary.45 three were these entries noneompensable services. ambiguous time- concerns about Our Computational f. Errors See, recognized. are well

sheet entries Bishop, 635 e.g., Furtado Finally, appellants assign errors for (1st (disallowing compensation computation require which travel,” since Sousa and G. “Conf[erence] (2.4 by that the award be reduced $165.60 spent the time entry did not indicate hour); (5.9 per hours at $69.00 $295.00 com- are disinclined to conference and “we hour);46 (5.1 per at hours $50.00 $484.50 professional rates attorney an pensate hour), per by hours at and increased $95.00 time_”). Accordingly, we travel (1 (.4 $90.00) and $40.00 hour $90.00 out, on these for disallowance have culled $100.00).47 hours at entries to which grounds, “mixed” various The reduced to is attention, total- called our appellants have $37,123.85. judgment The district court $3,502.60.44 respects, we find ing other affirmed, modified; appel- costs to is handling court’s of various that the district lee. its entries was well within “mixed” time Metropolitan Dish broad discretion. Comm’n, (separation F.2d at CAMPBELL, LEVIN H. Senior Circuit limits,” chaff,”

“wheat from “within broad Judge (concurring). the district discretion of is within the Cyr’s exceedingly join Judge I court). thoughtful Even if one opinion. were challenge apparent allow Appellants by fully persuaded, the result is dictated compensation panel on least prior precedent based “at this and our ance Circuit’s relating to in decisis. The Supreme entries for research is bound stare three” presumably decide the matter appellate As the de Court will terlocutory review. Hobby. definitively next term Farrar v. unquestionably were officials fendant state interlocutory appeal from entitled to an partial summary motion for

denial of their immunity grounds, qualified on ap interlocutory

appellants that no insist necessary. We remind

peal research was appel there other

appellants were two right they had no

late claims which interlocutory appeal. Do

present on Fair, 859 F.2d

megan v.

Cir.1988)(no permitted interlocutory appeal claims). appellants’ three We

on two of reason to no believe given

have been discovery stage had con- Thus, pretrial compensation denied the ser- all interlocutory appeal ##36, with the following nection entries: vices identified 207; ac- 182, 190, 192, 195, 206, immunity. award is reduced 69, 97, 111, 124, qualified cordingly. totaling hours. 37.8 hours at allowed 55.0 court 47.The district billing entry on involved "[r]esearch 45. A fourth Attorney Bagger. per services hour for $95.00 ruling.” immunity qualified appealability of out, application point the fee appellants As entirely entry billed for this seem The 1.7 hours Bagger spent 49.1 hours Ms. claimed that reasonable, entry hour for a as does the .3 (on summary judgment and compensable time appeal dismiss on the motion to conference hourly appeal) interlocutory $95.00 at the appellate jurisdiction. and research request time the fee review of rate. Our actually 49.9 devoted that she sheets indicates hours, ne- miscalculations other minor but that apparently 8.3 allowed district text. adjustment forth in set liability relating cessitate net issues hours services

Case Details

Case Name: Dennis J. Domegan v. Joseph Ponte, (Two Cases)

Court Name: Court of Appeals for the First Circuit

Date Published: Aug 10, 1992

Citation: 972 F.2d 401

Docket Number: 91-1625, 91-1753

Court Abbreviation: 1st Cir.