USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1408
CASA MARIE HOGAR GERIATRICO, INC., ET AL.,
Plaintiffs, Appellants,
v.
ESTHER RIVERA-SANTOS, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Charles S. Hey-Maestre, with whom Rick Nemcik-Cruz was on
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brief, for appellants.
Ramon L. Walker Merino for appellees.
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October 28, 1994
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SELYA, Circuit Judge. In this appeal, Casa Marie Hogar
SELYA, Circuit Judge.
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Geriatrico, Inc. (Casa Marie), a residential elder-care facility,
and its principals, Victor Pla, Damaris Rodriguez, Maria Pla, and
Francisco Monrouzeau (collectively, appellants), calumnize an
order assessing attorneys' fees against them under the Fees Act,
42 U.S.C. 1988 (1988). Because the district court's findings
are not sufficiently complete to justify a fee award, we vacate
the order and remand for further proceedings.
I. BACKGROUND
I. BACKGROUND
The history of this litigation has been chronicled at
considerable length both in the district court's initial
decision, see Casa Marie, Inc. v. Superior Court, 752 F. Supp.
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1152, 1154-60 (D.P.R. 1990) (Casa Marie I), and in our opinion
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vacating the judgment entered pursuant thereto, see Casa Marie,
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Inc. v. Superior Court, 988 F.2d 252, 255-58 (1st Cir. 1993)
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(Casa Marie II). Because there is scant benefit in repastinating
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well-spaded soil, we touch only on such matters as are directly
relevant to the instant appeal.
Casa Marie's decision to locate its elder-care facility
within the municipality of Arecibo, Puerto Rico, set in motion a
train of events that led to the present encounter. Displeased by
Casa Marie's intrusion into a residential subdivision, Jardines
de Arecibo (JDA), a group of neighbors filed suit in the Puerto
Rico Superior Court on April 18, 1988. They alleged that
operation of the facility violated municipal zoning ordinances
and restrictive covenants applicable to the JDA subdivision.
2
After vigorous skirmishing, not relevant here, the
superior court entered judgment for the neighbors and ordered
Casa Marie to close its doors. When appellants continued to
operate in defiance of the ban, the neighbors initiated
enforcement proceedings. On October 9, 1990, the superior court
issued a civil contempt citation, ordering the arrest and
imprisonment of Casa Marie's principals if they failed to comply
with the original judgment within a stated time frame.
At that point, appellants apparently concluded that the
best defense was a good offense. Joined by a cadre of elderly
persons who resided at the facility, appellants brought a civil
action in the United States District Court for the District of
Puerto Rico on October 19, 1990. The plaintiffs invoked 42
U.S.C. 1983 (1988) and the Fair Housing Act, 42 U.S.C. 3601-
3617 (1993) (FHA), alleging that the neighbors and the superior
court had acted in concert to enforce the zoning ordinances and
restrictive covenants selectively; that these efforts were born
of a discriminatory animus; and that, by composing and
orchestrating this scheme, the named defendants transgressed
section 1983, the Equal Protection Clause, and the FHA.
The district court proved hospitable to this
counteroffensive. It determined that the neighbors' use of the
local court system constituted "state action," and that the
elderly persons residing at the facility had established
violations of both section 1983 and the FHA. Consequently, the
district court enjoined the neighbors from executing the superior
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court judgment. See Casa Marie I, 752 F. Supp. at 1165-69.
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However, the court's hospitality extended only to the aged;
remarking appellants' participation in the earlier superior court
action and citing res judicata principles, the district court
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dismissed their federal claims but kept them in the case as
"necessary parties for the disposition of th[e] separate action
by the elders." Id. at 1161.
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On appeal, a panel of this court vacated the district
court's judgment on two grounds. First, the panel discerned no
state action sufficient to undergird the section 1983 claim. See
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Casa Marie II, 988 F.2d at 258-60. Second, the panel ruled that
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federal law, including abstention doctrines and the Anti-
Injunction Act, 28 U.S.C. 2283 (1988), barred injunctive relief
under the FHA. See Casa Marie II, 988 F.2d at 260-70. In the
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last sentence of the opinion, the panel stated that "[d]ouble
costs are awarded against Casa Marie and its owners." Id. at
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270.
In due course, the neighbors, having prevailed, sought
upward of $25,000 in counsel fees against appellants (though not
against the other plaintiffs). On February 25, 1994, the
district court granted the neighbors' application in part and
awarded fees in the amount of $18,052.50. The court hinged its
order on the Fees Act, restricting the award to time spent on the
section 1983 claim and disregarding all time spent on the FHA
4
claim. This appeal followed.1
II. LEGAL PRINCIPLES AFFECTING REVIEW
II. LEGAL PRINCIPLES AFFECTING REVIEW
It is firmly settled in this circuit that, when
shifting fees, "the district court is expected to explain its
actions." Foster v. Mydas Assoc., Inc., 943 F.2d 139, 141 (1st
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Cir. 1991). One cardinal reason for this rule is to facilitate
appellate review a goal that is better achieved when the nisi
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prius court produces a suitable set of findings and an
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explication of why it authored the particular fee award. See
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Peckham v. Continental Cas. Ins. Co., 895 F.2d 830, 842 (1st Cir.
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1990). Although such findings need not be "infinitely precise,"
United States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 16 n.4
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(1st Cir. 1988), they must be reasonably complete and offer at a
bare minimum a "clear explanation of [the district court's]
reasons for the fee award," Hensley v. Eckerhart, 461 U.S. 424,
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437 (1983), together with some appropriate "method and manner"
insight into how the award was calculated, see Blum v. Stenson,
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465 U.S. 886, 888 (1984).
We review fee-shifting orders for abuse of discretion.
See Foley v. City of Lowell, 948 F.2d 10, 18 (1st Cir. 1991);
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Metropolitan Dist. Comm'n, 847 F.2d at 14. While this is a
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deferential mode of oversight, the standard is not entirely
toothless; the court of appeals will find an abuse of discretion,
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1Appellees have not cross-appealed the denial of fees in
connection with the FHA claim. Therefore, the district court's
order has become final in that respect.
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and set aside the underlying order, "when a material factor
deserving significant weight is ignored, when an improper factor
is relied upon, or when all proper and no improper factors are
assessed, but the court makes a serious mistake in weighing
them." Foster, 943 F.2d at 143, quoting Independent Oil & Chem.
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Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 F.2d
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927, 929 (1st Cir. 1988).
III. ANALYSIS
III. ANALYSIS
Appellants advance two interrelated arguments in aid of
their contention that the lower court stumbled. First, they
claim that the trial judge abused his discretion by relying on
the appellate panel's imposition of double costs as a dispositive
factor with respect to whether fees should be awarded in the
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district court. Second, they asseverate that the facts of this
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case do not warrant a fee award under 42 U.S.C. 1988 (or, at
the least, that the judge failed to find facts sufficient to
underpin such an award).2
A
A
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2In their brief, appellants also bemoan the district court's
ostensible failure to consider their financial condition in
imposing a fee award. Although we have held that "an award of
attorney's fees to a prevailing defendant must not be oblivious
of a plaintiff's financial capacity," Charves v. Western Union
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Tel. Co., 711 F.2d 462, 465 (1st Cir. 1983), appellants'
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importuning comes too late. A party desirous of holding down the
size of a fee award by reason of limited resources has the burden
of raising the point in a timely fashion and thereafter
establishing his financial condition. See Gibbs v. Clements Food
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Co., 949 F.2d 344, 345 (10th Cir. 1991). In the district court,
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appellants disregarded these requirements. Since it is our usual
policy to eschew consideration of points not seasonably raised
below, see, e.g., Clauson v. Smith, 823 F.2d 660, 666 (1st Cir.
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1987), we deem appellants to have waived the argument.
6
In civil rights cases, fee-shifting in favor of a
prevailing plaintiff is the rule, whereas fee-shifting in favor
of a prevailing defendant is the exception. Thus, though a
prevailing plaintiff is presumptively entitled to fee-shifting in
such a case, see, e.g., Hensley, 461 U.S. at 429, a prevailing
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defendant is entitled to similar largesse only if she can
establish that the plaintiffs' suit was totally unfounded,
frivolous, or otherwise unreasonable, see Hughes v. Rowe, 449
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U.S. 5, 14 (1980); Christiansburg Garment Co. v. EEOC, 434 U.S.
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412, 421 (1978); Foster, 943 F.2d at 145-46. The court below
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accurately rehearsed this standard in its unpublished memorandum
order. But the court compressed into a single paragraph its
discussion of whether appellants' section 1983 claim sank to
these depths. The court wrote:
In light of [Christiansburg and its progeny],
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no relief is available to the defendants
unless we find that plaintiffs' action was
frivolous. Defendants' attorneys suggest
that the imposition of double costs on the
owners of Casa Marie on appeal is an
indication of the meritlessness of [their]
action. Although the Court of Appeals did
not explain its reasoning, we assume that the
imposition of the sanction of double costs
reflects a finding that the case lacked merit
as to these particular plaintiffs. See also
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Eastway Constr. Corp. v. City of New York,
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762 F.2d 243, 252 (2d Cir. 1985).
After writing this paragraph, the court immediately switched
gears and began discussing why fee-shifting was not warranted in
connection with the FHA claim. Then, without returning to the
section 1983 claim or offering additional insights into its
reasons for pulling the trigger of the Fees Act, the court
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awarded a sum certain. Thus, when all is said and done, the
district court made specific mention of only one factor the
assessment of double costs on appeal as a particularized
justification for its fee award.
Appellants assail the trial judge's reliance on this
solitary factor as a bellwether for shifting fees in the district
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court. They advocate a bright-line rule to the effect that a
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trial court may not consider an appellate court's imposition of
sanctions in determining frivolity for the purpose of a fee award
in favor of a prevailing defendant under 42 U.S.C. 1988. Any
such consideration, they contend, would contravene the Supreme
Court's mandate that a district court considering a fee request
from a prevailing defendant should "resist the understandable
temptation to engage in post hoc reasoning." Christiansburg, 434
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U.S. at 421-22. The appellees also hawk a bright-line rule, but
they propose drawing the line at a much different angle.
Specifically, appellees would have us hold that an appellate
court's imposition of double costs is tantamount to a finding of
frivolity, and that, therefore, it is always proper for the trial
court to rely on such an impost as a factor in awarding
attorneys' fees to a prevailing defendant.
To be sure, bright lines are sometimes useful in the
law. But for all their seductive allure, they have a tendency in
certain situations to blind courts and lawyers to the subtleties
inherent in the problems to which they are addressed. So it is
here. We are wary of the glare in this context and refuse to
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adopt either of the bright-line rules proposed by the
protagonists.
In lieu of a rigid rule, we prefer to recognize the
relevant reality: that the significance of an appellate court's
dispensation of double costs to the district court's
determination of frivolity will vary case by case. Appellate
sanctions are appropriately awarded when an appellant prosecutes
an appeal "without any realistic hope of prevailing." Ochoa
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Realty Corp. v. Faria, 815 F.2d 812, 818 (1st Cir. 1987). In
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some situations, a determination that an appeal was foredoomed
may bear no relationship to the question of whether the
underlying action was frivolous when commenced.3 In other
situations, however, a determination that an appeal was taken
against all odds may bear directly upon, or at least inform, the
district court's judgment as to the frivolity of the suit ab
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initio.4 To enable the district court to tell the difference,
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3Consider the example of a tort action hinging upon the
credibility of witnesses and involving evaluative judgments about
the care (or lack of care) exhibited by the protagonists. Though
such cases are often fairly debatable when brought (and, thus,
not frivolous), they may be so factbound that an appeal of a jury
verdict on liability might well be deemed frivolous. See, e.g.,
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Levesque v. Anchor Motor Freight, Inc., 832 F.2d 702 (1st Cir.
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1987); see also La Amiga del Pueblo, Inc. v. Robles, 937 F.2d
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689, 692 (1st Cir. 1991) (holding that an appeal from a jury
verdict was frivolous given conflicting evidence and lack of
preserved objections, although the trial itself may have
presented fairly debatable questions).
4Consider a case in which the district court grants summary
judgment against a plaintiff and the appellate court, applying de
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novo review, determines that the plaintiff's claims are
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frivolous. Such a case may well have been totally groundless
when brought, and the appellate court's conclusion may inform
that determination, especially if neither the known facts nor the
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the appellate court must furnish, or the record must adumbrate, a
reasoned explanation of why the sanction was levied.
Assuming for argument's sake that, as appellees would
have it, the panel in Casa Marie II intended double costs as a
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sanction,5 this action, without further explication, sheds no
light on the question of whether appellants' section 1983 claim
was unfounded or frivolous when originally raised in the district
court. Because the appellate panel kept its own counsel and the
record does not suggest an obvious reason for its action,6 it
follows that the district court's reliance on the appellate
sanction as a proxy for a finding of frivolity was improper. A
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fortiori, such reliance cannot comprise an adequate substitute
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law changed materially during the pendency of the litigation.
See, e.g., Raskiewicz v. Town of New Boston, 754 F.2d 38 (1st
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Cir.), cert. denied, 474 U.S. 845 (1985); see also Sierra Club v.
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Secretary of Army, 820 F.2d 513, 518-20 (1st Cir. 1987)
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(upholding district court award of fees under EAJA where district
court, on remand, had relied on a prior appellate decision in
making its determination that government's original position was
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not substantially justified).
5In their attack on the district court's order, appellants
assert that, since the panel provided no explanation for the
impost, it is at least arguable that double costs were merely a
special compensatory assessment under Fed. R. App. P. 39(a)
rather than a sanction. We find this argument to be ingenious,
but not particularly persuasive. In any event, even if double
costs were intended as a sanction, the district court's use of
the datum cannot stand. See infra.
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6Indeed, Casa Marie and its principals remained in the case
not of their own volition, but because the district court opted
to retain jurisdiction over them after dismissing their
complaint. See Casa Marie I, 752 F. Supp. at 1161. They filed
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no notice of appeal, and to the extent they appeared at all, they
appeared as appellees, not appellants, in Casa Marie II.
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Consistent with this circumscribed role, they neither filed a
brief nor presented oral argument in this court.
10
for the concrete findings ordinarily demanded as a prerequisite
to a fee-shifting order. See Peckham, 895 F.2d at 842.
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B
B
The neighbors have one last string to their bow. They
maintain that, putting to one side its misplaced reliance on the
award of double costs, the district court made enough additional
findings to prop up a conclusion that appellants' section 1983
claim was frivolous when brought. In this vein, appellees argue
that the district court's cryptic citation to Eastway, coupled
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with its earlier allusion to the fact that appellants' claims
originally were dismissed on res judicata grounds,7 constitute
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"findings" sufficient to ground the fee award.
We do not think that the district court's rescript
permits so generous a reading. While the court's citation to
Eastway may perhaps hint that the fee award was based in part on
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the res judicata bar that blocked appellants' federal court
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action from the start,8 any such indication is substantially
outweighed by the fact that the district court's only explicit
reference to res judicata actually cuts against the neighbors'
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7This is by all odds a slender reed. The court simply
wrote, in describing the travel of the case, that "[t]he owners
of the facility were dismissed on res judicata grounds, but were
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retained as necessary parties."
8In Eastway, the Second Circuit reversed the district
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court's denial of attorneys' fees to a prevailing defendant in a
civil rights action, finding it "particularly noteworthy that
[the plaintiff] had already challenged the City's policy in the
state courts, and had been unsuccessful," and stating that
"[t]hese proceedings should at least have put [plaintiff] on
notice of the possibility that its adversary might be awarded
counsel fees." 762 F.2d at 252 (citation omitted).
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hypothesis that the res judicata dismissal provided the basis for
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the fee award. We explain briefly.
The district court gave two reasons for its decision
not to bestow fees in connection with the FHA claim. First, the
Court concluded that it could not classify the FHA claim as
frivolous because "the First Circuit found that [the district
court] should have abstained in favor of the state proceedings,"
and, therefore, made "no holding on the merits . . . in that
claim." Second, the court noted that, because appellants' claims
in federal court were barred by res judicata, appellants were
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only retained in the action as necessary parties. Relying on
"these reasons," the court denied counsel fees on the FHA claim.
Thus, it appears that the district court used the res judicata
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dismissal of appellants' FHA claim as a justification for not
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awarding attorneys' fees on that claim.9 Presumably, what is
sauce for the goose is also sauce for the gander: because the
district court dismissed appellants' section 1983 claim on the
very same res judicata grounds, the record strongly suggests that
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the court could not have believed this circumstance as a
justification for a fee award.10 We can only assume,
therefore, that the court awarded attorneys' fees to the
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9We take no view of the correctness of this holding.
Rather, we cite to it in an effort to elucidate the district
court's thinking.
10This logic seems especially compelling when one realizes
that appellants' involuntary retention in the case was a sequelae
not only of the dismissal of their FHA claim, but also of the
dismissal of their section 1983 claim.
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neighbors on the section 1983 claim for some other reason, say,
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because the court of appeals awarded double costs.
We need not beat this drum too long or too loudly. The
crux of the matter is not whether the district court "could" or
"might" have intended to give weight to the circumstances leading
to the res judicata dismissal of the section 1983 claim. What
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counts is that the record is fuliginous on this point. Appellate
review of a fee award must comprise more than a shot in the dark.
When, as now, the district court's fee-shifting order leaves
critical questions unanswered, the order cannot stand.
C
C
Although the district court's fee-shifting order must
be vacated, the course of future proceedings is open to debate.
Appellants invite us to decide here and now that no plausible
rendition of the record will sustain a fee-shifting order. We
decline the invitation. Once we discount the district court's
improper reliance on the earlier imposition of double costs, we
are left to guess about the district court's thinking. Here, as
in Foster, plunging ahead would be tantamount to "usurping the
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district court's function, [and] depriving ourselves, and the
parties, of the insights of the judicial officer most intimately
familiar with the case and its nuances." Foster, 943 F.2d at
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144. We will not participate in such a speculative exercise.
For these reasons, we conclude that the course of both
fairness and prudence is to remand for further consideration of,
and findings appertaining to, the application for an award of
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fees in respect to the section 1983 claim. We intimate no
opinion as to appellees' entitlement vel non to such fees.
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Vacated and remanded. No fees or costs shall be
Vacated and remanded. No fees or costs shall be
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awarded to any party, under 42 U.S.C. 1988 or otherwise, for
awarded to any party, under 42 U.S.C. 1988 or otherwise, for
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work in connection with this appeal.
work in connection with this appeal.
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